PERSONS & FAMILY RELATIONS

Subject Outline (2014-2015)

Prof. Bruce V. Rivera

CIVIL CODE

Preliminary Title (Articles 1-18) 5 Hours

Article 2
Tanada vs. Tuvera (146 SCRA 446)
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF
ATTORNEYS FOR BROTHERHOOD, INTEGRITY AND NATIONALISM, INC.
[MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President,
HON. JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the
President , MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacaang
Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of
Printing, respondents.

ESCOLIN, J .:
Invoking the people's right to be informed on matters of public concern, a right
recognized in Section 6, Article IV of the 1973 Philippine Constitution,
1
as well as the
principle that laws to be valid and enforceable must be published in the Official Gazette
or otherwise effectively promulgated, petitioners seek a writ of mandamus to compel
respondent public officials to publish, and/or cause the publication in the Official Gazette
of various presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184,
197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358,
359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491,
503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718,
731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 1017-1030, 1050,
1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279,
1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136,
141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204,
205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-
261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303,
309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362, 367, 370, 382,
385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399,
527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641,
642, 665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940,
964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-
1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-
1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-
1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754,
1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-
1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-
1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889,
1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-
2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-
492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549,
551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647,
649-677, 679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59,
76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433,
436-439.
The respondents, through the Solicitor General, would have this case dismissed outright
on the ground that petitioners have no legal personality or standing to bring the instant
petition. The view is submitted that in the absence of any showing that petitioners are
personally and directly affected or prejudiced by the alleged non-publication of the
presidential issuances in question
2
said petitioners are without the requisite legal
personality to institute this mandamus proceeding, they are not being "aggrieved parties"
within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.When any tribunal, corporation, board
or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use a rd enjoyment of a right or
office to which such other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law, the person aggrieved
thereby may file a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered commanding the
defendant, immediately or at some other specified time, to do the act
required to be done to Protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the wrongful acts of the
defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns
a public right and its object is to compel the performance of a public duty, they need not
show any specific interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs.
Governor General,
3
this Court held that while the general rule is that "a writ of
mandamus would be granted to a private individual only in those cases where he has
some private or particular interest to be subserved, or some particular right to be
protected, independent of that which he holds with the public at large," and "it is for the
public officers exclusively to apply for the writ when public rights are to be subserved
[Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of
public right and the object of the mandamus is to procure the enforcement of a public
duty, the people are regarded as the real party in interest and the relator at whose
instigation the proceedings are instituted need not show that he has any legal or special
interest in the result, it being sufficient to show that he is a citizen and as such interested
in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual,
as a proper party to the mandamus proceedings brought to compel the Governor
General to call a special election for the position of municipal president in the town of
Silay, Negros Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the
proposition that the relator is a proper party to proceedings of this
character when a public right is sought to be enforced. If the general rule
in America were otherwise, we think that it would not be applicable to the
case at bar for the reason 'that it is always dangerous to apply a general
rule to a particular case without keeping in mind the reason for the rule,
because, if under the particular circumstances the reason for the rule
does not exist, the rule itself is not applicable and reliance upon the rule
may well lead to error'
No reason exists in the case at bar for applying the general rule insisted
upon by counsel for the respondent. The circumstances which surround
this case are different from those in the United States, inasmuch as if the
relator is not a proper party to these proceedings no other person could
be, as we have seen that it is not the duty of the law officer of the
Government to appear and represent the people in cases of this
character.
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to
be enforced by petitioners herein is a public right recognized by no less than the
fundamental law of the land. If petitioners were not allowed to institute this proceeding, it
would indeed be difficult to conceive of any other person to initiate the same, considering
that the Solicitor General, the government officer generally empowered to represent the
people, has entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own
effectivity dates. It is thus submitted that since the presidential issuances in question
contain special provisions as to the date they are to take effect, publication in the Official
Gazette is not indispensable for their effectivity. The point stressed is anchored on
Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said
article. In a long line of decisions,
4
this Court has ruled that publication in the Official
Gazette is necessary in those cases where the legislation itself does not provide for its
effectivity date-for then the date of publication is material for determining its date of
effectivity, which is the fifteenth day following its publication-but not when the law itself
provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the
effectivity of laws with the fact of publication. Considered in the light of other statutes
applicable to the issue at hand, the conclusion is easily reached that said Article 2 does
not preclude the requirement of publication in the Official Gazette, even if the law itself
provides for the date of its effectivity. Thus, Section 1 of Commonwealth Act 638
provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important
legisiative acts and resolutions of a public nature of the, Congress of the
Philippines; [2] all executive and administrative orders and proclamations,
except such as have no general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of Appeals as may be
deemed by said courts of sufficient importance to be so published; [4]
such documents or classes of documents as may be required so to be
published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have
general applicability and legal effect, or which he may authorize so to be
published. ...
The clear object of the above-quoted provision is to give the general public adequate
notice of the various laws which are to regulate their actions and conduct as citizens.
Without such notice and publication, there would be no basis for the application of the
maxim "ignorantia legis non excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which he had no notice
whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the
publication of laws taken so vital significance that at this time when the people have
bestowed upon the President a power heretofore enjoyed solely by the legislature. While
the people are kept abreast by the mass media of the debates and deliberations in the
Batasan Pambansaand for the diligent ones, ready access to the legislative records
no such publicity accompanies the law-making process of the President. Thus, without
publication, the people have no means of knowing what presidential decrees have
actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo
la denominacion generica de leyes, se comprenden tambien los reglamentos, Reales
decretos, Instrucciones, Circulares y Reales ordines dictadas de conformidad con las
mismas por el Gobierno en uso de su potestad.
5

The very first clause of Section I of Commonwealth Act 638 reads: "There shall be
published in the Official Gazette ... ." The word "shall" used therein imposes upon
respondent officials an imperative duty. That duty must be enforced if the Constitutional
right of the people to be informed on matters of public concern is to be given substance
and reality. The law itself makes a list of what should be published in the Official
Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as
to what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. Obviously, presidential decrees that provide for fines,
forfeitures or penalties for their violation or otherwise impose a burden or. the people,
such as tax and revenue measures, fall within this category. Other presidential
issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the assumption that they
have been circularized to all concerned.
6

It is needless to add that the publication of presidential issuances "of a public nature" or
"of general applicability" is a requirement of due process. It is a rule of law that before a
person may be bound by law, he must first be officially and specifically informed of its
contents. As Justice Claudio Teehankee said in Peralta vs. COMELEC
7
:
In a time of proliferating decrees, orders and letters of instructions which
all form part of the law of the land, the requirement of due process and
the Rule of Law demand that the Official Gazette as the official
government repository promulgate and publish the texts of all such
decrees, orders and instructions so that the people may know where to
obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which
have not been published, shall have no force and effect. Some members of the Court,
quite apprehensive about the possible unsettling effect this decision might have on acts
done in reliance of the validity of those presidential decrees which were published only
during the pendency of this petition, have put the question as to whether the Court's
declaration of invalidity apply to P.D.s which had been enforced or implemented prior to
their publication. The answer is all too familiar. In similar situations in the past this Court
had taken the pragmatic and realistic course set forth in Chicot County Drainage District
vs. Baxter Bank
8
to wit:
The courts below have proceeded on the theory that the Act of Congress,
having been found to be unconstitutional, was not a law; that it was
inoperative, conferring no rights and imposing no duties, and hence
affording no basis for the challenged decree. Norton v. Shelby County,
118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559,
566. It is quite clear, however, that such broad statements as to the effect
of a determination of unconstitutionality must be taken with qualifications.
The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be
ignored. The past cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects-with respect to particular conduct, private
and official. Questions of rights claimed to have become vested, of status,
of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute
and of its previous application, demand examination. These questions are
among the most difficult of those which have engaged the attention of
courts, state and federal and it is manifest from numerous decisions that
an all-inclusive statement of a principle of absolute retroactive invalidity
cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban
9
sustained the
right of a party under the Moratorium Law, albeit said right had accrued in his favor
before said law was declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their
publication in the Official Gazette is "an operative fact which may have consequences
which cannot be justly ignored. The past cannot always be erased by a new judicial
declaration ... that an all-inclusive statement of a principle of absolute retroactive
invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the
presidential decrees sought by petitioners to be published in the Official Gazette, only
Presidential Decrees Nos. 1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive,
have not been so published.
10
Neither the subject matters nor the texts of these PDs
can be ascertained since no copies thereof are available. But whatever their subject
matter may be, it is undisputed that none of these unpublished PDs has ever been
implemented or enforced by the government. In Pesigan vs. Angeles,
11
the Court,
through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public
of the contents of [penal] regulations and make the said penalties binding on the persons
affected thereby. " The cogency of this holding is apparently recognized by respondent
officials considering the manifestation in their comment that "the government, as a
matter of policy, refrains from prosecuting violations of criminal laws until the same shall
have been published in the Official Gazette or in some other publication, even though
some criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so
published, they shall have no binding force and effect.
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.


Separate Opinions

FERNANDO, C.J ., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written
opinion of Justice Escolin. I am unable, however, to concur insofar as it would
unqualifiedly impose the requirement of publication in the Official Gazette for
unpublished "presidential issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would
arise if made to apply adversely to a party who is not even aware of the existence of any
legislative or executive act having the force and effect of law. My point is that such
publication required need not be confined to the Official Gazette. From the pragmatic
standpoint, there is an advantage to be gained. It conduces to certainty. That is too be
admitted. It does not follow, however, that failure to do so would in all cases and under
all circumstances result in a statute, presidential decree or any other executive act of the
same category being bereft of any binding force and effect. To so hold would, for me,
raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of
effectivity unless published in the Official Gazette. There is no such requirement in the
Constitution as Justice Plana so aptly pointed out. It is true that what is decided now
applies only to past "presidential issuances". Nonetheless, this clarification is, to my
mind, needed to avoid any possible misconception as to what is required for any statute
or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana.
Its first paragraph sets forth what to me is the constitutional doctrine applicable to this
case. Thus: "The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said
though that the guarantee of due process requires notice of laws to affected Parties
before they can be bound thereby; but such notice is not necessarily by publication in
the Official Gazette. The due process clause is not that precise.
1
I am likewise in
agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be
bound by a law without notice. This is elementary fairness. However, I beg to disagree
insofar as it holds that such notice shall be by publication in the Official Gazette.
2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the
government "must be ascertainable in some form if it is to be enforced at all.
3
It would
indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it
is unknown and unknowable.
4
Publication, to repeat, is thus essential. What I am not
prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure
once published therein there is the ascertainable mode of determining the exact date of
its effectivity. Still for me that does not dispose of the question of what is the jural effect
of past presidential decrees or executive acts not so published. For prior thereto, it could
be that parties aware of their existence could have conducted themselves in accordance
with their provisions. If no legal consequences could attach due to lack of publication in
the Official Gazette, then serious problems could arise. Previous transactions based on
such "Presidential Issuances" could be open to question. Matters deemed settled could
still be inquired into. I am not prepared to hold that such an effect is contemplated by our
decision. Where such presidential decree or executive act is made the basis of a
criminal prosecution, then, of course, its ex post facto character becomes evident.
5
In
civil cases though, retroactivity as such is not conclusive on the due process aspect.
There must still be a showing of arbitrariness. Moreover, where the challenged
presidential decree or executive act was issued under the police power, the non-
impairment clause of the Constitution may not always be successfully invoked. There
must still be that process of balancing to determine whether or not it could in such a
case be tainted by infirmity.
6
In traditional terminology, there could arise then a question
of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm
that publication is essential to the effectivity of a legislative or executive act of a general
application. I am not in agreement with the view that such publication must be in the
Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as
to laws taking effect after fifteen days following the completion of their publication in the
Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover,
the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional command. A later legislative or
executive act which has the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin
that presidential decrees and executive acts not thus previously published in the Official
Gazette would be devoid of any legal character. That would be, in my opinion, to go too
far. It may be fraught, as earlier noted, with undesirable consequences. I find myself
therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay
concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J ., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme.
Justice Herrera. The Rule of Law connotes a body of norms and laws published and
ascertainable and of equal application to all similarly circumstances and not subject to
arbitrary change but only under certain set procedures. The Court has consistently
stressed that "it is an elementary rule of fair play and justice that a reasonable
opportunity to be informed must be afforded to the people who are commanded to obey
before they can be punished for its violation,
1
citing the settled principle based on due
process enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and
the people officially and specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil
Code and the Revised Administrative Code, there would be no basis nor justification for
the corollary rule of Article 3 of the Civil Code (based on constructive notice that the
provisions of the law are ascertainable from the public and official repository where they
are duly published) that "Ignorance of the law excuses no one from compliance
therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only
laws which are silent as to their effectivity [date] need be published in the Official
Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the
Civil Code is that "laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided, " i.e. a different
effectivity date is provided by the law itself. This proviso perforce refers to a law that has
been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise
that it "shall take effect [only] one year [not 15 days] after such publication.
2
To sustain
respondents' misreading that "most laws or decrees specify the date of their effectivity
and for this reason, publication in the Official Gazette is not necessary for their
effectivity
3
would be to nullify and render nugatory the Civil Code's indispensable and
essential requirement of prior publication in the Official Gazette by the simple expedient
of providing for immediate effectivity or an earlier effectivity date in the law
itself before the completion of 15 days following its publication which is the period
generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J ., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of
effectivity, it has to be published. What I would like to state in connection with that
proposition is that when a date of effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the Official Gazette, it will
not mean that the decree can have retroactive effect to the date of effectivity mentioned
in the decree itself. There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.

PLANA, J ., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for
their effectivity, unlike some Constitutions elsewhere. * It may be said though that the
guarantee of due process requires notice of laws to affected parties before they can be
bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in
the Official Gazette required by any statute as a prerequisite for their effectivity, if said
laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette, unless it is otherwise provided "
Two things may be said of this provision: Firstly, it obviously does not apply to a law with
a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each
law may provide not only a different period for reckoning its effectivity date but also a
different mode of notice. Thus, a law may prescribe that it shall be published elsewhere
than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for
their effectivity, laws must be published in the Official Gazette. The said law is simply
"An Act to Provide for the Uniform Publication and Distribution of the Official Gazette."
Conformably therewith, it authorizes the publication of the Official Gazette, determines
its frequency, provides for its sale and distribution, and defines the authority of the
Director of Printing in relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and resolutions of a public
nature of the Congress of the Philippines" and "all executive and administrative orders
and proclamations, except such as have no general applicability." It is noteworthy that
not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that
publication in the Official Gazette is essential for the effectivity of laws. This is as it
should be, for all statutes are equal and stand on the same footing. A law, especially an
earlier one of general application such as Commonwealth Act No. 638, cannot nullify or
restrict the operation of a subsequent statute that has a provision of its own as to when
and how it will take effect. Only a higher law, which is the Constitution, can assume that
role.
In fine, I concur in the majority decision to the extent that it requires notice before laws
become effective, for no person should be bound by a law without notice. This is
elementary fairness. However, I beg to disagree insofar as it holds that such notice shall
be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J ., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of
such publication being in the Official Gazette.

DE LA FUENTE, J ., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a
public nature or general applicability ineffective, until due publication thereof.



Separate Opinions
FERNANDO, C.J ., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written
opinion of Justice Escolin. I am unable, however, to concur insofar as it would
unqualifiedly impose the requirement of publication in the Official Gazette for
unpublished "presidential issuances" to have binding force and effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would
arise if made to apply adversely to a party who is not even aware of the existence of any
legislative or executive act having the force and effect of law. My point is that such
publication required need not be confined to the Official Gazette. From the pragmatic
standpoint, there is an advantage to be gained. It conduces to certainty. That is too be
admitted. It does not follow, however, that failure to do so would in all cases and under
all circumstances result in a statute, presidential decree or any other executive act of the
same category being bereft of any binding force and effect. To so hold would, for me,
raise a constitutional question. Such a pronouncement would lend itself to the
interpretation that such a legislative or presidential act is bereft of the attribute of
effectivity unless published in the Official Gazette. There is no such requirement in the
Constitution as Justice Plana so aptly pointed out. It is true that what is decided now
applies only to past "presidential issuances". Nonetheless, this clarification is, to my
mind, needed to avoid any possible misconception as to what is required for any statute
or presidential act to be impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana.
Its first paragraph sets forth what to me is the constitutional doctrine applicable to this
case. Thus: "The Philippine Constitution does not require the publication of laws as a
prerequisite for their effectivity, unlike some Constitutions elsewhere. It may be said
though that the guarantee of due process requires notice of laws to affected Parties
before they can be bound thereby; but such notice is not necessarily by publication in
the Official Gazette. The due process clause is not that precise.
1
I am likewise in
agreement with its closing paragraph: "In fine, I concur in the majority decision to the
extent that it requires notice before laws become effective, for no person should be
bound by a law without notice. This is elementary fairness. However, I beg to disagree
insofar as it holds that such notice shall be by publication in the Official Gazette.
2

3. It suffices, as was stated by Judge Learned Hand, that law as the command of the
government "must be ascertainable in some form if it is to be enforced at all.
3
It would
indeed be to reduce it to the level of mere futility, as pointed out by Justice Cardozo, "if it
is unknown and unknowable.
4
Publication, to repeat, is thus essential. What I am not
prepared to subscribe to is the doctrine that it must be in the Official Gazette. To be sure
once published therein there is the ascertainable mode of determining the exact date of
its effectivity. Still for me that does not dispose of the question of what is the jural effect
of past presidential decrees or executive acts not so published. For prior thereto, it could
be that parties aware of their existence could have conducted themselves in accordance
with their provisions. If no legal consequences could attach due to lack of publication in
the Official Gazette, then serious problems could arise. Previous transactions based on
such "Presidential Issuances" could be open to question. Matters deemed settled could
still be inquired into. I am not prepared to hold that such an effect is contemplated by our
decision. Where such presidential decree or executive act is made the basis of a
criminal prosecution, then, of course, its ex post facto character becomes evident.
5
In
civil cases though, retroactivity as such is not conclusive on the due process aspect.
There must still be a showing of arbitrariness. Moreover, where the challenged
presidential decree or executive act was issued under the police power, the non-
impairment clause of the Constitution may not always be successfully invoked. There
must still be that process of balancing to determine whether or not it could in such a
case be tainted by infirmity.
6
In traditional terminology, there could arise then a question
of unconstitutional application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm
that publication is essential to the effectivity of a legislative or executive act of a general
application. I am not in agreement with the view that such publication must be in the
Official Gazette. The Civil Code itself in its Article 2 expressly recognizes that the rule as
to laws taking effect after fifteen days following the completion of their publication in the
Official Gazette is subject to this exception, "unless it is otherwise provided." Moreover,
the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional command. A later legislative or
executive act which has the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin
that presidential decrees and executive acts not thus previously published in the Official
Gazette would be devoid of any legal character. That would be, in my opinion, to go too
far. It may be fraught, as earlier noted, with undesirable consequences. I find myself
therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay
concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J ., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme.
Justice Herrera. The Rule of Law connotes a body of norms and laws published and
ascertainable and of equal application to all similarly circumstances and not subject to
arbitrary change but only under certain set procedures. The Court has consistently
stressed that "it is an elementary rule of fair play and justice that a reasonable
opportunity to be informed must be afforded to the people who are commanded to obey
before they can be punished for its violation,
1
citing the settled principle based on due
process enunciated in earlier cases that "before the public is bound by its contents,
especially its penal provisions, a law, regulation or circular must first be published and
the people officially and specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil
Code and the Revised Administrative Code, there would be no basis nor justification for
the corollary rule of Article 3 of the Civil Code (based on constructive notice that the
provisions of the law are ascertainable from the public and official repository where they
are duly published) that "Ignorance of the law excuses no one from compliance
therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only
laws which are silent as to their effectivity [date] need be published in the Official
Gazette for their effectivity" is manifestly untenable. The plain text and meaning of the
Civil Code is that "laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided, " i.e. a different
effectivity date is provided by the law itself. This proviso perforce refers to a law that has
been duly published pursuant to the basic constitutional requirements of due process.
The best example of this is the Civil Code itself: the same Article 2 provides otherwise
that it "shall take effect [only] one year [not 15 days] after such publication.
2
To sustain
respondents' misreading that "most laws or decrees specify the date of their effectivity
and for this reason, publication in the Official Gazette is not necessary for their
effectivity
3
would be to nullify and render nugatory the Civil Code's indispensable and
essential requirement of prior publication in the Official Gazette by the simple expedient
of providing for immediate effectivity or an earlier effectivity date in the law
itself before the completion of 15 days following its publication which is the period
generally fixed by the Civil Code for its proper dissemination.

MELENCIO-HERRERA, J ., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of
effectivity, it has to be published. What I would like to state in connection with that
proposition is that when a date of effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the Official Gazette, it will
not mean that the decree can have retroactive effect to the date of effectivity mentioned
in the decree itself. There should be no retroactivity if the retroactivity will run counter to
constitutional rights or shall destroy vested rights.

PLANA, J ., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for
their effectivity, unlike some Constitutions elsewhere. * It may be said though that the
guarantee of due process requires notice of laws to affected parties before they can be
bound thereby; but such notice is not necessarily by publication in the Official Gazette.
The due process clause is not that precise. Neither is the publication of laws in
the Official Gazette required by any statute as a prerequisite for their effectivity, if said
laws already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette, unless it is otherwise provided "
Two things may be said of this provision: Firstly, it obviously does not apply to a law with
a built-in provision as to when it will take effect. Secondly, it clearly recognizes that each
law may provide not only a different period for reckoning its effectivity date but also a
different mode of notice. Thus, a law may prescribe that it shall be published elsewhere
than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for
their effectivity, laws must be published in the Official Gazette. The said law is simply
"An Act to Provide for the Uniform Publication and Distribution of the Official Gazette."
Conformably therewith, it authorizes the publication of the Official Gazette, determines
its frequency, provides for its sale and distribution, and defines the authority of the
Director of Printing in relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and resolutions of a public
nature of the Congress of the Philippines" and "all executive and administrative orders
and proclamations, except such as have no general applicability." It is noteworthy that
not all legislative acts are required to be published in the Official Gazette but only
"important" ones "of a public nature." Moreover, the said law does not provide that
publication in the Official Gazette is essential for the effectivity of laws. This is as it
should be, for all statutes are equal and stand on the same footing. A law, especially an
earlier one of general application such as Commonwealth Act No. 638, cannot nullify or
restrict the operation of a subsequent statute that has a provision of its own as to when
and how it will take effect. Only a higher law, which is the Constitution, can assume that
role.
In fine, I concur in the majority decision to the extent that it requires notice before laws
become effective, for no person should be bound by a law without notice. This is
elementary fairness. However, I beg to disagree insofar as it holds that such notice shall
be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J ., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of
such publication being in the Official Gazette.

DE LA FUENTE, J ., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a
public nature or general applicability ineffective, until due publication thereof.

DIGEST
FACTS:
Petitioners sought a writ of mandamus to compel respondent public officials to publish,
and/or cause the publication in the Official Gazette of various presidential decrees,
letters of instructions, general orders, proclamations, executive orders, letter of
implementation and administrative orders, invoking the right to be informed on matters of
public concern as recognized by the 1973 constitution.
ISSUE:
Whether or not the publication of presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and administrative
orders is necessary before its enforcement.
RULING:
Article 2 of the Civil Code provides that laws shall take effect after fifteen days following
the completion of their publication in the Official Gazette, unless it is otherwise
provided The Court has ruled that publication in the Official Gazette is necessary in
those cases where the legislation itself does not provide for its effectivity date-for then
the date of publication is material for determining its date of effectivity, which is the
fifteenth day following its publication-but not when the law itself provides for the date
when it goes into effect. Article 2 does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its effectivity.
The publication of all presidential issuances of a public nature or of general
applicability is mandated by law. Obviously, presidential decrees that provide for fines,
forfeitures or penalties for their violation or otherwise impose a burden or. the people,
such as tax and revenue measures, fall within this category. Other presidential
issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the assumption that they
have been circularized to all concerned.
Publication is, therefore, mandatory.

People vs. Que Po Lay (94 Phil 640)
G.R. No. L-6791 March 29, 1954
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
QUE PO LAY, defendant-appellant.
Prudencio de Guzman for appellant.
First Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Lauro G. Marquez
for appellee.
MONTEMAYOR, J .:
Que Po Lay is appealing from the decision of the Court of First Instance of Manila,
finding him guilty of violating Central Bank Circular No. 20 in connection with section 34
of Republic Act No. 265, and sentencing him to suffer six months imprisonment, to pay a
fine of P1,000 with subsidiary imprisonment in case of insolvency, and to pay the costs.
The charge was that the appellant who was in possession of foreign exchange
consisting of U.S. dollars, U.S. checks and U.S. money orders amounting to about
$7,000 failed to sell the same to the Central Bank through its agents within one day
following the receipt of such foreign exchange as required by Circular No. 20. the appeal
is based on the claim that said circular No. 20 was not published in the Official Gazette
prior to the act or omission imputed to the appellant, and that consequently, said circular
had no force and effect. It is contended that Commonwealth Act. No., 638 and Act 2930
both require said circular to be published in the Official Gazette, it being an order or
notice of general applicability. The Solicitor General answering this contention says that
Commonwealth Act. No. 638 and 2930 do not require the publication in the Official
Gazette of said circular issued for the implementation of a law in order to have force and
effect.
We agree with the Solicitor General that the laws in question do not require the
publication of the circulars, regulations and notices therein mentioned in order to
become binding and effective. All that said two laws provide is that laws, resolutions,
decisions of the Supreme Court and Court of Appeals, notices and documents required
by law to be of no force and effect. In other words, said two Acts merely enumerate and
make a list of what should be published in the Official Gazette, presumably, for the
guidance of the different branches of the Government issuing same, and of the Bureau
of Printing.
However, section 11 of the Revised Administrative Code provides that statutes passed
by Congress shall, in the absence of special provision, take effect at the beginning of the
fifteenth day after the completion of the publication of the statute in the Official Gazette.
Article 2 of the new Civil Code (Republic Act No. 386) equally provides that laws shall
take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided. It is true that Circular No. 20 of the Central Bank
is not a statute or law but being issued for the implementation of the law authorizing its
issuance, it has the force and effect of law according to settled jurisprudence. (See
U.S. vs. Tupasi Molina, 29 Phil., 119 and authorities cited therein.) Moreover, as a rule,
circulars and regulations especially like the Circular No. 20 of the Central Bank in
question which prescribes a penalty for its violation should be published before
becoming effective, this, on the general principle and theory that before the public is
bound by its contents, especially its penal provisions, a law, regulation or circular must
first be published and the people officially and specifically informed of said contents and
its penalties.
Our Old Civil code, ( Spanish Civil Code of 1889) has a similar provision about the
effectivity of laws, (Article 1 thereof), namely, that laws shall be binding twenty days after
their promulgation, and that their promulgation shall be understood as made on the day
of the termination of the publication of the laws in the Gazette. Manresa, commenting on
this article is of the opinion that the word "laws" include regulations and circulars issued
in accordance with the same. He says:
El Tribunal Supremo, ha interpretado el articulo 1. del codigo Civil en Sentencia
de 22 de Junio de 1910, en el sentido de que bajo la denominacion generica de
leyes, se comprenden tambien los Reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordenes dictadas de conformidad con las
mismas por el Gobierno en uso de su potestad. Tambien el poder ejecutivo lo ha
venido entendiendo asi, como lo prueba el hecho de que muchas de sus
disposiciones contienen la advertencia de que empiezan a regir el mismo dia de
su publicacion en la Gaceta, advertencia que seria perfectamente inutil si no
fuera de aplicacion al caso el articulo 1.o del Codigo Civil. (Manresa, Codigo Civil
Espaol, Vol. I. p. 52).
In the present case, although circular No. 20 of the Central Bank was issued in the year
1949, it was not published until November 1951, that is, about 3 months after appellant's
conviction of its violation. It is clear that said circular, particularly its penal provision, did
not have any legal effect and bound no one until its publication in the Official Gazzette or
after November 1951. In other words, appellant could not be held liable for its violation,
for it was not binding at the time he was found to have failed to sell the foreign exchange
in his possession thereof.
But the Solicitor General also contends that this question of non-publication of the
Circular is being raised for the first time on appeal in this Court, which cannot be done by
appellant. Ordinarily, one may raise on appeal any question of law or fact that has been
raised in the court below and which is within the issues made by the parties in their
pleadings. (Section 19, Rule 48 of the Rules of Court). But the question of non-
publication is fundamental and decisive. If as a matter of fact Circular No. 20 had not
been published as required by law before its violation, then in the eyes of the law there
was no such circular to be violated and consequently appellant committed no violation of
the circular or committed any offense, and the trial court may be said to have had no
jurisdiction. This question may be raised at any stage of the proceeding whether or not
raised in the court below.
In view of the foregoing, we reverse the decision appealed from and acquit the appellant,
with costs de oficio.
Paras, C.J., Bengzon, Padilla, Reyes, Bautista Angelo, Labrador, Concepcion and
Diokno, JJ., concur.

DIGEST
Facts: Que Po Lay is appealing from the decision of the Court of First Instance of
Manila, finding him guilty of violating Central Bank Circular No. 20. The charge was that
the appellant who was in possession of foreign exchange failed to sell to the Central
Bank through its agents within one day following the receipt of such foreign exchange as
required by Circular No. 20. He appeals basing on the claim that said circular No. 20
was not published in the Official Gazette and that consequently, said circular had no
force and effect.

Issues: Whether there was a need for a publication of the said circular to make it
effective?

Whether the respondent is guilty of violating the said Circular 20?

Held: The Court agrees that the laws in question do not require the publication of the
circulars, regulations and notices therein mentioned in order to become binding and
effective. All that said two laws provide is that laws, resolutions, decisions of the
Supreme Court and Court of Appeals, notices and documents required by law to be of
no force and effect.


Article 2 of the new Civil Code (Republic Act No. 386) equally provides that laws shall
take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided.


Moreover, as a rule, circulars and regulations especially like the Circular No. 20 of the
Central Bank in question which prescribes a penalty for its violation should be published
before becoming effective, this, on the general principle and theory that before the public
is bound by its contents,especially its penal provisions, a law, regulation or circular must
first be published and the people officially and specifically informed of said contents and
its penalties. The Court further contends that appellant could not be held liable for its
violation, for it was not binding at the time he was found to have failed to sell the foreign
exchange in his possession thereof.

Article 3
Garcia vs. Recio (G.R. No. 138322, 2 October 2002)
[G.R. No. 138322. October 2, 2001]
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A.
RECIO, respondent.
D E C I S I O N
PANGANIBAN, J .:
A divorce obtained abroad by an alien may be recognized in our jurisdiction,
provided such decree is valid according to the national law of the foreigner. However,
the divorce decree and the governing personal law of the alien spouse who obtained the
divorce must be proven. Our courts do not take judicial notice of foreign laws and
judgments; hence, like any other facts, both the divorce decree and the national law of
the alien must be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to
nullify the January 7, 1999 Decision
[1]
and the March 24, 1999 Order
[2]
of the Regional
Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The assailed
Decision disposed as follows:
WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick
A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both
parties can now remarry under existing and applicable laws to any and/or both parties.
[3]

The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen,
in Malabon, Rizal, on March 1, 1987.
[4]
They lived together as husband and wife in
Australia. On May 18, 1989,
[5]
a decree of divorce, purportedly dissolving the marriage,
was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a
Certificate of Australian Citizenship issued by the Australian government.
[6]
Petitioner --
a Filipina -- and respondent were married on January 12, 1994 in Our Lady of Perpetual
Help Church in Cabanatuan City.
[7]
In their application for a marriage license, respondent
was declared as single and Filipino.
[8]

Starting October 22, 1995, petitioner and respondent lived separately without prior
judicial dissolution of their marriage. While the two were still in Australia, their conjugal
assets were divided on May 16, 1996, in accordance with their Statutory Declarations
secured in Australia.
[9]

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of
Marriage
[10]
in the court a quo, on the ground of bigamy -- respondent allegedly had a
prior subsisting marriage at the time he married her on January 12, 1994. She claimed
that she learned of respondents marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to
petitioner his prior marriage and its subsequent dissolution.
[11]
He contended that his first
marriage to an Australian citizen had been validly dissolved by a divorce decree
obtained in Australia in 1989;
[12]
thus, he was legally capacitated to marry petitioner in
1994.
On July 7, 1998 -- or about five years after the couples wedding and while the suit
for the declaration of nullity was pending -- respondent was able to secure a divorce
decree from a family court in Sydney, Australia because the marriage ha[d] irretrievably
broken down.
[13]

Respondent prayed in his Answer that the Complaint be dismissed on the ground
that it stated no cause of action.
[14]
The Office of the Solicitor General agreed with
respondent.
[15]
The court marked and admitted the documentary evidence of both
parties.
[16]
After they submitted their respective memoranda, the case was submitted for
resolution.
[17]

Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the divorce issued
in Australia was valid and recognized in the Philippines. It deemed the marriage ended,
but not on the basis of any defect in an essential element of the marriage; that
is, respondents alleged lack of legal capacity to remarry. Rather, it based its Decision
on the divorce decree obtained by respondent. The Australian divorce had ended the
marriage; thus, there was no more marital union to nullify or annul.
Hence, this Petition.
[18]

Issues
Petitioner submits the following issues for our consideration:
1
The trial court gravely erred in finding that the divorce decree obtained in Australia by
the respondent ipso facto terminated his first marriage to Editha Samson thereby
capacitating him to contract a second marriage with the petitioner.
2
The failure of the respondent, who is now a naturalized Australian, to present a
certificate of legal capacity to marry constitutes absence of a substantial requisite
voiding the petitioners marriage to the respondent
3
The trial court seriously erred in the application of Art. 26 of the Family Code in this
case.
4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52
and 53 of the Family Code as the applicable provisions in this case.
5
The trial court gravely erred in pronouncing that the divorce decree obtained by the
respondent in Australia ipso facto capacitated the parties to remarry, without first
securing a recognition of the judgment granting the divorce decree before our courts.
[19]

The Petition raises five issues, but for purposes of this Decision, we shall
concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha
Samson was proven, and (2) whether respondent was proven to be legally capacitated
to marry petitioner. Because of our ruling on these two, there is no more necessity to
take up the rest.
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial courts recognition of the divorce between respondent and
Editha Samson. Citing Adong v. Cheong Seng Gee,
[20]
petitioner argues that the divorce
decree, like any other foreign judgment, may be given recognition in this jurisdiction only
upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the
alleged divorce decree itself. She adds that respondent miserably failed to establish
these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code,
marriages solemnized abroad are governed by the law of the place where they were
celebrated (the lex loci celebrationis). In effect, the Code requires the presentation of
the foreign law to show the conformity of the marriage in question to the legal
requirements of the place where the marriage was performed.
At the outset, we lay the following basic legal principles as the take-off points for our
discussion. Philippine law does not provide for absolute divorce; hence, our courts
cannot grant it.
[21]
A marriage between two Filipinos cannot be dissolved even by a
divorce obtained abroad, because of Articles 15
[22]
and 17
[23]
of the Civil Code.
[24]
In
mixed marriages involving a Filipino and a foreigner, Article 26
[25]
of the Family Code
allows the former to contract a subsequent marriage in case the divorce is validly
obtained abroad by the alien spouse capacitating him or her to remarry.
[26]
A divorce
obtained abroad by a couple, who are both aliens, may be recognized in the Philippines,
provided it is consistent with their respective national laws.
[27]

A comparison between marriage and divorce, as far as pleading and proof are
concerned, can be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided they are valid
according to their national law.
[28]
Therefore, before a foreign divorce decree can be
recognized by our courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it.
[29]
Presentation solely of the
divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must
first comply with the registration requirements under Articles 11, 13 and 52 of the Family
Code. These articles read as follows:
ART. 11. Where a marriage license is required, each of the contracting parties shall file
separately a sworn application for such license with the proper local civil registrar which
shall specify the following:
x x x x x x x x x
(5) If previously married, how, when and where the previous marriage was
dissolved or annulled;
x x x x x x x x x
ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to
ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth or baptismal certificate required
in the last preceding article, the death certificate of the deceased spouse or the judicial
decree of the absolute divorce, or the judicial decree of annulment or declaration of
nullity of his or her previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition
and distribution of the properties of the spouses, and the delivery of the childrens
presumptive legitimes shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect their persons.
Respondent, on the other hand, argues that the Australian divorce decree is a public
document -- a written official act of an Australian family court. Therefore, it requires no
further proof of its authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given
presumptive evidentiary value, the document must first be presented and admitted in
evidence.
[30]
A divorce obtained abroad is proven by the divorce decree itself. Indeed
the best evidence of a judgment is the judgment itself.
[31]
The decree purports to be a
written act or record of an act of an official body or tribunal of a foreign country.
[32]

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document
may be proven as a public or official record of a foreign country by either (1) an official
publication or (2) a copy thereof attested
[33]
by the officer having legal custody of the
document. If the record is not kept in the Philippines, such copy must be (a)
accompanied by a certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the record is kept and
(b) authenticated by the seal of his office.
[34]

The divorce decree between respondent and Editha Samson appears to be an
authentic one issued by an Australian family court.
[35]
However, appearance is not
sufficient; compliance with the aforementioned rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree of May 18, 1989 was
submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to
the fact that it had not been registered in the Local Civil Registry of Cabanatuan
City.
[36]
The trial court ruled that it was admissible, subject to petitioners
qualification.
[37]
Hence, it was admitted in evidence and accorded weight by the
judge. Indeed, petitioners failure to object properly rendered the divorce decree
admissible as a written act of the Family Court of Sydney, Australia.
[38]

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not
necessary; respondent was no longer bound by Philippine personal laws after he
acquired Australian citizenship in 1992.
[39]
Naturalization is the legal act of adopting an
alien and clothing him with the political and civil rights belonging to a
citizen.
[40]
Naturalized citizens, freed from the protective cloak of their former states, don
the attires of their adoptive countries. By becoming an Australian, respondent severed
his allegiance to the Philippines and the vinculum juris that had tied him to Philippine
personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon
petitioner, because she is the party challenging the validity of a foreign judgment. He
contends that petitioner was satisfied with the original of the divorce decree and was
cognizant of the marital laws of Australia, because she had lived and worked in that
country for quite a long time. Besides, the Australian divorce law is allegedly known by
Philippine courts; thus, judges may take judicial notice of foreign laws in the exercise of
sound discretion.
We are not persuaded. The burden of proof lies with the party who alleges the
existence of a fact or thing necessary in the prosecution or defense of an action.
[41]
In
civil cases, plaintiffs have the burden of proving the material allegations of the complaint
when those are denied by the answer; and defendants have the burden of proving the
material allegations in their answer when they introduce new matters.
[42]
Since the
divorce was a defense raised by respondent, the burden of proving the pertinent
Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of
foreign laws.
[43]
Like any other facts, they must be alleged and proved. Australian marital
laws are not among those matters that judges are supposed to know by reason of their
judicial function.
[44]
The power of judicial notice must be exercised with caution, and
every reasonable doubt upon the subject should be resolved in the negative.
Second Issue: Respondents Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent
was legally incapacitated to marry her in 1994. Hence, she concludes that their
marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in
evidence, adequately established his legal capacity to marry under Australian law.
Respondents contention is untenable. In its strict legal sense, divorce means the
legal dissolution of a lawful union for a cause arising after marriage. But divorces are of
different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and
(2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the
second suspends it and leaves the bond in full force.
[45]
There is no showing in the case
at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a conditional or
provisional judgment of divorce. It is in effect the same as a separation from bed and
board, although an absolute divorce may follow after the lapse of the prescribed period
during which no reconciliation is effected.
[46]

Even after the divorce becomes absolute, the court may under some foreign
statutes and practices, still restrict remarriage. Under some other jurisdictions,
remarriage may be limited by statute; thus, the guilty party in a divorce which was
granted on the ground of adultery may be prohibited from marrying again. The court
may allow a remarriage only after proof of good behavior.
[47]

On its face, the herein Australian divorce decree contains a restriction that reads:
1. A party to a marriage who marries again before this decree
becomes absolute (unless the other party has died) commits the offence of
bigamy.
[48]

This quotation bolsters our contention that the divorce obtained by respondent may
have been restricted. It did not absolutely establish his legal capacity to remarry
according to his national law. Hence, we find no basis for the ruling of the trial court,
which erroneously assumed that the Australian divorce ipso facto restored respondents
capacity to remarry despite the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a disputable
presumption or presumptive evidence as to his civil status based on Section 48, Rule
39
[49]
of the Rules of Court, for the simple reason that no proof has been presented on
the legal effects of the divorce decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the
Family Code was not submitted together with the application for a marriage
license. According to her, its absence is proof that respondent did not have legal
capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the
national law of the party concerned. The certificate mentioned in Article 21 of the Family
Code would have been sufficient to establish the legal capacity of respondent, had he
duly presented it in court. A duly authenticated and admitted certificate is prima facie
evidence of legal capacity to marry on the part of the alien applicant for a marriage
license.
[50]

As it is, however, there is absolutely no evidence that proves respondents legal
capacity to marry petitioner. A review of the records before this Court shows that only
the following exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit
A Complaint;
[51]
(b) Exhibit B Certificate of Marriage Between Rederick A. Recio
(Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan
City, Nueva Ecija;
[52]
(c) Exhibit C Certificate of Marriage Between Rederick A. Recio
(Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro
Manila;
[53]
(d) Exhibit D Office of the City Registrar of Cabanatuan City Certification
that no information of annulment between Rederick A. Recio and Editha D. Samson was
in its records;
[54]
and (e) Exhibit E Certificate of Australian Citizenship of Rederick A.
Recio;
[55]
(2) for respondent: (a) Exhibit 1 -- Amended Answer;
[56]
(b) Exhibit 2
Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of
Australia;
[57]
(c) Exhibit 3 Certificate of Australian Citizenship of Rederick A.
Recio;
[58]
(d) Exhibit 4 Decree Nisi of Dissolution of Marriage in the Family Court of
Australia Certificate;
[59]
and Exhibit 5 -- Statutory Declaration of the Legal Separation
Between Rederick A. Recio and Grace J. Garcia Recio since October 22, 1995.
[60]

Based on the above records, we cannot conclude that respondent, who was then a
naturalized Australian citizen, was legally capacitated to marry petitioner on January 12,
1994. We agree with petitioners contention that the court a quo erred in finding that the
divorce decree ipso facto clothed respondent with the legal capacity to remarry without
requiring him to adduce sufficient evidence to show the Australian personal law
governing his status; or at the very least, to prove his legal capacity to contract the
second marriage.
Neither can we grant petitioners prayer to declare her marriage to respondent null
and void on the ground of bigamy. After all, it may turn out that under Australian law, he
was really capacitated to marry petitioner as a direct result of the divorce
decree. Hence, we believe that the most judicious course is to remand this case to the
trial court to receive evidence, if any, which show petitioners legal capacity to marry
petitioner. Failing in that, then the court a quo may declare a nullity of the parties
marriage on the ground of bigamy, there being already in evidence two existing marriage
certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila
dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice,
we REMAND the case to the court a quo for the purpose of receiving evidence which
conclusively show respondents legal capacity to marry petitioner; and failing in that, of
declaring the parties marriage void on the ground of bigamy, as above discussed. No
costs.
SO ORDERED.
Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.

DIGEST
Lessons Applicable: divorce

Laws Applicable: Art. 15 and Art. 26 par. 2 FC

FACTS:

Grace J. Garcia-Recio (2
nd
mariage) ----- Rederick A. Recio Editha Samson (Wife)

March 1, 1987: Rederick A. Recio, a Filipino was married to Editha Samson, an
Australian citizen, in Malabon, Rizal
May 18, 1989: a decree of divorce, purportedly dissolving the marriage, was
issued by an Australian family court
June 26, 1992: Recio became an Australian citizen, as shown by a "Certificate of
Australian Citizenship" issued by the Australian government
January 12, 1994: Recio married Grace j. Garcia, a Filipino, in Cabanatuan City.
Recio declared himself as "single" and "Filipino."
October 22, 1995: Recio and Grace J. Garcia ak.a. Garcia-Recio begun to live
separately without prior judicial dissolution of their marriage
May 16, 1996: In accordance to the Statutory Declarations secured in Australia,
their conjugal assets were divided
March 3, 1998: Garcia-Recio filed a Complaint for Declaration of Nullity of
Marriage on the ground of bigamy claiming she only learned of the prior
marriage in November, 1997
Recio prayed in his answer that it be dismissed for no cause of action
RTC: marriage dissolved on the ground that the divorce issued in Australia was
valid and recognized in the Philippines

ISSUE: W/N the divorce between Recio and Samson was valid and proven

HELD: NO. Remand the case to the court a quo for the purpose of receiving evidence
which conclusively show respondent's legal capacity to marry petitioner; and failing in
that, of declaring the parties' marriage void on the ground of bigamy

Divorces:
1. A marriage between two Filipinos cannot be dissolved even by a divorce obtained
abroad, because of Articles 15 and 17 of the Civil Code.
2. In mixed marriages involving a Filipino and a foreigner, Article 26 of the Family Code
allows the former to contract a subsequent marriage in case the divorce is "validly
obtained abroad by the alien spouse capacitating him or her to remarry."
3. A divorce obtained abroad by a couple, who are both aliens, may be recognized in the
Philippines, provided it is consistent with their respective national laws.
Before a foreign divorce decree can be recognized by our courts, the party
pleading it must prove the divorce as a fact and demonstrate its conformity to the
foreign law allowing it
o legal capacity to contract marriage is determined by the national law of the party
concerned
o A divorce obtained abroad is proven by the divorce decree itself
The decree purports to be a written act or record of an act of an officially body or tribunal
of a foreign country
o Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be
proven as a public or official record of a foreign country by either:
1. an official publication; or
2. a copy thereof attested by the officer having legal custody of the document.
If the record is not kept in the Philippines, such copy must be:
1. accompanied by a certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the record is kept; and
2. authenticated by the seal of his office
Since the divorce was a defense raised by Recio, the burden of proving the
pertinent Australian law validating it falls squarely upon him
In its strict legal sense, divorce means the legal dissolution of a lawful union for a
cause arising after marriage. But divorces are of different types:
1. absolute divorce or a vinculo matrimonii - terminates the marriage
2. limited divorce or a mensa et thoro - suspends it and leaves the bond in full force
Recio presented a decree nisi or an interlocutory decree a conditional or
provisional judgment of divorce
o On its face, the herein Australian divorce decree contains a restriction that reads:
"1. A party to a marriage who marries again before this decree becomes absolute
(unless the other party has died) commits the offence of bigamy."

Article 6
D.M. Consunji vs. CA (G.R. No. 137873, 20 April 2001)
G.R. No. 137873 April 20, 2001
D. M. CONSUNJI, INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.
KAPUNAN, J .:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M.
Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death.
PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed a
report dated November 25, 1990, stating that:
x x x. [The] [v]ictim was rushed to [the] Rizal Medical Center in Pasig, Metro
Manila where he was pronounced dead on arrival (DOA) by the attending
physician, Dr. Errol de Yzo[,] at around 2:15 p.m. of the same date.
Investigation disclosed that at the given time, date and place, while victim Jose
A. Juego together with Jessie Jaluag and Delso Destajo [were] performing their
work as carpenter[s] at the elevator core of the 14
th
floor of the Tower D,
Renaissance Tower Building on board a [p]latform made of channel beam (steel)
measuring 4.8 meters by 2 meters wide with pinulid plywood flooring and cable
wires attached to its four corners and hooked at the 5 ton chain block, when
suddenly, the bolt or pin which was merely inserted to connect the chain block
with the [p]latform, got loose xxx causing the whole [p]latform assembly and the
victim to fall down to the basement of the elevator core, Tower D of the building
under construction thereby crushing the victim of death, save his two (2)
companions who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death when the [p]latform
he was then on board and performing work, fell. And the falling of the [p]latform
was due to the removal or getting loose of the pin which was merely inserted to
the connecting points of the chain block and [p]latform but without a safety lock.
1

On May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of
Pasig a complaint for damages against the deceaseds employer, D.M. Consunji, Inc.
The employer raised, among other defenses, the widows prior availment of the benefits
from the State Insurance Fund.
After trial, the RTC rendered a decision in favor of the widow Maria Juego. The
dispositive portion of the RTC decision reads:
WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff,
as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.
3. P464,000.00 for the loss of Jose A. Juegos earning capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the costs of suit.
SO ORDERED.
2

On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the
RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision on the following grounds:
THE APPELLATE COURT ERRED IN HOLDING THAT THE POLICE
REPORT WAS ADMISSIBLE EVIDENCE OF THE ALLEGED
NEGLIGENCE OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT THE DOCTRINE
OF RES IPSA LOQUITOR[sic] IS APPLICABLE TO PROVE
NEGLIGENCE ON THE PART OF PETITIONER.
THE APPELLATE COURT ERRED IN HOLDING THAT PETITIONER IS
PRESUMED NEGLIGENT UNDER ARTICLE 2180 OF THE CIVIL
CODE, AND
THE APPELLATE COURT ERRED IN HOLDING THAT RESPONDENT
IS NOT PRECLUDED FROM RECOVERING DAMAGES UNDER THE
CIVIL CODE.
3

Petitioner maintains that the police report reproduced above is hearsay and, therefore,
inadmissible. The CA ruled otherwise. It held that said report, being an entry in official
records, is an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only to those facts which he knows
of his personal knowledge, that is, which are derived from his perception.
4
A witness,
therefore, may not testify as what he merely learned from others either because he was
told or read or heard the same. Such testimony is considered hearsay and may not be
received as proof of the truth of what he has learned.
5
This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the general rule that excludes
hearsay as evidence applies to written, as well as oral statements.
6

The theory of the hearsay rule is that the many possible deficiencies, suppressions,
sources of error and untrustworthiness, which lie underneath the bare untested assertion
of a witness, may be best brought to light and exposed by the test of cross-
examiantion.
7
The hearsay rule, therefore, excludes evidence that cannot be tested by
cross-examination.
8

The Rules of Court allow several exceptions to the rule,
9
among which are entries in
official records. Section 44, Rule 130 provides:
Entries in official records made in the performance of his duty made in the
performance of his duty by a public officer of the Philippines, or by a person in
the performance of a duty specially enjoined by law areprima facie evidence of
the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,
10
this Court, citing the work of Chief Justice
Moran, enumerated the requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by another person specially
enjoined by law to do so;
(b) that it was made by the public officer in the performance of his duties, or by
such other person in the performance of a duty specially enjoined by law; and
(c) that the public officer or other person had sufficient knowledge of the facts by
him stated, which must have been acquired by him personally or through official
information.
The CA held that the police report meets all these requisites. Petitioner contends that the
last requisite is not present.
The Court notes that PO3 Villanueva, who signed the report in question, also testified
before the trial court. InRodriguez vs. Court of Appeals,
11
which involved a Fire
Investigation Report, the officer who signed the fire report also testified before the trial
court. This Court held that the report was inadmissible for the purpose of proving the
truth of the statements contained in the report but admissible insofar as it constitutes
part of the testimony of the officer who executed the report.
x x x. Since Major Enriquez himself took the witness stand and was available for
cross-examination, the portions of the report which were of his personal
knowledge or which consisted of his perceptions and conclusions were not
hearsay. The rest of the report, such as the summary of the statements of the
parties based on their sworn statements (which were annexed to the Report) as
well as the latter, having been included in the first purpose of the offer [as part of
the testimony of Major Enriquez], may then be considered as independently
relevant statements which were gathered in the course of the investigation and
may thus be admitted as such, but not necessarily to prove the truth thereof. It
has been said that:
"Where regardless of the truth or falsity of a statement, the fact that it has
been made is relevant, the hearsay rule does not apply, but the statement
may be shown. Evidence as to the making of such statement is not
secondary but primary, for the statement itself may constitute a fact in
issue, or be circumstantially relevant as to the existence of such a fact."
When Major Enriquez took the witness stand, testified for petitioners on his
Report and made himself available for cross-examination by the adverse party,
the Report, insofar as it proved that certain utterances were made (but not their
truth), was effectively removed from the ambit of the aforementioned Section 44
of Rule 130. Properly understood, this section does away with the testimony in
open court of the officer who made the official record, considers the matter as an
exception to the hearsay rule and makes the entries in said official record
admissible in evidence as prima facie evidence of the facts therein stated. The
underlying reasons for this exceptionary rule are necessity and trustworthiness,
as explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is daily needed;
the occasions in which the officials would be summoned from his ordinary
duties to declare as a witness are numberless. The public officers are few
in whose daily work something is not done in which testimony is not
needed from official sources. Were there no exception for official
statements, hosts of officials would be found devoting the greater part of
their time to attending as witnesses in court or delivering deposition
before an officer. The work of administration of government and the
interest of the public having business with officials would alike suffer in
consequence. For these reasons, and for many others, a certain verity is
accorded such documents, which is not extended to private documents.
(3 Wigmore on Evidence, Sec. 1631).
The law reposes a particular confidence in public officers that it presumes
they will discharge their several trusts with accuracy and fidelity; and,
therefore, whatever acts they do in discharge of their duty may be given
in evidence and shall be taken to be true under such a degree of caution
as to the nature and circumstances of each case may appear to require.
It would have been an entirely different matter if Major Enriquez was not
presented to testify on his report. In that case the applicability of Section 44 of
Rule 143 would have been ripe for determination, and this Court would have
agreed with the Court of Appeals that said report was inadmissible since the
aforementioned third requisite was not satisfied. The statements given by the
sources of information of Major Enriquez failed to qualify as "official information,"
there being no showing that, at the very least, they were under a duty to give the
statements for record.
Similarly, the police report in this case is inadmissible for the purpose of proving the truth
of the statements contained therein but is admissible insofar as it constitutes part of the
testimony of PO3 Villanueva.
In any case, the Court holds that portions of PO3 Villanuevas testimony which were of
his personal knowledge suffice to prove that Jose Juego indeed died as a result of the
elevator crash. PO3 Villanueva had seen Juegos remains at the morgue,
12
making the
latters death beyond dispute. PO3 Villanueva also conducted an ocular inspection of the
premises of the building the day after the incident
13
and saw the platform for
himself.
14
He observed that the platform was crushed
15
and that it was totally
damaged.
16
PO3 Villanueva also required Garcia and Fabro to bring the chain block to
the police headquarters. Upon inspection, he noticed that the chain was detached from
the lifting machine, without any pin or bolt.
17

What petitioner takes particular exception to is PO3 Villanuevas testimony that the
cause of the fall of the platform was the loosening of the bolt from the chain block. It is
claimed that such portion of the testimony is mere opinion. Subject to certain
exceptions,
18
the opinion of a witness is generally not admissible.
19

Petitioners contention, however, loses relevance in the face of the application of res
ipsa loquitur by the CA. The effect of the doctrine is to warrant a presumption or
inference that the mere fall of the elevator was a result of the person having charge of
the instrumentality was negligent. As a rule of evidence, the doctrine of res ipsa
loquituris peculiar to the law of negligence which recognizes that prima facie negligence
may be established without direct proof and furnishes a substitute for specific proof of
negligence.
20

The concept of res ipsa loquitur has been explained in this wise:
While negligence is not ordinarily inferred or presumed, and while the mere
happening of an accident or injury will not generally give rise to an inference or
presumption that it was due to negligence on defendants part, under the doctrine
of res ipsa loquitur, which means, literally, the thing or transaction speaks for
itself, or in one jurisdiction, that the thing or instrumentality speaks for itself, the
facts or circumstances accompanying an injury may be such as to raise a
presumption, or at least permit an inference of negligence on the part of the
defendant, or some other person who is charged with negligence.
x x x where it is shown that the thing or instrumentality which caused the injury
complained of was under the control or management of the defendant, and that
the occurrence resulting in the injury was such as in the ordinary course of things
would not happen if those who had its control or management used proper care,
there is sufficient evidence, or, as sometimes stated, reasonable evidence, in the
absence of explanation by the defendant, that the injury arose from or was
caused by the defendants want of care.
21

One of the theoretical based for the doctrine is its necessity, i.e., that necessary
evidence is absent or not available.
22

The res ipsa loquitur doctrine is based in part upon the theory that the defendant
in charge of the instrumentality which causes the injury either knows the cause of
the accident or has the best opportunity of ascertaining it and that the plaintiff has
no such knowledge, and therefore is compelled to allege negligence in general
terms and to rely upon the proof of the happening of the accident in order to
establish negligence. The inference which the doctrine permits is grounded upon
the fact that the chief evidence of the true cause, whether culpable or innocent, is
practically accessible to the defendant but inaccessible to the injured person.
It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which
a plaintiff, without knowledge of the cause, reaches over to defendant who knows
or should know the cause, for any explanation of care exercised by the defendant
in respect of the matter of which the plaintiff complains. The res ipsa loquitur
doctrine, another court has said, is a rule of necessity, in that it proceeds on the
theory that under the peculiar circumstances in which the doctrine is applicable, it
is within the power of the defendant to show that there was no negligence on his
part, and direct proof of defendants negligence is beyond plaintiffs power.
Accordingly, some court add to the three prerequisites for the application of the
res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur
doctrine to apply, it must appear that the injured party had no knowledge or
means of knowledge as to the cause of the accident, or that the party to be
charged with negligence has superior knowledge or opportunity for explanation of
the accident.
23

The CA held that all the requisites of res ipsa loquitur are present in the case at bar:
There is no dispute that appellees husband fell down from the 14
th
floor of a
building to the basement while he was working with appellants construction
project, resulting to his death. The construction site is within the exclusive control
and management of appellant. It has a safety engineer, a project superintendent,
a carpenter leadman and others who are in complete control of the situation
therein. The circumstances of any accident that would occur therein are
peculiarly within the knowledge of the appellant or its employees. On the other
hand, the appellee is not in a position to know what caused the accident. Res
ipsa loquitur is a rule of necessity and it applies where evidence is absent or not
readily available, provided the following requisites are present: (1) the accident
was of a kind which does not ordinarily occur unless someone is negligent; (2)
the instrumentality or agency which caused the injury was under the exclusive
control of the person charged with negligence; and (3) the injury suffered must
not have been due to any voluntary action or contribution on the part of the
person injured. x x x.
No worker is going to fall from the 14
th
floor of a building to the basement while
performing work in a construction site unless someone is negligent[;] thus, the
first requisite for the application of the rule of res ipsa loquitur is present. As
explained earlier, the construction site with all its paraphernalia and human
resources that likely caused the injury is under the exclusive control and
management of appellant[;] thus[,] the second requisite is also present. No
contributory negligence was attributed to the appellees deceased husband[;]
thus[,] the last requisite is also present. All the requisites for the application of the
rule of res ipsa loquitur are present, thus a reasonable presumption or inference
of appellants negligence arises. x x x.
24

Petitioner does not dispute the existence of the requisites for the application of res ipsa
loquitur, but argues that the presumption or inference that it was negligent did not arise
since it "proved that it exercised due care to avoid the accident which befell respondents
husband."
Petitioner apparently misapprehends the procedural effect of the doctrine. As stated
earlier, the defendants negligence is presumed or inferred
25
when the plaintiff
establishes the requisites for the application of res ipsa loquitur. Once the plaintiff makes
out a prima facie case of all the elements, the burden then shifts to defendant to
explain.
26
The presumption or inference may be rebutted or overcome by other evidence
and, under appropriate circumstances disputable presumption, such as that of due care
or innocence, may outweigh the inference.
27
It is not for the defendant to explain or
prove its defense to prevent the presumption or inference from arising. Evidence by the
defendant of say, due care, comes into play only after the circumstances for the
application of the doctrine has been established.1wphi1.nt
In any case, petitioner cites the sworn statement of its leadman Ferdinand Fabro
executed before the police investigator as evidence of its due care. According to Fabros
sworn statement, the company enacted rules and regulations for the safety and security
of its workers. Moreover, the leadman and the bodegero inspect the chain block before
allowing its use.
It is ironic that petitioner relies on Fabros sworn statement as proof of its due care but,
in arguing that private respondent failed to prove negligence on the part of petitioners
employees, also assails the same statement for being hearsay.
Petitioner is correct. Fabros sworn statement is hearsay and inadmissible. Affidavits are
inadmissible as evidence under the hearsay rule, unless the affiant is placed on the
witness stand to testify thereon.
28
The inadmissibility of this sort of evidence is based not
only on the lack of opportunity on the part of the adverse party to cross-examine the
affiant, but also on the commonly known fact that, generally, an affidavit is not prepared
by the affiant himself but by another who uses his own language in writing the affiants
statements which may either be omitted or misunderstood by the one writing
them.
29
Petitioner, therefore, cannot use said statement as proof of its due care any
more than private respondent can use it to prove the cause of her husbands death.
Regrettably, petitioner does not cite any other evidence to rebut the inference or
presumption of negligence arising from the application of res ipsa loquitur, or to establish
any defense relating to the incident.
Next, petitioner argues that private respondent had previously availed of the death
benefits provided under the Labor Code and is, therefore, precluded from claiming from
the deceaseds employer damages under the Civil Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. Unless otherwise provided, the liability of the
State Insurance Fund under this Title shall be exclusive and in place of all other
liabilities of the employer to the employee, his dependents or anyone otherwise
entitled to receive damages on behalf of the employee or his dependents. The
payment of compensation under this Title shall not bar the recovery of benefits
as provided for in Section 699 of the Revised Administrative Code, Republic Act
Numbered Eleven hundred sixty-one, as amended, Republic Act Numbered Six
hundred ten, as amended, Republic Act Numbered Forty-eight hundred sixty-four
as amended, and other laws whose benefits are administered by the System or
by other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5 of the Workmens
Compensation Act, provided that:
Section 5. Exclusive right to compensation. The rights and remedies granted by
this Act to an employee by reason of a personal injury entitling him to
compensation shall exclude all other rights and remedies accruing to the
employee, his personal representatives, dependents or nearest of kin against the
employer under the Civil Code and other laws because of said injury x x x.
Whether Section 5 of the Workmens Compensation Act allowed recovery under said Act
as well as under the Civil Code used to be the subject of conflicting decisions. The Court
finally settled the matter in Floresca vs.Philex Mining Corporation,
30
which involved a
cave-in resulting in the death of the employees of the Philex Mining Corporation.
Alleging that the mining corporation, in violation of government rules and regulations,
failed to take the required precautions for the protection of the employees, the heirs of
the deceased employees filed a complaint against Philex Mining in the Court of First
Instance (CFI). Upon motion of Philex Mining, the CFI dismissed the complaint for lack
of jurisdiction. The heirs sought relief from this Court.
Addressing the issue of whether the heirs had a choice of remedies, majority of the
Court En Banc,
31
following the rule in Pacaa vs. Cebu Autobus Company, held in the
affirmative.
WE now come to the query as to whether or not the injured employee or his heirs
in case of death have a right of selection or choice of action between availing
themselves of the workers right under the Workmens Compensation Act and
suing in the regular courts under the Civil Code for higher damages (actual,
moral and exemplary) from the employers by virtue of the negligence or fault of
the employers or whether they may avail themselves cumulatively of both
actions, i.e., collect the limited compensation under the Workmens
Compensation Act and sue in addition for damages in the regular courts.
In disposing of a similar issue, this Court in Pacaa vs. Cebu Autobus Company,
32 SCRA 442, ruled thatan injured worker has a choice of either to recover from
the employer the fixed amounts set by the Workmens Compensation Act or to
prosecute an ordinary civil action against the tortfeasor for higher damages but
he cannot pursue both courses of action simultaneously. [Underscoring
supplied.]
Nevertheless, the Court allowed some of the petitioners in said case to proceed with
their suit under the Civil Code despite having availed of the benefits provided under the
Workmens Compensation Act. The Court reasoned:
With regard to the other petitioners, it was alleged by Philex in its motion to
dismiss dated May 14, 1968 before the court a quo, that the heirs of the
deceased employees, namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza,
Lorenzo Isla and Saturnino submitted notices and claims for compensation to the
Regional Office No. 1 of the then Department of Labor and all of them have been
paid in full as of August 25, 1967, except Saturnino Martinez whose heirs
decided that they be paid in installments x x x. Such allegation was admitted by
herein petitioners in their opposition to the motion to dismiss dated may 27, 1968
x x x in the lower court, but they set up the defense that the claims were filed
under the Workmens Compensation Act before they learned of the official report
of the committee created to investigate the accident which established the
criminal negligence and violation of law by Philex, and which report was
forwarded by the Director of Mines to then Executive Secretary Rafael Salas in a
letter dated October 19, 1967 only x x x.
WE hold that although the other petitioners had received the benefits under the
Workmens Compensation Act, such my not preclude them from bringing an
action before the regular court because they became cognizant of the fact that
Philex has been remiss in its contractual obligations with the deceased miners
only after receiving compensation under the Act. Had petitioners been aware of
said violation of government rules and regulations by Philex, and of its
negligence, they would not have sought redress under the Workmens
Compensation Commission which awarded a lesser amount for compensation.
The choice of the first remedy was based on ignorance or a mistake of fact,
which nullifies the choice as it was not an intelligent choice. The case should
therefore be remanded to the lower court for further proceedings. However,
should the petitioners be successful in their bid before the lower court, the
payments made under the Workmens Compensation Act should be deducted
from the damages that may be decreed in their favor. [Underscoring supplied.]
The ruling in Floresca providing the claimant a choice of remedies was reiterated
in Ysmael Maritime Corporation vs. Avelino,
32
Vda. De Severo vs. Feliciano-
Go,
33
and Marcopper Mining Corp. vs. Abeleda.
34
In the last case, the Court again
recognized that a claimant who had been paid under the Act could still sue under the
Civil Code. The Court said:
In the Robles case, it was held that claims for damages sustained by workers in
the course of their employment could be filed only under the Workmens
Compensation Law, to the exclusion of all further claims under other laws. In
Floresca, this doctrine was abrogated in favor of the new rule that the claimants
may invoke either the Workmens Compensation Act or the provisions of the Civil
Code, subject to the consequence that the choice of one remedy will exclude the
other and that the acceptance of compensation under the remedy chosen will
preclude a claim for additional benefits under the other remedy. The exception is
where a claimant who has already been paid under the Workmens
Compensation Act may still sue for damages under the Civil Code on the basis of
supervening facts or developments occurring after he opted for the first remedy.
(Underscoring supplied.)
Here, the CA held that private respondents case came under the exception because
private respondent was unaware of petitioners negligence when she filed her claim for
death benefits from the State Insurance Fund. Private respondent filed the civil
complaint for damages after she received a copy of the police investigation report and
the Prosecutors Memorandum dismissing the criminal complaint against petitioners
personnel. While stating that there was no negligence attributable to the respondents in
the complaint, the prosecutor nevertheless noted in the Memorandum that, "if at all," the
"case is civil in nature." The CA thus applied the exception in Floresca:
x x x We do not agree that appellee has knowledge of the alleged negligence of
appellant as early as November 25, 1990, the date of the police investigators
report. The appellee merely executed her sworn statement before the police
investigator concerning her personal circumstances, her relation to the victim,
and her knowledge of the accident. She did not file the complaint for "Simple
Negligence Resulting to Homicide" against appellants employees. It was the
investigator who recommended the filing of said case and his supervisor referred
the same to the prosecutors office. This is a standard operating procedure for
police investigators which appellee may not have even known. This may explain
why no complainant is mentioned in the preliminary statement of the public
prosecutor in her memorandum dated February 6, 1991, to wit: "Respondent
Ferdinand Fabro x x x are being charged by complainant of "Simple Negligence
Resulting to Homicide." It is also possible that the appellee did not have a chance
to appear before the public prosecutor as can be inferred from the following
statement in said memorandum: "Respondents who were notified pursuant to
Law waived their rights to present controverting evidence," thus there was no
reason for the public prosecutor to summon the appellee. Hence, notice of
appellants negligence cannot be imputed on appellee before she applied for
death benefits under ECC or before she received the first payment therefrom.
Her using the police investigation report to support her complaint filed on May 9,
1991 may just be an afterthought after receiving a copy of the February 6, 1991
Memorandum of the Prosecutors Office dismissing the criminal complaint for
insufficiency of evidence, stating therein that: "The death of the victim is not
attributable to any negligence on the part of the respondents. If at all and as
shown by the records this case is civil in nature." (Underscoring supplied.)
Considering the foregoing, We are more inclined to believe appellees allegation
that she learned about appellants negligence only after she applied for and
received the benefits under ECC. This is a mistake of fact that will make this
case fall under the exception held in the Floresca ruling.
35

The CA further held that not only was private respondent ignorant of the facts, but of her
rights as well:
x x x. Appellee [Maria Juego] testified that she has reached only elementary
school for her educational attainment; that she did not know what damages could
be recovered from the death of her husband; and that she did not know that she
may also recover more from the Civil Code than from the ECC. x x x.
36

Petitioner impugns the foregoing rulings. It contends that private respondent "failed to
allege in her complaint that her application and receipt of benefits from the ECC were
attended by ignorance or mistake of fact. Not being an issue submitted during the trial,
the trial court had no authority to hear or adjudicate that issue."
Petitioner also claims that private respondent could not have been ignorant of the facts
because as early as November 28, 1990, private respondent was the complainant in a
criminal complaint for "Simple Negligence Resulting to Homicide" against petitioners
employees. On February 6, 1991, two months before the filing of the action in the lower
court, Prosecutor Lorna Lee issued a resolution finding that, although there was
insufficient evidence against petitioners employees, the case was "civil in nature."
These purportedly show that prior to her receipt of death benefits from the ECC on
January 2, 1991 and every month thereafter, private respondent also knew of the two
choices of remedies available to her and yet she chose to claim and receive the benefits
from the ECC.
When a party having knowledge of the facts makes an election between inconsistent
remedies, the election is final and bars any action, suit, or proceeding inconsistent with
the elected remedy, in the absence of fraud by the other party. The first act of election
acts as a bar.
37
Equitable in nature, the doctrine of election of remedies is designed to
mitigate possible unfairness to both parties. It rests on the moral premise that it is fair to
hold people responsible for their choices. The purpose of the doctrine is not to prevent
any recourse to any remedy, but to prevent a double redress for a single wrong.
38

The choice of a party between inconsistent remedies results in a waiver by election.
Hence, the rule in Florescathat a claimant cannot simultaneously pursue recovery under
the Labor Code and prosecute an ordinary course of action under the Civil Code. The
claimant, by his choice of one remedy, is deemed to have waived the other.
Waiver is the intentional relinquishment of a known right.
39

[It] is an act of understanding that presupposes that a party has knowledge of its
rights, but chooses not to assert them. It must be generally shown by the party
claiming a waiver that the person against whom the waiver is asserted had at the
time knowledge, actual or constructive, of the existence of the partys rights or of
all material facts upon which they depended. Where one lacks knowledge of a
right, there is no basis upon which waiver of it can rest. Ignorance of a material
fact negates waiver, and waiver cannot be established by a consent given under
a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when that person knows that a
right exists and has adequate knowledge upon which to make an intelligent
decision.
Waiver requires a knowledge of the facts basic to the exercise of the right
waived, with an awareness of its consequences. That a waiver is made
knowingly and intelligently must be illustrated on the record or by the evidence.
40

That lack of knowledge of a fact that nullifies the election of a remedy is the basis for the
exception in Floresca.
It is in light of the foregoing principles that we address petitioners contentions.
Waiver is a defense, and it was not incumbent upon private respondent, as plaintiff, to
allege in her complaint that she had availed of benefits from the ECC. It is, thus,
erroneous for petitioner to burden private respondent with raising waiver as an issue. On
the contrary, it is the defendant who ought to plead waiver, as petitioner did in pages 2-3
of its Answer;
41
otherwise, the defense is waived. It is, therefore, perplexing for petitioner
to now contend that the trial court had no jurisdiction over the issue when petitioner itself
pleaded waiver in the proceedings before the trial court.
Does the evidence show that private respondent knew of the facts that led to her
husbands death and the rights pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of knowledge or a mistake of fact. In
this case, the "fact" that served as a basis for nullifying the waiver is the negligence of
petitioners employees, of which private respondent purportedly learned only after the
prosecutor issued a resolution stating that there may be civil liability. InFloresca, it was
the negligence of the mining corporation and its violation of government rules and
regulations. Negligence, or violation of government rules and regulations, for that matter,
however, is not a fact, but aconclusion of law, over which only the courts have the final
say. Such a conclusion binds no one until the courts have decreed so. It appears,
therefore, that the principle that ignorance or mistake of fact nullifies a waiver has been
misapplied in Floresca and in the case at bar.
In any event, there is no proof that private respondent knew that her husband died in the
elevator crash when on November 15, 1990 she accomplished her application for
benefits from the ECC. The police investigation report is dated November 25, 1990, 10
days after the accomplishment of the form. Petitioner filed the application in her behalf
on November 27, 1990.
There is also no showing that private respondent knew of the remedies available to her
when the claim before the ECC was filed. On the contrary, private respondent testified
that she was not aware of her rights.
Petitioner, though, argues that under Article 3 of the Civil Code, ignorance of the law
excuses no one from compliance therewith. As judicial decisions applying or interpreting
the laws or the Constitution form part of the Philippine legal system (Article 8, Civil
Code), private respondent cannot claim ignorance of this Courts ruling
inFloresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is limited to mandatory and
prohibitory laws.
42
This may be deduced from the language of the provision, which,
notwithstanding a persons ignorance, does not excuse his or her compliance with the
laws. The rule in Floresca allowing private respondent a choice of remedies is neither
mandatory nor prohibitory. Accordingly, her ignorance thereof cannot be held against
her.
Finally, the Court modifies the affirmance of the award of damages. The records do not
indicate the total amount private respondent ought to receive from the ECC, although it
appears from Exhibit "K"
43
that she received P3,581.85 as initial payment representing
the accrued pension from November 1990 to March 1991. Her initial monthly pension,
according to the same Exhibit "K," was P596.97 and present total monthly pension was
P716.40. Whether the total amount she will eventually receive from the ECC is less than
the sum of P644,000.00 in total damages awarded by the trial court is subject to
speculation, and the case is remanded to the trial court for such determination. Should
the trial court find that its award is greater than that of the ECC, payments already
received by private respondent under the Labor Code shall be deducted from the trial
court' award of damages. Consistent with our ruling in Floresca, this adjudication aims
to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial Court of Pasig City to
determine whether the award decreed in its decision is more than that of the ECC.
Should the award decreed by the trial court be greater than that awarded by the ECC,
payments already made to private respondent pursuant to the Labor Code shall be
deducted therefrom. In all other respects, the Decision of the Court of Appeals
is AFFIRMED.
SO ORDERED.
Davide, Jr., Puno, Pardo, and Ynares-Santiago, JJ., concur.


DIGEST
FACTS:
At around 1:30 p.m., November 2, 1990, Jose Juego, a construction worker of D. M.
Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death. On
May 9, 1991, Jose Juegos widow, Maria, filed in the Regional Trial Court (RTC) of Pasig
a complaint for damages against the deceaseds employer, D.M. Consunji, Inc. The
employer raised, among other defenses, the widows prior availment of the benefits from
the State Insurance Fund. After trial, the RTC rendered a decision in favor of the widow
Maria Juego.
On appeal by D. M. Consunji, the Court of Appeals (CA) affirmed the decision of the
RTC in toto.
D. M. Consunji then sought the reversal of the CA decision.
ISSUES:
1. Whether or not the petitioner is held liable under the grounds of negligence.
2. Whether or not the injured employee or his heirs in case of death have a right of
selection or choice of action between availing themselves of the workers right under the
Workmens Compensation Act and suing in the regular courts under the Civil Code for
higher damages (actual, moral and exemplary) from the employers by virtue of the
negligence or fault of the employers or whether they may avail themselves cumulatively
of both actions,
RULING:
1. The doctrine of res ipsa loquitur (the thing or transaction speaks for itself)
is peculiar to the law of negligence which recognizes that prima facie negligence may be
established without direct proof and furnishes a substitute for specific proof of
negligence. It has the following requisites: (1) the accident was of a kind which does not
ordinarily occur unless someone is negligent; (2) the instrumentality or agency which
caused the injury was under the exclusive control of the person charged with negligence;
and (3)the injury suffered must not have been due to any voluntary action or contribution
on the part of the person injured. All the requisites for the application of the rule of res
ipsa loquitur are present in the case at bar, thus a reasonable presumption or inference
of appellants negligence arises. Petitioner does not cite any other evidence to rebut the
inference or presumption of negligence arising from the application of res ipsa loquitur,
or to establish any defense relating to the incident.
2. The claims for damages sustained by workers in the course of their employment
could be filed only under the Workmens Compensation Law, to the exclusion of all
further claims under other laws. In the course of availing the remedies provided under
the Workmens Compensation law, the claimants are deemed to have waived
theirknown right of the remedies provided by other laws. The Court of Appeals,
however, held that the case at bar came under exception because private respondent
was unaware of petitioners negligence when she filed her claim for death benefits from
the State Insurance Fund. Had the claimant been aware, she wouldve opted to avail of
a better remedy than that of which she already had.

Cui vs. Arellano University (2 SCRA 205)
G.R. No. L-15127 May 30, 1961
EMETERIO CUI, plaintiff-appellant,
vs.
ARELLANO UNIVERSITY, defendant-appellee.
G.A.S. Sipin, Jr., for plaintiff-appellant.
E. Voltaire Garcia for defendant-appellee.
CONCEPCION, J .:
Appeal by plaintiff Emeterio Cui from a decision of the Court of First Instance of Manila,
absolving defendant Arellano University from plaintiff's complaint, with costs against the
plaintiff, and dismissing defendant's counter claim, for insufficiency of proof thereon.
In the language of the decision appealed from:
The essential facts of this case are short and undisputed. As established by the
agreement of facts Exhibits X and by the respective oral and documentary
evidence introduced by the parties, it appears conclusive that plaintiff, before the
school year 1948-1949 took up preparatory law course in the defendant
University. After finishing his preparatory law course plaintiff enrolled in the
College of Law of the defendant from the school year 1948-1949. Plaintiff
finished his law studies in the defendant university up to and including the first
semester of the fourth year. During all the school years in which plaintiff was
studying law in defendant law college, Francisco R. Capistrano, brother of the
mother of plaintiff, was the dean of the College of Law and legal counsel of the
defendant university. Plaintiff enrolled for the last semester of his law studies in
the defendant university but failed to pay his tuition fees because his uncle Dean
Francisco R. Capistrano having severed his connection with defendant and
having accepted the deanship and chancellorship of the College of Law of Abad
Santos University, plaintiff left the defendant's law college and enrolled for the
last semester of his fourth year law in the college of law of the Abad Santos
University graduating from the college of law of the latter university. Plaintiff,
during all the time he was studying law in defendant university was awarded
scholarship grants, for scholastic merit, so that his semestral tuition fees were
returned to him after the ends of semester and when his scholarship grants were
awarded to him. The whole amount of tuition fees paid by plaintiff to defendant
and refunded to him by the latter from the first semester up to and including the
first semester of his last year in the college of law or the fourth year, is in total
P1,033.87. After graduating in law from Abad Santos University he applied to
take the bar examination. To secure permission to take the bar he needed the
transcripts of his records in defendant Arellano University. Plaintiff petitioned the
latter to issue to him the needed transcripts. The defendant refused until after he
had paid back the P1,033 87 which defendant refunded to him as above stated.
As he could not take the bar examination without those transcripts, plaintiff paid
to defendant the said sum under protest. This is the sum which plaintiff seeks to
recover from defendant in this case.
Before defendant awarded to plaintiff the scholarship grants as above stated, he
was made to sign the following contract covenant and agreement:
"In consideration of the scholarship granted to me by the University, I hereby
waive my right to transfer to another school without having refunded to the
University (defendant) the equivalent of my scholarship cash.
(Sgd.) Emeterio Cui".
It is admitted that, on August 16, 1949, the Director of Private Schools issued
Memorandum No. 38, series of 1949, on the subject of "Scholarship," addressed to "All
heads of private schools, colleges and universities," reading:
1. School catalogs and prospectuses submitted to this, Bureau show that some
schools offer full or partial scholarships to deserving students for excellence in
scholarship or for leadership in extra-curricular activities. Such inducements to
poor but gifted students should be encouraged. But to stipulate the condition that
such scholarships are good only if the students concerned continue in the same
school nullifies the principle of merit in the award of these scholarships.
2. When students are given full or partial scholarships, it is understood that such
scholarships are merited and earned. The amount in tuition and other fees
corresponding to these scholarships should not be subsequently charged to the
recipient students when they decide to quit school or to transfer to another
institution. Scholarships should not be offered merely to attract and keep
students in a school.
3. Several complaints have actually been received from students who have
enjoyed scholarships, full or partial, to the effect that they could not transfer to
other schools since their credentials would not be released unless they would
pay the fees corresponding to the period of the scholarships. Where the Bureau
believes that the right of the student to transfer is being denied on this ground, it
reserves the right to authorize such transfer.
that defendant herein received a copy of this memorandum; that plaintiff asked the
Bureau of Private Schools to pass upon the issue on his right to secure the transcript of
his record in defendant University, without being required to refund the sum of
P1,033.87; that the Bureau of Private Schools upheld the position taken by the plaintiff
and so advised the defendant; and that, this notwithstanding, the latter refused to issue
said transcript of records, unless said refund were made, and even recommended to
said Bureau that it issue a written order directing the defendant to release said transcript
of record, "so that the case may be presented to the court for judicial action." As above
stated, plaintiff was, accordingly, constrained to pay, and did pay under protest, said
sum of P1,033.87, in order that he could take the bar examination in 1953.
Subsequently, he brought this action for the recovery of said amount, aside from P2,000
as moral damages, P500 as exemplary damages, P2,000 as attorney's fees, and P500
as expenses of litigation.
In its answer, defendant reiterated the stand it took, vis-a-vis the Bureau of Private
Schools, namely, that the provisions of its contract with plaintiff are valid and binding and
that the memorandum above-referred to is null and void. It, likewise, set up a
counterclaim for P10,000.00 as damages, and P3,000 as attorney's fees.
The issue in this case is whether the above quoted provision of the contract between
plaintiff and the defendant, whereby the former waived his right to transfer to another
school without refunding to the latter the equivalent of his scholarships in cash, is valid
or not. The lower court resolved this question in the affirmative, upon the ground that the
aforementioned memorandum of the Director of Private Schools is not a law; that the
provisions thereof are advisory, not mandatory in nature; and that, although the
contractual provision "may be unethical, yet it was more unethical for plaintiff to quit
studying with the defendant without good reasons and simply because he wanted to
follow the example of his uncle." Moreover, defendant maintains in its brief that the
aforementioned memorandum of the Director of Private Schools is null and void because
said officer had no authority to issue it, and because it had been neither approved by the
corresponding department head nor published in the official gazette.
We do not deem it necessary or advisable to consider as the lower court did, the
question whether plaintiff had sufficient reasons or not to transfer from defendant
University to the Abad Santos University. The nature of the issue before us, and its far
reaching effects, transcend personal equations and demand a determination of the case
from a high impersonal plane. Neither do we deem it essential to pass upon the validity
of said Memorandum No. 38, for, regardless of the same, we are of the opinion that the
stipulation in question is contrary to public policy and, hence, null and void. The
aforesaid memorandum merely incorporates a sound principle of public policy. As the
Director of Private Schools correctly pointed, out in his letter, Exhibit B, to the defendant,
There is one more point that merits refutation and that is whether or not the
contract entered into between Cui and Arellano University on September 10,
1951 was void as against public policy. In the case of Zeigel vs. Illinois Trust and
Savings Bank, 245 Ill. 180, 19 Ann. Case 127, the court said: 'In determining a
public policy of the state, courts are limited to a consideration of the Constitution,
the judicial decisions, the statutes, and the practice of government officers.' It
might take more than a government bureau or office to lay down or establish a
public policy, as alleged in your communication, but courts consider the practices
of government officials as one of the four factors in determining a public policy of
the state. It has been consistently held in America that under the principles
relating to the doctrine of public policy, as applied to the law of contracts, courts
of justice will not recognize or uphold a transaction which its object, operation, or
tendency is calculated to be prejudicial to the public welfare, to sound morality or
to civic honesty (Ritter vs. Mutual Life Ins. Co., 169 U.S. 139; Heding vs.
Gallaghere 64 L.R.A. 811; Veazy vs. Allen, 173 N.Y. 359). If Arellano University
understood clearly the real essence of scholarships and the motives which
prompted this office to issue Memorandum No. 38, s. 1949, it should have not
entered into a contract of waiver with Cui on September 10, 1951, which is a
direct violation of our Memorandum and an open challenge to the authority of the
Director of Private Schools because the contract was repugnant to sound
morality and civic honesty. And finally, in Gabriel vs. Monte de Piedad, Off.
Gazette Supp. Dec. 6, 1941, p. 67 we read: 'In order to declare a contract void as
against public policy, a court must find that the contract as to consideration or the
thing to be done, contravenes some established interest of society, or
is inconsistent with sound policy and good morals or tends clearly to undermine
the security of individual rights. The policy enunciated in Memorandum No. 38, s.
1949 is sound policy. Scholarship are awarded in recognition of merit not to keep
outstanding students in school to bolster its prestige. In the understanding of that
university scholarships award is a business scheme designed to increase the
business potential of an education institution. Thus conceived it is not only
inconsistent with sound policy but also good morals. But what is morals?
Manresa has this definition. It is good customs; those generally accepted
principles of morality which have received some kind of social and practical
confirmation. The practice of awarding scholarships to attract students and keep
them in school is not good customs nor has it received some kind of social and
practical confirmation except in some private institutions as in Arellano
University. The University of the Philippines which implements Section 5 of
Article XIV of the Constitution with reference to the giving of free scholarships to
gifted children, does not require scholars to reimburse the corresponding value of
the scholarships if they transfer to other schools. So also with the leading
colleges and universities of the United States after which our educational
practices or policies are patterned. In these institutions scholarships are
granted not to attract and to keep brilliant students in school for their propaganda
mine but to reward merit or help gifted students in whom society has an
established interest or a first lien. (Emphasis supplied.)
WHEREFORE, the decision appealed from is hereby reversed and another one shall be
entered sentencing the defendant to pay to the plaintiff the sum of P1,033.87, with
interest thereon at the legal rate from September 1, 1954, date of the institution of this
case, as well as the costs, and dismissing defendant's counterclaim. It is so ordered.
Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Barrera, Parades, Dizon, De Leon and
Natividad, JJ., concur.
Bautista Angelo, J., reserves his vote.
DIGEST
Facts:
Cui was a law scholar at the Arellano University; he paid the tuition fees but it
was returned to him at the end of every semester. Before Arellano awarded the
scholarship grant, Cui was made to sign a contract covenant and agreement saying that
he waives his right to transfer to another school in consideration of the scholarship grant
and if he transfers, he shall pay the tuition fees awarded to him while being a scholar. He
transferred to another school to finish his last term in law school. When he was about to
take the Bar, his TOR at Arellano was not issued unless he pays the amount of the
tuition fees that were returned to him when he was still their scholar. He paid under
protest.

Issue:
Whether or not the provision of the contract between plaintiff and the defendant,
whereby the former waived his right to transfer to another school without refunding to the
latter the equivalent of his scholarship grants in cash, is valid or not.

Held:
The waiver signed by Cui was void as it was contrary to public policy; it was null
and void.
Scholarship grants, as pointed out by the Director of the Bureau of Private
Schools in Memorandum No. 38, are awarded in recognition of merit and not to attract
and keep brilliant students in school for their propaganda value. To look at such grants
as a business scheme designed to increase the business potential of an educational
institution is not only inconsistent with sound public policy but also good morals.
Consequently, the waiver signed by the student, waiving his right to transfer to another
school unless he refunds to the university the equivalent of his scholarship grants, is null
and void.
WHEREFORE, the decision appealed from is hereby reverse and another one
shall be entered sentencing the defendant to pay to the plaintiff the sum of P1,033.87,
with interest thereon at the legal rate from September 1, 1954, date of the institution of
this case, as well as the costs, and dismissing defendants counterclaim. It is so ordered.

Article 15-16
Miciano vs. Brimo (50 Phil. 867)
G.R. No. L-22595 November 1, 1927
Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-
appellee,
vs.
ANDRE BRIMO, opponent-appellant.
Ross, Lawrence and Selph for appellant.
Camus and Delgado for appellee.

ROMUALDEZ, J .:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this
case.
The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of
the brothers of the deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are:
(1) The approval of said scheme of partition; (2) denial of his participation in the
inheritance; (3) the denial of the motion for reconsideration of the order approving the
partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's
business and the deed of transfer of said business; and (5) the declaration that the
Turkish laws are impertinent to this cause, and the failure not to postpone the approval
of the scheme of partition and the delivery of the deceased's business to Pietro Lanza
until the receipt of the depositions requested in reference to the Turkish laws.
The appellant's opposition is based on the fact that the partition in question puts into
effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws
of his Turkish nationality, for which reason they are void as being in violation or article 10
of the Civil Code which, among other things, provides the following:
Nevertheless, legal and testamentary successions, in respect to the order of
succession as well as to the amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the national law of the person
whose succession is in question, whatever may be the nature of the property or
the country in which it may be situated.
But the fact is that the oppositor did not prove that said testimentary dispositions are not
in accordance with the Turkish laws, inasmuch as he did not present any evidence
showing what the Turkish laws are on the matter, and in the absence of evidence on
such laws, they are presumed to be the same as those of the Philippines. (Lim and
Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself,
acknowledges it when he desires to be given an opportunity to present evidence on this
point; so much so that he assigns as an error of the court in not having deferred the
approval of the scheme of partition until the receipt of certain testimony requested
regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to prove such laws does not
constitute an error. It is discretionary with the trial court, and, taking into consideration
that the oppositor was granted ample opportunity to introduce competent evidence, we
find no abuse of discretion on the part of the court in this particular. There is, therefore,
no evidence in the record that the national law of the testator Joseph G. Brimo was
violated in the testamentary dispositions in question which, not being contrary to our
laws in force, must be complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein
appellant as a legatee, inasmuch as he is one of the persons designated as such in will,
it must be taken into consideration that such exclusion is based on the last part of the
second clause of the will, which says:
Second. I like desire to state that although by law, I am a Turkish citizen, this
citizenship having been conferred upon me by conquest and not by free choice,
nor by nationality and, on the other hand, having resided for a considerable
length of time in the Philippine Islands where I succeeded in acquiring all of the
property that I now possess, it is my wish that the distribution of my property and
everything in connection with this, my will, be made and disposed of in
accordance with the laws in force in the Philippine islands, requesting all of my
relatives to respect this wish, otherwise, I annul and cancel beforehand whatever
disposition found in this will favorable to the person or persons who fail to comply
with this request.
The institution of legatees in this will is conditional, and the condition is that the instituted
legatees must respect the testator's will to distribute his property, not in accordance with
the laws of his nationality, but in accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to comply
with it, as the herein oppositor who, by his attitude in these proceedings has not
respected the will of the testator, as expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792
of the civil Code provides the following:
Impossible conditions and those contrary to law or good morals shall be
considered as not imposed and shall not prejudice the heir or legatee in any
manner whatsoever, even should the testator otherwise provide.
And said condition is contrary to law because it expressly ignores the testator's national
law when, according to article 10 of the civil Code above quoted, such national law of the
testator is the one to govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered
unwritten, and the institution of legatees in said will is unconditional and consequently
valid and effective even as to the herein oppositor.
It results from all this that the second clause of the will regarding the law which shall
govern it, and to the condition imposed upon the legatees, is null and void, being
contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are
perfectly valid and effective it not appearing that said clauses are contrary to the
testator's national law.
Therefore, the orders appealed from are modified and it is directed that the distribution of
this estate be made in such a manner as to include the herein appellant Andre Brimo as
one of the legatees, and the scheme of partition submitted by the judicial administrator is
approved in all other respects, without any pronouncement as to costs.
So ordered.
Street, Malcolm, Avancea, Villamor and Ostrand, JJ., concur.

DIGEST
Facts:
Andre Brimo opposed the appeal of Juan Miciano, administrator of the estate of the
deceased Joseph Brimo. The property was said to be in the Philippines and the testatrix
wished that the distribution of his properties and everything in connection with it be in
accordance with the Philippine laws. Oppositor-appellant Brimo claimed that the will of
the testatrix is not in accordance with the laws of his Turkish nationality. The errors he
(oppositor) assigned in his opposition were the following: (1) the approval of said
scheme partition, (2) denial of his participation in the inheritance, (3) denial of the motion
for reconsideration of the order approving the partition, (4) the approval of the purchase
made by the Pietro Lanza of the deceased's business and the deed of transfer of said
business, and (5) the declaration that the Turkish laws are impertinent to this cause, and
the failure not to postpone the approval of the scheme of partition and the delivery of the
deceased's business to Pietro Lanza until the receipt of the depositions requested in
reference to the Turkish laws.

Issue:
Whether or not Philippine laws shall be applied on the estate of Joseph Brimo, a Turkish
citizen who have resided for a considerable length of time in the Philippines.

Held:
Article 10 of the old Civil Code of the Philippine law was applied on the estate of Joseph
Brimo, where it was provided, nevertheless, legal and testamentary successions, in
respect to the order of succession as well as to the amount of the successional rights
and the intrinsic validity of their provisions, shall be regulated by the national law of the
person whose succession is in question, whatever may be the nature of the property or
the country in which it may be situated. However, the oppositor did not prove, though
was granted ample opportunity to introduce competent evidence, that said testamentary
dispositions are not in accordance with the Turkish laws. Therefore, there is no evidence
in the record that the national law of the testatrix was violated in the testamentary
dispositions in question which, not being contrary to our laws in force, must be complied
with and executed; thus, the approval of the scheme of partition in this respect was not
erroneous.

Therefore, the orders appealed from are modified and it is directed that the distribution of
this estate be made in such a manner as to include the herein appellant Andre Brimo as
one of the legatees, and the scheme of partition submitted by the judicial administrator is
approved in all other respects, without any pronouncement as to costs. SO ORDERED.

Pilapil vs. Ibay-Somera (174 SCRA 653)
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional
Trial Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the
City Fiscal of Manila; and ERICH EKKEHARD GEILING, respondents.

REGALADO, J .:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute
divorce, only to be followed by a criminal infidelity suit of the latter against the former,
provides Us the opportunity to lay down a decisional rule on what hitherto appears to be
an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and
private respondent Erich Ekkehard Geiling, a German national, were married before the
Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of
Germany. The marriage started auspiciously enough, and the couple lived together for
some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on
April 20, 1980.
1

Thereafter, marital discord set in, with mutual recriminations between the spouses,
followed by a separation de facto between them.
After about three and a half years of marriage, such connubial disharmony eventuated in
private respondent initiating a divorce proceeding against petitioner in Germany before
the Schoneberg Local Court in January, 1983. He claimed that there was failure of their
marriage and that they had been living apart since April, 1982.
2

Petitioner, on the other hand, filed an action for legal separation, support and separation
of property before the Regional Trial Court of Manila, Branch XXXII, on January 23,
1983 where the same is still pending as Civil Case No. 83-15866.
3

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of
Germany, promulgated a decree of divorce on the ground of failure of marriage of the
spouses. The custody of the child was granted to petitioner. The records show that
under German law said court was locally and internationally competent for the divorce
proceeding and that the dissolution of said marriage was legally founded on and
authorized by the applicable law of that foreign jurisdiction.
4

On June 27, 1986, or more than five months after the issuance of the divorce decree,
private respondent filed two complaints for adultery before the City Fiscal of Manila
alleging that, while still married to said respondent, petitioner "had an affair with a certain
William Chia as early as 1982 and with yet another man named Jesus Chua sometime in
1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding
investigation, recommended the dismissal of the cases on the ground of insufficiency of
evidence.
5
However, upon review, the respondent city fiscal approved a resolution,
dated January 8, 1986, directing the filing of two complaints for adultery against the
petitioner.
6
The complaints were accordingly filed and were eventually raffled to two
branches of the Regional Trial Court of Manila. The case entitled "People of the
Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-
52435, was assigned to Branch XXVI presided by the respondent judge; while the other
case, "People of the Philippines vs. Imelda Pilapil and James Chua", docketed as
Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of
the same court.
7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the
aforesaid resolution of respondent fiscal be set aside and the cases against her be
dismissed.
8
A similar petition was filed by James Chua, her co-accused in Criminal
Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave
due course to both petitions and directed the respondent city fiscal to inform the
Department of Justice "if the accused have already been arraigned and if not yet
arraigned, to move to defer further proceedings" and to elevate the entire records of both
cases to his office for review.
9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to
suspend further proceedings thereon.
10
As a consequence, Judge Leonardo Cruz
suspended proceedings in Criminal Case No. 87-52434. On the other hand, respondent
judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6,
1987. Before such scheduled date, petitioner moved for the cancellation of the
arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435
until after the resolution of the petition for review then pending before the Secretary of
Justice.
11
A motion to quash was also filed in the same case on the ground of lack of
jurisdiction,
12
which motion was denied by the respondent judge in an order dated
September 8, 1987. The same order also directed the arraignment of both accused
therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while
the petitioner refused to be arraigned. Such refusal of the petitioner being considered by
respondent judge as direct contempt, she and her counsel were fined and the former
was ordered detained until she submitted herself for arraignment.
13
Later, private
respondent entered a plea of not guilty.
14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition,
with a prayer for a temporary restraining order, seeking the annulment of the order of the
lower court denying her motion to quash. The petition is anchored on the main ground
that the court is without jurisdiction "to try and decide the charge of adultery, which is a
private offense that cannot be prosecuted de officio (sic), since the purported
complainant, a foreigner, does not qualify as an offended spouse having obtained a final
divorce decree under his national law prior to his filing the criminal complaint."
15

On October 21, 1987, this Court issued a temporary restraining order enjoining the
respondents from implementing the aforesaid order of September 8, 1987 and from
further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23, 1988
Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid petitions for review and,
upholding petitioner's ratiocinations, issued a resolution directing the respondent city
fiscal to move for the dismissal of the complaints against the petitioner.
16

We find this petition meritorious. The writs prayed for shall accordingly issue.
Under Article 344 of the Revised Penal Code,
17
the crime of adultery, as well as four
other crimes against chastity, cannot be prosecuted except upon a sworn written
complaint filed by the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a jurisdictional, and not merely
a formal, requirement.
18
While in point of strict law the jurisdiction of the court over the
offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint
is just as jurisdictional a mandate since it is that complaint which starts the prosecutory
proceeding
19
and without which the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage the
person who can legally file the complaint should be the offended spouse, and nobody
else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no
provision is made for the prosecution of the crimes of adultery and concubinage by the
parents, grandparents or guardian of the offended party. The so-called exclusive and
successive rule in the prosecution of the first four offenses above mentioned do not
apply to adultery and concubinage. It is significant that while the State, as parens
patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power
to initiate the criminal action for a deceased or incapacitated victim in the aforesaid
offenses of seduction, abduction, rape and acts of lasciviousness, in default of her
parents, grandparents or guardian, such amendment did not include the crimes of
adultery and concubinage. In other words, only the offended spouse, and no other, is
authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the action,
it necessarily follows that such initiator must have the status, capacity or legal
representation to do so at the time of the filing of the criminal action. This is a familiar
and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a
motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not
mean that the same requirement and rationale would not apply. Understandably, it may
not have been found necessary since criminal actions are generally and fundamentally
commenced by the State, through the People of the Philippines, the offended party
being merely the complaining witness therein. However, in the so-called "private crimes"
or those which cannot be prosecuted de oficio, and the present prosecution for adultery
is of such genre, the offended spouse assumes a more predominant role since the right
to commence the action, or to refrain therefrom, is a matter exclusively within his power
and option.
This policy was adopted out of consideration for the aggrieved party who might prefer to
suffer the outrage in silence rather than go through the scandal of a public
trial.
20
Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code
thus presupposes that the marital relationship is still subsisting at the time of the
institution of the criminal action for, adultery. This is a logical consequence since
the raison d'etre of said provision of law would be absent where the supposed offended
party had ceased to be the spouse of the alleged offender at the time of the filing of the
criminal case.
21

In these cases, therefore, it is indispensable that the status and capacity of the
complainant to commence the action be definitely established and, as already
demonstrated, such status or capacity must indubitably exist as of the time he initiates
the action. It would be absurd if his capacity to bring the action would be determined by
his status before or subsequent to the commencement thereof, where such capacity or
status existed prior to but ceased before, or was acquired subsequent to but did not exist
at the time of, the institution of the case. We would thereby have the anomalous
spectacle of a party bringing suit at the very time when he is without the legal capacity to
do so.
To repeat, there does not appear to be any local precedential jurisprudence on the
specific issue as to when precisely the status of a complainant as an offended spouse
must exist where a criminal prosecution can be commenced only by one who in law can
be categorized as possessed of such status. Stated differently and with reference to the
present case, the inquiry ;would be whether it is necessary in the commencement of a
criminal action for adultery that the marital bonds between the complainant and the
accused be unsevered and existing at the time of the institution of the action by the
former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in pari
materia with ours, yields the rule that after a divorce has been decreed, the innocent
spouse no longer has the right to institute proceedings against the offenders where the
statute provides that the innocent spouse shall have the exclusive right to institute a
prosecution for adultery. Where, however, proceedings have been properly commenced,
a divorce subsequently granted can have no legal effect on the prosecution of the
criminal proceedings to a conclusion.
22

In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced except on the complaint
of the husband or wife.' Section 4932, Code. Though Loftus was husband
of defendant when the offense is said to have been committed, he had
ceased to be such when the prosecution was begun; and appellant insists
that his status was not such as to entitle him to make the complaint. We
have repeatedly said that the offense is against the unoffending spouse,
as well as the state, in explaining the reason for this provision in the
statute; and we are of the opinion that the unoffending spouse must be
such when the prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our
jurisdiction, considering our statutory law and jural policy on the matter. We are
convinced that in cases of such nature, the status of the complainant vis-a-vis the
accused must be determined as of the time the complaint was filed. Thus, the person
who initiates the adultery case must be an offended spouse, and by this is meant that he
is still married to the accused spouse, at the time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid divorce in his
country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects
may be recognized in the Philippines insofar as private respondent is concerned
23
in
view of the nationality principle in our civil law on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al.,
24
after a divorce was
granted by a United States court between Alice Van Dornja Filipina, and her American
husband, the latter filed a civil case in a trial court here alleging that her business
concern was conjugal property and praying that she be ordered to render an accounting
and that the plaintiff be granted the right to manage the business. Rejecting his
pretensions, this Court perspicuously demonstrated the error of such stance, thus:
There can be no question as to the validity of that Nevada divorce in any
of the States of the United States. The decree is binding on private
respondent as an American citizen. For instance, private respondent
cannot sue petitioner, as her husband, in any State of the Union. ...
It is true that owing to the nationality principle embodied in Article 15 of
the Civil Code, only Philippine nationals are covered by the policy against
absolute divorces the same being considered contrary to our concept of
public policy and morality. However, aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid
according to their national law. ...
Thus, pursuant to his national law, private respondent is no longer the
husband of petitioner. He would have no standing to sue in the case
below as petitioner's husband entitled to exercise control over conjugal
assets. ...
25

Under the same considerations and rationale, private respondent, being no longer the
husband of petitioner, had no legal standing to commence the adultery case under the
imposture that he was the offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case before the
decree of divorce for lack of knowledge, even if true, is of no legal significance or
consequence in this case. When said respondent initiated the divorce proceeding, he
obviously knew that there would no longer be a family nor marriage vows to protect once
a dissolution of the marriage is decreed. Neither would there be a danger of introducing
spurious heirs into the family, which is said to be one of the reasons for the particular
formulation of our law on adultery,
26
since there would thenceforth be no spousal
relationship to speak of. The severance of the marital bond had the effect of dissociating
the former spouses from each other, hence the actuations of one would not affect or cast
obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by
private respondent. In applying Article 433 of the old Penal Code, substantially the same
as Article 333 of the Revised Penal Code, which punished adultery "although the
marriage be afterwards declared void", the Court merely stated that "the lawmakers
intended to declare adulterous the infidelity of a married woman to her marital vows,
even though it should be made to appear that she is entitled to have her marriage
contract declared null and void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically inferred therefrom that the
complaint can still be filed after the declaration of nullity because such declaration that
the marriage is void ab initio is equivalent to stating that it never existed. There being no
marriage from the beginning, any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on. Moreover, what was consequently
contemplated and within the purview of the decision in said case is the situation where
the criminal action for adultery was filed before the termination of the marriage by a
judicial declaration of its nullity ab initio. The same rule and requisite would necessarily
apply where the termination of the marriage was effected, as in this case, by a valid
foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore
cited,
27
must suffer the same fate of inapplicability. A cursory reading of said case
reveals that the offended spouse therein had duly and seasonably filed a complaint for
adultery, although an issue was raised as to its sufficiency but which was resolved in
favor of the complainant. Said case did not involve a factual situation akin to the one at
bar or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET
ASIDE and another one enteredDISMISSING the complaint in Criminal Case No. 87-
52435 for lack of jurisdiction. The temporary restraining order issued in this case on
October 21, 1987 is hereby made permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.


Separate Opinions

PARAS, J ., concurring:
It is my considered opinion that regardless of whether We consider the German absolute
divorce as valid also in the Philippines, the fact is that the husband in the instant case,
by the very act of his obtaining an absolute divorce in Germany can no longer be
considered as the offended party in case his former wife actually has carnal knowledge
with another, because in divorcing her, he already implicitly authorized the woman to
have sexual relations with others. A contrary ruling would be less than fair for a man,
who is free to have sex will be allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the
absolute divorce between the American husband and his American wife as valid and
binding in the Philippines on the theory that their status and capacity are governed by
their National law, namely, American law. There is no decision yet of the Supreme Court
regarding the validity of such a divorce if one of the parties, say an American, is married
to a Filipino wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and
precisely because of theNational law doctrine, he considers the absolute divorce as valid
insofar as the American husband is concerned but void insofar as the Filipino wife is
involved. This results in what he calls a "socially grotesque situation," where a Filipino
woman is still married to a man who is no longer her husband. It is the opinion however,
of the undersigned that very likely the opposite expresses the correct view. While under
the national law of the husband the absolute divorce will be valid, still one of the
exceptions to the application of the proper foreign law (one of the exceptions to comity)
is when the foreign law will work an injustice or injury to the people or residents of the
forum. Consequently since to recognize the absolute divorce as valid on the part of the
husband would be injurious or prejudicial to the Filipino wife whose marriage would be
still valid under her national law, it would seem that under our law existing before the
new Family Code (which took effect on August 3, 1988) the divorce should be
considered void both with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the
fact that the husband was an American can with a Filipino wife because in said case the
validity of the divorce insofar as the Filipino wife is concerned was NEVER put in issue.

Separate Opinions
PARAS, J ., concurring:
It is my considered opinion that regardless of whether We consider the German absolute
divorce as valid also in the Philippines, the fact is that the husband in the instant case,
by the very act of his obtaining an absolute divorce in Germany can no longer be
considered as the offended party in case his former wife actually has carnal knowledge
with another, because in divorcing her, he already implicitly authorized the woman to
have sexual relations with others. A contrary ruling would be less than fair for a man,
who is free to have sex will be allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the
absolute divorce between the American husband and his American wife as valid and
binding in the Philippines on the theory that their status and capacity are governed by
their National law, namely, American law. There is no decision yet of the Supreme Court
regarding the validity of such a divorce if one of the parties, say an American, is married
to a Filipino wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and
precisely because of theNational law doctrine, he considers the absolute divorce as valid
insofar as the American husband is concerned but void insofar as the Filipino wife is
involved. This results in what he calls a "socially grotesque situation," where a Filipino
woman is still married to a man who is no longer her husband. It is the opinion however,
of the undersigned that very likely the opposite expresses the correct view. While under
the national law of the husband the absolute divorce will be valid, still one of the
exceptions to the application of the proper foreign law (one of the exceptions to comity)
is when the foreign law will work an injustice or injury to the people or residents of the
forum. Consequently since to recognize the absolute divorce as valid on the part of the
husband would be injurious or prejudicial to the Filipino wife whose marriage would be
still valid under her national law, it would seem that under our law existing before the
new Family Code (which took effect on August 3, 1988) the divorce should be
considered void both with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the
fact that the husband was an American can with a Filipino wife because in said case the
validity of the divorce insofar as the Filipino wife is concerned was NEVER put in issue.

DIGEST
FACTS:

Imelda M. Pilapil, a Filipino citizen, was married with private respondent, Erich Ekkehard
Geiling, a German national before the Registrar of Births, Marriages and Deaths at
Friedensweiler, Federal Republic of Germany. They have a child who was born on April
20, 1980 and named Isabella Pilapil Geiling. Conjugal disharmony eventuated in private
respondent and he initiated a divorce proceeding against petitioner in Germany before
the Schoneberg Local Court in January 1983. The petitioner then filed an action for legal
separation, support and separation of property before the RTC Manila on January 23,
1983.
The decree of divorce was promulgated on January 15, 1986 on the ground of failure of
marriage of the spouses. The custody of the child was granted to the petitioner.
On June 27, 1986, private respondent filed 2 complaints for adultery before the City
Fiscal of Manila alleging that while still married to Imelda, latter had an affair with
William Chia as early as 1982 and another man named Jesus Chua sometime in 1983.

ISSUE: Whether private respondent can prosecute petitioner on the ground of adultery
even though they are no longer husband and wife as decree of divorce was already
issued.

HELD:
The law specifically provided that in prosecution for adultery and concubinage, the
person who can legally file the complaint should be the offended spouse and nobody
else. Though in this case, it appeared that private respondent is the offended spouse,
the latter obtained a valid divorce in his country, the Federal Republic of Germany, and
said divorce and its legal effects may be recognized in the Philippines in so far as he is
concerned. Thus, under the same consideration and rationale, private respondent is no
longer the husband of petitioner and has no legal standing to commence the adultery
case under the imposture that he was the offended spouse at the time he filed suit.

Roehr vs. Rodriguez (G.R. No. 142820, 20 June 2003)
WOLFGANG O. ROEHR, petitioner, vs. MARIA CARMEN D. RODRIGUEZ, HON.
JUDGE JOSEFINA GUEVARA-SALONGA, Presiding Judge of Makati RTC,
Branch 149, respondents.
D E C I S I O N
QUISUMBING, J .:
At the core of the present controversy are issues of (a) grave abuse of discretion
allegedly committed by public respondent and (b) lack of jurisdiction of the regional trial
court, in matters that spring from a divorce decree obtained abroad by petitioner.
In this special civil action for certiorari, petitioner assails (a) the order
[1]
dated
September 30, 1999 of public respondent Judge Josefina Guevara-Salonga, Presiding
Judge of Makati Regional Trial Court,
[2]
Branch 149, in Civil Case No. 96-1389 for
declaration of nullity of marriage, and (b) the order
[3]
dated March 31, 2000 denying his
motion for reconsideration. The assailed orders partially set aside the trial courts order
dismissing Civil Case No. 96-1389, for the purpose of resolving issues relating to the
property settlement of the spouses and the custody of their children.
Petitioner Wolfgang O. Roehr, a German citizen and resident of Germany, married
private respondent Carmen Rodriguez, a Filipina, on December 11, 1980 in Hamburg,
Germany. Their marriage was subsequently ratified on February 14, 1981 in Tayasan,
Negros Oriental.
[4]
Out of their union were born Carolynne and Alexandra Kristine on
November 18, 1981 and October 25, 1987, respectively.
On August 28, 1996, private respondent filed a petition
[5]
for declaration of nullity of
marriage before the Regional Trial Court (RTC) of Makati City. On February 6, 1997,
petitioner filed a motion to dismiss,
[6]
but it was denied by the trial court in its
order
[7]
dated May 28, 1997.
On June 5, 1997, petitioner filed a motion for reconsideration, but was also denied in
an order
[8]
dated August 13, 1997. On September 5, 1997, petitioner filed a petition for
certiorari with the Court of Appeals. On November 27, 1998, the appellate court denied
the petition and remanded the case to the RTC.
Meanwhile, petitioner obtained a decree of divorce from the Court of First Instance
of Hamburg-Blankenese, promulgated on December 16, 1997. The decree provides in
part:
[T]he Court of First Instance, Hamburg-Blankenese, Branch 513, has ruled through
Judge van Buiren of the Court of First Instance on the basis of the oral proceedings held
on 4 Nov. 1997:
The marriage of the Parties contracted on 11 December 1980 before the Civil Registrar
of Hamburg-Altona is hereby dissolved.
The parental custody for the children
Carolynne Roehr, born 18 November 1981
Alexandra Kristine Roehr, born on 25 October 1987
is granted to the father.
The litigation expenses shall be assumed by the Parties.
[9]

In view of said decree, petitioner filed a Second Motion to Dismiss on May 20, 1999
on the ground that the trial court had no jurisdiction over the subject matter of the action
or suit as a decree of divorce had already been promulgated dissolving the marriage of
petitioner and private respondent.
On July 14, 1999, Judge Guevara-Salonga issued an order granting petitioners
motion to dismiss. Private respondent filed a Motion for Partial Reconsideration, with a
prayer that the case proceed for the purpose of determining the issues of custody of
children and the distribution of the properties between petitioner and private respondent.
On August 18, 1999, an Opposition to the Motion for Partial Reconsideration was
filed by the petitioner on the ground that there is nothing to be done anymore in the
instant case as the marital tie between petitioner Wolfgang Roehr and respondent Ma.
Carmen D. Rodriguez had already been severed by the decree of divorce promulgated
by the Court of First Instance of Hamburg, Germany on December 16, 1997 and in view
of the fact that said decree of divorce had already been recognized by the RTC in its
order of July 14, 1999, through the implementation of the mandate of Article 26 of the
Family Code,
[10]
endowing the petitioner with the capacity to remarry under the Philippine
law.
On September 30, 1999, respondent judge issued the assailed order partially setting
aside her order dated July 14, 1999 for the purpose of tackling the issues of property
relations of the spouses as well as support and custody of their children. The pertinent
portion of said order provides:
Acting on the Motion for Partial Reconsideration of the Order dated July 14, 1999 filed by
petitioner thru counsel which was opposed by respondent and considering that the
second paragraph of Article 26 of the Family Code was included as an amendment thru
Executive Order 227, to avoid the absurd situation of a Filipino as being still married to
his or her alien spouse though the latter is no longer married to the Filipino spouse
because he/she had obtained a divorce abroad which is recognized by his/her national
law, and considering further the effects of the termination of the marriage under Article
43 in relation to Article 50 and 52 of the same Code, which include the dissolution of the
property relations of the spouses, and the support and custody of their children, the
Order dismissing this case is partially set aside with respect to these matters which may
be ventilated in this Court.
SO ORDERED.
[11]
(Emphasis supplied.)
Petitioner filed a timely motion for reconsideration on October 19, 1999, which was
denied by respondent judge in an order dated March 31, 2000.
[12]

Petitioner ascribes lack of jurisdiction of the trial court and grave abuse of discretion
on the part of respondent judge. He cites as grounds for his petition the following:
1. PARTIALLY SETTING ASIDE THE ORDER DATED JULY 14, 1999
DISMISSING THE INSTANT CASE IS NOT ALLOWED BY 1997 RULES
OF CIVIL PROCEDURE.
[13]

2. RESPONDENT MARIA CARMEN RODRIGUEZ BY HER MOTION FOR
PARTIAL RECONSIDERATION HAD RECOGNIZED AND ADMITTED
THE DIVORCE DECISION OBTAINED BY HER EX-HUSBAND IN
HAMBURG, GERMANY.
[14]

3. THERE IS NOTHING LEFT TO BE TACKLED BY THE HONORABLE
COURT AS THERE ARE NO CONJUGAL ASSETS ALLEGED IN THE
PETITION FOR ANNULMENT OF MARRIAGE AND IN THE DIVORCE
PETITION, AND THE CUSTODY OF THE CHILDREN HAD ALREADY
BEEN AWARDED TO PETITIONER WOLFGANG ROEHR.
[15]

Pertinent in this case before us are the following issues:
1. Whether or not respondent judge gravely abused her discretion in issuing her
order dated September 30, 1999, which partially modified her order dated July
14, 1999; and
2. Whether or not respondent judge gravely abused her discretion when she
assumed and retained jurisdiction over the present case despite the fact that
petitioner has already obtained a divorce decree from a German court.
On the first issue, petitioner asserts that the assailed order of respondent judge is
completely inconsistent with her previous order and is contrary to Section 3, Rule 16,
Rules of Civil Procedure, which provides:
Sec. 3. Resolution of motion - After the hearing, the court may dismiss the action or
claim, deny the motion, or order the amendment of the pleading.
The court shall not defer the resolution of the motion for the reason that the ground
relied upon is not indubitable.
In every case, the resolution shall state clearly and distinctly the reasons therefor.
(Emphasis supplied.)
Petitioner avers that a courts action on a motion is limited to dismissing the action or
claim, denying the motion, or ordering the amendment of the pleading.
Private respondent, on her part, argues that the RTC can validly reconsider its order
dated July 14, 1999 because it had not yet attained finality, given the timely filing of
respondents motion for reconsideration.
Pertinent to this issue is Section 3 in relation to Section 7, Rule 37 of the 1997 Rules
of Civil Procedure, which provides:
Sec. 3. Action upon motion for new trial or reconsideration.The trial court may set
aside the judgment or final order and grant a new trial, upon such terms as may be just,
or may deny the motion. If the court finds that excessive damages have been
awarded or that the judgment or final order is contrary to the evidence or law, it may
amend such judgment or final order accordingly.
Sec. 7. Partial new trial or reconsideration.If the grounds for a motion under this Rule
appear to the court to affect the issues as to only a part, or less than all of the matters in
controversy, or only one, or less than all, of the parties to it, the court may order a new
trial or grant reconsideration as to such issues if severable without interfering with the
judgment or final order upon the rest. (Emphasis supplied.)
It is clear from the foregoing rules that a judge can order a partial reconsideration of
a case that has not yet attained finality. Considering that private respondent filed a
motion for reconsideration within the reglementary period, the trial court's decision of
July 14, 1999 can still be modified. Moreover, in Saado v. Court of Appeals,
[16]
we held
that the court could modify or alter a judgment even after the same has become
executory whenever circumstances transpire rendering its decision unjust and
inequitable, as where certain facts and circumstances justifying or requiring such
modification or alteration transpired after the judgment has become final and
executory
[17]
and when it becomes imperative in the higher interest of justice or when
supervening events warrant it.
[18]
In our view, there are even more compelling reasons to
do so when, as in this case, judgment has not yet attained finality.
Anent the second issue, petitioner claims that respondent judge committed grave
abuse of discretion when she partially set aside her order dated July 14, 1999, despite
the fact that petitioner has already obtained a divorce decree from the Court of First
Instance of Hamburg, Germany.
In Garcia v. Recio,
[19]
Van Dorn v. Romillo, Jr.,
[20]
and Llorente v. Court of
Appeals,
[21]
we consistently held that a divorce obtained abroad by an alien may be
recognized in our jurisdiction, provided such decree is valid according to the national law
of the foreigner. Relevant to the present case is Pilapil v. Ibay-Somera,
[22]
where this
Court specifically recognized the validity of a divorce obtained by a German citizen in his
country, the Federal Republic of Germany. We held in Pilapil that a foreign divorce and
its legal effects may be recognized in the Philippines insofar as respondent is concerned
in view of the nationality principle in our civil law on the status of persons.
In this case, the divorce decree issued by the German court dated December 16,
1997 has not been challenged by either of the parties. In fact, save for the issue of
parental custody, even the trial court recognized said decree to be valid and binding,
thereby endowing private respondent the capacity to remarry. Thus, the present
controversy mainly relates to the award of the custody of their two children, Carolynne
and Alexandra Kristine, to petitioner.
As a general rule, divorce decrees obtained by foreigners in other countries are
recognizable in our jurisdiction, but the legal effects thereof, e.g. on custody, care and
support of the children, must still be determined by our courts.
[23]
Before our courts can
give the effect of res judicata to a foreign judgment, such as the award of custody to
petitioner by the German court, it must be shown that the parties opposed to the
judgment had been given ample opportunity to do so on grounds allowed under Rule 39,
Section 50 of the Rules of Court (now Rule 39, Section 48, 1997 Rules of Civil
Procedure), to wit:
SEC. 50. Effect of foreign judgments. - The effect of a judgment of a tribunal of a foreign
country, having jurisdiction to pronounce the judgment is as follows:
(a) In case of a judgment upon a specific thing, the judgment is conclusive upon the title
to the thing;
(b) In case of a judgment against a person, the judgment is presumptive evidence of a
right as between the parties and their successors in interest by a subsequent title; but
the judgment may be repelled by evidence of a want of jurisdiction, want of notice to the
party, collusion, fraud, or clear mistake of law or fact.
It is essential that there should be an opportunity to challenge the foreign judgment,
in order for the court in this jurisdiction to properly determine its efficacy. In this
jurisdiction, our Rules of Court clearly provide that with respect to actions in personam,
as distinguished from actions in rem, a foreign judgment merely constitutes prima
facie evidence of the justness of the claim of a party and, as such, is subject to proof to
the contrary.
[24]

In the present case, it cannot be said that private respondent was given the
opportunity to challenge the judgment of the German court so that there is basis for
declaring that judgment as res judicata with regard to the rights of petitioner to have
parental custody of their two children. The proceedings in the German court were
summary. As to what was the extent of private respondents participation in the
proceedings in the German court, the records remain unclear. The divorce decree itself
states that neither has she commented on the proceedings
[25]
nor has she given her
opinion to the Social Services Office.
[26]
Unlike petitioner who was represented by two
lawyers, private respondent had no counsel to assist her in said proceedings.
[27]
More
importantly, the divorce judgment was issued to petitioner by virtue of the German Civil
Code provision to the effect that when a couple lived separately for three years, the
marriage is deemed irrefutably dissolved. The decree did not touch on the issue as to
who the offending spouse was. Absent any finding that private respondent is unfit to
obtain custody of the children, the trial court was correct in setting the issue for hearing
to determine the issue of parental custody, care, support and education mindful of the
best interests of the children. This is in consonance with the provision in the Child and
Youth Welfare Code that the childs welfare is always the paramount consideration in all
questions concerning his care and custody.
[28]

On the matter of property relations, petitioner asserts that public respondent
exceeded the bounds of her jurisdiction when she claimed cognizance of the issue
concerning property relations between petitioner and private respondent. Private
respondent herself has admitted in Par. 14 of her petition for declaration of nullity of
marriage dated August 26, 1996 filed with the RTC of Makati, subject of this case, that:
[p]etitioner and respondent have not acquired any conjugal or community property nor
have they incurred any debts during their marriage.
[29]
Herein petitioner did not contest
this averment. Basic is the rule that a court shall grant relief warranted by the
allegations and the proof.
[30]
Given the factual admission by the parties in their pleadings
that there is no property to be accounted for, respondent judge has no basis to assert
jurisdiction in this case to resolve a matter no longer deemed in controversy.
In sum, we find that respondent judge may proceed to determine the issue
regarding the custody of the two children born of the union between petitioner and
private respondent. Private respondent erred, however, in claiming cognizance to settle
the matter of property relations of the parties, which is not at issue.
WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149, issued
on September 30, 1999 and March 31, 2000 are AFFIRMED with MODIFICATION. We
hereby declare that the trial court has jurisdiction over the issue between the parties as
to who has parental custody, including the care, support and education of the children,
namely Carolynne and Alexandra Kristine Roehr. Let the records of this case be
remanded promptly to the trial court for continuation of appropriate proceedings. No
pronouncement as to costs.
SO ORDERED.
Bellosillo, (Chairman), and Callejo, Sr., JJ., concur.
Austria-Martinez, J., on official leave.


DIGEST
Facts:
Petitioner Wolfgang, a German citizen and resident of Germany, married
private respondent Carmen, a Filipina, on 11 December 1980 in Hamburg, Gemany.
Early 1981, the marriage was ratified in Tayasan, Negros Oriental. They had two
daughters, Carolyne and Alexandria Kristine.
Private respondent filed a petition for the declaration of nullity of marriage
before the Regional Trial Court of Makati on 28 August 1996. Petitioner filed a motion to
dismiss but was denied by trial court. A motion for reconsideration was filed by private
respondent but was again denied by the trial court.
In 1997, petitioner obtained a decree of divorce from the Court of First
Instance of Hamburg-Blankenese and granting the custody of the children to the father.
It was June 14, 1999 when public respondent issued an order granting the
petitioners motion to dismiss, but was partially set aside on September 1999 for the
purpose of tackling issues regarding property relations of the spouses as well as support
and custody of their children. Petitioner assailed for the trial courts lack of jurisdiction,
and grave abuse of discretion on the part of the respondent judge.

Issue:
Whether or not the Philippine courts can determine the legal effects of a
decree of divorce from a foreign country.

Held:
Yes. Our courts can determine the legal effects of a divorce obtained from a
foreign country such as those concerning with support and custody of the children.
In this case, the decree did not touch as to who the offending spouse was. The
trial court was correct in setting the issue for hearing to determine the issue of parental
custody, care, support and education of the best interests of the children. After all, the
childs welfare is always the paramount consideration in all questions concerning his
care and custody.
WHEREFORE, the orders of the Regional Trial Court of Makati, Branch 149,
issued on September 30, 1999 and March 31, 2000 are AFFIRMED with
MODIFICATION. We hereby declare that the trial court has jurisdiction over the issue
between the parties as to who has parental custody, including the care, support and
education of the children, namely Carolyne and Alexandra Kristine Roehr. Let the
records of this case be remanded promptly to the trial court for continuation of
appropriate proceedings. No pronouncement as to costs.
SO ORDERED.

Garcia vs. Recio (G.R. No. 138322, 2 October 2002)
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A.
RECIO, respondent.
D E C I S I O N
PANGANIBAN, J .:
A divorce obtained abroad by an alien may be recognized in our jurisdiction,
provided such decree is valid according to the national law of the foreigner. However,
the divorce decree and the governing personal law of the alien spouse who obtained the
divorce must be proven. Our courts do not take judicial notice of foreign laws and
judgments; hence, like any other facts, both the divorce decree and the national law of
the alien must be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to
nullify the January 7, 1999 Decision
[1]
and the March 24, 1999 Order
[2]
of the Regional
Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The assailed
Decision disposed as follows:
WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick
A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both
parties can now remarry under existing and applicable laws to any and/or both parties.
[3]

The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen,
in Malabon, Rizal, on March 1, 1987.
[4]
They lived together as husband and wife in
Australia. On May 18, 1989,
[5]
a decree of divorce, purportedly dissolving the marriage,
was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a
Certificate of Australian Citizenship issued by the Australian government.
[6]
Petitioner --
a Filipina -- and respondent were married on January 12, 1994 in Our Lady of Perpetual
Help Church in Cabanatuan City.
[7]
In their application for a marriage license, respondent
was declared as single and Filipino.
[8]

Starting October 22, 1995, petitioner and respondent lived separately without prior
judicial dissolution of their marriage. While the two were still in Australia, their conjugal
assets were divided on May 16, 1996, in accordance with their Statutory Declarations
secured in Australia.
[9]

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of
Marriage
[10]
in the court a quo, on the ground of bigamy -- respondent allegedly had a
prior subsisting marriage at the time he married her on January 12, 1994. She claimed
that she learned of respondents marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to
petitioner his prior marriage and its subsequent dissolution.
[11]
He contended that his first
marriage to an Australian citizen had been validly dissolved by a divorce decree
obtained in Australia in 1989;
[12]
thus, he was legally capacitated to marry petitioner in
1994.
On July 7, 1998 -- or about five years after the couples wedding and while the suit
for the declaration of nullity was pending -- respondent was able to secure a divorce
decree from a family court in Sydney, Australia because the marriage ha[d] irretrievably
broken down.
[13]

Respondent prayed in his Answer that the Complaint be dismissed on the ground
that it stated no cause of action.
[14]
The Office of the Solicitor General agreed with
respondent.
[15]
The court marked and admitted the documentary evidence of both
parties.
[16]
After they submitted their respective memoranda, the case was submitted for
resolution.
[17]

Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the divorce issued
in Australia was valid and recognized in the Philippines. It deemed the marriage ended,
but not on the basis of any defect in an essential element of the marriage; that
is, respondents alleged lack of legal capacity to remarry. Rather, it based its Decision
on the divorce decree obtained by respondent. The Australian divorce had ended the
marriage; thus, there was no more marital union to nullify or annul.
Hence, this Petition.
[18]

Issues
Petitioner submits the following issues for our consideration:
1
The trial court gravely erred in finding that the divorce decree obtained in Australia by
the respondent ipso facto terminated his first marriage to Editha Samson thereby
capacitating him to contract a second marriage with the petitioner.
2
The failure of the respondent, who is now a naturalized Australian, to present a
certificate of legal capacity to marry constitutes absence of a substantial requisite
voiding the petitioners marriage to the respondent
3
The trial court seriously erred in the application of Art. 26 of the Family Code in this
case.
4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52
and 53 of the Family Code as the applicable provisions in this case.
5
The trial court gravely erred in pronouncing that the divorce decree obtained by the
respondent in Australia ipso facto capacitated the parties to remarry, without first
securing a recognition of the judgment granting the divorce decree before our courts.
[19]

The Petition raises five issues, but for purposes of this Decision, we shall
concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha
Samson was proven, and (2) whether respondent was proven to be legally capacitated
to marry petitioner. Because of our ruling on these two, there is no more necessity to
take up the rest.
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial courts recognition of the divorce between respondent and
Editha Samson. Citing Adong v. Cheong Seng Gee,
[20]
petitioner argues that the divorce
decree, like any other foreign judgment, may be given recognition in this jurisdiction only
upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the
alleged divorce decree itself. She adds that respondent miserably failed to establish
these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code,
marriages solemnized abroad are governed by the law of the place where they were
celebrated (the lex loci celebrationis). In effect, the Code requires the presentation of
the foreign law to show the conformity of the marriage in question to the legal
requirements of the place where the marriage was performed.
At the outset, we lay the following basic legal principles as the take-off points for our
discussion. Philippine law does not provide for absolute divorce; hence, our courts
cannot grant it.
[21]
A marriage between two Filipinos cannot be dissolved even by a
divorce obtained abroad, because of Articles 15
[22]
and 17
[23]
of the Civil Code.
[24]
In
mixed marriages involving a Filipino and a foreigner, Article 26
[25]
of the Family Code
allows the former to contract a subsequent marriage in case the divorce is validly
obtained abroad by the alien spouse capacitating him or her to remarry.
[26]
A divorce
obtained abroad by a couple, who are both aliens, may be recognized in the Philippines,
provided it is consistent with their respective national laws.
[27]

A comparison between marriage and divorce, as far as pleading and proof are
concerned, can be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided they are valid
according to their national law.
[28]
Therefore, before a foreign divorce decree can be
recognized by our courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it.
[29]
Presentation solely of the
divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must
first comply with the registration requirements under Articles 11, 13 and 52 of the Family
Code. These articles read as follows:
ART. 11. Where a marriage license is required, each of the contracting parties shall file
separately a sworn application for such license with the proper local civil registrar which
shall specify the following:
x x x x x x x x x
(5) If previously married, how, when and where the previous marriage was
dissolved or annulled;
x x x x x x x x x
ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to
ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth or baptismal certificate required
in the last preceding article, the death certificate of the deceased spouse or the judicial
decree of the absolute divorce, or the judicial decree of annulment or declaration of
nullity of his or her previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition
and distribution of the properties of the spouses, and the delivery of the childrens
presumptive legitimes shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect their persons.
Respondent, on the other hand, argues that the Australian divorce decree is a public
document -- a written official act of an Australian family court. Therefore, it requires no
further proof of its authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given
presumptive evidentiary value, the document must first be presented and admitted in
evidence.
[30]
A divorce obtained abroad is proven by the divorce decree itself. Indeed
the best evidence of a judgment is the judgment itself.
[31]
The decree purports to be a
written act or record of an act of an official body or tribunal of a foreign country.
[32]

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document
may be proven as a public or official record of a foreign country by either (1) an official
publication or (2) a copy thereof attested
[33]
by the officer having legal custody of the
document. If the record is not kept in the Philippines, such copy must be (a)
accompanied by a certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the record is kept and
(b) authenticated by the seal of his office.
[34]

The divorce decree between respondent and Editha Samson appears to be an
authentic one issued by an Australian family court.
[35]
However, appearance is not
sufficient; compliance with the aforementioned rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree of May 18, 1989 was
submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to
the fact that it had not been registered in the Local Civil Registry of Cabanatuan
City.
[36]
The trial court ruled that it was admissible, subject to petitioners
qualification.
[37]
Hence, it was admitted in evidence and accorded weight by the
judge. Indeed, petitioners failure to object properly rendered the divorce decree
admissible as a written act of the Family Court of Sydney, Australia.
[38]

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not
necessary; respondent was no longer bound by Philippine personal laws after he
acquired Australian citizenship in 1992.
[39]
Naturalization is the legal act of adopting an
alien and clothing him with the political and civil rights belonging to a
citizen.
[40]
Naturalized citizens, freed from the protective cloak of their former states, don
the attires of their adoptive countries. By becoming an Australian, respondent severed
his allegiance to the Philippines and the vinculum juris that had tied him to Philippine
personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon
petitioner, because she is the party challenging the validity of a foreign judgment. He
contends that petitioner was satisfied with the original of the divorce decree and was
cognizant of the marital laws of Australia, because she had lived and worked in that
country for quite a long time. Besides, the Australian divorce law is allegedly known by
Philippine courts; thus, judges may take judicial notice of foreign laws in the exercise of
sound discretion.
We are not persuaded. The burden of proof lies with the party who alleges the
existence of a fact or thing necessary in the prosecution or defense of an action.
[41]
In
civil cases, plaintiffs have the burden of proving the material allegations of the complaint
when those are denied by the answer; and defendants have the burden of proving the
material allegations in their answer when they introduce new matters.
[42]
Since the
divorce was a defense raised by respondent, the burden of proving the pertinent
Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of
foreign laws.
[43]
Like any other facts, they must be alleged and proved. Australian marital
laws are not among those matters that judges are supposed to know by reason of their
judicial function.
[44]
The power of judicial notice must be exercised with caution, and
every reasonable doubt upon the subject should be resolved in the negative.
Second Issue: Respondents Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent
was legally incapacitated to marry her in 1994. Hence, she concludes that their
marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in
evidence, adequately established his legal capacity to marry under Australian law.
Respondents contention is untenable. In its strict legal sense, divorce means the
legal dissolution of a lawful union for a cause arising after marriage. But divorces are of
different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and
(2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the
second suspends it and leaves the bond in full force.
[45]
There is no showing in the case
at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a conditional or
provisional judgment of divorce. It is in effect the same as a separation from bed and
board, although an absolute divorce may follow after the lapse of the prescribed period
during which no reconciliation is effected.
[46]

Even after the divorce becomes absolute, the court may under some foreign
statutes and practices, still restrict remarriage. Under some other jurisdictions,
remarriage may be limited by statute; thus, the guilty party in a divorce which was
granted on the ground of adultery may be prohibited from marrying again. The court
may allow a remarriage only after proof of good behavior.
[47]

On its face, the herein Australian divorce decree contains a restriction that reads:
1. A party to a marriage who marries again before this decree
becomes absolute (unless the other party has died) commits the offence of
bigamy.
[48]

This quotation bolsters our contention that the divorce obtained by respondent may
have been restricted. It did not absolutely establish his legal capacity to remarry
according to his national law. Hence, we find no basis for the ruling of the trial court,
which erroneously assumed that the Australian divorce ipso facto restored respondents
capacity to remarry despite the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a disputable
presumption or presumptive evidence as to his civil status based on Section 48, Rule
39
[49]
of the Rules of Court, for the simple reason that no proof has been presented on
the legal effects of the divorce decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the
Family Code was not submitted together with the application for a marriage
license. According to her, its absence is proof that respondent did not have legal
capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the
national law of the party concerned. The certificate mentioned in Article 21 of the Family
Code would have been sufficient to establish the legal capacity of respondent, had he
duly presented it in court. A duly authenticated and admitted certificate is prima facie
evidence of legal capacity to marry on the part of the alien applicant for a marriage
license.
[50]

As it is, however, there is absolutely no evidence that proves respondents legal
capacity to marry petitioner. A review of the records before this Court shows that only
the following exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit
A Complaint;
[51]
(b) Exhibit B Certificate of Marriage Between Rederick A. Recio
(Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan
City, Nueva Ecija;
[52]
(c) Exhibit C Certificate of Marriage Between Rederick A. Recio
(Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro
Manila;
[53]
(d) Exhibit D Office of the City Registrar of Cabanatuan City Certification
that no information of annulment between Rederick A. Recio and Editha D. Samson was
in its records;
[54]
and (e) Exhibit E Certificate of Australian Citizenship of Rederick A.
Recio;
[55]
(2) for respondent: (a) Exhibit 1 -- Amended Answer;
[56]
(b) Exhibit 2
Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of
Australia;
[57]
(c) Exhibit 3 Certificate of Australian Citizenship of Rederick A.
Recio;
[58]
(d) Exhibit 4 Decree Nisi of Dissolution of Marriage in the Family Court of
Australia Certificate;
[59]
and Exhibit 5 -- Statutory Declaration of the Legal Separation
Between Rederick A. Recio and Grace J. Garcia Recio since October 22, 1995.
[60]

Based on the above records, we cannot conclude that respondent, who was then a
naturalized Australian citizen, was legally capacitated to marry petitioner on January 12,
1994. We agree with petitioners contention that the court a quo erred in finding that the
divorce decree ipso facto clothed respondent with the legal capacity to remarry without
requiring him to adduce sufficient evidence to show the Australian personal law
governing his status; or at the very least, to prove his legal capacity to contract the
second marriage.
Neither can we grant petitioners prayer to declare her marriage to respondent null
and void on the ground of bigamy. After all, it may turn out that under Australian law, he
was really capacitated to marry petitioner as a direct result of the divorce
decree. Hence, we believe that the most judicious course is to remand this case to the
trial court to receive evidence, if any, which show petitioners legal capacity to marry
petitioner. Failing in that, then the court a quo may declare a nullity of the parties
marriage on the ground of bigamy, there being already in evidence two existing marriage
certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila
dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice,
we REMAND the case to the court a quo for the purpose of receiving evidence which
conclusively show respondents legal capacity to marry petitioner; and failing in that, of
declaring the parties marriage void on the ground of bigamy, as above discussed. No
costs.
SO ORDERED.
Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.


DIGEST
FACTS:

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian Citizen, in
Malabon, Rizal on March 1, 1987. They lived as husband and wife in Australia.
However, an Australian family court issued purportedly a decree of divorce, dissolving
the marriage of Rederick and Editha on May 18, 1989.

On January 12, 1994, Rederick married Grace J. Garcia where it was solemnized at Our
lady of Perpetual Help Church, Cabanatuan City. Since October 22, 1995, the couple
lived separately without prior judicial dissolution of their marriage. As a matter of fact,
while they were still in Australia, their conjugal assets were divided on May 16, 1996, in
accordance with their Statutory Declarations secured in Australia.

Grace filed a Complaint for Declaration of Nullity of Marriage on the ground of bigamy on
March 3, 1998, claiming that she learned only in November 1997, Redericks marriage
with Editha Samson.


ISSUE: Whether the decree of divorce submitted by Rederick Recio is admissible as
evidence to prove his legal capacity to marry petitioner and absolved him of bigamy.


HELD:

The nullity of Redericks marriage with Editha as shown by the divorce decree issued
was valid and recognized in the Philippines since the respondent is a naturalized
Australian. However, there is absolutely no evidence that proves respondents legal
capacity to marry petitioner though the former presented a divorce decree. The said
decree, being a foreign document was inadmissible to court as evidence primarily
because it was not authenticated by the consul/ embassy of the country where it will be
used.

Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public
or official record of a foreign country by either:
(1) an official publication or
(2) a copy thereof attested by the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be:
(a) accompanied by a certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the record is kept and
(b) authenticated by the seal of his office.
Thus, the Supreme Court remands the case to the Regional Trial Court of Cabanatuan
City to receive or trial evidence that will conclusively prove respondents legal capacity to
marry petitioner and thus free him on the ground of bigamy.

Human Relations (Articles 19-36) 3 Hours

Article 19-22
Nikko Hotel Manila vs. Reyes (G.R. No. 154259, 28 February 2005)
NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners,
vs.
ROBERTO REYES, a.k.a. "AMAY BISAYA," respondent.
D E C I S I O N
CHICO-NAZARIO, J .:
In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden (Hotel
Nikko)
1
and Ruby Lim assail the Decision
2
of the Court of Appeals dated 26 November
2001 reversing the Decision
3
of the Regional Trial Court (RTC) of Quezon City, Branch
104, as well as the Resolution
4
of the Court of Appeals dated 09 July 2002 which denied
petitioners motion for reconsideration.
The cause of action before the trial court was one for damages brought under the human
relations provisions of the New Civil Code. Plaintiff thereat (respondent herein) Roberto
Reyes, more popularly known by the screen name "Amay Bisaya," alleged that at
around 6:00 oclock in the evening of 13 October 1994, while he was having coffee at
the lobby of Hotel Nikko,
5
he was spotted by his friend of several years, Dr. Violeta Filart,
who then approached him.
6
Mrs. Filart invited him to join her in a party at the hotels
penthouse in celebration of the natal day of the hotels manager, Mr. Masakazu
Tsuruoka.
7
Mr. Reyes asked if she could vouch for him for which she replied: "of
course."
8
Mr. Reyes then went up with the party of Dr. Filart carrying the basket of fruits
which was the latters present for the celebrant.
9
At the penthouse, they first had their
picture taken with the celebrant after which Mr. Reyes sat with the party of Dr.
Filart.
10
After a couple of hours, when the buffet dinner was ready, Mr. Reyes lined-up at
the buffet table but, to his great shock, shame and embarrassment, he was stopped by
petitioner herein, Ruby Lim, who claimed to speak for Hotel Nikko as Executive
Secretary thereof.
11
In a loud voice and within the presence and hearing of the other
guests who were making a queue at the buffet table, Ruby Lim told him to leave the
party ("huwag ka nang kumain, hindi ka imbitado, bumaba ka na lang").
12
Mr. Reyes
tried to explain that he was invited by Dr. Filart.
13
Dr. Filart, who was within hearing
distance, however, completely ignored him thus adding to his shame and
humiliation.
14
Not long after, while he was still recovering from the traumatic experience,
a Makati policeman approached and asked him to step out of the hotel.
15
Like a common
criminal, he was escorted out of the party by the policeman.
16
Claiming damages, Mr.
Reyes asked for One Million Pesos actual damages, One Million Pesos moral and/or
exemplary damages and Two Hundred Thousand Pesos attorneys fees.
17

Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party but not under
the ignominious circumstance painted by the latter. Ms. Lim narrated that she was the
Hotels Executive Secretary for the past twenty (20) years.
18
One of her functions
included organizing the birthday party of the hotels former General Manager, Mr.
Tsuruoka.
19
The year 1994 was no different. For Mr. Tsuruokas party, Ms. Lim
generated an exclusive guest list and extended invitations accordingly.
20
The guest list
was limited to approximately sixty (60) of Mr. Tsuruokas closest friends and some hotel
employees and that Mr. Reyes was not one of those invited.
21
At the party, Ms. Lim first
noticed Mr. Reyes at the bar counter ordering a drink.
22
Mindful of Mr. Tsuruokas wishes
to keep the party intimate, Ms. Lim approached Mr. Boy Miller, the "captain waiter," to
inquire as to the presence of Mr. Reyes who was not invited.
23
Mr. Miller replied that he
saw Mr. Reyes with the group of Dr. Filart.
24
As Dr. Filart was engaged in conversation
with another guest and as Ms. Lim did not want to interrupt, she inquired instead from
the sister of Dr. Filart, Ms. Zenaida Fruto, who told her that Dr. Filart did not invite Mr.
Reyes.
25
Ms. Lim then requested Ms. Fruto to tell Mr. Reyes to leave the party as he
was not invited.
26
Mr. Reyes, however, lingered prompting Ms. Lim to inquire from Ms.
Fruto who said that Mr. Reyes did not want to leave.
27
When Ms. Lim turned around, she
saw Mr. Reyes conversing with a Captain Batung whom she later
approached.
28
Believing that Captain Batung and Mr. Reyes knew each other, Ms. Lim
requested from him the same favor from Ms. Fruto, i.e., for Captain Batung to tell Mr.
Reyes to leave the party as he was not invited.
29
Still, Mr. Reyes lingered. When Ms. Lim
spotted Mr. Reyes by the buffet table, she decided to speak to him herself as there were
no other guests in the immediate vicinity.
30
However, as Mr. Reyes was already helping
himself to the food, she decided to wait.
31
When Mr. Reyes went to a corner and started
to eat, Ms. Lim approached him and said: "alam ninyo, hindo ho kayo dapat nandito.
Pero total nakakuha na ho kayo ng pagkain, ubusin na lang ninyo at pagkatapos kung
pwede lang po umalis na kayo."
32
She then turned around trusting that Mr. Reyes would
show enough decency to leave, but to her surprise, he began screaming and making a
big scene, and even threatened to dump food on her.
33
1awphi1.nt
Dr. Violeta Filart, the third defendant in the complaint before the lower court, also gave
her version of the story to the effect that she never invited Mr. Reyes to the
party.
34
According to her, it was Mr. Reyes who volunteered to carry the basket of fruits
intended for the celebrant as he was likewise going to take the elevator, not to the
penthouse but to Altitude 49.
35
When they reached the penthouse, she reminded Mr.
Reyes to go down as he was not properly dressed and was not invited.
36
All the while,
she thought that Mr. Reyes already left the place, but she later saw him at the bar talking
to Col. Batung.
37
Then there was a commotion and she saw Mr. Reyes shouting.
38
She
ignored Mr. Reyes.
39
She was embarrassed and did not want the celebrant to think that
she invited him.
40

After trial on the merits, the court a quo dismissed the complaint,
41
giving more credence
to the testimony of Ms. Lim that she was discreet in asking Mr. Reyes to leave the party.
The trial court likewise ratiocinated that Mr. Reyes assumed the risk of being thrown out
of the party as he was uninvited:
Plaintiff had no business being at the party because he was not a guest of Mr. Tsuruoka,
the birthday celebrant. He assumed the risk of being asked to leave for attending a party
to which he was not invited by the host. Damages are pecuniary consequences which
the law imposes for the breach of some duty or the violation of some right. Thus, no
recovery can be had against defendants Nikko Hotel and Ruby Lim because he himself
was at fault (Garciano v. Court of Appeals, 212 SCRA 436). He knew that it was not the
party of defendant Violeta Filart even if she allowed him to join her and took
responsibility for his attendance at the party. His action against defendants Nikko Hotel
and Ruby Lim must therefore fail.
42

On appeal, the Court of Appeals reversed the ruling of the trial court as it found more
commanding of belief the testimony of Mr. Reyes that Ms. Lim ordered him to leave in a
loud voice within hearing distance of several guests:
In putting appellant in a very embarrassing situation, telling him that he should not finish
his food and to leave the place within the hearing distance of other guests is an act
which is contrary to morals, good customs . . ., for which appellees should compensate
the appellant for the damage suffered by the latter as a consequence therefore (Art. 21,
New Civil Code). The liability arises from the acts which are in themselves legal or not
prohibited, but contrary to morals or good customs. Conversely, even in the exercise of a
formal right, [one] cannot with impunity intentionally cause damage to another in a
manner contrary to morals or good customs.
43

The Court of Appeals likewise ruled that the actuation of Ms. Lim in approaching several
people to inquire into the presence of Mr. Reyes exposed the latter to ridicule and was
uncalled for as she should have approached Dr. Filart first and both of them should have
talked to Mr. Reyes in private:
Said acts of appellee Lim are uncalled for. What should have been done by appellee Lim
was to approach appellee Mrs. Filart and together they should have told appellant Reyes
in private that the latter should leave the party as the celebrant only wanted close friends
around. It is necessary that Mrs. Filart be the one to approach appellant because it was
she who invited appellant in that occasion. Were it not for Mrs. Filarts invitation,
appellant could not have suffered such humiliation. For that, appellee Filart is equally
liable.
. . .
The acts of [appellee] Lim are causes of action which are predicated upon mere
rudeness or lack of consideration of one person, which calls not only protection of
human dignity but respect of such dignity. Under Article 20 of the Civil Code, every
person who violates this duty becomes liable for damages, especially if said acts were
attended by malice or bad faith. Bad faith does not simply connote bad judgment or
simple negligence. It imports a dishonest purpose or some moral obliquity and conscious
doing of a wrong, a breach of a known duty to some motive or interest or ill-will that
partakes of the nature of fraud (Cojuangco, Jr. v. CA, et al., 309 SCRA 603).
44

Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and Dr.
Violeta Filart the solidary obligation to pay Mr. Reyes (1) exemplary damages in the
amount of Two Hundred Thousand Pesos (P200,000); (2) moral damages in the amount
of Two Hundred Thousand Pesos (P200,000); and (3) attorneys fees in the amount of
Ten Thousand Pesos (P10,000).
45
On motion for reconsideration, the Court of Appeals
affirmed its earlier decision as the argument raised in the motion had "been amply
discussed and passed upon in the decision sought to be reconsidered."
46

Thus, the instant petition for review. Hotel Nikko and Ruby Lim contend that the Court of
Appeals seriously erred in
I.
NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING
THAT BY ITS OWN FINDINGS, AMAY BISAYA WAS A GATE-CRASHER
II.
HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE
WITH DR. FILART FOR DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA
"COULD NOT HAVE SUFFERED SUCH HUMILIATION," "WERE IT NOT FOR DR.
FILARTS INVITATION"
III.
DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS
REGARDS THE CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE HUMILIATION
OF AMAY BISAYA
IV.
IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF
HIS POVERTY, CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO
EVIDENCE WAS PRESENTED IN THIS REGARD
V.
IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE
APPELLANTS BRIEF, THEREBY DEPARTING FROM THE ACCEPTED AND USUAL
COURSE OF JUDICIAL PROCEEDINGS
Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti non fit
injuria, they cannot be made liable for damages as respondent Reyes assumed the risk
of being asked to leave (and being embarrassed and humiliated in the process) as he
was a "gate-crasher."
The doctrine of volenti non fit injuria ("to which a person assents is not esteemed in law
as injury"
47
) refers to self-inflicted injury
48
or to the consent to injury
49
which precludes
the recovery of damages by one who has knowingly and voluntarily exposed himself to
danger, even if he is not negligent in doing so.
50
As formulated by petitioners, however,
this doctrine does not find application to the case at bar because even if respondent
Reyes assumed the risk of being asked to leave the party, petitioners, under Articles 19
and 21 of the New Civil Code, were still under obligation to treat him fairly in order not to
expose him to unnecessary ridicule and shame.
Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking Roberto
Reyes, a.k.a. "Amay Bisaya," to leave the party where he was not invited by the
celebrant thereof thereby becoming liable under Articles 19 and 21 of the Civil Code.
Parenthetically, and if Ruby Lim were so liable, whether or not Hotel Nikko, as her
employer, is solidarily liable with her.
As the trial court and the appellate court reached divergent and irreconcilable
conclusions concerning the same facts and evidence of the case, this Court is left
without choice but to use its latent power to review such findings of facts. Indeed, the
general rule is that we are not a trier of facts as our jurisdiction is limited to reviewing
and revising errors of law.
51
One of the exceptions to this general rule, however, obtains
herein as the findings of the Court of Appeals are contrary to those of the trial
court.
52
The lower court ruled that Ms. Lim did not abuse her right to ask Mr. Reyes to
leave the party as she talked to him politely and discreetly. The appellate court, on the
other hand, held that Ms. Lim is liable for damages as she needlessly embarrassed Mr.
Reyes by telling him not to finish his food and to leave the place within hearing distance
of the other guests. Both courts, however, were in agreement that it was Dr. Filarts
invitation that brought Mr. Reyes to the party.
The consequential question then is: Which version is credible?
From an in depth review of the evidence, we find more credible the lower courts findings
of fact.
First, let us put things in the proper perspective.
We are dealing with a formal party in a posh, five-star hotel,
53
for-invitation-only, thrown
for the hotels former Manager, a Japanese national. Then came a person who was
clearly uninvited (by the celebrant)
54
and who could not just disappear into the crowd as
his face is known by many, being an actor. While he was already spotted by the
organizer of the party, Ms. Lim, the very person who generated the guest list, it did not
yet appear that the celebrant was aware of his presence. Ms. Lim, mindful of the
celebrants instruction to keep the party intimate, would naturally want to get rid of the
"gate-crasher" in the most hush-hush manner in order not to call attention to a glitch in
an otherwise seamless affair and, in the process, risk the displeasure of the celebrant,
her former boss. To unnecessarily call attention to the presence of Mr. Reyes would
certainly reflect badly on Ms. Lims ability to follow the instructions of the celebrant to
invite only his close friends and some of the hotels personnel. Mr. Reyes, upon whom
the burden rests to prove that indeed Ms. Lim loudly and rudely ordered him to leave,
could not offer any satisfactory explanation why Ms. Lim would do that and risk ruining a
formal and intimate affair. On the contrary, Mr. Reyes, on cross-examination, had
unwittingly sealed his fate by admitting that when Ms. Lim talked to him, she was very
close. Close enough for him to kiss:
Q: And, Mr. Reyes, you testified that Miss Lim approached you while you were at
the buffet table? How close was she when she approached you?
A: Very close because we nearly kissed each other.
Q: And yet, she shouted for you to go down? She was that close and she
shouted?
A: Yes. She said, "wag kang kumain, hindi ka imbitado dito, bumaba ka na lang."
Q: So, you are testifying that she did this in a loud voice?
. . .
A: Yes. If it is not loud, it will not be heard by many.
55

In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr. Reyes and
expose him to ridicule and shame, it is highly unlikely that she would shout at him from a
very close distance. Ms. Lim having been in the hotel business for twenty years wherein
being polite and discreet are virtues to be emulated, the testimony of Mr. Reyes that she
acted to the contrary does not inspire belief and is indeed incredible. Thus, the lower
court was correct in observing that
Considering the closeness of defendant Lim to plaintiff when the request for the latter to
leave the party was made such that they nearly kissed each other, the request was
meant to be heard by him only and there could have been no intention on her part to
cause embarrassment to him. It was plaintiffs reaction to the request that must have
made the other guests aware of what transpired between them. . .
Had plaintiff simply left the party as requested, there was no need for the police to take
him out.
56

Moreover, another problem with Mr. Reyess version of the story is that it is unsupported.
It is a basic rule in civil cases that he who alleges proves. Mr. Reyes, however, had not
presented any witness to back his story up. All his witnesses Danny Rodinas, Pepito
Guerrero and Alexander Silva - proved only that it was Dr. Filart who invited him to the
party.
57

Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to which he
was not invited, cannot be made liable to pay for damages under Articles 19 and 21 of
the Civil Code. Necessarily, neither can her employer, Hotel Nikko, be held liable as its
liability springs from that of its employee.
58

Article 19, known to contain what is commonly referred to as the principle of abuse of
rights,
59
is not a panacea for all human hurts and social grievances. Article 19 states:
Art. 19. Every person must, in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good
faith.1awphi1.nt
Elsewhere, we explained that when "a right is exercised in a manner which does not
conform with the norms enshrined in Article 19 and results in damage to another, a legal
wrong is thereby committed for which the wrongdoer must be responsible."
60
The object
of this article, therefore, is to set certain standards which must be observed not only in
the exercise of ones rights but also in the performance of ones duties.
61
These
standards are the following: act with justice, give everyone his due and observe honesty
and good faith.
62
Its antithesis, necessarily, is any act evincing bad faith or intent to
injure. Its elements are the following: (1) There is a legal right or duty; (2) which is
exercised in bad faith; (3) for the sole intent of prejudicing or injuring another.
63
When
Article 19 is violated, an action for damages is proper under Articles 20 or 21 of the Civil
Code. Article 20 pertains to damages arising from a violation of law
64
which does not
obtain herein as Ms. Lim was perfectly within her right to ask Mr. Reyes to leave. Article
21, on the other hand, states:
Art. 21. Any person who willfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
Article 21
65
refers to acts contra bonus mores and has the following elements: (1) There
is an act which is legal; (2) but which is contrary to morals, good custom, public order, or
public policy; and (3) it is done with intent to injure.
66

A common theme runs through Articles 19 and 21,
67
and that is, the act complained of
must be intentional.
68

As applied to herein case and as earlier discussed, Mr. Reyes has not shown that Ms.
Lim was driven by animosity against him. These two people did not know each other
personally before the evening of 13 October 1994, thus, Mr. Reyes had nothing to offer
for an explanation for Ms. Lims alleged abusive conduct except the statement that Ms.
Lim, being "single at 44 years old," had a "very strong bias and prejudice against (Mr.
Reyes) possibly influenced by her associates in her work at the hotel with foreign
businessmen."
69
The lameness of this argument need not be belabored. Suffice it to say
that a complaint based on Articles 19 and 21 of the Civil Code must necessarily fail if it
has nothing to recommend it but innuendos and conjectures.
Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was likewise
acceptable and humane under the circumstances. In this regard, we cannot put our
imprimatur on the appellate courts declaration that Ms. Lims act of personally
approaching Mr. Reyes (without first verifying from Mrs. Filart if indeed she invited Mr.
Reyes) gave rise to a cause of action "predicated upon mere rudeness or lack of
consideration of one person, which calls not only protection of human dignity but respect
of such dignity."
70
Without proof of any ill-motive on her part, Ms. Lims act of by-passing
Mrs. Filart cannot amount to abusive conduct especially because she did inquire from
Mrs. Filarts companion who told her that Mrs. Filart did not invite Mr. Reyes.
71
If at all,
Ms. Lim is guilty only of bad judgment which, if done with good intentions, cannot
amount to bad faith.
Not being liable for both actual and moral damages, neither can petitioners Lim and
Hotel Nikko be made answerable for exemplary damages
72
especially for the reason
stated by the Court of Appeals. The Court of Appeals held
Not a few of the rich people treat the poor with contempt because of the latters lowly
station in life.l^vvphi1.net This has to be limited somewhere. In a democracy, such a limit
must be established. Social equality is not sought by the legal provisions under
consideration, but due regard for decency and propriety (Code Commission, pp. 33-34).
And by way of example or correction for public good and to avert further commission of
such acts, exemplary damages should be imposed upon appellees.
73

The fundamental fallacy in the above-quoted findings is that it runs counter with the very
facts of the case and the evidence on hand.l^vvphi1.net It is not disputed that at the time
of the incident in question, Mr. Reyes was "an actor of long standing; a co-host of a radio
program over DZRH; a Board Member of the Music Singer Composer (MUSICO) chaired
by popular singer Imelda Papin; a showbiz Coordinator of Citizen Crime Watch; and
1992 official candidate of the KBL Party for Governor of Bohol; and an awardee of a
number of humanitarian organizations of the Philippines."
74
During his direct examination
on rebuttal, Mr. Reyes stressed that he had income
75
and nowhere did he say otherwise.
On the other hand, the records are bereft of any information as to the social and
economic standing of petitioner Ruby Lim. Consequently, the conclusion reached by the
appellate court cannot withstand scrutiny as it is without basis.
All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage which Mr.
Reyes might have suffered through Ms. Lims exercise of a legitimate right done within
the bounds of propriety and good faith, must be his to bear alone.
WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko Hotel
Manila Garden is GRANTED. The Decision of the Court of Appeals dated 26 November
2001 and its Resolution dated 09 July 2002 are hereby REVERSED and SET ASIDE.
The Decision of the Regional Trial Court of Quezon City, Branch 104, dated 26 April
1999 is hereby AFFIRMED. No costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

DIGEST
Facts:
This is a petition for review on certiorari regarding the reversing decision
of the Court of Appeals in the decision of the Trial Court and thus, making the petitioners
liable for damages through the abusive conduct of petitioner Lim, imposing upon them
P200,000 as exemplary damages, P200,000 as moral damages, and P10,000 as
attorneys fees.
Plaintiff Roberto Reyes (Amay Bisaya) was having coffee at the Nikko
Hotel lobby on October 13, 1994 at around six in the morning when Dr. Violeta Filart, a
long-time friend, approached him and invited him to a party at the penthouse where the
hotels former managers birthday was being celebrated. He consented and carried the
latters present. At the party, when he was helping himself at the buffet table, Ruby Lim,
one of the petitioners, approached him and asked him to leave in a loud voice enough to
be heard by those around the buffet table. Then, a Makati policeman accompanied the
embarrassed Amay Bisaya in leaving the penthouse.
Ruby Lim accepted the fact that she asked Mr. Reyes to leave but not in
the manner he claimed. She said she politely asked Mr. Reyes to finish his food and
leave the party as the celebrant wants the party to be intimate, and that he was not
invited. On the other hand, Dr. Filart denied Amay Bisayas claim that she invited him to
the party.

Issue:
Whether or not petitioner Lims conduct was abusive enough to make the
petitioners liable for damages caused to plaintiff.

Held:
No. The Supreme Court ruled that any damage which Mr. Reyes might
have suffered through Ms. Lims exercise of a legitimate right done within the bounds of
propriety and good faith, must be his to bear alone.
The plaintiff failed in proving the ill-motive of the petitioners. It was from
his confession that when Ms. Lim approached him, they were very close that they nearly
kissed each other. Considering the closeness of defendant Lim to plaintiff when she
requested the latter to leave the party, it is apparent that the request was meant to be
heard by him only and there could have been no intention on her part to cause him
embarrassment. It was plaintiffs reaction to the request that must have made the other
guests aware of what transpired between them. Had plaintiff simply left the party as
requested, there was no need for the police to take him out. Therefore, we find the
petitioners not guilty of violating Articles 19 and 21 of the Civil Code.
WHEREFORE, premises considered, the petition filed by Ruby Lim and
Nikko Hotel Manila Garden is GRANTED. The Decision of the Court of Appeals dated 26
November 2001 and its Resolution dated 09 July 2002 are hereby REVERSED and SET
ASIDE. The Decision of the Regional Trial Court of Quezon City, Branch 104, dated 26
April 1999 is hereby AFFIRMED. No costs.
SO ORDERED.


Sps. Quisumbing vs. MERALCO (G.R. No. 142943, 3 April 2002)
Spouses ANTONIO and LORNA QUISUMBING, petitioners,
vs.
MANILA ELECTRIC COMPANY (MERALCO), respondent.
PANGANIBAN, J .:
Under the law, the Manila Electric Company (Meralco) may immediately disconnect
electric service on the ground of alleged meter tampering, but only if the discovery of the
cause is personally witnessed and attested to by an officer of the law or by a duly
authorized representative of the Energy Regulatory Board.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the
February 1, 2000 Decision
1
and the April 10, 2000 Resolution
2
of the Court of Appeals
(CA) in CA-GR SP No. 49022. The decretal portion of the said Decision reads as
follows:
"WHEREFORE, the challenged decision in Civil Case No. Q-95-23219 is
hereby SET ASIDE and the complaint against defendant-appellant MERALCO is
hereby DISMISSED. Plaintiffs-appellees are herebyORDERED to pay defendant-
appellant MERALCO the differential billing of P193,332.00 representing the value
of used but unregistered electrical consumption."
3

The assailed Resolution denied petitioner's Motion for Reconsideration.
The Facts
The facts of the case are summarized by the Court of Appeals in this wise:
"Defendant-appellant Manila Electric Company (MERALCO) is a private
corporation, authorized by law to charge all persons, including the government,
for the consumption of electric power at rates duly authorized and approved by
the Board of Energy (now the Energy Regulatory Board).
"Plaintiffs-appellees Spouses Antonio and Lorna Quisumbing are owners of a
house and lot located at No. 94 Greenmeadows Avenue, Quezon City, which
they bought on April 7, 1994 from Ms. Carmina Serapio Santos. They alleged to
be business entrepreneurs engaged in the export of furnitures under the
business name 'Loran Industries' and recipient of the 1993 Agora Award and
1994 Golden Shell Award. Mrs. Quisumbing is a member of the Innerwheel Club
while Mr. Quisumbing is a member of the Rotary Club, Chairman of Cebu
Chamber of Commerce, and Director of Chamber of Furniture.
"On March 3, 1995 at around 9:00 a.m., defendant-appellant's inspectors headed
by Emmanuel C. Orlino were assigned to conduct a routine-on-the-spot
inspection of all single phase meters at Greenmeadows Avenue. House no. 94 of
Block 8, Lot 19 Greenmeadows Avenue owned by plaintiffs-appellees was
inspected after observing a standard operating procedure of asking permission
from plaintiffs-appellees, through their secretary which was granted. The
secretary witnessed the inspection. After the inspection, defendant-appellant's
inspectors discovered that the terminal seal of the meter was missing; the meter
cover seal was deformed; the meter dials of the meter was mis-aligned and there
were scratches on the meter base plate. Defendant-appellant's inspectors
relayed the matter to plaintiffs-appellees' secretary, who in turn relayed the same
to plaintiff-appellee, Lorna Quisumbing, who was outraged of the result of the
inspection and denied liability as to the tampering of the meter. Plaintiffs-
appellees were advised by defendant-appellant's inspectors that they had to
detach the meter and bring it to their laboratory for verification/confirmation of
their findings. In the event the meter turned out to be tampered, defendant-
appellant had to temporarily disconnect the electric services of plaintiffs-
appellees. The laboratory testing conducted on the meter has the following
findings to wit:
'1. Terminal seal was missing.
'2. Lead cover seals ('90 ERB 1-Meralco 21) were tampered by forcibly
pulling out from the sealing wire.
'3. The 1000th, 100th and 10th dial pointers of the register were found out
of alignment and with circular scratches at the face of the register which
indicates that the meter had been opened to manipulate the said dial
pointers and set manually to the desired reading. In addition to this, the
meter terminal blades were found full of scratches.'
"After an hour, defendant-appellant's head inspector, E. Orlina returned to the
residence of plaintiffs-appellees and informed them that the meter had been
tampered and unless they pay the amount ofP178,875.01 representing the
differential billing, their electric supply would be disconnected. Orlina informed
plaintiffs-appellees that they were just following their standard operating
procedure. Plaintiffs-appellees were further advised that questions relative to the
results of the inspection as well as the disconnection of her electrical services for
Violation of Contract (VOC) may be settled with Mr. M. Manuson of the Special
Accounts, Legal Service Department. However, on the same day at around 2:00
o'clock in the afternoon defendant-appellant's officer through a two-way radio
instructed its service inspector headed by Mr. Orlino to reconnect plaintiffs-
appellees' electric service which the latter faithfully complied.
"On March 6, 1995, plaintiffs-appellees filed a complaint for damages with prayer
for the issuance of a writ of preliminary mandatory injunction, despite the
immediate reconnection, to order defendant-appellant to furnish electricity to the
plaintiffs-appellees alleging that defendant-appellant acted with wanton,
capricious, malicious and malevolent manner in disconnecting their power supply
which was done without due process, and without due regard for their rights,
feelings, peace of mind, social and business reputation.
"In its Answer, defendant-appellant admitted disconnecting the electric service at
the plaintiffs-appellees' house but denied liability citing the 'Terms and Conditions
of Service,' and Republic Act No. 7832 otherwise known a 'Anti-Electricity and
Electric Transmission Lines/Materials Pilferage Act of 1994.'
"After trial on the merits, the lower court rendered judgment, ruling in favor of
plaintiffs-appellees."
4
(Citations omitted)
Ruling of the Trial Court
The trial court held that Meralco (herein respondent) should have given the Quisumbing
spouses (herein petitioners) ample opportunity to dispute the alleged meter tampering.
It held that respondent had acted summarily and without procedural due process in
immediately disconnecting the electric service of petitioners. Respondent's action, ruled
the RTC, constituted a quasi delict.
Ruling of the Court of Appeals
The Court of Appeals overturned the trial court's ruling and dismissed the Complaint. It
held that respondent's representatives had acted in good faith when they disconnected
petitioners' electric service. Citing testimonial and documentary evidence, it ruled that
the disconnection was made only after observing due process. Further, it noted that
petitioners had not been able to prove their claim for damages. The appellate court
likewise upheld respondent's counterclaim for the billing differential in the amount
of P193,332
5
representing the value of petitioners' used but unregistered electrical
consumption, which had been established without being controverted.
Hence, this Petition.
6

The Issues
In their Memorandum,
7
petitioners submit the following issues for our consideration:
"4.1 Whether a prima facie presumption of tampering of electrical meter
enumerated under Sec. 4 (a) iv of RA 7832 (Anti-Electricity and Electric
Transmission Lines/Materials Pilferage Act of 1994) may be had despite the
absence of an ERB representative or an officer of the law?
"4.2 Whether the enumeration of instances to establish a prima facie
presumption of tampering of electrical meter enumerated under Sec. 4 (a) iv of
RA 7832 (Anti-Electricity and Electric Transmission Lines/Materials Pilferage Act
of 1994) is exclusive?
"4.3 What constitutes notice prior to disconnection of electricity service?
Corollarily, whether the definition of notice under Meralco v. Court of Appeals
(157 SCRA 243) applies to the case at bar?
"4.4 Whether a prima facie presumption may contradict logic?
"4.5 Whether documentary proof is pre-requisite for award of damages?"
8

In sum, this Petition raises three (3) main issues which this Court will address: (1)
whether respondent observed the requisites of law when it disconnected the electrical
supply of petitioners, (2) whether such disconnection entitled petitioners to damages,
and (3) whether petitioners are liable for the billing differential computed by respondent.
The Court's Ruling
The Petition is partly meritorious.
First Issue:
Compliance with Requisites of Law
Petitioners contend that the immediate disconnection of electrical service was not validly
effected because of respondent's noncompliance with the relevant provisions of RA
7832, the "Anti-Electricity and Electric Transmission Lines/Materials Pilferage Act of
1994." They insist that the immediate disconnection of electrical supply may only be
validly effected only when there is prima facie evidence of its illegal use. To constitute
prima facie evidence, the discovery of the illegal use must be "personally witnessed and
attested to by an officer of the law or a duly authorized representative of the Energy
Regulatory Board (ERB)."
Respondent, on the other hand, points out that the issue raised by petitioners is a
question of fact which this Court cannot pass upon. It argues further that this issue,
which was not raised in the court below, can no longer be taken up for the first time on
appeal. Assuming arguendo that the issue was raised below, it also contends that
petitioners were not able to specifically prove the absence of an officer of the law or a
duly authorized representative of the ERB when the discovery was made.1wphi1.nt
Prima facie Evidence of Illegal Use of Electricity
We agree with petitioners. Section 4 of RA 7832 states:
(a) The presence of any of the following circumstances shall constitute prima
facie evidence of illegal use of electricity, as defined in this Act, by the person
benefitted thereby, and shall be the basis for: (1) the immediate disconnection by
the electric utility to such person after due notice, x x x
x x x x x x x x x
(viii) x x x Provided, however, That the discovery of any of the foregoing
circumstances, in order to constitute prima facie evidence, must be personally
witnessed and attested to by an officer of the law or a duly authorized
representative of the Energy Regulatory Board (ERB)."
9
(Italics supplied)
Under the above provision, the prima facie presumption that will authorize immediate
disconnection will arise only upon the satisfaction of certain requisites. One of these
requisites is the personal witnessing and attestation by an officer of the law or by an
authorized ERB representative when the discovery was made.
As a rule, this Court reviews only questions of law, not of facts. However, it may pass
upon the evidence when the factual findings of the trial court are different from those of
the Court of Appeals, as in this case.
10

A careful review of the evidence on record negates the appellate court's holding that "the
actions of defendant-appellant's service inspectors were all in accord with the
requirement of the law."
11

Respondent's own witnesses provided the evidence on who were actually present when
the inspection was made. Emmanuel C. Orlino, the head of the Meralco team, testified:
"Q When you were conducting this inspection, and you discovered these
findings you testified earlier, who was present?
A The secretary, sir."
12

"ATTY. REYES - Who else were the members of your team that conducted this
inspection at Greenmeadows Avenue on that day, March 3, 1995?
A The composition of the team, sir?
Q Yes.
A Including me, we are about four (4) inspectors, sir.
Q You were four (4)?
A Yes, sir.
Q Who is the head of this team?
A I was the head of the team, sir."
13

Further, Catalino A. Macaraig, the area head of the Orlino team, stated that only Meralco
personnel had been present during the inspection:
"Q By the way you were not there at Green Meadows on that day, right?
A Yes, sir.
Q Only Mr. Orlino and who else were there?
A Two or three of his men.
Q All members of the inspection team?
A Yes, sir."
14

These testimonies clearly show that at the time the alleged meter tampering was
discovered, only the Meralco inspection team and petitioners' secretary were present.
Plainly, there was no officer of the law or ERB representative at that time. Because of
the absence of government representatives, the prima facie authority to disconnect,
granted to Meralco by RA 7832, cannot apply.
Neither can respondent find solace in the fact that petitioners' secretary was present at
the time the inspection was made. The law clearly states that for the prima facie
evidence to apply, the discovery "must be personally witnessed and attested to by an
officer of the law or a duly authorized representative of the Energy Regulatory Board
(ERB)."
15
Had the law intended the presence of the owner or his/her representative to
suffice, then it should have said so. Embedded in our jurisprudence is the rule that
courts may not construe a statute that is free from doubt.
16
Where the law is clear and
unambiguous, it must be taken to mean exactly what it says, and courts have no choice
but to see to it that the mandate is obeyed.
17

In fact, during the Senate deliberations on RA 7832, Senator John H. Osmea, its
author, stressed the need for the presence of government officers during inspections of
electric meters. He said:
"Mr. President, if a utility like MERALCO finds certain circumstances or situations
which are listed in Section 2 of this bill to be prima facie evidence, I think they
should be prudent enough to bring in competent authority, either the police or the
NBI, to verify or substantiate their finding. If they were to summarily proceed to
disconnect on the basis of their findings and later on there would be a court case
and the customer or the user would deny the existence of what is listed in
Section 2, then they could be in a lot of trouble."
18
(Italics supplied)
Neither can we accept respondent's argument that when the alleged tampered meter
was brought to Meralco's laboratory for testing, there was already an ERB representative
present.
The law says that before immediate disconnection may be allowed, the discovery of the
illegal use of electricity must have been personally witnessed and attested to by an
officer of the law or by an authorized ERB representative. In this case, the disconnection
was effected immediately after the discovery of the alleged meter tampering, which was
witnessed only by Meralco's employees. That the ERB representative was allegedly
present when the meter was examined in the Meralco laboratory will not cure the defect.
It is undisputed that after members of the Meralco team conducted their inspection and
found alleged meter tampering, they immediately disconnected petitioners' electrical
supply. Again, this verity is culled from the testimony of Meralco's Orlina:
"A When she went inside then she came out together with Mrs. Lourdes
Quis[u]mbing at that time. We did tell our findings regarding the meter and the
consequence with it. And she was very angry with me.
Q When you say consequence of your findings, what exactly did you tell Mrs.
Quisumbing?
A We told her that the service will be temporarily disconnected and that we
are referring to our Legal Department so could know the violation, sir."
19

"A Yes, sir. At that time, I referred her to Mr. Macaraig, sir.
Q What is the fist name of this supervisor?
A Mr. Catalino Macara[i]g, sir.
Q Then after talking to Mr. Catalino Macara[i]g, this is over the telephone,
what happened?
A The supervisor advised her that the service will be temporarily
disconnected and she has to go to our Legal Department where she could settle
the VOC, sir.
Q You are talking of 'VOC,' what is this all about Mr. Orlino?
A 'VOC' is violation of contract, sir."
20

As to respondent's argument that the presence of an authorized ERB representative had
not been raised below, it is clear, however, that the issue of due process was brought up
by petitioners as a valid issue in the CA. The presence of government agents who may
authorize immediate disconnections go into the essence of due process. Indeed, we
cannot allow respondent to act virtually as prosecutor and judge in imposing the penalty
of disconnection due to alleged meter tampering. That would not sit well in a democratic
country. After all, Meralco is a monopoly that derives its power from the government.
Clothing it with unilateral authority to disconnect would be equivalent to giving it a license
to tyrannize its hapless customers.
Besides, even if not specifically raised, this Court has already ruled that "[w]here the
issues already raised also rest on other issues not specifically presented, as long as the
latter issues bear relevance and close relation to the former and as long as they arise
from matters on record, the Court has the authority to include them in its discussion of
the controversy as well as to pass upon them."
21

Contractual Right to Disconnect
Electrical Service
Neither may respondent rely on its alleged contractual right to disconnect electrical
service based on Exhibits "10"
22
and "11,"
23
or on Decisions of the Board of Energy (now
the Energy Regulatory Board). The relevant portion of these documents concerns
discontinuance of service. It provides:
"The Company reserves the right to discontinue service in case the Customer is
in arrears in the payment of bills or for failure to pay the adjusted bills in those
cases where the meter stopped or failed to register the correct amount of energy
consumed, or for failure to comply with any of these terms and conditions, or in
case of or to prevent fraud upon the Company. Before disconnection is made in
case of or to prevent fraud, the Company may adjust the bill of said Customer
accordingly and if the adjusted bill is not paid, the Company may disconnect the
same. In case of disconnection, the provisions of Revised Order No. 1 of the
former Public Service Commission (now the Board of Energy) shall be observed.
Any such suspension of service shall not terminate the contract between the
Company and the Customer."
24

Petitioners' situation can fall under disconnection only "in case of or to prevent fraud
upon the Company." However, this too has requisites before a disconnection may be
made. An adjusted bill shall be prepared, and only upon failure to pay it may the
company discontinue service. This is also true in regard to the provisions of Revised
Order No. 1 of the former Public Service Commission, which requires a 48-hour written
notice before a disconnection may be justified. In the instant case, these requisites were
obviously not complied with.
Second Issue
Damages
Having ruled that the immediate disconnection effected by Meralco lacks legal, factual or
contractual basis, we will now pass upon on the right of petitioners to recover damages
for the improper disconnection.
Petitioners are asking for the reinstatement of the RTC Decision, which awarded them
actual, moral and exemplary damages as well as attorney's fees. All these were
overturned by the CA.
As to actual damages, we agree with the CA that competent proof is necessary before
our award may be made. The appellate court ruled as follows:
"Considering further, it is a settled rule that in order for damages to be recovered,
the best evidence obtainable by the injured party must be presented. Actual and
compensatory damages cannot be presumed but must be duly proved and
proved with reasonable degree and certainty. A court cannot rely on speculation,
conjecture or guess work as to the fact and amount of damages, but must
depend upon competent proof that they have been suffered and on evidence of
actual amount thereof. If the proof is flimsy and unsubstantial, no damages will
be awarded."
25

Actual damages are compensation for an injury that will put the injured party in the
position where it was before it was injured.
26
They pertain to such injuries or losses that
are actually sustained and susceptible of measurement.
27
Except as provided by law or
by stipulation, a party is entitled to an adequate compensation only for such pecuniary
loss as it has duly proven.
28

Basic is the rule that to recover actual damages, not only must the amount of loss be
capable of proof; it must also be actually proven with a reasonable degree of certainty,
premised upon competent proof or the best evidence obtainable.
29

Petitioners' claim for actual damages was premised only upon Lorna Quisumbing's bare
testimony as follows:
"A Actually that da[y] I was really scheduled to go to that furniture exhibit.
That furniture exhibit is only once a year.
Q What is this furniture exhibit?
A The SITEM, that is a government agency that takes care of exporters and
exclusive marketing of our products around the world. We always have that once
a year and that's the time when all our buyers are here for us to show what we
had that was exhibited to go around. So, my husband had to [fly] from Cebu to
Manila just for this occasion. So we have an appointment with our people and our
buyers with SITEM and also that evening we will have to treat them [to] dinner.
Q Whereat?
A At our residence, we were supposed to have a dinner at our residence.
Q What happened to this occasion?
A So when they disconnected our electric power we had to get in touch with
them and change the venue.
Q Which venue did you transfer your dinner for your buyers?
A We brought them in a restaurant in Makati at Season's Restaurant. But it
was very embar[r]assing for us because we faxed them ahead of time before
they came to Manila.
Q Now as a result of this change of your schedule because of the
disconnection of the electric power on that day, Friday, what damage did you
suffer?
A I cancelled the catering service and that is so much of a h[a]ssle it was so
embarras[s]ing for us.
Q Can you tell us how much amount?
A Approximately P50,000.00."
30

No other evidence has been proffered to substantiate her bare statements. She has not
shown how she arrived at the amount of P50,000; it is, at best, speculative. Her self-
serving testimonial evidence, if it may be called such, is insufficient to support alleged
actual damages.
While respondent does not rebut this testimony on the expenses incurred by the
spouses in moving the dinner out of their residence due to the disconnection, no receipts
covering such expenditures have been adduced in evidence. Neither is the testimony
corroborated. To reiterate, actual or compensatory damages cannot be presumed, but
must be duly proved with a reasonable degree of certainty. It is dependent upon
competent proof of damages that petitioners have suffered and of the actual amount
thereof.
31
The award must be based on the evidence presented, not on the personal
knowledge of the court; and certainly not on flimsy, remote, speculative and
unsubstantial proof.
32
Consequently, we uphold the CA ruling denying the grant of actual
damages.
Having said that, we agree with the trial court, however, that petitioners are entitled to
moral damages, albeit in a reduced amount.
The RTC opined as follows:
"This Court agrees with the defendant regarding [its] right by law and equity to
protect itself from any fraud. However, such right should not be exercised
arbitrarily but with great caution and with due regard to the rights of the
consumers. Meralco having a virtual monopoly of the supply of electric power
should refrain from taking drastic actions against the consumers without
observing due process. Even assuming that the subject meter has had history of
meter tampering, defendant cannot simply assume that the present occupants
are the ones responsible for such tampering. Neither does it serve as a license to
deprive the plaintiffs of their right to due process. Defendant should have given
the plaintiffs simple opportunity to dispute the electric charges brought about by
the alleged meter-tampering, which were not included in the bill rendered them.
Procedural due process requires reasonable notice to pay the bill and reasonable
notice to discontinue supply. Absent due process the defendant may be held
liable for damages. While this Court is aware of the practice of unscrupulous
individuals of stealing electric curre[n]t which causes thousands if not millions of
pesos in lost revenue to electric companies, this does not give the defendant the
right to trample upon the rights of the consumers by denying them due
process."
33

Article 2219 of the Civil Code lists the instances when moral damages may be
recovered. One such case
34
is when the rights of individuals, including the right against
deprivation of property without due process of law, are violated.
35

Moral damages include physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social humiliation, and similar
injury.
36
Although incapable of pecuniary computation, such damages may be recovered
if they are the proximate results of the defendant's wrongful act or omission.
37

Case law establishes the following requisites for the award of moral damages: (1) there
is an injury -- whether physical, mental or psychological -- clearly sustained by the
claimant; (2) there is a culpable act or omission factually established; (3) the wrongful
act or omission of the defendant is the proximate cause of the injury sustained by the
claimant; and (4) the award of damages is predicated on any of the cases stated in
Article 2219 of the Civil Code.
38

To reiterate, respondent had no legal right to immediately disconnect petitioners'
electrical supply without observing the requisites of law which, in turn, are akin to due
process. Had respondent been more circumspect and prudent, petitioners could have
been given the opportunity to controvert the initial finding of alleged meter tampering.
Said the RTC:
"More seriously, the action of the defendant in maliciously disconnecting the
electric service constitutes a breach of public policy. For public utilities, broad as
their powers are, have a clear duty to see to it that they do not violate nor
transgress the rights of the consumers. Any act on their part that militates against
the ordinary norms of justice and fair play is considered an infraction that gives
rise to an action for damages. Such is the case at bar."
39

Indeed, the Supreme Court has ruled in Meralco v. CA
40
that respondent is required to
give notice of disconnection to an alleged delinquent customer. The Court said:
"x x x One can not deny the vital role which a public utility such as MERALCO,
having a monopoly of the supply of electrical power in Metro Manila and some
nearby municipalities, plays in the life of people living in such areas. Electricity
has become a necessity to most people in these areas, justifying the exercise by
the State of its regulatory power over the business of supplying electrical service
to the public, in which petitioner MERALCO is engaged. Thus, the state may
regulate, as it has done through Section 97 of the Revised Order No. 1 of the
Public Service Commission, the conditions under which and the manner by which
a public utility such as MERALCO may effect a disconnection of service to a
delinquent customer. Among others, a prior written notice to the customer is
required before disconnection of the service. Failure to give such prior notice
amounts to a tort."
41

Observance of the rights of our people is sacred in our society. We cannot allow such
rights to be trifled with or trivialized. Although the Court sympathizes with respondent's
efforts to stamp out the illegal use of electricity, such action must be done only with strict
observance of the rights of our people. As has been we succinctly said: "there is a right
way to do the right thing at the right time for the right reason."
42

However, the amount of moral damages, which is left largely to the sound discretion of
the courts, should be granted in reasonable amounts, considering the attendant facts
and circumstances.
43
Moral damages, though incapable of pecuniary estimation, are
designed to compensate the claimant for actual injury suffered and not to impose a
penalty.
44
Moral damages are not intended to enrich a plaintiff at the expense of the
defendant.
45
They are awarded only to obtain a means, a diversion or an amusement
that will serve to alleviate the moral suffering the injured party has undergone by reason
of the defendant's culpable action.
46
They must be proportionate to the suffering
inflicted.
47

It is clear from the records that respondent was able to restore the electrical supply of
petitioners on the same day. Verily, the inconvenience and anxiety they suffered as a
result of the disconnection was thereafter corrected. Thus, we reduce the RTC's grant of
moral damages to the more equitable amount of P100,000.
Exemplary damages, on the other hand, are imposed by way of example or correction
for the public good in addition to moral, temperate, liquidated or compensatory
damages.
48
It is not given to enrich one party and impoverish another, but to serve as a
deterrent against or as a negative incentive to socially deleterious actions.
49
In this case,
to serve an example -- that before a disconnection of electrical supply can be effected by
a public utility like Meralco, the requisites of law must be faithfully complied with -- we
award the amount of P50,000 to petitioners.
Finally, with the award of exemplary damages, the award of attorney's fees is likewise
granted.
50
It is readily apparent that petitioners needed the services of a lawyer to argue
their cause, even to the extent of elevating the matter to this Court;
51
thus, an award
of P50,000 is considered sufficient.
Final Issue:
Billing Differential
Finally, this Court holds that despite the basis for the award of damages -- the lack of
due process in immediately disconnecting petitioners' electrical supply -- respondent's
counterclaim for the billing differential is still proper. We agree with the CA that
respondent should be given what it rightfully deserves. The evidence it presented, both
documentary and testimonial, sufficiently proved the amount of the differential.
Not only did respondent show how the meter examination had been conducted by its
experts, but it also established the amount of P193,332.96 that petitioners owed
respondent. The procedure through which this amount was arrived at was testified to by
Meralco's Senior Billing Computer Enrique Katipunan. His testimony was corroborated
by documentary evidence showing the account's billing history and the corresponding
computations. Neither do we doubt the documents of inspections and examinations
presented by respondent to prove that, indeed there had been meter tampering that
resulted in unrecorded and unpaid electrical consumption.
The mere presentation by petitioners of a Contract to Sell with Assumption of
Mortgage
52
does not necessarily mean that they are no longer liable for the billing
differential. There was no sufficient evidence to show that they had not been actually
residing in the house before the date of the said document. Lorna Quisumbing herself
admitted
53
that they did not have any contract for electrical service in their own name.
Hence, petitioners effectively assumed the bills of the former occupants of the premises.
Finally, the CA was correct in ruling that the convincing documentary and testimonial
evidence presented by respondent, was not controverted by petitioners.1wphi1.nt
WHEREFORE, the Petition is hereby PARTLY GRANTED. The assailed CA Decision
is MODIFIED as follows: petitioners are ORDERED to pay respondent the billing
differential of P193,332.96; while respondent is ordered to pay petitioners P100,000 as
moral damages, P50,000 as exemplary damages, and P50,000 as attorney's fees. No
pronouncement as to costs.
SO ORDERED.
Melo, Sandoval-Gutierrez, and Carpio, JJ., concur.
Vitug, J., abroad on official business.

DIGEST
Facts:
This is a petition for review filed by petitioners regarding the February 1, 2000
Decision and the April 10, 2000 Resolution of the Court of Appeals where the decision of
the trial court is set aside, the complaint against MERALCO is dismissed, and plaintiffs-
appellees are ordered to pay defendant-appellant the differential billing of P193,332.00
representing the value of used but unregistered electrical consumption.
Spouses Antonio and Lorna Quisumbing, plaintiffs-appellees in this case, are
the owners of a house and lot located at No. 94 Greenmeadows Avenue, Quezon City
which they bought from Ms. Carmina Serapio Santos. On March 3, 1995, around 9am,
defendant-appellants inspectors headed by Emmanuel C. Orlina were assigned to
conduct a routine on the spot inspection of all single phase meters at the house owned
by the spouses. The inspectors performed their standard operating procedure by first
asking permission from the secretary of the couple before they proceed to the inspection
of the house. Later, the inspectors found out that there were few illegal markings on the
meter which made defendant-appellant temporarily disconnect electrical services that
will only be restored unless the couple will pay P178, 875 representing the differential
bill. However, at around 2pm, the electric service was reconnected as instructed by
defendant-appellants officer. Plaintiff-appellees filed a complaint for damages with a
prayer for the issuance of a writ of preliminary injunction despite the immediate
reconnection.

Issue:
Whether or not the act of the defendant-appellants inspectors in immediately
disconnecting the electrical service of MERALCO constituted a violation of rights of the
plaintiffs-appellees, making the respondent liable to pay damages to petitioner.

Held:
Yes. Respondent had no legal right to immediately disconnect petitioners
electrical supply without observing the requisites of law which, in turn, are akin to due
process. Public utilities have a clear duty to see to it that they do not violate nor
transgress the rights of the consumers. Any act on their part that militates against the
ordinary norms of justice and fair play is considered an infraction that gives rise to an
action for damages. Such is the case at bar.
WHEREFORE, the Petition is hereby PARTLY GRANTED. The assailed CA
Decision is MODIFIED as follows: petitioners are ORDERED to pay respondent the
billing differential of P193, 322.96; while respondent is ordered to pay petitioners
P100,000 as moral damages, P50,000 as exemplary damages, and P50,000 as
attorneys fees. No pronouncement as to costs.
SO ORDERED.

Gasheem Shokat Baksh vs. CA (219 SCRA 115)
GASHEM SHOOKAT BAKSH, petitioner,
vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.
Public Attorney's Office for petitioner.
Corleto R. Castro for private respondent.

DAVIDE, JR., J .:
This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review and
set aside the Decision
1
of the respondent Court of Appeals in CA-G.R. CV No. 24256
which affirmed in toto the 16 October 1939 Decision of Branch 38 (Lingayen) of the
Regional Trial Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is the
issue of whether or not damages may be recovered for a breach of promise to marry on
the basis of Article 21 of the Civil Code of the Philippines.
The antecedents of this case are not complicated:
On 27 October 1987, private respondent, without the assistance of counsel, filed with the
aforesaid trial court a complaint
2
for damages against the petitioner for the alleged
violation of their agreement to get married. She alleges in said complaint that: she is
twenty-two (22) years old, single, Filipino and a pretty lass of good moral character and
reputation duly respected in her community; petitioner, on the other hand, is an Iranian
citizen residing at the Lozano Apartments, Guilig, Dagupan City, and is an exchange
student taking a medical course at the Lyceum Northwestern Colleges in Dagupan City;
before 20 August 1987, the latter courted and proposed to marry her; she accepted his
love on the condition that they would get married; they therefore agreed to get married
after the end of the school semester, which was in October of that year; petitioner then
visited the private respondent's parents in Baaga, Bugallon, Pangasinan to secure their
approval to the marriage; sometime in 20 August 1987, the petitioner forced her to live
with him in the Lozano Apartments; she was a virgin before she began living with him; a
week before the filing of the complaint, petitioner's attitude towards her started to
change; he maltreated and threatened to kill her; as a result of such maltreatment, she
sustained injuries; during a confrontation with a representative of the barangay captain
of Guilig a day before the filing of the complaint, petitioner repudiated their marriage
agreement and asked her not to live with him anymore and; the petitioner is already
married to someone living in Bacolod City. Private respondent then prayed for judgment
ordering the petitioner to pay her damages in the amount of not less than P45,000.00,
reimbursement for actual expenses amounting to P600.00, attorney's fees and costs,
and granting her such other relief and remedies as may be just and equitable. The
complaint was docketed as Civil Case No. 16503.
In his Answer with Counterclaim,
3
petitioner admitted only the personal circumstances of
the parties as averred in the complaint and denied the rest of the allegations either for
lack of knowledge or information sufficient to form a belief as to the truth thereof or
because the true facts are those alleged as his Special and Affirmative Defenses. He
thus claimed that he never proposed marriage to or agreed to be married with the private
respondent; he neither sought the consent and approval of her parents nor forced her to
live in his apartment; he did not maltreat her, but only told her to stop coming to his place
because he discovered that she had deceived him by stealing his money and passport;
and finally, no confrontation took place with a representative of the barangay captain.
Insisting, in his Counterclaim, that the complaint is baseless and unfounded and that as
a result thereof, he was unnecessarily dragged into court and compelled to incur
expenses, and has suffered mental anxiety and a besmirched reputation, he prayed for
an award of P5,000.00 for miscellaneous expenses and P25,000.00 as moral damages.
After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial
Order
4
embodying the stipulated facts which the parties had agreed upon, to wit:
1. That the plaintiff is single and resident (sic) of Baaga, Bugallon,
Pangasinan, while the defendant is single, Iranian citizen and resident
(sic) of Lozano Apartment, Guilig, Dagupan City since September 1, 1987
up to the present;
2. That the defendant is presently studying at Lyceum Northwestern,
Dagupan City, College of Medicine, second year medicine proper;
3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette ,
Fernandez Avenue, Dagupan City since July, 1986 up to the present and
a (sic) high school graduate;
4. That the parties happened to know each other when the manager of
the Mabuhay Luncheonette, Johhny Rabino introduced the defendant to
the plaintiff on August 3, 1986.
After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered
on 16 October 1989 a decision
5
favoring the private respondent. The petitioner was thus
ordered to pay the latter damages and attorney's fees; the dispositive portion of the
decision reads:
IN THE LIGHT of the foregoing consideration, judgment is hereby
rendered in favor of the plaintiff and against the defendant.
1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty
thousand (P20,000.00) pesos as moral damages.
2. Condemning further the defendant to play the plaintiff the sum of three
thousand (P3,000.00) pesos as atty's fees and two thousand (P2,000.00)
pesos at (sic) litigation expenses and to pay the costs.
3. All other claims are denied.
6

The decision is anchored on the trial court's findings and conclusions that (a) petitioner
and private respondent were lovers, (b) private respondent is not a woman of loose
morals or questionable virtue who readily submits to sexual advances, (c) petitioner,
through machinations, deceit and false pretenses, promised to marry private respondent,
d) because of his persuasive promise to marry her, she allowed herself to be deflowered
by him, (e) by reason of that deceitful promise, private respondent and her parents in
accordance with Filipino customs and traditions made some preparations for the
wedding that was to be held at the end of October 1987 by looking for pigs and
chickens, inviting friends and relatives and contracting sponsors, (f) petitioner did not
fulfill his promise to marry her and (g) such acts of the petitioner, who is a foreigner and
who has abused Philippine hospitality, have offended our sense of morality, good
customs, culture and traditions. The trial court gave full credit to the private respondent's
testimony because, inter alia, she would not have had the temerity and courage to come
to court and expose her honor and reputation to public scrutiny and ridicule if her claim
was false.
7

The above findings and conclusions were culled from the detailed summary of the
evidence for the private respondent in the foregoing decision, digested by the
respondent Court as follows:
According to plaintiff, who claimed that she was a virgin at the time and
that she never had a boyfriend before, defendant started courting her just
a few days after they first met. He later proposed marriage to her several
times and she accepted his love as well as his proposal of marriage on
August 20, 1987, on which same day he went with her to her hometown
of Baaga, Bugallon, Pangasinan, as he wanted to meet her parents and
inform them of their relationship and their intention to get married. The
photographs Exhs. "A" to "E" (and their submarkings) of defendant with
members of plaintiff's family or with plaintiff, were taken that day. Also on
that occasion, defendant told plaintiffs parents and brothers and sisters
that he intended to marry her during the semestral break in October,
1987, and because plaintiff's parents thought he was good and trusted
him, they agreed to his proposal for him to marry their daughter, and they
likewise allowed him to stay in their house and sleep with plaintiff during
the few days that they were in Bugallon. When plaintiff and defendant
later returned to Dagupan City, they continued to live together in
defendant's apartment. However, in the early days of October, 1987,
defendant would tie plaintiff's hands and feet while he went to school, and
he even gave her medicine at 4 o'clock in the morning that made her
sleep the whole day and night until the following day. As a result of this
live-in relationship, plaintiff became pregnant, but defendant gave her
some medicine to abort the fetus. Still plaintiff continued to live with
defendant and kept reminding him of his promise to marry her until he told
her that he could not do so because he was already married to a girl in
Bacolod City. That was the time plaintiff left defendant, went home to her
parents, and thereafter consulted a lawyer who accompanied her to the
barangay captain in Dagupan City. Plaintiff, her lawyer, her godmother,
and a barangay tanod sent by the barangay captain went to talk to
defendant to still convince him to marry plaintiff, but defendant insisted
that he could not do so because he was already married to a girl in
Bacolod City, although the truth, as stipulated by the parties at the pre-
trial, is that defendant is still single.
Plaintiff's father, a tricycle driver, also claimed that after defendant had
informed them of his desire to marry Marilou, he already looked for
sponsors for the wedding, started preparing for the reception by looking
for pigs and chickens, and even already invited many relatives and
friends to the forthcoming wedding.
8

Petitioner appealed the trial court's decision to the respondent Court of Appeals which
docketed the case as CA-G.R. CV No. 24256. In his Brief,
9
he contended that the trial
court erred (a) in not dismissing the case for lack of factual and legal basis and (b) in
ordering him to pay moral damages, attorney's fees, litigation expenses and costs.
On 18 February 1991, respondent Court promulgated the challenged
decision
10
affirming in toto the trial court's ruling of 16 October 1989. In sustaining the
trial court's findings of fact, respondent Court made the following analysis:
First of all, plaintiff, then only 21 years old when she met defendant who
was already 29 years old at the time, does not appear to be a girl of loose
morals. It is uncontradicted that she was a virgin prior to her unfortunate
experience with defendant and never had boyfriend. She is, as described
by the lower court, a barrio lass "not used and accustomed to trend of
modern urban life", and certainly would (sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive
promise made by the defendant to marry her." In fact, we agree with the
lower court that plaintiff and defendant must have been sweethearts or so
the plaintiff must have thought because of the deception of defendant, for
otherwise, she would not have allowed herself to be photographed with
defendant in public in so (sic) loving and tender poses as those depicted
in the pictures Exhs. "D" and "E". We cannot believe, therefore,
defendant's pretense that plaintiff was a nobody to him except a waitress
at the restaurant where he usually ate. Defendant in fact admitted that he
went to plaintiff's hometown of Baaga, Bugallon, Pangasinan, at least
thrice; at (sic) the town fiesta on February 27, 1987 (p. 54, tsn May 18,
1988), at (sic) a beach party together with the manager and employees of
the Mabuhay Luncheonette on March 3, 1987 (p. 50, tsn id.), and on April
1, 1987 when he allegedly talked to plaintiff's mother who told him to
marry her daughter (pp. 55-56, tsn id.). Would defendant have left
Dagupan City where he was involved in the serious study of medicine to
go to plaintiff's hometown in Baaga, Bugallon, unless there was (sic)
some kind of special relationship between them? And this special
relationship must indeed have led to defendant's insincere proposal of
marriage to plaintiff, communicated not only to her but also to her parents,
and (sic) Marites Rabino, the owner of the restaurant where plaintiff was
working and where defendant first proposed marriage to her, also knew of
this love affair and defendant's proposal of marriage to plaintiff, which she
declared was the reason why plaintiff resigned from her job at the
restaurant after she had accepted defendant's proposal (pp. 6-7, tsn
March 7, 1988).
Upon the other hand, appellant does not appear to be a man of good
moral character and must think so low and have so little respect and
regard for Filipino women that he openly admitted that when he studied in
Bacolod City for several years where he finished his B.S. Biology before
he came to Dagupan City to study medicine, he had a common-law wife
in Bacolod City. In other words, he also lived with another woman in
Bacolod City but did not marry that woman, just like what he did to
plaintiff. It is not surprising, then, that he felt so little compunction or
remorse in pretending to love and promising to marry plaintiff, a young,
innocent, trustful country girl, in order to satisfy his lust on her.
11

and then concluded:
In sum, we are strongly convinced and so hold that it was defendant-
appellant's fraudulent and deceptive protestations of love for and promise
to marry plaintiff that made her surrender her virtue and womanhood to
him and to live with him on the honest and sincere belief that he would
keep said promise, and it was likewise these (sic) fraud and deception on
appellant's part that made plaintiff's parents agree to their daughter's
living-in with him preparatory to their supposed marriage. And as these
acts of appellant are palpably and undoubtedly against morals, good
customs, and public policy, and are even gravely and deeply derogatory
and insulting to our women, coming as they do from a foreigner who has
been enjoying the hospitality of our people and taking advantage of the
opportunity to study in one of our institutions of learning, defendant-
appellant should indeed be made, under Art. 21 of the Civil Code of the
Philippines, to compensate for the moral damages and injury that he had
caused plaintiff, as the lower court ordered him to do in its decision in this
case.
12

Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he
raises therein the single issue of whether or not Article 21 of the Civil Code applies to the
case at bar.
13

It is petitioner's thesis that said Article 21 is not applicable because he had not
committed any moral wrong or injury or violated any good custom or public policy; he
has not professed love or proposed marriage to the private respondent; and he has
never maltreated her. He criticizes the trial court for liberally invoking Filipino customs,
traditions and culture, and ignoring the fact that since he is a foreigner, he is not
conversant with such Filipino customs, traditions and culture. As an Iranian Moslem, he
is not familiar with Catholic and Christian ways. He stresses that even if he had made a
promise to marry, the subsequent failure to fulfill the same is excusable or tolerable
because of his Moslem upbringing; he then alludes to the Muslim Code which
purportedly allows a Muslim to take four (4) wives and concludes that on the basis
thereof, the trial court erred in ruling that he does not posses good moral character.
Moreover, his controversial "common law life" is now his legal wife as their marriage had
been solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful
cohabitation with the private respondent, petitioner claims that even if responsibility
could be pinned on him for the live-in relationship, the private respondent should also be
faulted for consenting to an illicit arrangement. Finally, petitioner asseverates that even if
it was to be assumed arguendo that he had professed his love to the private respondent
and had also promised to marry her, such acts would not be actionable in view of the
special circumstances of the case. The mere breach of promise is not actionable.
14

On 26 August 1991, after the private respondent had filed her Comment to the petition
and the petitioner had filed his Reply thereto, this Court gave due course to the petition
and required the parties to submit their respective Memoranda, which they subsequently
complied with.
As may be gleaned from the foregoing summation of the petitioner's arguments in
support of his thesis, it is clear that questions of fact, which boil down to the issue of the
credibility of witnesses, are also raised. It is the rule in this jurisdiction that appellate
courts will not disturb the trial court's findings as to the credibility of witnesses, the latter
court having heard the witnesses and having had the opportunity to observe closely their
deportment and manner of testifying, unless the trial court had plainly overlooked facts of
substance or value which, if considered, might affect the result of the case.
15

Petitioner has miserably failed to convince Us that both the appellate and trial courts had
overlooked any fact of substance or values which could alter the result of the case.
Equally settled is the rule that only questions of law may be raised in a petition for review
on certiorari under Rule 45 of the Rules of Court. It is not the function of this Court to
analyze or weigh all over again the evidence introduced by the parties before the lower
court. There are, however, recognized exceptions to this rule. Thus, inMedina
vs. Asistio, Jr.,
16
this Court took the time, again, to enumerate these exceptions:
xxx xxx xxx
(1) When the conclusion is a finding grounded entirely on speculation,
surmises or conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2)
When the inference made is manifestly mistaken, absurb or impossible
(Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave abuse of
discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment
is based on a misapprehension of facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting
(Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.) (6) When the Court of
Appeals, in making its findings, went beyond the issues of the case and
the same is contrary to the admissions of both appellate and appellee
(Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial
court (Garcia v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v.
Sandiganbayan, 142 SCRA 593 [1986]); (8) When the findings of fact are
conclusions without citation of specific evidence on which they are based
(Ibid.,); (9) When the facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by the respondents
(Ibid.,); and (10) The finding of fact of the Court of Appeals is premised on
the supposed absence of evidence and is contradicted by the evidence
on record (Salazar v. Gutierrez, 33 SCRA 242 [1970]).
Petitioner has not endeavored to joint out to Us the existence of any of the above quoted
exceptions in this case. Consequently, the factual findings of the trial and appellate
courts must be respected.
And now to the legal issue.
The existing rule is that a breach of promise to marry per se is not an actionable
wrong.
17
Congress deliberately eliminated from the draft of the New Civil Code the
provisions that would have made it so. The reason therefor is set forth in the report of
the Senate Committees on the Proposed Civil Code, from which We quote:
The elimination of this chapter is proposed. That breach of promise to
marry is not actionable has been definitely decided in the case of De
Jesus vs. Syquia.
18
The history of breach of promise suits in the United
States and in England has shown that no other action lends itself more
readily to abuse by designing women and unscrupulous men. It is this
experience which has led to the abolition of rights of action in the so-
called Heart Balm suits in many of the American states. . . .
19

This notwithstanding, the said Code contains a provision, Article 21, which is designed to
expand the concept of torts or quasi-delict in this jurisdiction by granting adequate legal
remedy for the untold number of moral wrongs which is impossible for human foresight
to specifically enumerate and punish in the statute books.
20

As the Code Commission itself stated in its Report:
But the Code Commission had gone farther than the sphere of wrongs
defined or determined by positive law. Fully sensible that there are
countless gaps in the statutes, which leave so many victims of moral
wrongs helpless, even though they have actually suffered material and
moral injury, the Commission has deemed it necessary, in the interest of
justice, to incorporate in the proposed Civil Code the following rule:
Art. 23. Any person who wilfully causes loss or injury to
another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for the
damage.
An example will illustrate the purview of the foregoing norm: "A" seduces
the nineteen-year old daughter of "X". A promise of marriage either has
not been made, or can not be proved. The girl becomes pregnant. Under
the present laws, there is no crime, as the girl is above nineteen years of
age. Neither can any civil action for breach of promise of marriage be
filed. Therefore, though the grievous moral wrong has been committed,
and though the girl and family have suffered incalculable moral damage,
she and her parents cannot bring action for damages. But under the
proposed article, she and her parents would have such a right of action.
Thus at one stroke, the legislator, if the forgoing rule is approved, would
vouchsafe adequate legal remedy for that untold number of moral wrongs
which it is impossible for human foresight to provide for specifically in the
statutes.
21

Article 2176 of the Civil Code, which defines a quasi-delict thus:
Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
is limited to negligent acts or omissions and excludes the notion of willfulness or
intent. Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil
law concept while torts is an Anglo-American or common law concept. Torts is
much broader than culpa aquiliana because it includes not only negligence, but
international criminal acts as well such as assault and battery, false
imprisonment and deceit. In the general scheme of the Philippine legal system
envisioned by the Commission responsible for drafting the New Civil Code,
intentional and malicious acts, with certain exceptions, are to be governed by the
Revised Penal Code while negligent acts or omissions are to be covered by
Article 2176 of the Civil Code.
22
In between these opposite spectrums are
injurious acts which, in the absence of Article 21, would have been beyond
redress. Thus, Article 21 fills that vacuum. It is even postulated that together with
Articles 19 and 20 of the Civil Code, Article 21 has greatly broadened the scope
of the law on civil wrongs; it has become much more supple and adaptable than
the Anglo-American law on torts.
23

In the light of the above laudable purpose of Article 21, We are of the opinion, and so
hold, that where a man's promise to marry is in fact the proximate cause of the
acceptance of his love by a woman and his representation to fulfill that promise
thereafter becomes the proximate cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of marrying her and that the promise
was only a subtle scheme or deceptive device to entice or inveigle her to accept him and
to obtain her consent to the sexual act, could justify the award of damages pursuant to
Article 21 not because of such promise to marry but because of the fraud and deceit
behind it and the willful injury to her honor and reputation which followed thereafter. It is
essential, however, that such injury should have been committed in a manner contrary to
morals, good customs or public policy.
In the instant case, respondent Court found that it was the petitioner's "fraudulent and
deceptive protestations of love for and promise to marry plaintiff that made her surrender
her virtue and womanhood to him and to live with him on the honest and sincere belief
that he would keep said promise, and it was likewise these fraud and deception on
appellant's part that made plaintiff's parents agree to their daughter's living-in with him
preparatory to their supposed marriage."
24
In short, the private respondent surrendered
her virginity, the cherished possession of every single Filipina, not because of lust but
because of moral seduction the kind illustrated by the Code Commission in its
example earlier adverted to. The petitioner could not be held liable for criminal seduction
punished under either Article 337 or Article 338 of the Revised Penal Code because the
private respondent was above eighteen (18) years of age at the time of the seduction.
Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of
promise to marry where the woman is a victim of moral seduction. Thus, in Hermosisima
vs. Court of Appeals,
25
this Court denied recovery of damages to the woman because:
. . . we find ourselves unable to say that petitioner is morally guilty of
seduction, not only because he is approximately ten (10) years younger
than the complainant who was around thirty-six (36) years of age, and
as highly enlightened as a former high school teacher and a life insurance
agent are supposed to be when she became intimate with petitioner,
then a mere apprentice pilot, but, also, because the court of first instance
found that, complainant "surrendered herself" to petitioner because,
"overwhelmed by her love" for him, she "wanted to bind" him by having a
fruit of their engagement even before they had the benefit of clergy.
In Tanjanco vs. Court of Appeals,
26
while this Court likewise hinted at possible recovery
if there had been moral seduction, recovery was eventually denied because We were
not convinced that such seduction existed. The following enlightening disquisition and
conclusion were made in the said case:
The Court of Appeals seem to have overlooked that the example set forth
in the Code Commission's memorandum refers to a tort upon a minor
who had been seduced. The essential feature is seduction, that in law is
more than mere sexual intercourse, or a breach of a promise of marriage;
it connotes essentially the idea of deceit, enticement, superior power or
abuse of confidence on the part of the seducer to which the woman has
yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil.
595).
It has been ruled in the Buenaventura case (supra) that
To constitute seduction there must in all cases be some
sufficient promise or inducement and the woman must
yield because of the promise or other inducement. If she
consents merely from carnal lust and the intercourse is
from mutual desire, there is no seduction (43 Cent. Dig. tit.
Seduction, par. 56) She must be induced to depart from
the path of virtue by the use of some species of arts,
persuasions and wiles, which are calculated to have and
do have that effect, and which result in her person to
ultimately submitting her person to the sexual embraces of
her seducer (27 Phil. 123).
And in American Jurisprudence we find:
On the other hand, in an action by the woman, the
enticement, persuasion or deception is the essence of the
injury; and a mere proof of intercourse is insufficient to
warrant a recovery.
Accordingly it is not seduction where the willingness arises
out of sexual desire of curiosity of the female, and the
defendant merely affords her the needed opportunity for
the commission of the act. It has been emphasized that to
allow a recovery in all such cases would tend to the
demoralization of the female sex, and would be a reward
for unchastity by which a class of adventuresses would be
swift to profit. (47 Am. Jur. 662)
xxx xxx xxx
Over and above the partisan allegations, the fact stand out that for one
whole year, from 1958 to 1959, the plaintiff-appellee, a woman of adult
age, maintain intimate sexual relations with appellant, with repeated acts
of intercourse. Such conduct is incompatible with the idea of seduction.
Plainly there is here voluntariness and mutual passion; for had the
appellant been deceived, had she surrendered exclusively because of the
deceit, artful persuasions and wiles of the defendant, she would not have
again yielded to his embraces, much less for one year, without exacting
early fulfillment of the alleged promises of marriage, and would have cut
short all sexual relations upon finding that defendant did not intend to
fulfill his defendant did not intend to fulfill his promise. Hence, we
conclude that no case is made under article 21 of the Civil Code, and no
other cause of action being alleged, no error was committed by the Court
of First Instance in dismissing the complaint.
27

In his annotations on the Civil Code,
28
Associate Justice Edgardo L. Paras, who recently
retired from this Court, opined that in a breach of promise to marry where there had
been carnal knowledge, moral damages may be recovered:
. . . if there be criminal or moral seduction, but not if the intercourse was
due to mutual lust. (Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30,
1960; Batarra vs. Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of
Appeals, et al., L-17248, Jan. 29, 1962). (In other words, if the CAUSE be
the promise to marry, and the EFFECT be the carnal knowledge, there is
a chance that there was criminal or moral seduction, hence recovery of
moral damages will prosper. If it be the other way around, there can be no
recovery of moral damages, because here mutual lust has intervened). . .
.
together with "ACTUAL damages, should there be any, such as the expenses for
the wedding presentations (See Domalagon v. Bolifer, 33 Phil. 471).
Senator Arturo M. Tolentino
29
is also of the same persuasion:
It is submitted that the rule in Batarra vs. Marcos,
30
still subsists,
notwithstanding the incorporation of the present article
31
in the Code. The
example given by the Code Commission is correct, if there wasseduction,
not necessarily in the legal sense, but in the vulgar sense of deception.
But when the sexual act is accomplished without any deceit or qualifying
circumstance of abuse of authority or influence, but the woman, already
of age, has knowingly given herself to a man, it cannot be said that there
is an injury which can be the basis for indemnity.
But so long as there is fraud, which is characterized by willfulness (sic),
the action lies. The court, however, must weigh the degree of fraud, if it is
sufficient to deceive the woman under the circumstances, because an act
which would deceive a girl sixteen years of age may not constitute deceit
as to an experienced woman thirty years of age. But so long as there is a
wrongful act and a resulting injury, there should be civil liability, even if
the act is not punishable under the criminal law and there should have
been an acquittal or dismissal of the criminal case for that reason.
We are unable to agree with the petitioner's alternative proposition to the effect that
granting, for argument's sake, that he did promise to marry the private respondent, the
latter is nevertheless also at fault. According to him, both parties are in pari delicto;
hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid down in Batarra
vs. Marcos,
32
the private respondent cannot recover damages from the petitioner. The
latter even goes as far as stating that if the private respondent had "sustained any injury
or damage in their relationship, it is primarily because of her own doing,
33
for:
. . . She is also interested in the petitioner as the latter will become a
doctor sooner or later. Take notice that she is a plain high school
graduate and a mere employee . . . (Annex "C") or a waitress (TSN, p. 51,
January 25, 1988) in a luncheonette and without doubt, is in need of a
man who can give her economic security. Her family is in dire need of
financial assistance. (TSN, pp. 51-53, May 18, 1988). And this
predicament prompted her to accept a proposition that may have been
offered by the petitioner.
34

These statements reveal the true character and motive of the petitioner. It is clear that
he harbors a condescending, if not sarcastic, regard for the private respondent on
account of the latter's ignoble birth, inferior educational background, poverty and, as
perceived by him, dishonorable employment. Obviously then, from the very beginning,
he was not at all moved by good faith and an honest motive. Marrying with a woman so
circumstances could not have even remotely occurred to him. Thus, his profession of
love and promise to marry were empty words directly intended to fool, dupe, entice,
beguile and deceive the poor woman into believing that indeed, he loved her and would
want her to be his life's partner. His was nothing but pure lust which he wanted satisfied
by a Filipina who honestly believed that by accepting his proffer of love and proposal of
marriage, she would be able to enjoy a life of ease and security. Petitioner clearly
violated the Filipino's concept of morality and brazenly defied the traditional respect
Filipinos have for their women. It can even be said that the petitioner committed such
deplorable acts in blatant disregard of Article 19 of the Civil Code which directs every
person to act with justice, give everyone his due and observe honesty and good faith in
the exercise of his rights and in the performance of his obligations.
No foreigner must be allowed to make a mockery of our laws, customs and traditions.
The pari delicto rule does not apply in this case for while indeed, the private respondent
may not have been impelled by the purest of intentions, she eventually submitted to the
petitioner in sexual congress not out of lust, but because of moral seduction. In fact, it is
apparent that she had qualms of conscience about the entire episode for as soon as she
found out that the petitioner was not going to marry her after all, she left him. She is not,
therefore, in pari delicto with the petitioner. Pari delicto means "in equal fault; in a similar
offense or crime; equal in guilt or in legal fault."
35
At most, it could be conceded that she
is merely in delicto.
Equity often interferes for the relief of the less guilty of the parties, where
his transgression has been brought about by the imposition of undue
influence of the party on whom the burden of the original wrong principally
rests, or where his consent to the transaction was itself procured by
fraud.
36

In Mangayao vs. Lasud,
37
We declared:
Appellants likewise stress that both parties being at fault, there should be
no action by one against the other (Art. 1412, New Civil Code). This rule,
however, has been interpreted as applicable only where the fault on both
sides is, more or less, equivalent. It does not apply where one party is
literate or intelligent and the other one is not. (c.f. Bough vs. Cantiveros,
40 Phil. 209).
We should stress, however, that while We find for the private respondent, let it not be
said that this Court condones the deplorable behavior of her parents in letting her and
the petitioner stay together in the same room in their house after giving approval to their
marriage. It is the solemn duty of parents to protect the honor of their daughters and
infuse upon them the higher values of morality and dignity.
WHEREFORE, finding no reversible error in the challenged decision, the instant petition
is hereby DENIED, with costs against the petitioner.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
Gutierrez, Jr., J., is on leave.
DIGEST

In August 1986, while working as a waitress in Dagupan City, Pangasinan, Marilou
Gonzales, then 21 years old, met Gashem Shookat Baksh, a 29 year old exchange
student from Iran who was studying medicine in Dagupan. The two got really close and
intimate. On Marilous account, she said that Gashem later offered to marry her at the
end of the semester. Marilou then introduced Gashem to her parents where they
expressed their intention to get married. Marilous parents then started inviting sponsors
and relatives to the wedding. They even started looking for animals to slaughter for the
occasion.
Meanwhile, Marilou started living with Gashem in his apartment where they had sexual
intercourse. But in no time, their relationship went sour as Gashem began maltreating
Marilou. Gashem eventually revoked his promise of marrying Marilou and he told her
that he is already married to someone in Bacolod City. So Marilou went home and later
sued Gashem for damages.
The trial court ruled in favor of Marilou and awarded her P20k in moral damages. The
Court of Appeals affirmed the decision of the trial court.
On appeal, Gashem averred that he never proposed marriage to Marilou and that he
cannot be adjudged to have violated Filipino customs and traditions since he, being an
Iranian, was not familiar with Filipino customs and traditions.
ISSUE: Whether or not the Court of Appeals is correct.
HELD: Yes. Gashem is liable to pay for damages in favor of Marilou not really because
of his breach of promise to marry her but based on Article 21 of the Civil Code which
provides:
Any person who wilfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.
Breach of promise to marry is not an actionable wrong per se. In this case, it is the
deceit and fraud employed by Gashem that constitutes a violation of Article 21 of the
Civil Code. His promise of marrying Marilou was a deceitful scheme to lure her into
sexual congress. As found by the trial court, Marilou was not a woman of loose morals.
She was a virgin before she met Gashem. She would not have surrendered herself to
Gashem had Gashem not promised to marry her. Gashems blatant disregard of Filipino
traditions on marriage and on the reputation of Filipinas is contrary to morals, good
customs, and public policy. As a foreigner who is enjoying the hospitality of our country
and even taking advantage of the opportunity to study here he is expected to respect our
traditions. Any act contrary will render him liable under Article 21 of the Civil Code.
The Supreme Court also elucidated that Article 21 was meant to expand the concepts of
torts and quasi delict. It is meant to cover situations such as this case where the breach
complained of is not strictly covered by existing laws. It was meant as a legal remedy for
the untold number of moral wrongs which is impossible for human foresight to
specifically enumerate and punish in the statute books such as the absence of a law
penalizing a the breach of promise to marry.
The Supreme Court however agreed with legal luminaries that if the promise to marry
was made and there was carnal knowledge because of it, then moral damages may be
recovered (presence of moral or criminal seduction), Except if there was mutual lust; or if
expenses were made because of the promise (expenses for the wedding), then actual
damages may be recovered.

Globe Mackay Cable and Radio Corp. vs. CA (176 SCRA 778)
GLOBE MACKAY CABLE AND RADIO CORP., and HERBERT C.
HENDRY, petitioners,
vs.
THE HONORABLE COURT OF APPEALS and RESTITUTO M. TOBIAS, respondents.
Atencia & Arias Law Offices for petitioners.
Romulo C. Felizmena for private respondent.

CORTES, J .:
Private respondent Restituto M. Tobias was employed by petitioner Globe Mackay Cable
and Radio Corporation (GLOBE MACKAY) in a dual capacity as a purchasing agent and
administrative assistant to the engineering operations manager. In 1972, GLOBE
MACKAY discovered fictitious purchases and other fraudulent transactions for which it
lost several thousands of pesos.
According to private respondent it was he who actually discovered the anomalies and
reported them on November 10, 1972 to his immediate superior Eduardo T. Ferraren
and to petitioner Herbert C. Hendry who was then the Executive Vice-President and
General Manager of GLOBE MACKAY.
On November 11, 1972, one day after private respondent Tobias made the report,
petitioner Hendry confronted him by stating that he was the number one suspect, and
ordered him to take a one week forced leave, not to communicate with the office, to
leave his table drawers open, and to leave the office keys.
On November 20, 1972, when private respondent Tobias returned to work after the
forced leave, petitioner Hendry went up to him and called him a "crook" and a "swindler."
Tobias was then ordered to take a lie detector test. He was also instructed to submit
specimen of his handwriting, signature, and initials for examination by the police
investigators to determine his complicity in the anomalies.
On December 6,1972, the Manila police investigators submitted a laboratory crime
report (Exh. "A") clearing private respondent of participation in the anomalies.
Not satisfied with the police report, petitioners hired a private investigator, retired Col.
Jose G. Fernandez, who on December 10, 1972, submitted a report (Exh. "2") finding
Tobias guilty. This report however expressly stated that further investigation was still to
be conducted.
Nevertheless, on December 12, 1972, petitioner Hendry issued a memorandum
suspending Tobias from work preparatory to the filing of criminal charges against him.
On December 19,1972, Lt. Dioscoro V. Tagle, Metro Manila Police Chief Document
Examiner, after investigating other documents pertaining to the alleged anomalous
transactions, submitted a second laboratory crime report (Exh. "B") reiterating his
previous finding that the handwritings, signatures, and initials appearing in the checks
and other documents involved in the fraudulent transactions were not those of Tobias.
The lie detector tests conducted on Tobias also yielded negative results.
Notwithstanding the two police reports exculpating Tobias from the anomalies and the
fact that the report of the private investigator, was, by its own terms, not yet complete,
petitioners filed with the City Fiscal of Manila a complaint for estafa through falsification
of commercial documents, later amended to just estafa. Subsequently five other criminal
complaints were filed against Tobias, four of which were for estafa through Falsification
of commercial document while the fifth was for of Article 290 of' the Revised Penal Code
(Discovering Secrets Through Seizure of Correspondence).lwph1.t Two of these
complaints were refiled with the Judge Advocate General's Office, which however,
remanded them to the fiscal's office. All of the six criminal complaints were dismissed by
the fiscal. Petitioners appealed four of the fiscal's resolutions dismissing the criminal
complaints with the Secretary of Justice, who, however, affirmed their dismissal.
In the meantime, on January 17, 1973, Tobias received a notice (Exh. "F") from
petitioners that his employment has been terminated effective December 13, 1972.
Whereupon, Tobias filed a complaint for illegal dismissal. The labor arbiter dismissed the
complaint. On appeal, the National Labor Relations Commission (NLRC) reversed the
labor arbiter's decision. However, the Secretary of Labor, acting on petitioners' appeal
from the NLRC ruling, reinstated the labor arbiter's decision. Tobias appealed the
Secretary of Labor's order with the Office of the President. During the pendency of the
appeal with said office, petitioners and private respondent Tobias entered into a
compromise agreement regarding the latter's complaint for illegal dismissal.
Unemployed, Tobias sought employment with the Republic Telephone Company
(RETELCO). However, petitioner Hendry, without being asked by RETELCO, wrote a
letter to the latter stating that Tobias was dismissed by GLOBE MACKAY due to
dishonesty.
Private respondent Tobias filed a civil case for damages anchored on alleged unlawful,
malicious, oppressive, and abusive acts of petitioners. Petitioner Hendry, claiming
illness, did not testify during the hearings. The Regional Trial Court (RTC) of Manila,
Branch IX, through Judge Manuel T. Reyes rendered judgment in favor of private
respondent by ordering petitioners to pay him eighty thousand pesos (P80,000.00) as
actual damages, two hundred thousand pesos (P200,000.00) as moral damages, twenty
thousand pesos (P20,000.00) as exemplary damages, thirty thousand pesos
(P30,000.00) as attorney's fees, and costs. Petitioners appealed the RTC decision to the
Court of Appeals. On the other hand, Tobias appealed as to the amount of damages.
However, the Court of Appeals, an a decision dated August 31, 1987 affirmed the RTC
decision in toto. Petitioners' motion for reconsideration having been denied, the instant
petition for review on certiorari was filed.
The main issue in this case is whether or not petitioners are liable for damages to private
respondent.
Petitioners contend that they could not be made liable for damages in the lawful exercise
of their right to dismiss private respondent.
On the other hand, private respondent contends that because of petitioners' abusive
manner in dismissing him as well as for the inhuman treatment he got from them, the
Petitioners must indemnify him for the damage that he had suffered.
One of the more notable innovations of the New Civil Code is the codification of "some
basic principles that are to be observed for the rightful relationship between human
beings and for the stability of the social order." [REPORT ON THE CODE COMMISSION
ON THE PROPOSED CIVIL CODE OF THE PHILIPPINES, p. 39]. The framers of the
Code, seeking to remedy the defect of the old Code which merely stated the effects of
the law, but failed to draw out its spirit, incorporated certain fundamental precepts which
were "designed to indicate certain norms that spring from the fountain of good
conscience" and which were also meant to serve as "guides for human conduct [that]
should run as golden threads through society, to the end that law may approach its
supreme ideal, which is the sway and dominance of justice" (Id.) Foremost among these
principles is that pronounced in Article 19 which provides:
Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
This article, known to contain what is commonly referred to as the principle of abuse of
rights, sets certain standards which must be observed not only in the exercise of one's
rights but also in the performance of one's duties. These standards are the following: to
act with justice; to give everyone his due; and to observe honesty and good faith. The
law, therefore, recognizes a primordial limitation on all rights; that in their exercise, the
norms of human conduct set forth in Article 19 must be observed. A right, though by
itself legal because recognized or granted by law as such, may nevertheless become the
source of some illegality. When a right is exercised in a manner which does not conform
with the norms enshrined in Article 19 and results in damage to another, a legal wrong is
thereby committed for which the wrongdoer must be held responsible. But while Article
19 lays down a rule of conduct for the government of human relations and for the
maintenance of social order, it does not provide a remedy for its violation. Generally, an
action for damages under either Article 20 or Article 21 would be proper.
Article 20, which pertains to damage arising from a violation of law, provides that:
Art. 20. Every person who contrary to law, wilfully or negligently causes
damage to another, shall indemnify the latter for the same.
However, in the case at bar, petitioners claim that they did not violate any provision of
law since they were merely exercising their legal right to dismiss private respondent.
This does not, however, leave private respondent with no relief because Article 21 of the
Civil Code provides that:
Art. 21. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.
This article, adopted to remedy the "countless gaps in the statutes, which leave so many
victims of moral wrongs helpless, even though they have actually suffered material and
moral injury" [Id.] should "vouchsafe adequate legal remedy for that untold number of
moral wrongs which it is impossible for human foresight to provide for specifically in the
statutes" [Id. it p. 40; See also PNB v. CA, G.R. No. L-27155, May 18,1978, 83 SCRA
237, 247].
In determining whether or not the principle of abuse of rights may be invoked, there is no
rigid test which can be applied. While the Court has not hesitated to apply Article 19
whether the legal and factual circumstances called for its application [See for e.g.,
Velayo v. Shell Co. of the Phil., Ltd., 100 Phil. 186 (1956); PNB v. CA, supra;Grand
Union Supermarket, Inc. v. Espino, Jr., G.R. No. L-48250, December 28, 1979, 94
SCRA 953; PAL v. CA, G.R. No. L-46558, July 31,1981,106 SCRA 391; United General
Industries, Inc, v. Paler G.R. No. L-30205, March 15,1982,112 SCRA 404; Rubio v. CA,
G.R. No. 50911, August 21, 1987, 153 SCRA 183] the question of whether or not the
principle of abuse of rights has been violated resulting in damages under Article 20 or
Article 21 or other applicable provision of law, depends on the circumstances of each
case. And in the instant case, the Court, after examining the record and considering
certain significant circumstances, finds that all petitioners have indeed abused the right
that they invoke, causing damage to private respondent and for which the latter must
now be indemnified.
The trial court made a finding that notwithstanding the fact that it was private respondent
Tobias who reported the possible existence of anomalous transactions, petitioner
Hendry "showed belligerence and told plaintiff (private respondent herein) that he was
the number one suspect and to take a one week vacation leave, not to communicate
with the office, to leave his table drawers open, and to leave his keys to said defendant
(petitioner Hendry)" [RTC Decision, p. 2; Rollo, p. 232]. This, petitioners do not dispute.
But regardless of whether or not it was private respondent Tobias who reported the
anomalies to petitioners, the latter's reaction towards the former upon uncovering the
anomalies was less than civil. An employer who harbors suspicions that an employee
has committed dishonesty might be justified in taking the appropriate action such as
ordering an investigation and directing the employee to go on a leave. Firmness and the
resolve to uncover the truth would also be expected from such employer. But the high-
handed treatment accorded Tobias by petitioners was certainly uncalled for. And this
reprehensible attitude of petitioners was to continue when private respondent returned to
work on November 20, 1972 after his one week forced leave. Upon reporting for work,
Tobias was confronted by Hendry who said. "Tobby, you are the crook and swindler in
this company." Considering that the first report made by the police investigators was
submitted only on December 10, 1972 [See Exh. A] the statement made by petitioner
Hendry was baseless. The imputation of guilt without basis and the pattern of
harassment during the investigations of Tobias transgress the standards of human
conduct set forth in Article 19 of the Civil Code. The Court has already ruled that the
right of the employer to dismiss an employee should not be confused with the manner in
which the right is exercised and the effects flowing therefrom. If the dismissal is done
abusively, then the employer is liable for damages to the employee [Quisaba v. Sta.
Ines-Melale Veneer and Plywood Inc., G.R. No. L-38088, August 30, 1974, 58 SCRA
771; See also Philippine Refining Co., Inc. v. Garcia, G.R. No. L-21871, September
27,1966, 18 SCRA 107] Under the circumstances of the instant case, the petitioners
clearly failed to exercise in a legitimate manner their right to dismiss Tobias, giving the
latter the right to recover damages under Article 19 in relation to Article 21 of the Civil
Code.
But petitioners were not content with just dismissing Tobias. Several other tortious acts
were committed by petitioners against Tobias after the latter's termination from work.
Towards the latter part of January, 1973, after the filing of the first of six criminal
complaints against Tobias, the latter talked to Hendry to protest the actions taken
against him. In response, Hendry cut short Tobias' protestations by telling him to just
confess or else the company would file a hundred more cases against him until he
landed in jail. Hendry added that, "You Filipinos cannot be trusted." The threat
unmasked petitioner's bad faith in the various actions taken against Tobias. On the other
hand, the scornful remark about Filipinos as well as Hendry's earlier statements about
Tobias being a "crook" and "swindler" are clear violations of 'Tobias' personal dignity
[See Article 26, Civil Code].
The next tortious act committed by petitioners was the writing of a letter to RETELCO
sometime in October 1974, stating that Tobias had been dismissed by GLOBE MACKAY
due to dishonesty. Because of the letter, Tobias failed to gain employment with
RETELCO and as a result of which, Tobias remained unemployed for a longer period of
time. For this further damage suffered by Tobias, petitioners must likewise be held liable
for damages consistent with Article 2176 of the Civil Code. Petitioners, however,
contend that they have a "moral, if not legal, duty to forewarn other employers of the kind
of employee the plaintiff (private respondent herein) was." [Petition, p. 14; Rollo, p. 15].
Petitioners further claim that "it is the accepted moral and societal obligation of every
man to advise or warn his fellowmen of any threat or danger to the latter's life, honor or
property. And this includes warning one's brethren of the possible dangers involved in
dealing with, or accepting into confidence, a man whose honesty and integrity is
suspect" [Id.]. These arguments, rather than justify petitioners' act, reveal a seeming
obsession to prevent Tobias from getting a job, even after almost two years from the
time Tobias was dismissed.
Finally, there is the matter of the filing by petitioners of six criminal complaints against
Tobias. Petitioners contend that there is no case against them for malicious prosecution
and that they cannot be "penalized for exercising their right and prerogative of seeking
justice by filing criminal complaints against an employee who was their principal suspect
in the commission of forgeries and in the perpetration of anomalous transactions which
defrauded them of substantial sums of money" [Petition, p. 10, Rollo, p. 11].
While sound principles of justice and public policy dictate that persons shall have free
resort to the courts for redress of wrongs and vindication of their rights [Buenaventura v.
Sto. Domingo, 103 Phil. 239 (1958)], the right to institute criminal prosecutions can not
be exercised maliciously and in bad faith [Ventura v. Bernabe, G.R. No. L-26760, April
30, 1971, 38 SCRA 5871.] Hence, in Yutuk V. Manila Electric Co., G.R. No. L-13016,
May 31, 1961, 2 SCRA 337, the Court held that the right to file criminal complaints
should not be used as a weapon to force an alleged debtor to pay an indebtedness. To
do so would be a clear perversion of the function of the criminal processes and of the
courts of justice. And in Hawpia CA, G.R. No. L-20047, June 30, 1967. 20 SCRA 536 the
Court upheld the judgment against the petitioner for actual and moral damages and
attorney's fees after making a finding that petitioner, with persistence, filed at least six
criminal complaints against respondent, all of which were dismissed.
To constitute malicious prosecution, there must be proof that the prosecution was
prompted by a design to vex and humiliate a person and that it was initiated deliberately
by the defendant knowing that the charges were false and groundless [Manila Gas
Corporation v. CA, G.R. No. L-44190, October 30,1980, 100 SCRA 602]. Concededly,
the filing of a suit by itself, does not render a person liable for malicious prosecution
[Inhelder Corporation v. CA, G.R. No. 52358, May 301983122 SCRA 576]. The mere
dismissal by the fiscal of the criminal complaint is not a ground for an award of damages
for malicious prosecution if there is no competent evidence to show that the complainant
had acted in bad faith [Sison v. David, G.R. No. L-11268, January 28,1961, 1 SCRA 60].
In the instant case, however, the trial court made a finding that petitioners acted in bad
faith in filing the criminal complaints against Tobias, observing that:
x x x
Defendants (petitioners herein) filed with the Fiscal's Office of Manila a
total of six (6) criminal cases, five (5) of which were for estafa thru
falsification of commercial document and one for violation of Art. 290 of
the Revised Penal Code "discovering secrets thru seizure of
correspondence," and all were dismissed for insufficiency or lack of
evidence." The dismissal of four (4) of the cases was appealed to the
Ministry of Justice, but said Ministry invariably sustained the dismissal of
the cases. As above adverted to, two of these cases were refiled with the
Judge Advocate General's Office of the Armed Forces of the Philippines
to railroad plaintiffs arrest and detention in the military stockade, but this
was frustrated by a presidential decree transferring criminal cases
involving civilians to the civil courts.
x x x
To be sure, when despite the two (2) police reports embodying the
findings of Lt. Dioscoro Tagle, Chief Document Examiner of the Manila
Police Department, clearing plaintiff of participation or involvement in the
fraudulent transactions complained of, despite the negative results of the
lie detector tests which defendants compelled plaintiff to undergo, and
although the police investigation was "still under follow-up and a
supplementary report will be submitted after all the evidence has been
gathered," defendants hastily filed six (6) criminal cases with the city
Fiscal's Office of Manila, five (5) for estafa thru falsification of commercial
document and one (1) for violation of Art. 290 of the Revised Penal Code,
so much so that as was to be expected, all six (6) cases were dismissed,
with one of the investigating fiscals, Asst. Fiscal de Guia, commenting in
one case that, "Indeed, the haphazard way this case was investigated is
evident. Evident likewise is the flurry and haste in the filing of this case
against respondent Tobias," there can be no mistaking that defendants
would not but be motivated by malicious and unlawful intent to harass,
oppress, and cause damage to plaintiff.
x x x
[RTC Decision, pp. 5-6; Rollo, pp. 235-236].
In addition to the observations made by the trial court, the Court finds it significant that
the criminal complaints were filed during the pendency of the illegal dismissal case filed
by Tobias against petitioners. This explains the haste in which the complaints were filed,
which the trial court earlier noted. But petitioners, to prove their good faith, point to the
fact that only six complaints were filed against Tobias when they could have allegedly
filed one hundred cases, considering the number of anomalous transactions committed
against GLOBE MACKAY. However, petitioners' good faith is belied by the threat made
by Hendry after the filing of the first complaint that one hundred more cases would be
filed against Tobias. In effect, the possible filing of one hundred more cases was made
to hang like the sword of Damocles over the head of Tobias. In fine, considering the
haste in which the criminal complaints were filed, the fact that they were filed during the
pendency of the illegal dismissal case against petitioners, the threat made by Hendry,
the fact that the cases were filed notwithstanding the two police reports exculpating
Tobias from involvement in the anomalies committed against GLOBE MACKAY, coupled
by the eventual dismissal of all the cases, the Court is led into no other conclusion than
that petitioners were motivated by malicious intent in filing the six criminal complaints
against Tobias.
Petitioners next contend that the award of damages was excessive. In the complaint
filed against petitioners, Tobias prayed for the following: one hundred thousand pesos
(P100,000.00) as actual damages; fifty thousand pesos (P50,000.00) as exemplary
damages; eight hundred thousand pesos (P800,000.00) as moral damages; fifty
thousand pesos (P50,000.00) as attorney's fees; and costs. The trial court, after making
a computation of the damages incurred by Tobias [See RTC Decision, pp. 7-8; Rollo, pp.
154-1551, awarded him the following: eighty thousand pesos (P80,000.00) as actual
damages; two hundred thousand pesos (P200,000.00) as moral damages; twenty
thousand pesos (P20,000.00) as exemplary damages; thirty thousand pesos
(P30,000.00) as attorney's fees; and, costs. It must be underscored that petitioners have
been guilty of committing several actionable tortious acts, i.e., the abusive manner in
which they dismissed Tobias from work including the baseless imputation of guilt and the
harassment during the investigations; the defamatory language heaped on Tobias as
well as the scornful remark on Filipinos; the poison letter sent to RETELCO which
resulted in Tobias' loss of possible employment; and, the malicious filing of the criminal
complaints. Considering the extent of the damage wrought on Tobias, the Court finds
that, contrary to petitioners' contention, the amount of damages awarded to Tobias was
reasonable under the circumstances.
Yet, petitioners still insist that the award of damages was improper, invoking the principle
of damnum absqueinjuria. It is argued that "[t]he only probable actual damage that
plaintiff (private respondent herein) could have suffered was a direct result of his having
been dismissed from his employment, which was a valid and legal act of the defendants-
appellants (petitioners herein).lwph1.t " [Petition, p. 17; Rollo, p. 18].
According to the principle of damnum absque injuria, damage or loss which does not
constitute a violation of a legal right or amount to a legal wrong is not actionable [Escano
v. CA, G.R. No. L-47207, September 25, 1980, 100 SCRA 197; See also Gilchrist v.
Cuddy 29 Phil, 542 (1915); The Board of Liquidators v. Kalaw, G.R. No. L-18805, August
14, 1967, 20 SCRA 987]. This principle finds no application in this case. It bears
repeating that even granting that petitioners might have had the right to dismiss Tobias
from work, the abusive manner in which that right was exercised amounted to a legal
wrong for which petitioners must now be held liable. Moreover, the damage incurred by
Tobias was not only in connection with the abusive manner in which he was dismissed
but was also the result of several other quasi-delictual acts committed by petitioners.
Petitioners next question the award of moral damages. However, the Court has already
ruled in Wassmer v. Velez, G.R. No. L-20089, December 26, 1964, 12 SCRA 648, 653,
that [p]er express provision of Article 2219 (10) of the New Civil Code, moral damages
are recoverable in the cases mentioned in Article 21 of said Code." Hence, the Court of
Appeals committed no error in awarding moral damages to Tobias.
Lastly, the award of exemplary damages is impugned by petitioners. Although Article
2231 of the Civil Code provides that "[i]n quasi-delicts, exemplary damages may be
granted if the defendant acted with gross negligence," the Court, in Zulueta v. Pan
American World Airways, Inc., G.R. No. L- 28589, January 8, 1973, 49 SCRA 1, ruled
that if gross negligence warrants the award of exemplary damages, with more reason is
its imposition justified when the act performed is deliberate, malicious and tainted with
bad faith. As in the Zuluetacase, the nature of the wrongful acts shown to have been
committed by petitioners against Tobias is sufficient basis for the award of exemplary
damages to the latter.
WHEREFORE, the petition is hereby DENIED and the decision of the Court of Appeals
in CA-G.R. CV No. 09055 is AFFIRMED.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr. and Bidin, JJ., concur.
Feliciano, J., took no part.
DIGEST
Facts:
10 November 1972, herein private respondent Restituto Tobias, a purchasing
agent and administrative assistant to the engineering operations manager, discovered
fictitious purchases and other fraudulent transactions, which caused Globe Mackay
Cable and Radio Corp loss of several thousands of pesos. He reported it to his
immediate superior Eduardo T. Ferraren and to the Executive Vice President and
General Manager Herbert Hendry. A day after the report, Hendry told Tobias that he was
number one suspect and ordered him one week forced leave. When Tobias returned to
work after said leave, Hendry called him a crook and a swindler, ordered him to take
a lie detector test, and to submit specimen of his handwriting, signature and initials for
police investigation. Moreover, petitioners hired a private investigator. Private
investigation was still incomplete; the lie detector tests yielded negative results; reports
from Manila police investigators and from the Metro Manila Police Chief Document
Examiner are in favor of Tobias. Petitioners filed with the Fiscals Office of Manila a total
of six (6) criminal cases against private respondent Tobias, but were dismissed.
Tobias received a notice of termination of his employment from petitioners in
January 1973, effective December 1972. He sought employment with the Republic
Telephone Company (RETELCO); but Hendry wrote a letter to RETELCO stating that
Tobias was dismissed by Globe Mackay due to dishonesty. Tobias, then, filed a civil
case for damages anchored on alleged unlawful, malicious, oppressive, and abusive
acts of petitioners. The Regional Trial Court of Manila, Branch IX, through Judge Manuel
T. Reyes rendered judgment in favor of private respondent, ordering petitioners to pay
him eighty thousand pesos (P80,000.00) as actual damages, two hundred thousand
pesos (P200,000.00) as moral damages, twenty thousand pesos (P20,000.00) as
exemplary damages, thirty thousand pesos (P30,000.00) as attorney's fees, and costs;
hence, this petition for review on certiorari.

Issue: Whether or not petitioners are liable for damages to private respondent.

Held:
Yes. The Court, after examining the record and considering certain significant
circumstances, finds that all petitioners have indeed abused the right that they invoke,
causing damage to private respondent and for which the latter must now be indemnified:
when Hendry told Tobias to just confess or else the company would file a hundred more
cases against him until he landed in jail; his (Hendry) scornful remarks about Filipinos
("You Filipinos cannot be trusted.) as well as against Tobias (crook, and swindler);
the writing of a letter to RETELCO stating that Tobias was dismissed by Globe Mackay
due to dishonesty; and the filing of six criminal cases by petitioners against private
respondent. All these reveal that petitioners are motivated by malicious and unlawful
intent to harass, oppress, and cause damage to private respondent. The imputation of
guilt without basis and the pattern of harassment during the investigations of Tobias
transgress the standards of human conduct set forth in Article 19 of the Civil Code.

WHEREFORE, the petition is DENIED and the decision of the Court of Appeals
in CA-G.R. CV No. 09055 is AFFIRMED.

University of the East vs. Jader (G.R. No. 132344, 7 February 2000)
UNIVERSITY OF THE EAST, petitioner,
vs.
ROMEO A. JADER, respondent.
YNARES-SANTIAGO, J .:
May an educational institution be held liable for damages for misleading a student into
believing that the latter had satisfied all the requirements for graduation when such is not
the case? This is the issue in the instant petition for review premised on the following
undisputed facts as summarized by the trial court and adopted by the Court of Appeals
(CA),
1
to wit:
Plaintiff was enrolled in the defendants' College of Law from 1984 up to 1988. In
the first semester of his last year (School year 1987-1988), he failed to take the
regular final examination in Practice Court I for which he was given an
incomplete grade (Exhibits "2", also Exhibit "H"). He enrolled for the second
semester as fourth year law student (Exhibit "A") and on February 1, 1988 he
filed an application for the removal of the incomplete grade given him by
Professor Carlos Ortega (Exhibits "H-2", also Exhibit "2") which was approved by
Dean Celedonio Tiongson after payment of the required fee. He took the
examination on March 28, 1988. On May 30, 1988, Professor Carlos Ortega
submitted his grade. It was a grade of five (5). (Exhibits "H-4", also Exhibits "2-L",
"2-N").1wphi1.nt
In the meantime, the Dean and the Faculty Members of the College of Law met
to deliberate on who among the fourth year students should be allowed to
graduate. The plaintiff's name appeared in the Tentative List of Candidates for
graduation for the Degree of Bachelor of Laws (LL.B) as of Second Semester
(1987-1988) with the following annotation:
JADER ROMEO A.
Def. Conflict of Laws x-1-87-88, Practice Court I Inc., 1-87-88 C-1 to submit
transcript with S.O. (Exhibits "3", "3-C-1", "3-C-2").
The 35th Investitures & Commencement Ceremonies for the candidates of
Bachelor of Laws was scheduled on the 16th of April 1988 at 3:00 o'clock in the
afternoon, and in the invitation for that occasion the name of the plaintiff
appeared as one of the candidates. (Exhibits "B", "B-6", "B-6-A"). At the foot of
the list of the names of the candidates there appeared however the following
annotation:
This is a tentative list Degrees will be conferred upon these candidates
who satisfactorily complete requirements as stated in the University
Bulletin and as approved of the Department of Education, Culture and
Sports (Exhibit "B-7-A").
The plaintiff attended the investiture ceremonies at F. dela Cruz Quadrangle,
U.E., Recto Campus, during the program of which he went up the stage when his
name was called, escorted by her (sic) mother and his eldest brother who
assisted in placing the Hood, and his Tassel was turned from left to right, and he
was thereafter handed by Dean Celedonio a rolled white sheet of paper
symbolical of the Law Diploma. His relatives took pictures of the occasion
(Exhibits "C" to "C-6", "D-3" to "D-11").
He tendered a blow-out that evening which was attended by neighbors, friends
and relatives who wished him good luck in the forthcoming bar examination.
There were pictures taken too during the blow-out (Exhibits "D" to "D-1").
He thereafter prepared himself for the bar examination. He took a leave of
absence without pay from his job from April 20, 1988 to September 30, 1988
(Exhibit "G") and enrolled at the pre-bar review class in Far Eastern University.
(Exhibits "F" to "F-2"). Having learned of the deficiency he dropped his review
class and was not able to take the bar examination.
2

Consequently, respondent sued petitioner for damages alleging that he suffered moral
shock, mental anguish, serious anxiety, besmirched reputation, wounded feelings and
sleepless nights when he was not able to take the 1988 bar examinations arising from
the latter's negligence. He prayed for an award of moral and exemplary damages,
unrealized income, attorney's fees, and costs of suit.
In its answer with counterclaim, petitioner denied liability arguing mainly that it never led
respondent to believe that he completed the requirements for a Bachelor of Laws degree
when his name was included in the tentative list of graduating students. After trial, the
lower court rendered judgment as follows:
WHEREFORE, in view of the foregoing judgment is hereby rendered in favor of
the plaintiff and against the defendant ordering the latter to pay plaintiff the sum
of THIRTY FIVE THOUSAND FOUR HUNDRED SEVENTY PESOS
(P35,470.00) with legal rate of interest from the filing of the complaint until fully
paid, the amount of FIVE THOUSAND PESOS (P5,000.00) as attorney's fees
and the cost of suit.
Defendant's counterclaim is, for lack of merit, hereby dismissed.
SO ORDERED.
3

which on appeal by both parties was affirmed by the Court of Appeals (CA) with
modification. The dispositive portion of the CA decision reads:
WHEREFORE, in the light of the foregoing, the lower Court's Decision is hereby
AFFIRMED with the MODIFICATION that defendant-appellee, in addition to the
sum adjudged by the lower court in favor of plaintiff-appellant, is also ORDERED
to pay plaintiff-appellant the amount of FIFTY THOUSAND (P50,000.00) PESOS
for moral damages. Costs against defendant-appellee.
SO ORDERED.
4

Upon the denial of its motion for reconsideration, petitioner UE elevated the case to this
Court on a petition for review under Rule 45 of the Rules of Court, arguing that it has no
liability to respondent Romeo A. Jader, considering that the proximate and immediate
cause of the alleged damages incurred by the latter arose out of his own negligence in
not verifying from the professor concerned the result of his removal exam.
The petition lacks merit.
When a student is enrolled in any educational or learning institution, a contract of
education is entered into between said institution and the student. The professors,
teachers or instructors hired by the school are considered merely as agents and
administrators tasked to perform the school's commitment under the contract. Since the
contracting parties are the school and the student, the latter is not duty-bound to deal
with the former's agents, such as the professors with respect to the status or result of his
grades, although nothing prevents either professors or students from sharing with each
other such information. The Court takes judicial notice of the traditional practice in
educational institutions wherein the professor directly furnishes his/her students their
grades. It is the contractual obligation of the school to timely inform and furnish sufficient
notice and information to each and every student as to whether he or she had already
complied with all the requirements for the conferment of a degree or whether they would
be included among those who will graduate. Although commencement exercises are but
a formal ceremony, it nonetheless is not an ordinary occasion, since such ceremony is
the educational institution's way of announcing to the whole world that the students
included in the list of those who will be conferred a degree during the baccalaureate
ceremony have satisfied all the requirements for such degree. Prior or subsequent to the
ceremony, the school has the obligation to promptly inform the student of any problem
involving the latter's grades and performance and also most importantly, of the
procedures for remedying the same.
Petitioner, in belatedly informing respondent of the result of the removal examination,
particularly at a time when he had already commenced preparing for the bar exams,
cannot be said to have acted in good faith. Absence of good faith must be sufficiently
established for a successful prosecution by the aggrieved party in a suit for abuse of
right under Article 19 of the Civil Code. Good faith connotes an honest intention to
abstain from taking undue advantage of another, even though the forms and
technicalities of the law, together with the absence of all information or belief of facts,
would render the transaction unconscientious.
5
It is the school that has access to those
information and it is only the school that can compel its professors to act and comply
with its rules, regulations and policies with respect to the computation and the prompt
submission of grades. Students do not exercise control, much less influence, over the
way an educational institution should run its affairs, particularly in disciplining its
professors and teachers and ensuring their compliance with the school's rules and
orders. Being the party that hired them, it is the school that exercises general
supervision and exclusive control over the professors with respect to the submission of
reports involving the students' standing. Exclusive control means that no other person or
entity had any control over the instrumentality which caused the damage or injury.
6

The college dean is the senior officer responsible for the operation of an academic
program, enforcement of rules and regulations, and the supervision of faculty and
student services.
7
He must see to it that his own professors and teachers, regardless of
their status or position outside of the university, must comply with the rules set by the
latter. The negligent act of a professor who fails to observe the rules of the school, for
instance by not promptly submitting a student's grade, is not only imputable to the
professor but is an act of the school, being his employer.
Considering further, that the institution of learning involved herein is a university which is
engaged in legal education, it should have practiced what it inculcates in its students,
more specifically the principle of good dealings enshrined in Articles 19 and 20 of the
Civil Code which states:
Art. 19. Every person must, in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due, and observe honesty and good
faith.
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage
to another, shall indemnify the latter for the same.
Art. 19 was intended to expand the concept of torts by granting adequate legal remedy
for the untold number of moral wrongs which is impossible for human foresight to
provide specifically in statutory law.
8
In civilized society, men must be able to assume
that others will do them no intended injury that others will commit no internal
aggressions upon them; that their fellowmen, when they act affirmatively will do so with
due care which the ordinary understanding and moral sense of the community exacts
and that those with whom they deal in the general course of society will act in good faith.
The ultimate thing in the theory of liability is justifiable reliance under conditions of
civilized society.
9
Schools and professors cannot just take students for granted and be
indifferent to them, for without the latter, the former are useless.
Educational institutions are duty-bound to inform the students of their academic status
and not wait for the latter to inquire from the former. The conscious indifference of a
person to the rights or welfare of the person/persons who may be affected by his act or
omission can support a claim for damages.
10
Want of care to the conscious disregard of
civil obligations coupled with a conscious knowledge of the cause naturally calculated to
produce them would make the erring party liable.
11
Petitioner ought to have known that
time was of the essence in the performance of its obligation to inform respondent of his
grade. It cannot feign ignorance that respondent will not prepare himself for the bar
exams since that is precisely the immediate concern after graduation of an LL.B.
graduate. It failed to act seasonably. Petitioner cannot just give out its student's grades
at any time because a student has to comply with certain deadlines set by the Supreme
Court on the submission of requirements for taking the bar. Petitioner's liability arose
from its failure to promptly inform respondent of the result of an examination and in
misleading the latter into believing that he had satisfied all requirements for the course.
Worth quoting is the following disquisition of the respondent court:
It is apparent from the testimony of Dean Tiongson that defendant-appellee
University had been informed during the deliberation that the professor in
Practice Court I gave plaintiff-appellant a failing grade. Yet, defendant-appellee
still did not inform plaintiff-appellant of his failure to complete the requirements for
the degree nor did they remove his name from the tentative list of candidates for
graduation. Worse, defendant-appellee university, despite the knowledge that
plaintiff-appellant failed in Practice Court I, againincluded plaintiff-appellant's
name in the "tentative list of candidates for graduation which was prepared after
the deliberation and which became the basis for the commencement rites
program. Dean Tiongson reasons out that plaintiff-appellant's name was allowed
to remain in the tentative list of candidates for graduation in the hope that the
latter would still be able to remedy the situation in the remaining few days before
graduation day. Dean Tiongson, however, did not explain how plaintiff appellant
Jader could have done something to complete his deficiency if defendant-
appellee university did not exert any effort to inform plaintiff-appellant of his
failing grade in Practice Court I.
12

Petitioner cannot pass on its blame to the professors to justify its own negligence that
led to the delayed relay of information to respondent. When one of two innocent parties
must suffer, he through whose agency the loss occurred must bear it.
13
The modern
tendency is to grant indemnity for damages in cases where there is abuse of right, even
when the act is not illicit.
14
If mere fault or negligence in one's acts can make him liable
for damages for injury caused thereby, with more reason should abuse or bad faith make
him liable. A person should be protected only when he acts in the legitimate exercise of
his right, that is, when he acts with prudence and in good faith, but not when he acts with
negligence or abuse.
15

However, while petitioner was guilty of negligence and thus liable to respondent for the
latter's actual damages, we hold that respondent should not have been awarded moral
damages. We do not agree with the Court of Appeals' findings that respondent suffered
shock, trauma and pain when he was informed that he could not graduate and will not be
allowed to take the bar examinations. At the very least, it behooved on respondent to
verify for himself whether he has completed all necessary requirements to be eligible for
the bar examinations. As a senior law student, respondent should have been
responsible enough to ensure that all his affairs, specifically those pertaining to his
academic achievement, are in order. Given these considerations, we fail to see how
respondent could have suffered untold embarrassment in attending the graduation rites,
enrolling in the bar review classes and not being able to take the bar exams. If
respondent was indeed humiliated by his failure to take the bar, he brought this upon
himself by not verifying if he has satisfied all the requirements including his school
records, before preparing himself for the bar examination. Certainly, taking the bar
examinations does not only entail a mental preparation on the subjects thereof; there are
also prerequisites of documentation and submission of requirements which the
prospective examinee must meet.
WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED with
MODIFICATION. Petitioner is ORDERED to PAY respondent the sum of Thirty-five
Thousand Four Hundred Seventy Pesos (P35,470.00), with legal interest of 6% per
annum computed from the date of filing of the complaint until fully paid; the amount of
Five Thousand Pesos (P5,000.00) as attorney's fees; and the costs of the suit. The
award of moral damages is DELEIED.1wphi1.nt
SO ORDERED.
Davide, Jr., C.J., Kapunan and Pardo, JJ., concur.
Puno, J., took no part.
DIGEST
FACTS:

Romeo Jader graduated at UE College of law from 1984-88. During his last year,
1stsemester, he failed to take the regular final examination in Practical Court 1where he
was given an incomplete grade remarks. He filed an application for removal of the
incomplete grade given by Prof. Carlos Ortega on February 1, 1988 which was approved
by Dean Celedonio Tiongson after the payment of required fees. He took the exam on
March 28 and on May 30, the professor gave him a grade of 5.

The commencement exercise of UE College of law was held April 16, 1988, 3PM. In the
invitation, his name appeared. In preparation for the bar exam, he took a leave of
absence from work from April 20- Sept 30, 1988. He had his pre-bar class review in
FEU. Upon learning of such deficiency, he dropped his review classes and was not able
to take the bar exam.

Jader sued UE for damages resulting to moral shock, mental anguish, serious anxiety,
besmirched reputation, wounded feelings, sleepless nights due to UEs negligence.



ISSUE: Whether UE should be held liable for misleading a student into believing JADER
satisfied all the requirements for graduation when such is not the case. Can he claim
moral damages?



HELD:

SC held that petitioner was guilty of negligence and this liable to respondent for the
latters actual damages. Educational institutions are duty-bound to inform the students of
their academic status and not wait for the latter to inquire from the former. However,
respondent should not have been awarded moral damages though JADER suffered
shock, trauma, and pain when he was informed that he could not graduate and will not
be allowed to take the bar examinations as what CA held because its also respondents
duty to verify for himself whether he has completed all necessary requirements to be
eligible for the bar examinations. As a senior law student, he should have been
responsible in ensuring that all his affairs specifically those in relation with his academic
achievement are in order. Before taking the bar examinations, it doesnt only entail a
mental preparation on the subjects but there are other prerequisites such as
documentation and submission of requirements which prospective examinee must
meet.

WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED with
MODIFICATION. Petitioner is ORDERED to PAY respondent the sum of Thirty-five
Thousand Four Hundred Seventy Pesos (P35,470.00), with legal interest of 6% per
annumcomputed from the date of filing of the complaint until fully paid; the amount of
Five Thousand Pesos (P5,000.00) as attorney's fees; and the costs of the suit. The
award of moral damages is DELETED.

Pe vs. Pe (5 SCRA 200)

G.R. No. L-17396
CECILIO PE, ET AL., plaintiffs-appellants,
vs.
ALFONSO PE, defendant-appellee.
Cecilio L. Pe for and in his own behalf as plaintiff-appellant.
Leodegario L. Mogol for defendant-appellee.
BAUTISTA ANGELO, J .:
Plaintiffs brought this action before the Court of First Instance of Manila to recover moral,
compensatory, exemplary and corrective damages in the amount of P94,000.00
exclusive of attorney's fees and expenses of litigation.
Defendant, after denying some allegations contained in the complaint, set up as a
defense that the facts alleged therein, even if true, do not constitute a valid cause of
action.
After trial, the lower court, after finding that defendant had carried on a love affair with
one Lolita Pe, an unmarried woman, being a married man himself, declared that
defendant cannot be held liable for moral damages it appearing that plaintiffs failed to
prove that defendant, being aware of his marital status, deliberately and in bad faith tried
to win Lolita's affection. So it rendered decision dismissing the complaint.
Plaintiffs brought this case on appeal before this Court on the ground that the issues
involved are purely of law.
The facts as found by the trial court are: Plaintiffs are the parents, brothers and sisters of
one Lolita Pe. At the time of her disappearance on April 14, 1957, Lolita was 24 years
old and unmarried. Defendant is a married man and works as agent of the La Perla
Cigar and Cigarette Factory. He used to stay in the town of Gasan, Marinduque, in
connection with his aforesaid occupation. Lolita was staying with her parents in the same
town. Defendant was an adopted son of a Chinaman named Pe Beco, a collateral
relative of Lolita's father. Because of such fact and the similarity in their family name,
defendant became close to the plaintiffs who regarded him as a member of their family.
Sometime in 1952, defendant frequented the house of Lolita on the pretext that he
wanted her to teach him how to pray the rosary. The two eventually fell in love with each
other and conducted clandestine trysts not only in the town of Gasan but also in Boac
where Lolita used to teach in a barrio school. They exchanged love notes with each
other the contents of which reveal not only their infatuation for each other but also the
extent to which they had carried their relationship. The rumors about their love affairs
reached the ears of Lolita's parents sometime, in 1955, and since then defendant was
forbidden from going to their house and from further seeing Lolita. The plaintiffs even
filed deportation proceedings against defendant who is a Chinese national. The affair
between defendant and Lolita continued nonetheless.
Sometime in April, 1957, Lolita was staying with her brothers and sisters at their
residence at 54-B Espaa Extension, Quezon City. On April 14, 1957, Lolita
disappeared from said house. After she left, her brothers and sisters checked up her
thing and found that Lolita's clothes were gone. However, plaintiffs found a note on a
crumpled piece of paper inside Lolita's aparador. Said note, written on a small slip of
paper approximately 4" by 3" in size, was in a handwriting recognized to be that of
defendant's. In English it reads:
Honey, suppose I leave here on Sunday night, and that's 13th of this month and we will
have a date on the 14th, that's Monday morning at 10 a.m.
Reply
Love
The disappearance of Lolita was reported to the police authorities and the NBI but up to
the present there is no news or trace of her whereabouts.
The present action is based on Article 21 of the New Civil Code which provides:
Any person who wilfully causes loss or injury to another in a manner which is contrary to
morals, good customs or public policy shall compensate the latter for the damage.
There is no doubt that the claim of plaintiffs for damages is based on the fact that
defendant, being a married man, carried on a love affair with Lolita Pe thereby causing
plaintiffs injury in a manner contrary to morals, good customs and public policy. But in
spite of the fact that plaintiffs have clearly established that in illicit affair was carried on
between defendant and Lolita which caused great damage to the name and reputation of
plaintiffs who are her parents, brothers and sisters, the trial court considered their
complaint not actionable for the reason that they failed to prove that defendant
deliberately and in bad faith tried to win Lolita's affection Thus, the trial court said: "In the
absence of proof on this point, the court may not presume that it was the defendant who
deliberately induced such relationship. We cannot be unmindful of the uncertainties and
sometimes inexplicable mysteries of the human emotions. It is a possibility that the
defendant and Lolita simply fell in love with each other, not only without any desire on
their part, but also against their better judgment and in full consciousness of what it will
bring to both of them. This is specially so with respect to Lolita, being an unmarried
woman, falling in love with defendant who is a married man."
We disagree with this view. The circumstances under which defendant tried to win
Lolita's affection cannot lead, to any other conclusion than that it was he who, thru an
ingenious scheme or trickery, seduced the latter to the extent of making her fall in love
with him. This is shown by the fact that defendant frequented the house of Lolita on the
pretext that he wanted her to teach him how to pray the rosary. Because of the
frequency of his visits to the latter's family who was allowed free access because he was
a collateral relative and was considered as a member of her family, the two eventually
fell in love with each other and conducted clandestine love affairs not only in Gasan but
also in Boac where Lolita used to teach in a barrio school. When the rumors about their
illicit affairs reached the knowledge of her parents, defendant was forbidden from going
to their house and even from seeing Lolita. Plaintiffs even filed deportation proceedings
against defendant who is a Chinese national. Nevertheless, defendant continued his
love affairs with Lolita until she disappeared from the parental home. Indeed, no other
conclusion can be drawn from this chain of events than that defendant not only
deliberately, but through a clever strategy, succeeded in winning the affection and love
of Lolita to the extent of having illicit relations with her. The wrong he has caused her
and her family is indeed immeasurable considering the fact that he is a married man.
Verily, he has committed an injury to Lolita's family in a manner contrary to morals, good
customs and public policy as contemplated in Article 21 of the new Civil Code.
WHEREFORE, the decision appealed from is reversed. Defendant is hereby sentenced
to pay the plaintiffs the sum of P5,000.00 as damages and P2,000.00 as attorney's fees
and expenses of litigations. Costs against appellee.
Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and Dizon, JJ., concur.
DIGEST
Facts:
This is an appeal brought before the Court of Appeals upon the decision of the
trial court dismissing the complaint of plaintiffs-appellants, who are the parents, brothers
and sisters of Lolita, based on their claim that defendant Alfonsoa married man who
works as an agent of the La Perla Cigar and Cigarette Factory, staying in Gasan,
Marinduque, an adopted son of a Chinese named Pe Beco who is a collateral relative of
Lolitas fatherdeliberately and in bad faith tried to win Lolitas affection, causing moral
damages to plaintiff.
Because of the frequency of his visits to Lolitas family who has allowed free
access because he was a collateral relative and was considered as a member of her
family, the two eventually fell in love with each other and conducted clandestine love
affairs both in Gasan, and Boac where Lolita used to teach in a barrio school. When the
rumors about their illicit affairs reached the knowledge of her parents, defendant was
forbidden from going to their house and even from seeing Lolita. Plaintiffs even filed
deportation proceedings against defendant who is a Chinese national. Nevertheless,
defendant continued his love affairs with Lolita until she disappeared from the parental
home on April 14, 1957.

Issue:
Whether or not defendant caused moral damages to plaintiff, when as a
married man, he pursued his love affair with Lolita.

Held:
Yes. No other conclusion can be drawn from this chain of events than that
defendant not only deliberately, but through a clever strategy, succeeded in winning the
affection and love of Lolita to the extent of having illicit relations with her. The wrong he
has caused her and her family is indeed immeasurable considering the fact that he is a
married man. Verily, he has committed an injury to Lolitas family contrary to morals,
good customs and public policy as contemplated in Article 21 of the new Civil Code.
WHEREFORE, the decision appealed from is reversed. Defendant is hereby
sentenced to pay the plaintiffs the sum of P5,000.00 as damages and P2,000.00 as
attorneys fees and expenses of litigations. Costs against appellee.

Article 26
Tenchavez vs. Escano (15 SCRA 355)
G.R. No. L-19671 November 29, 1965
PASTOR B. TENCHAVEZ, plaintiff-appellant,
vs.
VICENTA F. ESCAO, 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 "Escao," 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
Escao, 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 Escao 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 Escao
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 Escao 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-Escao"), but her letters became less
frequent as the days passed. As of June, 1948 the newlyweds were already estranged
(Exh. "2-Escao"). 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 Escao 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.
Escao, her parents, Mamerto and Mena Escao, 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 Escao and Mena Escao 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. Escao
liable for damages and in dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano and the heirs of Doa
Mena Escao 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 Escao, 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 Escao 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 Escao 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 Escao, 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 Escao'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 Escao
and his wife, the late Doa Mena Escao, 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 Escao'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-Escao" 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 Escao 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 Escao and his wife, but to the refusal of
Vicenta to proceed with it. That the spouses Escao 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 Escao, 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 Escao
and Mena Escao, 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. Escao;
(2) Sentencing defendant-appellee Vicenta Escao 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 Escao and
the estate of his wife, the deceased Mena Escao, 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.
DIGEST
In February 1948, Tenchavez and Escao secretly married each other and of course
without the knowledge of Escaos parents who were of prominent social status. The
marriage was celebrated by a military chaplain. When Escaos parents learned of this,
they insisted a church wedding to be held but Escao withdrew from having a
recelebration because she heard that Tenchavez was having an affair with another
woman. Eventually, their relationship went sour; 2 years later, Escao went to the US
where she acquired a decree of absolute divorce and she subsequently became an
American citizen and also married an American.
In 1955, Tenchavez initiated a case for legal separation and further alleged that
Escaos parents dissuaded their daughter to go abroad and causing her to be
estranged from him hence hes asking for damages in the amount of P1,000,000.00. The
lower court did not grant the legal separation being sought for and at the same time
awarded a P45,000.00 worth of counter-claim by the Escaos.
ISSUE: Whether or not damages should be awarded to either party in the case at bar
HELD: Yes.
On the part of Tenchavez:
His marriage with Escao was a secret one and the failure of said marriage did not result
to public humiliation; that they never lived together and he even consented to annulling
the marriage earlier (because Escao filed for annulment before she left for the US but
the same was dismissed due to her non-appearance in court); that he failed to prove that
Escaos parents dissuaded their daughter to leave Tenchavez and as such his
P1,000,000.00 claim cannot be awarded. HOWEVER, by reason of the fact that Escao
left without the knowledge of Tenchavez and being able to acquire a divorce decree; and
Tenchavez being unable to remarry, the SC awarded P25,000.00 only by way of moral
damages and attorneys fees to be paid by Escao and not her parents.
On the part of Escaos parents:
It is true that the P1,000,000.00 for damages suit by Tenchavez against the Escaos is
unfounded and the same must have wounded their 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 lower court, is that
they were not guilty of any improper conduct in the whole deplorable affair. The SC
reduced the damages awarded from P45,000.00 to P5,000.00 only.


St. Louis Realty Corp. vs. CA (133 SCRA 179)
ST. LOUIS REALTY CORPORATION, petitioner,
vs.
COURT OF APPEALS and CONRADO J. ARAMIL, respondents.
Romeo Z. Comia for petitioner.
Roman R. Bersamin for private respondent.

AQUINO, J .:
This case is about the recovery of damages for a wrongful advertisement in the Sunday
Times where Saint Louis Realty Corporation misrepresented that the house of Doctor
Conrado J. Aramil belonged to Arcadio S. Arcadio.
St. Louis Realty caused to be published with the permission of Arcadio S. Arcadio (but
without permission of Doctor Aramil) in the issue of the Sunday Times of December 15,
1968 an advertisement with the heading "WHERE THE HEART IS". Below that heading
was the photograph of the residence of Doctor Aramil and theArcadio family and then
below the photograph was the following write-up:
Home is where the heart is. And the hearts of MR. AND MRS. ARCADIO
S. ARCADIO and their family have been captured by BROOKSIDE
HILLS. They used to rent a small 2-bedroom house in a cramped
neighborhood, sadly inadequate and unwholesome for the needs of a
large family. They dream(ed) of a more pleasant place free from the din
and dust of city life yet near all facilities. Plans took shape when they
heard of BROOKSIDE HILLS. With thrift and determination, they bought a
lot and built their dream house ... for P31,000. The Arcadios are now part
of the friendly, thriving community of BROOKSIDE HILLS... a beautiful
first-class subdivision planned for wholesome family living.
The same advertisement appeared in the Sunday Times dated January 5, 1969. Doctor
Aramil a neuropsychiatrist and a member of the faculty of the U. E. Ramon Magsaysay
Memorial Hospital, noticed the mistake. On that same date, he wrote St. Louis Realty
the following letter of protest:
Dear Sirs:
This is anent to your advertisements appearing in the December 15, 1968
and January 5, 1969 issues of the Sunday Times which boldly depicted
my house at the above-mentioned address and implying that it belonged
to another person. I am not aware of any permission or authority on my
partfor the use of my house for such publicity.
This unauthorized use of my house for your promotional gain and much
more the apparent distortions therein are I believe not only transgression
to my private property but also damaging to my prestige in the medical
profession I have had invited in several occasions numerous medical
colleagues, medical students and friends to my house and after reading
your December 15 advertisement some of them have uttered some
remarks purporting doubts as to my professional and personal integrity.
Such sly remarks although in light vein as "it looks like your house," "how
much are you renting from the Arcadios?", " like your wife portrayed in the
papers as belonging to another husband," etc., have resulted in no little
mental anguish on my part.
I have referred this matter to the Legal Panel of the Philippine Medical
Association and their final advice is pending upon my submission of
supporting ownership papers.
I will therefore be constrained to pursue court action against your
corporation unless you could satisfactorily explain this matter within a
week upon receipt of this letter.
The letter was received by Ernesto Magtoto, an officer of St. Louis Realty in charge of
advertising. He stopped publication of the advertisement. He contacted Doctor Aramil
and offered his apologies. However, no rectification or apology was published.
On February 20, 1969, Aramil's counsel demanded from St. Louis Realty actual, moral
and exemplary damages of P110,000 (Exh. D). In its answer dated March 10, St. Louis
Realty claimed that there was an honest mistake and that if Aramil so desired,
rectification would be published in the Manila Times (Exh. 3).
It published in the issue of the Manila Times of March 18, 1969 a new advertisement
with the Arcadio family and their real house. But it did not publish any apology to Doctor
Aramil and an explanation of the error.
On March 29, Aramil filed his complaint for damages. St. Louis Realty published in the
issue of the Manila Timesof April 15, 1969 the following "NOTICE OF RECTIFICATION"
in a space 4 by 3 inches:
This will serve as a notice that our print ad 'Where the Heart is' which
appeared in the Manila Timesissue of March 18, 1969 is a rectification of
the same ad that appeared in the Manila Times issues rectification of the
same ad that appeal of December 15, 1968 and January 5, 1969 wherein
a photo of the house of another Brookside Homeowner (Dr. Aramil-private
respondent) was mistakenly used as a background for the featured
homeowner's the Arcadio family.
The ad of March 18, 1969 shows the Arcadio family with their real house
in the background, as was intended all along.
Judge Jose M. Leuterio observed that St. Louis Realty should have immediately
published a rectification and apology. He found that as a result of St. Louis Realty's
mistake, magnified by its utter lack of sincerity, Doctor Aramil suffered mental anguish
and his income was reduced by about P1,000 to P1,500 a month. Moreover, there was
violation of Aramil's right to privacy (Art. 26, Civil Code).
The trial court awarded Aramil P8,000 as actual damages, P20,000 as moral damages
and P2,000 as attorney's fees. St. Louis Realty appealed to the Court of Appeals.
The Appellate Court affirmed that judgment, with Acting Presiding Justice Magno S.
Gatmaitan as ponente, and Justices Sixto A. Domondon and Samuel F. Reyes
concurring.
The Appellate Court reasoned out that St. Louis Realty committed an actionable quasi-
delict under articles 21 and 26 of the Civil Code because the questioned advertisements
pictured a beautiful house which did not belong to Arcadio but to Doctor Aramil who,
naturally, was annoyed by that contretemps.
In this appeal, St. Louis Realty contends that the Appellate Court ignored certain facts
and resorted to surmises and conjectures. This contention is unwarranted. The Appellate
Court adopted the facts found by the trial court. Those factual findings are binding on
this Court.
St. Louis Realty also contends that the decision is contrary to law and that the case was
decided in a way not in conformity with the rulings of this Court. It argues that the case is
not covered by article 26 which provides that "every person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other persons". "Prying into
the privacy of another's residence" and "meddling with or disturbing the private life or
family relations of another" and "similar acts", "though they may not constitute a criminal
offense, shall produce a cause of action for damages, prevention and other relief".
The damages fixed by Judge Leuterio are sanctioned by Articles 2200, 2208 and 2219
of the Civil Code. Article 2219 allows moral damages for acts and actions mentioned in
Article 26. As lengthily explained by Justice Gatmaitan, the acts and omissions of the
firm fan under Article 26.
St. Louis Realty's employee was grossly negligent in mixing up the Aramil and Arcadio
residences in a widely circulated publication like the Sunday Times. To suit its purpose,
it never made any written apology and explanation of the mix-up. It just contented itself
with a cavalier "rectification ".
Persons, who know the residence of Doctor Aramil, were confused by the distorted,
lingering impression that he was renting his residence from Arcadio or that Arcadio had
leased it from him. Either way, his private life was mistakenly and unnecessarily
exposed. He suffered diminution of income and mental anguish.
WHEREFORE, the judgment of the Appellate Court is affirmed. Costs against the
petitioner.
SO ORDERED.
Makasiar, Concepcion, Jr., Abad Santos, Escolin and Cuevas, JJ., concur.
DIGEST
Facts:
This case is about the recovery of damages for a wrongful advertisement in
the December 15, 1968 and January 5, 1969 issue of the Sunday Times where St. Louis
Realty Corporation misrepresented that the house of Doctor Conrado J. Aramil belonged
to Arcadio S. Arcadio. Moreover, there was violation of Aramil's right to privacy.
Trial court through Judge Leuterio awarded P8,000 as actual damages,
P20,000 as moral damages and P2,000 as attorneys fees. Had it not been a late action
for publication of rectification and apologywhich only took place 15 April 1969 issue
ofManila Times Doctor Aramil could have not suffered mental anguish and his income
would have not been reduced by about P1,000 to P1,500 a month. Petitioner assailed
the decision of the Appellate Court when it affirmed the trial courts decision.
Furthermore, the corporation contends that the decision is contrary to law and that the
case was decided in a way not in conformity with the rulings of this Court and still
continues to argue that the case is not covered by article 26.

Issue:
Whether or not the case filed against St. Louis Realty Corporation is
covered by Article 26 of the new Civil Code.

Held:
Yes, this case is covered by Article 26 of the Civil Code.
St. Louis Realty's employee was grossly negligent in mixing up the Aramil
and Arcadio residences in a widely circulated publication like the Sunday Times.
Through that negligence, persons who know the residence of Doctor Aramil, were
confused by the distorted, lingering impression that he was renting his residence from
Arcadio or that Arcadio had leased it from him. Either way, his private life was mistakenly
and unnecessarily exposed. He suffered diminution of income and mental anguish.
WHEREFORE, the judgment of the Appellate Court is affirmed. Costs
against the petitioner.
SO ORDERED.

Article 36
Spouses Yu vs. PCIB (G.R. No. 147902, 17 March 2006)
G.R. No. 147902 March 17, 2006
SPOUSES VICENTE YU AND DEMETRIA LEE-YU, Petitioners,
vs.
PHILIPPINE COMMERCIAL INTERNATIONAL BANK, Respondent.
D E C I S I O N
AUSTRIA-MARTINEZ, J .:
Before the Court is a Petition for Review on Certiorari of the Decision
1
dated November
14, 2000 of the Court of Appeals (CA) in CA-G.R. SP No. 58982 and the CA Resolution
dated April 26, 2001, which denied petitioners Motion for Reconsideration.
The factual background of the case is as follows:
Under a Real Estate Mortgage dated August 15, 1994
2
and Amendments of Real Estate
Mortgage dated April 4, 1995
3
and December 4, 1995,
4
spouses Vicente Yu and
Demetria Lee-Yu (petitioners) and spouses Ramon T. Yu and Virginia A. Tiu, or Yu Tian
Hock aka Victorino/Vicente Yu, mortgaged their title, interest, and participation over
several parcels of land located in Dagupan City and Quezon City, in favor of the
Philippine Commercial International Bank (respondent) as security for the payment of a
loan in the amount of P9,000,000.00.
5

As the petitioners failed to pay the loan, the interest, and the penalties due thereon,
respondent filed on July 21, 1998 with the Office of the Clerk of Court and Ex-Officio
Sheriff of the Regional Trial Court of Dagupan City a Petition for Extra-Judicial
Foreclosure of Real Estate Mortgage on the Dagupan City properties.
6
On August 3,
1998, the City Sheriff issued a Notice of Extra-Judicial Sale scheduling the auction sale
on September 10, 1998 at 10:00 oclock in the morning or soon thereafter in front of the
Justice Hall, Bonuan, Tondaligan, Dagupan City.
7

At the auction sale on September 10, 1998, respondent emerged as the highest
bidder.
8
On September 14, 1998, a Certificate of Sale was issued in favor of
respondent.
9
On October 1, 1998, the sale was registered with the Registry of Deeds of
Dagupan City.
About two months before the expiration of the redemption period, or on August 20, 1999,
respondent filed an Ex-Parte Petition for Writ of Possession before the Regional Trial
Court of Dagupan City, docketed as Special Proceeding No. 99-00988-D and raffled to
Branch 43 (RTC Branch 43).
10
Hearing was conducted on September 14, 1999 and
respondent presented its evidence ex-parte.
11
The testimony of Rodante Manuel was
admitted ex-parte and thereafter the petition was deemed submitted for resolution.
On September 30, 1999, petitioners filed a Motion to Dismiss and to Strike Out
Testimony of Rodante Manuel stating that the Certificate of Sale dated September 14,
1998 is void because respondent violated Article 2089 of the Civil Code on the
indivisibility of the mortgaged by conducting two separate foreclosure proceedings on
the mortgage properties in Dagupan City and Quezon City and indicating in the two
notices of extra-judicial sale that petitioners obligation is P10,437,015.20
12
as of March
31, 1998, when petitioners are not indebted for the total amount of P20,874,031.56.
13

In the meantime, petitioners filed a complaint for Annulment of Certificate of Sale before
the Regional Trial Court of Dagupan City, docketed as Civil Case No. 99-03169-D and
raffled to Branch 44 (RTC Branch 44).
On February 14, 2000, RTC Branch 43 denied petitioners Motion to Dismiss and to
Strike Out Testimony of Rodante Manuel, ruling that the filing of a motion to dismiss is
not allowed in petitions for issuance of writ of possession under Section 7 of Act No.
3135.
14

On February 24, 2000, petitioners filed a Motion for Reconsideration, further arguing that
the pendency of Civil Case No. 99-03169-D in RTC Branch 44 is a prejudicial issue to
Spec. Proc. No. 99-00988-D in RTC Branch 43, the resolution of which is determinative
on the propriety of the issuance of a writ of possession.
15

On May 8, 2000, RTC Branch 43 denied petitioners Motion for Reconsideration, holding
that the principle of prejudicial question is not applicable because the case pending
before RTC Branch 44 is also a civil case and not a criminal case.
16

On June 1, 2000, petitioners filed a Petition for Certiorari with the CA.
17
On November
14, 2000, the CA dismissed petitioners Petition for Certiorari on the grounds that
petitioners violated Section 8 of Act No. 3135 and disregarded the rule against
multiplicity of suits in filing Civil Case No. 99-03169-D in RTC Branch 44 despite full
knowledge of the pendency of Spec. Proc. No. 99-00988-D in RTC Branch 43; that since
the one-year period of redemption has already lapsed, the issuance of a writ of
possession in favor of respondent becomes a ministerial duty of the trial court; that the
issues in Civil Case No. 99-03169-D are not prejudicial questions to Spec. Proc. No. 99-
00988-D because: (a) the special proceeding is already fait accompli, (b) Civil Case No.
99-03169-D is deemed not filed for being contrary to Section 8 of Act No. 3135, (c) the
filing of Civil Case No. 99-03169-D is an afterthought and dilatory in nature, and (d)
legally speaking what seems to exist is litis pendentia and not prejudicial question.
18

Petitioners filed a Motion for Reconsideration
19
but it was denied by the CA on April 26,
2001.
20

Hence, the present Petition for Review on Certiorari.
Petitioners pose two issues for resolution, to wit:
A. Whether or not a real estate mortgage over several properties located in
different locality [sic] can be separately foreclosed in different places.
B. Whether or not the pendency of a prejudicial issue renders the issues in
Special Proceedings No. 99-00988-D as [sic] moot and academic.
21

Anent the first issue, petitioners contend that since a real estate mortgage is indivisible,
the mortgaged properties in Dagupan City and Quezon City cannot be separately
foreclosed. Petitioners further point out that two notices of extra-judicial sale indicated
that petitioners obligation is P10,437,015.20
22
each as of March 31, 1998 or a total
ofP20,874,030.40,
23
yet their own computation yields only P9,957,508.90 as of February
27, 1998.
As to the second issue, petitioners posit that the pendency of Civil Case No. 99-03169-D
is a prejudicial issue, the resolution of which will render the issues in Spec. Proc. No. 99-
00988-D moot and academic. Petitioners further aver that they did not violate Section 8
of Act No. 3135 in filing a separate case to annul the certificate of sale since the use of
the word "may" in said provision indicates that they have the option to seek relief of filing
a petition to annul the certificate of sale in the proceeding involving the application for a
writ of possession or in a separate proceeding.
Respondent contends
24
that, with respect to the first issue, the filing of two separate
foreclosure proceedings did not violate Article 2089 of the Civil Code on the indivisibility
of a real estate mortgage since Section 2 of Act No. 3135 expressly provides that extra-
judicial foreclosure may only be made in the province or municipality where the property
is situated. Respondent further submits that the filing of separate applications for extra-
judicial foreclosure of mortgage involving several properties in different locations is
allowed by A.M. No. 99-10-05-0, the Procedure on Extra-Judicial Foreclosure of
Mortgage, as further amended on August 7, 2001.
As to the second issue, respondent maintains that there is no prejudicial question
between Civil Case No. 99-03169-D and Spec. Proc. No. 99-00988-D since the
pendency of a civil action questioning the validity of the mortgage and the extra-judicial
foreclosure thereof does not bar the issuance of a writ of possession. Respondent also
insists that petitioners should have filed their Petition to Annul the Certificate of Sale in
the same case where possession is being sought, that is, in Spec. Proc. No. 99-00988-
D, and not in a separate proceeding (Civil Case No. 99-01369-D) because the venue of
the action to question the validity of the foreclosure is not discretionary since the use of
the word "may" in Section 8 of Act No. 3135 refers to the filing of the petition or action
itself and not to the venue. Respondent further argues that even if petitioners filed the
Petition to Annul the Certificate of Sale in Spec. Proc. No. 99-00988-D, the writ of
possession must still be issued because issuance of the writ in favor of the purchaser is
a ministerial act of the trial court and the one-year period of redemption has already
lapsed.
Anent the first issue, the Court finds that petitioners have a mistaken notion that the
indivisibility of a real estate mortgage relates to the venue of extra-judicial foreclosure
proceedings. The rule on indivisibility of a real estate mortgage is provided for in Article
2089 of the Civil Code, which provides:
Art. 2089. A pledge or mortgage is indivisible, even though the debt may be divided
among the successors in interest of the debtor or of the creditor.
Therefore, the debtors heir who has paid a part of the debt cannot ask for the
proportionate extinguishment of the pledge or mortgage as the debt is not completely
satisfied.
Neither can the creditors heir who received his share of the debt return the pledge or
cancel the mortgage, to the prejudice of the other heirs who have not been paid.
From these provisions is excepted the case in which, there being several things given in
mortgage or pledge, each one of them guarantees only a determinate portion of the
credit.
The debtor, in this case, shall have a right to the extinguishment of the pledge or
mortgage as the portion of the debt for which each thing is specially answerable is
satisfied.
This rule presupposes several heirs of the debtor or creditor
25
and therefore not
applicable to the present case. Furthermore, what the law proscribes is the foreclosure
of only a portion of the property or a number of the several properties mortgaged
corresponding to the unpaid portion of the debt where, before foreclosure proceedings,
partial payment was made by the debtor on his total outstanding loan or obligation. This
also means that the debtor cannot ask for the release of any portion of the mortgaged
property or of one or some of the several lots mortgaged unless and until the loan thus
secured has been fully paid, notwithstanding the fact that there has been partial
fulfillment of the obligation. Hence, it is provided that the debtor who has paid a part of
the debt cannot ask for the proportionate extinguishment of the mortgage as long as the
debt is not completely satisfied.
26
In essence, indivisibility means that the mortgage
obligation cannot be divided among the different lots,
27
that is, each and every parcel
under mortgage answers for the totality of the debt.
28

On the other hand, the venue of the extra-judicial foreclosure proceedings is the place
where each of the mortgaged property is located, as prescribed by Section 2 of Act No.
3135,
29
to wit:
SECTION 2. Said sale cannot be made legally outside of the province in which the
property sold is situated; and in case the place within said province in which the sale is
to be made is subject to stipulation, such sale shall be made in said place or in the
municipal building of the municipality in which the property or part thereof is situated.
A.M. No. 99-10-05-0,
30
the Procedure on Extra-Judicial Foreclosure of Mortgage, lays
down the guidelines for extra-judicial foreclosure proceedings on mortgaged properties
located in different provinces. It provides that the venue of the extra-judicial foreclosure
proceedings is the place where each of the mortgaged property is located. Relevant
portion thereof provides:
Where the application concerns the extrajudicial foreclosure of mortgages of real estates
and/or chattels in different locations covering one indebtedness, only one filing fee
corresponding to such indebtedness shall be collected. The collecting Clerk of Court
shall, apart from the official receipt of the fees, issue a certificate of payment indicating
the amount of indebtedness, the filing fees collected, the mortgages sought to be
foreclosed, the real estates and/or chattels mortgaged and their respective
locations, which certificate shall serve the purpose of having the application
docketed with the Clerks of Court of the places where the other properties are
located and of allowing the extrajudicial foreclosures to proceed thereat.
(Emphasis supplied)
The indivisibility of the real estate mortgage is not violated by conducting two separate
foreclosure proceedings on mortgaged properties located in different provinces as long
as each parcel of land is answerable for the entire debt. Petitioners assumption that
their total obligation is P20,874,030.40 because the two notices of extra-judicial sale
indicated that petitioners obligation is P10,437,015.20
31
each, is therefore flawed.
Considering the indivisibility of a real estate mortgage, the mortgaged properties in
Dagupan City and Quezon City are made to answer for the entire debt
of P10,437,015.29.
32

As to the second issue, that is, whether a civil case for annulment of a certificate of sale
is a prejudicial question to a petition for issuance of a writ of possession, this issue is far
from novel and, in fact, not without precedence. In Pahang v. Vestil,
33
the Court said:
A prejudicial question is one that arises in a case the resolution of which is a logical
antecedent of the issue involved therein, and the cognizance of which pertains to
another tribunal. It generally comes into play in a situation where a civil action and a
criminal action are both pending and there exists in the former an issue that must be
preemptively resolved before the criminal action may proceed, because howsoever the
issue raised in the civil action is resolved would be determinative juris et de jure of the
guilt or innocence of the accused in the criminal case. The rationale behind the principle
of prejudicial question is to avoid two conflicting decisions. 1avvph!l.net
In the present case, the complaint of the petitioners for Annulment of Extrajudicial Sale is
a civil action and the respondents petition for the issuance of a writ of possession of Lot
No. 3-A, Block 1, Psd-07-021410, TCT No. 44668 is but an incident in the land
registration case and, therefore, no prejudicial question can arise from the existence of
the two actions. A similar issue was raised in Manalo v. Court of Appeals, where we held
that:
At any rate, it taxes our imagination why the questions raised in Case No. 98-0868 must
be considered determinative of Case No. 9011. The basic issue in the former is whether
the respondent, as the purchaser in the extrajudicial foreclosure proceedings, may be
compelled to have the property repurchased or resold to a mortgagors successor-in-
interest (petitioner); while that in the latter is merely whether the respondent, as the
purchaser in the extrajudicial foreclosure proceedings, is entitled to a writ of possession
after the statutory period for redemption has expired. The two cases, assuming both are
pending, can proceed separately and take their own direction independent of each
other.
34

In the present case, Civil Case No. 99-01369-D and Spec. Proc. No. 99-00988-D are
both civil in nature. The issue in Civil Case No. 99-01369-D is whether the extra-judicial
foreclosure of the real estate mortgage executed by the petitioners in favor of the
respondent and the sale of their properties at public auction are null and void, whereas,
the issue in Spec. Proc. No. 99-00988-D is whether the respondent is entitled to a writ of
possession of the foreclosed properties. Clearly, no prejudicial question can arise from
the existence of the two actions. The two cases can proceed separately and take their
own direction independently of each other.
Nevertheless, there is a need to correct the CAs view that petitioners violated Section 8
of Act No. 3135 and disregarded the proscription on multiplicity of suits by instituting a
separate civil suit for annulment of the certificate of sale while there is a pending petition
for issuance of the writ of possession in a special proceeding.
Section 8 of Act No. 3135 provides:
Sec. 8. Setting aside of sale and writ of possession. The debtor may, in the
proceedings in which possession was requested, but not later than thirty days after the
purchaser was given possession, petition that the sale be set aside and the writ of
possession cancelled, specifying the damages suffered by him, because the mortgage
was not violated or the sale was not made in accordance with the provisions hereof, and
the court shall take cognizance of this petition in accordance with the summary
procedure provided for in section one hundred and twelve of Act Numbered Four
hundred and ninety-six; and if it finds the complaint of the debtor justified, it shall dispose
in his favor of all or part of the bond furnished by the person who obtained possession.
Either of the parties may appeal from the order of the judge in accordance with section
fourteen of Act Numbered Four hundred and ninety-six; but the order of possession shall
continue in effect during the pendency of the appeal. (Emphasis supplied)
Under the provision above cited, the mortgagor may file a petition to set aside the sale
and for the cancellation of a writ of possession with the trial court which issued the writ of
possession within 30 days after the purchaser mortgagee was given possession. It
provides the plain, speedy, and adequate remedy in opposing the issuance of a writ of
possession.
35
Thus, this provision presupposes that the trial court already issued a writ
of possession. In Sps. Ong v. Court of Appeals,
36
the Court elucidated:
The law is clear that the purchaser must first be placed in possession of the mortgaged
property pending proceedings assailing the issuance of the writ of possession. If the trial
court later finds merit in the petition to set aside the writ of possession, it shall dispose in
favor of the mortgagor the bond furnished by the purchaser. Thereafter, either party may
appeal from the order of the judge in accordance with Section 14 of Act 496, which
provides that "every order, decision, and decree of the Court of Land Registration may
be reviewedin the same manner as an order, decision, decree or judgment of a Court
of First Instance (RTC) might be reviewed." The rationale for the mandate is to allow the
purchaser to have possession of the foreclosed property without delay, such possession
being founded on his right of ownership.
37

Accordingly, Section 8 of Act No. 3135 is not applicable to the present case since at the
time of the filing of the separate civil suit for annulment of the certificate of sale in RTC
Branch 44, no writ of possession was yet issued by RTC Branch 43.
Similarly, the Court rejects the CAs application of the principle of litis pendentia to Civil
Case No. 99-03169-D in relation to Spec. Proc. No. 99-00988-D. Litis pendentia refers to
that situation wherein another action is pending between the same parties for the same
cause of actions and that the second action becomes unnecessary and vexatious.
For litis pendentia to be invoked, the concurrence of the following requisites is
necessary: (a) identity of parties or at least such as represent the same interest in both
actions; (b) identity of rights asserted and reliefs prayed for, the reliefs being founded on
the same facts; and, (c) the identity in the two cases should be such that the judgment
that may be rendered in one would, regardless of which party is successful, amount
to res judicatain the other.
38

Applying the foregoing criteria in the instant case, litis pendentia does not obtain in this
case because of the absence of the second and third requisites. The issuance of the writ
of possession being a ministerial function, and summary in nature, it cannot be said to
be a judgment on the merits, but simply an incident in the transfer of title. Hence, a
separate case for annulment of mortgage and foreclosure sale cannot be barred by litis
pendentiaor res judicata.
39
Thus, insofar as Spec. Proc. No. 99-00988-D and Civil Case
No. 99-03169-D pending before different branches of RTC Dagupan City are concerned,
there is no litis pendentia.
To sum up, the Court holds that the rule on indivisibility of the real estate mortgage
cannot be equated with the venue of foreclosure proceedings on mortgaged properties
located in different provinces since these are two unrelated concepts. Also, no
prejudicial question can arise from the existence of a civil case for annulment of a
certificate of sale and a petition for the issuance of a writ of possession in a special
proceeding since the two cases are both civil in nature which can proceed separately
and take their own direction independently of each other.
Furthermore, since the one-year period to redeem the foreclosed properties lapsed on
October 1, 1999, title to the foreclosed properties had already been consolidated under
the name of the respondent. As the owner of the properties, respondent is entitled to its
possession as a matter of right.
40
The issuance of a writ of possession over the
properties by the trial court is merely a ministerial function. As such, the trial court
neither exercises its official discretion nor judgment.
41
Any question regarding the validity
of the mortgage or its foreclosure cannot be a legal ground for refusing the issuance of a
writ of possession.
42
Regardless of the pending suit for annulment of the certificate of
sale, respondent is entitled to a writ of possession, without prejudice of course to the
eventual outcome of said case.
43

WHEREFORE, the petition is DENIED.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO
Associate Justice
ROMEO J. CALLEJO, SR.
Asscociate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice
DIGEST
FACTS:

Petitioners Vicente Yu and Demetria Lee-Yu mortgaged their title, interest, and
participation over several parcels of land located in Dagupan City and Quezon City, in
favor of the Philippine Commercial International Bank, respondent and highest bidder, as
security for the payment of a loan.

As petitioners failed to pay the loan and the interest and penalties due thereon,
respondent filed petition for extra-judicial foreclosure of real estate mortgage on the
Dagupan City properties on July 21, 1998. City Sheriff issued notice of extra-judicial
sale on August 3, 1998 scheduling the auction sale on September 10, 1998.

Certificate of Sale was issued on September 14, 1998 in favor of respondent, the highest
bidder. The sale was registered with the Registry of Deeds in Dagupan City on October
1, 1998. After two months before the expiration of the redemption period, respondent
filed an ex-parte petition for writ of possession before RTC of Dagupan. Petitioners
complaint on annulment of certificate of sale and motion to dismiss and to strike out
testimony of Rodante Manuel was denied by said RTC. Motion for reconsideration was
then filed on February 14, 2000 arguing that the complaint on annulment of certificate of
sale is a prejudicial issue to the filed ex-parte petition for writ of possession, the
resolution of which is determinative of propriety of the issuance of a Writ of Possession.

ISSUE: Whether prejudicial question exist in a civil case for annulment of a certificate of
sale and a petition for the issuance of a writ of possession.

HELD:

Supreme Court held that no prejudicial question can arise from the existence of a civil
case for annulment of a certificate of sale and a petition for the issuance of a writ of
possession in a special proceeding since the two cases are both civil in nature which
can proceed separately and take their own direction independently of each other.

A prejudicial question is one that arises in a case the resolution of which is a logical
antecedent of the issue involved therein, and the cognizance of which pertains to
another tribunal. It generally comes into play in a situation where a civil action and a
criminal action are both pending and there exists in the former an issue that must be
preemptively resolved before the criminal action may proceed because issue raised in
civil action would be determinative de jure of the guilt or innocence of the accused in a
criminal case.

Donato vs. Luna (G.R. No. 53642, 15 April 1988)
G.R. No. L-53642 April 15, 1988
LEONILO C. DONATO, petitioners,
vs.
HON. ARTEMON D. LUNA, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF
MANIIA, BRANCH XXXII HON. JOSE FLAMINIANO, CITY FISCAL OF MANILA; PAZ
B. ABAYAN, respondents.
Leopoldo P. Dela Rosa for petitioner.
Emiterio C. Manibog for private respondent.
City Fiscal of Manila for public respondent.

GANCAYCO, J .:
In this petition for certiorari and prohibition with preliminary injunction, the question for
the resolution of the Court is whether or not a criminal case for bigamy pending before
the Court of First Itance of Manila should be suspended in view of a civil case for
annulment of marriage pending before the Juvenile and Domestic Relations Court on the
ground that the latter constitutes a prejudicial question. The respondent judge ruled in
the negative. We sustain him.
The pertinent facts as set forth in the records follow. On January 23, 1979, the City
Fiscal of Manila acting thru Assistant City Fiscal Amado N. Cantor filed an information
for bigamy against herein petitioner, Leonilo C. Donato with the Court of First Instance of
Manila, docketed as Criminal Case No. 43554 and assigned to Branch XXXII of said
court. The information was filed based on the complaint of private respondent Paz B.
Abayan.
On September 28, 1979, before the petitioner's arraignment, private respondent filed
with the Juvenile and Domestic Relations Court of Manila a civil action for declaration of
nullity of her marriage with petitioner contracted on September 26, 1978, which action
was docketed as Civil Case No. E-02627. Said civil case was based on the ground that
private respondent consented to entering into the marriage, which was petitioner
Donato's second one, since she had no previous knowledge that petitioner was already
married to a certain Rosalinda R. Maluping on June 30, 1978. Petitioner Donato's
answer in the civil case for nullity interposed the defense that his second marriage was
void since it was solemnized without a marriage license and that force, violence,
intimidation and undue influence were employed by private respondent to obtain
petitioner's consent to the marriage. Prior to the solemnization of the subsequent or
second marriage, petitioner and private respondent had lived together and deported
themselves as husband and wife without the benefit of wedlock for a period of at least
five years as evidenced by a joint affidavit executed by them on September 26, 1978, for
which reason, the requisite marriage license was dispensed with pursuant to Article 76
of the New Civil Code pertaining to marriages of exceptional character.
Prior to the date set for the trial on the merits of Criminal Case No. 43554, petitioner filed
a motion to suspend the proceedings of said case contending that Civil Case No. E-
02627 seeking the annulment of his second marriage filed by private respondent raises
a prejudicial question which must first be determined or decided before the criminal case
can proceed.
In an order dated April 7, 1980. Hon. Artemon D. Luna denied the motion to suspend the
proceedings in Criminal Case No. 43554 for bigamy. Respondent judge's basis for denial
is the ruling laid down in the case of Landicho vs. Relova.
1
The order further directed
that the proceedings in the criminal case can proceed as scheduled.
A motion for reconsideration was flied by herein petitioner thru counsel citing as one of
his grounds for suspension of proceedings the ruling laid down by this Court in the case
of De la Cruz vs. Ejercito
2
which was a much later case than that cited by respondent
judge in his order of denial.
The motion for reconsideration of the said order was likewise denied in an order dated
April 14, 1980, for lack of merit. Hence, the present petition for certiorari and prohibition
with preliminary injunction.
A prejudicial question has been defined to be one which arises in a case, the resolution
of which question is a logical antecedent of the issue involved in said case, and the
cognizance of which pertains to another tribunal.
3
It is one based on a fact distinct and
separate from the crime but so intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal action, it must appear not
only that said case involves facts intimately related to those upon which the criminal
prosecution would be based but also that in the resolution of the issue or issues raised in
the civil case, the guilt or innocence of the accused would necessarily be determined.
4
A
prejudicial question usually comes into play in a situation where a civil action and a
criminal action may proceed, because howsoever the issue raised in the civil action is
resolved would be determinative juris et de jure of the guilt or innocence of the accused
in a criminal case.
5

The requisites of a prejudicial question do not obtain in the case at bar. It must be noted
that the issue before the Juvenile and Domestic Relations Court touching upon the
nullity of the second marriage is not determinative of petitioner Donato's guilt or
innocence in the crime of bigamy. Furthermore, it was petitioner's second wife, the
herein private respondent Paz B. Abayan who filed the complaint for annulment of the
second marriage on the ground that her consent was obtained through deceit.
Petitioner Donato raised the argument that the second marriage should have been
declared null and void on the ground of force, threats and intimidation allegedly
employed against him by private respondent only sometime later when he was required
to answer the civil action for anulment of the second marriage. The doctrine elucidated
upon by the case of Landicho vs. Relova
6
may be applied to the present case. Said
case states that:
The mere fact that there are actions to annul the marriages entered into
by the accused in a bigamy case does not mean that "prejudicial
questions" are automatically raised in civil actions as to warrant the
suspension of the case. In order that the case of annulment of marriage
be considered a prejudicial question to the bigamy case against the
accused, it must be shown that the petitioner's consent to such marriage
must be the one that was obtained by means of duress, force and
intimidation to show that his act in the second marriage must be
involuntary and cannot be the basis of his conviction for the crime of
bigamy. The situation in the present case is markedly different. At the
time the petitioner was indicted for bigamy on February 27, 1963, the fact
that two marriage ceremonies had been contracted appeared to be
indisputable. And it was the second spouse, not the petitioner who filed
the action for nullity on the ground of force, threats and intimidation. And it
was only on June 15, 1963, that petitioner, as defendant in the civil
action, filed a third-party complaint against the first spouse alleging that
his marriage with her should be declared null and void on the ground of
force, threats and intimidation. Assuming that the first marriage was null
and void on the ground alleged by petitioner, the fact would not be
material to the outcome of the case. Parties to the marriage should not be
permitted to judge for themselves its nullity, for the same must be
submitted to the judgment of the competent courts and only when the
nullity of the marriage is so declared can it be held as void, and so long
as there is no such declaration the presumption is that the marriage
exists. Therefore, he who contracts a second marriage before the judicial
declaration of nullity of the first marriage assumes the risk of being
prosecuted for bigamy. The lower court therefore, has not abused much
less gravely abused, its discretion in failing to suspend the hearing as
sought by petitioner.
In the case at bar, petitioner has not even sufficiently shown that his consent to the
second marriage has been obtained by the use of threats, force and intimidation.
Petitioner calls the attention of this Court to the fact that the case of De la Cruz vs.
Ejercito is a later case and as such it should be the one applied to the case at bar. We
cannot agree. The situation in the case at bar is markedly different. In the aforecited
case it was accused Milagros dela Cruz who was charged with bigamy for having
contracted a second marriage while a previous one existed. Likewise, Milagros dela
Cruz was also the one who filed an action for annulment on the ground of duress, as
contra-distinguished from the present case wherein it was private respondent Paz B.
Abayan, petitioner's second wife, who filed a complaint for annulment of the second
marriage on the ground that her consent was obtained through deceit since she was not
aware that petitioner's marriage was still subsisting. Moreover, in De la Cruz, a judgment
was already rendered in the civil case that the second marriage of De la Cruz was null
and void, thus determinative of the guilt or innocence of the accused in the criminal
case. In the present case, there is as yet no such judgment in the civil case.
Pursuant to the doctrine discussed in Landicho vs. Relova, petitioner Donato cannot
apply the rule on prejudicial questions since a case for annulment of marriage can be
considered as a prejudicial question to the bigamy case against the accused only if it is
proved that the petitioner's consent to such marriage was obtained by means of duress,
violence and intimidation in order to establish that his act in the subsequent marriage
was an involuntary one and as such the same cannot be the basis for conviction. The
preceding elements do not exist in the case at bar.
Obviously, petitioner merely raised the issue of prejudicial question to evade the
prosecution of the criminal case. The records reveal that prior to petitioner's second
marriage on September 26, 1978, he had been living with private respondent Paz B.
Abayan as husband and wife for more than five years without the benefit of marriage.
Thus, petitioner's averments that his consent was obtained by private respondent
through force, violence, intimidation and undue influence in entering a subsequent
marriage is belled by the fact that both petitioner and private respondent executed an
affidavit which stated that they had lived together as husband and wife without benefit of
marriage for five years, one month and one day until their marital union was formally
ratified by the second marriage and that it was private respondent who eventually filed
the civil action for nullity.
Another event which militates against petitioner's contentions is the fact hat it was only
when Civil Case No. E-02627 was filed on September 28, 1979, or more than the lapse
of one year from the solemnization of the second marriage that petitioner came up with
the story that his consent to the marriage was secured through the use of force,
violence, intimidation and undue influence. Petitioner also continued to live with private
respondent until November 1978, when the latter left their abode upon learning that
Leonilo Donato was already previously married.
In the light of the preceding factual circumstances, it can be seen that the respondent
Judge did not err in his earlier order. There is no pivotal issue that must be pre-emptively
resolved in Civil Case No. E-02627 before proceedings in the criminal action for bigamy
can be undertaken.
Accordingly, there being no prejudicial question shown to exit the order of denial issued
by the respondent judge dated April 14, 1980 should be sustained.
WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for
lack of merit. We make no pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Grio-Aquino, JJ., concur.

DIGEST
FACTS:

An information for bigamy against petitioner Leonilo Donato was filed on January 23,
1979 with the lower court in Manila. This was based on the complaint of private
respondent Paz Abayan. Before the petitioners arraignment on September 28, 1979,
Paz filed with Juvenile and Domestic Relations Court of Manila, a civil action for
declaration of nullity of her marriage with petitioner contracted on September 26, 1978.
Said civil case was based on the ground that Paz consented to entering into the
marriage which was Donatos second since she had no previous knowledge that Donato
was already married to a certain Rosalinda Maluping on June 30, 1978. Donato
defensed that his second marriage was void since it was solemnized without a marriage
license and that force, violence, intimidation and undue influence were employed by
private respondent to obtain petitioner's consent to the marriage. Prior to the
solemnization of the second marriage, Paz and Donato had lived together as husband
and wife without the benefit of wedlock for 5 years proven by a joint affidavit executed by
them on September 26, 1978 for which reason, the requisite marriage license was
dispensed with pursuant to Article 76 of the Civil Code. Donato continued to live with
Paz until November 1978 where Paz left their home upon learning that Donato already
previously married.

ISSUE: Whether or not a criminal case for bigamy pending before the lower court be
suspended in view of a civil case for annulment of marriage pending before the juvenile
and domestic relations court on the ground that latter constitutes a prejudicial question.

HELD:

Petitioner Leonilo Donato cant apply rule on prejudicial question since a case for
annulment of marriage can only be considered as a prejudicial question to the bigamy
case against the accused if it was proved that petitioners consent to such marriage and
was obtained by means of duress violence and intimidation to show that his act in the
second marriage must be involuntary and cannot be the basis of his conviction for the
crime of bigamy.

Accordingly, there being no prejudicial question shown to exit the order of denial issued
by the respondent judge dated April 14, 1980 should be sustained.
WHEREFORE, in view of the foregoing, the instant petition is hereby DISMISSED for
lack of merit. We make no pronouncement as to costs.

Civil Personality (Articles 37-47) 2 Hours

Article 37-41
Quimiguing vs. Icao (34 SCRA 132)
G.R. No. 26795 July 31, 1970
CARMEN QUIMIGUING, Suing through her parents, ANTONIO QUIMIGUING and
JACOBA CABILIN,plaintiffs-appellants,
vs.
FELIX ICAO, defendant-appellee.
Torcuato L. Galon for plaintiffs-appellants.
Godardo Jacinto for defendant-appellee.

REYES, J.B.L., J .:
Appeal on points of law from an order of the Court of First Instance of Zamboanga del
Norte (Judge Onofre Sison Abalos, presiding), in its Civil Case No. 1590, dismissing a
complaint for support and damages, and another order denying amendment of the same
pleading.
The events in the court of origin can be summarized as follows:
Appellant, Carmen Quimiguing, assisted by her parents, sued Felix Icao in the court
below. In her complaint it was averred that the parties were neighbors in Dapitan City,
and had close and confidential relations; that defendant Icao, although married,
succeeded in having carnal intercourse with plaintiff several times by force and
intimidation, and without her consent; that as a result she became pregnant, despite
efforts and drugs supplied by defendant, and plaintiff had to stop studying. Hence, she
claimed support at P120.00 per month, damages and attorney's fees.
Duly summoned, defendant Icao moved to dismiss for lack of cause of action since the
complaint did not allege that the child had been born; and after hearing arguments, the
trial judge sustained defendant's motion and dismissed the complaint.
Thereafter, plaintiff moved to amend the complaint to allege that as a result of the
intercourse, plaintiff had later given birth to a baby girl; but the court, sustaining
defendant's objection, ruled that no amendment was allowable, since the original
complaint averred no cause of action. Wherefore, the plaintiff appealed directly to this
Court.
We find the appealed orders of the court below to be untenable. A conceived child,
although as yet unborn, is given by law a provisional personality of its own for all
purposes favorable to it, as explicitly provided in Article 40 of the Civil Code of the
Philippines. The unborn child, therefore, has a right to support from its progenitors,
particularly of the defendant-appellee (whose paternity is deemed admitted for the
purpose of the motion to dismiss), even if the said child is only "en ventre de sa mere;"
just as a conceived child, even if as yet unborn, may receive donations as prescribed by
Article 742 of the same Code, and its being ignored by the parent in his testament may
result in preterition of a forced heir that annuls the institution of the testamentary heir,
even if such child should be born after the death of the testator Article 854, Civil Code).
ART. 742. Donations made to conceived and unborn children may be
accepted by those persons who would legally represent them if they were
already born.
ART. 854. The preterition or omission of one, some, or all of the
compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be valid insofar as
they are not inofficious.
If the omitted compulsory heirs should die before the testator, the
institution shall be effectual, without prejudice to the right of
'representation.
It is thus clear that the lower court's theory that Article 291 of the Civil Code declaring
that support is an obligation of parents and illegitimate children "does not contemplate
support to children as yet unborn," violates Article 40 aforesaid, besides imposing a
condition that nowhere appears in the text of Article 291. It is true that Article 40
prescribing that "the conceived child shall be considered born for all purposes that are
favorable to it" adds further "provided it be born later with the conditions specified in the
following article" (i.e., that the foetus be alive at the time it is completely delivered from
the mother's womb). This proviso, however, is not a condition precedent to the right of
the conceived child; for if it were, the first part of Article 40 would become entirely
useless and ineffective. Manresa, in his Commentaries (5th Ed.) to the corresponding
Article 29 of the Spanish Civil Code, clearly points this out:
Los derechos atribuidos al nasciturus no son simples expectativas, ni aun
en el sentido tecnico que la moderna doctrina da a esta figura juridica
sino que constituyen un caso de los propiamente Ilamados 'derechos en
estado de pendenci'; el nacimiento del sujeto en las condiciones previstas
por el art. 30, no determina el nacimiento de aquellos derechos (que ya
existian de antemano), sino que se trata de un hecho que tiene
efectos declarativos. (1 Manresa, Op. cit., page 271)
A second reason for reversing the orders appealed from is that for a married man to
force a woman not his wife to yield to his lust (as averred in the original complaint in this
case) constitutes a clear violation of the rights of his victim that entitles her to claim
compensation for the damage caused. Says Article 21 of the Civil Code of the
Philippines:
ART. 21. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.
The rule of Article 21 is supported by Article 2219 of the same Code:
ART 2219. Moral damages may be recovered in the following and
analogous cases:
(3) Seduction, abduction, rape or other lascivious acts:
xxx xxx xxx
(10) Acts and actions referred to in Articles 21, 26, 27, 28 ....
Thus, independently of the right to Support of the child she was carrying, plaintiff herself
had a cause of action for damages under the terms of the complaint; and the order
dismissing it for failure to state a cause of action was doubly in error.
WHEREFORE, the orders under appeal are reversed and set aside. Let the case be
remanded to the court of origin for further proceedings conformable to this decision.
Costs against appellee Felix Icao. So ordered.
Concepcion, C.J., Dizon, Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo
and Villamor, JJ., concur.
DIGEST
FACTS:

Carmen Quimiguing, the petitioner, and Felix Icao, the defendant, were neighbors in
Dapitan City and had close and confidential relations. Despite the fact that Icao was
married, he succeeded to have carnal intercourse with plaintiff several times under force
and intimidation and without her consent. As a result, Carmen became pregnant despite
drugs supplied by defendant and as a consequence, Carmen stopped studying. Plaintiff
claimed for support at P120 per month, damages and attorneys fees. The complaint
was dismissed by the lower court in Zamboanga del Norte on the ground lack of cause
of action. Plaintiff moved to amend the complaint that as a result of the intercourse, she
gave birth to a baby girl but the court ruled that no amendment was allowable since the
original complaint averred no cause of action.

ISSUE: Whether plaintiff has a right to claim damages.

HELD:

Supreme Court held that a conceive child, although as yet unborn, is given by law a
provisional personality of its own for all purposes favorable to it, as explicitly provided in
Article 40 of the Civil Code of the Philippines. The conceive child may also receive
donations and be accepted by those persons who will legally represent them if they were
already born as prescribed in Article 742.

Lower courts theory on article 291 of the civil code declaring that support is an
obligation of parents and illegitimate children does not contemplate support to children
as yet unborn violates article 40 aforementioned.

Another reason for reversal of the order is that Icao being a married man forced a
woman not his wife to yield to his lust and this constitutes a clear violation of Carmens
rights. Thus, she is entitled to claim compensation for the damage caused.

WHEREFORE, the orders under appeal are reversed and set aside. Let the case be
remanded to the court of origin for further proceedings conformable to this decision.
Costs against appellee Felix Icao. So ordered.

Geluz vs. CA (2 SCRA 801)
G.R. No. L-16439 July 20, 1961
ANTONIO GELUZ, petitioner,
vs.
THE HON. COURT OF APPEALS and OSCAR LAZO, respondents.
Mariano H. de Joya for petitioner.
A.P. Salvador for respondents.
REYES, J.B.L., J .:
This petition for certiorari brings up for review question whether the husband of a
woman, who voluntarily procured her abortion, could recover damages from physician
who caused the same.
The litigation was commenced in the Court of First Instance of Manila by respondent
Oscar Lazo, the of Nita Villanueva, against petitioner Antonio Geluz, a physician.
Convinced of the merits of the complaint upon the evidence adduced, the trial court
rendered judgment favor of plaintiff Lazo and against defendant Geluz, ordering the
latter to pay P3,000.00 as damages, P700.00 attorney's fees and the costs of the suit.
On appeal, Court of Appeals, in a special division of five, sustained the award by a
majority vote of three justices as against two, who rendered a separate dissenting
opinion.
The facts are set forth in the majority opinion as follows:
Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in
1948 through her aunt Paula Yambot. In 1950 she became pregnant by her
present husband before they were legally married. Desiring to conceal her
pregnancy from her parent, and acting on the advice of her aunt, she had herself
aborted by the defendant. After her marriage with the plaintiff, she again became
pregnant. As she was then employed in the Commission on Elections and her
pregnancy proved to be inconvenient, she had herself aborted again by the
defendant in October 1953. Less than two years later, she again became
pregnant. On February 21, 1955, accompanied by her sister Purificacion and the
latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo
and P. Gomez streets in Manila, where the three met the defendant and his wife.
Nita was again aborted, of a two-month old foetus, in consideration of the sum of
fifty pesos, Philippine currency. The plaintiff was at this time in the province of
Cagayan, campaigning for his election to the provincial board; he did not know
of, nor gave his consent, to the abortion.
It is the third and last abortion that constitutes plaintiff's basis in filing this action and
award of damages. Upon application of the defendant Geluz we granted certiorari.
The Court of Appeals and the trial court predicated the award of damages in the sum of
P3,000.06 upon the provisions of the initial paragraph of Article 2206 of the Civil Code of
the Philippines. This we believe to be error, for the said article, in fixing a minimum
award of P3,000.00 for the death of a person, does not cover the case of an unborn
foetus that is not endowed with personality. Under the system of our Civil Code, "la
criatura abortiva no alcanza la categoria de persona natural y en consscuencia es un ser
no nacido a la vida del Derecho" (Casso-Cervera, "Diccionario de Derecho Privado",
Vol. 1, p. 49), being incapable of having rights and obligations.
Since an action for pecuniary damages on account of personal injury or death pertains
primarily to the one injured, it is easy to see that if no action for such damages could be
instituted on behalf of the unborn child on account of the injuries it received, no such
right of action could derivatively accrue to its parents or heirs. In fact, even if a cause of
action did accrue on behalf of the unborn child, the same was extinguished by its pre-
natal death, since no transmission to anyone can take place from on that lacked juridical
personality (or juridical capacity as distinguished from capacity to act). It is no answer to
invoke the provisional personality of a conceived child (conceptus pro nato habetur)
under Article 40 of the Civil Code, because that same article expressly limits such
provisional personality by imposing the condition that the child should be subsequently
born alive: "provided it be born later with the condition specified in the following article".
In the present case, there is no dispute that the child was dead when separated from its
mother's womb.
The prevailing American jurisprudence is to the same effect; and it is generally held that
recovery can not had for the death of an unborn child (Stafford vs. Roadway Transit Co.,
70 F. Supp. 555; Dietrich vs. Northampton, 52 Am. Rep. 242; and numerous cases
collated in the editorial note, 10 ALR, (2d) 639).
This is not to say that the parents are not entitled to collect any damages at all. But such
damages must be those inflicted directly upon them, as distinguished from the injury or
violation of the rights of the deceased, his right to life and physical integrity. Because the
parents can not expect either help, support or services from an unborn child, they would
normally be limited to moral damages for the illegal arrest of the normal development of
thespes hominis that was the foetus, i.e., on account of distress and anguish attendant
to its loss, and the disappointment of their parental expectations (Civ. Code Art. 2217),
as well as to exemplary damages, if the circumstances should warrant them (Art. 2230).
But in the case before us, both the trial court and the Court of Appeals have not found
any basis for an award of moral damages, evidently because the appellee's indifference
to the previous abortions of his wife, also caused by the appellant herein, clearly
indicates that he was unconcerned with the frustration of his parental hopes and
affections. The lower court expressly found, and the majority opinion of the Court of
Appeals did not contradict it, that the appellee was aware of the second abortion; and
the probabilities are that he was likewise aware of the first. Yet despite the suspicious
repetition of the event, he appeared to have taken no steps to investigate or pinpoint the
causes thereof, and secure the punishment of the responsible practitioner. Even after
learning of the third abortion, the appellee does not seem to have taken interest in the
administrative and criminal cases against the appellant. His only concern appears to
have been directed at obtaining from the doctor a large money payment, since he sued
for P50,000.00 damages and P3,000.00 attorney's fees, an "indemnity" claim that, under
the circumstances of record, was clearly exaggerated.
The dissenting Justices of the Court of Appeals have aptly remarked that:
It seems to us that the normal reaction of a husband who righteously feels
outraged by the abortion which his wife has deliberately sought at the hands of a
physician would be highminded rather than mercenary; and that his primary
concern would be to see to it that the medical profession was purged of an
unworthy member rather than turn his wife's indiscretion to personal profit, and
with that idea in mind to press either the administrative or the criminal cases he
had filed, or both, instead of abandoning them in favor of a civil action for
damages of which not only he, but also his wife, would be the beneficiaries.
It is unquestionable that the appellant's act in provoking the abortion of appellee's wife,
without medical necessity to warrant it, was a criminal and morally reprehensible act,
that can not be too severely condemned; and the consent of the woman or that of her
husband does not excuse it. But the immorality or illegality of the act does not justify an
award of damage that, under the circumstances on record, have no factual or legal
basis.
The decision appealed from is reversed, and the complaint ordered dismissed. Without
costs.
Let a copy of this decision be furnished to the Department of Justice and the Board of
Medical Examiners for their information and such investigation and action against the
appellee Antonio Geluz as the facts may warrant.
Bengzon, C.J., Padilla, Labrador, Barrera, Paredes, Dizon and Natividad, JJ., concur.
Concepcion, J., took no part.
De Leon, J., took no part.

DIGEST
FACTS:

Nita Villanueva, the wife of Oscar lazo, respondent, came to know Antonio Geluz, the
petitioner and physician, through her aunt Paula Yambot. Nita became pregnant some
time in 1950 before she and Oscar were legally married. As advised by her aunt and to
conceal it from her parents, she decided to have it aborted by Geluz. She had her
pregnancy aborted again on October 1953 since she found it inconvenient as she was
employed at COMELEC. After two years, on February 21, 1955, she again became
pregnant and was accompanied by her sister Purificacion and the latters daughter
Lucida at Geluz clinic at Carriedo and P. Gomez Street. Oscar at this time was in the
province of Cagayan campaigning for his election to the provincial board. He doesnt
have any idea nor given his consent on the abortion.

ISSUE: Whether husband of a woman, who voluntarily procured her abortion, could
recover damages from the physician who caused the same.

HELD:

The Supreme Court believed that the minimum award fixed at P3,000 for the death of a
person does not cover cases of an unborn fetus that is not endowed with personality
which trial court and Court of Appeals predicated.

Both trial court and CA wasnt able to find any basis for an award of moral damages
evidently because Oscars indifference to the previous abortions of Nita clearly indicates
he was unconcerned with the frustration of his parental affections. Instead of filing an
administrative or criminal case against Geluz, he turned his wifes indiscretion to
personal profit and filed a civil action for damages of which not only he but, including his
wife would be the beneficiaries. It shows that hes after obtaining a large money
payment since he sued Geluz for P50,000 damages and P3,000 attorneys fees that
serves as indemnity claim, which under the circumstances was clearly exaggerated.

R.A. No. 6809
De Jesus vs. Syquia (58 Phil. 866)
G.R. No. L-39110 November 28, 1933
ANTONIA L. DE JESUS, ET AL., plaintiff-appellant,
vs.
CESAR SYQUIA, defendant-appellant.
Jose Sotelo for plaintiffs-appellants.
Vicente J. Francisco for defendant-appellant.

STREET, J .:
This action was instituted in the Court of First Instance of Manila by Antonia Loanco de
Jesus in her own right and by her mother, Pilar Marquez, as next friend and
representative of Ismael and Pacita Loanco, infants, children of the first-named plaintiff,
for the purpose of recovering from the defendant, Cesar Syquia, the sum of thirty
thousand pesos as damages resulting to the first-named plaintiff from breach of a
marriage promise, to compel the defendant to recognize Ismael and Pacita as natural
children begotten by him with Antonia, and to pay for the maintenance of the three the
amount of five hundred pesos per month, together with costs. Upon hearing the cause,
after answer of the defendant, the trial court erred a decree requiring the defendant to
recognize Ismael Loanco as his natural child and to pay maintenance for him at the rate
of fifty pesos per month, with costs, dismissing the action in other respects. From this
judgment both parties appealed, the plaintiffs from so much of the decision as denied
part of the relief sought by them, and the defendant from that feature of the decision
which required him to recognize Ismael Loanco and to pay for his maintenance.
At the time with which we are here concerned, the defendant, Cesar Syquia was of the
age of twenty-three years, and an unmarried scion of the prominent family in Manila,
being possessed of a considerable property in his own right. His brother-in-law, Vicente
Mendoza is the owner of a barber shop in Tondo, where the defendant was accustomed
to go for tonsorial attention. In the month of June Antonia Loanco, a likely unmarried girl
of the age of twenty years, was taken on as cashier in this barber shop. Syquia was not
long in making her acquaintance and amorous relations resulted, as a consequence of
which Antonia was gotten with child and a baby boy was born on June 17, 1931. The
defendant was a constant visitor at the home of Antonia in the early months of her
pregnancy, and in February, 1931, he wrote and placed in her hands a note directed to
the padre who has expected to christen the baby. This note was as follows:
Saturday, 1:30 p. m.
February 14, 1931
Rev. FATHER,
The baby due in June is mine and I should like for my name to be given to it.
CESAR SYQUIA
The occasion for writing this note was that the defendant was on the eve of his departure
on a trip to China and Japan; and while he was abroad on this visit he wrote several
letters to Antonia showing a paternal interest in the situation that had developed with
her, and cautioning her to keep in good condition in order that "junior" (meaning the baby
to be, "Syquia, Jr.") might be strong, and promising to return to them soon. The baby
arrived at the time expected, and all necessary anticipatory preparations were made by
the defendant. To this he employed his friend Dr. Crescenciano Talavera to attend at the
birth, and made arrangements for the hospitalization of the mother in Saint Joseph's
Hospital of the City of Manila, where she was cared for during confinement.
When Antonio was able to leave the hospital, Syquia took her, with her mother and the
baby, to a house at No. 551 Camarines Street, Manila, where they lived together for
about a year in regular family style, all household expenses, including gas and electric
light, being defrayed by Syquia. In course of time, however, the defendant's ardor abated
and, when Antonia began to show signs of a second pregnancy the defendant
decamped, and he is now married to another woman. A point that should here be noted
is that when the time came for christening the child, the defendant, who had charge of
the arrangement for this ceremony, caused the name Ismael Loanco to be given to him,
instead of Cesar Syquia, Jr., as was at first planned.
The first question that is presented in the case is whether the note to the padre, quoted
above, in connection with the letters written by the defendant to the mother during
pregnancy, proves an acknowledgment of paternity, within the meaning of subsection 1
of article 135 of the Civil Code. Upon this point we have no hesitancy in holding that the
acknowledgment thus shown is sufficient. It is a universal rule of jurisprudence that a
child, upon being conceived, becomes a bearer of legal rights and capable of being dealt
with as a living person. The fact that it is yet unborn is no impediment to the acquisition
of rights. The problem here presented of the recognition of unborn child is really not
different from that presented in the ordinary case of the recognition of a child already
born and bearing a specific name. Only the means and resources of identification are
different. Even a bequest to a living child requires oral evidence to connect the particular
individual intended with the name used.
It is contended however, in the present case that the words of description used in the
writings before us are not legally sufficient to indemnify the child now suing as Ismael
Loanco. This contention is not, in our opinion, well founded. The words of recognition
contained in the note to the padre are not capable of two constructions. They refer to a
baby then conceived which was expected to be born in June and which would thereafter
be presented for christening. The baby came, and though it was in the end given the
name of Ismael Loanco instead of Cesar Syquia, Jr., its identity as the child which the
defendant intended to acknowledge is clear. Any doubt that might arise on this point is
removed by the letters Exhibit F, G, H, and J. In these letters the defendant makes
repeated reference to junior as the baby which Antonia, to whom the letters were
addressed, was then carrying in her womb, and the writer urged Antonia to eat with good
appetite in order that junior might be vigorous. In the last letter (Exhibit J) written only a
few days before the birth of the child, the defendant urged her to take good care of
herself and of junior also.
It seems to us that the only legal question that can here arise as to the sufficiency of
acknowledgment is whether the acknowledgment contemplated in subsection 1 of article
135 of the Civil Code must be made in a single document or may be made in more than
one document, of indubitable authenticity, written by the recognizing father. Upon this
point we are of the opinion that the recognition can be made out by putting together the
admissions of more than one document, supplementing the admission made in one
letter by an admission or admissions made in another. In the case before us the
admission of paternity is contained in the note to the padreand the other letters suffice to
connect that admission with the child then being carried by Antonia L. de Jesus. There is
no requirement in the law that the writing shall be addressed to one, or any particular
individual. It is merely required that the writing shall be indubitable.
The second question that presents itself in this case is whether the trial court erred in
holding that Ismael Loanco had been in the uninterrupted possession of the status of a
natural child, justified by the conduct of the father himself, and that as a consequence,
the defendant in this case should be compelled to acknowledge the said Ismael Loanco,
under No. 2 of article 135 of the Civil Code. The facts already stated are sufficient, in our
opinion, to justify the conclusion of the trial court on this point, and we may add here that
our conclusion upon the first branch of the case that the defendant had acknowledged
this child in writings above referred to must be taken in connection with the facts found
by the court upon the second point. It is undeniable that from the birth of this child the
defendant supplied a home for it and the mother, in which they lived together with the
defendant. This situation continued for about a year, and until Antonia
became enciente a second time, when the idea entered the defendant's head of
abandoning her. The law fixes no period during which a child must be in the continuous
possession of the status of a natural child; and the period in this case was long enough
to evince the father's resolution to concede the status. The circumstance that he
abandoned the mother and child shortly before this action was started is unimportant.
The word "continuous" in subsection 2 of article 135 of the Civil Code does not mean
that the concession of status shall continue forever, but only that it shall not be of an
intermittent character while it continues.
What has been said disposes of the principal feature of the defendant's appeal. With
respect to the appeal of the plaintiffs, we are of the opinion that the trial court was right in
refusing to give damages to the plaintiff, Antonia Loanco, for supposed breach of
promise to marry. Such promise is not satisfactorily proved, and we may add that the
action for breach of promise to marry has no standing in the civil law, apart from the right
to recover money or property advanced by the plaintiff upon the faith of such promise.
This case exhibits none of the features necessary to maintain such an action.
Furthermore, there is no proof upon which a judgment could be based requiring the
defendant to recognize the second baby, Pacita Loanco.
Finally, we see no necessity or propriety in modifying the judgment as to the amount of
the maintenance which the trial court allowed to Ismael Loanco. And in this connection
we merely point out that, as conditions change, the Court of First Instance will have
jurisdiction to modify the order as to the amount of the pension as circumstances will
require.
The judgment appealed from is in all respects affirmed, without costs. So ordered.
Malcolm, Abad Santos, Hull, Vickers, and butte, JJ., concur.



Separate Opinions

VILLA-REAL, J ., dissenting:
The majority opinion is predicated on two grounds: First, that the defendant-appellant
Cesar Syquia has expressly acknowledged his paternity of the child Ismael Loanco in an
indubitable writing of his; and secondly, that said child has enjoyed the uninterrupted
possession of the status of a natural son of said defendant-appellant Cesar Syquia,
justified by his acts, as required by article 135 of the Civil Code.
The first conclusion is drawn from Exhibits C, F, G, H, and J.
Exhibit C, which is in the handwriting of any signed by the defendant-appellant Cesar
Syquia, reads as follows:
Sabado, 1.30 p. m. 14 febrero, 1931
Rev. PADRE:
La criatura que vendra el junio es mio y que yo quisiera mi nombre que se de a la
criatura.
(Fdo.) CESAR SYQUIA
Exhibit F, G, H, and j, which are letters written by the said defendant-appellant Cesar
Syquia to plaintiff-appellee Antonia L. de Jesus prior to the birth of the child contain the
following expressions:
Exhibit F, Feb. 18, 1931: "No hagas nada malo; ni manches mi nombre y el
de junior tambien no lo manches. A cuerdate muy bien Toni que es por ti y
por junior volvere alli pronto. ..."
Exhibit G. Feb. 24, 1931: "Toni por favor cuida bien a junior eh? . ..."
Exhibit H, March 25, 1931: "Toni, cuida tu bien a junior y cuidate bien, y come tu mucho.
... ."
Exhibit J, June 1, 1931: "Cuidate bien y junior tambien . ..."
Article 135, number 1, provides as follows:
ART. 135. The father may be compelled to acknowledge his natural child in the
following cases:
1. When an indisputable paper written by him, expressly acknowledging his
paternity, is in existence.
Maresa (Codigo Civil, Vol. 1, page 596, 4th ed.) commenting on said article, says:
Con arreglo al articulo que comentamos, no puede haber cuestion acerca de si
es posible admitir por otro medio la prueba de la paternidad natural. Entendemos
que no, porquel el articulo es terminante y la intencion de la ley mas terminante
aun. Se establecio en la base 5.a que "no se admitira investigacion de la
paternidad sino en los casos de delito, o cuando exista escrito del padre en el
que conste su voluntad indubitada de reconocer por suyo al hijo,
deliberadamente expresada con ese fin, o cuando medie posesion de estado", y
esto mismo es lo que se ordena en el presente articulo.
No puede, pues, prosperar la demanda para obligar al padre al reconocimiento
de un hijo natural, aunque solo se limite a pedir alimentos, si no se funda en el
reconocimiento expreso del padre hecho por escrito, en la posesion constante
de estado de hijo natural o en sentencia firme recaida en causa por de delito
violacin, estupro o rapto. El escrito y la sentencia habran de acompaarse a la
demandada, y no puede admitirse otra prueba que la conducente a justificar que
el escrito es indubitadamente del padre que en el reconozca su paternidad, o la
relativa a los actos directos del mismo padre o de su familia, que demuestren la
posesion continua de dicho estado. Para la prueba de estos dos hechos podran
utilizarse todos los medios que permite la Ley de Enjuiciamiento Civil, debiendo
el juez rechazar la que por cualquier otro concepto se dirija a la investigacion de
la paternidad.
x x x x x x x x x
En cuanto al otro requisito de ser expreso el reconocimiento, tengase presente
que no basta hacerlo por incidencia; es indespensable que se consigne en el
escrito la voluntad indubitada, clara y terminante del padre, de reconocer por
suyo al hijo, deliberadamente expresada con este fin, como se ordena an la base
5.a antes citada, de las aprobadas por la Ley de 11 de mayo de 1888; de suerte
que el escrito, aunque contenga otros particulares, como sucede en los
testamentos, ha de tener por objecto el reconocimiento deliberado y expreso del
hijo natural. No llena, pues, ese objecto la manifestacion que incidentalmente
haga el padre de ser hijo natural suyo la persona a quien se refiera, y mucho
menos el dar a una persona el titulo y tratamiento de hijo en cartas familiares.
Sin embrago, en cada caso decidiran los un modo suficientemente expresivo la
paternidad, servira de base para acreditar, en union con otros datos, la posesion
contante del estado del hijo a los efectos de este articulo, y con arreglo a su
numero 2.
Let it first be noted that the law prohibits the investigation of paternity (Borres and
Barza vs. Municipality of Panay, 42 Phil., 643; Donado vs. Menendez Donado, 55 Phil.,
861). The only exceptions to this rule are those established in article 135 of the Civil
Code quoted above, the first of which is that the father may be compelled to
acknowledge his paternity, "When an indubitable writing of his exists in which he
expressly acknowledge his paternity." The writing that is required by said provision must
be complete in itself and by itself, and must contain all the statements that are necessary
to constitute a full and clear acknowledgment by a father of his paternity of a child, in
order that it may serve as a basis for compelling him to acknowledge said child should
be afterwards deny his paternity. If several writings put together, each not being
complete in itself, should be necessary in order to obtain a full and complete expression
of acknowledgment by a father of his paternity of a child, the general prohibition to
investigate paternity would be violated.
By the mere reading of all said letters, the one addressed to a priest and the others to
the herein plaintiff-appellee, Antonia L. de Jesus, the reader cannot ascertain which is
the "creature that is coming on June", which the defendant- appellant, Cesar Syquia,
says in the said letter addressed to the priest is his, nor who is the "junior" that he
recommends to said Antonia L. de Jesus to take good care of, as there is nothing in
anyone of said letters from which it may be inferred that Antonia L. de Jesus
was enciente at the time, that the "junior" was the being she was carrying in her womb,
and that it was the "creature that is coming in June." To connect all these facts it was
necessary to prove that Cesar Syquia had had illicit relations with Antonia L. de Jesus,
that as a result of such relations the woman became pregnant, and that she gave birth to
a boy in June 1931. All this certainly constitutes an investigation of the paternity of Cesar
Syquia of said child outside of the documents, which is prohibited by law.
Either taken alone therefore, or in connection with Exhibits F, G, H, and J, Exhibit C is
insufficient to constitute a "indubitable writing of Cesar Syquia, in which he expressly
acknowledges his paternity of the child Ismael Loanco," as required by number 1 of
article 135 of the Civil Code.
As to the second ground of the decision of the majority, number 2 of article 135 of the
Civil Code provides:
ART. 135. The father may be compelled to acknowledge his natural child in the
following cases:
x x x x x x x x x
2. When the child has been in the uninterrupted possession of the status of a
natural child of the defendant father, justified by the conduct of the father himself
or that of his family.
The majority decision bases its connection on the second point on Exhibits C, F, G, H,
and J and the following facts, as found by the lower court in its decision:
Cuando la demandante Antonia L. de Jesus estaba para dar a luz, el
demandado Cesar Syquia llamo a su comprovinciano Dr. Crescenciano
Talavera, medico que entonces ejercia su profesion en la Ciudad de Manila, para
que asistiera a aquella en su parto y a ese efecto llevo a la demandante Antonia
L. de Jesus acompaado del Dr. Talavera al Hospital San Jose, de esta Ciudad,
donde ella dio a luz el 17 de junio de 1931 asistida por dicho Dr. Talavera, que
firmo el certificado de necimiento Exhibit E.
Despues del nacimiento del demandante Ismael Loanco, el demandado estuvo
viviendo con este y con la demandante Antonio L. de Jesus en la casa No. 551
de la Calle Camarines, Manila, entregando a dicha demandante el dinero para
los gastos de casa y el pago del consumo de gas y luz electrica, habiendo
firmado el contrato para el suministro del fluido electrico en dicha casa.
Exhibit, C, F, G, H, and J, are inadmissible in evidence the purpose of showing that
Ismael Loanco has enjoyed the continuous possession of the status of a natural child,
because being of prior date to the birth of said child they can not be considered as direct
acts of Cesar Syquia showing possession of the status of natural child, as no human
being can enjoy such possession until he be born with legal capacity for acquiring civil
rights (Infante vs. Figueras, 4 Phil., 738; Granados vs. Leynes, G.R. No. 31224,
promulgated September 9, 1929, not reported).
It must also be stated that Cesar Syquia refused to allow his name to be given to the
child Ismael when it was baptized, so that the name of its mother, Loanco, had to be
given to it.
The facts which were found by the court below to have been proved by the testimony of
the witnesses during the trial, are not sufficient to constitute the uninterrupted
possession of the status of Ismael Loanco as natural child of said Cesar Syquia, in the
light of the following authorities:
In the case of Buenaventura vs. Urbano (5 Phil., 1, 9), this court said:
. . . Confining ourselves to the acts proved to have been performed by Don
Telesforo, we find that he visited the mother of the plaintiff; that he paid money
for her support; that he paid money for the support of the plaintiff; that he hold
one witness that the plaintiff was his son; that the plaintiff called him "Papa," and
that Don Telesforo answered to this designation; that when the plaintiff visited
Don Telesforo he kissed his hand; that Don Telesforo wrote letters to him; that he
paid his fees for instruction in school, and secured him a position in a commercial
house.
x x x x x x x x x
All these facts taken together are not sufficient to show that plaintiff possesses
continuously the status of a natural child. They may have a tendency to show
that Don Telesforo was the father of the child, but that it is not sufficient. It is not
sufficient that the father recognize the child as his. By the express terms of article
135 that recognition must appear either in writing, made by the father, or it must
appear in acts which show that the son has possessed continuously the status of
a natural child. No recognition by the father of the child which comes short of the
requirements of these two paragraphs is sufficient. It must appear that it was the
intention of the father to recognize the child as to give him that status, and that
the acts performed by him were done with that intention.
Manresa (Codigo Civil, Vol. 1, page 602, 4th ed.) in citing some decisions of the
Supreme Court of Spain says:
En la sentencia de 5 de junio de 1906 declarase que para justificar la posesion
de estado de hijo natural se requiere que los actos sean de tal naturaleza que
revelen, a la vez que el convencimiento de la paternidad, la voluntad ostensible
de tener y tratar al hijo como tal en las relaciones sociales y de la vida, y esto no
accidentalmente, sino continuedamente, porque en tal supuesto los actos tiene
el mismo valor que el reconocimiento expreso.lawphil.net
En el mismo criterio restrictivo se inspira la de 12 de octubre de 1907, que
estima que el hecho de que dos nodrizas criaron a otros tantos nios,
sufragando el gasto el demandado, quien ademas iba a casa de la demandante,
los besada, los llamaba hijos y encargaba para los mismos el mayor cuidado; el
de que subvenia a las necesidades de la madre y de los seis hijos que la
nacieron, el primero de los cuales se llamaba como el padre; y el de que los
porteros de la casa donde vivio la actora sabian que el finado visitaba a esta, se
lamentaba de la mucha familia que tenia y era tenido en el concepto publico
como padre de los menores, no son suficientes para fundar la declaracion de
paternidad, pues no es legal confundir actos que puedan revelar mas o menos la
presuncion o convencimiento en que una persona este de su paternidad con
relacion a hijos naturales, con los que demuestren su proposito de poner a estos
hijos en la posesion de tal estado.
It will thus be seen from the foregoing discussion and authorities that the herein
defendant-appellant Cesar Syquia cannot be compelled to acknowledge the child Ismael
Loanco as his natural son because there exists not an indubitable writing of his in which
he expressly acknowledges his paternity of said child, and because the said child has
not enjoyed the uninterrupted possession of the status of a natural child of the said
defendant-appellant, justified by his own conduct or that of his family, as required by
article 135 of the Civil Code.
The decision appealed from should, therefore, be reversed and the complaint dismissed.

Avancea, C.J. and Imperial, J., concur.
DIGEST
FACTS:

Antonia Loanco, a likely unmarried girl 20 years of age was a cashier in a barber shop
owned by the defendants brother in law Vicente Mendoza. Cesar Syquia, the
defendant, 23 years of age and an unmarried scion of a prominent family in Manila was
accustomed to have his haircut in the said barber shop. He got acquainted with Antonio
and had an amorous relationship. As a consequence, Antonia got pregnant and a baby
boy was born on June 17, 1931.

In the early months of Antonias pregnancy, defendant was a constant visitor. On
February 1931, he even wrote a letter to a rev father confirming that the child is his and
he wanted his name to be given to the child. Though he was out of the country, he
continuously wrote letters to Antonia reminding her to eat on time for her and juniors
sake. The defendant ask his friend Dr. Talavera to attend at the birth and hospital
arrangements at St. Joseph Hospital in Manila.

After giving birth, Syquia brought Antonia and his child at a House in Camarines Street
Manila where they lived together for about a year. When Antonia showed signs of
second pregnancy, defendant suddenly departed and he was married with another
woman at this time.

It should be noted that during the christening of the child, the defendant who was in
charge of the arrangement of the ceremony caused the name Ismael Loanco to be given
instead of Cesar Syquia Jr. that was first planned.

ISSUES:

1. Whether the note to the padre in connection with the other letters written by
defendant to Antonia during her pregnancy proves acknowledgement of paternity.

2. Whether trial court erred in holding that Ismael Loanco had been in the uninterrupted
possession of the status of a natural child, justified by the conduct of the father himself,
and that as a consequence, the defendant in this case should be compelled to
acknowledge the said Ismael Loanco.

HELD:

The letter written by Syquia to Rev. Father serves as admission of paternity and the
other letters are sufficient to connect the admission with the child carried by Antonia.
The mere requirement is that the writing shall be indubitable.

The law fixes no period during which a child must be in the continuous possession of
the status of a natural child; and the period in this case was long enough to reveal the
father's resolution to admit the status.

Supreme Court held that they agree with the trial court in refusing to provide damages
to Antonia Loanco for supposed breach of promise to marry since action on this has no
standing in civil law. Furthermore, there is no proof upon which a judgment could be
based requiring the defendant to recognize the second baby, Pacita Loanco. Finally, SC
found no necessity to modify the judgment as to the amount of maintenance allowed to
Ismael Loanco in the amount of P50 pesos per month. They likewise pointed out that it
is only the trial court who has jurisdiction to modify the order as to the amount of
pension.

Article 43
Limjuco vs. The Estate of Perdro Fragante (45 OG No.9, p.397)
G.R. No. L-770 April 27, 1948
ANGEL T. LIMJOCO, petitioner,
vs.
INTESTATE ESTATE OF PEDRO O. FRAGRANTE, deceased, respondent.
Angel Limjoco, Jr. and Delfin L. Gonzales for petitioner.
Bienvenido A. Tan for respondent.
HILADO, J .:
Under date of May 21, 1946, the Public Service Commission, through Deputy
Commissioner Fidel Ibaez, rendered its decision in case No. 4572 of Pedro O.
Fragante, as applicant for a certificate of public convenience to install, maintain and
operate an ice plant in San Juan, Rizal, whereby said commission held that the evidence
therein showed that the public interest and convenience will be promoted in a proper and
suitable manner "by authorizing the operation and maintenance of another ice plant of
two and one-half (2-) tons in the municipality of San Juan; that the original applicant
Pedro O. Fragante was a Filipino Citizen at the time of his death; and that his intestate
estate is financially capable of maintaining the proposed service". The commission,
therefore, overruled the opposition filed in the case and ordered "that under the
provisions of section 15 of Commonwealth Act No. 146, as amended a certificate of
public convenience be issued to the Intestate Estate of the deceased Pedro Fragante,
authorizing said Intestate Estate through its Special or Judicial Administrator, appointed
by the proper court of competent jurisdiction, to maintain and operate an ice plant with a
daily productive capacity of two and one-half (2-1/2) tons in the Municipality of San Juan
and to sell the ice produced from said plant in the said Municipality of San Juan and in
the Municipality of Mandaluyong, Rizal, and in Quezon City", subject to the conditions
therein set forth in detail (petitioner's brief, pp. 33-34).
Petitioner makes four assignments of error in his brief as follows:
1. The decision of the Public Service Commission is not in accordance with law.
2. The decision of the Public Service Commission is not reasonably supported by
evidence.
3. The Public Service Commission erred in not giving petitioner and the Ice and
Cold Storage Industries of the Philippines, Inc., as existing operators, a
reasonable opportunity to meet the increased demand.
4. The decision of the Public Service Commission is an unwarranted departure
from its announced policy with respect to the establishment and operation of ice
plant. (Pp. 1-2, petitioner's brief.)
In his argument petitioner contends that it was error on the part of the commission to
allow the substitution of the legal representative of the estate of Pedro O. Fragante for
the latter as party applicant in the case then pending before the commission, and in
subsequently granting to said estate the certificate applied for, which is said to be in
contravention of law.
If Pedro O. Fragante had not died, there can be no question that he would have had the
right to prosecute his application before the commission to its final conclusion. No one
would have denied him that right. As declared by the commission in its decision, he had
invested in the ice plant in question P 35,000, and from what the commission said
regarding his other properties and business, he would certainly have been financially
able to maintain and operate said plant had he not died. His transportation business
alone was netting him about P1,440 a month. He was a Filipino citizen and continued to
be such till his demise. The commission declared in its decision, in view of the evidence
before it, that his estate was financially able to maintain and operate the ice plant. The
aforesaid right of Pedro O. Fragante to prosecute said application to its conclusion was
one which by its nature did not lapse through his death. Hence, it constitutes a part of
the assets of his estate, for which a right was property despite the possibility that in the
end the commission might have denied application, although under the facts of the case,
the commission granted the application in view of the financial ability of the estate to
maintain and operate the ice plant. Petitioner, in his memorandum of March 19, 1947,
admits (page 3) that the certificate of public convenience once granted "as a rule, should
descend to his estate as an asset". Such certificate would certainly be property, and the
right to acquire such a certificate, by complying with the requisites of the law, belonged
to the decedent in his lifetime, and survived to his estate and judicial administrator after
his death.
If Pedro O. Fragrante had in his lifetime secured an option to buy a piece of land and
during the life of the option he died, if the option had been given him in the ordinary
course of business and not out of special consideration for his person, there would be no
doubt that said option and the right to exercise it would have survived to his estate and
legal representatives. In such a case there would also be the possibility of failure to
acquire the property should he or his estate or legal representative fail to comply with the
conditions of the option. In the case at bar Pedro O. Fragrante's undoubted right to apply
for and acquire the desired certificate of public convenience the evidence established
that the public needed the ice plant was under the law conditioned only upon the
requisite citizenship and economic ability to maintain and operate the service. Of course,
such right to acquire or obtain such certificate of public convenience was subject to
failure to secure its objective through nonfulfillment of the legal conditions, but the
situation here is no different from the legal standpoint from that of the option in the
illustration just given.
Rule 88, section 2, provides that the executor or administrator may bring or defend
actions, among other cases, for the protection of the property or rights of the deceased
which survive, and it says that such actions may be brought or defended "in the right of
the deceased".
Rule 82, section 1, paragraph (a), mentions among the duties of the executor or
administrator, the making of an inventory of all goods, chattels, rights, credits, and estate
of the deceased which shall come to his possession or knowledge, or to the possession
of any other person for him.
In his commentaries on the Rules of Court (Volume II, 2nd ed., pages 366, 367) the
present chief Justice of this Court draws the following conclusion from the decisions
cited by him:
Therefore, unless otherwise expressly provided by law, any action affecting the
property or rights(emphasis supplied) of a deceased person which may be
brought by or against him if he were alive, may likewise be instituted and
prosecuted by or against the administrator, unless the action is for recovery of
money, debt or interest thereon, or unless, by its very nature, it cannot survive,
because death extinguishes the right . . . .
It is true that a proceeding upon the application for a certificate of public convenience
before the Public Service Commission is not an "action". But the foregoing provisions
and citations go to prove that the decedent's rights which by their nature are not
extinguished by death go to make up a part and parcel of the assets of his estate which,
being placed under the control and management of the executor or administrator, can
not be exercised but by him in representation of the estate for the benefit of the
creditors, devisees or legatees, if any, and the heirs of the decedent. And if the right
involved happens to consist in the prosecution of an unfinished proceeding upon an
application for a certificate of public convenience of the deceased before the Public
Service Commission, it is but logical that the legal representative be empowered and
entitled in behalf of the estate to make the right effective in that proceeding.
Manresa (Vol. III, 6th ed., p. 11) says that No. 10 of article 334 and article 336 of the
Civil Code, respectively, consider as immovable and movable things rights which are not
material. The same eminent commentator says in the cited volume (p. 45) that article
336 of the Civil Code has been deficiently drafted in that it is not sufficiently expressive
of all incorporeal rights which are also property for juridical purposes.
Corpus Juris (Vol. 50, p. 737) states that in the broad sense of the term, property
includes, among other things, "an option", and "the certificate of the railroad commission
permitting the operation of a bus line", and on page 748 of the same volume we read:
However, these terms (real property, as estate or interest) have also been
declared to include every species of title, inchoate or complete, and
embrace rights which lie in contract, whether executory or executed. (Emphasis
supplied.)
Another important question raised by petitioner is whether the estate of Pedro O.
Fragrante is a "person" within the meaning of the Public Service Act.
Words and Phrases, First Series, (Vol. 6, p, 5325), states the following doctrine in the
jurisdiction of the State of Indiana:
As the estate of the decedent is in law regarded as a person, a forgery
committed after the death of the man whose name purports to be signed to the
instrument may be prosecuted as with the intent to defraud the estate. Billings vs.
State, 107 Ind., 54, 55, 6 N. E. 914, 7 N. E. 763, 57 Am. Rep. 77.
The Supreme Court of Indiana in the decision cited above had before it a case of forgery
committed after the death of one Morgan for the purpose of defrauding his estate. The
objection was urged that the information did not aver that the forgery was committed with
the intent to defraud any person. The Court, per Elliott, J., disposed of this objection as
follows:
. . . The reason advanced in support of this proposition is that the law does not
regard the estate of a decedent as a person. This intention (contention) cannot
prevail. The estate of the decedent is a person in legal contemplation. "The word
"person" says Mr. Abbot, "in its legal signification, is a generic term, and includes
artificial as well as natural persons," 2 Abb. Dict. 271; Douglas vs. Pacific, etc.
Co., 4 Cal. 304; Planters', etc., Bank vs. Andrews, 8 Port. (Ala.) 404. It said in
another work that 'persons are of two kinds: natural and artificial. A natural
person is a human being. Artificial persons include (1) a collection or succession
of natural persons forming a corporation; (2) a collection of property to which the
law attributes the capacity of having rights and duties. The latter class of artificial
persons is recognized only to a limited extent in our law. "Examples are the
estate of a bankrupt or deceased person." 2 Rapalje & L. Law Dict. 954. Our own
cases inferentially recognize the correctness of the definition given by the
authors from whom we have quoted, for they declare that it is sufficient, in
pleading a claim against a decedent's estate, to designate the defendant as the
estate of the deceased person, naming him. Ginn vs. Collins, 43 Ind. 271. Unless
we accept this definition as correct, there would be a failure of justice in cases
where, as here, the forgery is committed after the death of a person whose name
is forged; and this is a result to be avoided if it can be done consistent with
principle. We perceive no difficulty in avoiding such a result; for, to our minds, it
seems reasonable that the estate of a decedent should be regarded as an
artificial person. It is the creation of law for the purpose of enabling a disposition
of the assets to be properly made, and, although natural persons as heirs,
devises, or creditors, have an interest in the property, the artificial creature is a
distinct legal entity. The interest which natural persons have in it is not complete
until there has been a due administration; and one who forges the name of the
decedent to an instrument purporting to be a promissory note must be regarded
as having intended to defraud the estate of the decedent, and not the natural
persons having diverse interests in it, since ha cannot be presumed to have
known who those persons were, or what was the nature of their respective
interest. The fraudulent intent is against the artificial person, the estate and
not the natural persons who have direct or contingent interest in it. (107 Ind. 54,
55, 6 N.E. 914-915.)
In the instant case there would also be a failure of justice unless the estate of Pedro O.
Fragrante is considered a "person", for quashing of the proceedings for no other reason
than his death would entail prejudicial results to his investment amounting to P35,000.00
as found by the commission, not counting the expenses and disbursements which the
proceeding can be presumed to have occasioned him during his lifetime, let alone those
defrayed by the estate thereafter. In this jurisdiction there are ample precedents to show
that the estate of a deceased person is also considered as having legal personality
independent of their heirs. Among the most recent cases may be mentioned that of
"Estate of Mota vs. Concepcion, 56 Phil., 712, 717, wherein the principal plaintiff was the
estate of the deceased Lazaro Mota, and this Court gave judgment in favor of said
estate along with the other plaintiffs in these words:
. . . the judgment appealed from must be affirmed so far as it holds that
defendants Concepcion and Whitaker are indebted to he plaintiffs in the amount
of P245,804.69 . . . .
Under the regime of the Civil Code and before the enactment of the Code of Civil
Procedure, the heirs of a deceased person were considered in contemplation of law as
the continuation of his personality by virtue of the provision of article 661 of the first
Code that the heirs succeed to all the rights and obligations of the decedent by the mere
fact of his death. It was so held by this Court in Barrios vs. Dolor, 2 Phil., 44, 46.
However, after the enactment of the Code of Civil Procedure, article 661 of the Civil
Code was abrogated, as held in Suiliong & Co. vs. Chio-Taysan, 12 Phil., 13, 22. In that
case, as well as in many others decided by this Court after the innovations introduced by
the Code of Civil Procedure in the matter of estates of deceased persons, it has been
the constant doctrine that it is the estate or the mass of property, rights and assets left
by the decedent, instead of the heirs directly, that becomes vested and charged with his
rights and obligations which survive after his demise.
The heirs were formerly considered as the continuation of the decedent's personality
simply by legal fiction, for they might not have been flesh and blood the reason was
one in the nature of a legal exigency derived from the principle that the heirs succeeded
to the rights and obligations of the decedent. Under the present legal system, such rights
and obligations as survive after death have to be exercised and fulfilled only by the
estate of the deceased. And if the same legal fiction were not indulged, there would be
no juridical basis for the estate, represented by the executor or administrator, to exercise
those rights and to fulfill those obligations of the deceased. The reason and purpose for
indulging the fiction is identical and the same in both cases. This is why according to the
Supreme Court of Indiana in Billings vs. State, supra, citing 2 Rapalje & L. Dictionary,
954, among the artificial persons recognized by law figures "a collection of property to
which the law attributes the capacity of having rights and duties", as for instance, the
estate of a bankrupt or deceased person.
Petitioner raises the decisive question of whether or not the estate of Pedro O. Fragrante
can be considered a "citizen of the Philippines" within the meaning of section 16 of the
Public Service Act, as amended, particularly the proviso thereof expressly and
categorically limiting the power of the commission to issue certificates of public
convenience or certificates of public convenience and necessity "only to citizens of the
Philippines or of the United States or to corporations, copartnerships, associations, or
joint-stock companies constituted and organized under the laws of the Philippines", and
the further proviso that sixty per centum of the stock or paid-up capital of such entities
must belong entirely to citizens of the Philippines or of the United States.
Within the Philosophy of the present legal system, the underlying reason for the legal
fiction by which, for certain purposes, the estate of the deceased person is considered a
"person" is the avoidance of injustice or prejudice resulting from the impossibility of
exercising such legal rights and fulfilling such legal obligations of the decedent as
survived after his death unless the fiction is indulged. Substantially the same reason is
assigned to support the same rule in the jurisdiction of the State of Indiana, as
announced in Billings vs. State, supra, when the Supreme Court of said State said:
. . . It seems reasonable that the estate of a decedent should be regarded as an
artificial person. it is the creation of law for the purpose of enabling a disposition
of the assets to be properly made . . . .
Within the framework and principles of the constitution itself, to cite just one example,
under the bill of rights it seems clear that while the civil rights guaranteed therein in the
majority of cases relate to natural persons, the term "person" used in section 1 (1) and
(2) must be deemed to include artificial or juridical persons, for otherwise these latter
would be without the constitutional guarantee against being deprived of property without
due process of law, or the immunity from unreasonable searches and seizures. We take
it that it was the intendment of the framers to include artificial or juridical, no less than
natural, persons in these constitutional immunities and in others of similar nature.
Among these artificial or juridical persons figure estates of deceased persons. Hence,
we hold that within the framework of the Constitution, the estate of Pedro O. Fragrante
should be considered an artificial or juridical person for the purposes of the settlement
and distribution of his estate which, of course, include the exercise during the judicial
administration thereof of those rights and the fulfillment of those obligations of his which
survived after his death. One of those rights was the one involved in his pending
application before the Public Service Commission in the instant case, consisting in the
prosecution of said application to its final conclusion. As stated above, an injustice would
ensue from the opposite course.
How about the point of citizenship? If by legal fiction his personality is considered
extended so that any debts or obligations left by, and surviving, him may be paid, and
any surviving rights may be exercised for the benefit of his creditors and heirs,
respectively, we find no sound and cogent reason for denying the application of the
same fiction to his citizenship, and for not considering it as likewise extended for the
purposes of the aforesaid unfinished proceeding before the Public Service Commission.
The outcome of said proceeding, if successful, would in the end inure to the benefit of
the same creditors and the heirs. Even in that event petitioner could not allege any
prejudice in the legal sense, any more than he could have done if Fragrante had lived
longer and obtained the desired certificate. The fiction of such extension of his
citizenship is grounded upon the same principle, and motivated by the same reason, as
the fiction of the extension of personality. The fiction is made necessary to avoid the
injustice of subjecting his estate, creditors and heirs, solely by reason of his death to the
loss of the investment amounting to P35,000, which he has already made in the ice
plant, not counting the other expenses occasioned by the instant proceeding, from the
Public Service Commission of this Court.
We can perceive no valid reason for holding that within the intent of the constitution
(Article IV), its provisions on Philippine citizenship exclude the legal principle of
extension above adverted to. If for reasons already stated our law indulges the fiction of
extension of personality, if for such reasons the estate of Pedro O. Fragrante should be
considered an artificial or juridical person herein, we can find no justification for refusing
to declare a like fiction as to the extension of his citizenship for the purposes of this
proceeding.
Pedro O. Fragrante was a Filipino citizen, and as such, if he had lived, in view of the
evidence of record, he would have obtained from the commission the certificate for
which he was applying. The situation has suffered but one change, and that is, his
death. His estate was that of a Filipino citizen. And its economic ability to appropriately
and adequately operate and maintain the service of an ice plant was the same that it
received from the decedent himself. In the absence of a contrary showing, which does
not exist here, his heirs may be assumed to be also Filipino citizens; and if they are not,
there is the simple expedient of revoking the certificate or enjoining them from inheriting
it.
Upon the whole, we are of the opinion that for the purposes of the prosecution of said
case No. 4572 of the Public Service Commission to its final conclusion, both the
personality and citizenship of Pedro O. Fragrante must be deemed extended, within the
meaning and intent of the Public Service Act, as amended, in harmony with the
constitution: it is so adjudged and decreed.
Decision affirmed, without costs. So ordered.
Moran, C.J., Pablo, Bengzon, Briones, Padilla and Tuason, JJ., concur.
Paras, J., I hereby certify that Mr. Justice Feria voted with the majority.


Separate Opinions
PERFECTO, J ., dissenting:
Commonwealth Act No. 146 reserves to Filipino citizens the right to obtain a certificate of
public convenience to operate an ice plant in San Juan, Rizal. The limitation is in
accordance with section 8 of Article XIV of the Constitution which provides
No franchise, certificate, or any other form of authorization for the operation of a
public utility shall be granted except to citizens of the Philippines or to
corporations or other entities organized under the laws of the Philippines, sixty
per centum of the capital of which is owned by citizens of the Philippines, nor
such franchise, certificate or authorization be exclusive in character or for a
longer period than fifty years. No franchise granted to any individual, firm or
corporation, except under the condition that it shall be subject to amendment,
alteration, or repeal by Congress when the public interest so requires.
The main question in this case is whether the estate of Pedro O. Fragrante fulfills the
citizenship requirement. To our mind, the question can be restated by asking whether
the heirs of Pedro O. Fragrante fulfill the citizenship requirement of the law.
The estate is an abstract entity. As such, its legal value depends on what it represents. It
is a device by which the law gives a kind of personality and unity to undetermined
tangible persons, the heirs. They inherit and replace the deceased at the very moment of
his death. As there are procedural requisites for their identification and determination
that need time for their compliance, a legal fiction has been devised to represent them.
That legal fiction is the estate, a liquid condition in process of solidification.
The estate, therefore, has only a representative value. What the law calls estate is, a
matter of fact, intended to designate the heirs of the deceased. The question, therefore,
in this case, boils down to the citizenship of the heirs of Fragrante.
There is nothing in the record to show conclusively the citizenship of the heirs of
Fragrante. If they are Filipino citizens, the action taken by the Public Service
Commission should be affirmed. If they are not, it should be reversed.
Petitioner alleges that the estate is just a front or dummy for aliens to go around the
citizenship constitutional provision. It is alleged that Gaw Suy, the special administrator
of the estate, is an alien.
We are of the opinion that the citizenship of the heirs of Fragrante should be determined
by the Commission upon evidence that the party should be present. It should also
determine the dummy question raised by the petitioner.
We are of opinion and so vote that the decision of the Public Service Commission of
May 21, 1946, be set aside and that the Commission be instructed to receive evidence
of the above factual questions and render a new decision accordingly.

DIGEST
FACTS:

Pedro Fragante, a Filipino citizen at the time of his death, applied for a certificate of
public convenience to install and maintain an ice plant in San Juan Rizal. His intestate
estate is financially capable of maintaining the proposed service. The Public Service
Commission issued a certificate of public convenience to Intestate Estate of the
deceased, authorizing said Intestate Estate through its special or Judicial Administrator,
appointed by the proper court of competent jurisdiction, to maintain and operate the said
plant. Petitioner claims that the granting of certificate applied to the estate is a
contravention of law.

ISSUE: Whether or not the estate of Fragante may be extended an artificial judicial
personality.

HELD:

The estate of Fragante could be extended an artificial judicial personality because under
the Civil Code, estate of a dead person could be considered as artificial juridical person
for the purpose of the settlement and distribution of his properties. It should be noted
that the exercise of juridical administration includes those rights and fulfillment of
obligation of Fragante which survived after his death. One of those surviving rights
involved the pending application for public convenience before the Public Service
Commission.

Supreme Court is of the opinion that for the purposes of the prosecution of said case
No. 4572 of the Public Service Commission to its final conclusion, both the personality
and citizenship of Pedro O. Fragrante must be deemed extended, within the meaning
and intent of the Public Service Act, as amended, in harmony with the constitution: it is
so adjudged and decreed.

Dumlao vs. Quality Plastics (G.R. No. L-27956, 30 April 1976)
G.R. No. L-27956 April 30, 1976
DIONISIO DUMLAO, in his own behalf and in his capacity as Administrator of the
Testate Estate of the late Pedro Oria; FAUSTA DUMLAO, AMADO DUMLAO, and
BENJAMIN DUMLAO, plaintiffs-appellants,
vs.
QUALITY PLASTIC PRODUCTS, INC., defendant-appellee.
Castillo & Castillo for appellants.
Eugenio T. Estavillo for appellee.

AQUINO, J .:p
On February 28, 1962 the Court of First Instance of Pangasinan in Civil Case No.
T-662 rendered a judgment ordering defendants Vicente Soliven, Pedro Oria, Santiago
Laurencio, Marcelino Sumalbag and Juana Darang to pay solidarity Quality Plastic
Products, Inc. the sum of P3,667.03 plus the legal rate of interest from November, 1958.
The lower court directed that in case the defendants failed to pay the said amount before
its decision became final, then Quality Plastic Products, Inc. "is hereby authorized to
foreclose the bond, Exhibit A, in accordance with law, for the satisfaction of the
judgment". (Under that bond the four sureties bound themselves to answer solidarity for
the obligations of the principal, Vicente Soliven and certain real properties of the sureties
were "given as security for" their undertaking).
Upon defendants' failure to pay the amount of the judgment and after the decision had
become final, the lower court, on motion of Quality Plastic Products, Inc., ordered the
"foreclosure" of the surety bond and the sale at public auction of the land of Pedro Oria
which he had given as security under the bond. Oria's land, which was covered by
Original Certificate of Title No. 28732 and has an area of nine and six-tenths hectares,
was levied upon and sold by the sheriff at public auction on September 24, 1962. The
sale was confirmed by the lower court in its order of November 20, 1962.
It turned out that Oria died on April 23, 1959 or long before June 13, 1960 when the
action was filed. Oria's death was not known to Quality Plastic Products, Inc. Nor were
the representatives of Quality Plastic Products, Inc. aware that in the same Tayug court
Special Proceeding No. T-212, Testate Estate of the deceased Pedro Oria, was
pending.
The summons and copies of the complaint for the five defendants in Civil Case No.
T-662 had been personally served on June 24, 1960 by a deputy sheriff on Soliven, the
principal in the bond, who acknowledged such service by signing on the back of the
original summons in his own behalf and again signing for his co-defendants.
On March 1, 1963 Dionisio, Fausta, Amado and Benjamin, all surnamed Dumlao and all
testamentary heirs in Oria's duly probated will, sued Quality Plastic Products, Inc., also
in the Tayug court for the annulment of the judgment against Oria and the execution
against his land. (Dionisio Dumlao also sued in his capacity as administrator of Oria's
testate estate).
The ground for annulment was lack of jurisdiction over the person of the deceased Oria
(Civil Case No. T- 873). It was only when Quality Plastic Products, Inc. received the
summons in Civil Case No. T-873 that it learned that Oria was already dead at the time
the prior case, Civil Case No. T-662, was filed.
Quality Plastic Products, Inc. in its answer alleged that Oria's heirs were aware of the
suit against Soliven and his sureties and that the said heirs were estopped to question
the court's jurisdiction over Oria.
After hearing the lower court held that it acquired jurisdiction over Soliven and the other
defendants in Civil Case No. T-662 by reason of their voluntary appearance. It reasoned
out that Soliven acted in bad faith because he did not apprise the court that Oria was
dead. It specifically ruled that "it had acquired jurisdiction over the person" of Oria and
that the judgment was valid as to him. From that decision the plaintiffs appealed.
The four assignments of error of appellants Dumlao may be boiled down to the issue as
to the validity of the lower court's judgment against the deceased Pedro Oria who, being
already in the other world, was never served with summons.
There is no difficulty in resolving that issue. Since no jurisdiction was acquired over Oria,
the judgment against him is a patent nullity (Ang Lam vs. Rosillosa and Santiago, 86
Phil. 447; Asuncion vs. Nieto, 4 Phil. 97; Gorostiaga vs. Sarte, 68 Phil. 4).
As far as Oria was concerned, the lower court's judgment against him in Civil Case No.
T-662 is void for lack of jurisdiction over his person. He was not, and he could not have
been, validly served with summons. He had no more civil personality. His juridical
capacity, which is the fitness to be the subject of legal relations, was lost through death.
(Arts. 37 and 42, Civil Code).
The lower court erred in ruling that since Soliven's counsel also appeared as counsel for
Oria, there was a voluntary appearance which enabled the court to acquire jurisdiction
over Oria, as contemplated in section 23, Rule 14 of the Revised Rules of Court.
Soliven's counsel could not have validly appeared for a dead co-defendant. Estoppel
has no application to this case.
But from the fact that appellants Dumlao had to sue Quality Plastic Products, Inc. in
order to annul the judgment against Oria, it does not follow that they are entitled to claim
attorney's fees against that corporation. The parties herein agreed in their stipulation of
facts that Quality Plastic Products, Inc. was unaware of Oria's death. Appellants Dumlao
in effect conceded that the appellee acted in good faith in joining Oria as a co-defendant.
WHEREFORE, the lower court's decision is reversed and set aside. Its judgment in Civil
Case No. T-662 against Pedro Oria is declared void for lack of jurisdiction. The
execution sale of Oria's land covered by OCT No. 28732 is also void. No costs.
SO ORDERED.
Fernando, Barredo, Antonio and Concepcion, Jr., JJ., concur.
DIGEST
FACTS:

Judgement for Civil Case T-662 was rendered on February 28, 1962 ordering
defendants Soliven, Pedro Oria, Laurencio, Sumalbag and Darang to pay solidarity
Quality Plastics the sum of P3,667.03 plus legal rate of interest from November 1958
before its decision became final or else Quality Plastics is hereby authorized to foreclose
the bond. Defendants failed to pay the amount before the limit given. Oria's land, which
was covered by Original Certificate of Title No. 28732 and has an area of nine and six-
tenths hectares, was levied upon and sold by the sheriff at public auction on September
24, 1962 which he has given as security under the bond.

Apparently, Oria died on April 23, 1959 or long before June 13, 1960. Quality Plastics
was not aware on Orias death. The summons and copies of complaint was personally
served on June 24, 1960 by a deputy sheriff to Soliven which the latter acknowledged
and signed in his own behalf and his co-defendants.

Dionisio, Fausta, Amado and Benjamin, all surnamed Dumlao and all testamentary heirs
in Oria's duly probated will, sued Quality Plastic Products, Inc on March 1, 1963 for the
annulment of the judgment against Oria and the execution against his land (T-873).
Dionisio also sued in his capacity as administrator of Orias testate estate.



ISSUE: Whether judgment against Oria and execution against his land be annulled on
the ground of lack in juridical capacity.


HELD:

Quality Plastics upon receiving the summons on T-873 just learned that Oria was
already dead prior case T-662 was filed. The Dumalaos agreed in their stipulation that
indeed Quality Plastics was unaware of Orias death and that they acted in good faith in
joining Oria as a co-defendant.

However, no jurisdiction was acquired over Oria, thus, the judgment against him is a
patent nullity. Lower courts judgment against Oria in T-662 is void for lack of jurisdiction
over his person as far as Oria was concerned. He had no more civil personality and his
juridical capacity which is the fitness to be the subject of legal relations was lost through
death.

The fact that Dumlao had to sue Quality Plastics in order to annul the judgment against
Oria does not follow that they are entitiled to claim attorneys fees against the
corporation.

WHEREFORE, the lower court's decision is reversed and set aside. Its judgment in Civil
Case No. T-662 against Pedro Oria is declared void for lack of jurisdiction. The
execution sale of Oria's land covered by OCT No. 28732 is also void.

Citizenship and Domicile 1 Hour

Mo Ya Lim Yao vs. Comm. of Immigration (41 SCRA 292)
G.R. No. L-21289 October 4, 1971
MOY YA LIM YAO alias EDILBERTO AGUINALDO LIM and LAU YUEN
YEUNG, petitioners-appellants,
vs.
THE COMMISSIONER OF IMMIGRATION, respondent-appellee.
Aruego, Mamaril & Associates for petitioners-appellants.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Frine' C.
Zaballero and Solicitor Sumilang V. Bernardo for respondent-appellee.

BARREDO, J .:
Appeal from the following decision of the Court of First Instance of Manila in its Civil
Case No. 49705 entitled Moy Ya Lim Yao, etc., et al. vs. The Commissioner of
Immigration which, brief as it is, sufficiently depicts the factual setting of and the
fundamental issues involved in this case thus:
In the instant case, petitioners seek the issuance of a writ of injunction
against the Commissioner of Immigration, "restraining the latter and/or his
authorized representative from ordering plaintiff Lau Yuen Yeung to leave
the Philippines and causing her arrest and deportation and the
confiscation of her bond, upon her failure to do so."
The prayer for preliminary injunction embodied in the complaint, having
been denied, the case was heard on the merits and the parties submitted
their respective evidence.
The facts of the case, as substantially and correctly stated by the Solicitor
General are these:
On February 8, 1961, Lau Yuen Yeung applied for a
passport visa to enter the Philippines as a non-immigrant.
In the interrogation made in connection with her application
for a temporary visitor's visa to enter the Philippines, she
stated that she was a Chinese residing at Kowloon,
Hongkong, and that she desired to take a pleasure trip to
the Philippines to visit her great (grand) uncle Lau Ching
Ping for a period of one month (Exhibits "l," "1-a," and "2").
She was permitted to come into the Philippines on March
13, 1961, and was permitted to stay for a period of one
month which would expire on April 13, 1961. On the date
of her arrival, Asher Y, Cheng filed a bond in the amount of
P1,000.00 to undertake, among others that said Lau Yuen
Yeung would actually depart from the Philippines on or
before the expiration of her authorized period of stay in this
country or within the period as in his discretion the
Commissioner of Immigration or his authorized
representative might properly allow. After repeated
extensions, petitioner Lau Yuen Yeung was allowed to stay
in the Philippines up to February 13, 1962 (Exhibit "4"). On
January 25, 1962, she contracted marriage with Moy Ya
Lim Yao alias Edilberto Aguinaldo Lim an alleged Filipino
citizen. Because of the contemplated action of respondent
to confiscate her bond and order her arrest and immediate
deportation, after the expiration of her authorized stay, she
brought this action for injunction with preliminary injunction.
At the hearing which took place one and a half years after
her arrival, it was admitted that petitioner Lau Yuen Yeung
could not write either English or Tagalog. Except for a few
words, she could not speak either English or Tagalog. She
could not name any Filipino neighbor, with a Filipino name
except one, Rosa. She did not know the names of her
brothers-in-law, or sisters-in-law.
Under the facts unfolded above, the Court is of the considered opinion,
and so holds, that the instant petition for injunction cannot be sustained
for the same reason as set forth in the Order of this Court, dated March
19, 1962, the pertinent portions of which read:
First, Section 15 of the Revised Naturalization Law provides:
Effect of the naturalization on wife and children. Any
woman who is now or may hereafter be married to a citizen
of the Philippines, and who might herself be lawfully
naturalized shall be deemed a citizen of the Philippines.
The above-quoted provision is clear and its import unequivocal and hence
it should be held to mean what it plainly and explicitly expresses in
unmistakable terms. The clause "who might herself be lawfully
naturalized" incontestably implies that an alien woman may be deemed a
citizen of the Philippines by virtue of her marriage to a Filipino citizen only
if she possesses all the qualifications and none of the disqualifications
specified in the law, because these are the explicit requisites provided by
law for an alien to be naturalized. (Lee Suan Ay, Alberto Tan and Lee
Chiao vs. Emilio Galang, etc., G. R. No. L-11855). However, from the
allegation of paragraph 3 of the complaint, to wit:
3. That plaintiff Lau Yuen Yeung, Chinese by birth, who
might herself be lawfully naturalized as a Filipino citizen
(not being disqualified to become such by naturalization),
is a Filipino citizen by virtue of her marriage on January 25,
1962 to plaintiff MOY YA LIM YAO alias EDILBERTO
AGUINALDO LIM, under the Naturalization Laws of the
Philippines.
it can be deduced beyond debate that petitioner Lau Yuen Yeung while
claiming not to be disqualified, does not and cannot allege that she
possesses all the qualifications to be naturalized, naturally because,
having been admitted as a temporary visitor only on March 13, 1961, it is
obvious at once that she lacks at least, the requisite length of residence in
the Philippines (Revised Naturalization Law, Sec. 2, Case No. 2, Sec. 3,
Case No. 3).
Were if the intention of the law that the alien woman, to be
deemed a citizen of the Philippines by virtue of marriage to
a Filipino citizen, need only be not disqualified under the
Naturalization Law, it would have been worded "and who
herself is not disqualified to become a citizen of the
Philippines."
Second, Lau Yuen Yeung, a temporary Chinese woman visitor, whose
authorized stay in the Philippines, after repeated extensions thereof, was
to expire last February 28, 1962, having married her co-plaintiff only on
January 25, 1962, or just a little over one month before the expiry date of
her stay, it is evident that said marriage was effected merely for
convenience to defeat or avoid her then impending compulsory departure,
not to say deportation. This cannot be permitted.
Third, as the Solicitor General has well stated:
5. That petitioner Lau Yuen Yeung, having been admitted
as a temporary alien visitor on the strength of a deliberate
and voluntary representation that she will enter and stay
only for a period of one month and thereby secured a visa,
cannot go back on her representation to stay permanently
without first departing from the Philippines as she had
promised. (Chung Tiao Bing, et al. vs. Commissioner of
Immigration, G. R. No. L-9966, September 29, 1956; Ong
Se Lun vs. Board of Commissioners, G. R. No. L-6017,
September 16, 1954; Sec. 9, last par., Phil. Immigration
Law).
The aforequoted argument of the Solicitor General is well buttressed not
only by the decided cases of the Supreme Court on the point mentioned
above, but also on the very provisions of Section 9, sub-paragraph (g) of
the Philippine Immigration Act of 1940 which reads:
An alien who is admitted as a non-immigrant cannot
remain in the Philippines permanently. To obtain
permanent admission, a non-immigrant alien must depart
voluntarily to some foreign country and procure from the
appropriate Philippine Consul the proper visa and
thereafter undergo examination by the Officers of the
Bureau of Immigration at a Philippine port of entry for
determination of his admissibility in accordance with the
requirements of this Act. (This paragraph is added by
Republic Act 503). (Sec. 9, subparagraph (g) of the
Philippine Immigration Act of 1940).
And fourth, respondent Commissioner of Immigration is charged with the
administration of all laws relating to immigration (Sec. 3, Com. Act No.
613) and in the performance of his duties in relation to alien immigrants,
the law gives the Commissioner of Immigration a wide discretion, a quasi-
judicial function in determining cases presented to him (Pedro Uy So vs.
Commissioner of Immigration CA-G. R. No. 23336-R, Dec. 15, 1960), so
that his decision thereon may not be disturbed unless he acted with
abuse of discretion or in excess of his jurisdiction.
It may also be not amiss to state that wife Lau Yuen Yeung, while she
barely and insufficiently talk in broken Tagalog and English, she admitted
that she cannot write either language.
The only matter of fact not clearly passed upon by His Honor which could have some
bearing in the resolution of this appeal is the allegation in the brief of petitioners-
appellants, not denied in the governments brief, that "in the hearing ..., it was shown thru
the testimony of the plaintiff Lau Yuen Yeung that she does not possess any of the
disqualifications for naturalization." Of course, as an additional somehow relevant factual
matter, it is also emphasized by said appellants that during the hearing in the lower
court, held almost ten months after the alleged marriage of petitioners, "Lau Yuen Yeung
was already carrying in her womb for seven months a child by her husband."
Appellants have assigned six errors allegedly committed by the court a quo, thus:
I
THE LOWER COURT ERRED IN HOLDING THAT THE CLAUSE "WHO
MIGHT HERSELF BE LAWFULLY NATURALIZED" (OF SECTION 15,
REVISED NATURALIZATION LAW) INCONTESTABLY IMPLIES THAT
AN ALIEN WOMAN MAY BE DEEMED A CITIZEN OF THE
PHILIPPINES BY VIRTUE OF HER MARRIAGE TO A FILIPINO
CITIZEN, ONLY IF SHE POSSESSES ALL THE QUALIFICATIONS AND
NONE OF THE DISQUALIFICATIONS SPECIFIED IN THE LAW.
II
THE LOWER COURT ERRED IN HOLDING THAT A WOMAN
FOREIGNER WHO DOES NOT POSSESS ANY OF THE
DISQUALIFICATIONS FOR CITIZENSHIP AND WHO MARRIED A
FILIPINO CITIZEN IS STILL CONSIDERED AN ALIEN EVEN AFTER
SUCH MARRIAGE AS TO FALL WITHIN THE REQUIREMENT OF
SECTION 9, SUB-PARAGRAPH (9) OF THE PHILIPPINE
IMMIGRATION ACT OF 1940.
III
THE COURT ERRED IN CONCLUDING THAT LAU YUEN YEUNG'S
MARRIAGE TO A FILIPINO CITIZEN WAS ONLY FOR CONVENIENCE,
MERELY BECAUSE THE SAME WAS CELEBRATED JUST OVER A
MONTH BEFORE THE EXPIRY DATE OF HER AUTHORIZED STAY.
IV
THE LOWER COURT ERRED IN FAILING TO FIND THAT THE
COMMISSIONER OF IMMIGRATION ACTED WITH ABUSE OF
DISCRETION OR IN EXCESS OF HIS JURISDICTION WHEN SAID
OFFICER THREATENED TO SEND OUT OF THE COUNTRY
PLAINTIFF LAU YUEN YEUNG WITH WARNING THAT HER FAILURE
TO DO SO WOULD MEAN CONFISCATION OF HER BOND, ARREST
AND IMMEDIATE DEPORTATION, IN SPITE OF THE FACT THAT LAU
YUEN YEUNG IS NOW A FILIPINO CITIZEN.
V
THE LOWER COURT ERRED IN DISMISSING PLAINTIFFS-
APPELLANTS' COMPLAINT AND IN REFUSING TO PERMANENTLY
ENJOIN THE COMMISSIONER FROM ORDERING PLAINTIFF LAU
YUEN YEUNG TO LEAVE THE PHILIPPINES AS A TEMPORARY
VISITOR WHICH SHE IS NOT.
VI
THE LOWER COURT ERRED IN REFUSING TO GRANT PLAINTIFFS-
APPELLANTS' MOTION FOR PRELIMINARY INJUNCTION EMBODIED
IN THEIR COMPLAINT, IN AN ORDER DATED MARCH 19, 1962.
(PAGES 36-41, RECORD ON APPEAL) .
We need not discuss these assigned errors separately. In effect, the above decision
upheld the two main grounds of objection of the Solicitor General to the petition in the
court below, viz:
That petitioner Lau Yuen Yeung, having been admitted as a temporary
alien visitor on the strength of a deliberate and voluntary representation
that she will enter and stay only for a period of one month and thereby
secured a visa, cannot go back on her representation to stay permanently
without first departing from the Philippines as she had promised. (Chung
Tiao Bing, et al. vs. Commissioner of Immigration, G.R. No. L-9966,
September 29, 1956; Ong Se Lun vs. Board of Commissioners, G.R. No.
L-6017, Sept. 16, 1954, Sec. 9, last par. Phil. Immigration Law);
That the mere marriage of a Filipino citizen to an alien does not
automatically confer on the latter Philippine citizenship. The alien wife
must possess all the qualifications required by law to become a Filipino
citizen by naturalization and none of the disqualifications. (Lee Suan Ay,
Alberto Tan and Lee Chiao vs. Galang, etc., G. R. No. L-11855, Dec. 25,
1959)
It is obvious from the nature of these objection that their proper resolution would
necessarily cover all the points raised in appellants' assignments of error, hence, We will
base our discussions, more or less, on said objections.
I
The first objection of the Solicitor General which covers the matters dealt with in
appellants' second and fourth assignments of error does not require any lengthy
discussion. As a matter of fact, it seem evident that the Solicitor General's pose that an
alien who has been admitted into the Philippines as a non-immigrant cannot remain here
permanently unless he voluntarily leaves the country first and goes to a foreign country
to secure thereat from the appropriate Philippine consul the proper visa and thereafter
undergo examination by officers of the Bureau of Immigration at a Philippine port of entry
for determination of his admissibility in accordance with the requirements of the
Philippine Immigration Act of 1940, as amended by Republic Act 503, is premised on the
assumption that petitioner Lau Yuen Yeung is not a Filipino citizen. We note the same
line of reasoning in the appealed decision of the court a quo. Accordingly, it is but safe to
assume that were the Solicitor General and His Honor of the view that said petitioner
had become ipso facto a Filipina by virtue of her marriage to her Filipino husband, they
would have held her as entitled to assume the status of a permanent resident without
having to depart as required of aliens by Section 9 (g) of the law.
In any event, to set this point at rest, We hereby hold that portion of Section 9 (g) of the
Immigration Act providing:
An alien who is admitted as a non-immigrant cannot remain in the
Philippines permanently. To obtain permanent admission, a non-
immigrant alien must depart voluntarily to some foreign country and
procure from the appropriate Philippine consul the proper visa and
thereafter undergo examination by the officers of the Bureau of
Immigration at a Philippine port of entry for determination of his
admissibility in accordance with the requirements of this Act.
does not apply to aliens who after coming into the Philippines as temporary visitors,
legitimately become Filipino citizens or acquire Filipino citizenship. Such change of
nationality naturally bestows upon their the right to stay in the Philippines permanently or
not, as they may choose, and if they elect to reside here, the immigration authorities may
neither deport them nor confiscate their bonds. True it is that this Court has vehemently
expressed disapproval of convenient ruses employed by alien to convert their status
from temporary visitors to permanent residents in circumvention of the procedure
prescribed by the legal provision already mentioned, such as in Chiong Tiao Bing vs.
Commissioner of Immigration, 99 Phil. 1020, wherein, thru Mr. Justice J.B.L. Reyes, the
Court, reiterating the ruling in Ong Se Lun vs. Board of Immigration Commissioners, 95
PMI. 785, said:
... It is clear that if an alien gains admission to the Islands on the strength
of a deliberate and voluntary representation that he will enter only for a
limited time, and thereby secures the benefit of a temporary visa, the law
will not allow him subsequently to go back on his representation and stay
permanently, without first departing from the Philippines as he had
promised. No officer can relieve him of the departure requirements of
section 9 of the Immigration Act, under the guise of "change" or
"correction", for the law makes no distinctions, and no officer is above the
law. Any other ruling would, as stated in our previous decision, encourage
aliens to enter the Islands on false pretences; every alien so permitted to
enter for a limited time, might then claim a right to permanent admission,
however flimsy such claim should be, and thereby compel our
government to spend time, money and effort to examining and verifying
whether or not every such alien really has a right to take up permanent
residence here. In the meanwhile, the alien would be able to prolong his
stay and evade his return to the port whence he came, contrary to what
he promised to do when he entered. The damages inherent in such ruling
are self-evident.
On the other hand, however, We cannot see any reason why an alien who has been
here as a temporary visitor but who has in the meanwhile become a Filipino should be
required to still leave the Philippines for a foreign country, only to apply thereat for a re-
entry here and undergo the process of showing that he is entitled to come back, when
after all, such right has become incontestible as a necessary concomitant of his
assumption of our nationality by whatever legal means this has been conferred upon
him. Consider for example, precisely the case of the minor children of an alien who is
naturalized. It is indubitable that they become ipso facto citizens of the Philippines.
Could it be the law that before they can be allowed permanent residence, they still have
to be taken abroad so that they may be processed to determine whether or not they
have a right to have permanent residence here? The difficulties and hardships which
such a requirement entails and its seeming unreasonableness argue against such a
rather absurd construction. Indeed, as early as 1957, in Ly Giok Ha vs. Galang, 101 Phil.
459, Mr. Justice Concepcion, our present Chief Justice, already ruled thus:
... (P)etitioners allege that, upon her marriage to a Filipino, Ly Giok Ha
became also a citizen of the Philippines. Indeed, if this conclusion were
correct, it would follow that, in consequence of her marriage, she had
been naturalized as such citizen, and, hence the decision appealed from
would have to be affirmed, for section 40(c) of Commonwealth Act 613
provides that "in the event of the naturalization as a Philippine citizen ... of
the alien on whose behalf the bond deposit is given, the bond shall be
cancelled or the sum deposited shall be returned to the depositor or his
legal representative." (At. pp. 462-463)
In other words, the applicable statute itself more than implies that the naturalization of an
alien visitor as a Philippine citizen logically produces the effect of conferring upon
him ipso facto all the rights of citizenship including that of being entitled to permanently
stay in the Philippines outside the orbit of authority of the Commissioner of Immigration
vis-a-vis aliens, if only because by its very nature and express provisions, the
Immigration Law is a law only for aliens and is inapplicable to citizens of the Philippines.
In the sense thus discussed therefore, appellants' second and fourth assignments of
error are well taken.
II
Precisely, the second objection, of the Solicitor General sustained by the trial judge is
that appellant Lau Yuen Yeung's marriage to appellant Moya Lim Yao alias Edilberto
Aguinaldo whose Filipino citizenship is not denied did not have the effect of making her a
Filipino, since it has not been shown that she "might herself be lawfully naturalized," it
appearing clearly in the record that she does not possess all the qualifications required
of applicants for naturalization by the Revised Naturalization Law, Commonwealth Act
473, even if she has proven that she does not suffer from any of the disqualifications
thereunder. In other words, the Solicitor General implicitly concedes that had it been
established in the proceedings below that appellant Lau Yuen Yeung possesses all the
qualifications required by the law of applicants for naturalization, she would have been
recognized by the respondent as a Filipino citizen in the instant case, without requiring
her to submit to the usual proceedings for naturalization.
To be sure, this position of the Solicitor General is in accord with what used to be the
view of this Court since Lee Suan Ay, et al. v. Emilio Galang, etc., et al., G.R. No. L-
11855, promulgated December 23, 1959, 106 Phil., 706,713,
1
for it was only in Zita Ngo
Burca vs. Republic, G.R. NO. L-24252 which was promulgated on January 30, 1967 (19
SCRA 186), that over the pen of Mr. Justice Conrado Sanchez, this Court held that for
an alien woman who marries a Filipino to be deemed a Filipina, she has to apply for
naturalization in accordance with the procedure prescribed by the Revised Naturalization
Law and prove in said naturalization proceeding not only that she has all the
qualifications and none of the disqualifications provided in the law but also that she has
complied with all the formalities required thereby like any other applicant for
naturalization,
2
albeit said decision is not yet part of our jurisprudence inasmuch as the
motion for its reconsideration is still pending resolution. Appellants are in effect urging
Us, however, in their first and second assignments of error, not only to
reconsider Burca but to even reexamine Lee Suan Ay which, as a matter of fact, is the
prevailing rule, having been reiterated in all subsequent decisions up to Go Im Ty.
3

Actually, the first case in which Section 15 of the Naturalization Law, Commonwealth Act
473, underwent judicial construction was in the first Ly Giok Ha case,
4
one almost
identical to the one at bar. Ly Giok Ha, a woman of Chinese nationality, was a temporary
visitor here whose authority to stay was to expire on March 14, 1956. She filed a bond to
guaranty her timely departure. On March 8, 1956, eight days before the expiration of her
authority to stay, she married a Filipino by the name of Restituto Lacasta. On March 9,
1956, her husband notified the Commissioner of Immigration of said marriage and,
contending that his wife had become a Filipina by reason of said marriage, demanded
for the cancellation of her bond, but instead of acceding to such request, the
Commissioner required her to leave, and upon her failure to do so, on March 16, 1956,
the Commissioner confiscated her bond; a suit was filed for the recovery of the bond; the
lower court sustained her contention that she had no obligation to leave, because she
had become Filipina by marriage, hence her bond should be returned. The
Commissioner appealed to this Court. In the said appeal, Mr. Justice Roberto
Concepcion, our present Chief Justice, spoke for the Court, thus:
The next and most important question for determination is whether her
marriage to a Filipino justified or, at least, excused the aforesaid failure of
Ly Giok Ha to depart from the Philippines on or before March 14, 1956. In
maintaining the affirmative view, petitioners alleged that, upon her
marriage to a Filipino, Ly Giok Ha became, also, a citizen of the
Philippines. Indeed, if this conclusion were correct, it would follow that, in
consequence of her marriage, she had been naturalized as such citizen,
and, hence, the decision appealed from would have to be affirmed, for
section 40(c) of Commonwealth Act No. 613 provides that "in the event of
the naturalization as a Philippine citizen ... of the alien on whose behalf
the bond deposit is given, the bond shall be cancelled or the sum
deposited shall be returned to the depositor or his legal representative."
Thus the issue boils down to whether an alien female who marries a male
citizen of the Philippines follows ipso facto his political status.
The pertinent part of section 15 of Commonwealth Act No. 473, upon
which petitioners rely, reads:
Any woman who is now or may hereafter be married to a
citizen of the Philippines, and who might herself be lawfully
naturalized shall be deemed a citizen of the Philippines.
Pursuant thereto, marriage to a male Filipino does not vest Philippine
citizenship to his foreign wife, unless she "herself may be lawfully
naturalized." As correctly held in an opinion of the Secretary of
Justice (Op. No. 52, series of 1950),* this limitation of section 15
excludes, from the benefits of naturalization by marriage, those
disqualified from being naturalized as citizens of the Philippines under
section 4 of said Commonwealth Act No. 473, namely:
(a) Persons opposed to organized government or affiliated
with any association or group of persons who uphold and
teach doctrines opposing all organized governments;
(b) Persons defending or teaching the necessity or
propriety of violence, personal assault, or assassination for
the success and predominance of their ideas;
(c) Polygamists or believers in the practice of polygamy;
(d) Persons convicted of crimes involving moral turpitude;
(e) Persons suffering from mental alienation or incurable
contagious diseases;
(f) Persons who, during the period of their residence in the
Philippines, have not mingled socially with the Filipinos, or
who have not evinced a sincere desire to learn and
embrace the customs, traditions, and ideals of the
Filipinos;
(g) Citizens or subjects of nations with whom the ...
Philippines are at war, during the period of such war;
(h) Citizens or subjects of a foreign country other than the
United States, whose laws does not grant Filipinos the
right to become naturalized citizens or subjects thereof.
In the case at bar, there is neither proof nor allegation in the pleadings
that Ly Giok Ha does not fall under any of the classes disqualified by law.
Moreover, as the parties who claim that, despite her failure to depart from
the Philippines within the period specified in the bond in question, there
has been no breach thereof, petitioners have the burden of proving her
alleged change of political status, from alien to citizen. Strictly speaking,
petitioners have not made out, therefore a case against the respondents-
appellants.
Considering, however, that neither in the administrative proceedings, nor
in the lower court, had the parties seemingly felt that there was an issue
on whether Ly Giok Ha may "be lawfully naturalized," and this being a
case of first impression in our courts, we are of the opinion that, in the
interest of equity and justice, the parties herein should be given an
opportunity to introduce evidence, if they have any, on said issue. (At pp.
462-464.) .
As may be seen, although not specifically in so many words, no doubt was left in the
above decision as regards the following propositions: .
1. That under Section 15 of Commonwealth Act 473, the Revised Naturalization Law, the
marriage of an alien woman to a Filipino makes her a Filipina, if she "herself might be
lawfully naturalized";
2. That this Court declared as correct the opinion of the Secretary of Justice that the
limitation of Section 15 of the Naturalization Law excludes from the benefits of
naturalization by marriage, only those disqualified from being naturalized under Section
4 of the law qouted in the decision;
3. That evidence to the effect that she is not disqualified may be presented in the action
to recover her bond confiscated by the Commissioner of Immigration;
4. That upon proof of such fact, she may be recognized as Filipina; and
5. That in referring to the disqualification enumerated in the law, the Court somehow left
the impression that no inquiry need be made as to qualifications,
5
specially considering
that the decision cited and footnotes several opinions of the Secretary of Justice, the
immediate superior of the Commissioner of Immigration, the most important of which are
the following:
Paragraph (a), section 13 of Act No. 2927, as amended, (now section 15,
Commonwealth Act No. 473), provided that "any woman who is now or
may hereafter be married to a citizen of the Philippines, and who might
herself be lawfully naturalized shall be deemed a citizen of the
Philippines." A similar provision in the naturalization law of the United
States has been construed as not requiring the woman to have the
qualifications of residence, good character, etc., as in the case of
naturalization by judicial proceedings, but merely that she is of the race of
persons who may be naturalized. (Kelly v. Owen [Dist. Col. 1868] 7 Wall
496, 5F, 11, 12; ex parte Tryason [D. C. Wash. 1914] 215 F. 449, 27 Op.
Atty. Gen. 507). (Op. No. 168, s. 1940 of Justice Sec. Jose Abad Santos.)
In a previous opinion rendered for your Office, I stated that the clause
"who might herself be lawfully naturalized", should be construed as not
requiring the woman to have the qualifications of residence, good
character, etc., as in cases of naturalization by judicial proceedings, but
merely that she is of the race of persons who may be naturalized. (Op.
No. 79, s. 1940)
Inasmuch as the race qualification has been removed by the Revised
Naturalization Law, it results that any woman who married a citizen of the
Philippines prior to or after June 17, 1939, and the marriage not having
been dissolved, and on the assumption that she possesses none of the
disqualifications mentioned in Section 4 of Commonwealth Act No. 473,
follows the citizenship of her husband. (Op. No. 176, s. 1940 of Justice
Sec. Jose Abad Santos.)
From the foregoing narration of facts, it would seem that the only material
point of inquiry is as to the citizenship of Arce Machura. If he shall be
found to be a citizen of the Philippines, his wife, Mrs. Lily James Machura,
shall likewise be deemed a citizen of the Philippines pursuant to the
provision of Section 15, Commonwealth Act No. 473, which reads in part
as follows:
Any woman who is now or may hereafter be married to a
citizen of the Philippines, and who might herself be lawfully
naturalized shall be deemed a citizen of the Philippines.
The phrase "who might herself be lawfully naturalized", as contained in
the above provision, means that the woman who is married to a Filipino
citizen must not belong to any of the disqualified classes enumerated in
Section 4 of the Naturalization Law (Ops., Sec. of Jus., No. 28, s. 1950;
No. 43, s. 1948, No. 95, s. 1941; Nos. 79 and 168, s. 1940). Under the
facts stated in the within papers, Mrs. Machura does not appear to be
among the disqualified classes mentioned in the law.
It having been shown that Arce Machura or Arsenio Guevara was born as
an illegitimate of a Filipino mother, he should be considered as a citizen
of the Philippines in consonance with the well-settled rule that an
illegitimate child follows the citizenship of his only legally recognized
parent, the mother (Op., Sec. of Jus., Nos. 58, 98 & 281, s. 1948; No. 96,
s. 1949). Her husband being a Filipino, Mrs. Machura must necessarily be
deemed as a citizen of the Philippines by marriage (Sec. 15, Com. Act
No. 473.) (Op. No. 52, s. 1950 of Justice Sec. Ricardo Nepomuceno.)
The logic and authority of these opinions, compelling as they are, must have so
appealed to this Court that five days later, on May 22, 1957, in Ricardo Cua v. The
Board of Commissioners, 101 Phil. 521, Mr. Justice J.B.L. Reyes, reiterated the same
ruling on the basis of the following facts:
Tjioe Wu Suan, an Indonesian, arrived in Manila on November 1, 1952, but it turned out
that her passport was forged. On December 10, 1953, a warrant was issued for her
arrest for purpose of deportation. Later, on December 20, 1953, she married Ricardo
Cua, a Filipino, and because of said marriage, the Board of Special Inquiry considered
her a Filipina. Upon a review of the case, however, the Board of Immigration
Commissioners insisted on continuing with the deportation proceedings and so, the
husband filed prohibition and mandamus proceedings. The lower court denied the
petition. Although this Court affirmed said decision, it held, on the other hand, that:
Granting the validity of marriage, this Court has ruled in the recent case
of Ly Giok Ha v. Galang, supra, p. 459, that the bare fact of a valid
marriage to a citizen does not suffice to confer his citizenship upon the
wife. Section 15 of the Naturalization Law requires that the alien woman
who marries a Filipino must show, in addition, that she "might herself be
lawfully naturalized" as a Filipino citizen. As construed in the decision
cited, this last condition requires proof that the woman who married a
Filipino is herself not disqualified under section 4 of the Naturalization
Law.
No such evidence appearing on record, the claim of assumption of
Filipino citizenship by Tjioe Wu Suan, upon her marriage to petitioner, is
untenable. The lower court, therefore, committed no error in refusing to
interfere with the deportation proceedings, where she can anyway
establish the requisites indispensable for her acquisition of Filipino
citizenship, as well as the alleged validity of her Indonesian passport.
(Ricardo Cua v. The Board of Immigration Commissioners, G. R. No. L-
9997, May 22, 1957, 101 Phil. 521, 523.) [Emphasis supplied] .
For emphasis, it is reiterated that in the above two cases, this Court expressly gave the
parties concerned opportunity to prove the fact that they were not suffering from any of
the disqualifications of the law without the need of undergoing any judicial naturalization
proceeding. It may be stated, therefore, that according to the above decisions, the law in
this country, on the matter of the effect of marriage of an alien woman to a Filipino is that
she thereby becomes a Filipina, if it can be proven that at the time of such marriage, she
does not possess any of the disqualifications enumerated in Section 4 of the
Naturalization Law, without the need of submitting to any naturalization proceedings
under said law.
It is to be admitted that both of the above decisions made no reference to qualifications,
that is, as to whether or not they need also to be proved, but, in any event, it is a fact
that the Secretary of Justice understood them to mean that such qualifications need not
be possessed nor proven. Then Secretary of Justice Jesus Barrera, who later became a
distinguished member of this Court,
6
so ruled in opinions rendered by him subsequent to
Ly Giok Ha, the most illustrative of which held: .
At the outset it is important to note that an alien woman married to a
Filipino citizen needs only to show that she "might herself be lawfully
naturalized" in order to acquire Philippine citizenship. Compliance with
other conditions of the statute, such as those relating to the qualifications
of an applicant for naturalization through judicial proceedings, is not
necessary. (See: Leonard v. Grant, 5 Fed. 11; 27 Ops. Atty. Gen [U.S.]
507; Ops. Sec. of Justice, No. 776, s. 1940, and No. 111, s. 1953.
This view finds support in the case of Ly Giok Ha et al. v. Galang et al.,
G.R. No. L-10760, promulgated May 17, 1957, where the Supreme Court,
construing the abovequoted section of the Naturalization Law, held that
"marriage to a male Filipino does not vest Philippine citizenship to his
foreign wife," unless she "herself may be lawfully naturalized," and that
"this limitation of Section 15 excludes, from the benefits of naturalization
by marriage, those disqualified from being naturalized as citizens of the
Philippines under Section 4 of said Commonwealth Act No. 473." In other
words, disqualification for any of the causes enumerated in Section 4 of
the Act is the decisive factor that defeats the right of the foreign wife of a
Philippine citizen to acquire Philippine citizenship.
xxx xxx xxx
Does petitioner, Lim King Bian, belong to any of these groups The
Commissioner of Immigration does not say so but merely predicates his
negative action on the ground that a warrant of deportation for
"overstaying" is pending against the petitioner.
We do not believe the position is well taken. Since the grounds for
disqualification for naturalization are expressly enumerated in the law, a
warrant of deportation not based on a finding of unfitness to become
naturalized for any of those specified causes may not be invoked to
negate acquisition of Philippine citizenship by a foreign wife of a
Philippine citizen under Section 15 of the Naturalization Law. (Inclusio
unius est exclusio alterius) (Op. No. 12, s. 1958 of Justice Undersec.
Jesus G. Barrera.)
Regarding the steps that should be taken by an alien woman married to a
Filipino citizen in order to acquire Philippine citizenship, the procedure
followed in the Bureau of Immigration is as follows: The alien woman
must file a petition for the cancellation of her alien certificate of
registration alleging, among other things, that she is married to a Filipino
citizen and that she is not disqualified from acquiring her husband's
citizenship pursuant to section 4 of Commonwealth Act No. 473, as
amended. Upon the filing of said petition, which should be accompanied
or supported by the joint affidavit of the petitioner and her Filipino
husband to the effect that the petitioner does not belong to any of the
groups disqualified by the cited section from becoming naturalized Filipino
citizen (please see attached CEB Form 1), the Bureau of Immigration
conducts an investigation and thereafter promulgates its order or decision
granting or denying the petition. (Op. No. 38, s. 19058 of Justice Sec.
Jesus G. Barrera.)
This view finds support in the case of Ly Giok Ha et al., v. Galang et al.
(G.R. No. L-10760, promulgated May 17, 1957), where the Supreme
Court, construing the above-quoted section in the Revised Naturalization
Law, held that "marriage to a male Filipino does not vest Philippine
citizenship to his foreign wife, unless she herself may be lawfully
naturalized," and that "this limitation of Section 15 excludes, from the
benefits of naturalization by marriage, those disqualified from being
naturalized as citizens of the Philippines under Section 4 of said
Commonwealth Act No. 473." In other words, disqualification for any of
the causes enumerated in section 4 of the Act is the decisive factor that
defeats the right of an alien woman married to a Filipino citizen to acquire
Philippine citizenship. (Op. 57, s. 1958 of Justice Sec. Jesus G. Barrera.)
The contention is untenable. The doctrine enunciated in the Ly Giok Ha
case is not a new one. In that case, the Supreme Court held that under
paragraph I of Section 15 Of Commonwealth Act No. 473, 'marriage to a
male Filipino does not vest Philippine citizenship to his foreign wife unless
she "herself may be lawfully naturalized"', and, quoting several earlier
opinions of the Secretary of Justice, namely: No. 52, s. 1950; No. 168, s.
1940; No. 95, s. 1941; No. 63, s. 1948; No. 28. s. 1950, "this limitation of
section 15 excludes from the benefits of naturalization by marriage, those
disqualified from being naturalized as citizens of the Philippines under
section 4 of said Commonwealth Act No. 473." (Op. 134, s. 1962 of
Justice Undersec. Magno S. Gatmaitan.)
It was not until more than two years later that, in one respect, the above construction of
the law was importantly modified by this Court in Lee Suan Ay, supra, in which the facts
were as follows:
Upon expiration of the appellant Lee Suan Ay's authorized period of
temporary stay in the Philippines (25 March 1955), on 26 March 1955 the
Commissioner of Immigration asked the bondsman to present her to the
Bureau of Immigration within 24 hours from receipt of notice, otherwise
the bond will be confiscated(Annex 1). For failure of the bondsman to
comply with the foregoing order, on 1 April 1955. the Commissioner of
Immigration ordered the cash bond confiscated (Annex E). Therefore,
there was an order issued by the Commissioner of Immigration
confiscating or forfeiting the cash bond. Unlike in forfeiture of bail bonds
in criminal proceedings, where the Court must enter an order forfeiting the
bail bond and the bondsman must be given an opportunity to present his
principal or give a satisfactory reason for his inability to do so, before final
judgment may be entered against the bondsman,(section 15, Rule 110;
U.S. v. Bonoan, 22 Phil. 1.) in forfeiture of bonds posted for the temporary
stay of an alien in the Philippines, no court proceeding is necessary.
Once a breach of the terms and conditions of the undertaking in the bond
is committed, the Commissioner of Immigration may, under the terms and
conditions thereof, declare it forfeited in favor of the Government. (In the
meanwhile, on April 1, 1955, Lee Suan Ay and Alberto Tan, a Filipino,
were joined in marriage by the Justice of the Peace of Las Pias, Rizal.)
Mr. Justice Sabino Padilla speaking for a unanimous court which included Justices
Concepcion and Reyes who had penned Ly Giok Ha, and Ricardo Cua, ruled thus:
The fact that Lee Suan Ay (a Chinese) was married to a Filipino citizen
does not relieve the bondsman from his liability on the bond. The
marriage took place on 1 April 1955, and the violation of the terms and
conditions of the undertaking in the bond failure to depart from the
Philippines upon expiration of her authorized period of temporary stay in
the Philippines (25 March 1955) and failure to report to the Commissioner
of Immigration within 24 hours from receipt of notice were committed
before the marriage. Moreover, the marriage of a Filipino citizen to an
alien does not automatically confer Philippine citizenship upon the latter.
She must possess the qualifications required by law to become a Filipino
citizen by naturalization.* There is no showing that the appellant Lee
Suan Ay possesses all the qualifications and none of the disqualifications
provided for by law to become a Filipino citizen by naturalization.
Pertinently to be noted at once in this ruling, which, to be sure, is the one relied upon in
the appealed decision now before Us, is the fact that the footnote of the statement
therein that the alien wife "must possess the qualifications required by law to become a
Filipino citizen by naturalization" makes reference to Section 15, Commonwealth Act 473
and precisely, also to Ly Giok Ha v. Galang, supra. As will be recalled, on the other
hand, in the opinions of the Secretary of Justice explicitly adopted by the Court in Ly
Giok Ha, among them, Opinion No. 176, Series of 1940, above-quoted, it was clearly
held that "(I)n a previous opinion rendered for your Office, I stated that the clause "who
might herself be lawfully naturalized", should be construed as not requiring the woman to
have the qualifications of residence, good character, etc., as in cases of naturalization by
judicial proceedingsbut merely that she is of the race by persons who may be
naturalized. (Op. No. 79, s. 1940)
Since Justice Padilla gave no reason at all for the obviously significant modification of
the construction of the law, it could be said that there was need for clarification of the
seemingly new posture of the Court. The occasion for such clarification should have
been in Kua Suy, etc., et al. vs. The Commissioner of Immigration, G.R. No. L-13790,
October 31, 1963, penned by Mr. Justice J.B.L. Reyes, who had rendered the opinion in
Ricardo Cua,supra, which followed that in Ly Giok Ha, supra, but apparently seeing no
immediate relevancy in the case on hand then of the particular point in issue now, since
it was not squarely raised therein similarly as in Lee Suan Ay, hence, anything said on
the said matter would at best be no more than obiter dictum, Justice Reyes limited
himself to holding that "Under Section 15 of the Naturalization Act, the wife is deemed a
citizen of the Philippines only if she "might herself be lawfully naturalized," so that the
fact of marriage to a citizen, by itself alone, does not suffice to confer citizenship, as this
Court has previously ruled in Ly Giok Ha v. Galang, 54 O.G. 356, and in Cua v. Board of
Immigration Commissioners, 53 O.G. 8567; and there is here no evidence of record as
to the qualifications or absence of disqualifications of appellee Kua Suy", without
explaining the apparent departure already pointed out from Ly Giok Ha and Ricardo
Cua. Even Justice Makalintal, who wrote a separate concurring and dissenting opinion
merely lumped together Ly Giok Ha, Ricardo Cua and Lee Suan Ay and opined that both
qualifications and non-disqualifications have to be shown without elucidating on what
seemed to be departure from the said first two decisions.
It was only on November 30, 1963 that to Mr. Justice Roberto Regala fell the task of
rationalizing the Court's position. In Lo San Tuang v. Galang, G.R. No. L-18775,
November 30, 1963, 9 SCRA 638, the facts were simply these: Lo San Tuang, a
Chinese woman, arrived in the Philippines on July 1, 1960 as a temporary visitor with
authority to stay up to June 30, 1961. She married a Filipino on January 7, 1961, almost
six months before the expiry date of her permit, and when she was requested to leave
after her authority to stay had expired, she refused to do so, claiming she had become a
Filipina by marriage, and to bolster her position, she submitted an affidavit stating
explicitly that she does not possess any of the disqualifications enumerated in the
Naturalization Law, Commonwealth Act 473. When the case reached the court, the trial
judge held for the government that in addition to not having any of the disqualifications
referred to, there was need that Lo San Tuang should have also possessed all the
qualifications of residence, moral character, knowledge of a native principal dialect, etc.,
provided by the law. Recognizing that the issue squarely to be passed upon was
whether or not the possession of all the qualifications were indeed needed to be shown
apart from non-disqualification, Justice Regala held affirmatively for the Court, reasoning
out thus: .
It is to be noted that the petitioner has anchored her claim for citizenship
on the basis of the decision laid down in the case of Leonard v. Grant, 5
Swy. 603, 5 F 11, where the Circuit Court of Oregon held that it was only
necessary that the woman "should be a person of the class or race
permitted to be naturalized by existing laws, and that in respect of the
qualifications arising out of her conduct or opinions, being the wife of a
citizen, she is to be regarded as qualified for citizenship, and therefore
considered a citizen." (In explanation of its conclusion, the Court said: "If,
whenever during the life of the woman or afterwards, the question of her
citizenship arises in a legal proceeding, the party asserting her citizenship
by reason of her marriage with a citizen must not only prove such
marriage, but also that the woman then possessed all the further
qualifications necessary to her becoming naturalized under existing laws,
the statute will be practically nugatory, if not a delusion and a share. The
proof of the facts may have existed at the time of the marriage, but years
after, when a controversy arises upon the subject, it may be lost or
difficult to find.")
In other words, all that she was required to prove was that she was a free
white woman or a woman of African descent or nativity, in order to be
deemed an American citizen, because, with respect to the rest of the
qualifications on residence, moral character, etc., she was presumed to
be qualified.
Like the law in the United States, our former Naturalization Law (Act No.
2927, as amended by Act No. 3448) specified the classes of persons who
alone might become citizens of the Philippines, even as it provided who
were disqualified. Thus, the pertinent provisions of that law provided:
Section 1. Who may become Philippine citizens
Philippine citizenship may be acquired by (a) natives of the
Philippines who are not citizens thereof under the Jones
Law; (b) natives of the Insular possessions of the United
States; (c) citizens of the United States, or foreigners who
under the laws of the United States may become citizens
of said country if residing therein.
Section 2. Who are disqualified. The following cannot be
naturalized as Philippine citizens: (a) Persons opposed to
organized government or affiliated with any association or
group of persons who uphold and teach doctrines
opposing all organized government; (b) persons defending
or teaching the necessity or propriety of violence, personal
assault or assassination for the success and
predominance of their ideas; (c) polygamists or believers in
the practice of polygamy; (d) persons convicted of crimes
involving moral turpitude; (e) persons suffering from mental
alienation or incurable contagious diseases; (f) citizens or
subjects of nations with whom the United States and the
Philippines are at war, during the period of such war.
Section 3. Qualifications. The persons comprised in
subsection (a) of section one of this Act, in order to be able
to acquire Philippine citizenship, must be not less than
twenty-one years of age on the day of the hearing of their
petition.
The persons comprised in subsections (b) and (c) of said
section one shall, in addition to being not less than twenty-
one years of age on the day of the hearing of the petition,
have all and each of the following qualifications:
First. Residence in the Philippine Islands for a continuous
period of not less than five years, except as provided in the
next following section;
Second. To have conducted themselves in a proper and
irreproachable manner during the entire period of their
residence in the Philippine Islands, in their relation with the
constituted government as well as with the community in
which they are living;
Third. To hold in the Philippine Islands real estate worth
not less than one thousand pesos, Philippine currency, or
have some known trade or profession; and
Fourth. To speak and write English, Spanish, or some
native tongue.
In case the petitioner is a foreign subject, he shall,
besides, declare in writing and under oath his intention of
renouncing absolutely and perpetually all faith and
allegiance to the foreign authority, state or sovereignty of
which he was a native, citizen or subject.
Applying the interpretation given by Leonard v. Grant supra, to our law as
it then stood, alien women married to citizens of the Philippines must, in
order to be deemed citizens of the Philippines, be either (1) natives of the
Philippines who were not citizens thereof under the Jones Law, or (2)
natives of other Insular possessions of the United States, or (3) citizens of
the United States or foreigners who under the laws of the United States
might become citizens of that country if residing therein. With respect to
the qualifications set forth in Section 3 of the former law, they were
deemed to have the same for all intents and purposes.
But, with the approval of the Revised Naturalization Law (Commonwealth
Act No. 473) on June 17, 1939, Congress has since discarded class or
racial consideration from the qualifications of applicants for naturalization
(according to its proponent, the purpose in eliminating this consideration
was, first, to remove the features of the existing naturalization act which
discriminated in favor of the Caucasians and against Asiatics who are our
neighbors, and are related to us by racial affinity and, second, to foster
amity with all nations [Sinco, Phil. Political Law 502 11 ed.]), even as it
retained in Section 15 the phrase in question. The result is that the
phrase "who might herself be lawfully naturalized" must be understood in
the context in which it is now found, in a setting so different from that in
which it was found by the Court in Leonard v. Grant.
The only logical deduction from the elimination of class or racial
consideration is that, as the Solicitor General points out, the phrase "who
might herself be lawfully naturalized" must now be understood as
referring to those who under Section 2 of the law are qualified to become
citizens of the Philippines.
There is simply no support for the view that the phrase "who might herself
be lawfully naturalized" must now be understood as requiring merely that
the alien woman must not belong to the class of disqualified persons
under Section 4 of the Revised Naturalization Law. Such a proposition
misreads the ruling laid down in Leonard v. Grant. A person who is not
disqualified is not necessarily qualified to become a citizen of the
Philippines, because the law treats "qualifications" and "disqualifications"
in separate sections. And then it must not be lost sight of that even under
the interpretation given to the former law, it was to be understood that the
alien woman was not disqualified under Section 2 of that law. Leonard v.
Grant did not rule that it was enough if the alien woman does not belong
to the class of disqualified persons in order that she may be deemed to
follow the citizenship of her husband: What that case held was that the
phrase "who might herself be lawfully naturalized, merely means that she
belongs to the class or race of persons qualified to become citizens by
naturalization the assumption being always that she is not otherwise
disqualified.
We therefore hold that under the first paragraph of Section 15 of the
Naturalization Law, an alien woman, who is married to a citizen of the
Philippines, acquires the citizenship of her husband only if she has all the
qualifications and none of the disqualifications provided by law. Since
there is no proof in this case that petitioner has all the qualifications and is
not in any way disqualified, her marriage to a Filipino citizen does not
automatically make her a Filipino citizen. Her affidavit to the effect that
she is not in any way disqualified to become a citizen of this country was
correctly disregarded by the trial court, the same being self-serving.
Naturally, almost a month later in Sun Peck Yong v. Commissioner of Immigration, G.R.
No. L-20784, December 27, 1963, 9 SCRA 875, wherein the Secretary of Foreign Affairs
reversed a previous resolution of the preceding administration to allow Sun Peck Yong
and her minor son to await the taking of the oath of Filipino citizenship of her husband
two years after the decision granting him nationalization and required her to leave and
this order was contested in court, Justice Barrera held:
In the case of Lo San Tuang v. Commissioner of Immigration (G.R. No. L-
18775, promulgated November 30, 1963; Kua Suy vs. Commissioner of
Immigration, L-13790, promulgated October 31, 1963), we held that the
fact that the husband became a naturalized citizen does not automatically
make the wife a citizen of the Philippines. It must also be shown that she
herself possesses all the qualifications, and none of the disqualifications,
to become a citizen. In this case, there is no allegation, much less
showing, that petitioner-wife is qualified to become a Filipino citizen
herself. Furthermore, the fact that a decision was favorably made on the
naturalization petition of her husband is no assurance that he (the
husband) would become a citizen, as to make a basis for the extension of
her temporary stay.
On the same day, in Tong Siok Sy v. Vivo, G.R. No. L-21136, December 27, 1963, 9
SCRA 876, Justice Barrera reiterated the same ruling and citing particularly Lo San
Tuang and Kua Suy, held that the marriage of Tong Siok Sy to a Filipino on November
12, 1960 at Taichung, Taiwan and her taking oath of Filipino citizenship before the
Philippine Vice-Consul at Taipeh, Taiwan on January 6, 1961 did not make her a Filipino
citizen, since she came here only in 1961 and obviously, she had not had the necessary
ten-year residence in the Philippines required by the law.
Such then was the status of the jurisprudential law on the matter under discussion when
Justice Makalintal sought a reexamination thereof in Choy King Tee v. Galang, G.R. No.
L-18351, March 26, 1965, 13 SCRA 402. Choy King Tee's husband was granted
Philippine citizenship on January 13, 1959 and took the oath on January 31 of the same
year. Choy King Tee first came to the Philippines in 1955 and kept commuting between
Manila and Hongkong since then, her last visa before the case being due to expire on
February 14, 1961. On January 27, 1961, her husband asked the Commissioner of
Immigration to cancel her alien certificate of registration, as well as their child's, for the
reason that they were Filipinos, and when the request was denied as to the wife, a
mandamus was sought, which the trial court granted. Discussing anew the issue of the
need for qualifications, Justice Makalintal not only reiterated the arguments of Justice
Regala in Lo San Tuang but added further that the ruling is believed to be in line with the
national policy of selective admission to Philippine citizenship.
7

No wonder, upon this authority, in Austria v. Conchu, G.R. No. L-20716, June 22, 1965,
14 SCRA 336, Justice J.P. Bengzon readily reversed the decision of the lower court
granting the writs of mandamus and prohibition against the Commissioner of
Immigration, considering that Austria's wife, while admitting she did not possess all the
qualifications for naturalization, had submitted only an affidavit that she had none of the
disqualifications therefor. So also did Justice Dizon similarly hold eight days later in Brito
v. Commissioner, G.R. No. L-16829, June 30, 1965, 14 SCRA 539.
Then came the second Ly Giok Ha case
8
wherein Justice J. B. L. Reyes took occasion
to expand on the reasoning of Choy King Tee by illustrating with examples "the danger
of relying exclusively on the absence of disqualifications, without taking into account the
other affirmative requirements of the law."
9

Lastly, in Go Im Ty v. Republic, G.R. No. L-17919, decided on July 30, 1966,
10
Justice
Zaldivar held for the Court that an alien woman who is widowed during the dependency
of the naturalization proceedings of her husband, in order that she may be allowed to
take the oath as Filipino, must, aside from proving compliance with the requirements of
Republic Act 530, show that she possesses all the qualifications and does not suffer
from any of the disqualifications under the Naturalization Law, citing in the process the
decision to such effect discussed above,
11
even as he impliedly reversed pro tanto the
ruling in Tan Lin v. Republic, G.R. No. L-13786, May 31, 1961, 2 SCRA 383.
Accordingly, in Burca, Justice Sanchez premised his opinion on the assumption that the
point now under discussion is settled law.
In the case now at bar, the Court is again called upon to rule on the same issue. Under
Section 15 of the Naturalization Law, Commonwealth Act 473, providing that:
SEC. 15. Effect of the naturalization on wife and children. Any woman,
who is now or may hereafter be married to a citizen of the Philippines,
and who might herself be lawfully naturalized shall be deemed a citizen of
the Philippines.
Minor children of persons naturalized under this law who have been born
in the Philippines shall be considered citizens thereof.
A foreign-born minor child, if dwelling in the Philippines at the time of the
naturalization of the parent, shall automatically become a Philippine
citizen, and a foreign-born child, who is not in the Philippines at the time
the parent is naturalized, shall be deemed a Philippine citizen only during
his minority, unless he begins to reside permanently in the Philippines
when still a minor, in which case, he will continue to be a Philippine
citizen even after becoming of age.
A child born outside of the Philippines after the naturalization of his
parent, shall be considered a Philippine citizen unless within one year
after reaching the age of majority he fails to register himself as a
Philippine citizen at the American Consulate of the country where he
resides, and to take the necessary oath of allegiance.
is it necessary, in order that an alien woman who marries a Filipino or who is married to
a man who subsequently becomes a Filipino, may become a Filipino citizen herself, that,
aside from not suffering from any of the disqualifications enumerated in the law, she
must also possess all the qualifications required by said law? if nothing but the unbroken
line from Lee Suan Ay to Go Im Ty, as recounted above, were to be considered, it is
obvious that an affirmative answer to the question would be inevitable, specially, if it is
noted that the present case was actually submitted for decision on January 21, 1964 yet,
shortly after Lo San Tuang, Tong Siok Sy and Sun Peck Yong, all supra, and even
before Choy King Tee, supra, were decided. There are other circumstances, however,
which make it desirable, if not necessary, that the Court take up the matter anew. There
has been a substantial change in the membership of the Court since Go Im Ty, and of
those who were in the Court already when Burca was decided, two members, Justice
Makalintal and Castro concurred only in the result, precisely, according to them,
because (they wanted to leave the point now under discussion open in so far as they are
concerned.
12
Truth to tell, the views and arguments discussed at length with copious
relevant authorities, in the motion for reconsideration as well as in the memorandum of
the amici curae
13
in the Burca case cannot just be taken lightly and summarily ignored,
since they project in the most forceful manner, not only the legal and logical angles of
the issue, but also the imperative practical aspects thereof in the light of the actual
situation of the thousands of alien wives of Filipinos who have so long, even decades,
considered themselves as Filipinas and have always lived and acted as such, officially or
otherwise, relying on the long standing continuous recognition of their status as such by
the administrative authorities in charge of the matter, as well as by the courts. Under
these circumstances, and if only to afford the Court an opportunity to consider the views
of the five justices who took no part in Go Im Ty (including the writer of this opinion), the
Court decided to further reexamine the matter. After all, the ruling first laid in Lee Suan
Ay, and later in Lo San Tuang, Choy King Teestand the second (1966) Ly Giok Ha, did
not categorically repudiate the opinions of the Secretary of Justice relied upon by the
first (1959) Ly Giok Ha. Besides, some points brought to light during the deliberations in
this case would seem to indicate that the premises of the later cases can still bear
further consideration.
Whether We like it or not, it is undeniably factual that the legal provision We are
construing, Section 15, aforequoted, of the Naturalization Law has been taken directly,
copied and adopted from its American counterpart. To be more accurate, said provision
is nothing less than a reenactment of the American provision. A brief review of its history
proves this beyond per adventure of doubt.
The first Naturalization Law of the Philippines approved by the Philippine Legislature
under American sovereignty was that of March 26, 1920, Act No. 2927. Before then, as
a consequence of the Treaty of Paris, our citizenship laws were found only in the
Organic Laws, the Philippine Bill of 1902, the Act of the United States Congress of
March 23, 1912 and later the Jones Law of 1916. In fact, Act No. 2927 was enacted
pursuant to express authority granted by the Jones Law. For obvious reasons, the
Philippines gained autonomy on the subjects of citizenship and immigration only after
the effectivity of the Philippine Independence Act. This made it practically impossible for
our laws on said subject to have any perspective or orientation of our own; everything
was American.
The Philippine Bill of 1902 provided pertinently: .
SECTION 4. That all inhabitants of the Philippine Islands continuing to
reside herein who were Spanish subjects on the eleventh day of April,
eighteen-hundred and ninety-nine, and then resided in said Islands, and
their children born subsequent thereto, shall be deemed and held to be
citizens of the Philippine Islands and as such entitled to the protection of
the United States, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the provisions of the
treaty of peace between the United States and Spain signed at Paris
December tenth, eighteen hundred and ninety-eight.
This Section 4 of the Philippine Bill of 1902 was amended by Act of Congress of March
23, 1912, by adding a provision as follows:
Provided, That the Philippine Legislature is hereby authorized to provide
by law for the acquisition of Philippine citizenship by those natives of the
Philippine Islands who do not come within the foregoing provisions, the
natives of other insular possessions of the United States, and such other
persons residing in the Philippine Islands who would become citizens of
the United States, under the laws of the United States, if residing therein.
The Jones Law reenacted these provisions substantially: .
SECTION 2. That all inhabitants of the Philippine Islands who were
Spanish subjects on the eleventh day of April, eighteen hundred and
ninety-nine, and then resided in said islands, and their children born
subsequent thereto, shall be deemed and held to be citizens of the
Philippine Islands, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the provisions of the
treaty of peace between the United States and Spain, signed at Paris
December tenth, eighteen hundred and ninety-eight and except such
others as have since become citizens of some other country: Provided,
That the Philippine Legislature, herein provided for, is hereby authorized
to provide by law for the acquisition of Philippine citizenship by those
natives of the Philippine Islands who do not come within the foregoing
provisions, the natives of the insular possessions of the United States,
and such other persons residing in the Philippine Islands who are citizens
of the United States under the laws of the United States if residing
therein.
For aught that appears, there was nothing in any of the said organic laws regarding the
effect of marriage to a Filipino upon the nationality of an alien woman, albeit under the
Spanish Civil Code provisions on citizenship, Articles 17 to 27, which were, however,
abrogated upon the change of sovereignty, it was unquestionable that the citizenship of
the wife always followed that of the husband. Not even Act 2927 contained any provision
regarding the effect of naturalization of an alien, upon the citizenship of his alien wife,
nor of the marriage of such alien woman with a native born Filipino or one who had
become a Filipino before the marriage, although Section 13 thereof provided thus: .
SEC. 13. Right of widow and children of petitioners who have died. In
case a petitioner should die before the final decision has been rendered,
his widow and minor children may continue the proceedings. The decision
rendered in the case shall, so far as the widow and minor children are
concerned, produce the same legal effect as if it had been rendered
during the life of the petitioner.
It was not until November 30, 1928, upon the approval of Act 3448, amending Act 2977,
that the following provisions were added to the above Section 13:
SECTION 1. The following new sections are hereby inserted between
sections thirteen and fourteen of Act Numbered Twenty-nine hundred and
Twenty-seven:
SEC. 13(a). Any woman who is now or may hereafter be
married to a citizen of the Philippine Islands and who might
herself be lawfully naturalized, shall be deemed a citizen of
the Philippine Islands.
SEC. 13(b). Children of persons who have been duly
naturalized under this law, being under the age of twenty-
one years at the time of the naturalization of their parents,
shall, if dwelling in the Philippine Islands, be considered
citizens thereof.
SEC. 13(c). Children of persons naturalized under this law
who have been born in the Philippine Islands after the
naturalization of their parents shall be considered citizens
thereof.
When Commonwealth Act 473, the current naturalization law, was enacted on June 17,
1939, the above Section 13 became its Section 15 which has already been quoted
earlier in this decision. As can be seen, Section 13 (a) abovequoted was re-enacted
practically word for word in the first paragraph of this Section 15 except for the change of
Philippine Islands to Philippines. And it could not have been on any other basis than this
legislative history of our naturalization law that each and everyone of the decisions of
this Court from the first Ly Giok Ha to Go Im Ty, discussed above, were rendered.
As stated earlier, in the opinion of Chief Justice Concepcion in the first Ly Giok Ha, it
was quite clear that for an alien woman who marries a Filipino to become herself a
Filipino citizen, there is no need for any naturalization proceeding because she becomes
a Filipina ipso facto from the time of such marriage, provided she does not suffer any of
the disqualifications enumerated in Section 4 of Commonwealth Act 473, with no
mention being made of whether or not the qualifications enumerated in Section 2 thereof
need be shown. It was only in Lee Suan Ay in 1959 that the possession of qualifications
were specifically required, but it was not until 1963, in Lo San Tuang, that Justice Regala
reasoned out why the possession of the qualifications provided by the law should also
be shown to be possessed by the alien wife of a Filipino, for her to become a Filipina by
marriage.
As may be recalled, the basic argument advanced by Justice Regala was briefly as
follows: That "like the law in the United States, our Naturalization Law specified the
classes of persons who alone might become citizens, even as it provided who were
disqualified," and inasmuch as Commonwealth Act 473, our Naturalization Law since
1939 did not reenact the section providing who might become citizens, allegedly in order
to remove racial discrimination in favor of Caucasians and against Asiatics, "the only
logical deduction ... is that the phrase "who might herself be lawfully naturalized" must
now be understood as referring to those who under Section 2 of the law are qualified to
become citizens of the Philippines" and "there is simply no support for the view that the
phrase "who might herself be lawfully naturalized" must now be understood as requiring
merely that the alien woman must not belong to the class of disqualified persons under
Section 4 of the Revised Naturalization Law."
14

A similar line of reasoning was followed in Choy King Tee, which for ready reference
may be qouted:
The question has been settled by the uniform ruling of this Court in a
number of cases. The alien wife of a Filipino citizen must first prove that
she has all the qualifications required by Section 2 and none of the
disqualifications enumerated in Section 4 of the Naturalization Law before
she may be deemed a Philippine citizen (Lao Chay v. Galang, L-190977,
Oct. 30, 1964, citing Lo San Tuang v. Galang, L-18775, Nov. 30, 1963;
Sun Peck Yong v. Commissioner of Immigration, L-20784, December 27,
1963; Tong Siok Sy v. Vivo, L-21136, December 27, 1963). The writer of
this opinion has submitted the question anew to the court for a possible
reexamination of the said ruling in the light of the interpretation of a
similar law in the United States after which Section 15 of our
Naturalization Law was patterned. That law was section 2 of the Act of
February 10, 1855 (Section 1994 of the Revised Statutes of the U.S.).
The local law, Act No. 3448, was passed on November 30, 1928 as an
amendment to the former Philippine Naturalization Law, Act No. 2927,
which was approved on March 26, 1920. Under this Naturalization Law,
acquisition of Philippine citizenship was limited to three classes of
persons, (a) Natives of the Philippines who were not citizens thereof; (b)
natives of the other insular possessions of the United States; and (c)
citizens of the United States, or foreigners who, under the laws of the
United States, may become citizens of the latter country if residing
therein. The reference in subdivision (c) to foreigners who may become
American Citizens is restrictive in character, for only persons of certain
specified races were qualified thereunder. In other words, in so far as
racial restrictions were concerned there was at the time a similarity
between the naturalization laws of the two countries and hence there was
reason to accord here persuasive force to the interpretation given in the
United States to the statutory provision concerning the citizenship of alien
women marrying American citizens.
This Court, however, believes that such reason has ceased to exist since
the enactment of the Revised Naturalization Law, (Commonwealth Act
No. 473) on June 17, 1939. The racial restrictions have been eliminated
in this Act, but the provision found in Act No. 3448 has been maintained.
It is logical to presume that when Congress chose to retain the said
provision that to be deemed a Philippine citizen upon marriage the
alien wife must be one "who might herself be lawfully naturalized," the
reference is no longer to the class or race to which the woman belongs,
for class or race has become immaterial, but to the qualifications and
disqualifications for naturalization as enumerated in Sections 2 and 4 of
the statute. Otherwise the requirement that the woman "might herself be
lawfully naturalized" would be meaningless surplusage, contrary to settled
norms of statutory construction.
The rule laid down by this Court in this and in other cases heretofore
decided is believed to be in line with the national policy of selective
admission to Philippine citizenship, which after all is a privilege granted
only to those who are found worthy thereof, and not indiscriminately to
anybody at all on the basis alone of marriage to a man who is a citizen of
the Philippines, irrespective of moral character, ideological beliefs, and
identification with Filipino ideals, customs and traditions.
Appellee here having failed to prove that she has all the qualifications for
naturalization, even, indeed, that she has none of the disqualifications,
she is not entitled to recognition as a Philippine citizen.
In the second Ly Giok Ha, the Court further fortified the arguments in favor of the same
conclusion thus:
On cross-examination, she (Ly Giok Ha) failed to establish that: (1) she
has been residing in the Philippines for a continuous period of at least
(10) years (p. 27, t.s.n., id.); (2) she has a lucrative trade, profession, or
lawful occupation (p. 13, t.s.n., id.); and (3) she can speak and write
English, or any of the principal Philippine languages (pp. 12, 13,
t.s.n., id.).
While the appellant Immigration Commissioner contends that the words
emphasized indicate that the present Naturalization Law requires that an
alien woman who marries a Filipino husband must possess the
qualifications prescribed by section 2 in addition to not being disqualified
under any of the eight ("a" to "h") subheadings of section 4 of
Commonwealth Act No. 473, in order to claim our citizenship by marriage,
both the appellee and the court below (in its second decision) sustain the
view that all that the law demands is that the woman be not disqualified
under section 4.
At the time the present case was remanded to the court of origin (1960)
the question at issue could be regarded as not conclusively settled, there
being only the concise pronouncement in Lee Suan Ay, et al. v. Galang,
G. R. No. L-11855, Dec. 23, 1959, to the effect that:
The marriage of a Filipino citizen to an alien does not
automatically confer Philippine citizenship upon the latter.
She must possess the qualifications required by law to
become a Filipino citizen by naturalization.
Since that time, however, a long line of decisions of this Court has firmly
established the rule that the requirement of section 15 of Commonwealth
Act 473 (the Naturalization Act), that an alien woman married to a citizen
should be one who "might herself be lawfully naturalized," means not only
woman free from the disqualifications enumerated in section 4 of the Act
but also one who possesses the qualifications prescribed by section 2 of
Commonwealth Act 473 (San Tuan v. Galang, L-18775, Nov. 30, 1963;
Sun Peck Yong v. Com. of Immigration, L-20784, Dee. 27, 1963; Tong
Siok Sy v. Vivo, L-21136, Dec. 27, 1963; Austria v. Conchu, L-20716,
June 22, 1965; Choy King Tee v. Galang, L-18351, March 26, 1965; Brito
v. Com. of Immigration, L-16829, June 30, 1965).
Reflection will reveal why this must be so. The qualifications prescribed
under section 2 of the Naturalization Act, and the disqualifications
enumerated in its section 4 are not mutually exclusive; and if all that were
to be required is that the wife of a Filipino be not disqualified under
section 4, the result might well be that citizenship would be conferred
upon persons in violation of the policy of the statute. For example, section
4 disqualifies only
(c) Polygamists or believers in the practice of polygamy; and
(d) Persons convicted of crimes involving moral turpitude,
so that a blackmailer, or a maintainer of gambling or bawdy houses, not
previously convicted by a competent court would not be thereby
disqualified; still, it is certain that the law did not intend such person to be
admitted as a citizen in view of the requirement of section 2 that an
applicant for citizenship "must be of good moral character."
Similarly, the citizen's wife might be a convinced believer in racial
supremacy, in government by certain selected classes, in the right to vote
exclusively by certain "herrenvolk", and thus disbelieve in the principles
underlying the Philippine Constitution; yet she would not be disqualified
under section 4, as long as she is not "opposed to organized
government," nor affiliated to groups "upholding or teaching doctrines
opposing all organized governments", nor "defending or teaching the
necessity or propriety of violence, personal assault or assassination for
the success or predominance of their ideas." Et sic de caeteris.
The foregoing instances should suffice to illustrate the danger of relying
exclusively on the absence of disqualifications, without taking into
account the other affirmative requirements of the law, which, in the case
at bar, the appellee Ly Giok Ha admittedly does not possess.
As to the argument that the phrase "might herself be lawfully naturalized"
was derived from the U.S. Revised Statutes (section 1994) and should be
given the same territorial and racial significance given to it by American
courts, this Court has rejected the same in Lon San Tuang v. Galang, L-
18775, November 30, 1963; and in Choy King Tee v. Galang, L-18351,
March 26, 1965.
It is difficult to minimize the persuasive force of the foregoing rationalizations, but a
closer study thereof cannot bat reveal certain relevant considerations which adversely
affect the premises on which they are predicated, thus rendering the conclusions arrived
thereby not entirely unassailable.
1. The main proposition, for instance, that in eliminating Section 1 of Act 2927 providing
who are eligible for Philippine citizenship, the purpose of Commonwealth Act 473, the
Revised Naturalization Law, was to remove the racial requirements for naturalization,
thereby opening the door of Filipino nationality to Asiatics instead of allowing the
admission thereto of Caucasians only, suffers from lack of exact accuracy. It is important
to note, to start with, that Commonwealth Act 473 did away with the whole Section 1 of
Act 2927 which reads, thus:
SECTION 1. Who may become Philippine citizens. Philippine
citizenship may be acquired by: (a) natives of the Philippines who are not
citizens thereof under the Jones Law; (b) natives of the other Insular
possessions of the United States; (c) citizens of the United States, or
foreigners who under the laws of the United States may become citizens
of said country if residing therein.
and not only subdivision (c) thereof. Nowhere in this whole provision was there any
mention of race or color of the persons who were then eligible for Philippine citizenship.
What is more evident from said provision is that it reflected the inevitable subordination
of our legislation during the pre-Commonwealth American regime to the understandable
stations flowing from our staffs as a territory of the United States by virtue of the Treaty
of Paris. In fact, Section 1 of Act 2927 was precisely approved pursuant to express
authority without which it could not have been done, granted by an amendment to
Section 4 of the Philippine Bill of 1902 introduced by the Act of the United States
Congress of March 23, 1912 and which was reenacted as part of the Jones Law of 1916,
the pertinent provisions of which have already been footed earlier. In truth, therefore, it
was because of the establishment of the Philippine Commonwealth and in the exercise
of our legislative autonomy on citizenship matters under the Philippine Independence
Act that Section 1 of Act 2927 was eliminated,
15
and not purposely to eliminate any
racial discrimination contained in our Naturalization Law. The Philippine Legislature
naturally wished to free our Naturalization Law from the impositions of American
legislation. In other words, the fact that such discrimination was removed was one of the
effects rather than the intended purpose of the amendment.
2. Again, the statement in Choy King Tee to the effect that "the reference in subdivision
(c) (of Section 1 of Act 2927) to foreigners who may become American citizens is
restrictive in character, for only persons of certain specified races were qualified
thereunder" fails to consider the exact import of the said subdivision. Explicitly, the thrust
of the said subdivision was to confine the grant under it of Philippine citizenship only to
the three classes of persons therein mentioned, the third of which were citizens of the
United States and, corollarily, persons who could be American citizens under her laws.
The words used in the provision do not convey any idea of favoring aliens of any
particular race or color and of excluding others, but more accurately, they refer to all the
disqualifications of foreigners for American citizenship under the laws of the United
States. The fact is that even as of 1906, or long before 1920, when our Act 2927
became a law, the naturalization, laws of the United States already provided for the
following disqualifications in the Act of the Congress of June 29, 1906:
SEC. 7. That no person who disbelieves in or who is opposed to
organized government, or who is a member of or affiliated with any
organization entertaining and teaching such disbelief in or opposition to
organized government, or who advocates or teaches the duty, necessity,
or propriety of the unlawful assaulting or killing of any officer or officers,
either of specific individuals or of officers generally, of the Government of
the United States, or of any other organized government, because of his
or their official character, or who is a polygamist, shall be naturalized or
be made a citizen of the United States.
and all these disqualified persons were, therefore, ineligible for Philippine citizenship
under Section 1 of Act 2927 even if they happened to be Caucasians. More importantly,
as a matter of fact, said American law, which was the first "Act to Establish a Bureau of
Immigration and Naturalization and to provide for a Uniform Rule for Naturalization of
Aliens throughout the United States" contained no racial disqualification requirement,
except as to Chinese, the Act of May 6, 1882 not being among the expressly repealed
by this law, hence it is clear that when Act 2927 was enacted, subdivision (e) of its
Section 1 could not have had any connotation of racial exclusion necessarily, even if it
were traced back to its origin in the Act of the United States Congress of 1912 already
mentioned above.
16
Thus, it would seem that the rationalization in the qouted decisions
predicated on the theory that the elimination of Section 1 of Act 2927 by Commonwealth
Act 473 was purposely for no other end than the abolition of racial discrimination in our
naturalization law has no clear factual basis.
17

3. In view of these considerations, there appears to be no cogent reason why the
construction adopted in the opinions of the Secretary of Justice referred to in the first Ly
Giok Ha decision of the Chief Justice should not prevail. It is beyond dispute that the first
paragraph of Section 15 of Commonwealth Act 473 is a reenactment of Section 13(a) of
Act 2927, as amended by Act 3448, and that the latter is nothing but an exact copy,
deliberately made, of Section 1994 of the Raised Statutes of the United States as it
stood before its repeal in 1922.
18
Before such repeal, the phrase "who might herself be
lawfully naturalized" found in said Section 15 had a definite unmistakable construction
uniformly foIlowed in all courts of the United States that had occasion to apply the same
and which, therefore, must be considered, as if it were written in the statute itself. It is
almost trite to say that when our legislators enacted said section, they knew of its
unvarying construction in the United States and that, therefore, in adopting verbatim the
American statute, they have in effect incorporated into the provision, as thus enacted,
the construction given to it by the American courts as well as the Attorney General of the
United States and all administrative authorities, charged with the implementation of the
naturalization and immigration laws of that country. (Lo Cham v. Ocampo, 77 Phil., 635
[1946]; Laxamana v. Baltazar, 92 Phil., 32 [1952]; Hartley v. Commissioner, 295 U.S.
216, 79 L. ed. 1399, 55 S Ct. 756 [19353; Helvering v. Winmill, 305 U.S. 79, 83 L ed. 52,
59 S Ct. 45 [1938]; Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 83 L ed.
536, 59 S Ct. 423 [1939]. [p. 32, Memo of Amicus Curiae]).
A fairly comprehensive summary of the said construction by the American courts and
administrative authorities is contained in United States of America ex rel. Dora
Sejnensky v. Robert E. Tod, Commissioner of Immigration, Appt., 295 Fed. 523, decided
November 14, 1922, 26 A. L. R. 1316 as follows:
Section 1994 of the Revised Statutes (Comp. Stat. 3948, 2 Fed. Sta.
Anno. 2d ed. p. 117) provides as follows: "Any woman who is now or may
hereafter be married to a citizen of the United States, and who might
herself be lawfully naturalized, shall be deemed a citizen."
Section 1944 of the Revised Stat. is said to originate in the Act of
Congress of February 10, 1855 (10 Stat. at L. 604, chap. 71), which in its
second section provided "that any woman, who might lawfully be
naturalized under the existing laws, married, or who shall be married to a
citizen of the United States, shall be deemed and taken to be a citizen."
And the American Statute of 1855 is substantially a copy of the earlier
British Statute 7 & 8 Vict. chap. 66, s 16, 1844, which provided that "any
woman married, or who shall be married, to a natural-born subject or
person naturalized, shall be deemed and taken to be herself naturalized,
and have all the rights and privileges of a natural born subject."
The Act of Congress of September 22, 1922 (42 Stat. at L. 1021, chap.
411, Comp. Stat. 4358b, Fed. Stat. Anno. Supp. 1922, p. 255), being "An
Act Relative to the Naturalization and Citizenship of Married Women," in
2, provides "that any woman who marries a citizen of the United States
after the passage of this Act, ... shall not become a citizen of the United
States by reason of such marriage ..."
Section 6 of the act also provides "that 1994 of the Revised Statutes ...
are repealed."
Section 6 also provides that `such repeal shall not terminate citizenship
acquired or retained under either of such sections, ..." meaning 2 and 6.
So that this Act of September 22, 1922, has no application to the facts of
the present case, as the marriage of the relator took place prior to its
passage. This case, therefore, depends upon the meaning to be attached
to 1994 of the Revised Statutes.
In 1868 the Supreme Court, in Kelly v. Owen, 7 Wall. 496, 498, 19 L. ed.
283, 284, construed this provision as found in the Act of 1855 as follows:
"The term, "who might lawfully be naturalized under the existing laws,"
only limits the application of the law to free white women. The previous
Naturalization Act, existing at the time, only required that the person
applying for its benefits should be "a free white person," and not an alien
enemy."
This construction limited the effect of the statute to those aliens who
belonged to the class or race which might be lawfully naturalized, and did
not refer to any of the other provisions of the naturalization laws as to
residence or moral character, or to any of the provisions of the
immigration laws relating to the exclusion or deportation of aliens.
In 1880, in Leonard v. Grant (C. C.) 5 Fed. 11, District Judge Deady also
construed the Act of 1855, declaring that "any woman who is now or may
hereafter be married to a citizen of the United States, and might herself
be lawfully naturalized, shall be deemed a citizen." He held that "upon the
authorities, and the reason, if not the necessity, of the case," the statute
must be construed as in effect declaring that an alien woman, who is of
the class or race that may be lawfully naturalized under the existing laws,
and who marries a citizen of the United States, is such a citizen also, and
it was not necessary that it should appear affirmatively that she
possessed the other qualifications at the time of her marriage to entitle
her to naturalization.
In 1882, the Act of 1855 came before Mr. Justice Harlan, sitting in the
circuit court, in United States v. Kellar, 13 Fed. 82. An alien woman, a
subject of Prussia came to the United States and married here a
naturalized citizen. Mr. Justice Harlan, with the concurrence of Judge
Treat, held that upon her marriage she became ipso facto a citizen of the
United States as fully as if she had complied with all of the provisions of
the statutes upon the subject of naturalization. He added: "There can be
no doubt of this, in view of the decision of the Supreme Court of the
United, States in Kelly v. Owen, 7 Wall. 496, 19 L. ed. 283." The alien
"belonged to the class of persons" who might be lawfully naturalized.
In 1904, in Hopkins v. Fachant, 65 C. C. A. 1, 130 Fed. 839, an alien
woman came to the United States from France and entered the country
contrary to the immigration laws. The immigration authorities took her into
custody at the port of New York, with the view of deporting her. She
applied for her release under a writ of habeas corpus, and pending the
disposition of the matter she married a naturalized American citizen. The
circuit court of appeals for the ninth Circuit held, affirming the court below,
that she was entitled to be discharged from custody. The court declared:
"The rule is well settled that her marriage to a naturalized citizen of the
United States entitled her to be discharged. The status of the wife follows
that of her husband, ... and by virtue of her marriage her husband's
domicil became her domicil." .
In 1908, the circuit court for the district of Rhode Island in Re Rustigian,
165. Fed. 980, had before it the application of a husband for his final
decree of naturalization. It appeared that at that time his wife was held by
the immigration authorities at New York on the ground that she was
afflicted with a dangerous and contagious disease. Counsel on both sides
agreed that the effect of the husband's naturalization would be to confer
citizenship upon the wife. In view of that contingency District Judge Brown
declined to pass upon the husband's application for naturalization, and
thought it best to wait until it was determined whether the wife's disease
was curable. He placed his failure to act on the express ground that the
effect of naturalizing the husband might naturalize her. At the same time
he express his opinion that the husband's naturalization would not effect
her naturalization, as she was not one who could become lawfully
naturalized. "Her own capacity (to become naturalized)," the court stated
"is a prerequisite to her attaining citizenship. If herself lacking in that
capacity, the married status cannot confer it upon her." Nothing, however,
was actually decided in that case, and the views expressed therein are
really nothing more than mere dicta. But, if they can be regarded as
something more than that, we find ourselves, with all due respect for the
learned judge, unable to accept them.
In 1909, in United States ex rel. Nicola v. Williams, 173 Fed. 626, District
Judge Learned Hand held that an alien woman, a subject of the Turkish
Empire, who married an American citizen while visiting Turkey, and then
came to the United States, could not be excluded, although she had, at
the time of her entry, a disease which under the immigration laws would
have been sufficient ground for her exclusion, if she bad not had the
status of a citizen. The case was brought into this court on appeal, and in
1911 was affirmed, in 106 C. C. A. 464, 184 Fed. 322. In that case,
however at the time the relators married, they might have been lawfully
naturalized, and we said: "Even if we assume the contention of the district
attorney to be correct that marriage will not make a citizen of a woman
who would be excluded under our immigration laws, it does not affect
these relators."
We held that, being citizens, they could not be excluded as aliens; and it
was also said to be inconsistent with the policy of our law that the
husband should be a citizen and the wife an alien. The distinction
between that case and the one now before the court is that, in the former
case, the marriage took place before any order of exclusion had been
made, while in this the marriage was celebrated after such an order was
made. But such an order is a mere administrative provision, and has not
the force of a judgment of a court, and works no estoppel. The
administrative order is based on the circumstances that existed at the
time the order of exclusion was made. If the circumstances change prior
to the order being carried into effect, it cannot be executed. For example,
if an order of exclusion should be based on the ground that the alien was
at the time afflicted with a contagious disease, and it should be made
satisfactorily to appear, prior to actual deportation, that the alien had
entirely recovered from the disease, we think it plain that the order could
not be carried into effect. So, in this case, if, after the making of the order
of exclusion and while she is permitted temporarily to remain, she in good
faith marries an American citizen, we cannot doubt the validity of her
marriage, and that she thereby acquired, under international law and
under 1994 of the Revised Statutes, American citizenship, and ceased to
be an alien. There upon, the immigration authorities lost their jurisdiction
over her, as that jurisdiction applies only to aliens, and not to citizens.
In 1910, District Judge Dodge, in Ex parte Kaprielian, 188 Fed. 694,
sustained the right of the officials to deport a woman under the following
circumstances: She entered this country in July, 1910, being an alien and
having been born in Turkey. She was taken into custody by the
immigration authorities in the following September, and in October a
warrant for her deportation was issued. Pending hearings as to the
validity of that order, she was paroled in the custody of her counsel. The
ground alleged for her deportation was that she was afflicted with a
dangerous and contagious disease at the time of her entry. One of the
reasons assigned to defeat deportation was that the woman had married
a citizen of the United States pending the proceedings for her deportation.
Judge Dodge declared himself unable to believe that a marriage under
such circumstances "is capable of having the effect claimed, in view of
the facts shown." He held that it was no part of the intended policy of
1994 to annul or override the immigration laws, so as to authorize the
admission into the country of the wife of a naturalized alien not otherwise
entitled to enter, and that an alien woman, who is of a class of persons
excluded by law from admission to the United States does not come
within the provisions of that section. The court relied wholly upon the dicta
contained in the Rustigian Case. No other authorities were cited.
In 1914, District Judge Neterer, in Ex parte Grayson, 215 Fed. 449,
construed 1994 and held that where, pending proceedings to deport an
alien native of France as an alien prostitute, she was married to a citizen
of the United States, she thereby became a citizen, and was not subject
to deportation until her citizenship was revoked by due process of law. It
was his opinion that if, as was contended, her marriage was conceived in
fraud, and was entered into for the purpose of evading the immigration
laws and preventing her deportation, such fact should be established in a
court of competent jurisdiction in an action commenced for the purpose.
The case was appealed and the appeal was dismissed. 134 C. C. A. 666,
219 Fed. 1022.
It is interesting also to observe the construction placed upon the language
of the statute by the Department of Justice. In 1874, Attorney General
Williams, 14 Ops. Atty. Gen. 402, passing upon the Act of February 10,
1855, held that residence within the United States for the period required
by the naturalization laws was riot necessary in order to constitute an
alien woman a citizen, she having married a citizen of the United States
abroad, although she never resided in the United States, she and her
husband having continued to reside abroad after the marriage.
In 1909, a similar construction was given to the Immigration Act of May 5,
1907, in an opinion rendered by Attorney General Wickersham. It
appeared an unmarried woman, twenty-eight years of age and a native of
Belgium, arrived in New York and went at once to a town in Nebraska,
where she continued to reside. About fifteen months after her arrival she
was taken before a United States commissioner by way of instituting
proceedings under the Immigration Act (34 Stat. at L. 898, chap. 1134,
Comp. Stat. 4242, 3 Fed. Stat. Anno. 2d ed. p. 637) for her deportation,
on the ground that she had entered this country for the purpose of
prostitution, and had been found an inmate of a house of prostitution and
practicing the same within three years after landing. It appeared,
however, that after she was taken before the United States
commissioner, but prior to her arrest under a warrant by the Department
of Justice, she was lawfully married to a native-born citizen of the United
States. The woman professed at the time of her marriage an intention to
abandon her previous mode of life and to remove with her husband to his
home in Pennsylvania. He knew what her mode of life had been, but
professed to believe in her good intentions. The question was raised as to
the right to deport her, the claim being advance that by her marriage she
bad become an American citizen and therefore could not be deported.
The Attorney General ruled against the right to deport her as she had
become an American citizen. He held that the words, "who might herself
be lawfully naturalized," refer to a class or race who might be lawfully
naturalized, and that compliance with the other conditions of the
naturalization laws was not required. 27 Ops. Atty. Gen. 507.
Before concluding this opinion, we may add that it has not escaped our
observation that Congress, in enacting the Immigration Act of 1917, so as
to provide, in 19, "that the marriage to an American citizen of a female of
the sexually immoral classes ... shall not invest such female with United
States citizenship if the marriage of such alien female shall be solemnized
after her arrest or after the commission of acts which make her liable to
deportation under this act."
Two conclusions seem irresistibly to follow from the above change in the
law:
(1) Congress deemed legislation essential to prevent women of the
immoral class avoiding deportation through the device of marrying an
American citizen.
(2) If Congress intended that the marriage of an American citizen with an
alien woman of any other of the excluded classes, either before or after
her detention, should not confer upon her American citizenship, thereby
entitling her to enter the country, its intention would have been expressed,
and 19 would not have been confined solely to women of the immoral
class.
Indeed, We have examined all the leading American decisions on the subject and We
have found no warrant for the proposition that the phrase "who might herself be lawfully
naturalized" in Section 1994 of the Revised Statutes was meant solely as a racial bar,
even if loose statements in some decisions and other treaties and other writings on the
subject would seem to give such impression. The case of Kelley v. Owen, supra, which
appears to be the most cited among the first of the decisions
19
simply held:
As we construe this Act, it confers the privileges of citizenship upon
women married to citizens of the United States, if they are of the class of
persons for whose naturalization the previous Acts of Congress provide.
The terms "married" or "who shall be married," do not refer in our
judgment, to the time when the ceremony of marriage is celebrated, but to
a state of marriage. They mean that, whenever a woman, who under
previous Acts might be naturalized, is in a state of marriage to a citizen,
whether his citizenship existed at the passage of the Act or subsequently,
or before or after the marriage, she becomes, by that fact, a citizen also.
His citizenship, whenever it exists, confers, under the Act, citizenship
upon her. The construction which would restrict the Act to women whose
husbands, at the time of marriage, are citizens, would exclude far the
greater number, for whose benefit, as we think, the Act was intended. Its
object, in our opinion, was to allow her citizenship to follow that of her
husband, without the necessity of any application for naturalization on her
part; and, if this was the object, there is no reason for the restriction
suggested.
The terms, "who might lawfully be naturalized under the existing laws,"
only limit the application of the law to free white women. The previous
Naturalization Act, existing at the time only required that the person
applying for its benefits should be "a free white person," and not an alien
enemy. Act of April 14th, 1802, 2 Stat. at L. 153.
A similar construction was given to the Act by the Court of Appeals of
New York, in Burton v. Burton, 40 N. Y. 373; and is the one which gives
the widest extension to its provisions.
Note that write the court did say that "the terms, "who might lawfully be naturalized under
existing laws" only limit the application to free white women"
20
it hastened to add that
"the previous Naturalization Act, existing at the time, ... required that the person applying
for its benefits should be (not only) a "free white person" (but also) ... not an alien
enemy." This is simply because under the Naturalization Law of the United States at the
time the case was decided, the disqualification of enemy aliens had already been
removed by the Act of July 30, 1813, as may be seen in the corresponding footnote
hereof anon. In other words, if in the case of Kelly v. Owen only the race requirement
was mentioned, the reason was that there was no other non-racial requirement or no
more alien enemy disqualification at the time; and this is demonstrated by the fact that
the court took care to make it clear that under the previous naturalization law, there was
also such requirement in addition to race. This is impotent, since as stated in re
Rustigian, 165 Fed. Rep. 980, "The expression used by Mr. Justice Field, (in Kelly v.
Owen) the terms "who might lawfully be naturalized under existing laws" only limit the
application of the law to free white women, must be interpreted in the application to the
special facts and to the incapacities under the then existing laws," (at p. 982) meaning
that whether or not an alien wife marrying a citizen would be a citizen was dependent,
not only on her race and nothing more necessarily, but on whether or not there were
other disqualifications under the law in force at the time of her marriage or the
naturalization of her husband.
4. As already stated, in Lo San Tuang, Choy King Tee and the second Ly Giok Ha, the
Court drew the evidence that because Section 1 of Act 2927 was eliminated by
Commonwealth Act 473, it follows that in place of the said eliminated section particularly
its subdivision (c), being the criterion of whether or not an alien wife "may be lawfully
naturalized," what should be required is not only that she must not be disqualified under
Section 4 but that she must also possess the qualifications enumerated in Section 2,
such as those of age, residence, good moral character, adherence to the underlying
principles of the Philippine Constitution, irreproachable conduct, lucrative employment or
ownership of real estate, capacity to speak and write English or Spanish and one of the
principal local languages, education of children in certain schools, etc., thereby implying
that, in effect, sails Section 2 has been purposely intended to take the place of Section 1
of Act 2927. Upon further consideration of the proper premises, We have come, to the
conclusion that such inference is not sufficiently justified.
To begin with, nothing extant in the legislative history, which We have already explained
above of the mentioned provisions has been shown or can be shown to indicate that
such was the clear intent of the legislature. Rather, what is definite is that Section 15 is,
an exact copy of Section 1994 of the Revised Statutes of the United States, which, at the
time of the approval of Commonwealth Act 473 had already a settled construction by
American courts and administrative authorities.
Secondly, as may be gleaned from the summary of pertinent American decisions quoted
above, there can be no doubt that in the construction of the identically worded provision
in the Revised Statutes of the United States, (Section 1994, which was taken, from the
Act of February 10, 1855) all authorities in the United States are unanimously agreed
that the qualifications of residence, good moral character, adherence to the Constitution,
etc. are not supposed to be considered, and that the only eligibility to be taken into
account is that of the race or class to which the subject belongs, the conceptual scope of
which, We have just discussed.
21
In the very case of Leonard v. Grant, supra, discussed
by Justice Regala in Lo San Tuang, the explanation for such posture of the American
authorities was made thus:
The phrase, "shall be deemed a citizen" in section 1994 Rev. St., or as it
was in the Act of 1855,supra, "shall be deemed and taken to be a citizen"
while it may imply that the person to whom it relates has not actually
become a citizen by ordinary means or in the usual way, as by the
judgment of a competent court, upon a proper application and proof, yet it
does not follow that such person is on that account practically any the
less a citizen. The word "deemed" is the equivalent of "considered" or
"judged"; and, therefore, whatever an act of Congress requires to be
"deemed" or "taken" as true of any person or thing, must, in law, be
considered as having been duly adjudged or established concerning
"such person or thing, and have force and effect accordingly. When,
therefore, Congress declares that an alien woman shall, under certain
circumstances, be "deemed' an American citizen, the effect when the
contingency occurs, is equivalent to her being naturalized directly by an
act of Congress, or in the usual mode thereby prescribed.
Unless We disregard now the long settled familiar rule of statutory construction that in a
situation like this wherein our legislature has copied an American statute word for word,
it is understood that the construction already given to such statute before its being
copied constitute part of our own law, there seems to be no reason how We can give a
different connotation or meaning to the provision in question. At least, We have already
seen that the views sustaining the contrary conclusion appear to be based on in
accurate factual premises related to the real legislative background of the framing of our
naturalization law in its present form.
Thirdly, the idea of equating the qualifications enumerated in Section 2 of
Commonwealth Act 473 with the eligibility requirements of Section 1 of Act 2927 cannot
bear close scrutiny from any point of view. There is no question that Section 2 of
Commonwealth Act 473 is more or less substantially the same as Section 3 of Act 2927.
In other words, Section 1 of Act 2927 co-existed already with practically the same
provision as Section 2 of Commonwealth Act 473. If it were true that the phrase "who
may be lawfully naturalized" in Section 13 (a) of Act 2927, as amended by Act 3448,
referred to the so-called racial requirement in Section 1 of the same Act, without regard
to the provisions of Section 3 thereof, how could the elimination of Section 1 have the
effect of shifting the reference to Section 3, when precisely, according to the American
jurisprudence, which was prevailing at the time Commonwealth Act 473 was approved,
such qualifications as were embodied in said Section 3, which had their counterpart in
the corresponding American statutes, are not supposed to be taken into account and
that what should be considered only are the requirements similar to those provided for in
said Section 1 together with the disqualifications enumerated in Section 4?
Fourthly, it is difficult to conceive that the phrase "who might be lawfully naturalized" in
Section 15 could have been intended to convey a meaning different than that given to it
by the American courts and administrative authorities. As already stated, Act 3448 which
contained said phrase and from which it was taken by Commonwealth Act 473, was
enacted in 1928. By that, time, Section 1994 of the Revised Statutes of the United
States was no longer in force because it had been repealed expressly the Act of
September 22, 1922 which did away with the automatic naturalization of alien wives of
American citizens and required, instead, that they submit to regular naturalization
proceedings, albeit under more liberal terms than those of other applicants. In other
words, when our legislature adopted the phrase in question, which, as already
demonstrated, had a definite construction in American law, the Americans had already
abandoned said phraseology in favor of a categorical compulsion for alien wives to be
natural judicially. Simple logic would seem to dictate that, since our lawmakers, at the
time of the approval of Act 3448, had two choices, one to adopt the phraseology of
Section 1994 with its settled construction and the other to follow the new posture of the
Americans of requiring judicial naturalization and it appears that they have opted for the
first, We have no alternative but to conclude that our law still follows the old or previous
American Law On the subject. Indeed, when Commonwealth Act 473 was approved in
1939, the Philippine Legislature, already autonomous then from the American Congress,
had a clearer chance to disregard the old American law and make one of our own, or, at
least, follow the trend of the Act of the U.S. Congress of 1922, but still, our legislators
chose to maintain the language of the old law. What then is significantly important is not
that the legislature maintained said phraseology after Section 1 of Act 2927 was
eliminated, but that it continued insisting on using it even after the Americans had
amended their law in order to provide for what is now contended to be the construction
that should be given to the phrase in question. Stated differently, had our legislature
adopted a phrase from an American statute before the American courts had given it a
construction which was acquiesced to by those given upon to apply the same, it would
be possible for Us to adopt a construction here different from that of the Americans, but
as things stand, the fact is that our legislature borrowed the phrase when there was
already a settled construction thereof, and what is more, it appears that our legislators
even ignored the modification of the American law and persisted in maintaining the old
phraseology. Under these circumstances, it would be in defiance of reason and the
principles of Statutory construction to say that Section 15 has a nationalistic and
selective orientation and that it should be construed independently of the previous
American posture because of the difference of circumstances here and in the United
States. It is always safe to say that in the construction of a statute, We cannot fall on
possible judicial fiat or perspective when the demonstrated legislative point of view
seems to indicate otherwise.
5. Viewing the matter from another angle, there is need to emphasize that in reality and
in effect, the so called racial requirements, whether under the American laws or the
Philippine laws, have hardly been considered as qualifications in the same sense as
those enumerated in Section 3 of Act 2927 and later in Section 2 of Commonwealth Act
473. More accurately, they have always been considered as disqualifications, in the
sense that those who did not possess them were the ones who could not "be lawfully
naturalized," just as if they were suffering from any of the disqualifications under Section
2 of Act 2927 and later those under Section 4 of Commonwealth Act 473, which,
incidentally, are practically identical to those in the former law, except those in
paragraphs (f) and (h) of the latter.
22
Indeed, such is the clear impression anyone will
surely get after going over all the American decisions and opinions quoted and/or cited
in the latest USCA (1970), Title 8, section 1430, pp. 598-602, and the first decisions of
this Court on the matter, Ly Giok Ha (1959) and Ricardo Cua, citing with approval the
opinions of the secretary of Justice.
23
Such being the case, that is, that the so-called
racial requirements were always treated as disqualifications in the same light as the
other disqualifications under the law, why should their elimination not be viewed or
understood as a subtraction from or a lessening of the disqualifications? Why should
such elimination have instead the meaning that what were previously considered as
irrelevant qualifications have become disqualifications, as seems to be the import of the
holding in Choy King Tee to the effect that the retention in Section 15 of Commonwealth
Act 473 of the same language of what used to be Section 13 (a) of Act 2927 (as
amended by Act 3448), notwithstanding the elimination of Section 1 of the latter,
necessarily indicates that the legislature had in mind making the phrase in question "who
may be lawfully naturalized" refer no longer to any racial disqualification but to the
qualification under Section 2 of Commonwealth Act 473? Otherwise stated, under Act
2927, there were two groups of persons that could not be naturalized, namely, those
falling under Section 1 and those falling under Section 2, and surely, the elimination of
one group, i.e. those belonging to Section 1, could not have had, by any process of
reasoning, the effect of increasing, rather than decreasing, the disqualifications that used
to be before such elimination. We cannot see by what alchemy of logic such elimination
could have convicted qualifications into disqualifications specially in the light of the fact
that, after all, these are disqualifications clearly set out as such in the law distinctly and
separately from qualifications and, as already demonstrated, in American jurisprudence,
qualifications had never been considered to be of any relevance in determining "who
might be lawfully naturalized," as such phrase is used in the statute governing the status
of alien wives of American citizens, and our law on the matter was merely copied
verbatim from the American statutes.
6. In addition to these arguments based on the applicable legal provisions and judicial
opinions, whether here or in the United States, there are practical considerations that
militate towards the same conclusions. As aptly stated in the motion for reconsideration
of counsel for petitioner-appellee dated February 23, 1967, filed in the case ofZita Ngo
Burca v. Republic, supra:
Unreasonableness of requiring alien wife to prove "qualifications"
There is one practical consideration that strongly militates against a
construction that Section 15 of the law requires that an alien wife of a
Filipino must affirmatively prove that she possesses the qualifications
prescribed under Section 2, before she may be deemed a citizen. Such
condition, if imposed upon an alien wife, becomes unreasonably onerous
and compliance therewith manifestly difficult. The unreasonableness of
such requirement is shown by the following:
1. One of the qualifications required of an Applicant for
naturalization under Section 2 of the law is that the
applicant "must have resided in the Philippines for a
continuous period of not less than ten years." If this
requirement is applied to an alien wife married to a Filipino
citizen, this means that for a period of ten years at least,
she cannot hope to acquire the citizenship of her husband.
If the wife happens to be a citizen of a country whose law
declares that upon her marriage to a foreigner she
automatically loses her citizenship and acquires the
citizenship of her husband, this could mean that for a
period of ten years at least, she would be stateless. And
even after having acquired continuous residence in the
Philippines for ten years, there is no guarantee that her
petition for naturalization will be granted, in which case she
would remain stateless for an indefinite period of time.
2. Section 2 of the law likewise requires of the applicant for
naturalization that he "must own real estate in the
Philippines worth not less than five thousand pesos,
Philippine currency, or must have some known lucrative
trade, profession, or lawful occupation." Considering the
constitutional prohibition against acquisition by an alien of
real estate except in cases of hereditary succession (Art.
XIII, Sec. 5, Constitution), an alien wife desiring to acquire
the citizenship of her husband must have to prove that she
has a lucrative income derived from a lawful trade,
profession or occupation. The income requirement has
been interpreted to mean that the petitioner herself must
be the one to possess the said income. (Uy v. Republic, L-
19578, Oct. 27, 1964; Tanpa Ong vs. Republic, L-20605,
June 30, 1965; Li Tong Pek v. Republic, L-20912,
November 29, 1965). In other words, the wife must prove
that she has a lucrative income derived from sources other
than her husband's trade, profession or calling. It is of
common knowledge, and judicial notice may be taken of
the fact that most wives in the Philippines do not have
gainful occupations of their own. Indeed, Philippine law,
recognizing the dependence of the wife upon the husband,
imposes upon the latter the duty of supporting the former.
(Art. 291, Civil Code). It should be borne in mind that
universally, it is an accepted concept that when a woman
marries, her primary duty is to be a wife, mother and
housekeeper. If an alien wife is not to be remiss in this
duty, how can she hope to acquire a lucrative income of
her own to qualify her for citizenship?
3. Under Section 2 of the law, the applicant for
naturalization "must have enrolled his minor children of
school age, in any of the public schools or private schools
recognized by the Office of the Private Education of the
Philippines, where Philippine history, government and
civics are taught or prescribed as part of the school
curriculum during the entire period of residence in the
Philippines required of him prior to the hearing of his
petition for naturalization as Philippine citizen." If an alien
woman has minor children by a previous marriage to
another alien before she marries a Filipino, and such minor
children had not been enrolled in Philippine schools during
her period of residence in the country, she cannot qualify
for naturalization under the interpretation of this Court. The
reason behind the requirement that children should be
enrolled in recognized educational institutions is that they
follow the citizenship of their father. (Chan Ho Lay v.
Republic, L-5666, March 30, 1954; Tan Hi v. Republic, 88
Phil. 117 [1951]; Hao Lian Chu v. Republic, 87 Phil. 668
[1950]; Yap Chin v. Republic, L-4177, May 29, 1953; Lim
Lian Hong v. Republic, L-3575, Dec. 26, 1950).
Considering that said minor children by her first husband
generally follow the citizenship of their alien father, the
basis for such requirement as applied to her does not
exist. Cessante ratione legis cessat ipsa lex.
4. Under Section 3 of the law, the 10-year continuous
residence prescribed by Section 2 "shall be understood as
reduced to five years for any petitioner (who is) married to
a Filipino woman." It is absurd that an alien male married
to a Filipino wife should be required to reside only for five
years in the Philippines to qualify for citizenship, whereas
an alien woman married to a Filipino husband must reside
for ten years.
Thus under the interpretation given by this Court, it is more difficult for an
alien wife related by marriage to a Filipino citizen to become such citizen,
than for a foreigner who is not so related. And yet, it seems more than
clear that the general purpose of the first paragraph of Section 15 was
obviously to accord to an alien woman, by reason of her marriage to a
Filipino, a privilege not similarly granted to other aliens. It will be recalled
that prior to the enactment of Act No. 3448 in 1928, amending Act No.
2927 (the old Naturalization Law), there was no law granting any special
privilege to alien wives of Filipinos. They were treated as any other
foreigner. It was precisely to remedy this situation that the Philippine
legislature enacted Act No. 3448. On this point, the observation made by
the Secretary of Justice in 1941 is enlightening:
It is true that under, Article 22 of the (Spanish) Civil Code,
the wife follows the nationality of the husband; but the
Department of State of the United States on October 31,
1921, ruled that the alien wife of a Filipino citizen is not a
Filipino citizen, pointing out that our Supreme Court in the
leading case of Roa v. Collector of Customs (23 Phil. 315)
held that Articles 17 to 27 of the Civil Code being political
have been abrogated upon the cession of the Philippine
Islands to the United States. Accordingly, the stated taken
by the Attorney-General prior to the envictment of Act No.
3448, was that marriage of alien women to Philippine
citizens did not make the former citizens of this counting.
(Op. Atty. Gen., March 16, 1928) .
To remedy this anomalous condition, Act No. 3448 was
enacted in 1928 adding section 13(a) to Act No. 2927
which provides that "any woman who is now or may
hereafter be married to a citizen of the Philippine Islands,
and who might herself be lawfully naturalized, shall be
deemed a citizen of the Philippine Islands. (Op. No. 22, s.
1941; emphasis ours).
If Section 15 of the, Revised Naturalization Law were to be interpreted, as
this Court did, in such a way as to require that the alien wife must prove
the qualifications prescribed in Section 2, the privilege granted to alien
wives would become illusory. It is submitted that such a construction,
being contrary to the manifested object of the statute must be rejected.
A statute is to be construed with reference to its manifest
object, and if the language is susceptible of two
constructions, one which will carry out and the other defeat
such manifest object, it should receive the former
construction. (In re National Guard, 71 Vt. 493, 45 A. 1051;
Singer v. United States, 323 U.S. 338, 89 L. ed. 285. See
also, U.S. v. Navarro, 19 Phil. 134 [1911]; U. S. v. Toribio,
15 Phil. 85 [1910).
... A construction which will cause objectionable results
should be avoided and the court will, if possible, place on
the statute a construction which will not result in injustice,
and in accordance with the decisions construing statutes, a
construction which will result in oppression, hardship, or
inconveniences will also be avoided, as will a construction
which will prejudice public interest, or construction resulting
in unreasonableness, as well as a construction which will
result in absurd consequences.
So a construction should, if possible, be avoided if the
result would be an apparent inconsistency in legislative
intent, as has been determined by the judicial decisions, or
which would result in futility, redundancy, or a conclusion
not contemplated by the legislature; and the court should
adopt that construction which will be the least likely to
produce mischief. Unless plainly shown to have been the
intention of the legislature, an interpretation which would
render the requirements of the statute uncertain and vague
is to be avoided, and the court will not ascribe to the
legislature an intent to confer an illusory right. ... (82
C.J.S., Statutes, sec. 326, pp. 623-632).
7. In Choy King Tee and the second Ly Giok Ha, emphasis was laid on the need for
aligning the construction of Section 15 with "the national policy of selective admission to
Philippine citizenship." But the question may be asked, is it reasonable to suppose that
in the pursuit of such policy, the legislature contemplated to make it more difficult if not
practically impossible in some instances, for an alien woman marrying a Filipino to
become a Filipina than any ordinary applicant for naturalization, as has just been
demonstrated above? It seems but natural and logical to assume that Section 15 was
intended to extend special treatment to alien women who by marrying a Filipino
irrevocably deliver themselves, their possessions, their fate and fortunes and all that
marriage implies to a citizen of this country, "for better or for worse." Perhaps there can
and will be cases wherein the personal conveniences and benefits arising from
Philippine citizenship may motivate such marriage, but must the minority, as such cases
are bound to be, serve as the criterion for the construction of law? Moreover, it is not
farfetched to believe that in joining a Filipino family the alien woman is somehow
disposed to assimilate the customs, beliefs and ideals of Filipinos among whom, after all,
she has to live and associate, but surely, no one should expect her to do so even before
marriage. Besides, it may be considered that in reality the extension of citizenship to her
is made by the law not so much for her sake as for the husband. Indeed, We find the
following observations anent the national policy rationalization in Choy King Tee and Ly
Giok Ha (the second) to be quite persuasive:
We respectfully suggest that this articulation of the national policy begs
the question. The avowed policy of "selectives admission" more
particularly refers to a case where citizenship is sought to be acquired in
a judicial proceeding for naturalization. In such a case, the courts should
no doubt apply the national policy of selecting only those who are worthy
to become citizens. There is here a choice between accepting or rejecting
the application for citizenship. But this policy finds no application in cases
where citizenship is conferred by operation of law. In such cases, the
courts have no choice to accept or reject. If the individual claiming
citizenship by operation of law proves in legal proceedings that he
satisfies the statutory requirements, the courts cannot do otherwise than
to declare that he is a citizen of the Philippines. Thus, an individual who is
able to prove that his father is a Philippine citizen, is a citizen of the
Philippines, "irrespective of his moral character, ideological beliefs, and
identification with Filipino ideals, customs, and traditions." A minor child of
a person naturalized under the law, who is able to prove the fact of his
birth in the Philippines, is likewise a citizen, regardless of whether he has
lucrative income, or he adheres to the principles of the Constitution. So it
is with an alien wife of a Philippine citizen. She is required to prove only
that she may herself be lawfully naturalized, i.e., that she is not one of the
disqualified persons enumerated in Section 4 of the law, in order to
establish her citizenship status as a fact.
A paramount policy consideration of graver import should not be
overlooked in this regard, for it explains and justifies the obviously
deliberate choice of words. It is universally accepted that a State, in
extending the privilege of citizenship to an alien wife of one of its citizens
could have had no other objective than to maintain a unity of
allegiance among the members of the family. (Nelson v. Nelson, 113 Neb.
453, 203 N. W. 640 [1925]; see also "Convention on the Nationality of
Married Women: Historical Background and Commentary." UNITED
NATIONS, Department of Economic and Social Affairs E/CN, 6/399, pp.
8 et seq.). Such objective can only be satisfactorily achieved by allowing
the wife to acquire citizenship derivatively through the husband. This is
particularly true in the Philippines where tradition and law has placed the
husband as head of the family, whose personal status and decisions
govern the life of the family group. Corollary to this, our laws look with
favor on the unity and solidarity of the family (Art. 220, Civil Code), in
whose preservation of State as a vital and enduring interest. (See Art.
216, Civil Code). Thus, it has been said that by tradition in our country,
there is a theoretic identity of person and interest between husband and
wife, and from the nature of the relation, the home of one is that of the
other. (See De la Via v. Villareal, 41 Phil. 13). It should likewise be said
that because of the theoretic identity of husband and wife, and the
primacy of the husband, the nationality of husband should be the
nationality of the wife, and the laws upon one should be the law upon the
other. For as the court, in Hopkins v. Fachant (9th Cir., 1904) 65 C.C.A.,
1, 130 Fed. 839, held: "The status of the wife follows that of the husband,
... and by virtue of her marriage her husband's domicile became her
domicile." And the presumption under Philippine law being that
the property relations of husband and wife are under the regime of
conjugal partnership (Art. 119, Civil Code), the income of one is also that
of the other.
It is, therefore, not congruent with our cherished traditions of family unity
and identity that a husband should be a citizen and the wife an alien, and
that the national treatment of one should be different from that of the
other. Thus, it cannot be that the husband's interests in property and
business activities reserved by law to citizens should not form part of the
conjugal partnership and be denied to the wife, nor that she herself
cannot, through her own efforts but for the benefit of the partnership,
acquire such interests. Only in rare instances should the identity of
husband and wife be refused recognition, and we submit that in respect of
our citizenship laws, it should only be in the instances where the wife
suffers from the disqualifications stated in Section 4 of the Revised
Naturalization Law. (Motion for Reconsideration, Burca vs.
Republic, supra.)
With all these considerations in mind, We are persuaded that it is in the best interest of
all concerned that Section 15 of the Naturalization Law be given effect in the same way
as it was understood and construed when the phrase "who may be lawfully naturalized,"
found in the American statute from which it was borrowed and copied verbatim, was
applied by the American courts and administrative authorities. There is merit, of course
in the view that Philippine statutes should be construed in the light of Philippine
circumstances, and with particular reference to our naturalization laws. We should
realize the disparity in the circumstances between the United States, as the so-called
"melting pot" of peoples from all over the world, and the Philippines as a developing
country whose Constitution is nationalistic almost in the come. Certainly, the writer of
this opinion cannot be the last in rather passionately insisting that our jurisprudence
should speak our own concepts and resort to American authorities, to be sure, entitled to
admiration, and respect, should not be regarded as source of pride and indisputable
authority. Still, We cannot close our eyes to the undeniable fact that the provision of law
now under scrutiny has no local origin and orientation; it is purely American, factually
taken bodily from American law when the Philippines was under the dominating
influence of statutes of the United States Congress. It is indeed a sad commentary on
the work of our own legislature of the late 1920's and 1930's that given the opportunity to
break away from the old American pattern, it took no step in that direction. Indeed, even
after America made it patently clear in the Act of Congress of September 22, 1922 that
alien women marrying Americans cannot be citizens of the United States without
undergoing naturalization proceedings, our legislators still chose to adopt the previous
American law of August 10, 1855 as embodied later in Section 1994 of the Revised
Statutes of 1874, Which, it is worth reiterating, was consistently and uniformly
understood as conferring American citizenship to alien women marrying Americans ipso
facto, without having to submit to any naturalization proceeding and without having to
prove that they possess the special qualifications of residence, moral character,
adherence to American ideals and American constitution, provided they show they did
not suffer from any of the disqualifications enumerated in the American Naturalization
Law. Accordingly, We now hold, all previous decisions of this Court indicating otherwise
notwithstanding, that under Section 15 of Commonwealth Act 473, an alien woman
marrying a Filipino, native born or naturalized, becomes ipso facto a Filipina provided
she is not disqualified to be a citizen of the Philippines under Section 4 of the same law.
Likewise, an alien woman married to an alien who is subsequently naturalized here
follows the Philippine citizenship of her husband the moment he takes his oath as
Filipino citizen, provided that she does not suffer from any of the disqualifications under
said Section 4.
As under any other law rich in benefits for those coming under it, doubtless there will be
instances where unscrupulous persons will attempt to take advantage of this provision of
law by entering into fake and fictitious marriages or mala fide matrimonies. We cannot as
a matter of law hold that just because of these possibilities, the construction of the
provision should be otherwise than as dictated inexorably by more ponderous relevant
considerations, legal, juridical and practical. There can always be means of discovering
such undesirable practice and every case can be dealt with accordingly as it arises.
III.
The third aspect of this case requires necessarily a re-examination of the ruling of this
Court in Burca, supra, regarding the need of judicial naturalization proceedings before
the alien wife of a Filipino may herself be considered or deemed a Filipino. If this case
which, as already noted, was submitted for decision in 1964 yet, had only been decided
earlier, before Go Im Ty, the foregoing discussions would have been sufficient to
dispose of it. The Court could have held that despite her apparent lack of qualifications,
her marriage to her co-petitioner made her a Filipina, without her undergoing any
naturalization proceedings, provided she could sustain, her claim that she is not
disqualified under Section 4 of the law. But as things stand now, with the Burca ruling,
the question We have still to decide is, may she be deemed a Filipina without submitting
to a naturalization proceeding?
Naturally, if Burca is to be followed, it is clear that the answer to this question must
necessarily be in the affirmative. As already stated, however, the decision in Burca has
not yet become final because there is still pending with Us a motion for its
reconsideration which vigorously submits grounds worthy of serious consideration by
this Court. On this account, and for the reasons expounded earlier in this opinion, this
case is as good an occasion as any other to re-examine the issue.
In the said decision, Justice Sanchez held for the Court:
We accordingly rule that: (1) An alien woman married to a Filipino who
desires to be a citizen of this country must apply therefore by filing a
petition for citizenship reciting that she possesses all the qualifications set
forth in Section 2 and none of the disqualifications under Section 4, both
of the Revised Naturalization Law; (2) Said petition must be filed in the
Court of First Instance where petitioner has resided at least one year
immediately preceding the filing of the petition; and (3) Any action by any
other office, agency, board or official, administrative or otherwise other
than the judgment of a competent court of justice certifying or declaring
that an alien wife of the Filipino citizen is also a Filipino citizen, is hereby
declared null and void.
3. We treat the present petition as one for naturalization. Or, in the words
of law, a "petition for citizenship". This is as it should be. Because a
reading of the petition will reveal at once that efforts were made to set
forth therein, and to prove afterwards, compliance with Sections 2 and 4
of the Revised Naturalization law. The trial court itself apparently
considered the petition as one for naturalization, and, in fact, declared
petitioner "a citizen of the Philippines."
In other words, under this holding, in order for an alien woman marrying a Filipino to be
vested with Filipino citizenship, it is not enough that she possesses the qualifications
prescribed by Section 2 of the law and none of the disqualifications enumerated in its
Section 4. Over and above all these, she has to pass thru the whole process of judicial
naturalization apparently from declaration of intention to oathtaking, before she can
become a Filipina. In plain words, her marriage to a Filipino is absolutely of no
consequence to her nationality vis-a-vis that of her Filipino husband; she remains to be
the national of the country to which she owed allegiance before her marriage, and if she
desires to be of one nationality with her husband, she has to wait for the same time that
any other applicant for naturalization needs to complete, the required period of ten year
residence, gain the knowledge of English or Spanish and one of the principle local
languages, make her children study in Filipino schools, acquire real property or engage
in some lawful occupation of her own independently of her husband, file her declaration
of intention and after one year her application for naturalization, with the affidavits of two
credible witnesses of her good moral character and other qualifications, etc., etc., until a
decision is ordered in her favor, after which, she has to undergo the two years of
probation, and only then, but not before she takes her oath as citizen, will she begin to
be considered and deemed to be a citizen of the Philippines. Briefly, she can become a
Filipino citizen only by judicial declaration.
Such being the import of the Court's ruling, and it being quite obvious, on the other hand,
upon a cursory reading of the provision, in question, that the law intends by it to spell out
what is the "effect of naturalization on (the) wife and children" of an alien, as plainly
indicated by its title, and inasmuch as the language of the provision itself clearly conveys
the thought that some effect beneficial to the wife is intended by it, rather than that she is
not in any manner to be benefited thereby, it behooves Us to take a second hard look at
the ruling, if only to see whether or not the Court might have overlooked any relevant
consideration warranting a conclusion different from that complained therein. It is
undeniable that the issue before Us is of grave importance, considering its
consequences upon tens of thousands of persons affected by the ruling therein made by
the Court, and surely, it is for Us to avoid, whenever possible, that Our decision in any
case should produce any adverse effect upon them not contemplated either by the law
or by the national policy it seeks to endorse.
AMICI CURIAE in the Burca case, respectable and impressive by their number and
standing in the Bar and well known for their reputation for intellectual integrity, legal
acumen and incisive and comprehensive resourcefulness in research, truly evident in
the quality of the memorandum they have submitted in said case, invite Our attention to
the impact of the decision therein thus:
The doctrine announced by this Honorable Court for the first time in the
present case -- that an alien woman who marries a Philippine citizen not
only does not ipso facto herself become a citizen but can acquire such
citizenship only through ordinary naturalization proceedings under the
Revised Naturalization Law, and that all administrative actions "certifying
or declaring such woman to be a Philippine citizen are null and void"
has consequences that reach far beyond the confines of the present
case. Considerably more people are affected, and affected deeply, than
simply Mrs. Zita N. Burca. The newspapers report that as many as 15
thousand women married to Philippine citizens are affected by this
decision of the Court. These are women of many and diverse
nationalities, including Chinese, Spanish, British, American, Columbian,
Finnish, Japanese, Chilean, and so on. These members of the
community, some of whom have been married to citizens for two or three
decades, have all exercised rights and privileges reserved by law to
Philippine citizens. They will have acquired, separately or in conjugal
partnership with their citizen husbands, real property, and they will have
sold and transferred such property. Many of these women may be in
professions membership in which is limited to citizens. Others are
doubtless stockholders or officers or employees in companies engaged in
business activities for which a certain percentage of Filipino equity
content is prescribed by law. All these married women are now faced with
possible divestment of personal status and of rights acquired and
privileges exercised in reliance, in complete good faith, upon a reading of
the law that has been accepted as correct for more than two decades by
the very agencies of government charged with the administration of that
law. We must respectfully suggest that judicial doctrines which would visit
such comprehensive and far-reaching injury upon the wives and mothers
of Philippine citizens deserve intensive scrutiny and reexamination.
To be sure, this appeal can be no less than what this Court attended to in Gan Tsitung
vs. Republic, G.R. No. L-20819, Feb. 21, 1967, 19 SCRA 401 when Chief Justice
Concepcion observed:
The Court realizes, however, that the rulings in the Barretto and Delgado
cases although referring to situations the equities of which are not
identical to those obtaining in the case at bar may have contributed
materially to the irregularities committed therein and in other analogous
cases, and induced the parties concerned to believe, although
erroneously, that the procedure followed was valid under the law.
Accordingly, and in view of the implications of the issue under
consideration, the Solicitor General was required, not only, to comment
thereon, but, also, to state "how many cases there are, like the one at bar,
in which certificates of naturalization have been issued after notice of the
filing of the petition for naturalization had been published in the Official
Gazette only once, within the periods (a) from January 28, 1950" (when
the decision in Delgado v. Republic was promulgated) "to May 29, 1957"
(when the Ong Son Cui was decided) "and (b) from May 29, 1957 to
November 29, 1965" (when the decision in the present case was
rendered).
After mature deliberation, and in the light of the reasons adduced in
appellant's motion for reconsideration and in the reply thereto of the
Government, as well as of the data contained in the latter, the Court holds
that the doctrine laid down in the Ong Son Cui case shall apply and affect
the validity of certificates of naturalization issued after, not on or before
May 29, 1957.
Here We are met again by the same problem. In Gan Tsitung, the Court had to
expressly enjoin the prospective application of its construction of the law made in a
previous decision,
24
which had already become final, to serve the ends of justice and
equity. In the case at bar, We do not have to go that far. As already observed, the
decision in Burca still under reconsideration, while the ruling in Lee Suan Ay, Lo San
Tuang, Choy King Tee and others that followed them have at the most become the law
of the case only for the parties thereto. If there are good grounds therefor, all We have to
do now is to reexamine the said rulings and clarify or modify them.
For ready reference, We requote Section 15:
Sec. 15. Effect of the naturalization on wife and children. Any woman
who is now or may hereafter be married to a citizen of the Philippines,
and who might herself be lawfully naturalized shall be deemed a citizen of
the Philippines.
Minor children of persons naturalized under this law who have been born
in the Philippines shall be considered citizens thereof.
A foreign-born minor child, if dwelling in the Philippines at the time of
naturalization of the parents, shall automatically become a Philippine
citizen, and a foreign-born minor child, who is not in the Philippines at the
time the parent is naturalized, shall be deemed a Philippine citizen only
during his minority, unless he begins to reside permanently in the
Philippines when still a minor, in which case, he will continue to be a
Philippine citizen even after becoming of age.
A child born outside of the Philippines after the naturalization of his
parent, shall be considered a Philippine citizen, unless within one year
after reaching the age of majority, he fails to register himself as a
Philippine citizen at the American Consulate of the country where he
resides, and to take the necessary oath of allegiance.
It is obvious that the main subject-matter and purpose of the statute, the Revised
Naturalization Law or Commonwealth Act 473, as a whole, is to establish a complete
procedure for the judicial conferment of the status of citizenship upon qualified aliens.
After laying out such a procedure, remarkable for its elaborate and careful inclusion of all
safeguards against the possibility of any undesirable persons becoming a part of our
citizenry, it carefully but categorically states the consequence of the naturalization of an
alien undergoing such procedure it prescribes upon the members of his immediate
family, his wife and children,
25
and, to that end, in no uncertain terms it ordains that: (a)
all his minor children who have been born in the Philippines shall be "considered
citizens" also; (b) all such minor children, if born outside the Philippines but dwelling here
at the time of such naturalization "shall automatically become" Filipinos also, but those
not born in the Philippines and not in the Philippines at the time of such naturalization,
are also redeemed citizens of this country provided that they shall lose said status if they
transfer their permanent residence to a foreign country before becoming of age; (c) all
such minor children, if born outside of the Philippines after such naturalization, shall also
be "considered" Filipino citizens, unless they expatriate themselves by failing to register
as Filipinos at the Philippine (American) Consulate of the country where they reside and
take the necessary oath of allegiance; and (d) as to the wife, she "shall be deemed a
citizen of the Philippines" if she is one "who might herself be lawfully naturalized".
26

No doubt whatever is entertained, so Burca holds very correctly, as to the point that the
minor children, falling within the conditions of place and time of birth and residence
prescribed in the provision, are vested with Philippine citizenship directly by legislative
fiat or by force of the law itself and without the need for any judicial proceeding or
declaration. (At p. 192, 19 SCRA). Indeed, the language of the provision, is not
susceptible of any other interpretation. But it is claimed that the same expression "shall
be deemed a citizen of the Philippines" in reference to the wife, does not necessarily
connote the vesting of citizenship status upon her by legislative fiat because the
antecedent phrase requiring that she must be one "who might herself be lawfully
naturalized" implies that such status is intended to attach only after she has undergone
the whole process of judicial naturalization required of any person desiring to become a
Filipino. Stated otherwise, the ruling in Burca is that while Section 15 envisages and
intends legislative naturalization as to the minor children, the same section deliberately
treats the wife differently and leaves her out for the ordinary judicial naturalization.
Of course, it goes without saying that it is perfectly within the constitutional authority of
the Congress of the Philippines to confer or vest citizenship status by legislative fiat.
(U.S. v. Wong Kim Ark, 169 U.S. 649, 42 L ed. 890 [1898]; See, 1 Taada & Carreon,
Political Law of the Philippines 152 [1961 ed.]) In fact, it has done so for particular
individuals, like two foreign religious prelates,
27
hence there is no reason it cannot do it
for classes or groups of persons under general conditions applicable to all of the
members of such class or group, like women who marry Filipinos, whether native-born or
naturalized. The issue before Us in this case is whether or not the legislature hag done
so in the disputed provisions of Section 15 of the Naturalization Law. And Dr. Vicente G.
Sinco, one of the most respect authorities on political law in the Philippines
28
observes
in this connection thus: "A special form of naturalization is often observed by some
states with respect to women. Thus in the Philippines a foreign woman married to a
Filipino citizen becomes ipso facto naturalized, if she belongs to any of the classes who
may apply for naturalization under the Philippine Laws." (Sinco, Phil. Political Law 498-
499 [10th ed. 1954]; emphasis ours; this comment is substantially reiterated in the 1962
edition, citing Ly Giok Ha and Ricardo Cua, supra.)
More importantly, it may be stated, at this juncture, that in construing the provision of the
United States statutes from which our law has been copied,
28
a the American courts
have held that the alien wife does not acquire American citizenship by choice but by
operation of law. "In the Revised Statutes the words "and taken" are omitted. The effect
of this statute is that every alien woman who marries a citizen of the United States
becomes perforce a citizen herself, without the formality of naturalization, and regardless
of her wish in that respect." (USCA 8, p. 601 [1970 ed.], citing Mackenzie v. Hare, 1913,
134 P. 713, 165 Cal. 766, affirmed 36 S. Ct. 106, 239 U.S. 299, 60 L ed. 297.) .
We need not recount here again how this provision in question was first enacted as
paragraph (a) of Section 13, by way of an insertion into Act 2927 by Act 3448 of
November 30, 1928, and that, in turn, and paragraph was copied verbatim from Section
1994 of the Revised Statutes of the United States, which by that time already had a long
accepted construction among the courts and administrative authorities in that country
holding that under such provision an alien woman who married a citizen became, upon
such marriage, likewise a citizen by force of law and as a consequence of the marriage
itself without having to undergo any naturalization proceedings, provided that, it could be
shown that at the time of such marriage, she was not disqualified to be naturalized under
the laws then in force. To repeat the discussion We already made of these undeniable
facts would unnecessarily make this decision doubly extensive. The only point which
might be reiterated for emphasis at this juncture is that whereas in the United States, the
American Congress, recognizing the construction, of Section 1994 of the Revised
Statutes to be as stated above, and finding it desirable to avoid the effects of such
construction, approved the Act of September 22, 1922 Explicitly requiring all such alien
wives to submit to judicial naturalization albeit under more liberal terms than those for
other applicants for citizenship, on the other hand, the Philippine Legislature, instead of
following suit and adopting such a requirement, enacted Act 3448 on November 30,
1928 which copied verbatim the aforementioned Section 1994 of the Revised Statutes,
thereby indicating its preference to adopt the latter law and its settled construction rather
than the reform introduced by the Act of 1922.
Obviously, these considerations leave Us no choice. Much as this Court may feel that as
the United States herself has evidently found it to be an improvement of her national
policy vis-a-vis the alien wives of her citizens to discontinue their automatic incorporation
into the body of her citizenry without passing through the judicial scrutiny of a
naturalization proceeding, as it used to be before 1922, it seems but proper, without
evidencing any bit of colonial mentality, that as a developing country, the Philippines
adopt a similar policy, unfortunately, the manner in which our own legislature has
enacted our laws on the subject, as recounted above, provides no basis for Us to
construe said law along the line of the 1922 modification of the American Law. For Us to
do so would be to indulge in judicial legislation which it is not institutionally permissible
for this Court to do. Worse, this court would be going precisely against the grain of the
implicit Legislative intent.
There is at least one decision of this Court before Burca wherein it seems it is quite
clearly implied that this Court is of the view that under Section 16 of the Naturalization
Law, the widow and children of an applicant for naturalization who dies during the
proceedings do not have to submit themselves to another naturalization proceeding in
order to avail of the benefits of the proceedings involving the husband. Section 16
provides: .
SEC. 16. Right of widow and children of petitioners who have died. In
case a petitioner should die before the final decision has been rendered,
his widow and minor children may continue the proceedings. The decision
rendered in the case shall, so far as the widow and minor children are
concerned, produce the same legal effect as if it had been rendered
during the life of the petitioner.
In Tan Lin v. Republic, G.R. No. L-13706, May 31, 1961, 2 SCRA 383, this Court held:
Invoking the above provisions in their favor, petitioners-appellants argue
(1) that under said Sec. 16, the widow and minor children are allowed to
continue the same proceedings and are not substituted for the original
petitioner; (2) that the qualifications of the original petitioner remain to be
in issue and not those of the widow and minor children, and (3) that said
Section 16 applies whether the petitioner dies before or after final
decision is rendered, but before the judgment becomes executory.
There is force in the first and second arguments. Even the second
sentence of said Section 16 contemplate the fact that the qualifications of
the original petitioner remains the subject of inquiry, for the simple reason
that it states that "The decision rendered in the case shall, so far as the
widow and minor children are concerned, produce the same legal effect
as if it had been rendered during the life of the petitioner." This
phraseology emphasizes the intent of the law to continue the proceedings
with the deceased as the theoretical petitioner, for if it were otherwise, it
would have been unnecessary to consider the decision rendered, as far
as it affected the widow and the minor children.
xxx xxx xxx
The Chua Chian case (supra), cited by the appellee, declared that a dead
person can not be bound to do things stipulated in the oath of allegiance,
because an oath is a personal matter. Therein, the widow prayed that she
be allowed to take the oath of allegiance for the deceased. In the case at
bar, petitioner Tan Lin merely asked that she be allowed to take the oath
of allegiance and the proper certificate of naturalization, once the
naturalization proceedings of her deceased husband, shall have been
completed, not on behalf of the deceased but on her own behalf and of
her children, as recipients of the benefits of his naturalization. In other
words, the herein petitioner proposed to take the oath of allegiance, as a
citizen of the Philippines, by virtue of the legal provision that "any woman
who is now or may hereafter be married to a citizen of the Philippines and
who might herself be lawfully naturalized shall be deemed a citizen of the
Philippines. Minor children of persons naturalized under this law who
have been born in the Philippines shall be considered citizens thereof."
(Section 15, Commonwealth Act No. 473). The decision granting
citizenship to Lee Pa and the record of the case at bar, do not show that
the petitioning widow could not have been lawfully naturalized, at the time
Lee Pa filed his petition, apart from the fact that his 9 minor children were
all born in the Philippines. (Decision, In the Matter of the Petition of Lee
Pa to be admitted a citizen of the Philippines, Civil Case No. 16287, CFI,
Manila, Annex A; Record on Appeal, pp. 8-11). The reference to Chua
Chian case is, therefore, premature.
Section 16, as may be seen, is a parallel provision to Section 15. If the widow of an
applicant for naturalization as Filipino, who dies during the proceedings, is not required
to go through a naturalization preceeding, in order to be considered as a Filipino citizen
hereof, it should follow that the wife of a living Filipino cannot be denied the same
privilege. This is plain common sense and there is absolutely no evidence that the
Legislature intended to treat them differently.
Additionally, We have carefully considered the arguments advanced in the motion for
reconsideration in Burca, and We see no reason to disagree with the following views of
counsel: .
It is obvious that the provision itself is a legislative declaration of who may
be considered citizens of the Philippines. It is a proposition too plain to be
disputed that Congress has the power not only to prescribe the mode or
manner under which foreigners may acquire citizenship, but also the very
power of conferring citizenship by legislative fiat. (U. S. v. Wong Kim Ark,
169 U. S. 649, 42 L. Ed. 890 [1898] ; see 1 Taada and Carreon, Political
Law of the Philippines 152 [1961 ed.]) The Constitution itself recognizes
as Philippine citizens "Those who are naturalized in accordance with law"
(Section 1[5], Article IV, Philippine Constitution). Citizens by
naturalization, under this provision, include not only those who are
naturalized in accordance with legal proceedings for the acquisition of
citizenship, but also those who acquire citizenship by "derivative
naturalization" or by operation of law, as, for example, the "naturalization"
of an alien wife through the naturalization of her husband, or by marriage
of an alien woman to a citizen. (See Taada & Carreon, op. cit. supra, at
152, 172; Velayo, Philippine Citizenship and Naturalization 2 [1965 ed.]; 1
Paras, Civil Code 186 [1967 ed.]; see also 3 Hackworth, Digest of
International Law 3).
The phrase "shall be deemed a citizen of the Philippines" found in Section
14 of the Revised Naturalization Law clearly manifests an intent to confer
citizenship. Construing a similar phrase found in the old U.S.
naturalization law (Revised Statutes, 1994), American courts have
uniformly taken it to mean that upon her marriage, the alien woman
becomes by operation of law a citizen of the United States as fully as if
she had complied with all the provisions of the statutes upon the subject
of naturalization. (U.S. v. Keller, 13 F. 82; U.S. Opinions of the US
Attorney General dated June 4, 1874 [14 Op. 4021, July 20, 1909 [27 Op.
507], December 1, 1910 [28 Op. 508], Jan. 15, 1920 [32 Op. 2091 and
Jan. 12, 1923 [23 398]).
The phrase "shall be deemed a citizen," in Section 1994
Revised Statute (U.S. Comp. Stat. 1091, 1268) or as it was
in the Act of 1855 (10 Stat. at L. 604, Chapt. 71, Sec. 2),
"shall be deemed and taken to be a citizens" while it may
imply that the person to whom it relates has not actually
become a citizen by the ordinary means or in the usual
way, as by the judgment of a competent court, upon a
proper application and proof, yet it does not follow that
such person is on that account practically any the less a
citizen. The word "deemed" is the equivalent of
"considered" or "judged," and therefore, whatever an Act of
Congress requires to be "deemed" or "taken" as true of
any person or thing must, in law, be considered as having
been duly adjudged or established concerning such person
or thing, and have force and effect accordingly. When,
therefore, Congress declares that an alien woman shall,
under certain circumstances, be "deemed" an American
citizen, the effect when the contingency occurs, is
equivalent to her being naturalized directly by an Act of
Congress or in the usual mode thereby prescribed. (Van
Dyne, Citizenship of the United States 239, cited in Velayo,
Philippine Citizenship and Naturalization 146-147 [1965
ed.]; emphasis ours).
That this was likewise the intent of the Philippine legislature when it
enacted the first paragraph of Section 15 of the Revised Naturalization
Law is shown by a textual analysis of the entire statutory provision. In its
entirety, Section 15 reads:
(See supra).
The phrases "shall be deemed" "shall be considered," and "shall
automatically become" as used in the above provision, are undoubtedly
synonymous. The leading idea or purpose of the provision was to confer
Philippine citizenship by operation of law upon certain classes of aliens as
a legal consequence of their relationship, by blood or by affinity, to
persons who are already citizens of the Philippines. Whenever the fact of
relationship of the persons enumerated in the provision concurs with
the fact of citizenship of the person to whom they are related, the effect is
for said persons to become ipso facto citizens of the Philippines. "Ipso
facto" as here used does not mean that all alien wives and all minor
children of Philippine citizens, from the mere fact of relationship,
necessarily become such citizens also. Those who do not meet the
statutory requirements do not ipso factobecome citizens; they must apply
for naturalization in order to acquire such status. What it does mean,
however, is that in respect of those persons enumerated in Section 15,
the relationship to a citizen of the Philippines is the operative fact which
establishes the acquisition of Philippine citizenship by them. Necessarily,
it also determines the point of time at which such citizenship commences.
Thus, under the second paragraph of Section 15, a minor child of a
Filipino naturalized under the law, who was born in the Philippines,
becomes ipso facto a citizen of the Philippines from the time the fact of
relationship concurs with the fact of citizenship of his parent, and the time
when the child became a citizen does not depend upon the time that he is
able to prove that he was born in the Philippines. The child may prove
some 25 years after the naturalization of his father that he was born in the
Philippines and should, therefore, be "considered" a citizen thereof. It
does not mean that he became a Philippine citizen only at that later time.
Similarly, an alien woman who married a Philippine citizen may be able to
prove only some 25 years after her marriage (perhaps, because it was
only 25 years after the marriage that her citizenship status became in
question), that she is one who might herself be lawfully naturalized." It is
not reasonable to conclude that she acquired Philippine citizenship only
after she had proven that she "might herself be lawfully naturalized." It is
not reasonable to conclude that she acquired Philippine citizenship only
after she had proven that she "might herself be lawfully naturalized."
The point that bears emphasis in this regard is that in adopting the very
phraseology of the law, the legislature could not have intended that an
alien wife should not be deemed a Philippine citizenunless and until she
proves that she might herself be lawfully naturalized. Far from it, the law
states in plain terms that she shall be deemed a citizen of the Philippines
if she is one "who might herself be lawfully naturalized." The proviso that
she must be one "who might herself be lawfully naturalized" is not a
condition precedent to the vesting or acquisition of citizenship; it is only a
condition or a state of fact necessary to establish her citizenship as
a factum probandum, i.e., as a fact established and proved in evidence.
The word "might," as used in that phrase, precisely replies that at the time
of her marriage to a Philippine citizen, the alien woman "had (the) power"
to become such a citizen herself under the laws then in force. (Owen v.
Kelly, 6 DC 191 [1867], aff'd Kelly v. Owen, 76 US 496, 19 L ed 283
[1869). That she establishes such power long after her marriage does not
alter the fact that at her marriage, she became a citizen.
(This Court has held) that "an alien wife of a Filipino citizen may
not acquire the status of a citizen of the Philippines unless there is
proof that she herself may be lawfully naturalized" (Decision, pp. 3-4).
Under this view, the "acquisition" of citizenship by the alien wife depends
on her having proven her qualifications for citizenship, that is, she is not a
citizen unless and until she proves that she may herself be lawfully
naturalized. It is clear from the words of the law that the proviso does not
mean that she must first prove that she "might herself be lawfully
naturalized" before she shall be deemed (by Congress, not by the courts)
a citizen. Even the "uniform" decisions cited by this Court (at fn. 2) to
support its holding did not rule that the alien wife becomes a citizen
only after she has proven her qualifications for citizenship. What those
decisions ruled was that the alien wives in those cases failed to prove
their qualifications and therefore they failed to establish their claim to
citizenship. Thus in Ly Giok Ha v. Galang, 101 Phil. 459 [l957], the case
was remanded to the lower court for determination of whether petitioner,
whose claim to citizenship by marriage to a Filipino was disputed by the
Government, "might herself be lawfully naturalized," for the purpose of
" proving her alleged change of political status from alien to citizen" (at
464). In Cua v. Board, 101 Phil. 521 [1957], the alien wife who was being
deported, claimed she was a Philippine citizen by marriage to a Filipino.
This Court finding that there was no proof that she was not disqualified
under Section 4 of the Revised Naturalization Law, ruled that: "No such
evidence appearing on record, the claim of assumption of Philippine
citizenship by Tijoe Wu Suan, upon her marriage to petitioner, is
untenable." (at 523) It will be observed that in these decisions cited by
this Court, the lack of proof that the alien wives "might (themselves) be
lawfully naturalized" did not necessarily imply that they did not become, in
truth and in fact, citizens upon their marriage to Filipinos. What the
decisions merely held was that these wives failed to establish their claim
to that status as a proven fact.
In all instances where citizenship is conferred by operation of law, the
time when citizenship is conferred should not be confused with the time
when citizenship status is established as a proven fact. Thus, even a
natural-born citizen of the Philippines, whose citizenship status is put in
issue in any proceeding would be required to prove, for instance, that his
father is a citizen of the Philippines in order to factually establish his claim
to citizenship.* His citizenship status commences from the time of birth,
although his claim thereto is established as a fact only at a subsequent
time. Likewise, an alien woman who might herself be lawfully naturalized
becomes a Philippine citizen at the time of her marriage to a Filipino
husband, not at the time she is able to establish that status as a proven
fact by showing that she might herself be lawfully naturalized. Indeed,
there is no difference between a statutory declaration that a person is
deemed a citizen of the Philippines provided his father is such
citizen from a declaration that an alien woman married to a Filipino citizen
of the Philippines provided she might herself be lawfully naturalized. Both
become citizens by operation of law; the former becomes a citizen ipso
facto upon birth; the later ipso facto upon marriage.
It is true that unless and until the alien wife proves that she might herself
be lawfully naturalized, it cannot be said that she has established her
status as a proven fact. But neither can it be said that on that account,
she did not become a citizen of the Philippines. If her citizenship status is
not questioned in any legal proceeding, she obviously has no obligation to
establish her status as a fact. In such a case, the presumption of law
should be that she is what she claims to be. (U.S. v. Roxas, 5 Phil. 375
[1905]; Hilado v. Assad, 51 O.G. 4527 [1955]). There is a presumption
that a representation shown to have been made is true. (Aetna Indemnity
Co. v. George A. Fuller, Co., 73 A. 738, 74 A. 369, 111 ME. 321).
The question that keeps bouncing back as a consequence of the foregoing views is,
what substitute is them for naturalization proceedings to enable the alien wife of a
Philippine citizen to have the matter of her own citizenship settled and established so
that she may not have to be called upon to prove it everytime she has to perform an act
or enter in to a transaction or business or exercise a right reserved only to Filipinos? The
ready answer to such question is that as the laws of our country, both substantive and
procedural, stand today, there is no such procedure, but such paucity is no proof that the
citizenship under discussion is not vested as of the date of marriage or the husband's
acquisition of citizenship, as the case may be, for the truth is that the same situation
objections even as to native-born Filipinos. Everytime the citizenship of a person is
material or indispensable in a judicial or administrative case, whatever the corresponding
court or administrative authority decides therein as to such citizenship is generally not
considered as res adjudicata, hence it has to be threshed out again and again as the
occasion may demand. This, as We view it, is the sense in which Justice Dizon referred
to "appropriate proceeding" in Brito v. Commissioner, supra. Indeed, only the good
sense and judgment of those subsequently inquiring into the matter may make the effort
easier or simpler for the persons concerned by relying somehow on the antecedent
official findings, even if these are not really binding.
It may not be amiss to suggest, however, that in order to have a good starting point and
so that the most immediate relevant public records may be kept in order, the following
observations in Opinion No. 38, series of 1958, of then Acting Secretary of Justice Jesus
G. Barrera, may be considered as the most appropriate initial step by the interested
parties:
Regarding the steps that should be taken by an alien woman married to a
Filipino citizen in order to acquire Philippine citizenship, the procedure
followed in the Bureau of Immigration is as follows: The alien woman
must file a petition for the cancellation of her alien certificate of
registration alleging, among other things, that she is married to a Filipino,
citizen and that she is not disqualified from acquiring her husband's
citizenship pursuant to section 4 of Commonwealth Act No. 473, as
amended. Upon the filing of said petition, which should be accompanied
or supported by the joint affidavit of the petitioner and her Filipino
husband to the effect that the petitioner does not belong to any of the
groups disqualified by the cited section from becoming naturalized Filipino
citizen (please see attached CEB Form 1), the Bureau of Immigration
conducts an investigation and thereafter promulgates its order or decision
granting or denying the petition.
Once the Commissioner of Immigration cancels the subject's registration as an alien,
there will probably be less difficulty in establishing her Filipino citizenship in any other
proceeding, depending naturally on the substance and vigor of the opposition.
Before closing, it is perhaps best to clarify that this third issue We have passed upon
was not touched by the trial court, but as the point is decisive in this case, the Court
prefers that the matter be settled once and for all now.
IN VIEW OF ALL THE FOREGOING, the judgment of the Court a quo dismissing
appellants' petition for injunction is hereby reversed and the Commissioner of
Immigration and/or his authorized representative is permanently enjoined from causing
the arrest and deportation and the confiscation of the bond of appellant Lau Yuen
Yeung, who is hereby declared to have become a Filipino citizen from and by virtue of
her marriage to her co-appellant Moy Ya Lim Yao alias Edilberto Aguinaldo Lim, a
Filipino citizen on January 25, 1962. No costs.
Dizon, Castro, Teehankee and Villamor, JJ., concur.
DIGEST
FACTS:
Lau Yuen Yeung applied for a passport visa to enter the Philippines as a non-immigrant
on 8 February 1961. In the interrogation made in connection with her application for a
temporary visitor's visa to enter the Philippines, she stated that she was a Chinese
residing at Kowloon, Hongkong, and that she desired to take a pleasure trip to the
Philippines to visit her great grand uncle, Lau Ching Ping. She was permitted to come
into the Philippines on 13 March 1961 for a period of one month.
On the date of her arrival, Asher Y. Cheng filed a bond in the amount of P1,000.00 to
undertake, among others, that said Lau Yuen Yeung would actually depart from the
Philippines on or before the expiration of her authorized period of stay in this country or
within the period as in his discretion the Commissioner of Immigration or his authorized
representative might properly allow.

After repeated extensions, Lau Yuen Yeung was allowed to stay in the Philippines up to
13 February 1962. On 25 January 1962, she contracted marriage with Moy Ya Lim Yao
alias Edilberto Aguinaldo Lim an alleged Filipino citizen. Because of the contemplated
action of the Commissioner of Immigration to confiscate her bond and order her arrest
and immediate deportation, after the expiration of her authorized stay, she brought an
action for injunction. At the hearing which took place one and a half years after her
arrival, it was admitted that Lau Yuen Yeung could not write and speak either English or
Tagalog, except for a few words. She could not name any Filipino neighbor, with a
Filipino name except one, Rosa. She did not know the names of her brothers-in-law, or
sisters-in-law. As a result, the Court of First Instance of Manila denied the prayer
forpreliminary injunction. Moya Lim Yao and Lau Yuen Yeung appealed.

ISSUE:
Whether or not Lau Yuen Yeung ipso facto became a Filipino citizen upon her marriage
to a Filipino citizen.

HELD:
Under Section 15 of Commonwealth Act 473, an alien woman marrying a Filipino, native
born or naturalized, becomes ipso facto a Filipina provided she is not disqualified to be
a citizen of the Philippines under Section 4 of the same law. Likewise, an alien woman
married to an alien who is subsequently naturalized here follows the
Philippine citizenship of her husband the moment he takes his oath as Filipino citizen,
provided that she does not suffer from any of the disqualifications under said Section 4.
Whether the alien woman requires to undergo the naturalization proceedings, Section 15
is a parallel provision to Section 16. Thus, if the widow of an applicant for naturalization
as Filipino, who dies during theproceedings, is not required to go through a
naturalizationproceedings, in order to be considered as a Filipino citizen hereof, it should
follow that the wife of a living Filipino cannot be denied the same privilege.

This is plain common sense and there is absolutely no evidence that the Legislature
intended to treat them differently. As the laws of our country, both substantive and
procedural, stand today, there is no such procedure (a substitute for naturalization
proceeding to enable the alien wife of a Philippine citizen to have the matter of her
own citizenship settled and established so that she may not have to be called upon to
prove it everytime she has to perform an act or enter into a transaction or business or
exercise a right reserved only to Filipinos), but such is no proof that the citizenship is not
vested as of the date of marriage or the husband's acquisition of citizenship, as the case
may be, for the truth is that the situation obtains even as to native-born Filipinos.
Everytime the citizenship of a person is material or indispensible in a judicial or
administrative case. Whatever the corresponding court or administrative authority
decides therein as to such citizenship is generally not considered as res adjudicata,
hence it has to be threshed out again and again as the occasion may demand. Lau Yuen
Yeung, was declared to have become a Filipino citizen from and by virtue of her
marriage to Moy Ya Lim Yao al as Edilberto Aguinaldo Lim, a Filipino citizen of 25
January 1962.

Frivaldo vs. COMELEC (G.R. No. 120295, 28 June 1996)
G.R. No. 120295 June 28, 1996
JUAN G. FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
G.R. No. 123755 June 28, 1996
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.

PANGANIBAN, J .:p
The ultimate question posed before this Court in these twin cases is: Who should be
declared the rightful governor of Sorsogon -
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three
successive elections but who was twice declared by this Court to be disqualified to hold
such office due to his alien citizenship, and who now claims to have re-assumed his lost
Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the
votes cast in favor of Frivaldo should be considered void; that the electorate should be
deemed to have intentionally thrown away their ballots; and that legally, he secured the
most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly
to the position of governor, but who according to prevailing jurisprudence should take
over the said post inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in
the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation,
clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections, and
upholds the superiority of substantial justice over pure legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules of Court
for certiorari and preliminary injunction to review and annul a Resolution of the
respondent Commission on Elections (Comelec), First Division,
1
promulgated on
December 19, 1995
2
and another Resolution of the Comelec en banc promulgated
February 23, 1996
3
denying petitioner's motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of
Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections. On
March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition
4
with the
Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from
seeking or holding any public office or position by reason of not yet being a citizen of the
Philippines", and that his Certificate of Candidacy be canceled. On May 1, 1995, the
Second Division of the Comelec promulgated a Resolution
5
granting the petition with the
following disposition
6
:
WHEREFORE, this Division resolves to GRANT the petition and declares
that respondent is DISQUALIFIED to run for the Office of Governor of
Sorsogon on the ground that he is NOT a citizen of the Philippines.
Accordingly, respondent's certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the
May 8, 1995 elections. So, his candidacy continued and he was voted for during the
elections held on said date. On May 11, 1995, the Comelec en banc
7
affirmed the
aforementioned Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election returns and a
Certificate of Votes
8
dated May 27, 1995 was issued showing the following votes
obtained by the candidates for the position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition
9
praying
for his proclamation as the duly-elected Governor of Sorsogon.
In an order
10
dated June 21, 1995, but promulgated according to the petition "only on
June 29, 1995," the Comelec en banc directed "the Provincial Board of Canvassers of
Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee as the
winning gubernatorial candidate in the province of Sorsogon on June 29, 1995 . . ."
Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimed governor of
Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition,
11
docketed as SPC No.
95-317, praying for the annulment of the June 30, 1995 proclamation of Lee and for his
own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took
his oath of allegiance as a citizen of the Philippines after "his petition for repatriation
under P.D. 725 which he filed with the Special Committee on Naturalization in
September 1994 had been granted". As such, when "the said order (dated June 21,
1995) (of the Comelec) . . . was released and received by Frivaldo on June 30, 1995 at
5:30 o'clock in the evening, there was no more legal impediment to the proclamation (of
Frivaldo) as governor . . ." In the alternative, he averred that pursuant to the two cases
of Labo vs. Comelec,
12
the Vice-Governor - not Lee - should occupy said position of
governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed
Resolution
13
holding that Lee, "not having garnered the highest number of votes," was
not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having
garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under
the provisions of Presidential Decree No. 725 . . . (is) qualified to hold the office of
governor of Sorsogon"; thus:
PREMISES CONSIDERED, the Commission (First Division), therefore
RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of
Raul R. Lee as Governor of Sorsogon is hereby ordered annulled, being
contrary to law, he not having garnered the highest number of votes to
warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the
Provincial Board of Canvassers is directed to immediately reconvene and,
on the basis of the completed canvass, proclaim petitioner Juan G.
Frivaldo as the duly elected Governor of Sorsogon having garnered the
highest number of votes, and he having reacquired his Filipino citizenship
by repatriation on June 30, 1995 under the provisions of Presidential
Decree No. 725 and, thus, qualified to hold the office of Governor of
Sorsogon.
Conformably with Section 260 of the Omnibus Election Code
(B.P. Blg. 881), the Clerk of the Commission is directed to notify His
Excellency the President of the Philippines, and the Secretary of the
Sangguniang Panlalawigan of the Province of Sorsogon of this resolution
immediately upon the due implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration which was denied by the
Comelec en banc in its Resolution
14
promulgated on February 23, 1996. On February
26, 1996, the present petition was filed. Acting on the prayer for a temporary restraining
order, this Court issued on February 27, 1996 a Resolution which inter alia directed the
parties "to maintain the status quo prevailing prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following
propositions"
15
:
First -- The initiatory petition below was so far insufficient in form and
substance to warrant the exercise by the COMELEC of its jurisdiction with
the result that, in effect, the COMELEC acted without jurisdiction in taking
cognizance of and deciding said petition;
Second -- The judicially declared disqualification of respondent was a
continuing condition and rendered him ineligible to run for, to be elected
to and to hold the Office of Governor;
Third -- The alleged repatriation of respondent was neither valid nor is the
effect thereof retroactive as to cure his ineligibility and qualify him to hold
the Office of Governor; and
Fourth -- Correctly read and applied, the Labo Doctrine fully supports the
validity of petitioner's proclamation as duly elected Governor of Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the first two of
which are also at issue in G.R. No. 123755, as follows:
1. Resolution
16
of the Second Division, promulgated on May 1, 1995,
disqualifying Frivaldo from running for governor of Sorsogon in the May 8,
1995 elections "on the ground that he is not a citizen of the Philippines";
2. Resolution
1
7 of the Comelec en banc, promulgated on May 11, 1995;
and
3. Resolution
18
of the Comelec en banc, promulgated also on May 11,
1995 suspending the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755. However,
Frivaldo assails the above-mentioned resolutions on a different ground: that under
Section 78 of the Omnibus Election Code, which is reproduced hereinunder:
Sec. 78. Petition to deny due course or to cancel a certificate of
candidacy. -- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after notice and hearing, not later than
fifteen days before the election. (Emphasis supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not
rendered "within the period allowed by law" i.e., "not later than fifteen days before
the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition
for disqualification within the period of fifteen days prior to the election as provided by
law is a jurisdictional defect which renders the said Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755
since they are intimately related in their factual environment and are identical in the
ultimate question raised, viz., who should occupy the position of governor of the province
of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and required them
thereafter to file simultaneously their respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack
of citizenship as to qualify him to be proclaimed and to hold the Office of Governor? If
not, may it be given retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a
continuing bar to his eligibility to run for, be elected to or hold the governorship of
Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No.
95-317 considering that said petition is not "a pre-proclamation case, an election protest
or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of
existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating
the assailed Resolutions, all of which prevented Frivaldo from assuming the
governorship of Sorsogon, considering that they were not rendered within the period
referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days
before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal
issue in this case. All the other matters raised are secondary to this.
The Local Government Code of 1991
19
expressly requires Philippine citizenship as a
qualification for elective local officials, including that of provincial governor, thus:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of
the Philippines; a registered voter in the barangay, municipality, city, or
province or, in the case of a member of the sangguniang panlalawigan,
sangguniang panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor
or member of the sangguniang panlalawigan, or mayor,
vice mayor or member of the sangguniang panlungsod of
highly urbanized cities must be at least twenty-three (23)
years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court
20
as a non-citizen, it is therefore
incumbent upon him to show that he has reacquired citizenship; in fine, that he
possesses the qualifications prescribed under the said statute (R.A. 7160).
Under Philippine law,
21
citizenship may be reacquired by direct act of Congress, by
naturalization or by repatriation. Frivaldo told this Court in G.R. No. 104654
22
and during
the oral argument in this case that he tried to resume his citizenship by direct act of
Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding
the endorsement of several members of the House of Representatives" due, according
to him, to the "maneuvers of his political rivals." In the same case, his attempt
at naturalization was rejected by this Court because of jurisdictional, substantial and
procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor
by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections,
57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was
judicially declared a non-Filipino and thus twice disqualified from holding and discharging
his popular mandate. Now, he comes to us a third time, with a fresh vote from the people
of Sorsogon and a favorable decision from the Commission on Elections to boot.
Moreover, he now boasts of having successfully passed through the third and last mode
of reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the
Solicitor General himself, who was the prime opposing counsel in the previous cases he
lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause
(in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of
allegiance under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not
disputed. Hence, he insists that he -- not Lee -- should have been proclaimed as the
duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30
p.m. on the said date since, clearly and unquestionably, he garnered the highest number
of votes in the elections and since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which
we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then
President Corazon Aquino exercising legislative powers under the Transitory Provisions
of the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or
Executive Issuances as the same poses a serious and contentious issue of policy which
the present government, in the exercise of prudence and sound discretion, should best
leave to the judgment of the first Congress under the 1987 Constitution", adding that in
her memorandum dated March 27, 1987 to the members of the Special Committee on
Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino
directed them "to cease and desist from undertaking any and all proceedings within your
functional area of responsibility as defined under Letter of Instructions (LOI) No. 270
dated April 11, 1975, as amended."
23

This memorandum dated March 27, 1987
24
cannot by any stretch of legal hermeneutics
be construed as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are
repealed only by subsequent ones
25
and a repeal may be express or implied. It is
obvious that no express repeal was made because then President Aquino in her
memorandum -- based on the copy furnished us by Lee -- did not categorically and/or
impliedly state that P.D. 725 was being repealed or was being rendered without any
legal effect. In fact, she did not even mention it specifically by its number or text. On the
other hand, it is a basic rule of statutory construction that repeals by implication are not
favored. An implied repeal will not be allowed "unless it is convincingly and
unambiguously demonstrated that the two laws are clearly repugnant and patently
inconsistent that they cannot co-exist".
26

The memorandum of then President Aquino cannot even be regarded as a legislative
enactment, for not every pronouncement of the Chief Executive even under the
Transitory Provisions of the 1987 Constitution can nor should be regarded as an
exercise of her law-making powers. At best, it could be treated as an executive policy
addressed to the Special Committee to halt the acceptance and processing of
applications for repatriation pending whatever "judgment the first Congress under the
1987 Constitution" might make. In other words, the former President did not repeal P.D.
725 but left it to the first Congress -- once created -- to deal with the matter. If she had
intended to repeal such law, she should have unequivocally said so instead of referring
the matter to Congress. The fact is she carefully couched her presidential issuance in
terms that clearly indicated the intention of "the present government, in the exercise of
prudence and sound discretion" to leave the matter of repeal to the new Congress. Any
other interpretation of the said Presidential Memorandum, such as is now being
proffered to the Court by Lee, would visit unmitigated violence not only upon statutory
construction but on common sense as well.
Second, Lee also argues that "serious congenital irregularities flawed the repatriation
proceedings," asserting that Frivaldo's application therefor was "filed on June 29, 1995 .
. . (and) was approved in just one day or on June 30, 1995 . . .", which "prevented a
judicious review and evaluation of the merits thereof." Frivaldo counters that he filed his
application for repatriation with the Office of the President in Malacaang Palace on
August 17, 1994. This is confirmed by the Solicitor General. However, the Special
Committee was reactivated only on June 8, 1995, when presumably the said Committee
started processing his application. On June 29, 1995, he filled up and re-submitted the
FORM that the Committee required. Under these circumstances, it could not be said that
there was "indecent haste" in the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on
Naturalization was intended solely for the personal interest of respondent,"
2
7 the
Solicitor General explained during the oral argument on March 19, 1996 that such
allegation is simply baseless as there were many others who applied and were
considered for repatriation, a list of whom was submitted by him to this Court, through a
Manifestation
28
filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of
regularity in the performance of official duty and the presumption of legality in the
repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that
the proceedings were speeded up is by itself not a ground to conclude that such
proceedings were necessarily tainted. After all, the requirements of repatriation under
P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In
fact, P.D.
725
29
itself requires very little of an applicant, and even the rules and regulations to
implement the said decree were left to the Special Committee to promulgate. This is not
unusual since, unlike in naturalization where an alien covets a first-timeentry into
Philippine political life, in repatriation the applicant is a former natural-born Filipino who
is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was
undoubtedly a natural-born citizen who openly and faithfully served his country and his
province prior to his naturalization in the United States -- a naturalization he insists was
made necessary only to escape the iron clutches of a dictatorship he abhorred and could
not in conscience embrace -- and who, after the fall of the dictator and the re-
establishment of democratic space, wasted no time in returning to his country of birth to
offer once more his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were
granted repatriation argues convincingly and conclusively against the existence of
favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of
Frivaldo's repatriation should have been pursued before the Committee itself, and, failing
there, in the Office of the President, pursuant to the doctrine of exhaustion of
administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to be valid,
nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the
citizenship qualification prescribed by the Local Government Code "must exist on the
date of his election, if not when the certificate of candidacy is filed," citing our decision in
G.R. 104654
30
which held that "both the Local Government Code and the Constitution
require that only Philippine citizens can run and be elected to public office." Obviously,
however, this was a mere obiter as the only issue in said case was whether Frivaldo's
naturalization was valid or not -- and NOT the effective date thereof. Since the Court
held his naturalization to be invalid, then the issue of when an aspirant for public office
should be a citizen was NOT resolved at all by the Court. Which question we shall now
directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province . . .
where he intends to be elected;
* a resident therein for at least one (1) year immediately preceding the
day of the election;
* able to read and write Filipino or any other local language or dialect.
* In addition, "candidates for the position of governor . . . must be at least
twenty-three (23) years of age on election day.
From the above, it will be noted that the law does not specify any particular date or time
when the candidate must possess citizenship, unlike that for residence (which must
consist of at least one year's residency immediately preceding the day of election) and
age (at least twenty three years of age on election day).
Philippine citizenship is an indispensable requirement for holding an elective public
office,
31
and the purpose of the citizenship qualification is none other than to ensure that
no alien, i.e., no person owing allegiance to another nation, shall govern our people and
our country or a unit of territory thereof. Now, an official begins to govern or to discharge
his functions only upon his proclamation and on the day the law mandates his term of
office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 -- the very
day
32
the term of office of governor (and other elective officials) began -- he was
therefore already qualified to be proclaimed, to hold such office and to discharge the
functions and responsibilities thereof as of said date. In short, at that time, he was
already qualified to govern his native Sorsogon. This is the liberal interpretation that
should give spirit, life and meaning to our law on qualifications consistent with the
purpose for which such law was enacted. So too, even from a literal (as distinguished
from liberal) construction, it should be noted that Section 39 of the Local Government
Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then
should such qualification be required at the time of election or at the time of the filing of
the certificates of candidacies, as Lee insists? Literally, such qualifications -- unless
otherwise expressly conditioned, as in the case of age and residence -- should thus be
possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is
proclaimed and at the start of his term -- in this case, on June 30, 1995. Paraphrasing
this Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons,
33
if the purpose of the
citizenship requirement is to ensure that our people and country do not end up being
governed by aliens,i.e., persons owing allegiance to another nation, that aim or purpose
would not be thwarted but instead achieved by construing the citizenship qualification as
applying to the time of proclamation of the elected official and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral argument
34
to
the effect that the citizenship qualification should be possessed at the time the candidate
(or for that matter the elected official) registered as a voter. After all, Section 39, apart
from requiring the official to be a citizen, also specifies as another item of qualification,
that he be a "registered voter". And, under the law
35
a "voter" must be a citizen of the
Philippines. So therefore, Frivaldo could not have been a voter -- much less
a validly registered one -- if he was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the requirement. If the
law intended thecitizenship qualification to be possessed prior to election consistent with
the requirement of being a registered voter, then it would not have made citizenship a
SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason
that the law intended CITIZENSHIP to be a qualification distinct from being a VOTER,
even if being a voter presumes being a citizen first. It also stands to reason that the voter
requirement was included as another qualification (aside from "citizenship"), not to
reiterate the need for nationality but to require that the official be registered as a voter IN
THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter
in the barangay, municipality, city, or province . . . where he intends to be elected." It
should be emphasized that the Local Government Code requires an elective official to
be a registered voter. It does not require him to vote actually. Hence, registration -- not
the actual voting -- is the core of this "qualification". In other words, the law's purpose in
this second requirement is to ensure that the prospective official is actually registered in
the area he seeks to govern -- and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed --
that he "was and is a registered voter of Sorsogon, and his registration as a voter has
been sustained as valid by judicial declaration . . . In fact, he cast his vote in his precinct
on May 8, 1995."
36

So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo
has always been a registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then
he voted again in 1995. In fact, his eligibility as a voter was questioned, but the court
dismissed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in
all the previous elections including on May 8, 1995."
3
7
It is thus clear that Frivaldo is a registered voter in the province where he intended to be
elected.
There is yet another reason why the prime issue of citizenship should be reckoned from
the date of proclamation, not necessarily the date of election or date of filing of the
certificate of candidacy. Section 253 of the Omnibus Election Code
38
gives any voter,
presumably including the defeated candidate, the opportunity to question the
ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that
authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility
arising from failure to meet the qualifications enumerated under Sec. 39 of the Local
Government Code. Such remedy of Quo Warranto can be availed of "within ten days
after proclamation" of the winning candidate. Hence, it is only at such time that the issue
of ineligibility may be taken cognizance of by the Commission. And since, at the very
moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already
and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of
the same day, then he should have been the candidate proclaimed as he unquestionably
garnered the highest number of votes in the immediately preceding elections and such
oath had already cured his previous "judicially-declared" alienage. Hence, at such time,
he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the repatriation of
Frivaldo RETROACTED to the date of the filing of his application on August 17, 1994.
It is true that under the Civil Code of the Philippines,
39
"(l)aws shall have no retroactive
effect, unless the contrary is provided." But there are settled exceptions
40
to this general
rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it
CREATES NEW RIGHTS.
According to Tolentino,
41
curative statutes are those which undertake to cure errors and
irregularities, thereby validating judicial or administrative proceedings, acts of public
officers, or private deeds and contracts which otherwise would not produce their
intended consequences by reason of some statutory disability or failure to comply with
some technical requirement. They operate on conditions already existing, and are
necessarily retroactive in operation. Agpalo,
42
on the other hand, says that curative
statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing
obligations . . . (and) are intended to supply defects, abridge superfluities in existing
laws, and curb certain evils. . . . By their very nature, curative statutes are retroactive . . .
(and) reach back to past events to correct errors or irregularities and to render valid and
effective attempted acts which would be otherwise ineffective for the purpose the parties
intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies
or modes of procedure, which do not create new or take away vested rights, but only
operate in furtherance of the remedy or confirmation of such rights, ordinarily do not
come within the legal meaning of a retrospective law, nor within the general rule against
the retrospective operation of statutes.
43

A reading of P.D. 725 immediately shows that it creates a new right, and also provides
for a new remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D.
725 expressly recognizes the plight of "many Filipino women (who) had lost their
Philippine citizenship by marriage to aliens" and who could not, under the existing law
(C.A. No. 63, as amended) avail of repatriation until "after the death of their husbands or
the termination of their marital status" and who could neither be benefitted by the 1973
Constitution's new provision allowing "a Filipino woman who marries an alien to retain
her Philippine citizenship . . ." because "such provision of the new Constitution does not
apply to Filipino women who had married aliens before said constitution took effect."
Thus, P.D. 725 granted a new right to these women -- the right to re-acquire Filipino
citizenship even during their marital coverture, which right did not exist prior to P.D. 725.
On the other hand, said statute also provided a new remedyand a new right in favor of
other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to
re-acquire Philippine citizenship", because prior to the promulgation of P.D. 725 such
former Filipinos would have had to undergo the tedious and cumbersome process of
naturalization, but with the advent of P.D. 725 they could now re-acquire their Philippine
citizenship under the simplified procedure of repatriation.
The Solicitor General
44
argues:
By their very nature, curative statutes are retroactive, (DBP vs. CA, 96
SCRA 342), since they are intended to supply defects, abridge
superfluities in existing laws (Del Castillo vs. Securities and Exchange
Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14
SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C.A. No. 63 wherein married Filipino
women are allowed to repatriate only upon the death of their husbands,
and natural-born Filipinos who lost their citizenship by naturalization and
other causes faced the difficulty of undergoing the rigid procedures of
C.A. 63 for reacquisition of Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned
legal aberrations and thus its provisions are considered essentially
remedial and curative.
In light of the foregoing, and prescinding from the wording of the preamble, it is
unarguable that the legislative intent was precisely to give the statute retroactive
operation. "(A) retrospective operation is given to a statute or amendment where the
intent that it should so operate clearly appears from a consideration of the act as a
whole, or from the terms thereof."
45
It is obvious to the Court that the statute was meant
to "reach back" to those persons, events and transactions not otherwise covered by
prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a
political and civil right equally as important as the freedom of speech, liberty of abode,
the right against unreasonable searches and seizures and other guarantees enshrined in
the Bill of Rights, therefore the legislative intent to give retrospective operation to P.D.
725 must be given the fullest effect possible. "(I)t has been said that a remedial statute
must be so construed as to make it effect the evident purpose for which it was enacted,
so that if the reason of the statute extends to past transactions, as well as to those in the
future, then it will be so applied although the statute does not in terms so direct, unless
to do so would impair some vested right or violate some constitutional guaranty."
46
This
is all the more true of P.D. 725, which did not specify any restrictions on or delimit or
qualify the right of repatriation granted therein.
At this point, a valid question may be raised: How can the retroactivity of P.D. 725
benefit Frivaldo considering that said law was enacted on June 5, 1975, while Frivaldo
lost his Filipino citizenship much later, on January 20, 1983, and applied for repatriation
even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo became an
American citizen, nevertheless, it is not only the law itself (P.D. 725) which is to be given
retroactive effect, but even the repatriation granted under said law to Frivaldo on June
30, 1995 is to be deemed to have retroacted to the date of his application therefor,
August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of
the legislative authority that the law should apply to past events -- i.e., situations and
transactions existing even before the law came into being -- in order to benefit the
greatest number of former Filipinos possible thereby enabling them to enjoy and
exercise the constitutionally guaranteed right of citizenship, and such legislative intention
is to be given the fullest effect and expression, then there is all the more reason to have
the law apply in a retroactive or retrospective manner to situations, events and
transactions subsequent to the passage of such law. That is, the repatriation granted to
Frivaldo on June 30, 1995 can and should be made to take effect as of date of his
application. As earlier mentioned, there is nothing in the law that would bar this or would
show a contrary intention on the part of the legislative authority; and there is no showing
that damage or prejudice to anyone, or anything unjust or injurious would result from
giving retroactivity to his repatriation. Neither has Lee shown that there will result the
impairment of any contractual obligation, disturbance of any vested right or breach of
some constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo deserves a
liberal interpretation of Philippine laws and whatever defects there were in his nationality
should now be deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it would prevent prejudice to
applicants. If P.D. 725 were not to be given retroactive effect, and the Special
Committee decides not to act, i.e., to delay the processing of applications for any
substantial length of time, then the former Filipinos who may be stateless, as Frivaldo --
having already renounced his American citizenship -- was, may be prejudiced for causes
outside their control. This should not be. In case of doubt in the interpretation or
application of laws, it is to be presumed that the law-making body intended right and
justice to prevail.
4
7
And as experience will show, the Special Committee was able to process, act upon and
grant applications for repatriation within relatively short spans of time after the same
were filed.
48
The fact that such interregna were relatively insignificant minimizes the
likelihood of prejudice to the government as a result of giving retroactivity to repatriation.
Besides, to the mind of the Court, direct prejudice to the government is possible only
where a person's repatriation has the effect of wiping out a liability of his to the
government arising in connection with or as a result of his being an alien, and accruing
only during the interregnum between application and approval, a situation that is not
present in the instant case.
And it is but right and just that the mandate of the people, already twice frustrated,
should now prevail. Under the circumstances, there is nothing unjust or iniquitous in
treating Frivaldo's repatriation as having become effective as of the date of his
application, i.e., on August 17, 1994. This being so, all questions about his possession of
the nationality qualification -- whether at the date of proclamation (June 30, 1995) or the
date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20,
1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a registered voter
would also be deemed settled. Inasmuch as he is considered as having been repatriated
-- i.e., his Filipino citizenship restored -- as of August 17, 1994, his previous registration
as a voter is likewise deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American. Would the
retroactivity of his repatriation not effectively give him dual citizenship, which under Sec.
40 of the Local Government Code would disqualify him "from running for any elective
local position?"
49
We answer this question in the negative, as there is cogent reason to
hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and
even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that
he "had long renounced and had long abandoned his American citizenship -- long before
May 8, 1995. At best, Frivaldo was stateless in the interim -- when he abandoned and
renounced his US citizenship but before he was repatriated to his Filipino citizenship."
50

On this point, we quote from the assailed Resolution dated December 19, 1995:
51

By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in 1995.
Every certificate of candidacy contains an oath of allegiance to the
Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before the
elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that
such findings of the Commission are conclusive upon this Court, absent any showing of
capriciousness or arbitrariness or
abuse.
52

The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution
53
of the Comelec Second Division in SPA
No. 95-028 as affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995
"became final and executory after five (5) days or on May 17, 1995, no restraining order
having been issued by this Honorable Court.
54
Hence, before Lee "was proclaimed as
the elected governor on June 30, 1995, there was already a final and executory
judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo
now concedes were legally "correct") declaring Frivaldo an alien have also become final
and executory way before the 1995 elections, and these "judicial pronouncements of his
political status as an American citizen absolutely and for all time disqualified (him) from
running for, and holding any public office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was
rendered in connection with the 1988 elections while that in G.R. No. 104654 was in
connection with the 1992 elections. That he was disqualified for such elections is final
and can no longer be changed. In the words of the respondent Commission (Second
Division) in its assailed Resolution:
55

The records show that the Honorable Supreme Court had decided that
Frivaldo was not a Filipino citizen and thus disqualified for the purpose of
the 1988 and 1992 elections. However, there is no record of any "final
judgment" of the disqualification of Frivaldo as a candidate for the May 8,
1995 elections. What the Commission said in its Order of June 21, 1995
(implemented on June 30, 1995), directing the proclamation of Raul R.
Lee, was that Frivaldo was not a Filipino citizen "having been declared by
the Supreme Court in its Order dated March 25, 1995, not a citizen of the
Philippines." This declaration of the Supreme Court, however, was in
connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a
person's future status with finality. This is because a person may subsequently
reacquire, or for that matter lose, his citizenship under any of the modes recognized by
law for the purpose. Hence, in Lee vs. Commissioner of Immigration,
56
we held:
Everytime the citizenship of a person is material or indispensable in a
judicial or administrative case, whatever the corresponding court or
administrative authority decides therein as to such citizenship is generally
not considered res judicata, hence it has to be threshed out again and
again, as the occasion demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in
SPC No. 95-317 because the only "possible types of proceedings that may be
entertained by the Comelec are a pre-proclamation case, an election protest or a quo
warranto case". Again, Lee reminds us that he was proclaimed on June 30, 1995 but
that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July 6,
1995 -- "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's
"recourse was to file either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution
5
7 has given the Comelec ample
power to "exercise exclusive original jurisdiction over all contests relating to the
elections, returns and qualifications of all elective . . . provincial . . . officials." Instead of
dwelling at length on the various petitions that Comelec, in the exercise of its
constitutional prerogatives, may entertain, suffice it to say that this Court has invariably
recognized the Commission's authority to hear and decide petitions for annulment of
proclamations -- of which SPC No. 95-317 obviously is one.
58
Thus, in Mentang
vs.COMELEC,
59
we ruled:
The petitioner argues that after proclamation and assumption of office, a
pre-proclamation controversy is no longer viable. Indeed, we are aware of
cases holding that pre-proclamation controversies may no longer be
entertained by the COMELEC after the winning candidate has been
proclaimed. (citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs.
COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.)
This rule, however, is premised on an assumption that the proclamation is
no proclamation at all and the proclaimed candidate's assumption of
office cannot deprive the COMELEC of the power to make such
declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883;
Agbayani vs. COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a proclamation must "be done
within ten (10) days following the proclamation." Inasmuch as Frivaldo's petition was
filed only six (6) days after Lee's proclamation, there is no question that the Comelec
correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the following
reasons:
First. To paraphrase this Court in Labo vs. COMELEC,
60
"the fact remains that he (Lee)
was not the choice of the sovereign will," and in Aquino vs. COMELEC,
61
Lee is "a
second placer, . . . just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of this
Court in the aforesaid Labo
62
case, as follows:
The rule would have been different if the electorate fully aware in fact and
in law of a candidate's disqualification so as to bring such awareness
within the realm of notoriety, would nonetheless cast their votes in favor
of the ineligible candidate. In such case, the electorate may be said to
have waived the validity and efficacy of their votes by notoriously
misapplying their franchise or throwing away their votes, in which case,
the eligible candidate obtaining the next higher number of votes may be
deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the instant dispute. It has not been
shown, and none was alleged, that petitioner Labo was notoriously known
as an ineligible candidate, much less the electorate as having known of
such fact. On the contrary, petitioner Labo was even allowed by no less
than the Comelec itself in its resolution dated May 10, 1992 to be voted
for the office of the city Payor as its resolution dated May 9, 1992 denying
due course to petitioner Labo's certificate of candidacy had not yet
become final and subject to the final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this
case because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when
the Comelec's cancellation of his certificate of candidacy was not yet final on election
day as there was in both cases a pending motion for reconsideration, for which reason
Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and
several others can still be voted for in the May 8, 1995 election, as in fact, he was.
Furthermore, there has been no sufficient evidence presented to show that the
electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged
disqualification as to "bring such awareness within the realm of notoriety;" in other
words, that the voters intentionally wasted their ballots knowing that, in spite of their
voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice-
governor -- and not Lee -- should be pro- claimed, since in losing the election, Lee was,
to paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is
the emphatic teaching of Labo:
The rule, therefore, is: the ineligibility of a candidate receiving majority
votes does not entitle the eligible candidate receiving the next highest
number of votes to be declared elected. A minority or defeated candidate
cannot be deemed elected to the office.
Second. As we have earlier declared Frivaldo to have seasonably reacquired his
citizenship and inasmuch as he obtained the highest number of votes in the 1995
elections, he -- not Lee -- should be proclaimed. Hence, Lee's proclamation was patently
erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec
(Second Division) dated May 1, 1995 and the confirmatory en banc Resolution of May
11, 1995 disqualifying him for want of citizenship should be annulled because they were
rendered beyond the fifteen (15) day period prescribed by Section 78, of the Omnibus
Election Code which reads as follows:
Sec. 78. Petition to deny due course or to cancel a certificate of
candidacy. -- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided after notice and hearing, not later than
fifteen days before the election. (Emphasis supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed
superseded by the subsequent ones issued by the Commission (First Division) on
December 19, 1995, affirmed en banc
63
on February 23, 1996; which both upheld his
election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A.
No. 6646 authorizes the Commission to try and decide petitions for disqualifications
even after the elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is
strong. (emphasis supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that
President Aquino's memorandum dated March 27, 1987 should be viewed as a
suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a
suspension or a repeal is a purely academic distinction because the said issuance is not
a statute that can amend or abrogate an existing law.
The existence and subsistence of P.D. 725 were recognized in the first Frivaldo
case;
64
viz., "(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725,
Philippine citizenship maybe reacquired by . . . repatriation". He also contends that by
allowing Frivaldo to register and to remain as a registered voter, the Comelec and in
effect this Court abetted a "mockery" of our two previous judgments declaring him a non-
citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as
discussed earlier, legally cured whatever defects there may have been in his registration
as a voter for the purpose of the 1995 elections. Such retroactivity did not change his
disqualifications in 1988 and 1992, which were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question
the ineligibility of a candidate, citing the Comelec's authority under Section 78 of the
Omnibus Election Code allowing the denial of a certificate of candidacy on the ground of
a false material representation therein as required by Section 74. Citing Loong, he then
states his disagreement with our holding that Section 78 is merely directory. We really
have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295
that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were
invalid because they were issued "not later than fifteen days before the election" as
prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the
Comelec did not commit grave abuse of discretion because "Section 6 of R.A. 6646
authorizes the Comelec to try and decide disqualifications even after the elections." In
spite of his disagreement with us on this point, i.e., that Section 78 "is merely directory",
we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No.
120295". One other point. Loong, as quoted in the dissent, teaches that a petition to
deny due course under Section 78 must be filed within the 25-day period prescribed
therein. The present case however deals with the period during which the Comelec
may decide such petition. And we hold that it may be decided even after thefifteen
day period mentioned in Section 78. Here, we rule that a decision promulgated by the
Comelec even after the elections is valid but Loong held that a petition filed beyond the
25-day period is out of time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual
circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that
such retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even
the second Frivaldo) decision did not directly involve repatriation as a mode of acquiring
citizenship. If we may repeat, there is no question that Frivaldo was not a Filipino for
purposes of determining his qualifications in the 1988 and 1992 elections. That is
settled. But his supervening repatriation has changed his political status -- not in 1988 or
1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to his
repatriation, saying that "informal renunciation or abandonment is not a ground to lose
American citizenship". Since our courts are charged only with the duty of determining
who are Philippine nationals, we cannot rule on the legal question of who are or who are
not Americans. It is basic in international law that a State determines ONLY those who
are its own citizens -- not who are the citizens of other countries.
65
The issue here is: the
Comelec made a finding of fact that Frivaldo was stateless and such finding has not
been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such
finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in
all three previous elections, should be declared winner because "Frivaldo's ineligibility
for being an American was publicly known". First, there is absolutely no empirical
evidence for such "public" knowledge. Second, even if there is, such knowledge can be
true post facto only of the last two previous elections. Third, even the Comelec and now
this Court were/are still deliberating on his nationality before, during and after the 1995
elections. How then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the
qualifications of electivelocal officials, i.e., candidates, and not elected officials, and that
the citizenship qualification [under par. (a) of that section] must be possessed by
candidates, not merely at the commencement of the term, but by election day at the
latest. We see it differently. Section 39, par. (a) thereof speaks of "elective local official"
while par. (b) to (f) refer to "candidates". If the qualifications under par. (a) were intended
to apply to "candidates" and not elected officials, the legislature would have said so,
instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress
had meant that the citizenship qualification should be possessed at election day or prior
thereto, it would have specifically stated such detail, the same way it did in pars. (b) to (f)
far other qualifications of candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation
on the ground, among others, that the law specifically provides that it is only after taking
the oath of allegiance that applicants shall be deemed to have reacquired Philippine
citizenship. We do not question what the provision states. We hold however that the
provision should be understood thus: that after taking the oath of allegiance the applicant
is deemed to have reacquired Philippine citizenship, which reacquisition (or repatriation)
is deemed for all purposes and intents to have retroacted to the date of his application
therefor.
In any event, our "so too" argument regarding the literal meaning of the word "elective"
in reference to Section 39 of the Local Authority Code, as well as regarding Mr. Justice
Davide's thesis that the very wordings of P.D. 725 suggest non-retroactivity, were
already taken up rather extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to
uphold the Rule of Law." We agree -- we must all follow the rule of law. But that is NOT
the issue here. The issue is how should the law be interpreted and applied in this case
so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and perception of
how to interpret and apply laws relating to elections: literal or liberal; the letter or the
spirit, the naked provision or its ultimate purpose; legal syllogism or substantial justice; in
isolation or in the context of social conditions; harshly against or gently in favor of the
voters' obvious choice. In applying election laws, it would be far better to err in favor of
popular sovereignty than to be right in complex but little understood legalisms. Indeed, to
inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute
unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience.
E P I L O G U E
In sum, we rule that the citizenship requirement in the Local Government Code is to be
possessed by an elective official at the latest as of the time he is proclaimed and at the
start of the term of office to which he has been elected. We further hold P.D. No. 725 to
be in full force and effect up to the present, not having been suspended or repealed
expressly nor impliedly at any time, and Frivaldo's repatriation by virtue thereof to have
been properly granted and thus valid and effective. Moreover, by reason of the remedial
or curative nature of the law granting him a new right to resume his political status and
the legislative intent behind it, as well as his unique situation of having been forced to
give up his citizenship and political aspiration as his means of escaping a regime he
abhorred, his repatriation is to be given retroactive effect as of the date of his application
therefor, during the pendency of which he was stateless, he having given up his U.S.
nationality. Thus, in contemplation of law, he possessed the vital requirement of Filipino
citizenship as of the start of the term of office of governor, and should have been
proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted
to August 17, 1994, his registration as a voter of Sorsogon is deemed to have been
validated as of said date as well. The foregoing, of course, are precisely consistent with
our holding that lack of the citizenship requirement is not a continuing disability or
disqualification to run for and hold public office. And once again, we emphasize herein
our previous rulings recognizing the Comelec's authority and jurisdiction to hear and
decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral laws of our
country to give fullest effect to the manifest will of our people,
66
for in case of doubt,
political laws must be interpreted to give life and spirit to the popular mandate freely
expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot
stand in the way of the sovereign will. Consistently, we have held:
. . . (L)aws governing election contests must be liberally construed to the
end that the will of the people in the choice of public officials may not be
defeated by mere technical objections (citations omitted).
6
7
The law and the courts must accord Frivaldo every possible protection, defense and
refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed the
importance of giving effect to the sovereign will in order to ensure the survival of our
democracy. In any action involving the possibility of a reversal of the popular electoral
choice, this Court must exert utmost effort to resolve the issues in a manner that would
give effect to the will of the majority, for it is merely sound public policy to cause elective
offices to be filled by those who are the choice of the majority. To successfully challenge
a winning candidate's qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic
68
to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to the apparent will of the people,
would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote. In this
undertaking, Lee has miserably failed.
In Frivaldo's case. it would have been technically easy to find fault with his cause. The
Court could have refused to grant retroactivity to the effects of his repatriation and hold
him still ineligible due to his failure to show his citizenship at the time he registered as a
voter before the 1995 elections. Or, it could have disputed the factual findings of the
Comelec that he was stateless at the time of repatriation and thus hold his consequent
dual citizenship as a disqualification "from running for any elective local position." But the
real essence of justice does not emanate from quibblings over patchwork legal
technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as
a brick in the ultimate development of the social edifice. Thus, the Court struggled
against and eschewed the easy, legalistic, technical and sometimes harsh anachronisms
of the law in order to evoke substantial justice in the larger social context consistent with
Frivaldo's unique situation approximating venerability in Philippine political life.
Concededly, he sought American citizenship only to escape the clutches of the
dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and
dedication to this country. At the first opportunity, he returned to this land, and sought to
serve his people once more. The people of Sorsogon overwhelmingly voted for him
three times. He took an oath of allegiance to this Republic every time he filed his
certificate of candidacy and during his failed naturalization bid. And let it not be
overlooked, his demonstrated tenacity and sheer determination to re-assume his
nationality of birth despite several legal set-backs speak more loudly, in spirit, in fact and
in truth than any legal technicality, of his consuming intention and burning desire to re-
embrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to
and love of country as well as nobility of purpose cannot be lost on this Court of justice
and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured
of a life of ease and plenty as a citizen of the most powerful country in the world. But he
opted, nay, single-mindedly insisted on returning to and serving once more his struggling
but beloved land of birth. He therefore deserves every liberal interpretation of the law
which can be applied in his favor. And in the final analysis, over and above Frivaldo
himself, the indomitable people of Sorsogon most certainly deserve to be governed by a
leader of their overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of
the respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In
any event, it has no merit.
No costs.
SO ORDERED.
Padilla, Regalado, Romero, Bellosillo, Francisco, Hermosisima, Jr. and Torres, Jr., JJ.,
concur.
Melo, Vitug and Kapunan, JJ., concurs in the result.
Narvasa, C.J. and Mendoza, J., took no part.






Separate Opinions

PUNO, J ., concurring:
I concur with the path-breaking ponencia of Mr. Justice Panganiban which is pro-people
and pierces the myopia of legalism. Upholding the sovereign will of the people which is
the be-all and the end-all of republicanism, it rests on a foundation that will endure time
and its tempest.
The sovereignty of our people is the primary postulate of the 1987 Constitution. For this
reason, it appears as thefirst in our declaration of principles and state policies. Thus,
section 1 of Article II of our fundamental law proclaims that "[t]he Philippines is a
democratic and republican State. Sovereignty resides in the people and all government
authority emanates from them." The same principle served as the bedrock of our 1973
and 1935 Constitutions.
1
It is one of the few principles whose truth has been cherished
by the Americans as self-evident. Section 4, Article IV of the U.S. Constitution makes it a
duty of the Federal government to guarantee to every state a "republican form of
government." With understandable fervor, the American authorities imposed
republicanism as the cornerstone of our 1935 Constitution then being crafted by its
Filipino framers.
2

Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is more
people-oriented. Thus, section 4 of Article II provides as a state policy that the prime
duty of the Government is "to serve and protect the people." Section 1, Article XI also
provides that ". . . public officers . . . must at all times be accountable to the people . . ."
Sections 15 and 1 of Article XIII define the role and rights of people's organizations.
Section 5(2) of Article XVI mandates that "[t]he state shall strengthen the patriotic spirit
and nationalist consciousness of the military, and respect for people's rights in the
performance of their duty." And section 2 of Article XVII provides that "amendments to
this Constitution may likewise be directly proposed by the people through initiative . . ."
All these provisions and more are intended to breathe more life to the sovereignty of our
people.
To be sure, the sovereignty of our people is not a kabalistic principle whose dimensions
are buried in mysticism. Its metes and bounds are familiar to the framers of our
Constitutions. They knew that in its broadest sense, sovereignty is meant to be supreme,
the jus summi imperu, the absolute right to govern.
3
Former Dean Vicente Sinco
4
states
that an essential quality of sovereignty is legal omnipotence, viz.: "Legal theory
establishes certain essential qualities inherent in the nature of sovereignty. The first is
legal omnipotence. This means that the sovereign is legally omnipotent and absolute in
relation to other legal institutions. It has the power to determine exclusively its legal
competence. Its powers are original, not derivative. It is the sole judge of what it should
do at any given time."
5
Citing Barker,
6
he adds that a more amplified definition of
sovereignty is that of "a final power of final legal adjustment of all legal issues." The U.S.
Supreme Court expressed the same thought in the landmark case of Yick Wo
v. Hopkins,
7
where it held that ". . . sovereignty itself is, of course, not subject to law, for
it is the author and source of law; but in our system, while sovereign powers
are delegated to the agencies of government, sovereignty itself remains with the people,
by whom and for whom all government exists and acts."
In our Constitution, the people established a representative democracy as distinguished
from a pure democracy. Justice Isagani Cruz explains:
8

xxx xxx xxx
A republic is a representative government, a government run by and for
the people. It is not a pure democracy where the people govern
themselves directly. The essence of republicanism is representation and
renovation, the selection by the citizenry of a corps of public functionaries
who derive their mandate from the people and act on their behalf, serving
for a limited period only, after which they are replaced or retained, at the
option of their principal. Obviously, a republican government is a
responsible government whose officials hold and discharge their position
as a public trust and shall, according to the Constitution, "at all times be
accountable to the people" they are sworn to serve. The purpose of a
republican government it is almost needless to state, is the promotion of
the common welfare according to the will of the people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty
is indivisible but it need not always be exercised by the people together, all the
time.
9
For this reason, the Constitution and our laws provide when the entire electorate
or only some of them can elect those who make our laws and those who execute our
laws. Thus, the entire electorate votes for our senators but only our district electorates
vote for our congressmen, only our provincial electorates vote for the members of our
provincial boards, only our city electorates vote for our city councilors, and only our
municipal electorates vote for our councilors. Also, the entire electorate votes for our
President and Vice-President but only our provincial electorates vote for our governors,
only our city electorates vote for our mayors, and only our municipal electorates vote for
our mayors. By defining and delimiting the classes of voters who can exercise the
sovereignty of the people in a given election, it cannot be claimed that said sovereignty
has been fragmented.
It is my respectful submission that the issue in the case at bar is not whether the people
of Sorsogon should be given the right to defy the law by allowing Frivaldo to sit as their
governor. Rather, the issue is: whether the will of the voters of Sorsogon clearly
choosing Frivaldo as governor ought to be given a decisive value considering
theuncertainty of the law on when a candidate ought to satisfy the qualification of
citizenship. The uncertainty of law and jurisprudence, both here and abroad, on this legal
issue cannot be denied. In the United States,
10
there are two (2) principal schools of
thought on the matter. One espouses the view that a candidate must possess the
qualifications for office at the time of his election. The other ventures the view that the
candidate should satisfy the qualifications at the time he assumes the powers of the
office. I am unaware of any Philippine decision that has squarely resolved this difficult
question of law. The ponencia of Mr. Justice Panganiban adhered to the second school
of thought while Mr. Justice Davide dissents.
I emphasize the honest-to-goodness difference in interpreting our law on the matter for
this is vital to dispel the fear of Mr. Justice Davide that my opinion can bring about ill
effects to the State. Mr. Justice Davide's fear is based on the assumption that Frivaldo
continues to be disqualified and we cannot allow him to sit as governor without
transgressing the law. I do not concede this assumption for as stressed above, courts
have been sharply divided by this mind boggling issue. Given this schism, I do not see
how we can derogate on the sovereignty of the people by according more weight to the
votes of the people of Sorsogon.
Mr. Justice Davide warns that should the people of Batanes stage a rebellion, we cannot
prosecute them "because of the doctrine of people's sovereignty." With due respect, the
analogy is not appropriate. In his hypothetical case, rebellion is concededly a crime, a
violation of Article 134 of the Revised Penal Code, an offense against the sovereignty of
our people. In the case at bar, it cannot be held with certitude that the people of
Sorsogon violated the law by voting for Frivaldo as governor. Frivaldo's name was in the
list of candidates allowed by COMELEC to run for governor. At that time too, Frivaldo
was taking all steps to establish his Filipino citizenship. And even our jurisprudence has
not settled the issue when a candidate should possess the qualification of citizenship.
Since the meaning of the law is arguable then and now, I cannot imagine how it will be
disastrous for the State if we tilt the balance in the case at bar in favor of the people of
Sorsogon.
In sum, I respectfully submit that the sovereign will of our people should be resolutory of
the case at bar which is one of its kind, unprecedented in our political history. For three
(3) times, Frivaldo ran as governor of the province of Sorsogon. For two (2) times, he
was disqualified on the ground of citizenship. The people of Sorsogon voted for him as
their governor despite his disqualification. The people never waffled in their support for
Frivaldo. In 1988, they gave him a winning margin of 27,000; in 1992, they gave him a
winning spread of 57,000; in 1995, he posted a margin of 20,000. Clearly then, Frivaldo
is the overwhelming choice of the people of Sorsogon. In election cases, we should
strive to align the will of the legislature as expressed in its law with the will of the
sovereign people as expressed in their ballots. For law to reign, it must respect the will of
the people. For in the eloquent prose of Mr. Justice Laurel, ". . . an enfranchised citizen
is a particle of popular sovereignty and is the ultimate source of established
authority."
11
The choice of the governed on who shall be their governor merits the
highest consideration by all agencies of government. In cases where the sovereignty of
the people is at stake, we must not only be legally right but also politically correct. We
cannot fail by making the people succeed.
DAVIDE, JR., J ., dissenting:
After deliberating on the re-formulated issues and the conclusions reached by my
distinguished colleague, Mr. Justice Artemio V. Panganiban, I find myself unable to join
him.
I
I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the ground
that President Corazon C. Aquino's 27 March 1987 memorandum "effectively repealed"
P.D. No. 725. In my view, the said memorandum only suspended the implementation of
the latter decree by divesting the Special Committee on Naturalization of its authority to
further act on grants of citizenship under LOI No. 270, as amended, P.D. No. 836, as
amended; P.D. No. 1379; and "any other related laws, orders, issuances and rules and
regulations." A reading of the last paragraph of the memorandum can lead to no other
conclusion, thus:
In view of the foregoing, you as Chairman and members of the Special
Committee on Naturalization, are hereby directed to cease and desist
from undertaking any and all proceedings within your functional area of
responsibility, as defined in Letter of Instruction No. 270 dated April 11,
1975, as amended, Presidential Decree No. 836 dated December 3,
1975, as amended, and Presidential Decree No. 1379 dated May 17,
1978, relative to the grant of citizenship under the said laws, and any
other related laws, orders, issuances and rules and regulations.
(emphasis supplied)
It is self-evident that the underscored clause can only refer to those related to LOI No.
270, P.D. No. 836, and P.D. No. 1379. There is no doubt in my mind that P.D. No. 725 is
one such "related law" as it involves the reacquisition of Philippine citizenship by
repatriation and designates the Special Committee on Naturalization created under LOI
No. 270 to receive and act on (i.e., approve or disapprove) applications under the said
decree. The power of President Aquino to suspend these issuances by virtue of the 27
March 1987 memorandum is beyond question considering that under Section 6, Article
XVIII of the 1987 Constitution, she exercised legislative power until the Congress
established therein convened on the fourth Monday of July 1987.
I disagree with the view expressed in the ponencia that the memorandum of 27 March
1987 was merely a declaration of "executive policy," and not an exercise of legislative
power. LOI No. 270, P.D. No. 836, P.D. No. 1379 and "any other related laws," such as
P.D. No. 725, were issued by President Ferdinand E. Marcos in the exercise of his
legislative powers -- not executive power. These laws relate to the acquisition (by
naturalization) and reacquisition (by repatriation) of Philippine citizenship, and in light of
Sections 1(4) and 3, Article IV of the 1987 Constitution (naturalization and reacquisition
of Philippine citizenship shall be in accordance with law), it is indubitable that these
subjects are a matter of legislative prerogative. In the same vein, the creation of the
Special Committee on Naturalization by LOI No. 270 and the conferment of the power to
accept and act on applications under P.D. No. 725 are clearly legislative acts.
Accordingly, the revocation of the cease and desist order and
the reactivation or revival of the Committee can be done only by legislative fiat, i.e., by
Congress, since the President had long lost his authority to exercise "legislative power."
Considering that Congress has not seen it fit to do so, the President cannot, in the
exercise of executive power, lift the cease and desist order nor
reactivate/reconstitute/revive the Committee. A multo fortiori, the Committee cannot
validly accept Frivaldo's application for repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is valid, it did not "cure his lack of
citizenship." I depart from the view in the ponencia that Section 39 of the Local
Government Code of 1991 does not specify the time when the citizenship requirement
must be met, and that being the case, then it suffices that citizenship be possessed upon
commencement of the term of the office involved; therefore, since Frivaldo "re-assumed"
his Philippine citizenship at 2:00 p.m. on 30 June 1995 and the term of office of
Governor commenced at 12:00 noon of that day, he had, therefore, complied with the
citizenship requirement.
In the first place, Section 39 actually prescribes the qualifications of elective local
officials and not those of anelected local official. These adjectives are not synonymous,
as the ponencia seems to suggest. The first refers to the nature of the office, which
requires the process of voting by the electorate involved; while the second refers to a
victorious candidate for an elective office. The section unquestionably refers to elective -
- not elected -- local officials. It falls under Title Two entitled ELECTIVE OFFICIALS;
under Chapter 1 entitled Qualifications and Election; and paragraph (a) thereof begins
with the phrase "An elective local official," while paragraphs (b) to (f) thereof speak of
candidates. It reads as follows:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of
the Philippines; a registered voter in the barangay, municipality, city, or
province or, in the case of a member of the sangguniang panlalawigan,
sangguniang panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of
the sangguniang panlalawigan, or mayor, vice mayor or member of the
sangguniang panlungsod of highly urbanized cities must be at least
twenty-three (23) years of age on election day.
(c) Candidates for the position of mayor or vice mayor of independent
component cities, component cities, or municipalities must be at least
twenty-one (21) years of age on election day.
(d) Candidates for the position of member of the sangguniang panlungsod
or sangguniang bayan must be at least eighteen (18) years of age on
election day.
(e) Candidates for the position of punong barangay or member of the
sangguniang barangay must be at least eighteen (18) years of age on
election day.
(f) Candidates for the sangguniang kabataan must be at least fifteen (15)
years of age but not more than twenty-one (21) years of age on election
day (emphasis supplied)
It is thus obvious that Section 39 refers to no other than the qualifications of
candidates for elective local offices and their election. Hence, in no way may the
section be construed to mean that possession of qualifications should be
reckoned from the commencement of the term of office of the elected candidate.
For another, it is not at all true that Section 39 does not specify the time when the
citizenship requirement must be possessed. I submit that the requirement must be
satisfied, or that Philippine citizenship must be possessed, not merely at the
commencement of the term, but at an earlier time, the latest being election day itself.
Section 39 is not at all ambiguous nor uncertain that it meant this to be, as one basic
qualification of an elective local official is that he be "A REGISTERED VOTER IN THE
BARANGAY, MUNICIPALITY, CITY OR PROVINCE . . . WHERE HE INTENDS TO
VOTE." This simply means that he possesses all the qualifications to exercise the right
of suffrage. The fundamental qualification for the exercise of this sovereign right is the
possession of Philippine citizenship. No less than the Constitution makes it the first
qualification, as Section 1, Article V thereof provides:
Sec. 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months immediately
preceding the election. . . . (emphasis supplied)
And Section 117 of the Omnibus Election Code of the Philippines (B.P. Blg. 881)
expressly provides for the qualifications of a voter. Thus:
Sec. 117 Qualifications of a voter. -- Every citizen of the Philippines, not
otherwise disqualified by law, eighteen years of age or over, who shall
have resided in the Philippines for one year and in the city or municipality
wherein he proposes to vote for at least six months immediately
preceding the election, may be a registered voter. (emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's election as Governor in the 1988
and 1992 elections on the ground that for lack of Philippine citizenship -- he being a
naturalized citizen of the United States of America -- he was DISQUALIFIED to be
elected as such and to serve the position (Frivaldo vs. Commission on Elections, 174
SCRA 245 [1989]; Republic of the Philippines vs. De la Rosa, 232 SCRA 785 [1994]).
This disqualification inexorably nullified Frivaldo's registration as a voter and declared it
void ab initio. Our judgments therein were self-executory and no further act, e.g., a
COMELEC order to cancel his registration as a voter or the physical destruction of his
voter's certificate, was necessary for the ineffectivity. Thus, he was never considered a
registered voter for the elections of May 1992, and May 1995, as there is no showing
that Frivaldo registered anew as a voter for the latter elections. Even if he did -- in
obvious defiance of his decreed disqualification -- this did not make him a Filipino citizen,
hence it was equally void ab initio. That he filed his certificate of candidacy for the 1995
elections and was even allowed to vote therein were of no moment. Neither act made
him a Filipino citizen nor nullified the judgments of this Court. On the contrary, said acts
made a mockery of our judgments. For the Court now to validate Frivaldo's registration
as a voter despite the judgments of disqualification is to modify the said judgments by
making their effectivity and enforceability dependent on a COMELEC order cancelling
his registration as a voter, or on the physical destruction of his certificate of registration
as a voter which, of course, was never our intention. Moreover, to sanction Frivaldo's
registration as a voter would be to sacrifice substance in favor of form (the piece of
paper that is the book of voters or list of voters or voter's ID), and abet the COMELEC's
incompetence in failing to cancel Frivaldo's registration and allowing him to vote.
The second reason in the ponencia as to why the citizenship disqualification should be
reckoned not from the date of the election nor the filing of the certificate of candidacy,
but from the date of proclamation, is that the only available remedy to question the
ineligibility (or disloyalty) of a candidate is a petition for quo warranto which, under
Section 253 of the Omnibus Election Code, may be filed only within ten days from
proclamation and not earlier.
I beg to differ.
Clearly, quo warranto is not the sole remedy available to question a candidate's
ineligibility for public office. Section 78 of the Omnibus Election Code allows the filing of
a petition to deny due course to or cancel the certificate of candidacy on the ground that
any material representation contained therein, as required by Section 74, is false.
Section 74, in turn, requires that the person filing the certificate of candidacy must
state, inter alia, that he is eligible for the office, which means that he has all the
qualifications (including, of course, fulfilling the citizenship requirement) and none of the
disqualifications as provided by law. The petition under Section 78 may be filed at any
time not later than 25 days from the filing of the certificate of candidacy. The section
reads in full as follows:
Sec. 78. Petition to deny due course to or cancel a certificate of
candidacy. -- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election.
This remedy was recognized in Loong vs. Commission on Elections (216 SCRA
760, 768 [1992]), where this Court held:
Thus, if a person qualified to file a petition to disqualify a certain
candidate fails to file the petition within the 25-day period Section 78 of
the Code for whatever reasons, the election laws do not leave him
completely helpless as he has another chance to raise the disqualification
of the candidate by filing a petition for quo warranto within ten (10) days
from the proclamation of the results of the election, as provided under
Section 253 of the Code. Section 1, Rule 21 of the Comelec Rules of
Procedure similarly provides that any voter contesting the election of any
regional, provincial or city official on the ground of ineligibility or of
disloyalty to the Republic of the Philippines may file a petition for quo
warranto with the Electoral Contest Adjudication Department. The petition
may be filed within ten (10) days from the date the respondent is
proclaimed (Section 2).
Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the filing of a
petition for disqualification on the ground of failure to possess all the qualifications of a
candidate as provided by the Constitution or by existing laws, "any day after the last day
for filing of certificates of candidacy but not later than the date of proclamation." Sections
1 and 3 thereof provide:
Rule 25 -- Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any candidate who does not
possess all the qualifications of a candidate as provided for by the
Constitution or by existing law or who commits any act declared by law to
be grounds for disqualification may be disqualified from continuing as a
candidate.
xxx xxx xxx
Sec. 3. Period to File Petition. The petition shall be filed any day after the
last day for filing of certificates of candidacy but not later than the date of
proclamation.
While the validity of this rule insofar as it concerns petitions for disqualification on
the ground of lack of all qualifications may be doubtful, its invalidity is not in issue
here.
In this connection, it would seem appropriate to take up the last issue grappled within
the ponencia, viz., is Section 78 of the Omnibus Election Code mandatory? The answer
is provided in Loong.
We also do not find merit in the contention of respondent Commission
that in the light of the provisions of Sections 6 and 7 of Rep. Act No.
6646, a petition to deny due course to or cancel a certificate of candidacy
may be filed even beyond the 25-day period prescribed by Section 78 of
the Code, as long as it is filed within a reasonable time from the discovery
of the ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:
Sec. 6. Effect of Disqualification case. Any candidate who
has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not
be counted. If for any reason a candidate is not declared
by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in
such election, the Court or Commission shall continue with
the trial and hearing of the action, inquiry or protest and,
upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of
his guilt is strong.
Sec. 7. Petition to Deny Due Course To or Cancel a
Certificate of Candidacy. The procedure hereinabove
provided shall apply to petitions to deny due course to or
cancel a certificate of candidacy as provided in Section 78
of Batas Pambansa Blg. 881.
It will be noted that nothing in Sections 6 or 7 modifies or alters the 25-
day period prescribed by Section 78 of the Code for filing the appropriate
action to cancel a certificate of candidacy on account of any false
representation made therein. On the contrary, said Section 7 affirms and
reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects of a disqualification case
which may be based on grounds other than that provided under Section
78 of the Code. But Section 7 of Rep. Act No. 6646 also makes the
effects referred to in Section 6 applicable to disqualification cases filed
under Section 78 of the Code. Nowhere in Sections 6 and 7 of Rep. Act
No. 6646 is mention made of the period within which these
disqualification cases may be filed. This is because there are provisions
in the Code which supply the periods within which a petition relating to
disqualification of candidates must be filed, such as Section 78, already
discussed, and Section 253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that Section 78 is merely directory
because Section 6 of R.A. No. 6646 authorizes the COMELEC to try and decide
petitions for disqualification even after elections. I submit that Section 6 refers to
disqualifications under Sections 12 and 68 of the Omnibus Election Code and
consequently modifies Section 72 thereof. As such, the proper court or the COMELEC
are granted the authority to continue hearing the case after the election, and during the
pendency of the case, suspend the proclamation of the victorious candidate, if the
evidence against him is strong. Sections 12, 68, and 72 of the Code provide:
Sec. 12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense for
which he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he
again becomes disqualified.
xxx xxx xxx
Sec. 68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court
guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a foreign country shall
not be qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for
in the election laws. (Sec. 25, 1971 EC)
Sec. 72. Effects of disqualification cases and priority. The Commission
and the courts shall give priority to cases of disqualification by reason of
violation of this Act to the end that a final decision shall be rendered not
later than seven days before the election in which the disqualification is
sought.
Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted.
Nevertheless, if for any reason, a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation
and assumption to office.
III
Still assuming that the repatriation is valid, I am not persuaded by the arguments in
support of the thesis that Frivaldo's repatriation may be given retroactive effect, as such
goes against the spirit and letter of P.D. No. 725. The spirit adheres to the principle that
acquisition or re-acquisition of Philippine citizenship is not a right, but a mere privilege.
Before the advent of P.D. No. 725, only the following could apply for repatriation: (a)
Army, Navy, or Air Corps deserters; and (b) a woman who lost her citizenship by reason
of her marriage to an alien after the death of her spouse (Section 2[2], C.A. No. 63). P.D.
NO. 725 expanded this to include Filipino women who lost their Philippine citizenship by
marriage to aliens even before the death of their alien husbands, or the termination of
their marital status and to natural-born Filipino citizens who lost their Philippine
citizenship but subsequently desired to reacquire the latter.
Turning now to the letter of the law, P.D. No. 725 expressly provides that repatriation
takes effect only after taking the oath of allegiance to the Republic of the Philippines,
thus:
. . . may reacquire Philippine citizenship . . . by applying with the Special
Committee on Naturalization created by Letter of Instruction No. 270, and,
if their applications are approved, taking the necessary oath of allegiance
to the Republic of the Philippines, AFTER WHICH THEY SHALL BE
DEEMED TO HAVE REACQUIRED PHILIPPINE CITIZENSHIP.
(emphasis and capitalization supplied)
Clearly then, the steps to reacquire Philippine citizenship by repatriation under
the decree are: (1) filing the application; (2) action by the committee; and (3)
taking of the oath of allegiance if the application is approved. It is only UPON
TAKING THE OATH OF ALLEGIANCE that the applicant is deemed ipso jure to
have reacquired Philippine citizenship. If the decree had intended the oath taking
to retroact to the date of the filing of the application, then it should not have
explicitly provided otherwise.
This theory in the ponencia likewise dilutes this Court's pronouncement in the
first Frivaldo case that what reacquisition of Filipino citizenship requires is an act
"formally rejecting [the] adopted state and reaffirming . . . allegiance to the Philippines."
That act meant nothing less than taking of the oath of allegiance to the Republic of the
Philippines. If we now take this revision of doctrine to its logical end, then it would also
mean that if Frivaldo had chosen and reacquired Philippine citizenship by naturalization
or through Congressional action, such would retroact to the filing of the petition for
naturalization or the bill granting him Philippine citizenship. This is a proposition which
both the first and second Frivaldo cases soundly rejected.
The other reason adduced in the ponencia in support of the proposition that P.D. No.
725 can be given retroactive effect is its alleged curative or remedial nature.
Again, I disagree. In the first place, by no stretch of legal hermeneutics may P.D. No.
725 be characterized as a curative or remedial statute:
Curative or remedial statutes are healing acts. They are remedial by
curing defects and adding to the means of enforcing existing obligations.
The rule in regard to curative statutes is that if the thing omitted or failed
to be done, and which constitutes the defect sought to be removed or
made harmless, is something the legislature might have dispensed with
by a previous statute, it may do so by a subsequent one.
Curative statutes are intended to supply defects, abridge superfluities in
existing laws, and curb certain evils. They are intended to enable a
person to carry into effect that which they have designed and intended,
but has failed of expected legal consequence by reason of some statutory
disability or irregularity in their own action. They make valid that which,
before the enactment of the statute, was invalid. (RUBEN E. AGPALO,
Statutory Construction, Second ed. [1990], 270-271, citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through the
marriage of a Filipina to an alien and through naturalization in a foreign country of
natural-born Filipino citizens. It involves then the substantive, nay primordial, right of
citizenship. To those for whom it is intended, it means, in reality, the acquisition of "a
new right," as the ponencia cannot but concede. Therefore, it may not be said to merely
remedy or cure a defect considering that one who has lost Philippine citizenship does
not have the right to reacquire it. As earlier stated, the Constitution provides that
citizenship, once lost, may only be reacquired in the manner provided by law. Moreover,
it has also been observed that:
The idea is implicit from many of the cases that remedial statutes are
statutes relating to procedure and not substantive rights. (Sutherland,
Statutory Construction, Vol. 3, Third ed. [1943], 5704 at 74, citations
omitted).
If we grant for the sake of argument, however, that P.D. No. 725 is curative or remedial
statute, it would be an inexcusable error to give it a retroactive effect since it explicitly
provides the date of its effectivity. Thus:
This Decree shall take effect immediately.
Done in the city of Manila, this 5th day of June, in the year of Our Lord,
nineteen hundred and seventy five.
Nevertheless, if the retroactivity is to relate only to the reacquisition of Philippine
citizenship, then nothing therein supports such theory, for as the decree itself
unequivocally provides, it is only after taking the oath of allegiance to the Republic of the
Philippines that the applicant is DEEMED TO HAVE REACQUIRED PHILIPPINE
CITIZENSHIP.
IV
Assuming yet again, for the sake of argument, that taking the oath of allegiance
retroacted to the date of Frivaldo's application for repatriation, the same could not be
said insofar as it concerned the United States of America, of which he was a citizen. For
under the laws of the United States of America, Frivaldo remained an American national
until he renounced his citizenship and allegiance thereto at 2:00 p.m. on 30 June 1995,
when he took his oath of allegiance to the Republic of the Philippines. Section 401 of the
Nationality Act of 1940 of the United States of America provides that a person who is a
national of the United States of America, whether by birth or naturalization, loses his
nationality by, inter alia, "(b) Taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state" (SIDNEY KANSAS, U.S. Immigration
Exclusion and Deportation and Citizenship of the United States of America, Third ed.,
[1948] 341-342). It follows then that on election day and until the hour of the
commencement of the term for which he was elected - noon of 30 June 1995 as per
Section 43 of the Local Government Code - Frivaldo possessed dual citizenship, viz., (a)
as an American citizen; and (b) as a Filipino citizen through the adoption of the theory
that the effects of his taking the oath of allegiance were retrospective. Hence, he was
disqualified to run for Governor for yet another reason: possession of dual citizenship, in
accordance with Section 40 (d) of the Local Government Code.
V
The assertion in the ponencia that Frivaldo may be considered STATELESS on the
basis of his claim that he "had long renounced and had long abandoned his American
citizenship - long before May 8, 1985" - is untenable, for the following reasons: first, it is
based on Frivaldo's unproven, self-serving allegation; second, informal renunciation or
abandonment is not a ground to lose American citizenship; and third, simply put, never
did the status of a STATELESS person attach to Frivaldo.
Statelessness may be either de jure, which is the status of individuals stripped of their
nationality by their former government without having an opportunity to acquire another;
or de facto, which is the status of individuals possessed of a nationality whose country
does not give them protection outside their own country, and who are commonly, albeit
imprecisely, referred to as refugees (JORGE R. COQUIA, et al., Conflict of Laws Cases,
Materials and Comments, 1995 ed., 290).
Specifically, under Chapter 1, Article 1 of the United Nations Convention Regarding the
Status of Stateless Persons (Philippine Treaty Series, Compiled and Annotated by
Haydee B. Yorac, vol. III, 363), a stateless person is defined as "a person who is not
considered as a national by any State under the operation of its law." However, it has not
been shown that the United States of America ever ceased to consider Frivaldo its
national at any time before he took his oath of allegiance to the Republic of the
Philippines on 30 June 1995.
VI
Finally, I find it in order to also express my view on the concurring opinion of Mr. Justice
Reynato S. Puno. I am absolutely happy to join him in his statement that "[t]he
sovereignty of our people is the primary postulate of the 1987 Constitution" and that the
said Constitution is "more people-oriented," "borne [as it is] out of the 1986 people power
EDSA revolution." I would even go further by saying that this Constitution is pro-
God (Preamble), pro-people (Article II, Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section 1,
Article XII, Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article XVI, Sections
5(2), 6), pro-Filipino (Article XII, Sections 1, 2, 10, 11, 12, 14; Article XIV, Sections 1,
4(2), 13; Article XVI, Section 11), pro-poor (Article II, Sections 9, 10, 18, 21; Article XII,
Sections 1, 2(3); Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11, 13), pro-life (Article II,
Section 12), and pro-family (Article II, Section 12; Article XV).
Nevertheless, I cannot be with him in carrying out the principle of sovereignty beyond
what I perceive to be the reasonable constitutional parameters. The doctrine of people's
sovereignty is founded on the principles of democracy and republicanism and refers
exclusively to the sovereignty of the people of the Philippines. Section 1 of Article II is
quite clear on this, thus:
Sec. 1. The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them.
And the Preamble makes it clear when it solemnly opens it with a clause
"We, the sovereign Filipino people. . ." Thus, this sovereignty is an attribute of the
Filipino people as one people, one body.
That sovereign power of the Filipino people cannot be fragmentized by looking at it as
the supreme authority of the people of any of the political subdivisions to determine their
own destiny; neither can we convert and treat every fragment as the whole. In such a
case, this Court would provide the formula for the division and destruction of the State
and render the Government ineffective and inutile. To illustrate the evil, we may consider
the enforcement of laws or the pursuit of a national policy by the executive branch of the
government, or the execution of a judgment by the courts. If these are opposed by the
overwhelming majority of the people of a certain province, or even a municipality, it
would necessarily follow that the law, national policy, or judgment must not be enforced,
implemented, or executed in the said province or municipality. More concretely, if, for
instance, the vast majority of the people of Batanes rise publicly and take up arms
against the Government for the purpose of removing from the allegiance to the said
Government or its laws, the territory of the Republic of the Philippines or any part
thereof, or any body of land, naval, or other armed forces, or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or prerogatives,
then those who did so -- and which are composed of the vast majority of the people of
Batanes -- a political subdivision -- cannot be prosecuted for or be held guilty of rebellion
in violation of Article 134 of the Revised Penal Code because of the doctrine of peoples'
sovereignty. Indeed, the expansion of the doctrine of sovereignty by investing upon the
people of a mere political subdivision that which the Constitution places in the entire
Filipino people, may be disastrous to the Nation.
So it is in this case if we follow the thesis in the concurring opinion. Thus, simply
because Frivaldo had obtained a margin of 20,000 votes over his closest rival, Lee, i.e.,
a vast majority of the voters of Sorsogon had expressed their sovereign will for the
former, then this Court must yield to that will and must, therefore, allow to be set aside,
for Frivaldo, not just the laws on qualifications of candidates and elective officials and
naturalization and reacquisition of Philippine citizenship, but even the final and binding
decisions of this Court affecting him.
This Court must be the first to uphold the Rule of Law. I vote then to DISMISS G.R. No.
120295 and GRANT G.R. No. 123755.

Separate Opinions
PUNO, J ., concurring:
I concur with the path-breaking ponencia of Mr. Justice Panganiban which is pro-people
and pierces the myopia of legalism. Upholding the sovereign will of the people which is
the be-all and the end-all of republicanism, it rests on a foundation that will endure time
and its tempest.
The sovereignty of our people is the primary postulate of the 1987 Constitution. For this
reason, it appears as thefirst in our declaration of principles and state policies. Thus,
section 1 of Article II of our fundamental law proclaims that "[t]he Philippines is a
democratic and republican State. Sovereignty resides in the people and all government
authority emanates from them." The same principle served as the bedrock of our 1973
and 1935 Constitutions.
1
It is one of the few principles whose truth has been cherished
by the Americans as self-evident. Section 4, Article IV of the U.S. Constitution makes it a
duty of the Federal government to guarantee to every state a "republican form of
government." With understandable fervor, the American authorities imposed
republicanism as the cornerstone of our 1935 Constitution then being crafted by its
Filipino framers.
2

Borne out of the 1986 people power EDSA revolution, our 1987 Constitution is more
people-oriented. Thus, section 4 of Article II provides as a state policy that the prime
duty of the Government is "to serve and protect the people." Section 1, Article XI also
provides that ". . . public officers . . . must at all times be accountable to the people . . ."
Sections 15 and 1 of Article XIII define the role and rights of people's organizations.
Section 5(2) of Article XVI mandates that "[t]he state shall strengthen the patriotic spirit
and nationalist consciousness of the military, and respect for people's rights in the
performance of their duty." And section 2 of Article XVII provides that "amendments to
this Constitution may likewise be directly proposed by the people through initiative . . ."
All these provisions and more are intended to breathe more life to the sovereignty of our
people.
To be sure, the sovereignty of our people is not a kabalistic principle whose dimensions
are buried in mysticism. Its metes and bounds are familiar to the framers of our
Constitutions. They knew that in its broadest sense, sovereignty is meant to be supreme,
the jus summi imperu, the absolute right to govern.
3
Former Dean Vicente Sinco
4
states
that an essential quality of sovereignty is legal omnipotence, viz.: "Legal theory
establishes certain essential qualities inherent in the nature of sovereignty. The first is
legal omnipotence. This means that the sovereign is legally omnipotent and absolute in
relation to other legal institutions. It has the power to determine exclusively its legal
competence. Its powers are original, not derivative. It is the sole judge of what it should
do at any given time."
5
Citing Barker,
6
he adds that a more amplified definition of
sovereignty is that of "a final power of final legal adjustment of all legal issues." The U.S.
Supreme Court expressed the same thought in the landmark case of Yick Wo
v. Hopkins,
7
where it held that ". . . sovereignty itself is, of course, not subject to law, for
it is the author and source of law; but in our system, while sovereign powers
are delegated to the agencies of government, sovereignty itself remains with the people,
by whom and for whom all government exists and acts."
In our Constitution, the people established a representative democracy as distinguished
from a pure democracy. Justice Isagani Cruz explains:
8

xxx xxx xxx
A republic is a representative government, a government run by and for
the people. It is not a pure democracy where the people govern
themselves directly. The essence of republicanism is representation and
renovation, the selection by the citizenry of a corps of public functionaries
who derive their mandate from the people and act on their behalf, serving
for a limited period only, after which they are replaced or retained, at the
option of their principal. Obviously, a republican government is a
responsible government whose officials hold and discharge their position
as a public trust and shall, according to the Constitution, "at all times be
accountable to the people" they are sworn to serve. The purpose of a
republican government it is almost needless to state, is the promotion of
the common welfare according to the will of the people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I agree that sovereignty
is indivisible but it need not always be exercised by the people together, all the
time.
9
For this reason, the Constitution and our laws provide when the entire electorate
or only some of them can elect those who make our laws and those who execute our
laws. Thus, the entire electorate votes for our senators but only our district electorates
vote for our congressmen, only our provincial electorates vote for the members of our
provincial boards, only our city electorates vote for our city councilors, and only our
municipal electorates vote for our councilors. Also, the entire electorate votes for our
President and Vice-President but only our provincial electorates vote for our governors,
only our city electorates vote for our mayors, and only our municipal electorates vote for
our mayors. By defining and delimiting the classes of voters who can exercise the
sovereignty of the people in a given election, it cannot be claimed that said sovereignty
has been fragmented.
It is my respectful submission that the issue in the case at bar is not whether the people
of Sorsogon should be given the right to defy the law by allowing Frivaldo to sit as their
governor. Rather, the issue is: whether the will of the voters of Sorsogon clearly
choosing Frivaldo as governor ought to be given a decisive value considering
theuncertainty of the law on when a candidate ought to satisfy the qualification of
citizenship. The uncertainty of law and jurisprudence, both here and abroad, on this legal
issue cannot be denied. In the United States,
10
there are two (2) principal schools of
thought on the matter. One espouses the view that a candidate must possess the
qualifications for office at the time of his election. The other ventures the view that the
candidate should satisfy the qualifications at the time he assumes the powers of the
office. I am unaware of any Philippine decision that has squarely resolved this difficult
question of law. The ponencia of Mr. Justice Panganiban adhered to the second school
of thought while Mr. Justice Davide dissents.
I emphasize the honest-to-goodness difference in interpreting our law on the matter for
this is vital to dispel the fear of Mr. Justice Davide that my opinion can bring about ill
effects to the State. Mr. Justice Davide's fear is based on the assumption that Frivaldo
continues to be disqualified and we cannot allow him to sit as governor without
transgressing the law. I do not concede this assumption for as stressed above, courts
have been sharply divided by this mind boggling issue. Given this schism, I do not see
how we can derogate on the sovereignty of the people by according more weight to the
votes of the people of Sorsogon.
Mr. Justice Davide warns that should the people of Batanes stage a rebellion, we cannot
prosecute them "because of the doctrine of people's sovereignty." With due respect, the
analogy is not appropriate. In his hypothetical case, rebellion is concededly a crime, a
violation of Article 134 of the Revised Penal Code, an offense against the sovereignty of
our people. In the case at bar, it cannot be held with certitude that the people of
Sorsogon violated the law by voting for Frivaldo as governor. Frivaldo's name was in the
list of candidates allowed by COMELEC to run for governor. At that time too, Frivaldo
was taking all steps to establish his Filipino citizenship. And even our jurisprudence has
not settled the issue when a candidate should possess the qualification of citizenship.
Since the meaning of the law is arguable then and now, I cannot imagine how it will be
disastrous for the State if we tilt the balance in the case at bar in favor of the people of
Sorsogon.
In sum, I respectfully submit that the sovereign will of our people should be resolutory of
the case at bar which is one of its kind, unprecedented in our political history. For three
(3) times, Frivaldo ran as governor of the province of Sorsogon. For two (2) times, he
was disqualified on the ground of citizenship. The people of Sorsogon voted for him as
their governor despite his disqualification. The people never waffled in their support for
Frivaldo. In 1988, they gave him a winning margin of 27,000; in 1992, they gave him a
winning spread of 57,000; in 1995, he posted a margin of 20,000. Clearly then, Frivaldo
is the overwhelming choice of the people of Sorsogon. In election cases, we should
strive to align the will of the legislature as expressed in its law with the will of the
sovereign people as expressed in their ballots. For law to reign, it must respect the will of
the people. For in the eloquent prose of Mr. Justice Laurel, ". . . an enfranchised citizen
is a particle of popular sovereignty and is the ultimate source of established
authority."
11
The choice of the governed on who shall be their governor merits the
highest consideration by all agencies of government. In cases where the sovereignty of
the people is at stake, we must not only be legally right but also politically correct. We
cannot fail by making the people succeed.
DAVIDE, JR., J ., dissenting:
After deliberating on the re-formulated issues and the conclusions reached by my
distinguished colleague, Mr. Justice Artemio V. Panganiban, I find myself unable to join
him.
I
I agree with petitioner Lee that Frivaldo's repatriation was void, but not on the ground
that President Corazon C. Aquino's 27 March 1987 memorandum "effectively repealed"
P.D. No. 725. In my view, the said memorandum only suspended the implementation of
the latter decree by divesting the Special Committee on Naturalization of its authority to
further act on grants of citizenship under LOI No. 270, as amended, P.D. No. 836, as
amended; P.D. No. 1379; and "any other related laws, orders, issuances and rules and
regulations." A reading of the last paragraph of the memorandum can lead to no other
conclusion, thus:
In view of the foregoing, you as Chairman and members of the Special
Committee on Naturalization, are hereby directed to cease and desist
from undertaking any and all proceedings within your functional area of
responsibility, as defined in Letter of Instruction No. 270 dated April 11,
1975, as amended, Presidential Decree No. 836 dated December 3,
1975, as amended, and Presidential Decree No. 1379 dated May 17,
1978, relative to the grant of citizenship under the said laws, and any
other related laws, orders, issuances and rules and regulations.
(emphasis supplied)
It is self-evident that the underscored clause can only refer to those related to LOI No.
270, P.D. No. 836, and P.D. No. 1379. There is no doubt in my mind that P.D. No. 725 is
one such "related law" as it involves the reacquisition of Philippine citizenship by
repatriation and designates the Special Committee on Naturalization created under LOI
No. 270 to receive and act on (i.e., approve or disapprove) applications under the said
decree. The power of President Aquino to suspend these issuances by virtue of the 27
March 1987 memorandum is beyond question considering that under Section 6, Article
XVIII of the 1987 Constitution, she exercised legislative power until the Congress
established therein convened on the fourth Monday of July 1987.
I disagree with the view expressed in the ponencia that the memorandum of 27 March
1987 was merely a declaration of "executive policy," and not an exercise of legislative
power. LOI No. 270, P.D. No. 836, P.D. No. 1379 and "any other related laws," such as
P.D. No. 725, were issued by President Ferdinand E. Marcos in the exercise of his
legislative powers -- not executive power. These laws relate to the acquisition (by
naturalization) and reacquisition (by repatriation) of Philippine citizenship, and in light of
Sections 1(4) and 3, Article IV of the 1987 Constitution (naturalization and reacquisition
of Philippine citizenship shall be in accordance with law), it is indubitable that these
subjects are a matter of legislative prerogative. In the same vein, the creation of the
Special Committee on Naturalization by LOI No. 270 and the conferment of the power to
accept and act on applications under P.D. No. 725 are clearly legislative acts.
Accordingly, the revocation of the cease and desist order and
the reactivation or revival of the Committee can be done only by legislative fiat, i.e., by
Congress, since the President had long lost his authority to exercise "legislative power."
Considering that Congress has not seen it fit to do so, the President cannot, in the
exercise of executive power, lift the cease and desist order nor
reactivate/reconstitute/revive the Committee. A multo fortiori, the Committee cannot
validly accept Frivaldo's application for repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is valid, it did not "cure his lack of
citizenship." I depart from the view in the ponencia that Section 39 of the Local
Government Code of 1991 does not specify the time when the citizenship requirement
must be met, and that being the case, then it suffices that citizenship be possessed upon
commencement of the term of the office involved; therefore, since Frivaldo "re-assumed"
his Philippine citizenship at 2:00 p.m. on 30 June 1995 and the term of office of
Governor commenced at 12:00 noon of that day, he had, therefore, complied with the
citizenship requirement.
In the first place, Section 39 actually prescribes the qualifications of elective local
officials and not those of anelected local official. These adjectives are not synonymous,
as the ponencia seems to suggest. The first refers to the nature of the office, which
requires the process of voting by the electorate involved; while the second refers to a
victorious candidate for an elective office. The section unquestionably refers to elective -
- not elected -- local officials. It falls under Title Two entitled ELECTIVE OFFICIALS;
under Chapter 1 entitled Qualifications and Election; and paragraph (a) thereof begins
with the phrase "An elective local official," while paragraphs (b) to (f) thereof speak of
candidates. It reads as follows:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of
the Philippines; a registered voter in the barangay, municipality, city, or
province or, in the case of a member of the sangguniang panlalawigan,
sangguniang panlungsod, or sangguniang bayan, the district where he
intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.
(b) Candidates for the position of governor, vice governor or member of
the sangguniang panlalawigan, or mayor, vice mayor or member of the
sangguniang panlungsod of highly urbanized cities must be at least
twenty-three (23) years of age on election day.
(c) Candidates for the position of mayor or vice mayor of independent
component cities, component cities, or municipalities must be at least
twenty-one (21) years of age on election day.
(d) Candidates for the position of member of the sangguniang panlungsod
or sangguniang bayan must be at least eighteen (18) years of age on
election day.
(e) Candidates for the position of punong barangay or member of the
sangguniang barangay must be at least eighteen (18) years of age on
election day.
(f) Candidates for the sangguniang kabataan must be at least fifteen (15)
years of age but not more than twenty-one (21) years of age on election
day (emphasis supplied)
It is thus obvious that Section 39 refers to no other than the qualifications of
candidates for elective local offices and their election. Hence, in no way may the
section be construed to mean that possession of qualifications should be
reckoned from the commencement of the term of office of the elected candidate.
For another, it is not at all true that Section 39 does not specify the time when the
citizenship requirement must be possessed. I submit that the requirement must be
satisfied, or that Philippine citizenship must be possessed, not merely at the
commencement of the term, but at an earlier time, the latest being election day itself.
Section 39 is not at all ambiguous nor uncertain that it meant this to be, as one basic
qualification of an elective local official is that he be "A REGISTERED VOTER IN THE
BARANGAY, MUNICIPALITY, CITY OR PROVINCE . . . WHERE HE INTENDS TO
VOTE." This simply means that he possesses all the qualifications to exercise the right
of suffrage. The fundamental qualification for the exercise of this sovereign right is the
possession of Philippine citizenship. No less than the Constitution makes it the first
qualification, as Section 1, Article V thereof provides:
Sec. 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months immediately
preceding the election. . . . (emphasis supplied)
And Section 117 of the Omnibus Election Code of the Philippines (B.P. Blg. 881)
expressly provides for the qualifications of a voter. Thus:
Sec. 117 Qualifications of a voter. -- Every citizen of the Philippines, not
otherwise disqualified by law, eighteen years of age or over, who shall
have resided in the Philippines for one year and in the city or municipality
wherein he proposes to vote for at least six months immediately
preceding the election, may be a registered voter. (emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's election as Governor in the 1988
and 1992 elections on the ground that for lack of Philippine citizenship -- he being a
naturalized citizen of the United States of America -- he was DISQUALIFIED to be
elected as such and to serve the position (Frivaldo vs. Commission on Elections, 174
SCRA 245 [1989]; Republic of the Philippines vs. De la Rosa, 232 SCRA 785 [1994]).
This disqualification inexorably nullified Frivaldo's registration as a voter and declared it
void ab initio. Our judgments therein were self-executory and no further act, e.g., a
COMELEC order to cancel his registration as a voter or the physical destruction of his
voter's certificate, was necessary for the ineffectivity. Thus, he was never considered a
registered voter for the elections of May 1992, and May 1995, as there is no showing
that Frivaldo registered anew as a voter for the latter elections. Even if he did -- in
obvious defiance of his decreed disqualification -- this did not make him a Filipino citizen,
hence it was equally void ab initio. That he filed his certificate of candidacy for the 1995
elections and was even allowed to vote therein were of no moment. Neither act made
him a Filipino citizen nor nullified the judgments of this Court. On the contrary, said acts
made a mockery of our judgments. For the Court now to validate Frivaldo's registration
as a voter despite the judgments of disqualification is to modify the said judgments by
making their effectivity and enforceability dependent on a COMELEC order cancelling
his registration as a voter, or on the physical destruction of his certificate of registration
as a voter which, of course, was never our intention. Moreover, to sanction Frivaldo's
registration as a voter would be to sacrifice substance in favor of form (the piece of
paper that is the book of voters or list of voters or voter's ID), and abet the COMELEC's
incompetence in failing to cancel Frivaldo's registration and allowing him to vote.
The second reason in the ponencia as to why the citizenship disqualification should be
reckoned not from the date of the election nor the filing of the certificate of candidacy,
but from the date of proclamation, is that the only available remedy to question the
ineligibility (or disloyalty) of a candidate is a petition for quo warranto which, under
Section 253 of the Omnibus Election Code, may be filed only within ten days from
proclamation and not earlier.
I beg to differ.
Clearly, quo warranto is not the sole remedy available to question a candidate's
ineligibility for public office. Section 78 of the Omnibus Election Code allows the filing of
a petition to deny due course to or cancel the certificate of candidacy on the ground that
any material representation contained therein, as required by Section 74, is false.
Section 74, in turn, requires that the person filing the certificate of candidacy must
state, inter alia, that he is eligible for the office, which means that he has all the
qualifications (including, of course, fulfilling the citizenship requirement) and none of the
disqualifications as provided by law. The petition under Section 78 may be filed at any
time not later than 25 days from the filing of the certificate of candidacy. The section
reads in full as follows:
Sec. 78. Petition to deny due course to or cancel a certificate of
candidacy. -- A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election.
This remedy was recognized in Loong vs. Commission on Elections (216 SCRA
760, 768 [1992]), where this Court held:
Thus, if a person qualified to file a petition to disqualify a certain
candidate fails to file the petition within the 25-day period Section 78 of
the Code for whatever reasons, the election laws do not leave him
completely helpless as he has another chance to raise the disqualification
of the candidate by filing a petition for quo warranto within ten (10) days
from the proclamation of the results of the election, as provided under
Section 253 of the Code. Section 1, Rule 21 of the Comelec Rules of
Procedure similarly provides that any voter contesting the election of any
regional, provincial or city official on the ground of ineligibility or of
disloyalty to the Republic of the Philippines may file a petition for quo
warranto with the Electoral Contest Adjudication Department. The petition
may be filed within ten (10) days from the date the respondent is
proclaimed (Section 2).
Likewise, Rule 25 of the Revised COMELEC Rules of Procedure allows the filing of a
petition for disqualification on the ground of failure to possess all the qualifications of a
candidate as provided by the Constitution or by existing laws, "any day after the last day
for filing of certificates of candidacy but not later than the date of proclamation." Sections
1 and 3 thereof provide:
Rule 25 -- Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any candidate who does not
possess all the qualifications of a candidate as provided for by the
Constitution or by existing law or who commits any act declared by law to
be grounds for disqualification may be disqualified from continuing as a
candidate.
xxx xxx xxx
Sec. 3. Period to File Petition. The petition shall be filed any day after the
last day for filing of certificates of candidacy but not later than the date of
proclamation.
While the validity of this rule insofar as it concerns petitions for disqualification on
the ground of lack of all qualifications may be doubtful, its invalidity is not in issue
here.
In this connection, it would seem appropriate to take up the last issue grappled within
the ponencia, viz., is Section 78 of the Omnibus Election Code mandatory? The answer
is provided in Loong.
We also do not find merit in the contention of respondent Commission
that in the light of the provisions of Sections 6 and 7 of Rep. Act No.
6646, a petition to deny due course to or cancel a certificate of candidacy
may be filed even beyond the 25-day period prescribed by Section 78 of
the Code, as long as it is filed within a reasonable time from the discovery
of the ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:
Sec. 6. Effect of Disqualification case. Any candidate who
has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not
be counted. If for any reason a candidate is not declared
by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in
such election, the Court or Commission shall continue with
the trial and hearing of the action, inquiry or protest and,
upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of
his guilt is strong.
Sec. 7. Petition to Deny Due Course To or Cancel a
Certificate of Candidacy. The procedure hereinabove
provided shall apply to petitions to deny due course to or
cancel a certificate of candidacy as provided in Section 78
of Batas Pambansa Blg. 881.
It will be noted that nothing in Sections 6 or 7 modifies or alters the 25-
day period prescribed by Section 78 of the Code for filing the appropriate
action to cancel a certificate of candidacy on account of any false
representation made therein. On the contrary, said Section 7 affirms and
reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects of a disqualification case
which may be based on grounds other than that provided under Section
78 of the Code. But Section 7 of Rep. Act No. 6646 also makes the
effects referred to in Section 6 applicable to disqualification cases filed
under Section 78 of the Code. Nowhere in Sections 6 and 7 of Rep. Act
No. 6646 is mention made of the period within which these
disqualification cases may be filed. This is because there are provisions
in the Code which supply the periods within which a petition relating to
disqualification of candidates must be filed, such as Section 78, already
discussed, and Section 253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that Section 78 is merely directory
because Section 6 of R.A. No. 6646 authorizes the COMELEC to try and decide
petitions for disqualification even after elections. I submit that Section 6 refers to
disqualifications under Sections 12 and 68 of the Omnibus Election Code and
consequently modifies Section 72 thereof. As such, the proper court or the COMELEC
are granted the authority to continue hearing the case after the election, and during the
pendency of the case, suspend the proclamation of the victorious candidate, if the
evidence against him is strong. Sections 12, 68, and 72 of the Code provide:
Sec. 12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense for
which he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he
again becomes disqualified.
xxx xxx xxx
Sec. 68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court
guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a foreign country shall
not be qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for
in the election laws. (Sec. 25, 1971 EC)
Sec. 72. Effects of disqualification cases and priority. The Commission
and the courts shall give priority to cases of disqualification by reason of
violation of this Act to the end that a final decision shall be rendered not
later than seven days before the election in which the disqualification is
sought.
Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted.
Nevertheless, if for any reason, a candidate is not declared by final
judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation
and assumption to office.
III
Still assuming that the repatriation is valid, I am not persuaded by the arguments in
support of the thesis that Frivaldo's repatriation may be given retroactive effect, as such
goes against the spirit and letter of P.D. No. 725. The spirit adheres to the principle that
acquisition or re-acquisition of Philippine citizenship is not a right, but a mere privilege.
Before the advent of P.D. No. 725, only the following could apply for repatriation: (a)
Army, Navy, or Air Corps deserters; and (b) a woman who lost her citizenship by reason
of her marriage to an alien after the death of her spouse (Section 2[2], C.A. No. 63). P.D.
NO. 725 expanded this to include Filipino women who lost their Philippine citizenship by
marriage to aliens even before the death of their alien husbands, or the termination of
their marital status and to natural-born Filipino citizens who lost their Philippine
citizenship but subsequently desired to reacquire the latter.
Turning now to the letter of the law, P.D. No. 725 expressly provides that repatriation
takes effect only after taking the oath of allegiance to the Republic of the Philippines,
thus:
. . . may reacquire Philippine citizenship . . . by applying with the Special
Committee on Naturalization created by Letter of Instruction No. 270, and,
if their applications are approved, taking the necessary oath of allegiance
to the Republic of the Philippines, AFTER WHICH THEY SHALL BE
DEEMED TO HAVE REACQUIRED PHILIPPINE CITIZENSHIP.
(emphasis and capitalization supplied)
Clearly then, the steps to reacquire Philippine citizenship by repatriation under
the decree are: (1) filing the application; (2) action by the committee; and (3)
taking of the oath of allegiance if the application is approved. It is only UPON
TAKING THE OATH OF ALLEGIANCE that the applicant is deemed ipso jure to
have reacquired Philippine citizenship. If the decree had intended the oath taking
to retroact to the date of the filing of the application, then it should not have
explicitly provided otherwise.
This theory in the ponencia likewise dilutes this Court's pronouncement in the
first Frivaldo case that what reacquisition of Filipino citizenship requires is an act
"formally rejecting [the] adopted state and reaffirming . . . allegiance to the Philippines."
That act meant nothing less than taking of the oath of allegiance to the Republic of the
Philippines. If we now take this revision of doctrine to its logical end, then it would also
mean that if Frivaldo had chosen and reacquired Philippine citizenship by naturalization
or through Congressional action, such would retroact to the filing of the petition for
naturalization or the bill granting him Philippine citizenship. This is a proposition which
both the first and second Frivaldo cases soundly rejected.
The other reason adduced in the ponencia in support of the proposition that P.D. No.
725 can be given retroactive effect is its alleged curative or remedial nature.
Again, I disagree. In the first place, by no stretch of legal hermeneutics may P.D. No.
725 be characterized as a curative or remedial statute:
Curative or remedial statutes are healing acts. They are remedial by
curing defects and adding to the means of enforcing existing obligations.
The rule in regard to curative statutes is that if the thing omitted or failed
to be done, and which constitutes the defect sought to be removed or
made harmless, is something the legislature might have dispensed with
by a previous statute, it may do so by a subsequent one.
Curative statutes are intended to supply defects, abridge superfluities in
existing laws, and curb certain evils. They are intended to enable a
person to carry into effect that which they have designed and intended,
but has failed of expected legal consequence by reason of some statutory
disability or irregularity in their own action. They make valid that which,
before the enactment of the statute, was invalid. (RUBEN E. AGPALO,
Statutory Construction, Second ed. [1990], 270-271, citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine citizenship lost through the
marriage of a Filipina to an alien and through naturalization in a foreign country of
natural-born Filipino citizens. It involves then the substantive, nay primordial, right of
citizenship. To those for whom it is intended, it means, in reality, the acquisition of "a
new right," as the ponencia cannot but concede. Therefore, it may not be said to merely
remedy or cure a defect considering that one who has lost Philippine citizenship does
not have the right to reacquire it. As earlier stated, the Constitution provides that
citizenship, once lost, may only be reacquired in the manner provided by law. Moreover,
it has also been observed that:
The idea is implicit from many of the cases that remedial statutes are
statutes relating to procedure and not substantive rights. (Sutherland,
Statutory Construction, Vol. 3, Third ed. [1943], 5704 at 74, citations
omitted).
If we grant for the sake of argument, however, that P.D. No. 725 is curative or remedial
statute, it would be an inexcusable error to give it a retroactive effect since it explicitly
provides the date of its effectivity. Thus:
This Decree shall take effect immediately.
Done in the city of Manila, this 5th day of June, in the year of Our Lord,
nineteen hundred and seventy five.
Nevertheless, if the retroactivity is to relate only to the reacquisition of Philippine
citizenship, then nothing therein supports such theory, for as the decree itself
unequivocally provides, it is only after taking the oath of allegiance to the Republic of the
Philippines that the applicant is DEEMED TO HAVE REACQUIRED PHILIPPINE
CITIZENSHIP.
IV
Assuming yet again, for the sake of argument, that taking the oath of allegiance
retroacted to the date of Frivaldo's application for repatriation, the same could not be
said insofar as it concerned the United States of America, of which he was a citizen. For
under the laws of the United States of America, Frivaldo remained an American national
until he renounced his citizenship and allegiance thereto at 2:00 p.m. on 30 June 1995,
when he took his oath of allegiance to the Republic of the Philippines. Section 401 of the
Nationality Act of 1940 of the United States of America provides that a person who is a
national of the United States of America, whether by birth or naturalization, loses his
nationality by, inter alia, "(b) Taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state" (SIDNEY KANSAS, U.S. Immigration
Exclusion and Deportation and Citizenship of the United States of America, Third ed.,
[1948] 341-342). It follows then that on election day and until the hour of the
commencement of the term for which he was elected - noon of 30 June 1995 as per
Section 43 of the Local Government Code - Frivaldo possessed dual citizenship, viz., (a)
as an American citizen; and (b) as a Filipino citizen through the adoption of the theory
that the effects of his taking the oath of allegiance were retrospective. Hence, he was
disqualified to run for Governor for yet another reason: possession of dual citizenship, in
accordance with Section 40 (d) of the Local Government Code.
V
The assertion in the ponencia that Frivaldo may be considered STATELESS on the
basis of his claim that he "had long renounced and had long abandoned his American
citizenship - long before May 8, 1985" - is untenable, for the following reasons: first, it is
based on Frivaldo's unproven, self-serving allegation; second, informal renunciation or
abandonment is not a ground to lose American citizenship; and third, simply put, never
did the status of a STATELESS person attach to Frivaldo.
Statelessness may be either de jure, which is the status of individuals stripped of their
nationality by their former government without having an opportunity to acquire another;
or de facto, which is the status of individuals possessed of a nationality whose country
does not give them protection outside their own country, and who are commonly, albeit
imprecisely, referred to as refugees (JORGE R. COQUIA, et al., Conflict of Laws Cases,
Materials and Comments, 1995 ed., 290).
Specifically, under Chapter 1, Article 1 of the United Nations Convention Regarding the
Status of Stateless Persons (Philippine Treaty Series, Compiled and Annotated by
Haydee B. Yorac, vol. III, 363), a stateless person is defined as "a person who is not
considered as a national by any State under the operation of its law." However, it has not
been shown that the United States of America ever ceased to consider Frivaldo its
national at any time before he took his oath of allegiance to the Republic of the
Philippines on 30 June 1995.
VI
Finally, I find it in order to also express my view on the concurring opinion of Mr. Justice
Reynato S. Puno. I am absolutely happy to join him in his statement that "[t]he
sovereignty of our people is the primary postulate of the 1987 Constitution" and that the
said Constitution is "more people-oriented," "borne [as it is] out of the 1986 people power
EDSA revolution." I would even go further by saying that this Constitution is pro-
God (Preamble), pro-people (Article II, Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section 1,
Article XII, Sections 1, 6; Article XIII, Sections 1, 11, 15, 16, 18; Article XVI, Sections
5(2), 6), pro-Filipino (Article XII, Sections 1, 2, 10, 11, 12, 14; Article XIV, Sections 1,
4(2), 13; Article XVI, Section 11), pro-poor (Article II, Sections 9, 10, 18, 21; Article XII,
Sections 1, 2(3); Article XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11, 13), pro-life (Article II,
Section 12), and pro-family (Article II, Section 12; Article XV).
Nevertheless, I cannot be with him in carrying out the principle of sovereignty beyond
what I perceive to be the reasonable constitutional parameters. The doctrine of people's
sovereignty is founded on the principles of democracy and republicanism and refers
exclusively to the sovereignty of the people of the Philippines. Section 1 of Article II is
quite clear on this, thus:
Sec. 1. The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from them.
And the Preamble makes it clear when it solemnly opens it with a clause
"We, the sovereign Filipino people. . ." Thus, this sovereignty is an attribute of the
Filipino people as one people, one body.
That sovereign power of the Filipino people cannot be fragmentized by looking at it as
the supreme authority of the people of any of the political subdivisions to determine their
own destiny; neither can we convert and treat every fragment as the whole. In such a
case, this Court would provide the formula for the division and destruction of the State
and render the Government ineffective and inutile. To illustrate the evil, we may consider
the enforcement of laws or the pursuit of a national policy by the executive branch of the
government, or the execution of a judgment by the courts. If these are opposed by the
overwhelming majority of the people of a certain province, or even a municipality, it
would necessarily follow that the law, national policy, or judgment must not be enforced,
implemented, or executed in the said province or municipality. More concretely, if, for
instance, the vast majority of the people of Batanes rise publicly and take up arms
against the Government for the purpose of removing from the allegiance to the said
Government or its laws, the territory of the Republic of the Philippines or any part
thereof, or any body of land, naval, or other armed forces, or depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or prerogatives,
then those who did so -- and which are composed of the vast majority of the people of
Batanes -- a political subdivision -- cannot be prosecuted for or be held guilty of rebellion
in violation of Article 134 of the Revised Penal Code because of the doctrine of peoples'
sovereignty. Indeed, the expansion of the doctrine of sovereignty by investing upon the
people of a mere political subdivision that which the Constitution places in the entire
Filipino people, may be disastrous to the Nation.
So it is in this case if we follow the thesis in the concurring opinion. Thus, simply
because Frivaldo had obtained a margin of 20,000 votes over his closest rival, Lee, i.e.,
a vast majority of the voters of Sorsogon had expressed their sovereign will for the
former, then this Court must yield to that will and must, therefore, allow to be set aside,
for Frivaldo, not just the laws on qualifications of candidates and elective officials and
naturalization and reacquisition of Philippine citizenship, but even the final and binding
decisions of this Court affecting him.
This Court must be the first to uphold the Rule of Law. I vote then to DISMISS G.R. No.
120295 and GRANT G.R. No. 123755.
1 Composed of Pres. CoFootnotesmm. Regalado E. Maambong, ponente; Comm.
Graduacion A.R. Claravall, concurring, and Comm. Julio F. Desamito, dissenting.
2 In SPC No. 95-317, entitled Juan G. Frivaldo, petitioner, vs. Raul R. Lee,
respondent; rollo, pp. 110-129.
3 Signed by Chairman Bernardo P. Pardo, Comms. Regalado E. Maambong, Remedios
A. Salazar-Fernando, Manolo B. Gorospe and Teresita Dy-Liaco Flores. Chairman
Pardo certified that "Commissioner Julio F. Desamito was on official travel at the time of
the deliberation and resolution of this case. However, the Commission has reserved to
Comm. Desamito the right to submit a dissenting opinion." Rollo, pp. 159-171.
4 Rollo, pp. 46-49.
5 Rollo, pp. 50-55. The Second Division was composed of Pres. Comm. Remedios A.
Salazar-Fernando,ponente; Comm. Teresita Dy-Liaco Flores, concurring, and Comm.
Manolo B. Gorospe ("on official business").
6 Frivaldo was naturalized as an American citizen on January 20, 1983. In G.R. No.
87193, Frivaldo vs. Commission on Elections, 174 SCRA 245 (June 23, 1989), the
Supreme Court, by reason of such naturalization, declared Frivaldo "not a citizen of the
Philippines and therefore DISQUALIFIED from serving as Governor of the Province of
Sorsogon." On February 28, 1992, the Regional Trial Court of Manila granted the petition
for naturalization of Frivaldo. However, the Supreme Court in G.R. No. 104654, Republic
of the Philippines vs. De la Rosa, et al., 232 SCRA 785 (June 6, 1994), overturned this
grant, and Frivaldo was "declared not a citizen of the Philippines" and ordered to vacate
his office. On the basis of this latter Supreme Court ruling, the Comelec disqualified
Frivaldo in SPA No. 95-028.
7 Signed by Chairman Bernardo P. Pardo and the six incumbent commissioners,
namely, Regalado E. Maambong, Remedios A. Salazar-Fernando, Manolo B. Gorospe,
Graduacion A. Reyes-Claravall, Julio F. Desamito and Teresita Dy-Liaco Flores; rollo,
pp. 56-57.
8 Rollo, p. 60.
9 Rollo, pp. 61-67.
10 Rollo, pp. 86-87. The Comelec considered the votes cast for Frivaldo as "stray
votes", and thus Lee was held as having garnered the "highest number of votes."
11 Rollo, pp. 88-97. This is the forerunner of the present case.
12 211 SCRA 297 (July 3, 1992) and 176 SCRA 1 (August 1, 1989).
13 Rollo, pp. 110-128.
14 Rollo, pp. 159-170.
15 Rollo, pp. 16-17; petition, pp. 14-15.
16 Rollo, pp. 10-15. This is the same resolution referred to in footnote no. 5.
17 Rollo, pp. 16-17. This is the same resolution referred to in footnote no. 7.
18 Rollo, pp. 18-21. This is signed also by the Chairman and the six other Comelec
Commissioners.
19 Republic Act No. 7160.
20 See footnote no. 6, supra.
21 In debunking Frivaldo's claim of citizenship, this Court in G.R. No. 87193, supra, p.
254, observed that "(i)f he (Frivaldo) really wanted to disavow his American citizenship
and reacquire Philippine citizenship, petitioner should have done so in accordance with
the laws of our country. Under C.A. No. 63 as amended by C.A. No. 473 and P.D. 725,
Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or
by repatriation."
22 Supra, p. 794.
23 Petition, p. 27; rollo, p. 29.
24 The full text of said memorandum reads as follows:
MEMORANDUM
TO : The Solicitor General
The Undersecretary of Foreign Affairs
The Director-General
National Intelligence Coordinating Agency
The previous administration's practice of granting citizenship by Presidential Decree or
any other executive issuance, and the derivative administrative authority thereof, poses
a serious and contentious issue of policy which the present government, in the exercise
of prudence and sound discretion, should best leave to the judgment of the first
Congress under the 1987 Constitution.
In view of the foregoing, you as Chairman and members of the Special Committee on
Naturalization, are hereby directed to cease and desist from undertaking any and all
proceedings within your functional area of responsibility, as defined in Letter of
Instructions No. 270 dated April 11, 1975, as amended, Presidential Decree No. 836
dated December 3, 1975, as amended, and Presidential Decree No. 1379 dated May 17,
1978, relative to the grant of citizenship under the said laws, and any other related laws,
orders, issuances and rules and regulations.
(Sgd.) Corazon C. Aquino
Manila, March 27, 1987.
25 Art. 7, Civil Code of the Philippines.
26 Cf. Ty, et al. vs. Trampe, et al., G.R. No. 117577 (December 1, 1995).
27 Petition, p. 28; rollo, p. 30.
28 The aforesaid Manifestation reads as follows:
M A N I F E S T A T I O N
The Solicitor General, as Chairman of the Special Committee on Naturalization, hereby
manifests that the following persons have been repatriated by virtue of Presidential
Decree No. 725, since June 8, 1995:
1. Juan Gallanosa Frivaldo R-000900
2. Manuel Reyes Sanchez 901
3. Ma. Nelly Dessalla Ty 902
4. Terry Herrera and
Antonio Ching 903
5. Roberto Salas Benedicto 904
6. Winthrop Santos Liwag 905
7. Samuel M. Buyco 906
8. Joselito Holganza Ruiz 907
9. Samuel Villanueva 908
10. Juan Leonardo Collas, Jr. 909
11. Felicilda Otilla Sacnanas-Chua 910
29 The text of P.D. 725 is reproduced below:
PRESIDENTIAL DECREE No. 725
PROVIDING FOR REPATRIATION OF FILIPINO WOMEN WHO HAD LOST THEIR
PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND OF NATURAL BORN
FILIPINOS.
WHEREAS, there are many Filipino women who had lost their Philippine citizenship by
marriage to aliens;
WHEREAS, while the new Constitution allows a Filipino woman who marries an alien to
retain her Philippine citizenship unless by her act or omission, she is deemed under the
law to have renounced her Philippine citizenship, such provision of the new Constitution
does not apply to Filipino women who had married aliens before said constitution took
effect;
WHEREAS, the existing law (C.A. No. 63, as amended) allows the repatriation of Filipino
women who lost their citizenship by reason of their marriage to aliens only after the
death of their husbands or the termination of their marital status; and
WHEREAS, there are natural born Filipinos who have lost their Philippine citizenship but
now desire to re-acquire Philippine citizenship;
Now, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue
of the powers in me vested by the Constitution, do hereby decree and order that: (1)
Filipino women who lost their Philippine citizenship by marriage to aliens; and (3) natural
born Filipinos who have lost their Philippine citizenship may reacquire Philippine
citizenship through repatriation by applying with the Special Committee on Naturalization
created by Letter of Instructions No. 270, and, if their applications are approved, taking
the necessary oath of allegiance to the Republic of the Philippines, after which they shall
be deemed to have reacquired Philippine citizenship. The Commission on Immigration
and Deportation shall thereupon cancel their certificate of registration.
The aforesaid Special Committee is hereby authorized to promulgate rules and
regulations and prescribe the appropriate forms and the required fees for the effective
implementation of this Decree.
This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of June, in the year of Our Lord, nineteen
hundred and seventy-five.
30 See footnote no. 6, supra.
31 Cf. Labo, Jr. vs. Comelec, 211 SCRA 297 (July 3, 1992).
32 The term of office of all local elective officials elected after the effectivity of this Code
shall be three (3) years, starting from noon of June 30, 1992 or such date as may be
provided for by law, . . ." Sec. 43, Local Government Code.
33 96 Phil. 447, 453 (1955).
34 The following are excerpts from the transcript of stenographic notes of the oral
argument held on March 19, 1996:
JUSTICE PANGANIBAN: Mr. Counsel, it is your position then that the
candidate should be a citizen at the time of proclamation?
ATTY. BRILLANTES: Yes, Your Honor, it is required that he must be a
citizen at the time of proclamation and not only that, at the time that he
assumes the office he must have the continuing qualification as a citizen.
JUSTICE PANGANIBAN: Should that not be reckoned from the time of
filing of certificate of candidacy or at least the day of the election?
ATTY. BRILLANTES: Yes, Your Honor, there are positions taken that it
should be reckoned from the date of certificate of candidacy as in the
case of qualification for Batasang Pambansa before under B.P. 53 - it
says that for purposes of residence it must be reckoned . . . from the time
of the filing of the certificate, for purposes of age, from the time of the
date of the election. But when we go over all the provisions of law under
current laws, Your Honor, there is no qualification requirement insofar as
citizenship is concern(ed) as to when, as to when you should be a citizen
of the Philippines and we say that if there is no provision under any
existing law which requires that you have to be a citizen of the Philippines
on the date of the filing or on the date of election then it has to be
equitably interpreted to mean that if you are already qualified at the time
that the office is supposed to be assumed then you should be allowed to
assume the office.
JUSTICE PANGANIBAN: Is it not also true that under the Local
Autonomy Code the candidate should also be a registered voter and to be
a registered voter one must be a citizen?
ATTY. BRILLANTES: Yes, Your Honor, in fact, Mr. Frivaldo has always
been a registered voter of Sorsogon. He has voted in 1987, 1988, 1992,
then he voted again in 1995. In fact, his eligibility as a voter was
questioned but the Court dismissed (sic) his eligibility as a voter and he
was allowed to vote as in fact, he voted in all the previous elections
including on May 8, 1995.
JUSTICE PANGANIBAN: But the fact that he voted does not make him a
citizen. The fact is, he was declared not a citizen by this Court twice.
ATTY. BRILLANTES: That is true, Your Honor, we admit that he has
been twice declared not citizen and we admit the ruling of the Supreme
Court is correct but the fact is, Your Honor, the matter of his eligibility to
vote as being a registered voter was likewise questioned before the
judiciary. There was a ruling by the Municipal Court, there was a ruling by
the Regional Trial Court and he was sustained as a valid voter, so he
voted.
JUSTICE PANGANIBAN: I raised this question in connection with your
contention that citizenship should be determined as of the time of
proclamation and not as of the time of the election or at the time of the
filing of the certificate of candidacy.
ATTY. BRILLANTES: That is true, Your Honor.
JUSTICE PANGANIBAN: And is it your contention that under the law,
particularly the Local Autonomy Code, the law does not specify when
citizenship should be possessed by the candidate, is that not correct?
ATTY. BRILLANTES: That is right, Your Honor, there is no express
provision.
JUSTICE PANGANIBAN: I am also asking you that under the Local
Autonomy Code the candidate for governor or for other local positions
should be a voter and to be a voter one must be a citizen?
ATTY. BRILLANTES: That is right, Your Honor, but the fact of voting is
not an issue here because he was allowed to vote and he did in fact vote
and in fact, he was a registered voter. (TSN, March 19, 1996.)
35 Section 117, Batas Pambansa Blg. 881, otherwise known as "The Omnibus Election
Code of the Philippines", as amended, provides for the various qualifications of voters,
one of which is Filipino citizenship.
36 Comment, p. 11; rollo, p. 259.
37 See footnote no. 33.
38 Section 253 reads as follows:
Sec. 253. Petition for quo warranto. -- Any voter contesting the election of any member
of the Congress, regional, provincial, or city officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall file a sworn petition for quo
warranto with the Commission within ten days after the proclamation of the results of the
election. (Art. XIV, Sec. 60, BP 697; Art. XVIII, Sec. 189, par. 2, 1978 EC).
Any voter contesting the election of any municipal or barangay officer on the ground of
ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition
for quo warranto with the regional trial court or metropolitan or municipal trial court,
respectively, within ten days after the proclamation of the results of the election. (Art.
XVIII, Sec. 189, par. 2, 1978 EC).
39 Art. 4, New Civil Code. See also Gallardo vs. Borromeo, 161 SCRA 500 (May 25,
1988), and Nilo vs. Court of Appeals, 128 SCRA 519 (April 2, 1984).
40 Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, Vol.
I, 1990 ed., p. 23 states:
Exceptions to Rule. -- Statutes can be given retroactive effect in the following cases: (1)
when the law itself so expressly provides, (2) in case of remedial statutes, (3) in case of
curative statutes, (4) in case of laws interpreting others, and (5) in case of laws creating
new rights.
41 Id., p. 25.
42 Agpalo, Statutory Construction, 1990 ed., pp. 270-271.
43 73 Am Jur 2d, Sec. 354, p. 489, cited in Castro vs. Sagales, 94 Phil. 208, 210 (1953).
44 Memorandum, p. 9.
45 73 Am Jur 2d, Sec. 351, p. 488.
46 73 Am Jur 2d, Sec. 354, p. 490; emphasis supplied.
47 Art. 10, Civil Code of the Philippines.
48 Based on the "Corrected Compliance" dated May 16, 1996 filed by the Solicitor
General, it appears that, excluding the case of Frivaldo, the longest interval between
date of filing of an application for repatriation and its approval was three months and ten
days; the swiftest action was a same-day approval.
49 Sec. 40. Disqualifications. -- The following persons are disqualified from running for
any elective local position:
xxx xxx xxx
(d) Those with dual citizenship;"
50 p. 11; rollo, p. 259.
51 Resolution, p. 12; rollo, p. 121.
52 Cf. Navarro vs. Commission on Elections, 228 SCRA 596 (December 17, 1993); Arao
vs. Commission on Elections, 210 SCRA 290 (June 23, 1992).
53 The dispositive portion of said Resolution reads:
WHEREFORE, this Division resolves to GRANT the petition and declares that
respondent is DISQUALIFIED to run for the office of Provincial Governor of Sorsogon on
the ground that he is not a citizen of the Philippines. Accordingly respondent's certificate
of candidacy is cancelled.
54 Petition, p. 19; rollo, p. 21.
55 Resolution promulgated on December 19, 1995, p. 7; rollo, p. 116.
56 42 SCRA 561, 565 (December 20, 1971), citing Moy Ya Lim Yao vs. Commissioner
of Immigration, L-21289, October 4, 1971.
57 Art. IX, Sec. 2.
58 SPC No. 95-317 is entitled "Annulment of Proclamation" and contains the following
prayer:
WHEREFORE, it is most respectfully prayed of this Honorable Commission that after
due notice and hearing an Oder (sic) /Resolution/Decision be issued as follows:
a) Annulling/setting aside the 30 June 1995 proclamation of respondent as the duly
election (sic), Governor of Sorsogon for being contrary to law;
b) Ordering the proclamation of the petitioner as duly elected governor of Sorsogon;
xxx xxx xxx
59 229 SCRA 666, 674 (February 4, 1994).
60 211 SCRA 297, 309 (July 3, 1992).
61 G.R. No. 120265, September 18, 1995.
62 Supra, at p. 312.
63 See footnotes 2 and 3.
64 174 SCRA 245, 254 (June 23, 1959).
65 Salonga and Yap, Public International Law, 1966 ed., p. 239.
66 In Espinosa vs. Aquino, (Electoral Case No. 9, Senate Electoral Tribunal [SET]), the
election of the late Senator Benigno S. Aquino, Jr. was upheld, despite his not being of
the required age on the day of the election, although he celebrated his thirty-fifth birthday
before his proclamation. Much later, in 1990, this Court held inAznar vs. Comelec (185
SCRA 703, May 25, 1990) that even if Emilio "Lito" Osmea held an Alien Certificate of
Registration as an American citizen, he was still not disqualified from occupying the local
elective post of governor, since such certificate did not preclude his being "still a
Filipino." The holding in Aquino was subsequently nullified by the adoption of the 1987
Constitution (Art. VI, Sec. 3), which specified that the age qualification must be
possessed on the day of the elections, and not on the day of the proclamation of the
winners by the board of canvassers. On the other hand, Sec. 40 of Republic Act No.
7160 (Local Government Code of 1991) which took effect on January 1, 1992, provides
that those with dual citizenship are disqualified from running for any elective local
position, and effectively overturns the ruling in Aznar. But the point is that to the extent
possible, and unless there exist provisions to the contrary, the laws have always been
interpreted to give fullest effect to the political will.
67 Benito vs. Commission on Elections, 235 SCRA 436, 442 (August 17, 1994).
68 This antagonism was clearly present in the two earlier cases involving
Frivaldo. See footnote no. 6.
PUNO, J., concurring:
1 The 1987 Constitution added the word "democratic" in the statement of the principle.
2 Section 24(a) of the Tydings-McDuffie Law which authorized the Filipino people to
draft a Constitution in 1934 required that the "constitution formulated and drafted shall be
republican in form."
This Court has observed that even before the Tydings-McDuffie Law, the Philippine Bill
and the Jones Law have ". . . extended the powers of a republican form of government
modeled after that of the United States to the Philippines." Roa v. Collector of Customs,
23 Phil. 315, 340 [1912], Severino v. Gov. General, 16 Phil. 366, 383 [1910], US v. Bull,
15 Phil. 7, 27 [1910].
3 Words and Phrases, Vol. 39 A., p. 68 citing Cherokee Nation v. Southern Kan. R. Co.,
33 F. 900, 906.
4 Dean of the UP College of Law; later President of U.P., and Delegate to the 1971
Constitutional Convention.
5 Since, Philippine Political Law, Principles and Concepts, 1954, ed., p. 22.
6 Barker, Principles of Social and Political Theory, p. 59 (1952 ed.).
7 118 US 356.
8 Cruz, Philippine Political Law, p. 49, [1991 ed.].
9 Sinco, op. cit., pp. 23-24.
10 3 AM JUR 2d 889-890; 63 AM JUR 2d 653; 67 CSJ 926.
11 Moya v. del Fierro, 69 Phil. 199.

DIGEST
Facts:
Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on 22
January 1988, and assumed office in due time. On 27 October 1988, the league of
Municipalities, Sorsogon Chapter represented by its President, Salvador Estuye, who
was also suing in his personal capacity, filed with the Comelec a petition for the
annulment of Frivaldos election and proclamation on the ground that he was not a
Filipino citizen, having been naturalized in the United States on 20 January 1983.
Frivaldo admitted that he was naturalized in the United States as alleged but pleaded the
special and affirmative defenses that he had sought American citizenship only to protect
himself against President Marcos. His naturalization, he said, was merely forced upon
himself as a means of survival against the unrelenting persecution by the Martial Law
Dictators agents abroad. He also argued that the challenge to his title should be
dismissed, being in reality a quo warranto petition that should have been filed within 10
days from his proclamation, in accordance with Section 253 of the Omhibus Election
Code.

Issue:
Whether Juan G. Frivaldo was a citizen of the Philippines at the time of his election on
18 January 1988, as provincial governor of Sorsogon.

Held:
The Commission on Elections has the primary jurisdiction over the question as the sole
judge of all contests relating to the election, returns and qualifications of the members of
the Congress and elective provincial and city officials. However, the decision on
Frivaldos citizenship has already been made by the COMELEC through its counsel, the
Solicitor General, who categorically claims that Frivaldo is a foreigner. The Solicitors
stance is assumed to have bben taken by him after consultation with COMELEC and
with its approval. It therefore represents the decision of the COMELEC itself that the
Supreme Court may review. In the certificate of candidacy filed on 19 November 1987,
Frivaldo described himself as a natural-born citizen of the Philippines, omitting
mention of any subsequent loss of such status. The evidence shows, however, that he
was naturalized as a citizen of the United States in 1983 per the certification from the
United States District Court, Northern District of California, as duly authenticated by Vice
Consul Amado P. Cortez of the Philippine Consulate General in San Francisco,
California, U.S.A. There were many other Filipinos in the United States similarly situated
as Frivaldo, and some of them subject to greater risk than he, who did not find it
necessary nor do they claim to have been coerced to abandon their cherished
status as Filipinos. Still, if he really wanted to disavow his American citizenship and
reacquire Philippine citizenship, Frivaldo should have done so in accordance with the
laws of our country. Under CA No. 63 as amended by CA No. 473 and PD No. 725,
Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or
by repatriation. He failed to take such categorical acts. Rhe anomaly of a person sitting
as provincial governor in this country while owing exclusive allegiance to another country
cannot be permitted. The fact that he was elected by the people of Sorsogon does not
excuse this patent violation of the salutary rule limiting public office and employment only
to the citizens of this country. The will of the people as expressed through the ballot
cannot cure the vice of ineligibilityQualifications for public office are continuing
requirements and must be possessed not only at the time of appointment or election or
assumption of office but during the officers entire tenure. Once any of the required
qualifications is lost, his title may be seasonably challenged. Frivaldo is disqualified from
serving as governor of Sorsogon.



Romualdez-Marcos vs. COMELEC (248 SCRA 300)
G.R. No. 119976 September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J .:
A constitutional provision should be construed as to give it effective operation and
suppress the mischief at which it is aimed.
1
The 1987 Constitution mandates that an
aspirant for election to the House of Representatives be "a registered voter in the district
in which he shall be elected, and a resident thereof for a period of not less than one year
immediately preceding the election."
2
The mischief which this provision reproduced
verbatim from the 1973 Constitution seeks to prevent is the possibility of a "stranger
or newcomer unacquainted with the conditions and needs of a community and not
identified with the latter, from an elective office to serve that community."
3

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of
Representative of the First District of Leyte with the Provincial Election Supervisor on
March 8, 1995, providing the following information in item no. 8:
4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE
ELECTED IMMEDIATELY PRECEDING THE ELECTION: __________
Years and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent
Representative of the First District of Leyte and a candidate for the same position, filed a
"Petition for Cancellation and Disqualification"
5
with the Commission on Elections
alleging that petitioner did not meet the constitutional requirement for residency. In his
petition, private respondent contended that Mrs. Marcos lacked the Constitution's one
year residency requirement for candidates for the House of Representatives on the
evidence of declarations made by her in Voter Registration Record 94-No. 3349772
6
and
in her Certificate of Candidacy. He prayed that "an order be issued declaring (petitioner)
disqualified and canceling the certificate of candidacy."
7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy,
changing the entry "seven" months to "since childhood" in item no. 8 of the amended
certificate.
8
On the same day, the Provincial Election Supervisor of Leyte informed
petitioner that:
[T]his office cannot receive or accept the aforementioned Certificate of
Candidacy on the ground that it is filed out of time, the deadline for the
filing of the same having already lapsed on March 20, 1995. The
Corrected/Amended Certificate of Candidacy should have been filed on or
before the March 20, 1995 deadline.
9

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the
COMELEC's Head Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was
likewise filed with the head office on the same day. In said Answer, petitioner averred
that the entry of the word "seven" in her original Certificate of Candidacy was the result
of an "honest misinterpretation"
10
which she sought to rectify by adding the words "since
childhood" in her Amended/Corrected Certificate of Candidacy and that "she has always
maintained Tacloban City as her domicile or residence.
11
Impugning respondent's
motive in filing the petition seeking her disqualification, she noted that:
When respondent (petitioner herein) announced that she was intending to
register as a voter in Tacloban City and run for Congress in the First
District of Leyte, petitioner immediately opposed her intended registration
by writing a letter stating that "she is not a resident of said city but of
Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter
in Tolosa following completion of her six month actual residence therein,
petitioner filed a petition with the COMELEC to transfer the town of
Tolosa from the First District to the Second District and pursued such a
move up to the Supreme Court, his purpose being to remove respondent
as petitioner's opponent in the congressional election in the First District.
He also filed a bill, along with other Leyte Congressmen, seeking the
creation of another legislative district to remove the town of Tolosa out of
the First District, to achieve his purpose. However, such bill did not pass
the Senate. Having failed on such moves, petitioner now filed the instant
petition for the same objective, as it is obvious that he is afraid to submit
along with respondent for the judgment and verdict of the electorate of the
First District of Leyte in an honest, orderly, peaceful, free and clean
elections on May 8, 1995.
12

On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by
a vote of 2 to 1,
13
came up with a Resolution 1) finding private respondent's Petition for
Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's Corrected/Amended
Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate of
Candidacy.
14
Dealing with two primary issues, namely, the validity of amending the
original Certificate of Candidacy after the lapse of the deadline for filing certificates of
candidacy, and petitioner's compliance with the one year residency requirement, the
Second Division held:
Respondent raised the affirmative defense in her Answer that the printed
word "Seven" (months) was a result of an "honest misinterpretation or
honest mistake" on her part and, therefore, an amendment should
subsequently be allowed. She averred that she thought that what was
asked was her "actual and physical" presence in Tolosa and not
residence of origin or domicile in the First Legislative District, to which she
could have responded "since childhood." In an accompanying affidavit,
she stated that her domicile is Tacloban City, a component of the First
District, to which she always intended to return whenever absent and
which she has never abandoned. Furthermore, in her memorandum, she
tried to discredit petitioner's theory of disqualification by alleging that she
has been a resident of the First Legislative District of Leyte since
childhood, although she only became a resident of the Municipality of
Tolosa for seven months. She asserts that she has always been a
resident of Tacloban City, a component of the First District, before coming
to the Municipality of Tolosa.
Along this point, it is interesting to note that prior to her registration in
Tolosa, respondent announced that she would be registering in Tacloban
City so that she can be a candidate for the District. However, this
intention was rebuffed when petitioner wrote the Election Officer of
Tacloban not to allow respondent since she is a resident of Tolosa and
not Tacloban. She never disputed this claim and instead implicitly
acceded to it by registering in Tolosa.
This incident belies respondent's claim of "honest misinterpretation or
honest mistake." Besides, the Certificate of Candidacy only asks for
RESIDENCE. Since on the basis of her Answer, she was quite aware of
"residence of origin" which she interprets to be Tacloban City, it is curious
why she did not cite Tacloban City in her Certificate of Candidacy. Her
explanation that she thought what was asked was her actual and physical
presence in Tolosa is not easy to believe because there is none in the
question that insinuates about Tolosa. In fact, item no. 8 in the Certificate
of Candidacy speaks clearly of "Residency in the
CONSTITUENCY where I seek to be elected immediately preceding the
election." Thus, the explanation of respondent fails to be persuasive.
From the foregoing, respondent's defense of an honest mistake or
misinterpretation, therefore, is devoid of merit.
To further buttress respondent's contention that an amendment may be
made, she cited the case ofAlialy v. COMELEC (2 SCRA 957). The
reliance of respondent on the case of Alialy is misplaced. The case only
applies to the "inconsequential deviations which cannot affect the result of
the election, or deviations from provisions intended primarily to secure
timely and orderly conduct of elections." The Supreme Court in that case
considered the amendment only as a matter of form. But in the instant
case, the amendment cannot be considered as a matter of form or an
inconsequential deviation. The change in the number of years of
residence in the place where respondent seeks to be elected is a
substantial matter which determines her qualification as a candidacy,
specially those intended to suppress, accurate material representation in
the original certificate which adversely affects the filer. To admit the
amended certificate is to condone the evils brought by the shifting minds
of manipulating candidate, of the detriment of the integrity of the election.
Moreover, to allow respondent to change the seven (7) month period of
her residency in order to prolong it by claiming it was "since childhood" is
to allow an untruthfulness to be committed before this Commission. The
arithmetical accuracy of the 7 months residency the respondent indicated
in her certificate of candidacy can be gleaned from her entry in her Voter's
Registration Record accomplished on January 28, 1995 which reflects
that she is a resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time
of the said registration (Annex A, Petition). Said accuracy is further
buttressed by her letter to the election officer of San Juan, Metro Manila,
dated August 24, 1994, requesting for the cancellation of her registration
in the Permanent List of Voters thereat so that she can be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte. The dates of these three (3)
different documents show the respondent's consistent conviction that she
has transferred her residence to Olot, Tolosa, Leyte from Metro Manila
only for such limited period of time, starting in the last week of August
1994 which on March 8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to believe in the
respondent's contention that it was an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected Certificate of Candidacy
cannot be admitted by this Commission.
xxx xxx xxx
Anent the second issue, and based on the foregoing discussion, it is clear
that respondent has not complied with the one year residency
requirement of the Constitution.
In election cases, the term "residence" has always been considered as
synonymous with "domicile" which imports not only the intention to reside
in a fixed place but also personal presence in-that place, coupled with
conduct indicative of such intention. Domicile denotes a fixed permanent
residence to which when absent for business or pleasure, or for like
reasons, one intends to return. (Perfecto Faypon vs. Eliseo Quirino, 96
Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In respondent's
case, when she returned to the Philippines in 1991, the residence she
chose was not Tacloban but San Juan, Metro Manila. Thus, her animus
revertendi is pointed to Metro Manila and not Tacloban.
This Division is aware that her claim that she has been a resident of the
First District since childhood is nothing more than to give her a color of
qualification where she is otherwise constitutionally disqualified. It cannot
hold ground in the face of the facts admitted by the respondent in her
affidavit. Except for the time that she studied and worked for some years
after graduation in Tacloban City, she continuously lived in Manila. In
1959, after her husband was elected Senator, she lived and resided in
San Juan, Metro Manila where she was a registered voter. In 1965, she
lived in San Miguel, Manila where she was again a registered voter. In
1978, she served as member of the Batasang Pambansa as the
representative of the City of Manila and later on served as the Governor
of Metro Manila. She could not have served these positions if she had not
been a resident of the City of Manila. Furthermore, when she filed her
certificate of candidacy for the office of the President in 1992, she claimed
to be a resident of San Juan, Metro Manila. As a matter of fact on August
24, 1994, respondent wrote a letter with the election officer of San Juan,
Metro Manila requesting for the cancellation of her registration in the
permanent list of voters that she may be re-registered or transferred to
Barangay Olot, Tolosa, Leyte. These facts manifest that she could not
have been a resident of Tacloban City since childhood up to the time she
filed her certificate of candidacy because she became a resident of many
places, including Metro Manila. This debunks her claim that prior to her
residence in Tolosa, Leyte, she was a resident of the First Legislative
District of Leyte since childhood.
In this case, respondent's conduct reveals her lack of intention to make
Tacloban her domicile. She registered as a voter in different places and
on several occasions declared that she was a resident of Manila.
Although she spent her school days in Tacloban, she is considered to
have abandoned such place when she chose to stay and reside in other
different places. In the case of Romualdez vs. RTC(226 SCRA 408) the
Court explained how one acquires a new domicile by choice. There must
concur: (1) residence or bodily presence in the new locality; (2) intention
to remain there; and (3) intention to abandon the old domicile. In other
words there must basically be animus manendi withanimus non
revertendi. When respondent chose to stay in Ilocos and later on in
Manila, coupled with her intention to stay there by registering as a voter
there and expressly declaring that she is a resident of that place, she is
deemed to have abandoned Tacloban City, where she spent her
childhood and school days, as her place of domicile.
Pure intention to reside in that place is not sufficient, there must likewise
be conduct indicative of such intention. Respondent's statements to the
effect that she has always intended to return to Tacloban, without the
accompanying conduct to prove that intention, is not conclusive of her
choice of residence. Respondent has not presented any evidence to
show that her conduct, one year prior the election, showed intention to
reside in Tacloban. Worse, what was evident was that prior to her
residence in Tolosa, she had been a resident of Manila.
It is evident from these circumstances that she was not a resident of the
First District of Leyte "since childhood."
To further support the assertion that she could have not been a resident
of the First District of Leyte for more than one year, petitioner correctly
pointed out that on January 28, 1995 respondent registered as a voter at
precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her
Voter Registration Record that she resided in the municipality of Tolosa
for a period of six months. This may be inconsequential as argued by the
respondent since it refers only to her residence in Tolosa, Leyte. But her
failure to prove that she was a resident of the First District of Leyte prior
to her residence in Tolosa leaves nothing but a convincing proof that she
had been a resident of the district for six months only.
15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en
banc denied petitioner's Motion for Reconsideration
16
of the April 24, 1995 Resolution
declaring her not qualified to run for the position of Member of the House of
Representatives for the First Legislative District of Leyte.
17
The Resolution tersely
stated:
After deliberating on the Motion for Reconsideration, the Commission
RESOLVED to DENY it, no new substantial matters having been raised
therein to warrant re-examination of the resolution granting the petition for
disqualification.
18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation
should the results of the canvass show that she obtained the highest number of votes in
the congressional elections in the First District of Leyte. On the same day, however, the
COMELEC reversed itself and issued a second Resolution directing that the
proclamation of petitioner be suspended in the event that she obtains the highest
number of votes.
19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the
overwhelming winner of the elections for the congressional seat in the First District of
Leyte held May 8, 1995 based on the canvass completed by the Provincial Board of
Canvassers on May 14, 1995. Petitioner alleged that the canvass showed that she
obtained a total of 70,471 votes compared to the 36,833 votes received by Respondent
Montejo. A copy of said Certificate of Canvass was annexed to the Supplemental
Petition.
On account of the Resolutions disqualifying petitioner from running for the congressional
seat of the First District of Leyte and the public respondent's Resolution suspending her
proclamation, petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental Petitions. The principal
issues may be classified into two general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for election purposes, of the
First District of Leyte for a period of one year at the time of the May 9,
1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised its jurisdiction in
disqualifying petitioner outside the period mandated by the Omnibus
Election Code for disqualification cases under Article 78 of the said Code.
b) After the Elections
Whether or not the House of Representatives Electoral Tribunal assumed
exclusive jurisdiction over the question of petitioner's qualifications after
the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division reveals a startling
confusion in the application of settled concepts of "Domicile" and "Residence" in election
law. While the COMELEC seems to be in agreement with the general proposition that for
the purposes of election law, residence is synonymous with domicile, the Resolution
reveals a tendency to substitute or mistake the concept of domicile for actual residence,
a conception not intended for the purpose of determining a candidate's qualifications for
election to the House of Representatives as required by the 1987 Constitution. As it
were, residence, for the purpose of meeting the qualification for an elective position, has
a settled meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the
fulfillment of civil obligations, the domicile of natural persons is their place of habitual
residence." In Ong vs. Republic
20
this court took the concept of domicile to mean an
individual's "permanent home", "a place to which, whenever absent for business or for
pleasure, one intends to return, and depends on facts and circumstances in the sense
that they disclose intent."
21
Based on the foregoing, domicile includes the twin elements
of "the fact of residing or physical presence in a fixed place" and animus manendi, or the
intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of an individual to a
certain place. It is the physical presence of a person in a given area, community or
country. The essential distinction between residence and domicile in law is that
residence involves the intent to leave when the purpose for which the resident has taken
up his abode ends. One may seek a place for purposes such as pleasure, business, or
health. If a person's intent be to remain, it becomes his domicile; if his intent is to leave
as soon as his purpose is established it is residence.
22
It is thus, quite perfectly normal
for an individual to have different residences in various places. However, a person can
only have a single domicile, unless, for various reasons, he successfully abandons his
domicile in favor of another domicile of choice. In Uytengsu vs. Republic,
23
we laid this
distinction quite clearly:
There is a difference between domicile and residence. "Residence" is
used to indicate a place of abode, whether permanent or temporary;
"domicile" denotes a fixed permanent residence to which, when absent,
one has the intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile, but domicile is
residence coupled with the intention to remain for an unlimited time. A
man can have but one domicile for the same purpose at any time, but he
may have numerous places of residence. His place of residence is
generally his place of domicile, but it is not by any means necessarily so
since no length of residence without intention of remaining will constitute
domicile.
For political purposes the concepts of residence and domicile are dictated by the
peculiar criteria of political laws. As these concepts have evolved in our election law,
what has clearly and unequivocally emerged is the fact that residence for election
purposes is used synonymously with domicile.
In Nuval vs. Guray,
24
the Court held that "the term residence. . . is synonymous with
domicile which imports not only intention to reside in a fixed place, but also personal
presence in that place, coupled with conduct indicative of such intention."
25
Larena
vs. Teves
26
reiterated the same doctrine in a case involving the qualifications of the
respondent therein to the post of Municipal President of Dumaguete, Negros
Oriental. Faypon vs. Quirino,
27
held that the absence from residence to pursue studies
or practice a profession or registration as a voter other than in the place where one is
elected does not constitute loss of residence.
28
So settled is the concept (of domicile) in
our election law that in these and other election law cases, this Court has stated that the
mere absence of an individual from his permanent residence without the intention to
abandon it does not result in a loss or change of domicile.
The deliberations of the 1987 Constitution on the residence qualification for certain
elective positions have placed beyond doubt the principle that when the Constitution
speaks of "residence" in election law, it actually means only "domicile" to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971
Constitutional Convention, there was an attempt to require residence in
the place not less than one year immediately preceding the day of the
elections. So my question is: What is the Committee's concept of
residence of a candidate for the legislature? Is it actual residence or is it
the concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of the
National Assembly are concerned, the proposed section merely provides,
among others, "and a resident thereof", that is, in the district for a period
of not less than one year preceding the day of the election. This was in
effect lifted from the 1973 Constitution, the interpretation given to it was
domicile.
29

xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2. I think
Commissioner Nolledo has raised the same point that "resident" has been
interpreted at times as a matter of intention rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper
time to go back to actual residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially
considering that a provision in the Constitution in the Article on Suffrage
says that Filipinos living abroad may vote as enacted by law. So, we have
to stick to the original concept that it should be by domicile and not
physical residence.
30

In Co vs. Electoral Tribunal of the House of Representatives,
31
this Court concluded that
the framers of the 1987 Constitution obviously adhered to the definition given to the term
residence in election law, regarding it as having the same meaning as domicile.
32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos
satisfied the residency requirement mandated by Article VI, Sec. 6 of the 1987
Constitution? Of what significance is the questioned entry in petitioner's Certificate of
Candidacy stating her residence in the First Legislative District of Leyte as seven (7)
months?
It is the fact of residence, not a statement in a certificate of candidacy which ought to be
decisive in determining whether or not and individual has satisfied the constitution's
residency qualification requirement. The said statement becomes material only when
there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which
would otherwise render a candidate ineligible. It would be plainly ridiculous for a
candidate to deliberately and knowingly make a statement in a certificate of candidacy
which would lead to his or her disqualification.
It stands to reason therefore, that petitioner merely committed an honest mistake in
jotting the word "seven" in the space provided for the residency qualification
requirement. The circumstances leading to her filing the questioned entry obviously
resulted in the subsequent confusion which prompted petitioner to write down the period
of her actual stay in Tolosa, Leyte instead of her period of residence in the First district,
which was "since childhood" in the space provided. These circumstances and events are
amply detailed in the COMELEC's Second Division's questioned resolution, albeit with a
different interpretation. For instance, when herein petitioner announced that she would
be registering in Tacloban City to make her eligible to run in the First District, private
respondent Montejo opposed the same, claiming that petitioner was a resident of
Tolosa, not Tacloban City. Petitioner then registered in her place of actual residence in
the First District, which is Tolosa, Leyte, a fact which she subsequently noted down in
her Certificate of Candidacy. A close look at said certificate would reveal the possible
source of the confusion: the entry for residence (Item No. 7) is followed immediately by
the entry for residence in the constituency where a candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte
POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot,
Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO
BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________
Years and Seven Months.
Having been forced by private respondent to register in her place of actual residence in
Leyte instead of petitioner's claimed domicile, it appears that petitioner had jotted down
her period of stay in her legal residence or domicile. The juxtaposition of entries in Item 7
and Item 8 the first requiring actual residence and the second requiring domicile
coupled with the circumstances surrounding petitioner's registration as a voter in Tolosa
obviously led to her writing down an unintended entry for which she could be
disqualified. This honest mistake should not, however, be allowed to negate the fact of
residence in the First District if such fact were established by means more convincing
than a mere entry on a piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not possibly be in the First
District of Leyte, the Second Division of the COMELEC, in its assailed Resolution of April
24,1995 maintains that "except for the time when (petitioner) studied and worked for
some years after graduation in Tacloban City, she continuously lived in Manila." The
Resolution additionally cites certain facts as indicative of the fact that petitioner's
domicile ought to be any place where she lived in the last few decades except Tacloban,
Leyte. First, according to the Resolution, petitioner, in 1959, resided in San Juan, Metro
Manila where she was also registered voter. Then, in 1965, following the election of her
husband to the Philippine presidency, she lived in San Miguel, Manila where she as a
voter. In 1978 and thereafter, she served as a member of the Batasang Pambansa and
Governor of Metro Manila. "She could not, have served these positions if she had not
been a resident of Metro Manila," the COMELEC stressed. Here is where the confusion
lies.
We have stated, many times in the past, that an individual does not lose his domicile
even if he has lived and maintained residences in different places. Residence, it bears
repeating, implies a factual relationship to a given place for various purposes. The
absence from legal residence or domicile to pursue a profession, to study or to do other
things of a temporary or semi-permanent nature does not constitute loss of residence.
Thus, the assertion by the COMELEC that "she could not have been a resident of
Tacloban City since childhood up to the time she filed her certificate of candidacy
because she became a resident of many places" flies in the face of settled jurisprudence
in which this Court carefully made distinctions between (actual) residence and domicile
for election law purposes. In Larena vs. Teves,
33
supra, we stressed:
[T]his court is of the opinion and so holds that a person who has his own
house wherein he lives with his family in a municipality without having
ever had the intention of abandoning it, and without having lived either
alone or with his family in another municipality, has his residence in the
former municipality, notwithstanding his having registered as an elector in
the other municipality in question and having been a candidate for various
insular and provincial positions, stating every time that he is a resident of
the latter municipality.
More significantly, in Faypon vs. Quirino,
34
We explained that:
A citizen may leave the place of his birth to look for "greener pastures," as
the saying goes, to improve his lot, and that, of course includes study in
other places, practice of his avocation, or engaging in business. When an
election is to be held, the citizen who left his birthplace to improve his lot
may desire to return to his native town to cast his ballot but for
professional or business reasons, or for any other reason, he may not
absent himself from his professional or business activities; so there he
registers himself as voter as he has the qualifications to be one and is not
willing to give up or lose the opportunity to choose the officials who are to
run the government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile or
residence of origin has not forsaken him. This may be the explanation
why the registration of a voter in a place other than his residence of origin
has not been deemed sufficient to constitute abandonment or loss of such
residence. It finds justification in the natural desire and longing of every
person to return to his place of birth. This strong feeling of attachment to
the place of one's birth must be overcome by positive proof of
abandonment for another.
From the foregoing, it can be concluded that in its above-cited statements supporting its
proposition that petitioner was ineligible to run for the position of Representative of the
First District of Leyte, the COMELEC was obviously referring to petitioner's various
places of (actual) residence, not her domicile. In doing so, it not only ignored settled
jurisprudence on residence in election law and the deliberations of the constitutional
commission but also the provisions of the Omnibus Election Code (B.P. 881).
35

What is undeniable, however, are the following set of facts which establish the fact of
petitioner's domicile, which we lift verbatim from the COMELEC's Second Division's
assailed Resolution:
36

In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She studied
in the Holy Infant Academy in Tacloban from 1938 to 1949 when she
graduated from high school. She pursued her college studies in St. Paul's
College, now Divine Word University in Tacloban, where she earned her
degree in Education. Thereafter, she taught in the Leyte Chinese School,
still in Tacloban City. In 1952 she went to Manila to work with her cousin,
the late speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-President Ferdinand E. Marcos
when he was still a congressman of Ilocos Norte and registered there as
a voter. When her husband was elected Senator of the Republic in 1959,
she and her husband lived together in San Juan, Rizal where she
registered as a voter. In 1965, when her husband was elected President
of the Republic of the Philippines, she lived with him in Malacanang
Palace and registered as a voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her family were abducted
and kidnapped to Honolulu, Hawaii. In November 1991, she came home
to Manila. In 1992, respondent ran for election as President of the
Philippines and filed her Certificate of Candidacy wherein she indicated
that she is a resident and registered voter of San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC, what is inescapable
is that petitioner held various residences for different purposes during the last four
decades. None of these purposes unequivocally point to an intention to abandon her
domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a
minor she naturally followed the domicile of her parents. She grew up in Tacloban,
reached her adulthood there and eventually established residence in different parts of
the country for various reasons. Even during her husband's presidency, at the height of
the Marcos Regime's powers, petitioner kept her close ties to her domicile of origin by
establishing residences in Tacloban, celebrating her birthdays and other important
personal milestones in her home province, instituting well-publicized projects for the
benefit of her province and hometown, and establishing a political power base where her
siblings and close relatives held positions of power either through the ballot or by
appointment, always with either her influence or consent. These well-publicized ties to
her domicile of origin are part of the history and lore of the quarter century of Marcos
power in our country. Either they were entirely ignored in the COMELEC'S Resolutions,
or the majority of the COMELEC did not know what the rest of the country always knew:
the fact of petitioner's domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was not petitioner's
domicile of origin because she did not live there until she was eight years old. He avers
that after leaving the place in 1952, she "abandoned her residency (sic) therein for many
years and . . . (could not) re-establish her domicile in said place by merely expressing
her intention to live there again." We do not agree.
First, minor follows the domicile of his parents. As domicile, once acquired is retained
until a new one is gained, it follows that in spite of the fact of petitioner's being born in
Manila, Tacloban, Leyte was her domicile of origin by operation of law. This domicile
was not established only when her father brought his family back to Leyte contrary to
private respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect a change of domicile,
one must demonstrate:
37

1. An actual removal or an actual change of domicile;
2. A bona fide intention of abandoning the former place of residence and
establishing a new one; and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these criteria, the residence of origin
should be deemed to continue. Only with evidence showing concurrence of all three
requirements can the presumption of continuity or residence be rebutted, for a change of
residence requires an actual and deliberate abandonment, and one cannot have two
legal residences at the same time.
38
In the case at bench, the evidence adduced by
private respondent plainly lacks the degree of persuasiveness required to convince this
court that an abandonment of domicile of origin in favor of a domicile of choice indeed
occurred. To effect an abandonment requires the voluntary act of relinquishing
petitioner's former domicile with an intent to supplant the former domicile with one of her
own choosing (domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner lost her domicile of origin
by operation of law as a result of her marriage to the late President Ferdinand E. Marcos
in 1952. For there is a clearly established distinction between the Civil Code concepts of
"domicile" and "residence."
39
The presumption that the wife automatically gains the
husband's domicile by operation of law upon marriage cannot be inferred from the use of
the term "residence" in Article 110 of the Civil Code because the Civil Code is one area
where the two concepts are well delineated. Dr. Arturo Tolentino, writing on this specific
area explains:
In the Civil Code, there is an obvious difference between domicile and
residence. Both terms imply relations between a person and a place; but
in residence, the relation is one of fact while in domicile it is legal or
juridical, independent of the necessity of physical presence.
40

Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the residence of the family. But the
court may exempt the wife from living with the husband if he should live
abroad unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts of domicile or
residence as they affect the female spouse upon marriage yields nothing which would
suggest that the female spouse automatically loses her domicile of origin in favor of the
husband's choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which
states:
La mujer esta obligada a seguir a su marido donde quiera que fije su
residencia. Los Tribunales, sin embargo, podran con justa causa eximirla
de esta obligacion cuando el marido transende su residencia a ultramar o'
a pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted
article, which means wherever (the husband) wishes to establish residence. This part of
the article clearly contemplates only actual residence because it refers to a positive act
of fixing a family home or residence. Moreover, this interpretation is further strengthened
by the phrase "cuando el marido translade su residencia" in the same provision which
means, "when the husband shall transfer his residence," referring to another positive act
of relocating the family to another home or place of actual residence. The article
obviously cannot be understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one
place to another not only once, but as often as the husband may deem fit to move his
family, a circumstance more consistent with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony with the intention of the
law to strengthen and unify the family, recognizing the fact that the husband and the wife
bring into the marriage different domiciles (of origin). This difference could, for the sake
of family unity, be reconciled only by allowing the husband to fix a single place of actual
residence.
Very significantly, Article 110 of the Civil Code is found under Title V under the heading:
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately
preceding Article 110 is Article 109 which obliges the husband and wife to live together,
thus:
Art. 109. The husband and wife are obligated to live together, observe
mutual respect and fidelity and render mutual help and support.
The duty to live together can only be fulfilled if the husband and wife are physically
together. This takes into account the situations where the couple has many residences
(as in the case of the petitioner). If the husband has to stay in or transfer to any one of
their residences, the wife should necessarily be with him in order that they may "live
together." Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not to
"residence." Otherwise, we shall be faced with a situation where the wife is left in the
domicile while the husband, for professional or other reasons, stays in one of their
(various) residences. As Dr. Tolentino further explains:
Residence and Domicile Whether the word "residence" as used with
reference to particular matters is synonymous with "domicile" is a
question of some difficulty, and the ultimate decision must be made from
a consideration of the purpose and intent with which the word is used.
Sometimes they are used synonymously, at other times they are
distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring to the physical
presence of a person in a place. A person can have two or more
residences, such as a country residence and a city residence. Residence
is acquired by living in place; on the other hand, domicile can exist
without actually living in the place. The important thing for domicile is that,
once residence has been established in one place, there be an intention
to stay there permanently, even if residence is also established in some
other
place.
41

In fact, even the matter of a common residence between the husband and the wife
during the marriage is not an iron-clad principle; In cases applying the Civil Code on the
question of a common matrimonial residence, our jurisprudence has recognized certain
situations
42
where the spouses could not be compelled to live with each other such that
the wife is either allowed to maintain a residence different from that of her husband or,
for obviously practical reasons, revert to her original domicile (apart from being allowed
to opt for a new one). In De la Vina vs. Villareal
43
this Court held that "[a] married
woman may acquire a residence or domicile separate from that of her husband during
the existence of the marriage where the husband has given cause for divorce."
44
Note
that the Court allowed the wife either to obtain new residence or to choose a new
domicile in such an event. In instances where the wife actually opts, .under the Civil
Code, to live separately from her husband either by taking new residence or reverting to
her domicile of origin, the Court has held that the wife could not be compelled to live with
her husband on pain of contempt. In Arroyo vs. Vasques de Arroyo
45
the Court held that:
Upon examination of the authorities, we are convinced that it is not within
the province of the courts of this country to attempt to compel one of the
spouses to cohabit with, and render conjugal rights to, the other. Of
course where the property rights of one of the pair are invaded, an action
for restitution of such rights can be maintained. But we are disinclined to
sanction the doctrine that an order, enforcible (sic) by process of
contempt, may be entered to compel the restitution of the purely personal
right of consortium. At best such an order can be effective for no other
purpose than to compel the spouses to live under the same roof; and he
experience of those countries where the courts of justice have assumed
to compel the cohabitation of married people shows that the policy of the
practice is extremely questionable. Thus in England, formerly the
Ecclesiastical Court entertained suits for the restitution of conjugal rights
at the instance of either husband or wife; and if the facts were found to
warrant it, that court would make a mandatory decree, enforceable by
process of contempt in case of disobedience, requiring the delinquent
party to live with the other and render conjugal rights. Yet this practice
was sometimes criticized even by the judges who felt bound to enforce
such orders, and in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir
James Hannen, President in the Probate, Divorce and Admiralty Division
of the High Court of Justice, expressed his regret that the English law on
the subject was not the same as that which prevailed in Scotland, where
a decree of adherence, equivalent to the decree for the restitution of
conjugal rights in England, could be obtained by the injured spouse, but
could not be enforced by imprisonment. Accordingly, in obedience to the
growing sentiment against the practice, the Matrimonial Causes Act
(1884) abolished the remedy of imprisonment; though a decree for the
restitution of conjugal rights can still be procured, and in case of
disobedience may serve in appropriate cases as the basis of an order for
the periodical payment of a stipend in the character of alimony.
In the voluminous jurisprudence of the United States, only one court, so
far as we can discover, has ever attempted to make a preemptory order
requiring one of the spouses to live with the other; and that was in a case
where a wife was ordered to follow and live with her husband, who had
changed his domicile to the City of New Orleans. The decision referred to
(Bahn v. Darby, 36 La. Ann., 70) was based on a provision of the Civil
Code of Louisiana similar to article 56 of the Spanish Civil Code. It was
decided many years ago, and the doctrine evidently has not been fruitful
even in the State of Louisiana. In other states of the American Union the
idea of enforcing cohabitation by process of contempt is rejected. (21
Cyc., 1148).
In a decision of January 2, 1909, the Supreme Court of Spain appears to
have affirmed an order of the Audiencia Territorial de Valladolid requiring
a wife to return to the marital domicile, and in the alternative, upon her
failure to do so, to make a particular disposition of certain money and
effects then in her possession and to deliver to her husband, as
administrator of the ganancial property, all income, rents, and interest
which might accrue to her from the property which she had brought to the
marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order
for the return of the wife to the marital domicile was sanctioned by any
other penalty than the consequences that would be visited upon her in
respect to the use and control of her property; and it does not appear that
her disobedience to that order would necessarily have been followed by
imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman Marcos, in 1954,
petitioner was obliged by virtue of Article 110 of the Civil Code to follow her
husband's actual place of residence fixed by him. The problem here is that at that time,
Mr. Marcos had several places of residence, among which were San Juan, Rizal and
Batac, Ilocos Norte. There is no showing which of these places Mr. Marcos did fix as his
family's residence. But assuming that Mr. Marcos had fixed any of these places as the
conjugal residence, what petitioner gained upon marriage was actual residence. She did
not lose her domicile of origin.
On the other hand, the common law concept of "matrimonial domicile" appears to have
been incorporated, as a result of our jurisprudential experiences after the drafting of the
Civil Code of 1950, into the New Family Code. To underscore the difference between the
intentions of the Civil Code and the Family Code drafters, the term residence has been
supplanted by the term domicile in an entirely new provision (Art. 69) distinctly different
in meaning and spirit from that found in Article 110. The provision recognizes
revolutionary changes in the concept of women's rights in the intervening years by
making the choice of domicile a product of mutual agreement between the spouses.
46

Without as much belaboring the point, the term residence may mean one thing in civil
law (or under the Civil Code) and quite another thing in political law. What stands clear is
that insofar as the Civil Code is concerned-affecting the rights and obligations of
husband and wife the term residence should only be interpreted to mean "actual
residence." The inescapable conclusion derived from this unambiguous civil law
delineation therefore, is that when petitioner married the former President in 1954, she
kept her domicile of origin and merely gained a new home, not a domicilium
necessarium.
Even assuming for the sake of argument that petitioner gained a new "domicile" after her
marriage and only acquired a right to choose a new one after her husband died,
petitioner's acts following her return to the country clearly indicate that she not only
impliedly but expressly chose her domicile of origin (assuming this was lost by operation
of law) as her domicile. This "choice" was unequivocally expressed in her letters to the
Chairman of the PCGG when petitioner sought the PCGG's permission to "rehabilitate
(our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them livable for
the Marcos family to have a home in our homeland."
47
Furthermore, petitioner obtained
her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house,
an act which supports the domiciliary intention clearly manifested in her letters to the
PCGG Chairman. She could not have gone straight to her home in San Juan, as it was
in a state of disrepair, having been previously looted by vandals. Her "homes" and
"residences" following her arrival in various parts of Metro Manila merely qualified as
temporary or "actual residences," not domicile. Moreover, and proceeding from our
discussion pointing out specific situations where the female spouse either reverts to her
domicile of origin or chooses a new one during the subsistence of the marriage, it would
be highly illogical for us to assume that she cannot regain her original domicile upon the
death of her husband absent a positive act of selecting a new one where situations exist
within the subsistence of the marriage itself where the wife gains a domicile different
from her husband.
In the light of all the principles relating to residence and domicile enunciated by this court
up to this point, we are persuaded that the facts established by the parties weigh heavily
in favor of a conclusion supporting petitioner's claim of legal residence or domicile in the
First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering
that the assailed resolutions were rendered on April 24, 1995, fourteen (14) days before
the election in violation of Section 78 of the Omnibus Election Code.
48
Moreover,
petitioner contends that it is the House of Representatives Electoral Tribunal and not the
COMELEC which has jurisdiction over the election of members of the House of
Representatives in accordance with Article VI Sec. 17 of the Constitution. This is
untenable.
It is a settled doctrine that a statute requiring rendition of judgment within a specified
time is generally construed to be merely directory,
49
"so that non-compliance with them
does not invalidate the judgment on the theory that if the statute had intended such
result it would have clearly indicated it."
50
The difference between a mandatory and a
directory provision is often made on grounds of necessity. Adopting the same view held
by several American authorities, this court inMarcelino vs. Cruz held that:
51

The difference between a mandatory and directory provision is often
determined on grounds of expediency, the reason being that less injury
results to the general public by disregarding than enforcing the letter of
the law.
In Trapp v. Mc Cormick, a case calling for the interpretation of a statute
containing a limitation of thirty (30) days within which a decree may be
entered without the consent of counsel, it was held that "the statutory
provisions which may be thus departed from with impunity, without
affecting the validity of statutory proceedings, are usually those which
relate to the mode or time of doing that which is essential to effect the aim
and purpose of the Legislature or some incident of the essential act."
Thus, in said case, the statute under examination was construed merely
to be directory.
The mischief in petitioner's contending that the COMELEC should have abstained from
rendering a decision after the period stated in the Omnibus Election Code because it
lacked jurisdiction, lies in the fact that our courts and other quasi-judicial bodies would
then refuse to render judgments merely on the ground of having failed to reach a
decision within a given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section
78 of B.P. 881,
52
it is evident that the respondent Commission does not lose jurisdiction
to hear and decide a pending disqualification case under Section 78 of B.P. 881 even
after the elections.
As to the House of Representatives Electoral Tribunal's supposed assumption of
jurisdiction over the issue of petitioner's qualifications after the May 8, 1995 elections,
suffice it to say that HRET's jurisdiction as the sole judge of all contests relating to the
elections, returns and qualifications of members of Congress begins only after a
candidate has become a member of the House of Representatives.
53
Petitioner not
being a member of the House of Representatives, it is obvious that the HRET at this
point has no jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us
to either to ignore or deliberately make distinctions in law solely on the basis of the
personality of a petitioner in a case. Obviously a distinction was made on such a ground
here. Surely, many established principles of law, even of election laws were flouted for
the sake perpetuating power during the pre-EDSA regime. We renege on these sacred
ideals, including the meaning and spirit of EDSA ourselves bending established
principles of principles of law to deny an individual what he or she justly deserves in law.
Moreover, in doing so, we condemn ourselves to repeat the mistakes of the past.
WHEREFORE, having determined that petitioner possesses the necessary residence
qualifications to run for a seat in the House of Representatives in the First District of
Leyte, the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and May
25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the
Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative
of the First District of Leyte.
SO ORDERED.
Feliciano, J., is on leave.



Separate Opinions

PUNO, J ., concurring:
It was Aristotle who taught mankind that things that are alike should be treated alike,
while things that are unalike should be treated unalike in proportion to their
unalikeness.
1
Like other candidates, petitioner has clearly met the residence
requirement provided by Section 6, Article VI of the Constitution.
2
We cannot disqualify
her and treat her unalike, for the Constitution guarantees equal protection of the law. I
proceed from the following factual and legal propositions:
First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her
parents were domiciled in Tacloban. Their ancestral house is in Tacloban. They have
vast real estate in the place. Petitioner went to school and thereafter worked there. I
consider Tacloban as her initial domicile, both her domicile of origin and her domicile of
choice. Her domicile of origin as it was the domicile of her parents when she was a
minor; and her domicile of choice, as she continued living there even after reaching the
age of majority.
Second. There is also no question that in May, 1954, petitioner married the late
President Ferdinand E. Marcos. By contracting marriage, her domicile became subject to
change by law, and the right to change it was given by Article 110 of the Civil Code
provides:
Art. 110. The husband shall fix the residence of the family. But the court
may exempt the wife from living with the husband if he should live abroad
unless in the service of the Republic.
3
(Emphasis supplied)
In De la Via v. Villareal and Geopano,
4
this Court explained why the domicile of
the wife ought to follow that of the husband. We held: "The reason is founded
upon the theoretic identity of person and interest between the husband and the
wife, and the presumption that, from the nature of the relation, the home of one is
the home of the other. It is intended to promote, strengthen, and secure their
interests in this relation, as it ordinarily exists, where union and harmony
prevail."
5
In accord with this objective, Article 109 of the Civil Code also obligated
the husband and wife "to live together."
Third. The difficult issues start as we determine whether petitioner's marriage to former
President Marcos ipso facto resulted in the loss of her Tacloban domicile. I respectfully
submit that her marriage by itself alone did not cause her to lose her Tacloban domicile.
Article 110 of the Civil Code merely gave the husband the right to fix the domicile of the
family. In the exercise of the right, the husband may explicitly choose the prior domicile
of his wife, in which case, the wife's domicile remains unchanged. The husband can
also implicitly acquiesce to his wife's prior domicile even if it is different. So we held in de
la Via,
6

. . . . When married women as well as children subject to parental
authority live, with the acquiescence of their husbands or fathers, in a
place distinct from where the latter live, they have their
own independent domicile. . . .
It is not, therefore, the mere fact of marriage but the deliberate choice of a
different domicile by the husband that will change the domicile of a wife from
what it was prior to their marriage. The domiciliary decision made by the husband
in the exercise of the right conferred by Article 110 of the Civil Code binds the
wife. Any and all acts of a wife during her coverture contrary to the domiciliary
choice of the husband cannot change in any way the domicile legally fixed by the
husband. These acts are void not only because the wife lacks the capacity to
choose her domicile but also because they are contrary to law and public policy.
In the case at bench, it is not disputed that former President Marcos exercised his right
to fix the family domicile and established it in Batac, Ilocos Norte, where he was then the
congressman. At that particular point of time and throughout their married life, petitioner
lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has been fixed by
operation of law, it was not affected in 1959 when her husband was elected as Senator,
when they lived in San Juan, Rizal and where she registered as a voter. It was not also
affected in 1965 when her husband was elected President, when they lived in
Malacaang Palace, and when she registered as a voter in San Miguel, Manila. Nor was
it affected when she served as a member of the Batasang Pambansa, Minister of
Human Settlements and Governor of Metro Manila during the incumbency of her
husband as President of the nation. Under Article 110 of the Civil Code, it was only her
husband who could change the family domicile in Batac and the evidence shows he did
not effect any such change. To a large degree, this follows the common law that "a
woman on her marriage loses her own domicile and by operation of law, acquires that of
her husband, no matter where the wife actually lives or what she believes or intends."
7

Fourth. The more difficult task is how to interpret the effect of the death on September
28, 1989 of former President Marcos on petitioner's Batac domicile. The issue is of first
impression in our jurisdiction and two (2) schools of thought contend for acceptance.
One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily relying
on American authorities.
8
He echoes the theory that after the husband's death, the wife
retains the last domicile of her husband until she makes an actual change.
I do not subscribe to this submission. The American case law that the wife still retains
her dead husband's domicile is based on ancient common law which we can no longer
apply in the Philippine setting today. The common law identified the domicile of a wife as
that of the husband and denied to her the power of acquiring a domicile of her own
separate and apart from him.
9
Legal scholars agree that two (2) reasons support this
common law doctrine. The first reason as pinpointed by the legendary Blackstone is
derived from the view that "the very being or legal existence of the woman is suspended
during
the marriage, or at least is incorporated and consolidated into that of the
husband."
10
The second reason lies in "the desirability of having the interests of each
member of the family unit governed by the same law."
11
The presumption that the wife
retains the domicile of her deceased husband is an extension of this common law
concept. The concept and its extension have provided some of the most iniquitous
jurisprudence against women. It was under common law that the 1873 American case
of Bradwell v. Illinois
12
was decided where women were denied the right to practice law.
It was unblushingly ruled that "the natural and proper timidity and delicacy which belongs
to the female sex evidently unfits it for many of the occupations of civil life . . . This is the
law of the Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS
13
and
AM JUR 2d
14
are American state court decisions handed down between the years
1917
15
and 1938,
16
or before the time when women were accorded equality of rights
with men. Undeniably, the women's liberation movement resulted in far-ranging state
legislations in the United States to eliminate gender inequality.
17
Starting in the decade
of the seventies, the courts likewise liberalized their rulings as they started invalidating
laws infected with gender-bias. It was in 1971 when the US Supreme Court in Reed
v. Reed,
18
struck a big blow for women equality when it declared as unconstitutional an
Idaho law that required probate courts to choose male family members over females as
estate administrators. It held that mere administrative inconvenience cannot justify a
sex-based distinction. These significant changes both in law and in case law on the
status of women virtually obliterated the iniquitous common law surrendering the rights
of married women to their husbands based on the dubious theory of the parties' theoretic
oneness. The Corpus Juris Secundum editors did not miss the relevance of this
revolution on women's right as they observed: "However, it has been declared that
under modern statutes changing the status of married women and departing from the
common law theory of marriage, there is no reason why a wife may not acquire a
separate domicile for every purpose known to the law."
19
In publishing in 1969
theRestatement of the Law, Second (Conflict of Laws 2d), the reputable American Law
Institute also categorically stated that the view of Blackstone ". . . is no longer held. As
the result of statutes and court decisions, a wife now possesses practically the same
rights and powers as her unmarried sister."
20

In the case at bench, we have to decide whether we should continue clinging to
the anachronistic common lawthat demeans women, especially married women. I submit
that the Court has no choice except to break away from this common law rule, the root of
the many degradations of Filipino women. Before 1988, our laws particularly the Civil
Code, were full of gender discriminations against women. Our esteemed colleague,
Madam Justice Flerida Ruth Romero, cited a few of them as follows:
21

xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under the Civil Code, wives suffer
under certain restrictions or disabilities. For instance, the wife cannot
accept gifts from others, regardless of the sex of the giver or the value of
the gift, other than from her very close relatives, without her husband's
consent. She may accept only from, say, her parents, parents-in-law,
brothers, sisters and the relatives within the so-called fourth civil degree.
She may not exercise her profession or occupation or engage in business
if her husband objects on serious grounds or if his income is sufficient to
support their family in accordance with their social standing. As to what
constitutes "serious grounds" for objecting, this is within the discretion of
the husband.
xxx xxx xxx
Because of the present inequitable situation, the amendments to the Civil
Law being proposed by the University of the Philippines Law Center
would allow absolute divorce which severes the matrimonial ties, such
that the divorced spouses are free to get married a year after the divorce
is decreed by the courts. However, in order to place the husband and wife
on an equal footing insofar as the bases for divorce are concerned, the
following are specified as the grounds for absolute divorce: (1) adultery or
having a paramour committed by the respondent in any of the ways
specified in the Revised Penal Code or (2) an attempt by the respondent
against the life of the petitioner which amounts to attempted parricide
under the Revised Penal Code; (3) abandonment of the petitioner by the
respondent without just cause for a period of three consecutive years; or
(4) habitual maltreatment.
With respect to property relations, the husband is automatically the
administrator of the conjugal property owned in common by the married
couple even if the wife may be the more astute or enterprising partner.
The law does not leave it to the spouses to decide who shall act as such
administrator. Consequently, the husband is authorized to engage in acts
and enter into transactions beneficial to the conjugal partnership. The
wife, however, cannot similarly bind the partnership without the husband's
consent.
And while both exercise joint parental authority over their children, it is the
father whom the law designates as the legal administrator of the property
pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally through
legislations, to eliminate inequality between men and women in our land. The
watershed came on August 3, 1988 when our Family Code took effect which,
among others, terminated the unequal treatment of husband and wife as to their
rights and responsibilities.
22

The Family Code attained this elusive objective by giving new rights to married women
and by abolishing sex-based privileges of husbands. Among others, married women are
now given the joint right to administer the family property, whether in the absolute
community system or in the system of conjugal partnership;
23
joint parental authority
over their minor children, both over their persons as well as their properties;
24
joint
responsibility for the support of the family;
25
the right to jointly manage the
household;
26
and, the right to object to their husband's exercise of profession,
occupation, business or activity.
27
Of particular relevance to the case at bench is Article
69 of the Family Code which took away the exclusive right of the husband to fix the
family domicile and gave it jointly to the husband and the wife, thus:
Art. 69. The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter
should live abroad or there are other valid and compelling reasons for the
exemption. However, such exemption shall not apply if the same is not
compatible with the solidarity of the family. (Emphasis supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the
husband and wife to live together, former Madam Justice Alice Sempio-Diy of the
Court of Appeals specified the instances when a wife may now refuse to live with
her husband, thus:
28

(2) The wife has the duty to live with her husband, but she may refuse to
do so in certain cases like:
(a) If the place chosen by the husband as family residence
is dangerous to her Life;
(b) If the husband subjects her to maltreatment or abusive
conduct or insults, making common life impossible;
(c) If the husband compels her to live with his parents, but
she cannot get along with her mother-in-law and they have
constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG
6122);
(d) Where the husband has continuously carried illicit
relations for 10 years with different women and treated his
wife roughly and without consideration. (Dadivas v.
Villanueva, 54 Phil. 92);
(e) Where the husband spent his time in gambling, giving
no money to his family for food and necessities, and at the
same time insulting his wife and laying hands on her.
(Panuncio v. Sula, CA, 34 OG 129);
(f) If the husband has no fixed residence and lives a
vagabond life as a tramp (1 Manresa 329);
(g) If the husband is carrying on a shameful business at
home (Gahn v. Darby, 38 La. Ann. 70).
The inescapable conclusion is that our Family Code has completely emancipated
the wife from the control of the husband, thus abandoning the parties' theoretic
identity of interest. No less than the late revered Mr. Justice J.B.L. Reyes who
chaired the Civil Code Revision Committee of the UP Law Center gave this
insightful view in one of his rare lectures after retirement:
29

xxx xxx xxx
The Family Code is primarily intended to reform the family law so as to
emancipate the wife from the exclusive control of the husband and to
place her at parity with him insofar as the family is concerned. The wife
and the husband are now placed on equal standing by the Code. They
are now joint administrators of the family properties and exercise joint
authority over the persons and properties of their children. This means a
dual authority in the family. The husband will no longer prevail over the
wife but she has to agree on all matters concerning the family. (Emphasis
supplied)
In light of the Family Code which abrogated the inequality between husband and
wife as started and perpetuated by the common law, there is no reason in
espousing the anomalous rule that the wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which provides the statutory support for
this stance has been repealed by Article 69 of the Family Code. By its repeal, it
becomes a dead-letter law, and we are not free to resurrect it by giving it further
effect in any way or manner such as by ruling that the petitioner is still bound by
the domiciliary determination of her dead husband.
Aside from reckoning with the Family Code, we have to consider our Constitution and its
firm guarantees of due process and equal protection of
law.
30
It can hardly be doubted that the common law imposition on a married woman of
her dead husband's domicile even beyond his grave is patently discriminatory to women.
It is a gender-based discrimination and is not rationally related to the objective of
promoting family solidarity. It cannot survive a constitutional challenge. Indeed,
compared with our previous fundamental laws, the 1987 Constitution is more concerned
with equality between sexes as it explicitly commands that the State ". . . shall ensure
fundamental equality before the law of women and men." To be exact, section 14, Article
II provides: "The State recognizes the role of women in nation building, and shall ensure
fundamental equality before the law of women and men. We shall be transgressing the
sense and essence of this constitutional mandate if we insist on giving our women the
caveman's treatment.
Prescinding from these premises, I respectfully submit that the better stance is to rule
that petitioner reacquired her Tacloban domicile upon the death of her husband in 1989.
This is the necessary consequence of the view that petitioner's Batac dictated domicile
did not continue after her husband's death; otherwise, she would have no domicile and
that will violate the universal rule that no person can be without a domicile at any point of
time. This stance also restores the right of petitioner to choose her domicile before it was
taken away by Article 110 of the Civil Code, a right now recognized by the Family Code
and protected by the Constitution. Likewise, I cannot see the fairness of the common law
requiring petitioner to choose again her Tacloban domicile before she could be released
from her Batac domicile. She lost her Tacloban domicile not through her act but through
the act of her deceased husband when he fixed their domicile in Batac. Her husband is
dead and he cannot rule her beyond the grave. The law disabling her to choose her own
domicile has been repealed. Considering all these, common law should not put the
burden on petitioner to prove she has abandoned her dead husband's domicile. There is
neither rhyme nor reason for this gender-based burden.
But even assuming arguendo that there is need for convincing proof that petitioner
chose to reacquire her Tacloban domicile, still, the records reveal ample evidence to this
effect. In her affidavit submitted to the respondent COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to our beloved country, after
several requests for my return were denied by President Corazon C.
Aquino, and after I filed suits for our Government to issue me my
passport.
37. But I came home without the mortal remains of my beloved husband,
President Ferdinand E. Marcos, which the Government considered a
threat to the national security and welfare.
38. Upon my return to the country, I wanted to immediately live and reside
in Tacloban City or in Olot, Tolosa, Leyte, even if my residences there
were not livable as they had been destroyed and cannibalized. The
PCGG, however, did not permit and allow me.
39. As a consequence, I had to live at various times in the Westin
Philippine Plaza in Pasay City, a friend's apartment on Ayala Avenue, a
house in South Forbes Park which my daughter rented, and Pacific Plaza,
all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the
residence of my brother in San Jose, Tacloban City, and pursued my
negotiations with PCGG to recover my sequestered residences in
Tacloban City and Barangay Olot, Tolosa, Leyte.
40.1 In preparation for my observance of All Saints' Day
and All Souls' Day that year, I renovated my parents' burial
grounds and entombed their bones which had been
excalvated, unearthed and scattered.
41. On November 29, 1993, I formally wrote PCGG Chairman
Magtanggol Gunigundo for permissions to
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and
farmhouse in Olot, Leyte . . . to make them livable for us
the Marcos family to have a home in our own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman
Gunigundo, in his letter to Col. Simeon Kempis, Jr., PCGG Region 8
Representative, allowed me to repair and renovate my Leyte residences. I
quote part of his letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this
Commission, that she intends to visit our sequestered
properties in Leyte, please allow her access thereto. She
may also cause repairs and renovation of the sequestered
properties, in which event, it shall be understood that her
undertaking said repairs is not authorization for her to take
over said properties, and that all expenses shall be for her
account and not reimbursable. Please extend the
necessary courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Nio Shrine
residence in Tacloban City where I wanted to stay and reside, after
repairs and renovations were completed. In August 1994, I transferred
from San Jose, Tacloban City, to my residence in Barangay Olot, Tolosa,
Leyte, when PCGG permitted me to stay and live there.
It is then clear that in 1992 petitioner reestablished her domicile in the First
District of Leyte. It is not disputed that in 1992, she first lived at the house of her
brother in San Jose, Tacloban City and later, in August 1994, she transferred her
residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the
municipality of Olot are within the First District of Leyte. Since petitioner
reestablished her old domicile in 1992 in the First District of Leyte, she more than
complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the
election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to negate the Tacloban domicile of
petitioner is nil. He presented petitioner's Voter's Registration Record filed with the
Board of Election Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein
she stated that her period of residence in said barangay was six (6) months as of the
date of her filing of said Voter's Registration Record on January 28, 1995.
31
This
statement in petitioner's Voter's Registration Record is a non-prejudicial admission. The
Constitution requires at least one (1) year residence in thedistrict in which the candidate
shall be elected. In the case at bench, the reference is the First District of Leyte.
Petitioner's statement proved that she resided in Olot six (6) months before January 28,
1995 but did not disprove that she has also resided in Tacloban City starting 1992. As
aforestated, Olot and Tacloban City are both within the First District of Leyte, hence, her
six (6) months residence in Olot should be counted not against, but in her favor. Private
respondent also presented petitioner's Certificate of Candidacy filed on March 8,
1995
32
where she placed seven (7) months after Item No. 8 which called for information
regarding "residence in the constituency where I seek to be elected immediately
preceding the election." Again, this original certificate of candidacy has no evidentiary
value because an March 1, 1995 it was corrected by petitioner. In her
Amended/Corrected Certificate of Candidacy,
33
petitioner wrote "since childhood" after
Item No. 8. The amendment of a certificate of candidacy to correct a bona fide mistake
has been allowed by this Court as a matter of course and as a matter of right. As we
held in Alialy v. COMELEC,
34
viz.:
xxx xxx xxx
The absence of the signature of the Secretary of the local chapter N.P in
the original certificate of candidacy presented before the deadline
September 11, 1959, did not render the certificate invalid.The amendment
of the certificate, although at a date after the deadline, but before the
election, was substantial compliance with the law, and the defect was
cured.
It goes without saying that petitioner's erroneous Certificate of Candidacy filed on
March 8, 1995 cannot be used as evidence against her. Private respondent's
petition for the disqualification of petitioner rested alone on these two (2) brittle
pieces of documentary evidence petitioner's Voter's Registration Record and
her original Certificate of Candidacy. Ranged against the evidence of the
petitioner showing her ceaseless contacts with Tacloban, private respondent's
two (2) pieces of evidence are too insufficient to disqualify petitioner, more so, to
deny her the right to represent the people of the First District of Leyte who have
overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for
any public office shall be free from any form of harassment and discrimination."
35
A
detached reading of the records of the case at bench will show that all forms of legal and
extra-legal obstacles have been thrown against petitioner to prevent her from running as
the people's representative in the First District of Leyte. In petitioner's Answer to the
petition to disqualify her, she averred:
36

xxx xxx xxx
10. Petitioner's (herein private respondent Montejo) motive in filing the
instant petition is devious. When respondent (petitioner herein)
announced that she was intending to register as a voter in Tacloban City
and run for Congress in the First District of Leyte, petitioner (Montejo)
immediately opposed her intended registration by writing a letter stating
that "she is not a resident of said city but of Barangay Olot, Tolosa,
Leyte." (Annex "2" of respondent's affidavit, Annex "2"). After respondent
(petitioner herein) had registered as a voter in Tolosa following
completion of her six-month actual residence therein, petitioner (Montejo)
filed a petition with the COMELEC to transfer the town of Tolosa from the
First District to the Second District and pursued such move up to the
Supreme Court in G.R. No. 118702, his purpose being to remove
respondent (petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along with
other Leyte Congressmen, seeking to create another legislative district, to
remove the town of Tolosa out of the First District and to make it a part of
the new district, to achieve his purpose. However, such bill did not pass
the Senate. Having, failed on such moves, petitioner now filed the instant
petition, for the same objective, as it is obvious that he is afraid to submit
himself along with respondent (petitioner herein) for the judgment and
verdict of the electorate of the First District of Leyte in an honest, orderly,
peaceful, free and clean elections on May 8, 1995.
These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting
Opinion,
37
held:
xxx xxx xxx
Prior to the registration date January 28, 1995 the petitioner (herein
private respondent Montejo) wrote the Election Officer of Tacloban City
not to allow respondent (petitioner herein) to register thereat since she is
a resident of Tolosa and not Tacloban City. The purpose of this move of
the petitioner (Montejo) is not lost to (sic) the Commission. In UND No.
95-001 (In the matter of the Legislative Districts of the Provinces of Leyte,
Iloilo, and South Cotabato, Out of Which the New Provinces of Biliran,
Guimaras and Saranggani Were Respectively Created), . . . Hon. Cirilo
Roy G. Montejo, Representative, First District of Leyte, wanted the
Municipality of Tolosa, in the First District of Leyte, transferred to the
Second District of Leyte. The Hon. Sergio A.F. Apostol, Representative of
the Second District of Leyte, opposed the move of the petitioner
(Montejo). Under Comelec Resolution No. 2736 (December 29, 1994),
the Commission on Elections refused to make the proposed transfer.
Petitioner (Montejo) filed "Motion for Reconsideration of Resolution
No. 2736" which the Commission denied in a Resolution promulgated on
February 1, 1995. Petitioner (Montejo) filed a petition for certiorari before
the Honorable Supreme Court (Cirilo Roy G. Montejo vs. Commission on
Elections, G.R. No. 118702) questioning the resolution of the
Commission. Believing that he could get a favorable ruling from the
Supreme Court, petitioner (Montejo) tried to make sure that the
respondent (petitioner herein) will register as a voter in Tolosa so that she
will be forced to run as Representative not in the First but in the Second
District.
It did not happen. On March 16, 1995, the Honorable Supreme Court
unanimously promulgated a "Decision," penned by Associate Justice
Reynato S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736
insofar as it transferred the municipality of Capoocan of the
Second District and the municipality of Palompon of the
Fourth District to the Third District of the province of Leyte,
is annulled and set aside. We also deny the Petition
praying for the transfer of the municipality of Tolosa from
the First District to the Second District of the province of
Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent (petitioner
herein) was constrained to register in the Municipality of Tolosa where her
house is instead of Tacloban City, her domicile. In any case, both
Tacloban City and Tolosa are in the First Legislative District.
All these attempts to misuse our laws and legal processes are forms of rank
harassments and invidious discriminations against petitioner to deny her equal
access to a public office. We cannot commit any hermeneutic violence to the
Constitution by torturing the meaning of equality, the end result of which will allow
the harassment and discrimination of petitioner who has lived a controversial life,
a past of alternating light and shadow. There is but one Constitution for all
Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and the
worst way to interpret the Constitution is to inject in its interpretation, bile and
bitterness.
Sixth. In Gallego v. Vera,
38
we explained that the reason for this residence requirement
is "to exclude a stranger or newcomer, unacquainted, with the conditions and needs of a
community and not identified with the latter, from an elective office to serve that
community . . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be
contested. Nobody can claim that she is not acquainted with its problems because she is
a stranger to the place. None can argue she cannot satisfy the intent of the Constitution.
Seventh. In resolving election cases, a dominant consideration is the need to effectuate
the will of the electorate. The election results show that petitioner received Seventy
Thousand Four Hundred Seventy-one (70,471) votes, while private respondent got only
Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is clearly the
overwhelming choice of the electorate of the First District of Leyte and this is not a
sleight of statistics. We cannot frustrate this sovereign will on highly arguable technical
considerations. In case of doubt, we should lean towards a rule that will give life to the
people's political judgment.
A final point. The case at bench provides the Court with the rare opportunity to rectify the
inequality of status between women and men by rejecting the iniquitous common law
precedents on the domicile of married women and by redefining domicile in accord with
our own culture, law, and Constitution. To rule that a married woman is eternally
tethered to the domicile dictated by her dead husband is to preserve the anachronistic
and anomalous balance of advantage of a husband over his wife. We should not allow
the dead to govern the living even if the glories of yesteryears seduce us to shout long
live the dead! The Family Code buried this gender-based discrimination against married
women and we should not excavate what has been entombed. More importantly, the
Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J ., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position
of Representative of the First Congressional District of Leyte. I wish, however, to
express a few comments on the issue of petitioner's domicile.
Domicile has been defined as that place in which a person's habitation is fixed, without
any present intention of removing therefrom, and that place is properly the domicile of a
person in which he has voluntarily fixed his abode, or habitation, not for a mere special
or temporary purpose, but with a present intention of making it his permanent home (28
C.J.S. 1). It denotes a fixed permanent residence to which when absent for business,
or pleasure, or for like reasons one intends to return, and depends on facts and
circumstances, in the sense that they disclose intent. (Ong Huan Tin v. Republic, 19
SCRA 966, 969)
Domicile is classified into domicile of origin and domicile of choice. The law attributes to
every individual a domicile of origin, which is the domicile of his parents, or of the head
of his family, or of the person on whom he is legally dependent at the time of his birth.
While the domicile of origin is generally the place where one is born or reared, it maybe
elsewhere (28 C.J.S. 5). Domicile of choice, on the other hand, is the place which the
person has elected and chosen for himself to displace his previous domicile; it has for its
true basis or foundation the intention of the person (28 C.J.S. 6). In order to hold that a
person has abandoned his domicile and acquired a new one called domicile of choice,
the following requisites must concur, namely, (a) residence or bodily presence in the
new locality, (b) intention to remain there or animus manendi, and (c) an intention to
abandon the old domicile oranimus non revertendi (Romualdez v. RTC, Br. 7, Tacloban
City, 226 SCRA 408, 415). A third classification is domicile by operation of law which
attributes to a person a domicile independent of his own intention or actual residence,
ordinarily resulting from legal domestic relations, as that of the wife arising from
marriage, or the relation of a parent and a child (28 C.J.S. 7).
In election law, when our Constitution speaks of residence for election purposes it
means domicile (Co v. Electoral Tribunal of the House of Representatives, 199 SCRA
692, 713; Nuval v. Guray, 52 Phil. 645, 651). To my mind, public respondent
Commission on Elections misapplied this concept, of domicile which led to petitioner's
disqualification by ruling that petitioner failed to comply with the constitutionally
mandated one-year residence requirement. Apparently, public respondent Commission
deemed as conclusive petitioner's stay and registration as voter in many places as
conduct disclosing her intent to abandon her established domicile of origin in Tacloban,
Leyte. In several decisions, though, the Court has laid down the rule that registration of a
voter in a place other than his place of origin is not sufficient to constitute abandonment
or loss of such residence (Faypon v. Quirino, 96 Phil. 294, 300). Respondent
Commission offered no cogent reason to depart from this rule except to surmise
petitioner's intent of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was supplanted by a new
domicile due to her marriage, a domicile by operation of law. The proposition is that
upon the death of her husband in 1989 she retains her husband's domicile, i.e., Batac,
Ilocos Norte, until she makes an actual change thereof. I find this proposition quite
untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with
another, i.e., Batac, Ilocos Norte, upon her marriage in 1954 with then Congressman
Marcos. By legal fiction she followed the domicile of her husband. In my view, the reason
for the law is for the spouses to fully and effectively perform their marital duties and
obligations to one another.
1
The question of domicile, however, is not affected by the
fact that it was the legal or moral duty of the individual to reside in a given place (28
C.J.S. 11). Thus, while the wife retains her marital domicile so long as the marriage
subsists, she automatically loses it upon the latter's termination, for the reason behind
the law then ceases. Otherwise, petitioner, after her marriage was ended by the death of
her husband, would be placed in a quite absurd and unfair situation of having been freed
from all wifely obligations yet made to hold on to one which no longer serves any
meaningful purpose.
It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte
upon her husband's death without even signifying her intention to that effect. It is for the
private respondent to prove, not for petitioner to disprove, that petitioner has effectively
abandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear
rule is that it is the party (herein private respondent) claiming that a person has
abandoned or lost his residence of origin who must show and prove preponderantly such
abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16), because the
presumption is strongly in favor of an original or former domicile, as against an acquired
one (28 C.J.S. 16). Private respondent unfortunately failed to discharge this burden as
the record is devoid of convincing proof that petitioner has acquired whether voluntarily
or involuntarily, a new domicile to replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has complied with the
constitutional one-year residence requirement. After her exile abroad, she returned to
the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the Presidential Commission
on Good Government which sequestered her residential house and other properties
forbade her necessitating her transient stay in various places in Manila (Affidavit p.6,
attached as Annex I of the Petition). In 1992, she ran for the position of president writing
in her certificate of candidacy her residence as San Juan, Metro Manila. After her loss
therein, she went back to Tacloban City, acquired her residence certificate
2
and resided
with her brother in San Jose. She resided in San Jose, Tacloban City until August of
1994 when she was allowed by the PCGG to move and reside in her sequestered
residential house in Olot, Tolosa, Leyte (Annex I, p. 6).
3
It was in the same month of
August when she applied for the cancellation of her previous registration in San Juan,
Metro Manila in order to register anew as voter of Olot, Tolosa, Leyte, which she did on
January 28, 1995. From this sequence of events, I find it quite improper to use as the
reckoning period of the one-year residence requirement the date when she applied for
the cancellation of her previous registration in San Juan, Metro Manila. The fact which
private respondent never bothered to disprove is that petitioner transferred her residence
after the 1992 presidential election from San Juan, Metro Manila to San Jose, Tacloban
City, and resided therein until August of 1994. She later transferred to Olot, Tolosa,
Leyte (Annex I, p. 7). It appearing that both Tacloban City and Tolosa, Leyte are within
the First Congressional District of Leyte, it indubitably stands that she had more than a
year of residence in the constituency she sought to be elected. Petitioner, therefore, has
satisfactorily complied with the one-year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J ., separate opinion:
Petitioner has appealed to this Court for relief after the COMELEC ruled that she was
disqualified from running for Representative of her District and that, in the event that she
should, nevertheless, muster a majority vote, her proclamation should be suspended.
Not by a straightforward ruling did the COMELEC pronounce its decision as has been its
unvarying practice in the past, but by a startling succession of "reverse somersaults."
Indicative of its shifting stance vis-a-vis petitioner's certificate of candidacy were first, the
action of its Second Division disqualifying her and canceling her original Certificate of
Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the COMELEC en
banc of her Motion for Reconsideration on May 7, 1995, a day before the election; then
because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that
the results of the canvass should show that she obtained the highest number of votes
(obviously noting that petitioner had won overwhelmingly over her opponent), but almost
simultaneously reversing itself by directing that even if she wins, her proclamation
should nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by the case at bench is
the interpretation to be given to the one-year residency requirement imposed by the
Constitution on aspirants for a Congressional seat.
1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile"
for election purposes, it is important to determine whether petitioner's domicile was in the
First District of Leyte and if so, whether she had resided there for at least a period of one
year. Undisputed is her domicile of origin, Tacloban, where her parents lived at the time
of her birth. Depending on what theory one adopts, the same may have been changed
when she married Ferdinand E. Marcos, then domiciled in Batac, by operation of law.
Assuming it did, his death certainly released her from the obligation to live with him at
the residence fixed by him during his lifetime. What may confuse the layman at this point
is the fact that the term "domicile" may refer to "domicile of origin," "domicile of choice,"
or "domicile by operation of law," which subject we shall not belabor since it has been
amply discussed by the ponente and in the other separate opinions.
In any case, what assumes relevance is the divergence of legal opinion as to the effect
of the husband's death on the domicile of the widow. Some scholars opine that the
widow's domicile remains unchanged; that the deceased husband's wishes perforce still
bind the wife he has left behind. Given this interpretation, the widow cannot possibly go
far enough to sever the domiciliary tie imposed by her husband.
It is bad enough to interpret the law as empowering the husband unilaterally to fix the
residence or domicile of the family, as laid down in the Civil Code,
2
but to continue
giving obeisance to his wishes even after the rationale underlying the mutual duty of the
spouses to live together has ceased, is to close one's eyes to the stark realities of the
present.
At the other extreme is the position that the widow automatically reverts to her domicile
of origin upon the demise of her husband. Does the law so abhor a vacuum that the
widow has to be endowed somehow with a domicile? To answer this question which is
far from rhetorical, one will have to keep in mind the basic principles of domicile.
Everyone must have a domicile. Then one must have only a single domicile for the same
purpose at any given time. Once established, a domicile remains until a new one is
acquired, for no person lives who has no domicile, as defined by the law be is subject to.
At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction,
rendered more murky by the conflicting opinions of foreign legal authorities. This being
the state of things, it is imperative as it is opportune to illumine the darkness with the
beacon light of truth, as dictated by experience and the necessity of according petitioner
her right to choose her domicile in keeping with the enlightened global trend to recognize
and protect the human rights of women, no less than men.
Admittedly, the notion of placing women at par with men, insofar as civil, political and
social rights are concerned, is a relatively recent phenomenon that took seed only in the
middle of this century. It is a historical fact that for over three centuries, the Philippines
had been colonized by Spain, a conservative, Catholic country which transplanted to our
shores the Old World cultures, mores and attitudes and values. Through the imposition
on our government of the Spanish Civil Code in 1889, the people, both men and women,
had no choice but to accept such concepts as the husband's being the head of the
family and the wife's subordination to his authority. In such role, his was the right to
make vital decisions for the family. Many instances come to mind, foremost being what
is related to the issue before us, namely, that "the husband shall fix the residence of the
family."
3
Because he is made responsible for the support of the wife and the rest of the
family,
4
he is also empowered to be the administrator of the conjugal property, with a
few exceptions
5
and may, therefore, dispose of the conjugal partnership property for the
purposes specified under the law;
6
whereas, as a general rule, the wife cannot bind the
conjugal partnership without the husband's consent.
7
As regards the property pertaining
to the children under parental authority, the father is the legal administrator and only in
his absence may the mother assume his powers.
8
Demeaning to the wife's dignity are
certain strictures on her personal freedoms, practically relegating her to the position of
minors and disabled persons. To illustrate a few: The wife cannot, without the husband's
consent, acquire any gratuitous title, except from her ascendants, descendants, parents-
in-law, and collateral relatives within the fourth degree.
9
With respect to her
employment, the husband wields a veto power in the case the wife exercises her
profession or occupation or engages in business, provided his income is sufficient for the
family, according to its social standing and his opposition is founded on serious and valid
grounds.
10
Most offensive, if not repulsive, to the liberal-minded is the effective
prohibition upon a widow to get married till after three hundred days following the death
of her husband, unless in the meantime, she has given birth to a child.
11
The mother
who contracts a subsequent marriage loses the parental authority over her children,
unless the deceased husband, father of the latter, has expressly provided in his will that
his widow might marry again, and has ordered that in such case she should keep and
exercise parental authority over their children.
12
Again, an instance of a husband's
overarching influence from beyond the grave.
All these indignities and disabilities suffered by Filipino wives for hundreds of years
evoked no protest from them until the concept of human rights and equality between and
among nations and individuals found hospitable lodgment in the United Nations Charter
of which the Philippines was one of the original signatories. By then, the Spanish
"conquistadores" had been overthrown by the American forces at the turn of the century.
The bedrock of the U.N. Charter was firmly anchored on this credo: "to reaffirm faith in
the fundamental human rights, in the dignity and worth of the human person, in the equal
rights of men and women." (Emphasis supplied)
It took over thirty years before these egalitarian doctrines bore fruit, owing largely
to the burgeoning of the feminist movement. What may be regarded as the
international bill of rights for women was implanted in the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by
the U.N. General Assembly which entered into force as an international treaty on
September 3, 1981. In ratifying the instrument, the Philippines bound itself to
implement its liberating spirit and letter, for its Constitution, no less, declared that
"The Philippines. . . adopts the generally accepted principles of international law
as part of the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations."
13
One such principle
embodied in the CEDAW is granting to men and women "the same rights with
regard to the law relating to the movement of persons and the freedom to choose
their residence and domicile."
14
(Emphasis supplied).
CEDAW's pro-women orientation which was not lost on Filipino women was reflected in
the 1987 Constitution of the Philippines and later, in the Family Code,
15
both of which
were speedily approved by the first lady President of the country, Corazon C. Aquino.
Notable for its emphasis on the human rights of all individuals and its bias for equality
between the sexes are the following provisions: "The State values the dignity of every
human person and guarantees full respect for human rights"
16
and "The State
recognizes the role of women in nation-building, and shall ensure the fundamental
equality before the law of women and men."
17

A major accomplishment of women in their quest for equality with men and the
elimination of discriminatory provisions of law was the deletion in the Family Code of
almost all of the unreasonable strictures on wives and the grant to them of personal
rights equal to that of their husbands. Specifically, the husband and wife are now
giventhe right jointly to fix the family domicile;
18
concomitant to the spouses' being jointly
responsible for the support of the family is the right and duty of both spouses to manage
the household;
19
the administration and the enjoyment of the community property shall
belong to both spouses jointly;
20
the father and mother shall now jointly exercise legal
guardianship over the property of their unemancipated common child
21
and several
others.
Aware of the hiatus and continuing gaps in the law, insofar as women's rights are
concerned, Congress passed a law popularly known as "Women in Development and
Nation Building Act"
22
Among the rights given to married women evidencing their
capacity to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans and execute security and
credit arrangements under the same conditions as men;
(2) Women shall have equal access to all government and private sector programs
granting agricultural credit, loans and non material resources and shall enjoy equal
treatment in agrarian reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into insurance
contracts; and
(4) Married women shall have rights equal to those of married men in applying for
passports, secure visas and other travel documents, without need to secure the consent
of their spouses.
As the world draws the curtain on the Fourth World Conference of Women in Beijing, let
this Court now be the first to respond to its clarion call that "Women's Rights are Human
Rights" and that "All obstacles to women's full participation in decision-making at all
levels, including the family" should be removed. Having been herself a Member of the
Philippine Delegation to the International Women's Year Conference in Mexico in 1975,
this writer is only too keenly aware of the unremitting struggle being waged by women
the world over, Filipino women not excluded, to be accepted as equals of men and to
tear down the walls of discrimination that hold them back from their proper places under
the sun.
In light of the inexorable sweep of events, local and global, legislative, executive and
judicial, according more rights to women hitherto denied them and eliminating whatever
pockets of discrimination still exist in their civil, political and social life, can it still be
insisted that widows are not at liberty to choose their domicile upon the death of their
husbands but must retain the same, regardless?
I submit that a widow, like the petitioner and others similarly situated, can no longer be
bound by the domicile of the departed husband, if at all she was before. Neither does
she automatically revert to her domicile of origin, but exercising free will, she may opt to
reestablish her domicile of origin. In returning to Tacloban and subsequently, to
Barangay Olot, Tolosa, both of which are located in the First District of Leyte, petitioner
amply demonstrated by overt acts, her election of a domicile of choice, in this case, a
reversion to her domicile of origin. Added together, the time when she set up her
domicile in the two places sufficed to meet the one-year requirement to run as
Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the petition.
VITUG, J ., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets
up ideals and directions and render steady our strides hence. It only looks back so as to
ensure that mistakes in the past are not repeated. A compliant transience of a
constitution belittles its basic function and weakens its goals. A constitution may well
become outdated by the realities of time. When it does, it must be changed but while it
remains, we owe it respect and allegiance. Anarchy, open or subtle, has never been, nor
must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or
the Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in character unless, either by
express statement or by necessary implication, a different intention is manifest (see
Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of
the fundamental law. These provisions read:
Sec. 6. No person shall be a Member of the House of Representatives
unless he is a natural-born citizen of the Philippines and, on the day of
the election, is at least twenty-five years of age, able to read and write,
and, except the party-list representatives, a registered voter in the district
in which he shall be elected, and a resident thereof for a period of not less
than one year immediately preceding the day of the election.
Sec. 17. The Senate and the House of Representatives shall each have
an Electoral Tribunal which shall be the sole judge of all contests relating
to the election, returns, and qualifications of their respective Members.
Each Electoral Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be designated by the
Chief Justice, and the remaining six shall be Members of the Senate or
the House of Representatives, as the case may be, who shall be chosen
on the basis of proportional representation from the political parties and
the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal shall be
its Chairman.
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and
administer "all laws and regulations relative to the conduct of election . . ." (Art. IX, C,
Sec. 2, Constitution) that, there being nothing said to the contrary, should include its
authority to pass upon the qualification and disqualification prescribed by law
ofcandidates to an elective office. Indeed, pre-proclamation controversies are expressly
placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3,
Constitution).
The matter before us specifically calls for the observance of the constitutional one-year
residency requirement. The issue (whether or not there is here such compliance), to my
mind, is basically a question of fact or at least inextricably linked to such determination.
The findings and judgment of the COMELEC, in accordance with the long established
rule and subject only to a number of exceptions under the basic heading of "grave abuse
of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be a plain
matter. Generally, the term "residence" has a broader connotation that may
mean permanent (domicile), official (place where one's official duties may require him to
stay) or temporary (the place where he sojourns during a considerable length of time).
For civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of
civil obligations, the domicile of a natural person is the place of his habitual residence
(see Article 50, Civil Code). In election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City
(226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous
terms, thus: "(t)he term "residence" as used in the election law is
synonymous with "domicile," which imports not only an intention to reside
in a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention." "Domicile" denotes a fixed
permanent residence to which when absent for business or pleasure, or
for like reasons, one intends to return. . . . . Residence thus acquired,
however, may be lost by adopting another choice of domicile. In order, in
turn, to acquire a new domicile by choice, there must concur (1)
residence or bodily presence in the new locality, (2) an intention to remain
there, and (3) an intention to abandon the old domicile. In other words,
there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be
for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile
must be actual.
Using the above tests, I am not convinced that we can charge the COMELEC
with having committed grave abuse of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends when the
jurisdiction of the Electoral Tribunal concerned begins. It signifies that the protestee must
have theretofore been duly proclaimed and has since become a "member" of the Senate
or the House of Representatives. The question can be asked on whether or not the
proclamation of a candidate is just a ministerial function of the Commission on Elections
dictated solely on the number of votes cast in an election exercise. I believe, it is not. A
ministerial duty is an obligation the performance of which, being adequately defined,
does not allow the use of further judgment or discretion. The COMELEC, in its particular
case, is tasked with the full responsibility of ascertaining all the facts and conditions such
as may be required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any undue encroachment
on the ultimate exercise of authority by the Electoral Tribunals on matters which, by no
less than a constitutional fiat, are explicitly within their exclusive domain. The nagging
question, if it were otherwise, would be the effect of the Court's peremptory
pronouncement on the ability of the Electoral Tribunal to later come up with its own
judgment in a contest "relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the applicability to
this case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas
Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is
strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. The Commission
and the courts shall give priority to cases of disqualification by reason of
violation of this Act to the end that a final decision shall be rendered not
later than seven days before the election in which the disqualification is
sought.
Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted.
Nevertheless, if for any reason, a candidate is not declared by final,
judgment before an election to be disqualified, and he is voted for and
receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation
and assumption to office.
I realize that in considering the significance of the law, it may be preferable to look for
not so much the specific instances they ostensibly would cover as the principle they
clearly convey. Thus, I will not scoff at the argument that it should be sound to say that
votes cast in favor of the disqualified candidate, whenever ultimately declared as such,
should not be counted in his or her favor and must accordingly be considered to be stray
votes. The argument, nevertheless, is far outweighed by the rationale of the now
prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil. 238
[1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]),
and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim
case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1
(1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most
recently, Benito (235 SCRA 436 [1994]) rulings. Benito vs.Comelec was a unanimous
decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa,
Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy
reference, let me quote from the first Labo decision:
Finally, there is the question of whether or not the private respondent,
who filed the quo warrantopetition, can replace the petitioner as mayor.
He cannot. The simple reason is that as he obtained only the second
highest number of votes in the election, he was obviously not the choice
of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on
Elections, (137 SCRA 740) decided in 1985. In that case, the candidate
who placed second was proclaimed elected after the votes for his winning
rival, who was disqualified as a turncoat and considered a non-candidate,
were all disregard as stray. In effect, the second placer won by default.
That decision was supported by eight members of the Court then,
(Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De
la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting
(Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and
another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was
on official leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should
be reversed in favor of the earlier case of Geronimo v. Ramos, (136
SCRA 435) which represents the more logical and democratic rule. That
case, which reiterated the doctrine first announced in 1912 in Topacio
v.Paredes, (23 Phil. 238) was supported by ten members of the Court,
(Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-
Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ.,
concurring) without any dissent, although one reserved his vote,
(Makasiar, J.) another took no part, (Aquino, J.) and two others were on
leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of
the constitutionally guaranteed right to suffrage if a
candidate who has not acquired the majority or plurality of
votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which
have positively declared through their ballots that they do
not choose him.
Sound policy dictates that public elective offices are filled
by those who have received the highest number of votes
cast in the election for that office, and it is a fundamental
idea in all republican forms of government that no one can
be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the
legal votes cast in the election. (20 Corpus Juris 2nd, S
243, p. 676.)
The fact that the candidate who obtained the highest number of votes is
later declared to be disqualified or not eligible for the office to which he
was elected does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of the elective
office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there. However,
in the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere belief
that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J ., separate opinion:
In my view the issue in this case is whether the Commission on Elections has the power
to disqualify candidates on the ground that they lack eligibility for the office to which they
seek to be elected. I think that it has none and that the qualifications of candidates may
be questioned only in the event they are elected, by filing a petition forquo warranto or
an election protest in the appropriate forum, not necessarily in the COMELEC but, as in
this case, in the House of Representatives Electoral Tribunal. That the parties in this
case took part in the proceedings in the COMELEC is of no moment. Such proceedings
were unauthorized and were not rendered valid by their agreement to submit their
dispute to that body.
The various election laws will be searched in vain for authorized proceedings for
determining a candidate's qualifications for an office before his election. There are none
in the Omnibus Election Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987
(R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166).
There are, in other words, no provisions for pre-proclamation contests but only election
protests or quo warranto proceedings against winning candidates.
To be sure, there are provisions denominated for "disqualification," but they are not
concerned with a declaration of the ineligibility of a candidate. These provisions are
concerned with the incapacity (due to insanity, incompetence or conviction of an offense)
of a person either to be a candidate or to continue as a candidate for public office. There
is also a provision for the denial or cancellation of certificates of candidacy, but it applies
only to cases involving false representations as to certain matters required by law to be
stated in the certificates.
These provisions are found in the following parts of the Omnibus Election Code:
12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense for
which he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he
again becomes disqualified. (Emphasis added)
68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court
guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, sub-paragraph 6, shall be disqualifiedfrom continuing as a
candidate, or if he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a foreign country shall
not be qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for
in the election laws. (Emphasis added)
78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to cancel
a certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and; upon motion for the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is
strong. (Emphasis added).
7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy.
The procedure hereinabove provided shall apply to petitions to deny
due course to or cancel a certificate of candidacy as provided in Section
78 of Batas Pambansa Blg. 881.
and the Local Government Code of 1991 (R.A. No. 7160):
40. Disqualifications. The following persons are disqualified from
running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance
to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired
the right to reside abroad and continue to avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while
entitled "For Cancellation and Disqualification," contained no allegation that private
respondent Imelda Romualdez-Marcos made material representations in her certificate
of candidacy which were false, it sought her disqualification on the ground that "on the
basis of her Voter Registration Record and Certificate of Candidacy, [she] is disqualified
from running for the position of Representative, considering that on election day, May 8,
1995, [she] would have resided less than ten (10) months in the district where she is
seeking to be elected." For its part, the COMELEC's Second Division, in its resolution of
April 24, 1995, cancelled her certificate of candidacy and corrected certificate of
candidacy on the basis of its finding that petitioner is "not qualified to run for the position
of Member of the House of Representatives for the First Legislative District of Leyte" and
not because of any finding that she had made false representations as to material
matters in her certificate of candidacy.
Montejo's petition before the COMELEC was therefore not a petition for cancellation of
certificate of candidacy under 78 of the Omnibus Election Code, but essentially a
petition to declare private respondent ineligible. It is important to note this, because, as
will presently be explained, proceedings under 78 have for their purpose to disqualify a
person from being a candidate, whereas quo warranto proceedings have for their
purpose to disqualify a person from holding public office. Jurisdiction over quo
warranto proceedings involving members of the House of Representatives is vested in
the Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for the cancellation of
certificates of candidacy, the allegations were that the respondent candidates had
made false representations in their certificates of candidacy with regard to
their citizenship,
1
age,
2
or residence.
3
But in the generality of cases in which this Court
passed upon the qualifications of respondents for office, this Court did so in the context
of election protests
4
or quo warranto proceedings
5
filed after the proclamation of the
respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized proceeding for
determining before electionthe qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no
necessity for determining his eligibility for the office. In contrast, whether an individual
should be disqualified as a candidate for acts constituting election offenses (e.g., vote
buying, over spending, commission of prohibited acts) is a prejudicial question which
should be determined lest he wins because of the very acts for which his disqualification
is being sought. That is why it is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has been voted for, the votes in his
favor will not be counted; and if for some reason he has been voted for and he has won,
either he will not be proclaimed or his proclamation will be set aside.
6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship
or, as in this case, his domicile, may take a long time to make, extending beyond the
beginning of the term of the office. This is amply demonstrated in the companion case
(G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's
residence was still pending in the COMELEC even after the elections of May 8, 1995.
This is contrary to the summary character of proceedings relating to certificates of
candidacy. That is why the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers.
7
The law is satisfied if candidates state
in their certificates of candidacy that they are eligible for the position which they seek to
fill, leaving the determination of their qualifications to be made after the election and only
in the event they are elected. Only in cases involving charges of false representations
made in certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections
for President, Vice President, Senators and members of the House of Representatives.
(R.A. No. 7166, 15) The purpose is to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the
Constitution of the election, returns and qualifications of members of Congress or of the
President and Vice President, as the case may be.
By providing in 253 for the remedy of quo warranto for determining an elected official's
qualifications after the results of elections are proclaimed, while being conspicuously
silent about a pre-proclamation remedy based on the same ground, the Omnibus
Election Code, or OEC, by its silence underscores the policy of not authorizing any
inquiry into the qualifications of candidates unless they have been elected.
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of
candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in
Rule 25, 1 the following:
Grounds for disqualification. Any candidate who does not possess all
the qualifications of a candidate as provided for by the Constitution or by
existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be
supplied by a mere rule. Such an act is equivalent to the creation of a cause of action
which is a substantive matter which the COMELEC, in the exercise of its rulemaking
power under Art. IX, A, 6 of the Constitution, cannot do. It is noteworthy that the
Constitution withholds from the COMELEC even the power to decide cases involving the
right to vote, which essentially involves an inquiry into qualifications based on age,
residence and citizenship of voters. (Art. IX, C, 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into
grounds for disqualification is contrary to the evident intention of the law. For not only in
their grounds but also in their consequences are proceedings for "disqualification"
different from those for a declaration of "ineligibility." "Disqualification" proceedings, as
already stated, are based on grounds specified in 12 and 68 of the Omnibus Election
Code and in 40 of the Local Government Code and are for the purpose of barring an
individual from becoming a candidate or from continuing as a candidate for public office.
In a word, their purpose is to eliminate a candidate from the race either from the start or
during its progress. "Ineligibility," on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for holding public office and
the purpose of the proceedings for declaration of ineligibility is to remove the incumbent
from office.
Consequently, that an individual possesses the qualifications for a public office does not
imply that he is not disqualified from becoming a candidate or continuing as a candidate
for a public office and vice versa. We have this sort of dichotomy in our Naturalization
Law. (C.A. No. 473) That an alien has the qualifications prescribed in 2 of the law does
not imply that he does not suffer from any of disqualifications provided in 4.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of
prohibited election practices or offenses, like other pre-proclamation remedies, are
aimed at the detestable practice of "grabbing the proclamation and prolonging the
election protest,"
8
through the use of "manufactured" election returns or resort to other
trickery for the purpose of altering the results of the election. This rationale does not
apply to cases for determining a candidate's qualifications for office before the election.
To the contrary, it is the candidate against whom a proceeding for disqualification is
brought who could be prejudiced because he could be prevented from assuming office
even though in end he prevails.
To summarize, the declaration of ineligibility of a candidate may only be sought in an
election protest or action forquo warranto filed pursuant to 253 of the Omnibus Election
Code within 10 days after his proclamation. With respect to elective local officials (e.g.,
Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.) such
petition must be filed either with the COMELEC, the Regional Trial Courts, or Municipal
Trial Courts, as provided in Art. IX, C, 2(2) of the Constitution. In the case of the
President and Vice President, the petition must be filed with the Presidential Electoral
Tribunal (Art. VII, 4, last paragraph), and in the case of the Senators, with the Senate
Electoral Tribunal, and in the case of Congressmen, with the House of Representatives
Electoral Tribunal. (Art. VI, 17) There is greater reason for not allowing before the
election the filing of disqualification proceedings based on alleged ineligibility in the case
of candidates for President, Vice President, Senators and members of the House of
Representatives, because of the same policy prohibiting the filing of pre-proclamation
cases against such candidates.
For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA
No. 95-009; that its proceedings in that case, including its questioned orders, are void;
and that the eligibility of petitioner Imelda Romualdez-Marcos for the office of
Representative of the First District of Leyte may only be inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the proceedings of the Commission
on Elections in SPA No. 95-009, including its questioned orders doted April 24, 1995,
May 7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner Imelda Romualdez-
Marcos ineligible and ordering her proclamation as Representative of the First District of
Leyte suspended. To the extent that Rule 25 of the COMELEC Rules of Procedure
authorizes proceedings for the disqualification of candidates on the ground of ineligibility
for the office, it should considered void.
The provincial board of canvassers should now proceed with the proclamation of
petitioner.
Narvasa, C.J., concurs.
PADILLA, J ., dissenting:
I regret that I cannot join the majority opinion as expressed in the well-written ponencia
of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the inquiry must begin
and end with the provision itself. The controversy should not be blurred by what, to me,
are academic disquisitions. In this particular controversy, the Constitutional provision on
point states that "no person shall be a member of the House of Representatives
unless he is a natural-born citizen of the Philippines, and on the day of the election, is at
least twenty-five (25) years of age, able to read and write, and except the party list
representatives, a registered voter in the district in which he shall be elected, and
a resident thereof for a period of not less than one year immediately preceding the day
of the election." (Article VI, section 6)
It has been argued that for purposes of our election laws, the term residence has been
understood as synonymous with domicile. This argument has been validated by no less
than the Court in numerous cases
1
where significantly the factual circumstances clearly
and convincingly proved that a person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with his personal presence in the
place, coupled with conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to conceive of different modalities
within which the phrase "a resident thereof (meaning, the legislative district) for a period
of not less than one year" would fit.
The first instance is where a person's residence and domicile coincide in which case a
person only has to prove that he has been domiciled in a permanent location for not less
than a year before the election.
A second situation is where a person maintains a residence apart from his domicile in
which case he would have the luxury of district shopping, provided of course, he satisfies
the one-year residence period in the district as the minimum period for eligibility to the
position of congressional representative for the district.
In either case, one would not be constitutionally disqualified for abandoning his
residence in order to return to his domicile of origin, or better still, domicile of choice;
neither would one be disqualified for abandoning altogether his domicile in favor of his
residence in the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a person maintains
several residences in different districts. Since his domicile of origin continues as an
option as long as there is no effective abandonment (animus non revertendi), he can
practically choose the district most advantageous for him.
All these theoretical scenarios, however, are tempered by the unambiguous limitation
that "for a period of not less than one year immediately preceding the day of the
election", he must be a resident in the district where he desires to be elected.
To my mind, the one year residence period is crucial regardless of whether or not the
term "residence" is to be synonymous with "domicile." In other words, the candidate's
intent and actual presence in one district must in allsituations satisfy the length of time
prescribed by the fundamental law. And this, because of a definite Constitutional
purpose. He must be familiar with the environment and problems of a district he intends
to represent in Congress and the one-year residence in said district would be the
minimum period to acquire such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the
now assailed decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by
the Comelec en banc)
In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She studied
in the Holy Infant Academy in Tacloban from 1938 to 1948 when she
graduated from high school. She pursued her college studies in St. Paul's
College, now Divine Word University of Tacloban, where she earned her
degree in Education. Thereafter, she taught in the Leyte Chinese High
School, still in Tacloban City. In 1952 she went to Manila to work with her
cousin, the late Speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-president Ferdinand Marcos
when he was still a congressman of Ilocos Norte. She lived with him in
Batac, Ilocos Norte and registered there as a voter. When her husband
was elected Senator of the Republic in 1959, she and her husband lived
together in San Juan, Rizal where she registered as a voter. In 1965
when her husband was elected President of the Republic of the
Philippines, she lived with him in Malacanang Palace and registered as a
voter in San Miguel, Manila.
During the Marcos presidency, respondent served as a Member of the
Batasang Pambansa, Minister of Human Settlements and Governor of
Metro Manila. She claimed that in February 1986, she and her family
were abducted and kidnapped to Honolulu, Hawaii. In November 1991,
she came home to Manila. In 1992 respondent ran for election as
President of the Philippines and filed her Certificate of Candidacy wherein
she indicated that she is a resident and registered voter of San Juan,
Metro Manila. On August 24, 1994, respondent filed a letter with the
election officer of San Juan, Metro Manila, requesting for cancellation of
her registration in the Permanent List of Voters in Precinct No. 157 of San
Juan, Metro Manila, in order that she may be re-registered or transferred
to Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On August 31, 1994,
respondent filed her Sworn Application for Cancellation of Voter's
Previous Registration (Annex 2-C, Answer) stating that she is a duly
registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she
intends to register at Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent registered as a voter at Precinct No. 18-
A of Olot, Tolosa, Leyte. She filed with the Board of Election Inspectors
CE Form No. 1, Voter Registration Record No. 94-3349772, wherein she
alleged that she has resided in the municipality of Tolosa for a period of 6
months (Annex A, Petition).
On March 8, 1995, respondent filed with the Office of the Provincial
Election Supervisor, Leyte, a Certificate of Candidacy for the position of
Representative of the First District of Leyte wherein she also alleged that
she has been a resident in the constituency where she seeks to be
elected for a period of 7 months. The pertinent entries therein are as
follows:
7. PROFESSION OR OCCUPATION:
House-wife/ Teacher/ Social Worker
8. RESIDENCE (complete address): Brgy.
Olot, Tolosa, Leyte
Post Office Address for election purposes:
Brgy. Olot, Tolosa, Leyte
9. RESIDENCE IN THE CONSTITUENCY
WHEREIN I SEEK TO BE ELECTED
IMMEDIATELY PRECEDING ELECTION:
________ Years SevenMonths
10. I AM NOT A PERMANENT RESIDENT
OF, OR IMMIGRANT TO, A FOREIGN
COUNTRY.
THAT I AM ELIGIBLE for said office; That I will support and defend the
Constitution of the Republic of the Philippines and will maintain true faith
and allegiance thereto; That I will obey the laws, legal orders and decrees
promulgated by the duly-constituted authorities; That the obligation
imposed by my oath is assumed voluntarily, without mental reservation or
purpose of evasion; and That the facts stated herein are true to the best
of my knowledge.
(Sgd.) Imelda
Romualdez-
Marcos
(Signature of
Candidate)
2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the
decisive component or seed of her disqualification. It is contained in her answer under
oath of "seven months" to the query of "residence in the constituency wherein I seek to
be elected immediately preceding the election."
It follows from all the above that the Comelec committed no grave abuse of discretion in
holding that petitioner is disqualified from the position of representative for the 1st
congressional district of Leyte in the elections of
8 May 1995, for failure to meet the "not less than one-year residence in the constituency
(1st district, Leyte) immediately preceding the day of election
(8 May 1995)."
Having arrived at petitioner's disqualification to be a representative of the first district of
Leyte, the next important issue to resolve is whether or not the Comelec can order the
Board of Canvassers to determine and proclaim the winner out of the remaining
qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this Court in the case of Labo
vs. Comelec, G.R. 86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laid
down in the early 1912 case of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election for
that office, and it is a fundamental idea in all republican forms of
government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal
votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676)
The fact that the candidate who obtained the highest number of votes is
later declared to be disqualified or not eligible for the office to which he
was elected does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of the elective
office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there.
However, in the absence of a statute which clearly asserts a contrary
political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they
should not be treated as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System
and for other purposes) (84 O.G. 905, 22 February 1988) it is provided that:
. . . Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry or protest and,
upon motion of the complainant or any intervenor, may, during the
pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the plain and unambiguous
meaning of the provision quoted above. As the law now stands, the legislative policy
does not limit its concern with the effect of a final judgement of disqualification
only before the election, but even during or after the election. The law is clear that in all
situations, the votes cast for a disqualified candidate SHALL NOT BE COUNTED. The
law has also validated the jurisdiction of the Court or Commission on Election to
continue hearing the petition for disqualification in case a candidate is voted for and
receives the highest number of votes, if for any reason, he is not declared by final
judgment before an election to be disqualified.
Since the present case is an after election scenario, the power to suspend proclamation
(when evidence of his guilt is strong) is also explicit under the law. What happens then
when after the elections are over, one is declared disqualified? Then, votes cast for him
"shall not be counted" and in legal contemplation, he no longer received the highest
number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the
winner simply because a "winning candidate is disqualified," but that the law considers
him as the candidate who had obtained the highest number of votes as a result of the
votes cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason
why this Court should not re-examine and consequently abandon the doctrine in the Jun
Labo case. It has been stated that "the qualifications prescribed for elective office cannot
be erased by the electorate alone. The will of the people as expressed through the ballot
cannot cure the vice of ineligibility" most especially when it is mandated by no less than
the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of
Canvassers of Leyte to proclaim the candidate receiving the highest number of votes,
from among the qualified candidates, as the duly elected representative of the 1st district
of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J ., dissenting:
While I agree with same of the factual bases of the majority opinion, I cannot arrive
conjointly at the same conclusion drawn therefrom Hence, this dissent which assuredly
is not formulated "on the basis of the personality of a petitioner in a case."
I go along with the majority in their narration of antecedent facts, insofar as the same are
pertinent to this case, and which I have simplified as follows:
1. Petitioner, although born in Manila, resided during her childhood in the
present Tacloban City, she being a legitimate daughter of parents who
appear to have taken up permanent residence therein. She also went to
school there and, for a time, taught in one of the schools in that city.
2. When she married then Rep. Ferdinand E. Marcos who was then
domiciled in Batac, Ilocos Norte, by operation of law she acquired a new
domicile in that place in 1954.
3. In the successive years and during the events that happened
thereafter, her husband having been elected as a Senator and then as
President, she lived with him and their family in San Juan, Rizal and then
in Malacanang Palace in San Miguel, Manila.
4. Over those years, she registered as a voter and actually voted in
Batac, Ilocos Norte, then in San Juan, Rizal, and also in San Miguel,
Manila, all these merely in the exercise of the right of suffrage.
5. It does not appear that her husband, even after he had assumed those
lofty positions successively, ever abandoned his domicile of origin in
Batac, Ilocos Norte where he maintained his residence and invariably
voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and the
sojourn of the Marcos family in Honolulu, Hawaii, U.S.A., she eventually
returned to the Philippines in 1991 and resided in different places which
she claimed to have been merely temporary residences.
7. In 1992, petitioner ran for election as President of the Philippines and
in her certificate of candidacy she indicated that she was then a
registered voter and resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for the cancellation of her
registration in the Permanent List of Voters in Precinct No. 157 of San
Juan, Metro Manila in order that she may "be re-registered or transferred
to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed this up
with her Sworn Application for Cancellation of Voter's Previous
Registration wherein she stated that she was a registered voter in
Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that
she intended to register in Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner registered as a voter at Precinct No.
18-A of Olot, Tolosa, Leyte, for which purpose she filed with the therein
Board of Election Inspectors a voter's registration record form alleging
that she had resided in that municipality for six months.
10. On March 8, 1995, petitioner filed her certificate of candidacy for the
position of Representative of the First District of Leyte wherein she
alleged that she had been a resident for "Seven Months" of the
constituency where she sought to be elected.
11. On March 29, 1995, she filed an "Amended/Corrected Certificate of
Candidacy" wherein her answer in the original certificate of candidacy to
item "8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK, TO BE
ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed
or replaced with a new entry reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of her candidacy, petitioner had
complied with the residency requirement of one year as mandated by no less than
Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a dissertation on the
difference between residence and domicile. We have had enough of that and I
understand that for purposes of political law and, for that matter of international law,
residence is understood to be synonymous with domicile. That is so understood in our
jurisprudence and in American Law, in contradistinction to the concept of residence for
purposes of civil, commercial and procedural laws whenever an issue thereon is relevant
or controlling.
Consequently, since in the present case the question of petitioner's residence is
integrated in and inseparable from her domicile, I am addressing the issue from the
standpoint of the concept of the latter term, specifically its permutations into the domicile
of origin, domicile of choice and domicile by operation of law, as understood in American
law from which for this case we have taken our jurisprudential bearings.
My readings inform me that the domicile of the parents at the time of birth, or what is
termed the "domicile of origin," constitutes the domicile of an infant until abandoned, or
until the acquisition of a new domicile in a different place.
1
In the instant case, we may
grant that petitioner's domicile of origin,
2
at least as of 1938, was what is now Tacloban
City.
Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by
birth, domicile by choice, and domicile by operation of law. The first is the common case
of the place of birth or domicilium originis, the second is that which is voluntarily acquired
by a party or domicilium propio motu; the last which is consequential, as that of a wife
arising from marriage,
3
is sometimes called domicilium necesarium. There is no debate
that the domicile of origin can be lost or replaced by a domicile of choice or a domicile by
operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law,
not only international or American but of our own enactment,
4
she acquired her
husband's domicile of origin in Batac, Ilocos Norte and correspondingly lost her own
domicile of origin in Tacloban City.
Her subsequent changes of residence to San Juan, Rizal, then to San Miguel, Manila,
thereafter to Honolulu, Hawaii, and back to now San Juan, Metro Manila do not
appear to have resulted in her thereby acquiring new domiciles of choice. In fact, it
appears that her having resided in those places was by reason of the fortunes or
misfortunes of her husband and his peregrinations in the assumption of new official
positions or the loss of them. Her residence in Honolulu and, of course, those after her
return to the Philippines were, as she claimed, against her will or only for transient
purposes which could not have invested them with the status of domiciles of choice.
5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over
her requisite residency in Tacloban City or Olot, Tolosa, Leyte, there is no showing that
she ever attempted to acquire any other domicile of choice which could have resulted in
the abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we note the
majority's own submission
6
that, to successfully effect a change of domicile, one must
demonstrate (a) an actual removal or an actual change of domicile, (b) a bona
fide intention of abandoning the former place of residence and establishing a new one,
and (c) acts which correspond with the purpose.
We consequently have to also note that these requirements for the acquisition of a
domicile of choice apply whether what is sought to be changed or substituted is a
domicile of origin (domicilium originis) or a domicile by operation of law (domicilium
necesarium). Since petitioner had lost her domicilium originis which had been replaced
by her domicilium necesarium, it is therefore her continuing domicile in Batac, Ilocos
Norte which, if at all, can be the object of legal change under the contingencies of the
case at bar.
To get out of this quandary, the majority decision echoes the dissenting opinion of
Commissioner Regalado E. Maambong in SPA 95-009 of the Commission on
Elections,
7
and advances this novel proposition.
It may be said that petitioner lost her domicile of origin by operation of law
as a result of her marriage to the late President Ferdinand E. Marcos in
1952 (sic, 1954). By operation of law (domicilium necesarium), her legal
domicile at the time of her marriage became Batac, Ilocos Norte although
there were no indications of an intention on her part to abandon her
domicile of origin. Because of her husband's subsequent death and
through the operation of the provisions of the New Family Code already in
force at the time, however, her legal domicile automatically reverted to
her domicile of origin. . . . (Emphasis supplied).
Firstly, I am puzzled why although it is conceded that petitioner had acquired
a domicilium necesarium in Batac, Ilocos Norte, the majority insists on making a
qualification that she did not intend to abandon her domicile of origin. I find this
bewildering since, in this situation, it is the law that declares where petitioner's domicile
is at any given time, and not her self-serving or putative intent to hold on to her former
domicile. Otherwise, contrary to their own admission that one cannot have more than
one domicile at a time,
8
the majority would be suggesting that petitioner retained
Tacloban City as (for lack of a term in law since it does not exist therein) the equivalent
of what is fancied as a reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be recovered likewise in
accordance with law. However, we are here being titillated with the possibility of an
automatic reversion to or reacquisition of a domicile of origin after the termination of the
cause for its loss by operation of law. The majority agrees that since petitioner lost her
domicile of origin by her marriage, the termination of the marriage also terminates that
effect thereof. I am impressed by the ingeniousness of this theory which proves that,
indeed, necessity is the mother of inventions. Regretfully, I find some difficulty in
accepting either the logic or the validity of this argument.
If a party loses his domicile of origin by obtaining a new domicile of choice, he
thereby voluntarily abandons the former in favor of the latter. If, thereafter, he abandons
that chosen domicile, he does not per se recover his original domicile unless, by
subsequent acts legally indicative thereof, he evinces his intent and desire to establish
the same as his new domicile, which is precisely what petitioner belatedly and, evidently
just for purposes of her candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of choice cannot automatically restore
his domicile of origin, not only because there is no legal authority therefor but because it
would be absurd Pursued to its logical consequence, that theory of ipso jure reversion
would rule out the fact that said party could already very well have obtained another
domicile, either of choice or by operation of law, other than his domicile of origin.
Significantly and obviously for this reason, the Family Code, which the majority
inexplicably invokes, advisedly does not regulate this contingency since it would impinge
on one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice
(unless we assume that she entered into the marital state against her will) but, on top of
that, such abandonment was further affirmed through her acquisition of a new domicile
by operation of law. In fact, this is even a case of both voluntary andlegal abandonment
of a domicile of origin. With much more reason, therefore, should we reject the
proposition that with the termination of her marriage in 1989, petitioner had
supposedly per se and ipso facto reacquired her domicile of origin which she lost in
1954. Otherwise, this would be tantamount to saying that during the period of marital
coverture, she was simultaneously in possession and enjoyment of a domicile of origin
which was only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the husband's death the
wife has the right to elect her own domicile,
9
she nevertheless retains the last domicile
of her deceased husband until she makes an actual change.
10
In the absence of
affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal
residence follows that of her husband and will continue after his death.
11

I cannot appreciate the premises advanced in support of the majority's theory based on
Articles 68 and 69 of the Family Code. All that is of any relevance therein is that under
this new code, the right and power to fix the family domicile is now shared by the
spouses. I cannot perceive how that joint right, which in the first place was never
exercised by the spouses, could affect the domicile fixed by the law for petitioner in 1954
and, for her husband, long prior thereto. It is true that a wife now has the coordinate
power to determine the conjugal or family domicile, but that has no bearing on this case.
With the death of her husband, and each of her children having gotten married and
established their own respective domiciles, the exercise of that joint power was and is no
longer called for or material in the present factual setting of this controversy. Instead,
what is of concern in petitioner's case was the matter of her having acquired or not her
own domicile of choice.
I agree with the majority's discourse on the virtues of the growing and expanded
participation of women in the affairs of the nation, with equal rights and recognition by
Constitution and statutory conferment. However, I have searched in vain for a specific
law or judicial pronouncement which either expressly or by necessary implication
supports the majority's desired theory of automatic reacquisition of or reversion to
the domicilium originis of petitioner. Definitely, as between the settled and desirable legal
norms that should govern this issue, there is a world of difference; and, unquestionably,
this should be resolved by legislative articulation but not by the eloquence of the well-
turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not
having automatically reacquired any domicile therein, she cannot legally claim that her
residency in the political constituency of which it is a part continued since her birth up to
the present. Respondent commission was, therefore, correct in rejecting her pretension
to that effect in her amended/corrected certificate of candidacy, and in holding her to her
admission in the original certificate that she had actually resided in that constituency for
only seven months prior to the election. These considerations render it unnecessary to
further pass upon the procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.
DAVIDE, JR., J ., dissenting:
I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M.
Kapunan, more particularly on the issue of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or
rulings of the COMELEC may be brought to this Court only by the special civil action
for certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251
[1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without
or in excess of jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of
Court). Since the COMELEC has, undoubtedly, jurisdiction over the private respondent's
petition, the only issue left is whether it acted with grave abuse of discretion in
disqualifying the petitioner.
My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the
COMELEC Second Division and the En Banc resolution of 7 May 1995 discloses total
absence of abuse of discretion, much less grave abuse thereof. The resolution of the
Second Division dispassionately and objectively discussed in minute details the facts
which established beyond cavil that herein petitioner was disqualified as a candidate on
the ground of lack of residence in the First Congressional District of Leyte. It has not
misapplied, miscomprehended, or misunderstood facts or circumstances of substance
pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELEC's findings of fact for lack of
proof that the petitioner has abandoned Tolosa as her domicile of origin, which is
allegedly within the First Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC, either by
admission or by documentary evidence, overwhelming proof of the loss or abandonment
of her domicile of origin, which is Tacloban City and not Tolosa, Leyte. Assuming that
she decided to live again in her domicile of origin, that became her second domicile of
choice, where her stay, unfortunately, was for only seven months before the day of the
election. She was then disqualified to be a candidate for the position of Representative
of the First Congressional District of Leyte. A holding to the contrary would be arbitrary.
It may indeed be conceded that the petitioner's domicile of choice was either Tacloban
City or Tolosa, Leyte. Nevertheless, she lost it by operation of law sometime in May
1954 upon her marriage to the then Congressman (later, President) Ferdinand E.
Marcos. A domicile by operation of law is that domicile which the law attributes to a
person, independently of his own intention or actual residence, as results from legal
domestic relations as that of the wife arising from marriage (28 C.J.S. Domicile 7, 11).
Under the governing law then, Article 110 of the Civil Code, her new domicile or her
domicile of choice was the domicile of her husband, which was Batac, Ilocos Norte. Said
Article reads as follows:
Art. 110. The husband shall fix the residence of the family. But the court
may exempt the wife from living with the husband if he should live abroad
unless in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino states:
Although the duty of the spouses to live together is mutual, the husband
has a predominant right because he is empowered by law to fix the family
residence. This right even predominates over some rights recognized by
law in the wife. For instance, under article 117 the wife may engage in
business or practice a profession or occupation. But because of the
power of the husband to fix the family domicile he may fix it at such a
place as would make it impossible for the wife to continue in business or
in her profession. For justifiable reasons, however, the wife may be
exempted from living in the residence chosen by the husband. The
husband cannot validly allege desertion by the wife who refuses to follow
him to a new place of residence, when it appears that they have lived for
years in a suitable home belonging to the wife, and that his choice of a
different home is not made in good faith. (Commentaries and
Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses her own domicile and, by
operation of law, acquires that of her husband, no matter where the wife actually lives or
what she believes or intends. Her domicile is fixed in the sense that it is declared to be
the same as his, and subject to certain limitations, he can change her domicile by
changing his own (25 Am Jur 2d Domicile 48, 37).
It must, however, be pointed out that under Article 69 of the Family Code, the fixing of
the family domicile is no longer the sole prerogative of the husband, but is now a joint
decision of the spouses, and in case of disagreement the court shall decide. The said
article uses the term "family domicile," and not family residence, as "the spouses may
have multiple residences, and the wife may elect to remain in one of such residences,
which may destroy the duty of the spouses to live together and its corresponding
benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines,
[1988], 102).
The theory of automatic restoration of a woman's domicile of origin upon the death of her
husband, which the majority opinion adopts to overcome the legal effect of the
petitioner's marriage on her domicile, is unsupported by law and by jurisprudence. The
settled doctrine is that after the husband's death the wife has a right to elect her own
domicile, but she retains the last domicile of her husband until she makes an actual
change (28 C.J.S. Domicile 12, 27). Or, on the death of the husband, the power of the
wife to acquire her own domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his death (25 Am Jur 2d Domicile
62, 45). Note that what is revived is not her domicile of origin but her power to acquire
her own domicile.
Clearly, even after the death of her husband, the petitioner's domicile was that of her
husband at the time of his death which was Batac, Ilocos Norte, since their
residences in San Juan, Metro Manila, and San Miguel, Manila, were their residences for
convenience to enable her husband to effectively perform his official duties. Their
residence in San Juan was a conjugal home, and it was there to which she returned in
1991 when she was already a widow. In her sworn certificate of candidacy for the Office
of the President in the synchronized elections of May 1992, she indicated therein that
she was a resident of San Juan, Metro Manila. She also voted in the said elections in
that place.
On the basis of her evidence, it was only on 24 August 1994 when she exercised her
right as a widow to acquire her own domicile in Tolosa, Leyte, through her sworn
statement requesting the Election Officer of San Juan, Metro Manila, to cancel her
registration in the permanent list of voters in Precinct 157 thereat and praying that she
be "re-registered or transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and
permanent residence" (photocopy of Exhibit "B," attached as Annex "2" of private
respondent Montejo's Comment). Notably, she contradicted this sworn statement
regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March 1992
(photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record
sworn to on 28 January 1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and
her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of Exhibit "A,"
attached as Annex "1," Id.), she solemnly declared that she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa,
Leyte? In the affidavit attached to her Answer to the petition for disqualification (Annex
"I" of Petition), she declared under oath that her "domicile or residence is Tacloban City."
If she did intend to return to such domicile or residence of origin why did she inform the
Election Officer of San Juan that she would transfer to Olot, Tolosa, Leyte, and indicate
in her Voter's Registration Record and in her certificate of candidacy that her residence
is Olot, Tolosa, Leyte? While this uncertainty is not important insofar as residence in the
congressional district is concerned, it nevertheless proves that forty-one years had
already lapsed since she had lost or abandoned her domicile of origin by virtue of
marriage and that such length of time diminished her power of recollection or blurred her
memory.
I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil.
294 [1954]), and the subsequent cases which established the principle that absence
from original residence or domicile of origin to pursue studies, practice one's profession,
or engage in business in other states does not constitute loss of such residence or
domicile. So is the reliance on Section 117 of the Omnibus Election Code which
provides that transfer of residence to any other place by reason of one's "occupation;
profession; employment in private and public service; educational activities; work in
military or naval reservations; service in the army, navy or air force, the constabulary or
national police force; or confinement or detention in government institutions in
accordance with law" is not deemed as loss of original residence. Those cases and legal
provision do not include marriage of a woman. The reason for the exclusion is, of
course, Article 110 of the Civil Code. If it were the intention of this Court or of the
legislature to consider the marriage of a woman as a circumstance which would not
operate as an abandonment of domicile (of origin or of choice), then such cases and
legal provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the petitioner in her
affidavit (Annex "A" of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition)
that her "domicile or residence of origin is Tacloban City," and that she "never intended
to abandon this domicile or residence of origin to which [she] always intended to return
whenever absent." Such a claim of intention cannot prevail over the effect of Article 110
of the Civil Code. Besides, the facts and circumstances or the vicissitudes of the
petitioner's life after her marriage in 1954 conclusively establish that she had indeed
abandoned her domicile of origin and had acquired a new oneanimo et facto (KOSSUTH
KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the petitioner's claim that she "merely
committed an honest mistake" in writing down the word "seven" in the space provided for
the residency qualification requirement in the certificate of candidacy. Such a claim is
self-serving and, in the light of the foregoing disquisitions, would be all sound and fury
signifying nothing. To me, she did not commit any mistake, honest or otherwise; what
she stated was the truth.
The majority opinion also disregards a basic rule in evidence that he who asserts a fact
or the affirmative of an issue has the burden of proving it (Imperial Victory Shipping
Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221
SCRA 19 [1993]). Having admitted marriage to the then Congressman Marcos, the
petitioner could not deny the legal consequence thereof on the change of her domicile to
that of her husband. The majority opinion rules or at least concludes that "[b]y operation
of law (domicilium necesarium), her legal domicile at the time of her marriage
automatically became Batac, Ilocos Norte." That conclusion is consistent with Article 110
of the Civil Code. Since she is presumed to retain her deceased husband's domicile until
she exercises her revived power to acquire her own domicile, the burden is upon her to
prove that she has exercised her right to acquire her own domicile. She miserably failed
to discharge that burden.
I vote to deny the petition.
Separate Opinions
PUNO, J ., concurring:
It was Aristotle who taught mankind that things that are alike should be treated alike,
while things that are unalike should be treated unalike in proportion to their
unalikeness.
1
Like other candidates, petitioner has clearly met the residence
requirement provided by Section 6, Article VI of the Constitution.
2
We cannot disqualify
her and treat her unalike, for the Constitution guarantees equal protection of the law. I
proceed from the following factual and legal propositions:
First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her
parents were domiciled in Tacloban. Their ancestral house is in Tacloban. They have
vast real estate in the place. Petitioner went to school and thereafter worked there. I
consider Tacloban as her initial domicile, both her domicile of origin and her domicile of
choice. Her domicile of origin as it was the domicile of her parents when she was a
minor; and her domicile of choice, as she continued living there even after reaching the
age of majority.
Second. There is also no question that in May, 1954, petitioner married the late
President Ferdinand E. Marcos. By contracting marriage, her domicile became subject to
change by law, and the right to change it was given by Article 110 of the Civil Code
provides:
Art. 110. The husband shall fix the residence of the family. But the court
may exempt the wife from living with the husband if he should live abroad
unless in the service of the Republic.
3
(Emphasis supplied)
In De la Via v. Villareal and Geopano,
4
this Court explained why the domicile of
the wife ought to follow that of the husband. We held: "The reason is founded
upon the theoretic identity of person and interest between the husband and the
wife, and the presumption that, from the nature of the relation, the home of one is
the home of the other. It is intended to promote, strengthen, and secure their
interests in this relation, as it ordinarily exists, where union and harmony
prevail."
5
In accord with this objective, Article 109 of the Civil Code also obligated
the husband and wife "to live together."
Third. The difficult issues start as we determine whether petitioner's marriage to former
President Marcos ipso facto resulted in the loss of her Tacloban domicile. I respectfully
submit that her marriage by itself alone did not cause her to lose her Tacloban domicile.
Article 110 of the Civil Code merely gave the husband the right to fix the domicile of the
family. In the exercise of the right, the husband may explicitly choose the prior domicile
of his wife, in which case, the wife's domicile remains unchanged. The husband can
also implicitly acquiesce to his wife's prior domicile even if it is different. So we held in de
la Via,
6

. . . . When married women as well as children subject to parental
authority live, with the acquiescence of their husbands or fathers, in a
place distinct from where the latter live, they have their
own independent domicile. . . .
It is not, therefore, the mere fact of marriage but the deliberate choice of a
different domicile by the husband that will change the domicile of a wife from
what it was prior to their marriage. The domiciliary decision made by the husband
in the exercise of the right conferred by Article 110 of the Civil Code binds the
wife. Any and all acts of a wife during her coverture contrary to the domiciliary
choice of the husband cannot change in any way the domicile legally fixed by the
husband. These acts are void not only because the wife lacks the capacity to
choose her domicile but also because they are contrary to law and public policy.
In the case at bench, it is not disputed that former President Marcos exercised his right
to fix the family domicile and established it in Batac, Ilocos Norte, where he was then the
congressman. At that particular point of time and throughout their married life, petitioner
lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has been fixed by
operation of law, it was not affected in 1959 when her husband was elected as Senator,
when they lived in San Juan, Rizal and where she registered as a voter. It was not also
affected in 1965 when her husband was elected President, when they lived in
Malacaang Palace, and when she registered as a voter in San Miguel, Manila. Nor was
it affected when she served as a member of the Batasang Pambansa, Minister of
Human Settlements and Governor of Metro Manila during the incumbency of her
husband as President of the nation. Under Article 110 of the Civil Code, it was only her
husband who could change the family domicile in Batac and the evidence shows he did
not effect any such change. To a large degree, this follows the common law that "a
woman on her marriage loses her own domicile and by operation of law, acquires that of
her husband, no matter where the wife actually lives or what she believes or intends."
7

Fourth. The more difficult task is how to interpret the effect of the death on September
28, 1989 of former President Marcos on petitioner's Batac domicile. The issue is of first
impression in our jurisdiction and two (2) schools of thought contend for acceptance.
One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily relying
on American authorities.
8
He echoes the theory that after the husband's death, the wife
retains the last domicile of her husband until she makes an actual change.
I do not subscribe to this submission. The American case law that the wife still retains
her dead husband's domicile is based on ancient common law which we can no longer
apply in the Philippine setting today. The common law identified the domicile of a wife as
that of the husband and denied to her the power of acquiring a domicile of her own
separate and apart from him.
9
Legal scholars agree that two (2) reasons support this
common law doctrine. The first reason as pinpointed by the legendary Blackstone is
derived from the view that "the very being or legal existence of the woman is suspended
during
the marriage, or at least is incorporated and consolidated into that of the
husband."
10
The second reason lies in "the desirability of having the interests of each
member of the family unit governed by the same law."
11
The presumption that the wife
retains the domicile of her deceased husband is an extension of this common law
concept. The concept and its extension have provided some of the most iniquitous
jurisprudence against women. It was under common law that the 1873 American case
of Bradwell v. Illinois
12
was decided where women were denied the right to practice law.
It was unblushingly ruled that "the natural and proper timidity and delicacy which belongs
to the female sex evidently unfits it for many of the occupations of civil life . . . This is the
law of the Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS
13
and
AM JUR 2d
14
are American state court decisions handed down between the years
1917
15
and 1938,
16
or before the time when women were accorded equality of rights
with men. Undeniably, the women's liberation movement resulted in far-ranging state
legislations in the United States to eliminate gender inequality.
17
Starting in the decade
of the seventies, the courts likewise liberalized their rulings as they started invalidating
laws infected with gender-bias. It was in 1971 when the US Supreme Court in Reed
v. Reed,
18
struck a big blow for women equality when it declared as unconstitutional an
Idaho law that required probate courts to choose male family members over females as
estate administrators. It held that mere administrative inconvenience cannot justify a
sex-based distinction. These significant changes both in law and in case law on the
status of women virtually obliterated the iniquitous common law surrendering the rights
of married women to their husbands based on the dubious theory of the parties' theoretic
oneness. The Corpus Juris Secundum editors did not miss the relevance of this
revolution on women's right as they observed: "However, it has been declared that
under modern statutes changing the status of married women and departing from the
common law theory of marriage, there is no reason why a wife may not acquire a
separate domicile for every purpose known to the law."
19
In publishing in 1969
theRestatement of the Law, Second (Conflict of Laws 2d), the reputable American Law
Institute also categorically stated that the view of Blackstone ". . . is no longer held. As
the result of statutes and court decisions, a wife now possesses practically the same
rights and powers as her unmarried sister."
20

In the case at bench, we have to decide whether we should continue clinging to
the anachronistic common lawthat demeans women, especially married women. I submit
that the Court has no choice except to break away from this common law rule, the root of
the many degradations of Filipino women. Before 1988, our laws particularly the Civil
Code, were full of gender discriminations against women. Our esteemed colleague,
Madam Justice Flerida Ruth Romero, cited a few of them as follows:
21

xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under the Civil Code, wives suffer
under certain restrictions or disabilities. For instance, the wife cannot
accept gifts from others, regardless of the sex of the giver or the value of
the gift, other than from her very close relatives, without her husband's
consent. She may accept only from, say, her parents, parents-in-law,
brothers, sisters and the relatives within the so-called fourth civil degree.
She may not exercise her profession or occupation or engage in business
if her husband objects on serious grounds or if his income is sufficient to
support their family in accordance with their social standing. As to what
constitutes "serious grounds" for objecting, this is within the discretion of
the husband.
xxx xxx xxx
Because of the present inequitable situation, the amendments to the Civil
Law being proposed by the University of the Philippines Law Center
would allow absolute divorce which severes the matrimonial ties, such
that the divorced spouses are free to get married a year after the divorce
is decreed by the courts. However, in order to place the husband and wife
on an equal footing insofar as the bases for divorce are concerned, the
following are specified as the grounds for absolute divorce: (1) adultery or
having a paramour committed by the respondent in any of the ways
specified in the Revised Penal Code or (2) an attempt by the respondent
against the life of the petitioner which amounts to attempted parricide
under the Revised Penal Code; (3) abandonment of the petitioner by the
respondent without just cause for a period of three consecutive years; or
(4) habitual maltreatment.
With respect to property relations, the husband is automatically the
administrator of the conjugal property owned in common by the married
couple even if the wife may be the more astute or enterprising partner.
The law does not leave it to the spouses to decide who shall act as such
administrator. Consequently, the husband is authorized to engage in acts
and enter into transactions beneficial to the conjugal partnership. The
wife, however, cannot similarly bind the partnership without the husband's
consent.
And while both exercise joint parental authority over their children, it is the
father whom the law designates as the legal administrator of the property
pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally through
legislations, to eliminate inequality between men and women in our land. The
watershed came on August 3, 1988 when our Family Code took effect which,
among others, terminated the unequal treatment of husband and wife as to their
rights and responsibilities.
22

The Family Code attained this elusive objective by giving new rights to married women
and by abolishing sex-based privileges of husbands. Among others, married women are
now given the joint right to administer the family property, whether in the absolute
community system or in the system of conjugal partnership;
23
joint parental authority
over their minor children, both over their persons as well as their properties;
24
joint
responsibility for the support of the family;
25
the right to jointly manage the
household;
26
and, the right to object to their husband's exercise of profession,
occupation, business or activity.
27
Of particular relevance to the case at bench is Article
69 of the Family Code which took away the exclusive right of the husband to fix the
family domicile and gave it jointly to the husband and the wife, thus:
Art. 69. The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter
should live abroad or there are other valid and compelling reasons for the
exemption. However, such exemption shall not apply if the same is not
compatible with the solidarity of the family. (Emphasis supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the
husband and wife to live together, former Madam Justice Alice Sempio-Diy of the
Court of Appeals specified the instances when a wife may now refuse to live with
her husband, thus:
28

(2) The wife has the duty to live with her husband, but she may refuse to
do so in certain cases like:
(a) If the place chosen by the husband as family residence
is dangerous to her Life;
(b) If the husband subjects her to maltreatment or abusive
conduct or insults, making common life impossible;
(c) If the husband compels her to live with his parents, but
she cannot get along with her mother-in-law and they have
constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG
6122);
(d) Where the husband has continuously carried illicit
relations for 10 years with different women and treated his
wife roughly and without consideration. (Dadivas v.
Villanueva, 54 Phil. 92);
(e) Where the husband spent his time in gambling, giving
no money to his family for food and necessities, and at the
same time insulting his wife and laying hands on her.
(Panuncio v. Sula, CA, 34 OG 129);
(f) If the husband has no fixed residence and lives a
vagabond life as a tramp (1 Manresa 329);
(g) If the husband is carrying on a shameful business at
home (Gahn v. Darby, 38 La. Ann. 70).
The inescapable conclusion is that our Family Code has completely emancipated
the wife from the control of the husband, thus abandoning the parties' theoretic
identity of interest. No less than the late revered Mr. Justice J.B.L. Reyes who
chaired the Civil Code Revision Committee of the UP Law Center gave this
insightful view in one of his rare lectures after retirement:
29

xxx xxx xxx
The Family Code is primarily intended to reform the family law so as to
emancipate the wife from the exclusive control of the husband and to
place her at parity with him insofar as the family is concerned. The wife
and the husband are now placed on equal standing by the Code. They
are now joint administrators of the family properties and exercise joint
authority over the persons and properties of their children. This means a
dual authority in the family. The husband will no longer prevail over the
wife but she has to agree on all matters concerning the family. (Emphasis
supplied)
In light of the Family Code which abrogated the inequality between husband and
wife as started and perpetuated by the common law, there is no reason in
espousing the anomalous rule that the wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which provides the statutory support for
this stance has been repealed by Article 69 of the Family Code. By its repeal, it
becomes a dead-letter law, and we are not free to resurrect it by giving it further
effect in any way or manner such as by ruling that the petitioner is still bound by
the domiciliary determination of her dead husband.
Aside from reckoning with the Family Code, we have to consider our Constitution and its
firm guarantees of due process and equal protection of
law.
30
It can hardly be doubted that the common law imposition on a married woman of
her dead husband's domicile even beyond his grave is patently discriminatory to women.
It is a gender-based discrimination and is not rationally related to the objective of
promoting family solidarity. It cannot survive a constitutional challenge. Indeed,
compared with our previous fundamental laws, the 1987 Constitution is more concerned
with equality between sexes as it explicitly commands that the State ". . . shall ensure
fundamental equality before the law of women and men." To be exact, section 14, Article
II provides: "The State recognizes the role of women in nation building, and shall ensure
fundamental equality before the law of women and men. We shall be transgressing the
sense and essence of this constitutional mandate if we insist on giving our women the
caveman's treatment.
Prescinding from these premises, I respectfully submit that the better stance is to rule
that petitioner reacquired her Tacloban domicile upon the death of her husband in 1989.
This is the necessary consequence of the view that petitioner's Batac dictated domicile
did not continue after her husband's death; otherwise, she would have no domicile and
that will violate the universal rule that no person can be without a domicile at any point of
time. This stance also restores the right of petitioner to choose her domicile before it was
taken away by Article 110 of the Civil Code, a right now recognized by the Family Code
and protected by the Constitution. Likewise, I cannot see the fairness of the common law
requiring petitioner to choose again her Tacloban domicile before she could be released
from her Batac domicile. She lost her Tacloban domicile not through her act but through
the act of her deceased husband when he fixed their domicile in Batac. Her husband is
dead and he cannot rule her beyond the grave. The law disabling her to choose her own
domicile has been repealed. Considering all these, common law should not put the
burden on petitioner to prove she has abandoned her dead husband's domicile. There is
neither rhyme nor reason for this gender-based burden.
But even assuming arguendo that there is need for convincing proof that petitioner
chose to reacquire her Tacloban domicile, still, the records reveal ample evidence to this
effect. In her affidavit submitted to the respondent COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to our beloved country, after
several requests for my return were denied by President Corazon C.
Aquino, and after I filed suits for our Government to issue me my
passport.
37. But I came home without the mortal remains of my beloved husband,
President Ferdinand E. Marcos, which the Government considered a
threat to the national security and welfare.
38. Upon my return to the country, I wanted to immediately live and reside
in Tacloban City or in Olot, Tolosa, Leyte, even if my residences there
were not livable as they had been destroyed and cannibalized. The
PCGG, however, did not permit and allow me.
39. As a consequence, I had to live at various times in the Westin
Philippine Plaza in Pasay City, a friend's apartment on Ayala Avenue, a
house in South Forbes Park which my daughter rented, and Pacific Plaza,
all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the
residence of my brother in San Jose, Tacloban City, and pursued my
negotiations with PCGG to recover my sequestered residences in
Tacloban City and Barangay Olot, Tolosa, Leyte.
40.1 In preparation for my observance of All Saints' Day
and All Souls' Day that year, I renovated my parents' burial
grounds and entombed their bones which had been
excalvated, unearthed and scattered.
41. On November 29, 1993, I formally wrote PCGG Chairman
Magtanggol Gunigundo for permissions to
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and
farmhouse in Olot, Leyte . . . to make them livable for us
the Marcos family to have a home in our own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman
Gunigundo, in his letter to Col. Simeon Kempis, Jr., PCGG Region 8
Representative, allowed me to repair and renovate my Leyte residences. I
quote part of his letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this
Commission, that she intends to visit our sequestered
properties in Leyte, please allow her access thereto. She
may also cause repairs and renovation of the sequestered
properties, in which event, it shall be understood that her
undertaking said repairs is not authorization for her to take
over said properties, and that all expenses shall be for her
account and not reimbursable. Please extend the
necessary courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Nio Shrine
residence in Tacloban City where I wanted to stay and reside, after
repairs and renovations were completed. In August 1994, I transferred
from San Jose, Tacloban City, to my residence in Barangay Olot, Tolosa,
Leyte, when PCGG permitted me to stay and live there.
It is then clear that in 1992 petitioner reestablished her domicile in the First
District of Leyte. It is not disputed that in 1992, she first lived at the house of her
brother in San Jose, Tacloban City and later, in August 1994, she transferred her
residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the
municipality of Olot are within the First District of Leyte. Since petitioner
reestablished her old domicile in 1992 in the First District of Leyte, she more than
complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the
election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to negate the Tacloban domicile of
petitioner is nil. He presented petitioner's Voter's Registration Record filed with the
Board of Election Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein
she stated that her period of residence in said barangay was six (6) months as of the
date of her filing of said Voter's Registration Record on January 28, 1995.
31
This
statement in petitioner's Voter's Registration Record is a non-prejudicial admission. The
Constitution requires at least one (1) year residence in thedistrict in which the candidate
shall be elected. In the case at bench, the reference is the First District of Leyte.
Petitioner's statement proved that she resided in Olot six (6) months before January 28,
1995 but did not disprove that she has also resided in Tacloban City starting 1992. As
aforestated, Olot and Tacloban City are both within the First District of Leyte, hence, her
six (6) months residence in Olot should be counted not against, but in her favor. Private
respondent also presented petitioner's Certificate of Candidacy filed on March 8,
1995
32
where she placed seven (7) months after Item No. 8 which called for information
regarding "residence in the constituency where I seek to be elected immediately
preceding the election." Again, this original certificate of candidacy has no evidentiary
value because an March 1, 1995 it was corrected by petitioner. In her
Amended/Corrected Certificate of Candidacy,
33
petitioner wrote "since childhood" after
Item No. 8. The amendment of a certificate of candidacy to correct a bona fide mistake
has been allowed by this Court as a matter of course and as a matter of right. As we
held in Alialy v. COMELEC,
34
viz.:
xxx xxx xxx
The absence of the signature of the Secretary of the local chapter N.P in
the original certificate of candidacy presented before the deadline
September 11, 1959, did not render the certificate invalid.The amendment
of the certificate, although at a date after the deadline, but before the
election, was substantial compliance with the law, and the defect was
cured.
It goes without saying that petitioner's erroneous Certificate of Candidacy filed on
March 8, 1995 cannot be used as evidence against her. Private respondent's
petition for the disqualification of petitioner rested alone on these two (2) brittle
pieces of documentary evidence petitioner's Voter's Registration Record and
her original Certificate of Candidacy. Ranged against the evidence of the
petitioner showing her ceaseless contacts with Tacloban, private respondent's
two (2) pieces of evidence are too insufficient to disqualify petitioner, more so, to
deny her the right to represent the people of the First District of Leyte who have
overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for
any public office shall be free from any form of harassment and discrimination."
35
A
detached reading of the records of the case at bench will show that all forms of legal and
extra-legal obstacles have been thrown against petitioner to prevent her from running as
the people's representative in the First District of Leyte. In petitioner's Answer to the
petition to disqualify her, she averred:
36

xxx xxx xxx
10. Petitioner's (herein private respondent Montejo) motive in filing the
instant petition is devious. When respondent (petitioner herein)
announced that she was intending to register as a voter in Tacloban City
and run for Congress in the First District of Leyte, petitioner (Montejo)
immediately opposed her intended registration by writing a letter stating
that "she is not a resident of said city but of Barangay Olot, Tolosa,
Leyte." (Annex "2" of respondent's affidavit, Annex "2"). After respondent
(petitioner herein) had registered as a voter in Tolosa following
completion of her six-month actual residence therein, petitioner (Montejo)
filed a petition with the COMELEC to transfer the town of Tolosa from the
First District to the Second District and pursued such move up to the
Supreme Court in G.R. No. 118702, his purpose being to remove
respondent (petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along with
other Leyte Congressmen, seeking to create another legislative district, to
remove the town of Tolosa out of the First District and to make it a part of
the new district, to achieve his purpose. However, such bill did not pass
the Senate. Having, failed on such moves, petitioner now filed the instant
petition, for the same objective, as it is obvious that he is afraid to submit
himself along with respondent (petitioner herein) for the judgment and
verdict of the electorate of the First District of Leyte in an honest, orderly,
peaceful, free and clean elections on May 8, 1995.
These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting
Opinion,
37
held:
xxx xxx xxx
Prior to the registration date January 28, 1995 the petitioner (herein
private respondent Montejo) wrote the Election Officer of Tacloban City
not to allow respondent (petitioner herein) to register thereat since she is
a resident of Tolosa and not Tacloban City. The purpose of this move of
the petitioner (Montejo) is not lost to (sic) the Commission. In UND No.
95-001 (In the matter of the Legislative Districts of the Provinces of Leyte,
Iloilo, and South Cotabato, Out of Which the New Provinces of Biliran,
Guimaras and Saranggani Were Respectively Created), . . . Hon. Cirilo
Roy G. Montejo, Representative, First District of Leyte, wanted the
Municipality of Tolosa, in the First District of Leyte, transferred to the
Second District of Leyte. The Hon. Sergio A.F. Apostol, Representative of
the Second District of Leyte, opposed the move of the petitioner
(Montejo). Under Comelec Resolution No. 2736 (December 29, 1994),
the Commission on Elections refused to make the proposed transfer.
Petitioner (Montejo) filed "Motion for Reconsideration of Resolution
No. 2736" which the Commission denied in a Resolution promulgated on
February 1, 1995. Petitioner (Montejo) filed a petition for certiorari before
the Honorable Supreme Court (Cirilo Roy G. Montejo vs. Commission on
Elections, G.R. No. 118702) questioning the resolution of the
Commission. Believing that he could get a favorable ruling from the
Supreme Court, petitioner (Montejo) tried to make sure that the
respondent (petitioner herein) will register as a voter in Tolosa so that she
will be forced to run as Representative not in the First but in the Second
District.
It did not happen. On March 16, 1995, the Honorable Supreme Court
unanimously promulgated a "Decision," penned by Associate Justice
Reynato S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736
insofar as it transferred the municipality of Capoocan of the
Second District and the municipality of Palompon of the
Fourth District to the Third District of the province of Leyte,
is annulled and set aside. We also deny the Petition
praying for the transfer of the municipality of Tolosa from
the First District to the Second District of the province of
Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent (petitioner
herein) was constrained to register in the Municipality of Tolosa where her
house is instead of Tacloban City, her domicile. In any case, both
Tacloban City and Tolosa are in the First Legislative District.
All these attempts to misuse our laws and legal processes are forms of rank
harassments and invidious discriminations against petitioner to deny her equal
access to a public office. We cannot commit any hermeneutic violence to the
Constitution by torturing the meaning of equality, the end result of which will allow
the harassment and discrimination of petitioner who has lived a controversial life,
a past of alternating light and shadow. There is but one Constitution for all
Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and the
worst way to interpret the Constitution is to inject in its interpretation, bile and
bitterness.
Sixth. In Gallego v. Vera,
38
we explained that the reason for this residence requirement
is "to exclude a stranger or newcomer, unacquainted, with the conditions and needs of a
community and not identified with the latter, from an elective office to serve that
community . . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be
contested. Nobody can claim that she is not acquainted with its problems because she is
a stranger to the place. None can argue she cannot satisfy the intent of the Constitution.
Seventh. In resolving election cases, a dominant consideration is the need to effectuate
the will of the electorate. The election results show that petitioner received Seventy
Thousand Four Hundred Seventy-one (70,471) votes, while private respondent got only
Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is clearly the
overwhelming choice of the electorate of the First District of Leyte and this is not a
sleight of statistics. We cannot frustrate this sovereign will on highly arguable technical
considerations. In case of doubt, we should lean towards a rule that will give life to the
people's political judgment.
A final point. The case at bench provides the Court with the rare opportunity to rectify the
inequality of status between women and men by rejecting the iniquitous common law
precedents on the domicile of married women and by redefining domicile in accord with
our own culture, law, and Constitution. To rule that a married woman is eternally
tethered to the domicile dictated by her dead husband is to preserve the anachronistic
and anomalous balance of advantage of a husband over his wife. We should not allow
the dead to govern the living even if the glories of yesteryears seduce us to shout long
live the dead! The Family Code buried this gender-based discrimination against married
women and we should not excavate what has been entombed. More importantly, the
Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J ., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position
of Representative of the First Congressional District of Leyte. I wish, however, to
express a few comments on the issue of petitioner's domicile.
Domicile has been defined as that place in which a person's habitation is fixed, without
any present intention of removing therefrom, and that place is properly the domicile of a
person in which he has voluntarily fixed his abode, or habitation, not for a mere special
or temporary purpose, but with a present intention of making it his permanent home (28
C.J.S. 1). It denotes a fixed permanent residence to which when absent for business,
or pleasure, or for like reasons one intends to return, and depends on facts and
circumstances, in the sense that they disclose intent. (Ong Huan Tin v. Republic, 19
SCRA 966, 969)
Domicile is classified into domicile of origin and domicile of choice. The law attributes to
every individual a domicile of origin, which is the domicile of his parents, or of the head
of his family, or of the person on whom he is legally dependent at the time of his birth.
While the domicile of origin is generally the place where one is born or reared, it maybe
elsewhere (28 C.J.S. 5). Domicile of choice, on the other hand, is the place which the
person has elected and chosen for himself to displace his previous domicile; it has for its
true basis or foundation the intention of the person (28 C.J.S. 6). In order to hold that a
person has abandoned his domicile and acquired a new one called domicile of choice,
the following requisites must concur, namely, (a) residence or bodily presence in the
new locality, (b) intention to remain there or animus manendi, and (c) an intention to
abandon the old domicile oranimus non revertendi (Romualdez v. RTC, Br. 7, Tacloban
City, 226 SCRA 408, 415). A third classification is domicile by operation of law which
attributes to a person a domicile independent of his own intention or actual residence,
ordinarily resulting from legal domestic relations, as that of the wife arising from
marriage, or the relation of a parent and a child (28 C.J.S. 7).
In election law, when our Constitution speaks of residence for election purposes it
means domicile (Co v. Electoral Tribunal of the House of Representatives, 199 SCRA
692, 713; Nuval v. Guray, 52 Phil. 645, 651). To my mind, public respondent
Commission on Elections misapplied this concept, of domicile which led to petitioner's
disqualification by ruling that petitioner failed to comply with the constitutionally
mandated one-year residence requirement. Apparently, public respondent Commission
deemed as conclusive petitioner's stay and registration as voter in many places as
conduct disclosing her intent to abandon her established domicile of origin in Tacloban,
Leyte. In several decisions, though, the Court has laid down the rule that registration of a
voter in a place other than his place of origin is not sufficient to constitute abandonment
or loss of such residence (Faypon v. Quirino, 96 Phil. 294, 300). Respondent
Commission offered no cogent reason to depart from this rule except to surmise
petitioner's intent of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was supplanted by a new
domicile due to her marriage, a domicile by operation of law. The proposition is that
upon the death of her husband in 1989 she retains her husband's domicile, i.e., Batac,
Ilocos Norte, until she makes an actual change thereof. I find this proposition quite
untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with
another, i.e., Batac, Ilocos Norte, upon her marriage in 1954 with then Congressman
Marcos. By legal fiction she followed the domicile of her husband. In my view, the reason
for the law is for the spouses to fully and effectively perform their marital duties and
obligations to one another.
1
The question of domicile, however, is not affected by the
fact that it was the legal or moral duty of the individual to reside in a given place (28
C.J.S. 11). Thus, while the wife retains her marital domicile so long as the marriage
subsists, she automatically loses it upon the latter's termination, for the reason behind
the law then ceases. Otherwise, petitioner, after her marriage was ended by the death of
her husband, would be placed in a quite absurd and unfair situation of having been freed
from all wifely obligations yet made to hold on to one which no longer serves any
meaningful purpose.
It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte
upon her husband's death without even signifying her intention to that effect. It is for the
private respondent to prove, not for petitioner to disprove, that petitioner has effectively
abandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear
rule is that it is the party (herein private respondent) claiming that a person has
abandoned or lost his residence of origin who must show and prove preponderantly such
abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16), because the
presumption is strongly in favor of an original or former domicile, as against an acquired
one (28 C.J.S. 16). Private respondent unfortunately failed to discharge this burden as
the record is devoid of convincing proof that petitioner has acquired whether voluntarily
or involuntarily, a new domicile to replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has complied with the
constitutional one-year residence requirement. After her exile abroad, she returned to
the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the Presidential Commission
on Good Government which sequestered her residential house and other properties
forbade her necessitating her transient stay in various places in Manila (Affidavit p.6,
attached as Annex I of the Petition). In 1992, she ran for the position of president writing
in her certificate of candidacy her residence as San Juan, Metro Manila. After her loss
therein, she went back to Tacloban City, acquired her residence certificate
2
and resided
with her brother in San Jose. She resided in San Jose, Tacloban City until August of
1994 when she was allowed by the PCGG to move and reside in her sequestered
residential house in Olot, Tolosa, Leyte (Annex I, p. 6).
3
It was in the same month of
August when she applied for the cancellation of her previous registration in San Juan,
Metro Manila in order to register anew as voter of Olot, Tolosa, Leyte, which she did on
January 28, 1995. From this sequence of events, I find it quite improper to use as the
reckoning period of the one-year residence requirement the date when she applied for
the cancellation of her previous registration in San Juan, Metro Manila. The fact which
private respondent never bothered to disprove is that petitioner transferred her residence
after the 1992 presidential election from San Juan, Metro Manila to San Jose, Tacloban
City, and resided therein until August of 1994. She later transferred to Olot, Tolosa,
Leyte (Annex I, p. 7). It appearing that both Tacloban City and Tolosa, Leyte are within
the First Congressional District of Leyte, it indubitably stands that she had more than a
year of residence in the constituency she sought to be elected. Petitioner, therefore, has
satisfactorily complied with the one-year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J ., separate opinion:
Petitioner has appealed to this Court for relief after the COMELEC ruled that she was
disqualified from running for Representative of her District and that, in the event that she
should, nevertheless, muster a majority vote, her proclamation should be suspended.
Not by a straightforward ruling did the COMELEC pronounce its decision as has been its
unvarying practice in the past, but by a startling succession of "reverse somersaults."
Indicative of its shifting stance vis-a-vis petitioner's certificate of candidacy were first, the
action of its Second Division disqualifying her and canceling her original Certificate of
Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the COMELEC en
banc of her Motion for Reconsideration on May 7, 1995, a day before the election; then
because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that
the results of the canvass should show that she obtained the highest number of votes
(obviously noting that petitioner had won overwhelmingly over her opponent), but almost
simultaneously reversing itself by directing that even if she wins, her proclamation
should nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by the case at bench is
the interpretation to be given to the one-year residency requirement imposed by the
Constitution on aspirants for a Congressional seat.
1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile"
for election purposes, it is important to determine whether petitioner's domicile was in the
First District of Leyte and if so, whether she had resided there for at least a period of one
year. Undisputed is her domicile of origin, Tacloban, where her parents lived at the time
of her birth. Depending on what theory one adopts, the same may have been changed
when she married Ferdinand E. Marcos, then domiciled in Batac, by operation of law.
Assuming it did, his death certainly released her from the obligation to live with him at
the residence fixed by him during his lifetime. What may confuse the layman at this point
is the fact that the term "domicile" may refer to "domicile of origin," "domicile of choice,"
or "domicile by operation of law," which subject we shall not belabor since it has been
amply discussed by the ponente and in the other separate opinions.
In any case, what assumes relevance is the divergence of legal opinion as to the effect
of the husband's death on the domicile of the widow. Some scholars opine that the
widow's domicile remains unchanged; that the deceased husband's wishes perforce still
bind the wife he has left behind. Given this interpretation, the widow cannot possibly go
far enough to sever the domiciliary tie imposed by her husband.
It is bad enough to interpret the law as empowering the husband unilaterally to fix the
residence or domicile of the family, as laid down in the Civil Code,
2
but to continue
giving obeisance to his wishes even after the rationale underlying the mutual duty of the
spouses to live together has ceased, is to close one's eyes to the stark realities of the
present.
At the other extreme is the position that the widow automatically reverts to her domicile
of origin upon the demise of her husband. Does the law so abhor a vacuum that the
widow has to be endowed somehow with a domicile? To answer this question which is
far from rhetorical, one will have to keep in mind the basic principles of domicile.
Everyone must have a domicile. Then one must have only a single domicile for the same
purpose at any given time. Once established, a domicile remains until a new one is
acquired, for no person lives who has no domicile, as defined by the law be is subject to.
At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction,
rendered more murky by the conflicting opinions of foreign legal authorities. This being
the state of things, it is imperative as it is opportune to illumine the darkness with the
beacon light of truth, as dictated by experience and the necessity of according petitioner
her right to choose her domicile in keeping with the enlightened global trend to recognize
and protect the human rights of women, no less than men.
Admittedly, the notion of placing women at par with men, insofar as civil, political and
social rights are concerned, is a relatively recent phenomenon that took seed only in the
middle of this century. It is a historical fact that for over three centuries, the Philippines
had been colonized by Spain, a conservative, Catholic country which transplanted to our
shores the Old World cultures, mores and attitudes and values. Through the imposition
on our government of the Spanish Civil Code in 1889, the people, both men and women,
had no choice but to accept such concepts as the husband's being the head of the
family and the wife's subordination to his authority. In such role, his was the right to
make vital decisions for the family. Many instances come to mind, foremost being what
is related to the issue before us, namely, that "the husband shall fix the residence of the
family."
3
Because he is made responsible for the support of the wife and the rest of the
family,
4
he is also empowered to be the administrator of the conjugal property, with a
few exceptions
5
and may, therefore, dispose of the conjugal partnership property for the
purposes specified under the law;
6
whereas, as a general rule, the wife cannot bind the
conjugal partnership without the husband's consent.
7
As regards the property pertaining
to the children under parental authority, the father is the legal administrator and only in
his absence may the mother assume his powers.
8
Demeaning to the wife's dignity are
certain strictures on her personal freedoms, practically relegating her to the position of
minors and disabled persons. To illustrate a few: The wife cannot, without the husband's
consent, acquire any gratuitous title, except from her ascendants, descendants, parents-
in-law, and collateral relatives within the fourth degree.
9
With respect to her
employment, the husband wields a veto power in the case the wife exercises her
profession or occupation or engages in business, provided his income is sufficient for the
family, according to its social standing and his opposition is founded on serious and valid
grounds.
10
Most offensive, if not repulsive, to the liberal-minded is the effective
prohibition upon a widow to get married till after three hundred days following the death
of her husband, unless in the meantime, she has given birth to a child.
11
The mother
who contracts a subsequent marriage loses the parental authority over her children,
unless the deceased husband, father of the latter, has expressly provided in his will that
his widow might marry again, and has ordered that in such case she should keep and
exercise parental authority over their children.
12
Again, an instance of a husband's
overarching influence from beyond the grave.
All these indignities and disabilities suffered by Filipino wives for hundreds of years
evoked no protest from them until the concept of human rights and equality between and
among nations and individuals found hospitable lodgment in the United Nations Charter
of which the Philippines was one of the original signatories. By then, the Spanish
"conquistadores" had been overthrown by the American forces at the turn of the century.
The bedrock of the U.N. Charter was firmly anchored on this credo: "to reaffirm faith in
the fundamental human rights, in the dignity and worth of the human person, in the equal
rights of men and women." (Emphasis supplied)
It took over thirty years before these egalitarian doctrines bore fruit, owing largely
to the burgeoning of the feminist movement. What may be regarded as the
international bill of rights for women was implanted in the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by
the U.N. General Assembly which entered into force as an international treaty on
September 3, 1981. In ratifying the instrument, the Philippines bound itself to
implement its liberating spirit and letter, for its Constitution, no less, declared that
"The Philippines. . . adopts the generally accepted principles of international law
as part of the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations."
13
One such principle
embodied in the CEDAW is granting to men and women "the same rights with
regard to the law relating to the movement of persons and the freedom to choose
their residence and domicile."
14
(Emphasis supplied).
CEDAW's pro-women orientation which was not lost on Filipino women was reflected in
the 1987 Constitution of the Philippines and later, in the Family Code,
15
both of which
were speedily approved by the first lady President of the country, Corazon C. Aquino.
Notable for its emphasis on the human rights of all individuals and its bias for equality
between the sexes are the following provisions: "The State values the dignity of every
human person and guarantees full respect for human rights"
16
and "The State
recognizes the role of women in nation-building, and shall ensure the fundamental
equality before the law of women and men."
17

A major accomplishment of women in their quest for equality with men and the
elimination of discriminatory provisions of law was the deletion in the Family Code of
almost all of the unreasonable strictures on wives and the grant to them of personal
rights equal to that of their husbands. Specifically, the husband and wife are now
giventhe right jointly to fix the family domicile;
18
concomitant to the spouses' being jointly
responsible for the support of the family is the right and duty of both spouses to manage
the household;
19
the administration and the enjoyment of the community property shall
belong to both spouses jointly;
20
the father and mother shall now jointly exercise legal
guardianship over the property of their unemancipated common child
21
and several
others.
Aware of the hiatus and continuing gaps in the law, insofar as women's rights are
concerned, Congress passed a law popularly known as "Women in Development and
Nation Building Act"
22
Among the rights given to married women evidencing their
capacity to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans and execute security and
credit arrangements under the same conditions as men;
(2) Women shall have equal access to all government and private sector programs
granting agricultural credit, loans and non material resources and shall enjoy equal
treatment in agrarian reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into insurance
contracts; and
(4) Married women shall have rights equal to those of married men in applying for
passports, secure visas and other travel documents, without need to secure the consent
of their spouses.
As the world draws the curtain on the Fourth World Conference of Women in Beijing, let
this Court now be the first to respond to its clarion call that "Women's Rights are Human
Rights" and that "All obstacles to women's full participation in decision-making at all
levels, including the family" should be removed. Having been herself a Member of the
Philippine Delegation to the International Women's Year Conference in Mexico in 1975,
this writer is only too keenly aware of the unremitting struggle being waged by women
the world over, Filipino women not excluded, to be accepted as equals of men and to
tear down the walls of discrimination that hold them back from their proper places under
the sun.
In light of the inexorable sweep of events, local and global, legislative, executive and
judicial, according more rights to women hitherto denied them and eliminating whatever
pockets of discrimination still exist in their civil, political and social life, can it still be
insisted that widows are not at liberty to choose their domicile upon the death of their
husbands but must retain the same, regardless?
I submit that a widow, like the petitioner and others similarly situated, can no longer be
bound by the domicile of the departed husband, if at all she was before. Neither does
she automatically revert to her domicile of origin, but exercising free will, she may opt to
reestablish her domicile of origin. In returning to Tacloban and subsequently, to
Barangay Olot, Tolosa, both of which are located in the First District of Leyte, petitioner
amply demonstrated by overt acts, her election of a domicile of choice, in this case, a
reversion to her domicile of origin. Added together, the time when she set up her
domicile in the two places sufficed to meet the one-year requirement to run as
Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the petition.
VITUG, J ., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets
up ideals and directions and render steady our strides hence. It only looks back so as to
ensure that mistakes in the past are not repeated. A compliant transience of a
constitution belittles its basic function and weakens its goals. A constitution may well
become outdated by the realities of time. When it does, it must be changed but while it
remains, we owe it respect and allegiance. Anarchy, open or subtle, has never been, nor
must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or
the Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in character unless, either by
express statement or by necessary implication, a different intention is manifest (see
Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of
the fundamental law. These provisions read:
Sec. 6. No person shall be a Member of the House of Representatives
unless he is a natural-born citizen of the Philippines and, on the day of
the election, is at least twenty-five years of age, able to read and write,
and, except the party-list representatives, a registered voter in the district
in which he shall be elected, and a resident thereof for a period of not less
than one year immediately preceding the day of the election.
Sec. 17. The Senate and the House of Representatives shall each have
an Electoral Tribunal which shall be the sole judge of all contests relating
to the election, returns, and qualifications of their respective Members.
Each Electoral Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be designated by the
Chief Justice, and the remaining six shall be Members of the Senate or
the House of Representatives, as the case may be, who shall be chosen
on the basis of proportional representation from the political parties and
the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal shall be
its Chairman.
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and
administer "all laws and regulations relative to the conduct of election . . ." (Art. IX, C,
Sec. 2, Constitution) that, there being nothing said to the contrary, should include its
authority to pass upon the qualification and disqualification prescribed by law
ofcandidates to an elective office. Indeed, pre-proclamation controversies are expressly
placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3,
Constitution).
The matter before us specifically calls for the observance of the constitutional one-year
residency requirement. The issue (whether or not there is here such compliance), to my
mind, is basically a question of fact or at least inextricably linked to such determination.
The findings and judgment of the COMELEC, in accordance with the long established
rule and subject only to a number of exceptions under the basic heading of "grave abuse
of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be a plain
matter. Generally, the term "residence" has a broader connotation that may
mean permanent (domicile), official (place where one's official duties may require him to
stay) or temporary (the place where he sojourns during a considerable length of time).
For civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of
civil obligations, the domicile of a natural person is the place of his habitual residence
(see Article 50, Civil Code). In election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City
(226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous
terms, thus: "(t)he term "residence" as used in the election law is
synonymous with "domicile," which imports not only an intention to reside
in a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention." "Domicile" denotes a fixed
permanent residence to which when absent for business or pleasure, or
for like reasons, one intends to return. . . . . Residence thus acquired,
however, may be lost by adopting another choice of domicile. In order, in
turn, to acquire a new domicile by choice, there must concur (1)
residence or bodily presence in the new locality, (2) an intention to remain
there, and (3) an intention to abandon the old domicile. In other words,
there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be
for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile
must be actual.
Using the above tests, I am not convinced that we can charge the COMELEC
with having committed grave abuse of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends when the
jurisdiction of the Electoral Tribunal concerned begins. It signifies that the protestee must
have theretofore been duly proclaimed and has since become a "member" of the Senate
or the House of Representatives. The question can be asked on whether or not the
proclamation of a candidate is just a ministerial function of the Commission on Elections
dictated solely on the number of votes cast in an election exercise. I believe, it is not. A
ministerial duty is an obligation the performance of which, being adequately defined,
does not allow the use of further judgment or discretion. The COMELEC, in its particular
case, is tasked with the full responsibility of ascertaining all the facts and conditions such
as may be required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any undue encroachment
on the ultimate exercise of authority by the Electoral Tribunals on matters which, by no
less than a constitutional fiat, are explicitly within their exclusive domain. The nagging
question, if it were otherwise, would be the effect of the Court's peremptory
pronouncement on the ability of the Electoral Tribunal to later come up with its own
judgment in a contest "relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the applicability to
this case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas
Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is
strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. The Commission
and the courts shall give priority to cases of disqualification by reason of
violation of this Act to the end that a final decision shall be rendered not
later than seven days before the election in which the disqualification is
sought.
Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted.
Nevertheless, if for any reason, a candidate is not declared by final,
judgment before an election to be disqualified, and he is voted for and
receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation
and assumption to office.
I realize that in considering the significance of the law, it may be preferable to look for
not so much the specific instances they ostensibly would cover as the principle they
clearly convey. Thus, I will not scoff at the argument that it should be sound to say that
votes cast in favor of the disqualified candidate, whenever ultimately declared as such,
should not be counted in his or her favor and must accordingly be considered to be stray
votes. The argument, nevertheless, is far outweighed by the rationale of the now
prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil. 238
[1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]),
and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim
case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1
(1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most
recently, Benito (235 SCRA 436 [1994]) rulings. Benito vs.Comelec was a unanimous
decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa,
Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy
reference, let me quote from the first Labo decision:
Finally, there is the question of whether or not the private respondent,
who filed the quo warrantopetition, can replace the petitioner as mayor.
He cannot. The simple reason is that as he obtained only the second
highest number of votes in the election, he was obviously not the choice
of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on
Elections, (137 SCRA 740) decided in 1985. In that case, the candidate
who placed second was proclaimed elected after the votes for his winning
rival, who was disqualified as a turncoat and considered a non-candidate,
were all disregard as stray. In effect, the second placer won by default.
That decision was supported by eight members of the Court then,
(Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De
la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting
(Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and
another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was
on official leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should
be reversed in favor of the earlier case of Geronimo v. Ramos, (136
SCRA 435) which represents the more logical and democratic rule. That
case, which reiterated the doctrine first announced in 1912 in Topacio
v.Paredes, (23 Phil. 238) was supported by ten members of the Court,
(Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-
Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ.,
concurring) without any dissent, although one reserved his vote,
(Makasiar, J.) another took no part, (Aquino, J.) and two others were on
leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of
the constitutionally guaranteed right to suffrage if a
candidate who has not acquired the majority or plurality of
votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which
have positively declared through their ballots that they do
not choose him.
Sound policy dictates that public elective offices are filled
by those who have received the highest number of votes
cast in the election for that office, and it is a fundamental
idea in all republican forms of government that no one can
be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the
legal votes cast in the election. (20 Corpus Juris 2nd, S
243, p. 676.)
The fact that the candidate who obtained the highest number of votes is
later declared to be disqualified or not eligible for the office to which he
was elected does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of the elective
office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there. However,
in the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere belief
that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J ., separate opinion:
In my view the issue in this case is whether the Commission on Elections has the power
to disqualify candidates on the ground that they lack eligibility for the office to which they
seek to be elected. I think that it has none and that the qualifications of candidates may
be questioned only in the event they are elected, by filing a petition forquo warranto or
an election protest in the appropriate forum, not necessarily in the COMELEC but, as in
this case, in the House of Representatives Electoral Tribunal. That the parties in this
case took part in the proceedings in the COMELEC is of no moment. Such proceedings
were unauthorized and were not rendered valid by their agreement to submit their
dispute to that body.
The various election laws will be searched in vain for authorized proceedings for
determining a candidate's qualifications for an office before his election. There are none
in the Omnibus Election Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987
(R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166).
There are, in other words, no provisions for pre-proclamation contests but only election
protests or quo warranto proceedings against winning candidates.
To be sure, there are provisions denominated for "disqualification," but they are not
concerned with a declaration of the ineligibility of a candidate. These provisions are
concerned with the incapacity (due to insanity, incompetence or conviction of an offense)
of a person either to be a candidate or to continue as a candidate for public office. There
is also a provision for the denial or cancellation of certificates of candidacy, but it applies
only to cases involving false representations as to certain matters required by law to be
stated in the certificates.
These provisions are found in the following parts of the Omnibus Election Code:
12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense for
which he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he
again becomes disqualified. (Emphasis added)
68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court
guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, sub-paragraph 6, shall be disqualifiedfrom continuing as a
candidate, or if he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a foreign country shall
not be qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for
in the election laws. (Emphasis added)
78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to cancel
a certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and; upon motion for the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is
strong. (Emphasis added).
7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy.
The procedure hereinabove provided shall apply to petitions to deny
due course to or cancel a certificate of candidacy as provided in Section
78 of Batas Pambansa Blg. 881.
and the Local Government Code of 1991 (R.A. No. 7160):
40. Disqualifications. The following persons are disqualified from
running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance
to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired
the right to reside abroad and continue to avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while
entitled "For Cancellation and Disqualification," contained no allegation that private
respondent Imelda Romualdez-Marcos made material representations in her certificate
of candidacy which were false, it sought her disqualification on the ground that "on the
basis of her Voter Registration Record and Certificate of Candidacy, [she] is disqualified
from running for the position of Representative, considering that on election day, May 8,
1995, [she] would have resided less than ten (10) months in the district where she is
seeking to be elected." For its part, the COMELEC's Second Division, in its resolution of
April 24, 1995, cancelled her certificate of candidacy and corrected certificate of
candidacy on the basis of its finding that petitioner is "not qualified to run for the position
of Member of the House of Representatives for the First Legislative District of Leyte" and
not because of any finding that she had made false representations as to material
matters in her certificate of candidacy.
Montejo's petition before the COMELEC was therefore not a petition for cancellation of
certificate of candidacy under 78 of the Omnibus Election Code, but essentially a
petition to declare private respondent ineligible. It is important to note this, because, as
will presently be explained, proceedings under 78 have for their purpose to disqualify a
person from being a candidate, whereas quo warranto proceedings have for their
purpose to disqualify a person from holding public office. Jurisdiction over quo
warranto proceedings involving members of the House of Representatives is vested in
the Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for the cancellation of
certificates of candidacy, the allegations were that the respondent candidates had
made false representations in their certificates of candidacy with regard to
their citizenship,
1
age,
2
or residence.
3
But in the generality of cases in which this Court
passed upon the qualifications of respondents for office, this Court did so in the context
of election protests
4
or quo warranto proceedings
5
filed after the proclamation of the
respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized proceeding for
determining before electionthe qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no
necessity for determining his eligibility for the office. In contrast, whether an individual
should be disqualified as a candidate for acts constituting election offenses (e.g., vote
buying, over spending, commission of prohibited acts) is a prejudicial question which
should be determined lest he wins because of the very acts for which his disqualification
is being sought. That is why it is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has been voted for, the votes in his
favor will not be counted; and if for some reason he has been voted for and he has won,
either he will not be proclaimed or his proclamation will be set aside.
6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship
or, as in this case, his domicile, may take a long time to make, extending beyond the
beginning of the term of the office. This is amply demonstrated in the companion case
(G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's
residence was still pending in the COMELEC even after the elections of May 8, 1995.
This is contrary to the summary character of proceedings relating to certificates of
candidacy. That is why the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers.
7
The law is satisfied if candidates state
in their certificates of candidacy that they are eligible for the position which they seek to
fill, leaving the determination of their qualifications to be made after the election and only
in the event they are elected. Only in cases involving charges of false representations
made in certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections
for President, Vice President, Senators and members of the House of Representatives.
(R.A. No. 7166, 15) The purpose is to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the
Constitution of the election, returns and qualifications of members of Congress or of the
President and Vice President, as the case may be.
By providing in 253 for the remedy of quo warranto for determining an elected official's
qualifications after the results of elections are proclaimed, while being conspicuously
silent about a pre-proclamation remedy based on the same ground, the Omnibus
Election Code, or OEC, by its silence underscores the policy of not authorizing any
inquiry into the qualifications of candidates unless they have been elected.
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of
candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in
Rule 25, 1 the following:
Grounds for disqualification. Any candidate who does not possess all
the qualifications of a candidate as provided for by the Constitution or by
existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be
supplied by a mere rule. Such an act is equivalent to the creation of a cause of action
which is a substantive matter which the COMELEC, in the exercise of its rulemaking
power under Art. IX, A, 6 of the Constitution, cannot do. It is noteworthy that the
Constitution withholds from the COMELEC even the power to decide cases involving the
right to vote, which essentially involves an inquiry into qualifications based on age,
residence and citizenship of voters. (Art. IX, C, 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into
grounds for disqualification is contrary to the evident intention of the law. For not only in
their grounds but also in their consequences are proceedings for "disqualification"
different from those for a declaration of "ineligibility." "Disqualification" proceedings, as
already stated, are based on grounds specified in 12 and 68 of the Omnibus Election
Code and in 40 of the Local Government Code and are for the purpose of barring an
individual from becoming a candidate or from continuing as a candidate for public office.
In a word, their purpose is to eliminate a candidate from the race either from the start or
during its progress. "Ineligibility," on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for holding public office and
the purpose of the proceedings for declaration of ineligibility is to remove the incumbent
from office.
Consequently, that an individual possesses the qualifications for a public office does not
imply that he is not disqualified from becoming a candidate or continuing as a candidate
for a public office and vice versa. We have this sort of dichotomy in our Naturalization
Law. (C.A. No. 473) That an alien has the qualifications prescribed in 2 of the law does
not imply that he does not suffer from any of disqualifications provided in 4.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of
prohibited election practices or offenses, like other pre-proclamation remedies, are
aimed at the detestable practice of "grabbing the proclamation and prolonging the
election protest,"
8
through the use of "manufactured" election returns or resort to other
trickery for the purpose of altering the results of the election. This rationale does not
apply to cases for determining a candidate's qualifications for office before the election.
To the contrary, it is the candidate against whom a proceeding for disqualification is
brought who could be prejudiced because he could be prevented from assuming office
even though in end he prevails.
To summarize, the declaration of ineligibility of a candidate may only be sought in an
election protest or action forquo warranto filed pursuant to 253 of the Omnibus Election
Code within 10 days after his proclamation. With respect to elective local officials (e.g.,
Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.) such
petition must be filed either with the COMELEC, the Regional Trial Courts, or Municipal
Trial Courts, as provided in Art. IX, C, 2(2) of the Constitution. In the case of the
President and Vice President, the petition must be filed with the Presidential Electoral
Tribunal (Art. VII, 4, last paragraph), and in the case of the Senators, with the Senate
Electoral Tribunal, and in the case of Congressmen, with the House of Representatives
Electoral Tribunal. (Art. VI, 17) There is greater reason for not allowing before the
election the filing of disqualification proceedings based on alleged ineligibility in the case
of candidates for President, Vice President, Senators and members of the House of
Representatives, because of the same policy prohibiting the filing of pre-proclamation
cases against such candidates.
For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA
No. 95-009; that its proceedings in that case, including its questioned orders, are void;
and that the eligibility of petitioner Imelda Romualdez-Marcos for the office of
Representative of the First District of Leyte may only be inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the proceedings of the Commission
on Elections in SPA No. 95-009, including its questioned orders doted April 24, 1995,
May 7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner Imelda Romualdez-
Marcos ineligible and ordering her proclamation as Representative of the First District of
Leyte suspended. To the extent that Rule 25 of the COMELEC Rules of Procedure
authorizes proceedings for the disqualification of candidates on the ground of ineligibility
for the office, it should considered void.
The provincial board of canvassers should now proceed with the proclamation of
petitioner.
Narvasa, C.J., concurs.
PADILLA, J ., dissenting:
I regret that I cannot join the majority opinion as expressed in the well-written ponencia
of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the inquiry must begin
and end with the provision itself. The controversy should not be blurred by what, to me,
are academic disquisitions. In this particular controversy, the Constitutional provision on
point states that "no person shall be a member of the House of Representatives
unless he is a natural-born citizen of the Philippines, and on the day of the election, is at
least twenty-five (25) years of age, able to read and write, and except the party list
representatives, a registered voter in the district in which he shall be elected, and
a resident thereof for a period of not less than one year immediately preceding the day
of the election." (Article VI, section 6)
It has been argued that for purposes of our election laws, the term residence has been
understood as synonymous with domicile. This argument has been validated by no less
than the Court in numerous cases
1
where significantly the factual circumstances clearly
and convincingly proved that a person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with his personal presence in the
place, coupled with conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to conceive of different modalities
within which the phrase "a resident thereof (meaning, the legislative district) for a period
of not less than one year" would fit.
The first instance is where a person's residence and domicile coincide in which case a
person only has to prove that he has been domiciled in a permanent location for not less
than a year before the election.
A second situation is where a person maintains a residence apart from his domicile in
which case he would have the luxury of district shopping, provided of course, he satisfies
the one-year residence period in the district as the minimum period for eligibility to the
position of congressional representative for the district.
In either case, one would not be constitutionally disqualified for abandoning his
residence in order to return to his domicile of origin, or better still, domicile of choice;
neither would one be disqualified for abandoning altogether his domicile in favor of his
residence in the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a person maintains
several residences in different districts. Since his domicile of origin continues as an
option as long as there is no effective abandonment (animus non revertendi), he can
practically choose the district most advantageous for him.
All these theoretical scenarios, however, are tempered by the unambiguous limitation
that "for a period of not less than one year immediately preceding the day of the
election", he must be a resident in the district where he desires to be elected.
To my mind, the one year residence period is crucial regardless of whether or not the
term "residence" is to be synonymous with "domicile." In other words, the candidate's
intent and actual presence in one district must in allsituations satisfy the length of time
prescribed by the fundamental law. And this, because of a definite Constitutional
purpose. He must be familiar with the environment and problems of a district he intends
to represent in Congress and the one-year residence in said district would be the
minimum period to acquire such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the
now assailed decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by
the Comelec en banc)
In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She studied
in the Holy Infant Academy in Tacloban from 1938 to 1948 when she
graduated from high school. She pursued her college studies in St. Paul's
College, now Divine Word University of Tacloban, where she earned her
degree in Education. Thereafter, she taught in the Leyte Chinese High
School, still in Tacloban City. In 1952 she went to Manila to work with her
cousin, the late Speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-president Ferdinand Marcos
when he was still a congressman of Ilocos Norte. She lived with him in
Batac, Ilocos Norte and registered there as a voter. When her husband
was elected Senator of the Republic in 1959, she and her husband lived
together in San Juan, Rizal where she registered as a voter. In 1965
when her husband was elected President of the Republic of the
Philippines, she lived with him in Malacanang Palace and registered as a
voter in San Miguel, Manila.
During the Marcos presidency, respondent served as a Member of the
Batasang Pambansa, Minister of Human Settlements and Governor of
Metro Manila. She claimed that in February 1986, she and her family
were abducted and kidnapped to Honolulu, Hawaii. In November 1991,
she came home to Manila. In 1992 respondent ran for election as
President of the Philippines and filed her Certificate of Candidacy wherein
she indicated that she is a resident and registered voter of San Juan,
Metro Manila. On August 24, 1994, respondent filed a letter with the
election officer of San Juan, Metro Manila, requesting for cancellation of
her registration in the Permanent List of Voters in Precinct No. 157 of San
Juan, Metro Manila, in order that she may be re-registered or transferred
to Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On August 31, 1994,
respondent filed her Sworn Application for Cancellation of Voter's
Previous Registration (Annex 2-C, Answer) stating that she is a duly
registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she
intends to register at Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent registered as a voter at Precinct No. 18-
A of Olot, Tolosa, Leyte. She filed with the Board of Election Inspectors
CE Form No. 1, Voter Registration Record No. 94-3349772, wherein she
alleged that she has resided in the municipality of Tolosa for a period of 6
months (Annex A, Petition).
On March 8, 1995, respondent filed with the Office of the Provincial
Election Supervisor, Leyte, a Certificate of Candidacy for the position of
Representative of the First District of Leyte wherein she also alleged that
she has been a resident in the constituency where she seeks to be
elected for a period of 7 months. The pertinent entries therein are as
follows:
7. PROFESSION OR OCCUPATION:
House-wife/ Teacher/ Social Worker
8. RESIDENCE (complete address): Brgy.
Olot, Tolosa, Leyte
Post Office Address for election purposes:
Brgy. Olot, Tolosa, Leyte
9. RESIDENCE IN THE CONSTITUENCY
WHEREIN I SEEK TO BE ELECTED
IMMEDIATELY PRECEDING ELECTION:
________ Years SevenMonths
10. I AM NOT A PERMANENT RESIDENT
OF, OR IMMIGRANT TO, A FOREIGN
COUNTRY.
THAT I AM ELIGIBLE for said office; That I will support and defend the
Constitution of the Republic of the Philippines and will maintain true faith
and allegiance thereto; That I will obey the laws, legal orders and decrees
promulgated by the duly-constituted authorities; That the obligation
imposed by my oath is assumed voluntarily, without mental reservation or
purpose of evasion; and That the facts stated herein are true to the best
of my knowledge.
(Sgd.) Imelda
Romualdez-
Marcos
(Signature of
Candidate)
2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the
decisive component or seed of her disqualification. It is contained in her answer under
oath of "seven months" to the query of "residence in the constituency wherein I seek to
be elected immediately preceding the election."
It follows from all the above that the Comelec committed no grave abuse of discretion in
holding that petitioner is disqualified from the position of representative for the 1st
congressional district of Leyte in the elections of 8 May 1995, for failure to meet the "not
less than one-year residence in the constituency (1st district, Leyte) immediately
preceding the day of election (8 May 1995)."
Having arrived at petitioner's disqualification to be a representative of the first district of
Leyte, the next important issue to resolve is whether or not the Comelec can order the
Board of Canvassers to determine and proclaim the winner out of the remaining
qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this Court in the case of Labo
vs. Comelec, G.R. 86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laid
down in the early 1912 case of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election for
that office, and it is a fundamental idea in all republican forms of
government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal
votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676)
The fact that the candidate who obtained the highest number of votes is
later declared to be disqualified or not eligible for the office to which he
was elected does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of the elective
office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there.
However, in the absence of a statute which clearly asserts a contrary
political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they
should not be treated as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System
and for other purposes) (84 O.G. 905, 22 February 1988) it is provided that:
. . . Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry or protest and,
upon motion of the complainant or any intervenor, may, during the
pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the plain and unambiguous
meaning of the provision quoted above. As the law now stands, the legislative policy
does not limit its concern with the effect of a final judgement of disqualification
only before the election, but even during or after the election. The law is clear that in all
situations, the votes cast for a disqualified candidate SHALL NOT BE COUNTED. The
law has also validated the jurisdiction of the Court or Commission on Election to
continue hearing the petition for disqualification in case a candidate is voted for and
receives the highest number of votes, if for any reason, he is not declared by final
judgment before an election to be disqualified.
Since the present case is an after election scenario, the power to suspend proclamation
(when evidence of his guilt is strong) is also explicit under the law. What happens then
when after the elections are over, one is declared disqualified? Then, votes cast for him
"shall not be counted" and in legal contemplation, he no longer received the highest
number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the
winner simply because a "winning candidate is disqualified," but that the law considers
him as the candidate who had obtained the highest number of votes as a result of the
votes cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason
why this Court should not re-examine and consequently abandon the doctrine in the Jun
Labo case. It has been stated that "the qualifications prescribed for elective office cannot
be erased by the electorate alone. The will of the people as expressed through the ballot
cannot cure the vice of ineligibility" most especially when it is mandated by no less than
the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of
Canvassers of Leyte to proclaim the candidate receiving the highest number of votes,
from among the qualified candidates, as the duly elected representative of the 1st district
of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J ., dissenting:
While I agree with same of the factual bases of the majority opinion, I cannot arrive
conjointly at the same conclusion drawn therefrom Hence, this dissent which assuredly
is not formulated "on the basis of the personality of a petitioner in a case."
I go along with the majority in their narration of antecedent facts, insofar as the same are
pertinent to this case, and which I have simplified as follows:
1. Petitioner, although born in Manila, resided during her childhood in the
present Tacloban City, she being a legitimate daughter of parents who
appear to have taken up permanent residence therein. She also went to
school there and, for a time, taught in one of the schools in that city.
2. When she married then Rep. Ferdinand E. Marcos who was then
domiciled in Batac, Ilocos Norte, by operation of law she acquired a new
domicile in that place in 1954.
3. In the successive years and during the events that happened
thereafter, her husband having been elected as a Senator and then as
President, she lived with him and their family in San Juan, Rizal and then
in Malacanang Palace in San Miguel, Manila.
4. Over those years, she registered as a voter and actually voted in
Batac, Ilocos Norte, then in San Juan, Rizal, and also in San Miguel,
Manila, all these merely in the exercise of the right of suffrage.
5. It does not appear that her husband, even after he had assumed those
lofty positions successively, ever abandoned his domicile of origin in
Batac, Ilocos Norte where he maintained his residence and invariably
voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and the
sojourn of the Marcos family in Honolulu, Hawaii, U.S.A., she eventually
returned to the Philippines in 1991 and resided in different places which
she claimed to have been merely temporary residences.
7. In 1992, petitioner ran for election as President of the Philippines and
in her certificate of candidacy she indicated that she was then a
registered voter and resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for the cancellation of her
registration in the Permanent List of Voters in Precinct No. 157 of San
Juan, Metro Manila in order that she may "be re-registered or transferred
to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed this up
with her Sworn Application for Cancellation of Voter's Previous
Registration wherein she stated that she was a registered voter in
Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that
she intended to register in Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner registered as a voter at Precinct No.
18-A of Olot, Tolosa, Leyte, for which purpose she filed with the therein
Board of Election Inspectors a voter's registration record form alleging
that she had resided in that municipality for six months.
10. On March 8, 1995, petitioner filed her certificate of candidacy for the
position of Representative of the First District of Leyte wherein she
alleged that she had been a resident for "Seven Months" of the
constituency where she sought to be elected.
11. On March 29, 1995, she filed an "Amended/Corrected Certificate of
Candidacy" wherein her answer in the original certificate of candidacy to
item "8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK, TO BE
ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed
or replaced with a new entry reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of her candidacy, petitioner had
complied with the residency requirement of one year as mandated by no less than
Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a dissertation on the
difference between residence and domicile. We have had enough of that and I
understand that for purposes of political law and, for that matter of international law,
residence is understood to be synonymous with domicile. That is so understood in our
jurisprudence and in American Law, in contradistinction to the concept of residence for
purposes of civil, commercial and procedural laws whenever an issue thereon is relevant
or controlling.
Consequently, since in the present case the question of petitioner's residence is
integrated in and inseparable from her domicile, I am addressing the issue from the
standpoint of the concept of the latter term, specifically its permutations into the domicile
of origin, domicile of choice and domicile by operation of law, as understood in American
law from which for this case we have taken our jurisprudential bearings.
My readings inform me that the domicile of the parents at the time of birth, or what is
termed the "domicile of origin," constitutes the domicile of an infant until abandoned, or
until the acquisition of a new domicile in a different place.
1
In the instant case, we may
grant that petitioner's domicile of origin,
2
at least as of 1938, was what is now Tacloban
City.
Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by
birth, domicile by choice, and domicile by operation of law. The first is the common case
of the place of birth or domicilium originis, the second is that which is voluntarily acquired
by a party or domicilium propio motu; the last which is consequential, as that of a wife
arising from marriage,
3
is sometimes called domicilium necesarium. There is no debate
that the domicile of origin can be lost or replaced by a domicile of choice or a domicile by
operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law,
not only international or American but of our own enactment,
4
she acquired her
husband's domicile of origin in Batac, Ilocos Norte and correspondingly lost her own
domicile of origin in Tacloban City.
Her subsequent changes of residence to San Juan, Rizal, then to San Miguel, Manila,
thereafter to Honolulu, Hawaii, and back to now San Juan, Metro Manila do not
appear to have resulted in her thereby acquiring new domiciles of choice. In fact, it
appears that her having resided in those places was by reason of the fortunes or
misfortunes of her husband and his peregrinations in the assumption of new official
positions or the loss of them. Her residence in Honolulu and, of course, those after her
return to the Philippines were, as she claimed, against her will or only for transient
purposes which could not have invested them with the status of domiciles of choice.
5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over
her requisite residency in Tacloban City or Olot, Tolosa, Leyte, there is no showing that
she ever attempted to acquire any other domicile of choice which could have resulted in
the abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we note the
majority's own submission
6
that, to successfully effect a change of domicile, one must
demonstrate (a) an actual removal or an actual change of domicile, (b) a bona
fide intention of abandoning the former place of residence and establishing a new one,
and (c) acts which correspond with the purpose.
We consequently have to also note that these requirements for the acquisition of a
domicile of choice apply whether what is sought to be changed or substituted is a
domicile of origin (domicilium originis) or a domicile by operation of law (domicilium
necesarium). Since petitioner had lost her domicilium originis which had been replaced
by her domicilium necesarium, it is therefore her continuing domicile in Batac, Ilocos
Norte which, if at all, can be the object of legal change under the contingencies of the
case at bar.
To get out of this quandary, the majority decision echoes the dissenting opinion of
Commissioner Regalado E. Maambong in SPA 95-009 of the Commission on
Elections,
7
and advances this novel proposition.
It may be said that petitioner lost her domicile of origin by operation of law
as a result of her marriage to the late President Ferdinand E. Marcos in
1952 (sic, 1954). By operation of law (domicilium necesarium), her legal
domicile at the time of her marriage became Batac, Ilocos Norte although
there were no indications of an intention on her part to abandon her
domicile of origin. Because of her husband's subsequent death and
through the operation of the provisions of the New Family Code already in
force at the time, however, her legal domicile automatically reverted to
her domicile of origin. . . . (Emphasis supplied).
Firstly, I am puzzled why although it is conceded that petitioner had acquired
a domicilium necesarium in Batac, Ilocos Norte, the majority insists on making a
qualification that she did not intend to abandon her domicile of origin. I find this
bewildering since, in this situation, it is the law that declares where petitioner's domicile
is at any given time, and not her self-serving or putative intent to hold on to her former
domicile. Otherwise, contrary to their own admission that one cannot have more than
one domicile at a time,
8
the majority would be suggesting that petitioner retained
Tacloban City as (for lack of a term in law since it does not exist therein) the equivalent
of what is fancied as a reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be recovered likewise in
accordance with law. However, we are here being titillated with the possibility of an
automatic reversion to or reacquisition of a domicile of origin after the termination of the
cause for its loss by operation of law. The majority agrees that since petitioner lost her
domicile of origin by her marriage, the termination of the marriage also terminates that
effect thereof. I am impressed by the ingeniousness of this theory which proves that,
indeed, necessity is the mother of inventions. Regretfully, I find some difficulty in
accepting either the logic or the validity of this argument.
If a party loses his domicile of origin by obtaining a new domicile of choice, he
thereby voluntarily abandons the former in favor of the latter. If, thereafter, he abandons
that chosen domicile, he does not per se recover his original domicile unless, by
subsequent acts legally indicative thereof, he evinces his intent and desire to establish
the same as his new domicile, which is precisely what petitioner belatedly and, evidently
just for purposes of her candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of choice cannot automatically restore
his domicile of origin, not only because there is no legal authority therefor but because it
would be absurd Pursued to its logical consequence, that theory of ipso jure reversion
would rule out the fact that said party could already very well have obtained another
domicile, either of choice or by operation of law, other than his domicile of origin.
Significantly and obviously for this reason, the Family Code, which the majority
inexplicably invokes, advisedly does not regulate this contingency since it would impinge
on one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice
(unless we assume that she entered into the marital state against her will) but, on top of
that, such abandonment was further affirmed through her acquisition of a new domicile
by operation of law. In fact, this is even a case of both voluntary andlegal abandonment
of a domicile of origin. With much more reason, therefore, should we reject the
proposition that with the termination of her marriage in 1989, petitioner had
supposedly per se and ipso facto reacquired her domicile of origin which she lost in
1954. Otherwise, this would be tantamount to saying that during the period of marital
coverture, she was simultaneously in possession and enjoyment of a domicile of origin
which was only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the husband's death the
wife has the right to elect her own domicile,
9
she nevertheless retains the last domicile
of her deceased husband until she makes an actual change.
10
In the absence of
affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal
residence follows that of her husband and will continue after his death.
11

I cannot appreciate the premises advanced in support of the majority's theory based on
Articles 68 and 69 of the Family Code. All that is of any relevance therein is that under
this new code, the right and power to fix the family domicile is now shared by the
spouses. I cannot perceive how that joint right, which in the first place was never
exercised by the spouses, could affect the domicile fixed by the law for petitioner in 1954
and, for her husband, long prior thereto. It is true that a wife now has the coordinate
power to determine the conjugal or family domicile, but that has no bearing on this case.
With the death of her husband, and each of her children having gotten married and
established their own respective domiciles, the exercise of that joint power was and is no
longer called for or material in the present factual setting of this controversy. Instead,
what is of concern in petitioner's case was the matter of her having acquired or not her
own domicile of choice.
I agree with the majority's discourse on the virtues of the growing and expanded
participation of women in the affairs of the nation, with equal rights and recognition by
Constitution and statutory conferment. However, I have searched in vain for a specific
law or judicial pronouncement which either expressly or by necessary implication
supports the majority's desired theory of automatic reacquisition of or reversion to
the domicilium originis of petitioner. Definitely, as between the settled and desirable legal
norms that should govern this issue, there is a world of difference; and, unquestionably,
this should be resolved by legislative articulation but not by the eloquence of the well-
turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not
having automatically reacquired any domicile therein, she cannot legally claim that her
residency in the political constituency of which it is a part continued since her birth up to
the present. Respondent commission was, therefore, correct in rejecting her pretension
to that effect in her amended/corrected certificate of candidacy, and in holding her to her
admission in the original certificate that she had actually resided in that constituency for
only seven months prior to the election. These considerations render it unnecessary to
further pass upon the procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.
DAVIDE, JR., J ., dissenting:
I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M.
Kapunan, more particularly on the issue of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or
rulings of the COMELEC may be brought to this Court only by the special civil action
for certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251
[1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without
or in excess of jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of
Court). Since the COMELEC has, undoubtedly, jurisdiction over the private respondent's
petition, the only issue left is whether it acted with grave abuse of discretion in
disqualifying the petitioner.
My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the
COMELEC Second Division and the En Banc resolution of 7 May 1995 discloses total
absence of abuse of discretion, much less grave abuse thereof. The resolution of the
Second Division dispassionately and objectively discussed in minute details the facts
which established beyond cavil that herein petitioner was disqualified as a candidate on
the ground of lack of residence in the First Congressional District of Leyte. It has not
misapplied, miscomprehended, or misunderstood facts or circumstances of substance
pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELEC's findings of fact for lack of
proof that the petitioner has abandoned Tolosa as her domicile of origin, which is
allegedly within the First Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC, either by
admission or by documentary evidence, overwhelming proof of the loss or abandonment
of her domicile of origin, which is Tacloban City and not Tolosa, Leyte. Assuming that
she decided to live again in her domicile of origin, that became her second domicile of
choice, where her stay, unfortunately, was for only seven months before the day of the
election. She was then disqualified to be a candidate for the position of Representative
of the First Congressional District of Leyte. A holding to the contrary would be arbitrary.
It may indeed be conceded that the petitioner's domicile of choice was either Tacloban
City or Tolosa, Leyte. Nevertheless, she lost it by operation of law sometime in May
1954 upon her marriage to the then Congressman (later, President) Ferdinand E.
Marcos. A domicile by operation of law is that domicile which the law attributes to a
person, independently of his own intention or actual residence, as results from legal
domestic relations as that of the wife arising from marriage (28 C.J.S. Domicile 7, 11).
Under the governing law then, Article 110 of the Civil Code, her new domicile or her
domicile of choice was the domicile of her husband, which was Batac, Ilocos Norte. Said
Article reads as follows:
Art. 110. The husband shall fix the residence of the family. But the court
may exempt the wife from living with the husband if he should live abroad
unless in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino states:
Although the duty of the spouses to live together is mutual, the husband
has a predominant right because he is empowered by law to fix the family
residence. This right even predominates over some rights recognized by
law in the wife. For instance, under article 117 the wife may engage in
business or practice a profession or occupation. But because of the
power of the husband to fix the family domicile he may fix it at such a
place as would make it impossible for the wife to continue in business or
in her profession. For justifiable reasons, however, the wife may be
exempted from living in the residence chosen by the husband. The
husband cannot validly allege desertion by the wife who refuses to follow
him to a new place of residence, when it appears that they have lived for
years in a suitable home belonging to the wife, and that his choice of a
different home is not made in good faith. (Commentaries and
Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses her own domicile and, by
operation of law, acquires that of her husband, no matter where the wife actually lives or
what she believes or intends. Her domicile is fixed in the sense that it is declared to be
the same as his, and subject to certain limitations, he can change her domicile by
changing his own (25 Am Jur 2d Domicile 48, 37).
It must, however, be pointed out that under Article 69 of the Family Code, the fixing of
the family domicile is no longer the sole prerogative of the husband, but is now a joint
decision of the spouses, and in case of disagreement the court shall decide. The said
article uses the term "family domicile," and not family residence, as "the spouses may
have multiple residences, and the wife may elect to remain in one of such residences,
which may destroy the duty of the spouses to live together and its corresponding
benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines,
[1988], 102).
The theory of automatic restoration of a woman's domicile of origin upon the death of her
husband, which the majority opinion adopts to overcome the legal effect of the
petitioner's marriage on her domicile, is unsupported by law and by jurisprudence. The
settled doctrine is that after the husband's death the wife has a right to elect her own
domicile, but she retains the last domicile of her husband until she makes an actual
change (28 C.J.S. Domicile 12, 27). Or, on the death of the husband, the power of the
wife to acquire her own domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his death (25 Am Jur 2d Domicile
62, 45). Note that what is revived is not her domicile of origin but her power to acquire
her own domicile.
Clearly, even after the death of her husband, the petitioner's domicile was that of her
husband at the time of his death which was Batac, Ilocos Norte, since their
residences in San Juan, Metro Manila, and San Miguel, Manila, were their residences for
convenience to enable her husband to effectively perform his official duties. Their
residence in San Juan was a conjugal home, and it was there to which she returned in
1991 when she was already a widow. In her sworn certificate of candidacy for the Office
of the President in the synchronized elections of May 1992, she indicated therein that
she was a resident of San Juan, Metro Manila. She also voted in the said elections in
that place.
On the basis of her evidence, it was only on 24 August 1994 when she exercised her
right as a widow to acquire her own domicile in Tolosa, Leyte, through her sworn
statement requesting the Election Officer of San Juan, Metro Manila, to cancel her
registration in the permanent list of voters in Precinct 157 thereat and praying that she
be "re-registered or transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and
permanent residence" (photocopy of Exhibit "B," attached as Annex "2" of private
respondent Montejo's Comment). Notably, she contradicted this sworn statement
regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March 1992
(photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record
sworn to on 28 January 1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and
her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of Exhibit "A,"
attached as Annex "1," Id.), she solemnly declared that she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa,
Leyte? In the affidavit attached to her Answer to the petition for disqualification (Annex
"I" of Petition), she declared under oath that her "domicile or residence is Tacloban City."
If she did intend to return to such domicile or residence of origin why did she inform the
Election Officer of San Juan that she would transfer to Olot, Tolosa, Leyte, and indicate
in her Voter's Registration Record and in her certificate of candidacy that her residence
is Olot, Tolosa, Leyte? While this uncertainty is not important insofar as residence in the
congressional district is concerned, it nevertheless proves that forty-one years had
already lapsed since she had lost or abandoned her domicile of origin by virtue of
marriage and that such length of time diminished her power of recollection or blurred her
memory.
I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil.
294 [1954]), and the subsequent cases which established the principle that absence
from original residence or domicile of origin to pursue studies, practice one's profession,
or engage in business in other states does not constitute loss of such residence or
domicile. So is the reliance on Section 117 of the Omnibus Election Code which
provides that transfer of residence to any other place by reason of one's "occupation;
profession; employment in private and public service; educational activities; work in
military or naval reservations; service in the army, navy or air force, the constabulary or
national police force; or confinement or detention in government institutions in
accordance with law" is not deemed as loss of original residence. Those cases and legal
provision do not include marriage of a woman. The reason for the exclusion is, of
course, Article 110 of the Civil Code. If it were the intention of this Court or of the
legislature to consider the marriage of a woman as a circumstance which would not
operate as an abandonment of domicile (of origin or of choice), then such cases and
legal provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the petitioner in her
affidavit (Annex "A" of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition)
that her "domicile or residence of origin is Tacloban City," and that she "never intended
to abandon this domicile or residence of origin to which [she] always intended to return
whenever absent." Such a claim of intention cannot prevail over the effect of Article 110
of the Civil Code. Besides, the facts and circumstances or the vicissitudes of the
petitioner's life after her marriage in 1954 conclusively establish that she had indeed
abandoned her domicile of origin and had acquired a new oneanimo et facto (KOSSUTH
KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the petitioner's claim that she "merely
committed an honest mistake" in writing down the word "seven" in the space provided for
the residency qualification requirement in the certificate of candidacy. Such a claim is
self-serving and, in the light of the foregoing disquisitions, would be all sound and fury
signifying nothing. To me, she did not commit any mistake, honest or otherwise; what
she stated was the truth.
The majority opinion also disregards a basic rule in evidence that he who asserts a fact
or the affirmative of an issue has the burden of proving it (Imperial Victory Shipping
Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221
SCRA 19 [1993]). Having admitted marriage to the then Congressman Marcos, the
petitioner could not deny the legal consequence thereof on the change of her domicile to
that of her husband. The majority opinion rules or at least concludes that "[b]y operation
of law (domicilium necesarium), her legal domicile at the time of her marriage
automatically became Batac, Ilocos Norte." That conclusion is consistent with Article 110
of the Civil Code. Since she is presumed to retain her deceased husband's domicile until
she exercises her revived power to acquire her own domicile, the burden is upon her to
prove that she has exercised her right to acquire her own domicile. She miserably failed
to discharge that burden.
I vote to deny the petition.
DIGEST
FACTS:

Imelda, a little over 8 years old, in or about 1938, established her domicile in Tacloban,
Leyte where she studied and graduated high school in the Holy Infant Academy from
1938 to 1949. She then pursued her college degree, education, in St. Pauls College
now Divine Word University also in Tacloban. Subsequently, she taught in Leyte
Chinese School still in Tacloban. She went to manila during 1952 to work with her
cousin, the late speaker Daniel Romualdez in his office in the House of
Representatives. In 1954, she married late President Ferdinand Marcos when he was
still a Congressman of Ilocos Norte and was registered there as a voter. When Pres.
Marcos was elected as Senator in 1959, they lived together in San Juan, Rizal where
she registered as a voter. In 1965, when Marcos won presidency, they lived in
Malacanang Palace and registered as a voter in San Miguel Manila. She served as
member of the Batasang Pambansa and Governor of Metro Manila during 1978.

Imelda Romualdez-Marcos was running for the position of Representative of the First
District of Leyte for the 1995 Elections. Cirilo Roy Montejo, the incumbent
Representative of the First District of Leyte and also a candidate for the same position,
filed a Petition for Cancellation and Disqualification" with the Commission on Elections
alleging that petitioner did not meet the constitutional requirement for residency. The
petitioner, in an honest misrepresentation, wrote seven months under residency, which
she sought to rectify by adding the words "since childhood" in her Amended/Corrected
Certificate of Candidacy filed on March 29, 1995 and that "she has always maintained
Tacloban City as her domicile or residence. She arrived at the seven months residency
due to the fact that she became a resident of the Municipality of Tolosa in said months.

ISSUE: Whether petitioner has satisfied the 1year residency requirement to be eligible in
running as representative of the First District of Leyte.

HELD:

Residence is used synonymously with domicile for election purposes. The court are in
favor of a conclusion supporting petitoners claim of legal residence or domicile in the
First District of Leyte despite her own declaration of 7 months residency in the district for
the following reasons:

1. A minor follows domicile of her parents. Tacloban became Imeldas domicile of origin
by operation of law when her father brought them to Leyte;

2. Domicile of origin is only lost when there is actual removal or change of domicile, a
bona fide intention of abandoning the former residence and establishing a new one, and
acts which correspond with the purpose. In the absence and concurrence of all these,
domicile of origin should be deemed to continue.

3. A wife does not automatically gain the husbands domicile because the term
residence in Civil Law does not mean the same thing in Political Law. When Imelda
married late President Marcos in 1954, she kept her domicile of origin and merely gained
a new home and not domicilium necessarium.

4. Assuming that Imelda gained a new domicile after her marriage and acquired right to
choose a new one only after the death of Pres. Marcos, her actions upon returning to the
country clearly indicated that she chose Tacloban, her domicile of origin, as her domicile
of choice. To add, petitioner even obtained her residence certificate in 1992 in
Tacloban, Leyte while living in her brothers house, an act, which supports the
domiciliary intention clearly manifested. She even kept close ties by establishing
residences in Tacloban, celebrating her birthdays and other important milestones.

WHEREFORE, having determined that petitioner possesses the necessary residence
qualifications to run for a seat in the House of Representatives in the First District of
Leyte, the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and May
25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the
Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative
of the First District of Leyte.

FAMILY CODE

Requisites of Marriage (Article 1-26) 12 Hours

Article 1
PT&T vs. NLRC (272 SCRA 596)
G.R. No. 118978 May 23, 1997
PHILIPPINE TELEGRAPH AND TELEPHONE COMPANY, * petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION and GRACE DE
GUZMAN, respondents.

REGALADO, J .:
Seeking relief through the extraordinary writ of certiorari, petitioner Philippine Telegraph
and Telephone Company (hereafter, PT & T) invokes the alleged concealment of civil
status and defalcation of company funds as grounds to terminate the services of an
employee. That employee, herein private respondent Grace de Guzman, contrarily
argues that what really motivated PT & T to terminate her services was her having
contracted marriage during her employment, which is prohibited by petitioner in its
company policies. She thus claims that she was discriminated against in gross violation
of law, such a proscription by an employer being outlawed by Article 136 of the Labor
Code.
Grace de Guzman was initially hired by petitioner as a reliever, specifically as a
"Supernumerary Project Worker," for a fixed period from November 21, 1990 until April
20, 1991 vice one C.F. Tenorio who went on maternity leave.
1
Under the Reliever
Agreement which she signed with petitioner company, her employment was to be
immediately terminated upon expiration of the agreed period. Thereafter, from June 10,
1991 to July 1, 1991, and from July 19, 1991 to August 8, 1991, private respondent's
services as reliever were again engaged by petitioner, this time in replacement of one
Erlinda F. Dizon who went on leave during both periods.
2
After August 8, 1991, and
pursuant to their Reliever Agreement, her services were terminated.
On September 2, 1991, private respondent was once more asked to join petitioner
company as a probationary employee, the probationary period to cover 150 days. In the
job application form that was furnished her to be filled up for the purpose, she indicated
in the portion for civil status therein that she was single although she had contracted
marriage a few months earlier, that is, on May 26, 1991.
3

It now appears that private respondent had made the same representation in the two
successive reliever agreements which she signed on June 10, 1991 and July 8, 1991.
When petitioner supposedly learned about the same later, its branch supervisor in
Baguio City, Delia M. Oficial, sent to private respondent a memorandum dated January
15, 1992 requiring her to explain the discrepancy. In that memorandum, she was
reminded about the company's policy of not accepting married women for employment.
4

In her reply letter dated January 17, 1992, private respondent stated that she was not
aware of PT&T's policy regarding married women at the time, and that all along she had
not deliberately hidden her true civil status.
5
Petitioner nonetheless remained
unconvinced by her explanations. Private respondent was dismissed from the company
effective January 29, 1992,
6
which she readily contested by initiating a complaint for
illegal dismissal, coupled with a claim for non-payment of cost of living allowances
(COLA), before the Regional Arbitration Branch of the National Labor Relations
Commission in Baguio City.
At the preliminary conference conducted in connection therewith, private respondent
volunteered the information, and this was incorporated in the stipulation of facts between
the parties, that she had failed to remit the amount of P2,380.75 of her collections. She
then executed a promissory note for that amount in favor of petitioner
7
. All of these took
place in a formal proceeding and with the agreement of the parties and/or their counsel.
On November 23, 1993, Labor Arbiter Irenarco R. Rimando handed down a decision
declaring that private respondent, who had already gained the status of a regular
employee, was illegally dismissed by petitioner. Her reinstatement, plus payment of the
corresponding back wages and COLA, was correspondingly ordered, the labor arbiter
being of the firmly expressed view that the ground relied upon by petitioner in dismissing
private respondent was clearly insufficient, and that it was apparent that she had been
discriminated against on account of her having contracted marriage in violation of
company rules.
On appeal to the National Labor Relations Commission (NLRC), said public respondent
upheld the labor arbiter and, in its decision dated April 29, 1994, it ruled that private
respondent had indeed been the subject of an unjust and unlawful discrimination by her
employer, PT & T. However, the decision of the labor arbiter was modified with the
qualification that Grace de Guzman deserved to be suspended for three months in view
of the dishonest nature of her acts which should not be condoned. In all other respects,
the NLRC affirmed the decision of the labor arbiter, including the order for the
reinstatement of private respondent in her employment with PT & T.
The subsequent motion for reconsideration filed by petitioner was rebuffed by
respondent NLRC in its resolution of November 9, 1994, hence this special civil action
assailing the aforestated decisions of the labor arbiter and respondent NLRC, as well as
the denial resolution of the latter.
1. Decreed in the Bible itself is the universal norm that women should be regarded with
love and respect but, through the ages, men have responded to that injunction with
indifference, on the hubristic conceit that women constitute the inferior sex. Nowhere has
that prejudice against womankind been so pervasive as in the field of labor, especially
on the matter of equal employment opportunities and standards. In the Philippine setting,
women have traditionally been considered as falling within the vulnerable groups or
types of workers who must be safeguarded with preventive and remedial social
legislation against discriminatory and exploitative practices in hiring, training, benefits,
promotion and retention.
The Constitution, cognizant of the disparity in rights between men and women in almost
all phases of social and political life, provides a gamut of protective provisions. To cite a
few of the primordial ones, Section 14, Article II
8
on the Declaration of Principles and
State Policies, expressly recognizes the role of women in nation-building and commands
the State to ensure, at all times, the fundamental equality before the law of women and
men. Corollary thereto, Section 3 of Article XIII
9
(the progenitor whereof dates back to
both the 1935 and 1973 Constitution) pointedly requires the State to afford full protection
to labor and to promote full employment and equality of employment opportunities for all,
including an assurance of entitlement to tenurial security of all workers. Similarly,
Section 14 of Article XIII
10
mandates that the State shall protect working women through
provisions for opportunities that would enable them to reach their full potential.
2. Corrective labor and social laws on gender inequality have emerged with more
frequency in the years since the Labor Code was enacted on May 1, 1974 as
Presidential Decree No. 442, largely due to our country's commitment as a signatory to
the United Nations Convention on the Elimination of All Forms of Discrimination Against
Women (CEDAW).
11

Principal among these laws are Republic Act No. 6727
12
which explicitly prohibits
discrimination against women with respect to terms and conditions of employment,
promotion, and training opportunities; Republic Act No. 6955
13
which bans the "mail-
order-bride" practice for a fee and the export of female labor to countries that cannot
guarantee protection to the rights of women workers; Republic Act No. 7192
14
also
known as the "Women in Development and Nation Building Act," which affords women
equal opportunities with men to act and to enter into contracts, and for appointment,
admission, training, graduation, and commissioning in all military or similar schools of
the Armed Forces of the Philippines and the Philippine National Police; Republic Act No.
7322
15
increasing the maternity benefits granted to women in the private sector;
Republic Act No. 7877
16
which outlaws and punishes sexual harassment in the
workplace and in the education and training environment; and Republic Act No.
8042,
17
or the "Migrant Workers and Overseas Filipinos Act of 1995," which prescribes
as a matter of policy, inter alia, the deployment of migrant workers, with emphasis on
women, only in countries where their rights are secure. Likewise, it would not be amiss
to point out that in the Family Code,
18
women's rights in the field of civil law have been
greatly enhanced and expanded.
In the Labor Code, provisions governing the rights of women workers are found in
Articles 130 to 138 thereof. Article 130 involves the right against particular kinds of night
work while Article 132 ensures the right of women to be provided with facilities and
standards which the Secretary of Labor may establish to ensure their health and safety.
For purposes of labor and social legislation, a woman working in a nightclub, cocktail
lounge, massage clinic, bar or other similar establishments shall be considered as an
employee under Article 138. Article 135, on the other hand, recognizes a woman's right
against discrimination with respect to terms and conditions of employment on account
simply of sex. Finally, and this brings us to the issue at hand, Article 136 explicitly
prohibits discrimination merely by reason of the marriage of a female employee.
3. Acknowledged as paramount in the due process scheme is the constitutional
guarantee of protection to labor and security of tenure. Thus, an employer is required, as
a condition sine qua non prior to severance of the employment ties of an individual under
his employ, to convincingly establish, through substantial evidence, the existence of a
valid and just cause in dispensing with the services of such employee, one's labor being
regarded as constitutionally protected property.
On the other hand, it is recognized that regulation of manpower by the company falls
within the so-called management prerogatives, which prescriptions encompass the
matter of hiring, supervision of workers, work assignments, working methods and
assignments, as well as regulations on the transfer of employees, lay-off of workers, and
the discipline, dismissal, and recall of employees.
19
As put in a case, an employer is
free to regulate, according to his discretion and best business judgment, all aspects of
employment, "from hiring to firing," except in cases of unlawful discrimination or those
which may be provided by law.
20

In the case at bar, petitioner's policy of not accepting or considering as disqualified from
work any woman worker who contracts marriage runs afoul of the test of, and the right
against, discrimination, afforded all women workers by our labor laws and by no less
than the Constitution. Contrary to petitioner's assertion that it dismissed private
respondent from employment on account of her dishonesty, the record discloses clearly
that her ties with the company were dissolved principally because of the company's
policy that married women are not qualified for employment in PT & T, and not merely
because of her supposed acts of dishonesty.
That it was so can easily be seen from the memorandum sent to private respondent by
Delia M. Oficial, the branch supervisor of the company, with the reminder, in the words
of the latter, that "you're fully aware that the company is not accepting married women
employee (sic), as it was verbally instructed to you."
21
Again, in the termination notice
sent to her by the same branch supervisor, private respondent was made to understand
that her severance from the service was not only by reason of her concealment of her
married status but, over and on top of that, was her violation of the company's policy
against marriage ("and even told you that married women employees are not applicable
[sic] or accepted in our company.")
22
Parenthetically, this seems to be the curious
reason why it was made to appear in the initiatory pleadings that petitioner was
represented in this case only by its said supervisor and not by its highest ranking officers
who would otherwise be solidarily liable with the corporation.
23

Verily, private respondent's act of concealing the true nature of her status from PT & T
could not be properly characterized as willful or in bad faith as she was moved to act the
way she did mainly because she wanted to retain a permanent job in a stable company.
In other words, she was practically forced by that very same illegal company policy into
misrepresenting her civil status for fear of being disqualified from work. While loss of
confidence is a just cause for termination of employment, it should not be simulated.
24
It
must rest on an actual breach of duty committed by the employee and not on the
employer's caprices.
25
Furthermore, it should never be used as a subterfuge for causes
which are improper, illegal, or unjustified.
26

In the present controversy, petitioner's expostulations that it dismissed private
respondent, not because the latter got married but because she concealed that fact,
does have a hollow ring. Her concealment, so it is claimed, bespeaks dishonesty hence
the consequent loss of confidence in her which justified her dismissal.
Petitioner would asseverate, therefore, that while it has nothing against marriage, it
nonetheless takes umbrage over the concealment of that fact. This improbable
reasoning, with interstitial distinctions, perturbs the Court since private respondent may
well be minded to claim that the imputation of dishonesty should be the other way
around.
Petitioner would have the Court believe that although private respondent defied its policy
against its female employees contracting marriage, what could be an act of
insubordination was inconsequential. What it submits as unforgivable is her concealment
of that marriage yet, at the same time, declaring that marriage as a trivial matter to which
it supposedly has no objection. In other words, PT & T says it gives its blessings to its
female employees contracting marriage, despite the maternity leaves and other benefits
it would consequently respond for and which obviously it would have wanted to avoid. If
that employee confesses such fact of marriage, there will be no sanction; but if such
employee conceals the same instead of proceeding to the confessional, she will be
dismissed. This line of reasoning does not impress us as reflecting its true management
policy or that we are being regaled with responsible advocacy.
This Court should be spared the ennui of strained reasoning and the tedium of
propositions which confuse through less than candid arguments. Indeed, petitioner
glosses over the fact that it was its unlawful policy against married women, both on the
aspects of qualification and retention, which compelled private respondent to conceal
her supervenient marriage. It was, however, that very policy alone which was the cause
of private respondent's secretive conduct now complained of. It is then apropos to recall
the familiar saying that he who is the cause of the cause is the cause of the evil caused.
Finally, petitioner's collateral insistence on the admission of private respondent that she
supposedly misappropriated company funds, as an additional ground to dismiss her from
employment, is somewhat insincere and self-serving. Concededly, private respondent
admitted in the course of the proceedings that she failed to remit some of her collections,
but that is an altogether different story. The fact is that she was dismissed solely
because of her concealment of her marital status, and not on the basis of that supposed
defalcation of company funds. That the labor arbiter would thus consider petitioner's
submissions on this supposed dishonesty as a mere afterthought, just to bolster its case
for dismissal, is a perceptive conclusion born of experience in labor cases. For, there
was no showing that private respondent deliberately misappropriated the amount or
whether her failure to remit the same was through negligence and, if so, whether the
negligence was in nature simple or grave. In fact, it was merely agreed that private
respondent execute a promissory note to refund the same, which she did, and the matter
was deemed settled as a peripheral issue in the labor case.
Private respondent, it must be observed, had gained regular status at the time of her
dismissal. When she was served her walking papers on January 29, 1992, she was
about to complete the probationary period of 150 days as she was contracted as a
probationary employee on September 2, 1991. That her dismissal would be effected just
when her probationary period was winding down clearly raises the plausible conclusion
that it was done in order to prevent her from earning security of tenure.
27
On the other
hand, her earlier stints with the company as reliever were undoubtedly those of a regular
employee, even if the same were for fixed periods, as she performed activities which
were essential or necessary in the usual trade and business of PT & T.
28
The primary
standard of determining regular employment is the reasonable connection between the
activity performed by the employee in relation to the business or trade of the
employer.
29

As an employee who had therefore gained regular status, and as she had been
dismissed without just cause, she is entitled to reinstatement without loss of seniority
rights and other privileges and to full back wages, inclusive of allowances and other
benefits or their monetary equivalent.
30
However, as she had undeniably committed an
act of dishonesty in concealing her status, albeit under the compulsion of an unlawful
imposition of petitioner, the three-month suspension imposed by respondent NLRC must
be upheld to obviate the impression or inference that such act should be condoned. It
would be unfair to the employer if she were to return to its fold without any sanction
whatsoever for her act which was not totally justified. Thus, her entitlement to back
wages, which shall be computed from the time her compensation was withheld up to the
time of her actual reinstatement, shall be reduced by deducting therefrom the amount
corresponding to her three months suspension.
4. The government, to repeat, abhors any stipulation or policy in the nature of that
adopted by petitioner PT & T. The Labor Code state, in no uncertain terms, as follows:
Art. 136. Stipulation against marriage. It shall be unlawful for an
employer to require as a condition of employment or continuation of
employment that a woman shall not get married, or to stipulate expressly
or tacitly that upon getting married, a woman employee shall be deemed
resigned or separated, or to actually dismiss, discharge, discriminate or
otherwise prejudice a woman employee merely by reason of marriage.
This provision had a studied history for its origin can be traced to Section 8 of
Presidential Decree No. 148,
31
better known as the "Women and
Child Labor Law," which amended paragraph (c), Section 12 of Republic Act No.
679,
32
entitled "An Act to Regulate the Employment of Women and Children, to Provide
Penalties for Violations Thereof, and for Other Purposes." The forerunner to Republic
Act No. 679, on the other hand, was Act No. 3071 which became law on March 16, 1923
and which regulated the employment of women and children in shops, factories,
industrial, agricultural, and mercantile establishments and other places of labor in the
then Philippine Islands.
It would be worthwhile to reflect upon and adopt here the rationalization in Zialcita, et
al. vs. Philippine Air Lines,
33
a decision that emanated from the Office of the President.
There, a policy of Philippine Air Lines requiring that prospective flight attendants must be
single and that they will be automatically separated from the service once they marry
was declared void, it being violative of the clear mandate in Article 136 of the Labor
Code with regard to discrimination against married women. Thus:
Of first impression is the incompatibility of the respondent's policy or
regulation with the codal provision of law. Respondent is resolute in its
contention that Article 136 of the Labor Code applies only to women
employed in ordinary occupations and that the prohibition against
marriage of women engaged in extraordinary occupations, like flight
attendants, is fair and reasonable, considering the pecularities of their
chosen profession.
We cannot subscribe to the line of reasoning pursued by respondent. All
along, it knew that the controverted policy has already met its doom as
early as March 13, 1973 when Presidential Decree No. 148, otherwise
known as the Women and Child Labor Law, was promulgated. But for the
timidity of those affected or their labor unions in challenging the validity of
the policy, the same was able to obtain a momentary reprieve. A close
look at Section 8 of said decree, which amended paragraph (c) of Section
12 of Republic Act No. 679, reveals that it is exactly the same provision
reproduced verbatim in Article 136 of the Labor Code, which was
promulgated on May 1, 1974 to take effect six (6) months later, or on
November 1, 1974.
It cannot be gainsaid that, with the reiteration of the same provision in the
new Labor Code, all policies and acts against it are deemed illegal and
therefore abrogated. True, Article 132 enjoins the Secretary of Labor to
establish standards that will ensure the safety and health of women
employees and in appropriate cases shall by regulation require employers
to determine appropriate minimum standards for termination in special
occupations, such as those of flight attendants, but that is precisely the
factor that militates against the policy of respondent. The standards have
not yet been established as set forth in the first paragraph, nor has the
Secretary of Labor issued any regulation affecting flight attendants.
It is logical to presume that, in the absence of said standards or
regulations which are as yet to be established, the policy of respondent
against marriage is patently illegal. This finds support in Section 9 of the
New Constitution, which provides:
Sec. 9. The State shall afford protection to labor, promote full employment
and equality in employment, ensure equal work opportunities regardless
of sex, race, or creed, and regulate the relations between workers and
employees. The State shall assure the rights of workers to self-
organization, collective bargaining, security of tenure, and just and
humane conditions of work . . . .
Moreover, we cannot agree to the respondent's proposition that
termination from employment of flight attendants on account of marriage
is a fair and reasonable standard designed for their own health, safety,
protection and welfare, as no basis has been laid therefor. Actually,
respondent claims that its concern is not so much against the continued
employment of the flight attendant merely by reason of marriage as
observed by the Secretary of Labor, but rather on the consequence of
marriage-pregnancy. Respondent discussed at length in the instant
appeal the supposed ill effects of pregnancy on flight attendants in the
course of their employment. We feel that this needs no further discussion
as it had been adequately explained by the Secretary of Labor in his
decision of May 2, 1976.
In a vain attempt to give meaning to its position, respondent went as far
as invoking the provisions of Articles 52 and 216 of the New Civil Code on
the preservation of marriage as an inviolable social institution and the
family as a basic social institution, respectively, as bases for its policy of
non-marriage. In both instances, respondent predicates absence of a
flight attendant from her home for long periods of time as contributory to
an unhappy married life. This is pure conjecture not based on actual
conditions, considering that, in this modern world, sophisticated
technology has narrowed the distance from one place to another.
Moreover, respondent overlooked the fact that married flight attendants
can program their lives to adapt to prevailing circumstances and events.
Article 136 is not intended to apply only to women employed in ordinary
occupations, or it should have categorically expressed so. The sweeping
intendment of the law, be it on special or ordinary occupations, is
reflected in the whole text and supported by Article 135 that speaks of
non-discrimination on the employment of women.
The judgment of the Court of Appeals in Gualberto, et al. vs. Marinduque Mining &
Industrial Corporation
34
considered as void a policy of the same nature. In said case,
respondent, in dismissing from the service the complainant, invoked a policy of the firm
to consider female employees in the project it was undertaking as separated the moment
they get married due to lack of facilities for married women. Respondent further claimed
that complainant was employed in the project with an oral understanding that her
services would be terminated when she gets married. Branding the policy of the
employer as an example of "discriminatory chauvinism" tantamount to denying equal
employment opportunities to women simply on account of their sex, the appellate court
struck down said employer policy as unlawful in view of its repugnance to the Civil Code,
Presidential Decree No. 148 and the Constitution.
Under American jurisprudence, job requirements which establish employer preference or
conditions relating to the marital status of an employee are categorized as a "sex-plus"
discrimination where it is imposed on one sex and not on the other. Further, the same
should be evenly applied and must not inflict adverse effects on a racial or sexual group
which is protected by federal job discrimination laws. Employment rules that forbid or
restrict the employment of married women, but do not apply to married men, have been
held to violate Title VII of the United States Civil Rights Act of 1964, the main federal
statute prohibiting job discrimination against employees and applicants on the basis of,
among other things, sex.
35

Further, it is not relevant that the rule is not directed against all women but just against
married women. And, where the employer discriminates against married women, but not
against married men, the variable is sex and the discrimination is unlawful.
36
Upon the
other hand, a requirement that a woman employee must remain unmarried could be
justified as a "bona fide occupational qualification," or BFOQ, where the particular
requirements of the job would justify the same, but not on the ground of a general
principle, such as the desirability of spreading work in the workplace. A requirement of
that nature would be valid provided it reflects an inherent quality reasonably necessary
for satisfactory job performance. Thus, in one case, a no-marriage rule applicable to
both male and female flight attendants, was regarded as unlawful since the restriction
was not related to the job performance of the flight attendants.
37

5. Petitioner's policy is not only in derogation of the provisions of Article 136 of the Labor
Code on the right of a woman to be free from any kind of stipulation against marriage in
connection with her employment, but it likewise assaults good morals and public policy,
tending as it does to deprive a woman of the freedom to choose her status, a privilege
that by all accounts inheres in the individual as an intangible and inalienable
right.
38
Hence, while it is true that the parties to a contract may establish any
agreements, terms, and conditions that they may deem convenient, the same should not
be contrary to law, morals, good customs, public order, or public policy.
39
Carried to its
logical consequences, it may even be said that petitioner's policy against legitimate
marital bonds would encourage illicit or common-law relations and subvert the
sacrament of marriage.
Parenthetically, the Civil Code provisions on the contract of labor state that the relations
between the parties, that is, of capital and labor, are not merely contractual, impressed
as they are with so much public interest that the same should yield to the common
good.
40
It goes on to intone that neither capital nor labor should visit acts of oppression
against the other, nor impair the interest or convenience of the public.
41
In the final
reckoning, the danger of just such a policy against marriage followed by petitioner PT &
T is that it strikes at the very essence, ideals and purpose of marriage as an inviolable
social institution and, ultimately, of the family as the foundation of the nation.
42
That it
must be effectively interdicted here in all its indirect, disguised or dissembled forms as
discriminatory conduct derogatory of the laws of the land is not only in order but
imperatively required.
ON THE FOREGOING PREMISES, the petition of Philippine Telegraph and Telephone
Company is hereby DISMISSED for lack of merit, with double costs against petitioner.
SO ORDERED.
Romero, Puno, Mendoza and Torres, Jr., JJ., concur.

DIGEST
FACTS:

PT&T (Philippine Telegraph & Telephone Company) initially hired Grace de Guzman
specifically as Supernumerary Project Worker, for a fixed period from November 21,
1990 until April 20, 1991 as reliever for C.F. Tenorio who went on maternity leave. She
was again invited for employment as replacement of Erlina F. Dizon who went on leave
on 2 periods, from June 10, 1991 to July 1, 1991 and July 19, 1991 to August 8, 1991.

On September 2, 1991, de Guzman was again asked to join PT&T as a probationary
employee where probationary period will cover 150 days. She indicated in the portion of
the job application form under civil status that she was single although she had
contracted marriage a few months earlier. When petitioner learned later about the
marriage, its branch supervisor, Delia M. Oficial, sent de Guzman a memorandum
requiring her to explain the discrepancy. Included in the memorandum, was a reminder
about the companys policy of not accepting married women for employment. She was
dismissed from the company effective January 29, 1992. Labor Arbiter handed down
decision on November 23, 1993 declaring that petitioner illegally dismissed De Guzman,
who had already gained the status of a regular employee. Furthermore, it was apparent
that she had been discriminated on account of her having contracted marriage in
violation of company policies.

ISSUE: Whether the alleged concealment of civil status can be grounds to terminate the
services of an employee.

HELD:

Article 136 of the Labor Code, one of the protective laws for women, explicitly prohibits
discrimination merely by reason of marriage of a female employee. It is recognized that
company is free to regulate manpower and employment from hiring to firing, according to
their discretion and best business judgment, except in those cases of unlawful
discrimination or those provided by law.

PT&Ts policy of not accepting or disqualifying from work any woman worker who
contracts marriage is afoul of the right against discrimination provided to all women
workers by our labor laws and by our Constitution. The record discloses clearly that de
Guzmans ties with PT&T were dissolved principally because of the companys policy
that married women are not qualified for employment in the company, and not merely
because of her supposed acts of dishonesty.

The government abhors any stipulation or policy in the nature adopted by PT&T. As
stated in the labor code:

ART. 136. Stipulation against marriage. It shall be unlawful for an employer to
require as a condition of employment or continuation of employment that a woman shall
not get married, or to stipulate expressly or tacitly that upon getting married, a woman
employee shall be deemed resigned or separated, or to actually dismiss, discharge,
discriminate or otherwise prejudice a woman employee merely by reason of marriage.

The policy of PT&T is in derogation of the provisions stated in Art.136 of the Labor Code
on the right of a woman to be free from any kind of stipulation against marriage in
connection with her employment and it likewise is contrary to good morals and public
policy, depriving a woman of her freedom to choose her status, a privilege that is
inherent in an individual as an intangible and inalienable right. The kind of policy
followed by PT&T strikes at the very essence, ideals and purpose of marriage as an
inviolable social institution and ultimately, family as the foundation of the nation. Such
policy must be prohibited in all its indirect, disguised or dissembled forms as
discriminatory conduct derogatory of the laws of the land not only for order but also
imperatively required.

Art. II, Section 12, Constitution

Estrada vs. Escritur (A.M. P-02-1651, 4 August 2003)
A.M. No. P-02-1651 June 22, 2006
(Formerly OCA I.P.I. No. 00-1021-P)
ALEJANDRO ESTRADA, Complainant,
vs.
SOLEDAD S. ESCRITOR, Respondent.
R E S O L U T I O N
PUNO, J .:
While man is finite, he seeks and subscribes to the Infinite. Respondent Soledad Escritor
once again stands before the Court invoking her religious freedom and her Jehovah God
in a bid to save her family united without the benefit of legal marriage - and livelihood.
The State, on the other hand, seeks to wield its power to regulate her behavior and
protect its interest in marriage and family and the integrity of the courts where
respondent is an employee. How the Court will tilt the scales of justice in the case at bar
will decide not only the fate of respondent Escritor but of other believers coming to Court
bearing grievances on their free exercise of religion. This case comes to us from our
remand to the Office of the Court Administrator on August 4, 2003.
1

I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro Estrada
requested Judge Jose F. Caoibes, Jr., presiding judge of Branch 253, Regional Trial
Court of Las Pias City, for an investigation of respondent Soledad Escritor, court
interpreter in said court, for living with a man not her husband, and having borne a child
within this live-in arrangement. Estrada believes that Escritor is committing an immoral
act that tarnishes the image of the court, thus she should not be allowed to remain
employed therein as it might appear that the court condones her act.
2
Consequently,
respondent was charged with committing "disgraceful and immoral conduct" under Book
V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code.
3

Respondent Escritor testified that when she entered the judiciary in 1999, she was
already a widow, her husband having died in 1998.
4
She admitted that she started living
with Luciano Quilapio, Jr. without the benefit of marriage more than twenty years ago
when her husband was still alive but living with another woman. She also admitted that
she and Quilapio have a son.
5
But as a member of the religious sect known as the
Jehovahs Witnesses and the Watch Tower and Bible Tract Society, respondent
asserted that their conjugal arrangement is in conformity with their religious beliefs and
has the approval of her congregation.
6
In fact, after ten years of living together, she
executed on July 28, 1991, a "Declaration of Pledging Faithfulness."
7

For Jehovahs Witnesses, the Declaration allows members of the congregation who
have been abandoned by their spouses to enter into marital relations. The Declaration
thus makes the resulting union moral and binding within the congregation all over the
world except in countries where divorce is allowed. As laid out by the tenets of their faith,
the Jehovahs congregation requires that at the time the declarations are executed, the
couple cannot secure the civil authorities approval of the marital relationship because of
legal impediments. Only couples who have been baptized and in good standing may
execute the Declaration, which requires the approval of the elders of the congregation.
As a matter of practice, the marital status of the declarants and their respective spouses
commission of adultery are investigated before the declarations are executed.
8
Escritor
and Quilapios declarations were executed in the usual and approved form prescribed by
the Jehovahs Witnesses,
9
approved by elders of the congregation where the
declarations were executed,
10
and recorded in the Watch Tower Central Office.
11

Moreover, the Jehovahs congregation believes that once all legal impediments for the
couple are lifted, the validity of the declarations ceases, and the couple should legalize
their union. In Escritors case, although she was widowed in 1998, thereby lifting the
legal impediment to marry on her part, her mate was still not capacitated to remarry.
Thus, their declarations remained valid.
12
In sum, therefore, insofar as the congregation
is concerned, there is nothing immoral about the conjugal arrangement between Escritor
and Quilapio and they remain members in good standing in the congregation.
By invoking the religious beliefs, practices and moral standards of her congregation, in
asserting that her conjugal arrangement does not constitute disgraceful and immoral
conduct for which she should be held administratively liable,
13
the Court had to
determine the contours of religious freedom under Article III, Section 5 of the
Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No religious test
shall be required for the exercise of civil or political rights.
A. Ruling
In our decision dated August 4, 2003, after a long and arduous scrutiny into the origins
and development of the religion clauses in the United States (U.S.) and the Philippines,
we held that in resolving claims involving religious freedom (1) benevolent neutrality or
accommodation, whether mandatory or permissive, is the spirit, intent and framework
underlying the religion clauses in our Constitution; and (2) in deciding respondents plea
of exemption based on the Free Exercise Clause (from the law with which she is
administratively charged), it is the compelling state interest test, the strictest test, which
must be applied.
14

Notwithstanding the above rulings, the Court could not, at that time, rule definitively on
the ultimate issue of whether respondent was to be held administratively liable for there
was need to give the State the opportunity to adduce evidence that it has a more
"compelling interest" to defeat the claim of the respondent to religious freedom. Thus, in
the decision dated August 4, 2003, we remanded the complaint to the Office of the Court
Administrator (OCA), and ordered the Office of the Solicitor General (OSG) to intervene
in the case so it can:
(a) examine the sincerity and centrality of respondents claimed religious belief
and practice;
(b) present evidence on the states "compelling interest" to override respondents
religious belief and practice; and
(c) show that the means the state adopts in pursuing its interest is the least
restrictive to respondents religious freedom.
15

It bears stressing, therefore, that the residual issues of the case pertained NOT TO
WHAT APPROACH THIS COURT SHOULD TAKE IN CONSTRUING THE RELIGION
CLAUSES, NOR TO THE PROPER TEST APPLICABLE IN DETERMINING CLAIMS
OF EXEMPTION BASED ON FREEDOM OF RELIGION. These issues have already
been ruled upon prior to the remand, and constitute "the law of the case" insofar as they
resolved the issues of which framework and test are to be applied in this case, and no
motion for its reconsideration having been filed.
16
The only task that the Court is left to
do is to determine whether the evidence adduced by the State proves its more
compelling interest. This issue involves a pure question of fact.
B. Law of the case
Mr. Justice Carpios insistence, in his dissent, in attacking the ruling of this case
interpreting the religious clauses of the Constitution, made more than two years ago, is
misplaced to say the least. Since neither the complainant, respondent nor the
government has filed a motion for reconsideration assailing this ruling, the same has
attained finality and constitutes the law of the case. Any attempt to reopen this final
ruling constitutes a crass contravention of elementary rules of procedure. Worse, insofar
as it would overturn the parties right to rely upon our interpretation which has long
attained finality, it also runs counter to substantive due process.
Be that as it may, even assuming that there were no procedural and substantive
infirmities in Mr. Justice Carpios belated attempts to disturb settled issues, and that he
had timely presented his arguments, the results would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. Old World Antecedents
In our August 4, 2003 decision, we made a painstaking review of Old World antecedents
of the religion clauses, because "one cannot understand, much less intelligently criticize
the approaches of the courts and the political branches to religious freedom in the recent
past in the United States without a deep appreciation of the roots of these controversies
in the ancient and medieval world and in the American experience."
17
We delved into the
conception of religion from primitive times, when it started out as the state
itself, when the authority and power of the state were ascribed to God.
18
Then, religion
developed on its own and became superior to the state,
19
its subordinate,
20
and even
becoming an engine of state policy.
21

We ascertained two salient features in the review of religious history: First, with minor
exceptions, the history of church-state relationships was characterized by persecution,
oppression, hatred, bloodshed, and war, all in the name of the God of Love and of the
Prince of Peace. Second, likewise with minor exceptions, this history witnessed the
unscrupulous use of religion by secular powers to promote secular purposes and
policies, and the willing acceptance of that role by the vanguards of religion in exchange
for the favors and mundane benefits conferred by ambitious princes and emperors in
exchange for religions invaluable service. This was the context in which the unique
experiment of the principle of religious freedom and separation of church and state saw
its birth in American constitutional democracy and in human history.
22

Strictly speaking, the American experiment of freedom and separation was not
translated in the First Amendment. That experiment had been launched four years
earlier, when the founders of the republic carefully withheld from the new national
government any power to deal with religion. As James Madison said, the national
government had no "jurisdiction" over religion or any "shadow of right to intermeddle"
with it.
23

The omission of an express guaranty of religious freedom and other natural rights,
however, nearly prevented the ratification of the Constitution. The restriction had to be
made explicit with the adoption of the religion clauses in the First Amendment as they
are worded to this day. Thus, the First Amendment did not take away or abridge any
power of the national government; its intent was to make express the absence of
power.
24
It commands, in two parts (with the first part usually referred to as the
Establishment Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or prohibiting the
free exercise thereof.
25

The Establishment and Free Exercise Clauses, it should be noted, were not designed to
serve contradictory purposes. They have a single goalto promote freedom of individual
religious beliefs and practices. In simplest terms, the Free Exercise Clause prohibits
government from inhibiting religious beliefs with penalties for religious beliefs and
practice, while the Establishment Clause prohibits government from inhibiting religious
belief with rewards for religious beliefs and practices. In other words, the two religion
clauses were intended to deny government the power to use either the carrot or the stick
to influence individual religious beliefs and practices.
26

In sum, a review of the Old World antecedents of religion shows the movement of
establishment of religion as an engine to promote state interests, to the principle of non-
establishment to allow the free exercise of religion.
2. Religion Clauses in the U.S. Context
The Court then turned to the religion clauses interpretation and construction in the
United States, not because we are bound by their interpretation, but because the U.S.
religion clauses are the precursors to the Philippine religion clauses, although we have
significantly departed from the U.S. interpretation as will be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has been volatile
and fraught with inconsistencies whether within a Court decision or across decisions. For
while there is widespread agreement regarding the value of the First Amendment
religion clauses, there is an equally broad disagreement as to what these clauses
specifically require, permit and forbid. No agreement has been reached by those who
have studied the religion clauses as regards its exact meaning and the paucity of
records in the U.S. Congress renders it difficult to ascertain its meaning.
27

U.S. history has produced two identifiably different, even opposing, strains of
jurisprudence on the religion clauses. First is the standard of separation, which may take
the form of either (a) strict separation or (b) the tamer version of strict neutrality or
separation, or what Mr. Justice Carpio refers to as the second theory of governmental
neutrality. Although the latter form is not as hostile to religion as the former, both are
anchored on the Jeffersonian premise that a "wall of separation" must exist between the
state and the Church to protect the state from the church.
28
Both protect the principle of
church-state separation with a rigid reading of the principle. On the other hand, the
second standard, the benevolent neutrality or accommodation, is buttressed by the view
that the wall of separation is meant to protect the church from the state. A brief review of
each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to protect the
state from the church, and the states hostility towards religion allows no interaction
between the two. According to this Jeffersonian view, an absolute barrier to formal
interdependence of religion and state needs to be erected. Religious institutions could
not receive aid, whether direct or indirect, from the state. Nor could the state adjust its
secular programs to alleviate burdens the programs placed on believers.
29
Only the
complete separation of religion from politics would eliminate the formal influence of
religious institutions and provide for a free choice among political views, thus a strict
"wall of separation" is necessary.
30

Strict separation faces difficulties, however, as it is deeply embedded in American
history and contemporary practice that enormous amounts of aid, both direct and
indirect, flow to religion from government in return for huge amounts of mostly indirect
aid from religion.
31
For example, less than twenty-four hours after Congress adopted the
First Amendments prohibition on laws respecting an establishment of religion, Congress
decided to express its thanks to God Almighty for the many blessings enjoyed by the
nation with a resolution in favor of a presidential proclamation declaring a national day of
Thanksgiving and Prayer.
32
Thus, strict separationists are caught in an awkward position
of claiming a constitutional principle that has never existed and is never likely to.
33

The tamer version of the strict separationist view, the strict neutrality or separationist
view, (or, the governmental neutrality theory) finds basis in Everson v. Board of
Education,
34
where the Court declared that Jeffersons "wall of separation" encapsulated
the meaning of the First Amendment. However, unlike the strict separationists, the strict
neutrality view believes that the "wall of separation" does not require the state to be their
adversary. Rather, the state must be neutral in its relations with groups of religious
believers and non-believers. "State power is no more to be used so as to handicap
religions than it is to favor them."
35
The strict neutrality approach is not hostile to religion,
but it is strict in holding that religion may not be used as a basis for classification for
purposes of governmental action, whether the action confers rights or privileges or
imposes duties or obligations. Only secular criteria may be the basis of government
action. It does not permit, much less require, accommodation of secular programs to
religious belief.
36

The problem with the strict neutrality approach, however, is if applied in interpreting the
Establishment Clause, it could lead to a de facto voiding of religious expression in the
Free Exercise Clause. As pointed out by Justice Goldberg in his concurring opinion in
Abington School District v. Schempp,
37
strict neutrality could lead to "a brooding and
pervasive devotion to the secular and a passive, or even active, hostility to the religious"
which is prohibited by the Constitution.
38
Professor Laurence Tribe commented in his
authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very idea of a
free exercise clause. The Framers, whatever specific applications they may have
intended, clearly envisioned religion as something special; they enacted that vision into
law by guaranteeing the free exercise of religion but not, say, of philosophy or science.
The strict neutrality approach all but erases this distinction. Thus it is not surprising that
the [U.S.] Supreme Court has rejected strict neutrality, permitting and sometimes
mandating religious classifications.
39

Thus, the dilemma of the separationist approach, whether in the form of strict separation
or strict neutrality, is that while the Jeffersonian wall of separation "captures the spirit of
the American ideal of church-state separation," in real life, church and state are not and
cannot be totally separate. This is all the more true in contemporary times when both the
government and religion are growing and expanding their spheres of involvement and
activity, resulting in the intersection of government and religion at many points.
40

b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a different view of
the "wall of separation," associated with Williams, founder of the Rhode Island colony.
Unlike the Jeffersonian wall that is meant to protect the state from the church, the wall is
meant to protect the church from the state.
41
This doctrine was expressed in Zorach v.
Clauson,
42
which held, viz:
The First Amendment, however, does not say that in every and all respects there shall
be a separation of Church and State. Rather, it studiously defines the manner, the
specific ways, in which there shall be no concert or union or dependency one or the
other. That is the common sense of the matter. Otherwise, the state and religion would
be aliens to each other - hostile, suspicious, and even unfriendly. Churches could not be
required to pay even property taxes. Municipalities would not be permitted to render
police or fire protection to religious groups. Policemen who helped parishioners into their
places of worship would violate the Constitution. Prayers in our legislative halls; the
appeals to the Almighty in the messages of the Chief Executive; the proclamations
making Thanksgiving Day a holiday; "so help me God" in our courtroom oaths- these
and all other references to the Almighty that run through our laws, our public rituals, our
ceremonies would be flouting the First Amendment. A fastidious atheist or agnostic
could even object to the supplication with which the Court opens each session: "God
save the United States and this Honorable Court."
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being. We
guarantee the freedom to worship as one chooses. . . When the state encourages
religious instruction or cooperates with religious authorities by adjusting the schedule of
public events, it follows the best of our traditions. For it then respects the religious nature
of our people and accommodates the public service to their spiritual needs. To hold that
it may not would be to find in the Constitution a requirement that the government show a
callous indifference to religious groups. . . But we find no constitutional requirement
which makes it necessary for government to be hostile to religion and to throw its weight
against efforts to widen their effective scope of religious influence.
43

Benevolent neutrality recognizes that religion plays an important role in the public life of
the United States as shown by many traditional government practices which, to strict
neutrality, pose Establishment Clause questions. Among these are the inscription of "In
God We Trust" on American currency; the recognition of America as "one nation under
God" in the official pledge of allegiance to the flag; the Supreme Courts time-honored
practice of opening oral argument with the invocation "God save the United States and
this Honorable Court"; and the practice of Congress and every state legislature of paying
a chaplain, usually of a particular Protestant denomination, to lead representatives in
prayer. These practices clearly show the preference for one theological viewpointthe
existence of and potential for intervention by a godover the contrary theological
viewpoint of atheism. Church and government agencies also cooperate in the building of
low-cost housing and in other forms of poor relief, in the treatment of alcoholism and
drug addiction, in foreign aid and other government activities with strong moral
dimension.
44

Examples of accommodations in American jurisprudence also abound, including, but not
limited to the U.S. Court declaring the following acts as constitutional: a state hiring a
Presbyterian minister to lead the legislature in daily prayers,
45
or requiring employers to
pay workers compensation when the resulting inconsistency between work and Sabbath
leads to discharge;
46
for government to give money to religiously-affiliated organizations
to teach adolescents about proper sexual behavior;
47
or to provide religious school
pupils with books;
48
or bus rides to religious schools;
49
or with cash to pay for state-
mandated standardized tests.
50

(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the Religion
clauses are invoked in relation to governmental action, almost invariably in the form of
legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion will be
challenged as unconstitutional, either because it violates the Free Exercise Clause or
the Establishment Clause or both. This is true whether one subscribes to the
separationist approach or the benevolent neutrality or accommodationist approach.
But the more difficult religion cases involve legislative acts which have a secular purpose
and general applicability, but may incidentally or inadvertently aid or burden religious
exercise. Though the government action is not religiously motivated, these laws have a
"burdensome effect" on religious exercise.
The benevolent neutrality theory believes that with respect to these governmental
actions, accommodation of religion may be allowed, not to promote the governments
favored form of religion, but to allow individuals and groups to exercise their religion
without hindrance. The purpose of accommodations is to remove a burden on, or
facilitate the exercise of, a persons or institutions religion. As Justice Brennan
explained, the "government [may] take religion into accountto exempt, when possible,
from generally applicable governmental regulation individuals whose religious beliefs
and practices would otherwise thereby be infringed, or to create without state
involvement an atmosphere in which voluntary religious exercise may flourish."
51
In the
ideal world, the legislature would recognize the religions and their practices and would
consider them, when practical, in enacting laws of general application. But when the
legislature fails to do so, religions that are threatened and burdened may turn to the
courts for protection.
52

Thus, what is sought under the theory of accommodation is not a declaration of
unconstitutionality of a facially neutral law, but an exemption from its application or its
"burdensome effect," whether by the legislature or the courts.
53
Most of the free exercise
claims brought to the U.S. Court are for exemption, not invalidation of the facially neutral
law that has a "burdensome" effect.
54

(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in the U.S.
blossomed in the case of Sherbert v. Verner,
55
which ruled that state regulation that
indirectly restrains or punishes religious belief or conduct must be subjected to strict
scrutiny under the Free Exercise Clause.
56
According to Sherbert, when a law of general
application infringes religious exercise, albeit incidentally, the state interest sought to be
promoted must be so paramount and compelling as to override the free exercise claim.
Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment compensation
under the law as her employment was terminated for refusal to work on Saturdays on
religious grounds. Her claim was denied. She sought recourse in the Supreme Court. In
laying down the standard for determining whether the denial of benefits could withstand
constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work constitutes no
conduct prompted by religious principles of a kind within the reach of state legislation. If,
therefore, the decision of the South Carolina Supreme Court is to withstand appellants
constitutional challenge, it must be either because her disqualification as a beneficiary
represents no infringement by the State of her constitutional right of free exercise, or
because any incidental burden on the free exercise of appellants religion may be
justified by a "compelling state interest in the regulation of a subject within the States
constitutional power to regulate. . . ."
57
(emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not sufficient to
merely show a rational relationship of the substantial infringement to the religious right
and a colorable state interest. "(I)n this highly sensitive constitutional area, [o]nly the
gravest abuses, endangering paramount interests, give occasion for permissible
limitation."
58
The Court found that there was no such compelling state interest to
override Sherberts religious liberty. It added that even if the state could show that
Sherberts exemption would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon the state to show that
no alternative means of regulations would address such detrimental effects without
infringing religious liberty. The state, however, did not discharge this burden. The Court
thus carved out for Sherbert an exemption from the Saturday work requirement that
caused her disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherberts benefits would force her to choose
between receiving benefits and following her religion. This choice placed "the same kind
of burden upon the free exercise of religion as would a fine imposed against (her) for her
Saturday worship." This germinal case of Sherbert firmly established the exemption
doctrine,
59
viz:
It is certain that not every conscience can be accommodated by all the laws of the land;
but when general laws conflict with scruples of conscience, exemptions ought to be
granted unless some "compelling state interest" intervenes.
Thus, Sherbert and subsequent cases held that when government action burdens, even
inadvertently, a sincerely held religious belief or practice, the state must justify the
burden by demonstrating that the law embodies a compelling interest, that no less
restrictive alternative exists, and that a religious exemption would impair the states
ability to effectuate its compelling interest. As in other instances of state action affecting
fundamental rights, negative impacts on those rights demand the highest level of judicial
scrutiny. After Sherbert, this strict scrutiny balancing test resulted in court-mandated
religious exemptions from facially-neutral laws of general application whenever
unjustified burdens were found.
60

Then, in the 1972 case of Wisconsin v. Yoder,
61
the U.S. Court again ruled that religious
exemption was in order, notwithstanding that the law of general application had a
criminal penalty. Using heightened scrutiny, the Court overturned the conviction of
Amish parents for violating Wisconsin compulsory school-attendance laws. The Court, in
effect, granted exemption from a neutral, criminal statute that punished religiously
motivated conduct. Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the eighth
grade against a claim that such attendance interferes with the practice of a legitimate
religious belief, it must appear either that the State does not deny the free exercise of
religious belief by its requirement, or that there is a state interest of sufficient magnitude
to override the interest claiming protection under the Free Exercise Clause. Long before
there was general acknowledgement of the need for universal education, the Religion
Clauses had specially and firmly fixed the right of free exercise of religious beliefs, and
buttressing this fundamental right was an equally firm, even if less explicit, prohibition
against the establishment of any religion. The values underlying these two provisions
relating to religion have been zealously protected, sometimes even at the expense of
other interests of admittedly high social importance. . .
The essence of all that has been said and written on the subject is that only those
interests of the highest order and those not otherwise served can overbalance legitimate
claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is always
outside the protection of the Free Exercise Clause. It is true that activities of individuals,
even when religiously based, are often subject to regulation by the States in the exercise
of their undoubted power to promote the health, safety, and general welfare, or the
Federal government in the exercise of its delegated powers . . . But to agree that
religiously grounded conduct must often be subject to the broad police power of the
State is not to deny that there are areas of conduct protected by the Free Exercise
Clause of the First Amendment and thus beyond the power of the State to control, even
under regulations of general applicability. . . .This case, therefore, does not become
easier because respondents were convicted for their "actions" in refusing to send their
children to the public high school; in this context belief and action cannot be neatly
confined in logic-tight compartments. . .
62

The cases of Sherbert and Yoder laid out the following doctrines: (a) free exercise
clause claims were subject to heightened scrutiny or compelling interest test if
government substantially burdened the exercise of religion; (b) heightened scrutiny or
compelling interest test governed cases where the burden was direct, i.e., the exercise
of religion triggered a criminal or civil penalty, as well as cases where the burden was
indirect, i.e., the exercise of religion resulted in the forfeiture of a government
benefit;
63
and (c) the Court could carve out accommodations or exemptions from a
facially neutral law of general application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was protected
conduct beyond speech, press, or worship was included in the shelter of freedom of
religion. Neither Sherberts refusal to work on the Sabbath nor the Amish parents refusal
to let their children attend ninth and tenth grades can be classified as conduct protected
by the other clauses of the First Amendment. Second, indirect impositions on religious
conduct, such as the denial of twenty-six weeks of unemployment insurance benefits to
Adel Sherbert, as well as direct restraints, such as the criminal prohibition at issue in
Yoder, were prohibited. Third, as the language in the two cases indicate, the protection
granted was extensive. Only extremely strong governmental interests justified
impingement on religious conduct, as the absolute language of the test of the Free
Exercise Clause suggests.
64

Fourth, the strong language was backed by a requirement that the government provide
proof of the important interest at stake and of the dangers to that interest presented by
the religious conduct at issue. Fifth, in determining the injury to the governments
interest, a court was required to focus on the effect that exempting religious claimants
from the regulation would have, rather than on the value of the regulation in general.
Thus, injury to governmental interest had to be measured at the margin: assuming the
law still applied to all others, what would be the effect of exempting the religious claimant
in this case and other similarly situated religious claimants in the future? Together, the
fourth and fifth elements required that facts, rather than speculation, had to be presented
concerning how the governments interest would be harmed by excepting religious
conduct from the law being challenged.
65

Sherbert and Yoder adopted a balancing test for free exercise jurisprudence which
would impose a discipline to prevent manipulation in the balancing of interests. The
fourth and the fifth elements prevented the likelihood of exaggeration of the weight on
the governmental interest side of the balance, by not allowing speculation about the
effects of a decision adverse to those interests nor accepting that those interests would
be defined at a higher level of generality than the constitutional interests on the other
side of the balance.
66

Thus, the strict scrutiny and compelling state interest test significantly increased the
degree of protection afforded to religiously motivated conduct. While not affording
absolute immunity to religious activity, a compelling secular justification was necessary
to uphold public policies that collided with religious practices. Although the members of
the U.S. Court often disagreed over which governmental interests should be considered
compelling, thereby producing dissenting and separate opinions in religious conduct
cases, this general test established a strong presumption in favor of the free exercise of
religion.
67
Most scholars and courts agreed that under Sherbert and Yoder, the Free
Exercise Clause provided individuals some form of heightened scrutiny protection, if not
always a compelling interest one.
68
The 1990 case of Employment Division, Oregon
Department of Human Resources v. Smith,
69
drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting use of
peyote, a hallucinogenic substance. Specifically, individuals challenged the states
determination that their religious use of peyote, which resulted in their dismissal from
employment, was misconduct disqualifying them from receipt of unemployment
compensation benefits.
70

Justice Scalia, writing for the majority, rejected the claim that free exercise of religion
required an exemption from an otherwise valid law. Scalia said that "[w]e have never
held that an individuals religious beliefs excuse him from compliance with an otherwise
valid law prohibiting conduct that the State is free to regulate. On the contrary, the record
of more than a century of our free exercise jurisprudence contradicts that
proposition."
71
Scalia thus declared "that the right of free exercise does not relieve an
individual of the obligation to comply with a valid and neutral law of general applicability
of the ground that the law proscribes (or prescribes) conduct that his religion prescribes
(or proscribes)."
72

Justice Scalias opinion then reviewed the cases where free exercise challenges had
been upheldsuch as Cantwell, Murdock, Follet, Pierce, and Yoderand said that none
involved the free exercise clause claims alone. All involved "the Free Exercise Clause in
conjunction with other constitutional protections, such as freedom of speech and of the
press, or the right of parents to direct the education of their children."
73
The Court said
that Smith was distinguishable because it did not involve such a "hybrid situation," but
was a free exercise claim "unconnected with any communicative activity or parental
right."
74

Moreover, the Court said that the Sherbert line of cases applied only in the context of the
denial of unemployment benefits; it did not create a basis for an exemption from criminal
laws. Scalia wrote that "[e]ven if we were inclined to breathe into Sherbert some life
beyond the unemployment compensation field, we would not apply it to require
exemptions from a generally applicable criminal law."
75

The Court expressly rejected the use of strict scrutiny for challenges to neutral laws of
general applicability that burden religion. Justice Scalia said that "[p]recisely because
we are a cosmopolitan nation made up of people of almost conceivable religious
preference, and precisely because we value and protect that religious divergence, we
cannot afford the luxury of deeming presumptively invalid, as applied to the religious
objector, every regulation of conduct that does not protect an interest of the highest
order." The Court said that those seeking religious exemptions from laws should look to
the democratic process for protection, not the courts.
76

Smith thus changed the test for the free exercise clause. Strict or heightened scrutiny
and the compelling justification approach were abandoned for evaluating laws burdening
religion; neutral laws of general applicability only have to meet the rational basis test, no
matter how much they burden religion.
77

Justice OConnor wrote a concurring opinion sharply criticizing the rejection of the
compelling state interest test, asserting that "(t)he compelling state interest test
effectuates the First Amendments command that religious liberty is an independent
liberty, that it occupies a preferred position, and that the Court will not permit
encroachments upon this liberty, whether direct or indirect, unless required by clear and
compelling government interest of the highest order."
78
She said that strict scrutiny is
appropriate for free exercise challenges because "[t]he compelling interest test reflects
the First Amendments mandate of preserving religious liberty to the fullest extent
possible in a pluralistic society."
79

Justice OConnor also disagreed with the majoritys description of prior cases and
especially its leaving the protection of minority religions to the political process. She said
that, "First Amendment was enacted precisely to protect the rights of those whose
religious practice are not shared by the majority and may be viewed with hostility."
80

Justice Blackmun wrote a dissenting opinion that was joined by Justices Brennan and
Marshall. The dissenting Justices agreed with Justice OConnor that the majority had
mischaracterized precedents, such as in describing Yoder as a "hybrid" case rather than
as one under the free exercise clause. The dissent also argued that strict scrutiny should
be used in evaluating government laws burdening religion.
81

Criticism of Smith was intense and widespread.
82
Academics, Justices, and a bipartisan
majority of Congress noisily denounced the decision.
83
Smith has the rather unusual
distinction of being one case that is almost universally despised (and this is not too
strong a word) by both the liberals and conservatives.
84
Liberals chasten the Court for its
hostility to minority faiths which, in light of Smiths general applicability rule, will allegedly
suffer at the hands of the majority faith whether through outright hostility or neglect.
Conservatives bemoan the decision as an assault on religious belief leaving religion,
more than ever, subject to the caprice of an ever more secular nation that is increasingly
hostile to religious belief as an oppressive and archaic anachronism.
85

The Smith doctrine is highly unsatisfactory in several respects and has been criticized as
exhibiting a shallow understanding of free exercise jurisprudence.
86
First, the First
amendment was intended to protect minority religions from the tyranny of the religious
and political majority.
87
Critics of Smith have worried about religious minorities, who can
suffer disproportionately from laws that enact majoritarian mores.
88
Smith, in effect would
allow discriminating in favor of mainstream religious groups against smaller, more
peripheral groups who lack legislative clout,
89
contrary to the original theory of the First
Amendment.
90
Undeniably, claims for judicial exemption emanate almost invariably from
relatively politically powerless minority religions and Smith virtually wiped out their
judicial recourse for exemption.
91
Second, Smith leaves too much leeway for pervasive
welfare-state regulation to burden religion while satisfying neutrality. After all, laws not
aimed at religion can hinder observance just as effectively as those that target
religion.
92
Government impairment of religious liberty would most often be of the
inadvertent kind as in Smith considering the political culture where direct and deliberate
regulatory imposition of religious orthodoxy is nearly inconceivable. If the Free Exercise
Clause could not afford protection to inadvertent interference, it would be left almost
meaningless.
93
Third, the Reynolds-Gobitis-Smith
94
doctrine simply defies common
sense. The state should not be allowed to interfere with the most deeply held
fundamental religious convictions of an individual in order to pursue some trivial state
economic or bureaucratic objective. This is especially true when there are alternative
approaches for the state to effectively pursue its objective without serious inadvertent
impact on religion.
95

At bottom, the Courts ultimate concern in Smith appeared to be two-fold: (1) the
difficulty in defining and limiting the term "religion" in todays pluralistic society, and (2)
the belief that courts have no business determining the significance of an individuals
religious beliefs. For the Smith Court, these two concerns appear to lead to the
conclusion that the Free Exercise Clause must protect everything or it must protect
virtually nothing. As a result, the Court perceives its only viable options are to leave free
exercise protection to the political process or to allow a "system in which each
conscience is a law unto itself."
96
The Courts characterization of its choices have been
soundly rejected as false, viz:
If one accepts the Courts assumption that these are the only two viable options, then
admittedly, the Court has a stronger argument. But the Free Exercise Clause cannot be
summarily dismissed as too difficult to apply and this should not be applied at all. The
Constitution does not give the judiciary the option of simply refusing to interpret its
provisions. The First Amendment dictates that free exercise of "religion" must be
protected. Accordingly, the Constitution compels the Court to struggle with the contours
of what constitutes "religion." There is no constitutional opt-out provision for
constitutional words that are difficult to apply.
Nor does the Constitution give the Court the option of simply ignoring constitutional
mandates. A large area of middle ground exists between the Courts two opposing
alternatives for free exercise jurisprudence. Unfortunately, this middle ground requires
the Court to tackle difficult issues such as defining religion and possibly evaluating the
significance of a religious belief against the importance of a specific law. The Court
describes the results of this middle ground where "federal judges will regularly balance
against the importance of general laws the significance of religious practice," and then
dismisses it as a "parade of horribles" that is too "horrible to contemplate."
It is not clear whom the Court feels would be most hurt by this "parade of horribles."
Surely not religious individuals; they would undoubtedly prefer their religious beliefs to
be probed for sincerity and significance rather than acquiesce to the Courts approach of
simply refusing to grant any constitutional significance to their beliefs at all. If the Court is
concerned about requiring lawmakers at times constitutionally to exempt religious
individuals from statutory provisions, its concern is misplaced. It is the lawmakers who
have sought to prevent the Court from dismantling the Free Exercise Clause through
such legislation as the [Religious Freedom Restoration Act of 1993], and in any case,
the Court should not be overly concerned about hurting legislatures feelings by requiring
their laws to conform to constitutional dictates. Perhaps the Court is concerned about
putting such burden on judges. If so, it would truly be odd to say that
requiring the judiciary to perform its appointed role as constitutional interpreters is a
burden no judge should be expected to fulfill.
97

Parenthetically, Smiths characterization that the U.S. Court has "never held that an
individuals religious beliefs excuse him from compliance with an otherwise valid law
prohibiting conduct that the state is free to regulate"an assertion which Mr. Justice
Carpio adopted unequivocally in his dissenthas been sharply criticized even implicitly
by its supporters, as blatantly untrue. Scholars who supported Smith frequently did not
do so by opposing the arguments that the Court was wrong as a matter of original
meaning [of the religion clauses] or that the decision conflicted with precedent [i.e. the
Smith decision made shocking use of precedent]those points were often conceded.
98

To justify its perversion of precedent, the Smith Court attempted to distinguish the
exemption made in Yoder, by asserting that these were premised on two constitutional
rights combinedthe right of parents to direct the education of their children and the
right of free exercise of religion. Under the Courts opinion in Smith, the right of free
exercise of religion standing alone would not allow Amish parents to disregard the
compulsory school attendance law, and under the Courts opinion in Yoder, parents
whose objection to the law was not religious would also have to obey it. The fatal flaw in
this argument, however, is that if two constitutional claims will fail on its own, how would
it prevail if combined?
99
As for Sherbert, the Smith Court attempted to limit its doctrine as
applicable only to denials of unemployment compensation benefits where the religiously-
compelled conduct that leads to job loss is not a violation of criminal law. And yet, this is
precisely why the rejection of Sherbert was so damaging in its effect: the religious
person was more likely to be entitled to constitutional protection when forced to choose
between religious conscience and going to jail than when forced to choose between
religious conscience and financial loss.
100

Thus, the Smith decision elicited much negative public reaction especially from the
religious community, and commentaries insisted that the Court was allowing the Free
Exercise Clause to disappear.
101
So much was the uproar that a majority in Congress
was convinced to enact the Religious Freedom Restoration Act (RFRA) of 1993.
102
The
RFRA was adopted to negate the Smith test and require strict scrutiny for free exercise
claims. Indeed, the findings section of the Act notes that Smith "virtually eliminated the
requirement that the government justify burdens on religious exercise imposed by laws
neutral toward religion."
103
The Act declares that its purpose is to restore the compelling
interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder, and to guarantee
its application in all cases where free exercise of religion is substantially burdened; and
to provide a claim of defense to a person whose religious exercise is substantially
burdened by government.
104
The RFRA thus sought to overrule Smith and make strict
scrutiny the test for all free exercise clause claims.
105

In the City of Boerne v. Flores,
106
the U.S. Supreme Court declared the RFRA
unconstitutional, ruling that Congress had exceeded its power under the Fourteenth
Amendment in enacting the law. The Court ruled that Congress is empowered to enact
laws "to enforce the amendment," but Congress is not "enforcing" when it creates new
constitutional rights or expands the scope of rights.
107

City of Boerne also drew public backlash as the U.S. Supreme Court was accused of
lack of judicial respect for the constitutional decision-making by a coordinate branch of
government. In Smith, Justice Scalia wrote:
"Values that are protected against governmental interference through enshrinement in
the Bill of Rights are not thereby banished from the political process. Just as society
believes in the negative protection accorded to the press by the First Amendment is
likely to enact laws that affirmatively foster the dissemination of the printed word, so also
a society that believes in the negative protection accorded to religious belief can be
expected to be solicitous of that value in its legislation as well."
By invalidating RFRA, the Court showed a marked disrespect of the solicitude of a
nearly unanimous Congress. Contrary to the Courts characterization of the RFRA as a
kind of usurpation of the judicial power to say what the Constitution means, the law
offered no definition of Free Exercise, and on its face appeared to be a procedural
measure establishing a standard of proof and allocating the duty of meeting it. In effect,
the Court ruled that Congress had no power in the area of religion. And yet, Free
Exercise exists in the First Amendment as a negative on Congress. The power of
Congress to act towards the states in matters of religion arises from the Fourteenth
Amendment.
108

From the foregoing, it can be seen that Smith, while expressly recognizing the power of
legislature to give accommodations, is in effect contrary to the benevolent neutrality or
accommodation approach. Moreover, if we consider the history of the incorporation of
the religion clauses in the U.S., the decision in Smith is grossly inconsistent with the
importance placed by the framers on religious faith. Smith is dangerous precedent
because it subordinates fundamental rights of religious belief and practice to all neutral,
general legislation. Sherbert recognized the need to protect religious exercise in light of
the massive increase in the size of government, the concerns within its reach, and the
number of laws administered by it. However, Smith abandons the protection of religious
exercise at a time when the scope and reach of government has never been greater. It
has been pointed out that Smith creates the legal framework for persecution: through
general, neutral laws, legislatures are now able to force conformity on religious
minorities whose practice irritate or frighten an intolerant majority.
109

The effect of Smith is to erase entirely the concept of mandatory accommodations,
thereby emasculating the Free Exercise Clause. Smith left religious freedom for many in
the hands of the political process, exactly where it would be if the religion clauses did not
exist in the Bill of Rights. Like most protections found in the Bill of Rights, the religion
clauses of the First Amendment are most important to those who cannot prevail in the
political process. The Court in Smith ignores the fact that the protections found in the Bill
of Rights were deemed too important to leave to the political process. Because
mainstream religions generally have been successful in protecting their interests through
the political process, it is the non-mainstream religions that are adversely affected by
Smith. In short, the U.S. Supreme Court has made it clear to such religions that they
should not look to the First Amendment for religious freedom.
110

(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those which are
found to be constitutionally compelled, i.e., required by the Free Exercise Clause; (b)
those which are discretionary or legislative, i.e., not required by the Free Exercise
Clause but nonetheless permitted by the Establishment Clause; and (c) those which the
religion clauses prohibit.
111

Mandatory accommodation results when the Court finds that accommodation is required
by the Free Exercise Clause, i.e, when the Court itself carves out an exemption. This
accommodation occurs when all three conditions of the compelling interest test are met,
i.e, a statute or government action has burdened claimants free exercise of religion, and
there is no doubt as to the sincerity of the religious belief; the state has failed to
demonstrate a particularly important or compelling governmental goal in preventing an
exemption; and that the state has failed to demonstrate that it used the least restrictive
means. In these cases, the Court finds that the injury to religious conscience is so great
and the advancement of public purposes is incomparable that only indifference or
hostility could explain a refusal to make exemptions. Thus, if the states objective could
be served as well or almost as well by granting an exemption to those whose religious
beliefs are burdened by the regulation, the Court must grant the exemption. The Yoder
case is an example where the Court held that the state must accommodate the religious
beliefs of the Amish who objected to enrolling their children in high school as required by
law. The Sherbert case is another example where the Court held that the state
unemployment compensation plan must accommodate the religious convictions of
Sherbert.
112

In permissive accommodation, the Court finds that the State may, but is not required to,
accommodate religious interests. The U.S. Walz case illustrates this situation where the
U.S. Supreme Court upheld the constitutionality of tax exemption given by New York to
church properties, but did not rule that the state was required to provide tax exemptions.
The Court declared that "(t)he limits of permissible state accommodation to religion are
by no means co-extensive with the noninterference mandated by the Free Exercise
Clause."
113
Other examples are Zorach v. Clauson,
114
allowing released time in public
schools and Marsh v. Chambers,
115
allowing payment of legislative chaplains from public
funds. Parenthetically, the Court in Smith has ruled that this is the only accommodation
allowed by the Religion Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it determines
that the legislative accommodation runs afoul of the establishment or the free exercise
clause, it results to a prohibited accommodation. In this case, the Court finds that
establishment concerns prevail over potential accommodation interests. To say that
there are valid exemptions buttressed by the Free Exercise Clause does not mean that
all claims for free exercise exemptions are valid.
116
An example where accommodation
was prohibited is McCollum v. Board of Education,
117
where the Court ruled against
optional religious instruction in the public school premises.
118

Given that a free exercise claim could lead to three different results, the question now
remains as to how the Court should determine which action to take. In this regard, it is
the strict scrutiny-compelling state interest test which is most in line with the benevolent
neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First Amendment is
that freedom to carry out ones duties to a Supreme Being is an inalienable right, not one
dependent on the grace of legislature. Religious freedom is seen as a substantive right
and not merely a privilege against discriminatory legislation. With religion looked upon
with benevolence and not hostility, benevolent neutrality allows accommodation of
religion under certain circumstances.
Considering that laws nowadays are rarely enacted specifically to disable religious belief
or practice, free exercise disputes arise commonly when a law that is religiously neutral
and generally applicable on its face is argued to prevent or burden what someones
religious faith requires, or alternatively, requires someone to undertake an act that faith
would preclude. In essence, then, free exercise arguments contemplate religious
exemptions from otherwise general laws.
119

Strict scrutiny is appropriate for free exercise challenges because "[t]he compelling
interest test reflects the First Amendments mandate of preserving religious liberty to the
fullest extent possible in a pluralistic society.
120
Underlying the compelling state interest
test is the notion that free exercise is a fundamental right and that laws burdening it
should be subject to strict scrutiny.
121

In its application, the compelling state interest test follows a three-step process,
summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free exercise of his
religious beliefs, the burden shifts to the government to demonstrate that the law or
practice is necessary to the accomplishment of some important (or compelling) secular
objective and that it is the least restrictive means of achieving that objective. If the
plaintiff meets this burden and the government does not, the plaintiff is entitled to
exemption from the law or practice at issue. In order to be protected, the claimants
beliefs must be sincere, but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimants religious denomination. Only
beliefs rooted in religion are protected by the Free Exercise Clause; secular beliefs,
however sincere and conscientious, do not suffice.
122

In sum, the U.S. Court has invariably decided claims based on the religion clauses using
either the separationist approach, or the benevolent neutrality approach. The benevolent
neutrality approach has also further been split by the view that the First Amendment
requires accommodation, or that it only allows permissible legislative accommodations.
The current prevailing view as pronounced in Smith, however, is that that there are no
required accommodation under the First Amendment, although it permits of legislative
accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence and Practice
a. US Constitution and jurisprudence vis--vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that of the
Philippines, it is immediately clear that one cannot simply conclude that we have
adoptedlock, stock and barrelthe religion clauses as embodied in the First
Amendment, and therefore, the U.S. Courts interpretation of the same. Unlike in the
U.S. where legislative exemptions of religion had to be upheld by the U.S. Supreme
Court as constituting permissive accommodations, similar exemptions for religion are
mandatory accommodations under our own constitutions. Thus, our 1935, 1973 and
1987 Constitutions contain provisions on tax exemption of church property,
123
salary of
religious officers in government institutions,
124
and optional religious instruction.
125
Our
own preamble also invokes the aid of a divine being.
126
These constitutional provisions
are wholly ours and have no counterpart in the U.S. Constitution or its amendments.
They all reveal without doubt that the Filipino people, in adopting these constitutions,
manifested their adherence to the benevolent neutrality approach that requires
accommodations in interpreting the religion clauses.
127

The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was erroneous
insofar as it asserted that the 1935 Constitution incorporates the Walz ruling as this case
was decided subsequent to the 1935 Constitution is a misreading of the ponencia. What
the ponencia pointed out was that even as early as 1935, or more than three decades
before the U.S. Court could validate the exemption in Walz as a form or permissible
accommodation, we have already incorporated the same in our Constitution, as a
mandatory accommodation.
There is no ambiguity with regard to the Philippine Constitutions departure from the U.S.
Constitution, insofar as religious accommodations are concerned. It is indubitable that
benevolent neutrality-accommodation, whether mandatory or permissive, is the spirit,
intent and framework underlying the Philippine Constitution.
128
As stated in our Decision,
dated August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these clauses
were largely adopted from the First Amendment of the U.S. Constitution xxxx Philippine
jurisprudence and commentaries on the religious clauses also continued to borrow
authorities from U.S. jurisprudence without articulating the stark distinction between the
two streams of U.S. jurisprudence [i.e., separation and benevolent neutrality]. One might
simply conclude that the Philippine Constitutions and jurisprudence also inherited the
disarray of U.S. religion clause jurisprudence and the two identifiable streams; thus,
when a religion clause case comes before the Court, a separationist approach or a
benevolent neutrality approach might be adopted and each will have U.S. authorities to
support it. Or, one might conclude that as the history of the First Amendment as narrated
by the Court in Everson supports the separationist approach, Philippine jurisprudence
should also follow this approach in light of the Philippine religion clauses history. As a
result, in a case where the party claims religious liberty in the face of a general law that
inadvertently burdens his religious exercise, he faces an almost insurmountable wall in
convincing the Court that the wall of separation would not be breached if the Court
grants him an exemption. These conclusions, however, are not and were never
warranted by the 1987, 1973 and 1935 Constitutions as shown by other provisions on
religion in all three constitutions. It is a cardinal rule in constitutional construction that the
constitution must be interpreted as a whole and apparently conflicting provisions should
be reconciled and harmonized in a manner that will give to all of them full force and
effect. From this construction, it will be ascertained that the intent of the framers was to
adopt a benevolent neutrality approach in interpreting the religious clauses in the
Philippine constitutions, and the enforcement of this intent is the goal of construing the
constitution.
129
[citations omitted]
We therefore reject Mr. Justice Carpios total adherence to the U.S. Courts
interpretation of the religion clauses to effectively deny accommodations on the sole
basis that the law in question is neutral and of general application. For even if it were
true that "an unbroken line of U.S. Supreme Court decisions" has never held that "an
individuals religious beliefs [do not] excuse him from compliance with an otherwise valid
law prohibiting conduct that the State is free to regulate," our own Constitutions have
made significant changes to accommodate and exempt religion. Philippine jurisprudence
shows that the Court has allowed exemptions from a law of general application, in effect,
interpreting our religion clauses to cover both mandatory and permissive
accommodations.
130

To illustrate, in American Bible Society v. City of Manila,
131
the Court granted to plaintiff
exemption from a law of general application based on the Free Exercise Clause. In this
case, plaintiff was required by an ordinance to secure a mayors permit and a municipal
license as ordinarily required of those engaged in the business of general merchandise
under the citys ordinances. Plaintiff argued that this amounted to "religious censorship
and restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of the
Philippines." Although the Court categorically held that the questioned ordinances were
not applicable to plaintiff as it was not engaged in the business or occupation of selling
said "merchandise" for profit, it also ruled that applying the ordinance to plaintiff and
requiring it to secure a license and pay a license fee or tax would impair its free exercise
of religious profession and worship and its right of dissemination of religious beliefs "as
the power to tax the exercise of a privilege is the power to control or suppress its
enjoyment." The decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious profession
and worship carries with it the right to disseminate religious information. Any restraint of
such right can only be justified like other restraints of freedom of expression on the
grounds that there is a clear and present danger of any substantive evil which the State
has the right to prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The Division
Superintendent of Schools.
132
The case involved several Jehovahs Witnesses who were
expelled from school for refusing to salute the flag, sing the national anthem and recite
the patriotic pledge, in violation of the Administrative Code of 1987. In resolving the
religious freedom issue, a unanimous Court overturned an earlier ruling denying such
exemption,
133
using the "grave and imminent danger" test, viz:
The sole justification for a prior restraint or limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio Teehankee in his dissenting opinion in
German v. Barangan, 135 SCRA 514, 517) is the existence of a grave and present
danger of a character both grave and imminent, of a serious evil to public safety, public
morals, public health or any other legitimate public interest, that the State has a right
(and duty) to prevent. Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified.
134
(emphases supplied)
In these two cases, the Court itself carved out an exemption from a law of general
application, on the strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The case of
Victoriano v. Elizalde Rope Workers Union
135
is an example of the application of Mr.
Justice Carpios theory of permissive accommodation, where religious exemption is
granted by a legislative act. In Victoriano, the constitutionality of Republic Act No. 3350
was questioned. The said R.A. exempt employees from the application and coverage of
a closed shop agreementmandated in another lawbased on religious objections. A
unanimous Court upheld the constitutionality of the law, holding that "government is not
precluded from pursuing valid objectives secular in character even if the incidental result
would be favorable to a religion or sect." Interestingly, the secular purpose of the
challenged law which the Court upheld was the advancement of "the constitutional right
to the free exercise of religion."
136

Having established that benevolent neutrality-accommodation is the framework by which
free exercise cases must be decided, the next question then turned to the test that
should be used in ascertaining the limits of the exercise of religious freedom. In our
Decision dated August 4, 2003, we reviewed our jurisprudence, and ruled that in cases
involving purely conduct based on religious belief, as in the case at bar, the compelling
state interest test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits. Beginning
with the first case on the Free Exercise Clause, American Bible Society, the Court
mentioned the "clear and present danger" test but did not employ it. Nevertheless, this
test continued to be cited in subsequent cases on religious liberty. The Gerona case
then pronounced that the test of permissibility of religious freedom is whether it violates
the established institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least restrictive means
to accomplish the goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano, German went back to the Gerona rule.
Ebralinag then employed the "grave and immediate danger" test and overruled the
Gerona test. The fairly recent case of Iglesia ni Cristo went back to the "clear and
present danger" test in the maiden case of American Bible Society. Not surprisingly, all
the cases which employed the "clear and present danger" or "grave and immediate
danger" test involved, in one form or another, religious speech as this test is often used
in cases on freedom of expression. On the other hand, the Gerona and German cases
set the rule that religious freedom will not prevail over established institutions of society
and law. Gerona, however, which was the authority cited by German has been overruled
by Ebralinag which employed the "grave and immediate danger" test. Victoriano was the
only case that employed the "compelling state interest" test, but as explained previously,
the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society, Ebralinag and
Iglesia ni Cristo where the "clear and present danger" and "grave and immediate
danger" tests were appropriate as speech has easily discernible or immediate effects.
The Gerona and German doctrine, aside from having been overruled, is not congruent
with the benevolent neutrality approach, thus not appropriate in this jurisdiction. Similar
to Victoriano, the present case involves purely conduct arising from religious belief. The
"compelling state interest" test is proper where conduct is involved for the whole gamut
of human conduct has different effects on the states interests: some effects may be
immediate and short-term while others delayed and far-reaching. A test that would
protect the interests of the state in preventing a substantive evil, whether immediate or
delayed, is therefore necessary. However, not any interest of the state would suffice to
prevail over the right to religious freedom as this is a fundamental right that enjoys a
preferred position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of
limited government is premised upon an acknowledgment of such higher sovereignty,
thus the Filipinos implore the "aid of Almighty God in order to build a just and humane
society and establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere balancing of
interests which balances a right with just a colorable state interest is therefore not
appropriate. Instead, only a compelling interest of the state can prevail over the
fundamental right to religious liberty. The test requires the state to carry a heavy burden,
a compelling one, for to do otherwise would allow the state to batter religion, especially
the less powerful ones until they are destroyed. In determining which shall prevail
between the states interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty while at the
same time affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end,
the "compelling state interest" test, by upholding the paramount interests of the state,
seeks to protect the very state, without which, religious liberty will not be
preserved.
137
(citations omitted)
At this point, we take note of Mr. Justice Carpios dissent, which, while loosely disputing
the applicability of the benevolent neutrality framework and compelling state interest test,
states that "[i]t is true that a test needs to be applied by the Court in determining the
validity of a free exercise claim of exemption as made here by Escritor." This assertion is
inconsistent with the position negating the benevolent neutrality or accommodation
approach. If it were true, indeed, that the religion clauses do not require
accommodations based on the free exercise of religion, then there would be no need for
a test to determine the validity of a free exercise claim, as any and all claims for religious
exemptions from a law of general application would fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction between permissive
accommodation and mandatory accommodation is more critically important in analyzing
free exercise exemption claims because it forces the Court to confront how far it can
validly set the limits of religious liberty under the Free Exercise Clause, rather than
presenting the separation theory and accommodation theory as opposite concepts, and
then rejecting relevant and instructive American jurisprudence (such as the Smith case)
just because it does not espouse the theory selected." He then asserts that the Smith
doctrine cannot be dismissed because it does not really espouse the strict neutrality
approach, but more of permissive accommodation.
Mr. Justice Carpios assertion misses the point. Precisely because the doctrine in Smith
is that only legislative accommodations are allowed under the Free Exercise Clause, it
cannot be used in determining a claim of religion exemption directly anchored on the
Free Exercise Clause. Thus, even assuming that the Smith doctrine actually espouses
the theory of accommodation or benevolent neutrality, the accommodation is limited to
the permissive, or legislative exemptions. It, therefore, cannot be used as a test in
determining the claims of religious exemptions directly under the Free Exercise Clause
because Smith does not recognize such exemption. Moreover, Mr. Justice Carpios
advocacy of the Smith doctrine would effectively render the Free Exercise protectiona
fundamental right under our Constitutionnugatory because he would deny its status as
an independent source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step process. We
explained this process in detail, by showing the questions which must be answered in
each step, viz:
First, "[H]as the statute or government action created a burden on the free exercise of
religion?" The courts often look into the sincerity of the religious belief, but without
inquiring into the truth of the belief because the Free Exercise Clause prohibits inquiring
about its truth as held in Ballard and Cantwell. The sincerity of the claimants belief is
ascertained to avoid the mere claim of religious beliefs to escape a mandatory
regulation. xxx
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently compelling state interest to justify this
infringement of religious liberty?" In this step, the government has to establish that its
purposes are legitimate for the state and that they are compelling. Government must do
more than assert the objectives at risk if exemption is given; it must precisely show how
and to what extent those objectives will be undermined if exemptions are granted. xxx
xxx xxx xxx
Third, the court asks: "[H]as the state in achieving its legitimate purposes used the least
intrusive means possible so that the free exercise is not infringed any more than
necessary to achieve the legitimate goal of the state?" The analysis requires the state to
show that the means in which it is achieving its legitimate state objective is the least
intrusive means, i.e., it has chosen a way to achieve its legitimate state end that imposes
as little as possible on religious liberties xxx.
138
[citations omitted]
Again, the application of the compelling state interest test could result to three situations
of accommodation: First, mandatory accommodation would result if the Court finds that
accommodation is required by the Free Exercise Clause. Second, if the Court finds that
the State may, but is not required to, accommodate religious interests, permissive
accommodation results. Finally, if the Court finds that that establishment concerns
prevail over potential accommodation interests, then it must rule that the accommodation
is prohibited.
One of the central arguments in Mr. Justice Carpios dissent is that only permissive
accommodation can carve out an exemption from a law of general application. He posits
the view that the law should prevail in the absence of a legislative exemption, and the
Court cannot make the accommodation or exemption.
Mr. Justice Carpios position is clearly not supported by Philippine jurisprudence. The
cases of American Bible Society, Ebralinag, and Victoriano demonstrate that our
application of the doctrine of benevolent neutrality-accommodation covers not only the
grant of permissive, or legislative accommodations, but also mandatory
accommodations. Thus, an exemption from a law of general application is possible, even
if anchored directly on an invocation of the Free Exercise Clause alone, rather than a
legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet wherein the
Court granted an accommodation/exemption to a religious act from the application of
general penal laws, permissive accommodation based on religious freedom has been
granted with respect to one of the crimes penalized under the Revised Penal Code, that
of bigamy.
In the U.S. case of Reynolds v. United States,
139
the U.S. Court expressly denied to
Mormons an exemption from a general federal law criminalizing polygamy, even if it was
proven that the practice constituted a religious duty under their faith.
140
In
contradistinction, Philippine law accommodates the same practice among Moslems,
through a legislative act. For while the act of marrying more than one still constitutes
bigamy under the Revised Penal Code, Article 180 of P.D. No. 1083, otherwise known
as the Code of Muslim Personal Laws of the Philippines, provides that the penal laws
relative to the crime of bigamy "shall not apply to a person marriedunder Muslim law."
Thus, by legislative action, accommodation is granted of a Muslim practice which would
otherwise violate a valid and general criminal law. Mr. Justice Carpio recognized this
accommodation when, in his dissent in our Decision dated August 4, 2003 and citing
Sulu Islamic Association of Masjid Lambayong v. Malik,
141
he stated that a Muslim Judge
"is not criminally liable for bigamy because Sharia law allows a Muslim to have more
than one wife."
From the foregoing, the weakness of Mr. Justice Carpios "permissive-accommodation
only" advocacy in this jurisdiction becomes manifest. Having anchored his argument on
the Smith doctrine that "the guaranty of religious liberty as embodied in the Free
Exercise Clause does not require the grant of exemptions from generally applicable laws
to individuals whose religious practice conflict with those laws," his theory is infirmed by
the showing that the benevolent neutrality approach which allows for both mandatory
and permissive accommodations was unequivocally adopted by our framers in the
Philippine Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-only" stance
is the antithesis to the notion that religion clauses, like the other fundamental liberties
found in the Bill or Rights, is a preferred right and an independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the test in
Sherbert is not applicable when the law in question is a generally applicable criminal law.
Stated differently, even if Mr. Justice Carpio conceded that there is no question that in
the Philippine context, accommodations are made, the question remains as to how far
the exemptions will be made and who would make these exemptions.
On this point, two things must be clarified: first, in relation to criminal statutes, only the
question of mandatory accommodation is uncertain, for Philippine law and jurisprudence
have, in fact, allowed legislative accommodation. Second, the power of the Courts to
grant exemptions in general (i.e., finding that the Free Exercise Clause required the
accommodation, or mandatory accommodations) has already been decided, not just
once, but twice by the Court. Thus, the crux of the matter is whether this Court can make
exemptions as in Ebralinag and the American Bible Society, in cases involving criminal
laws of general application.
We hold that the Constitution itself mandates the Court to do so for the following
reasons.
First, as previously discussed, while the U.S. religion clauses are the precursors to the
Philippine religion clauses, the benevolent neutrality-accommodation approach in
Philippine jurisdiction is more pronounced and given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the notion of
mandatory accommodations, was to address the "inadvertent burdensome effect" that
an otherwise facially neutral law would have on religious exercise. Just because the law
is criminal in nature, therefore, should not bring it out of the ambit of the Free Exercise
Clause. As stated by Justice OConnor in her concurring opinion in Smith, "[t]here is
nothing talismanic about neutral laws of general applicability or general criminal
prohibitions, for laws neutral towards religion can coerce a person to violate his religious
conscience or intrude upon his religious duties just as effectively as laws aimed at
religion."
142

Third, there is wisdom in accommodation made by the Court as this is the recourse of
minority religions who are likewise protected by the Free Exercise Clause. Mandatory
accommodations are particularly necessary to protect adherents of minority religions
from the inevitable effects of majoritarianism, which include ignorance and indifference
and overt hostility to the minority. As stated in our Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the presuppositions of the
majority, thus not infrequently, they come into conflict with the religious scruples of those
holding different world views, even in the absence of a deliberate intent to interfere with
religious practice. At times, this effect is unavoidable as a practical matter because some
laws are so necessary to the common good that exceptions are intolerable. But in other
instances, the injury to religious conscience is so great and the advancement of public
purposes so small or incomparable that only indifference or hostility could explain a
refusal to make exemptions. Because of plural traditions, legislators and executive
officials are frequently willing to make such exemptions when the need is brought to their
attention, but this may not always be the case when the religious practice is either
unknown at the time of enactment or is for some reason unpopular. In these cases, a
constitutional interpretation that allows accommodations prevents needless injury to the
religious consciences of those who can have an influence in the legislature; while a
constitutional interpretation that requires accommodations extends this treatment to
religious faiths that are less able to protect themselves in the political arena.
Fourth, exemption from penal laws on account of religion is not entirely an alien concept,
nor will it be applied for the first time, as an exemption of such nature, albeit by
legislative act, has already been granted to Moslem polygamy and the criminal law of
bigamy.
Finally, we must consider the language of the Religion Clauses vis--vis the other
fundamental rights in the Bill of Rights. It has been noted that unlike other fundamental
rights like the right to life, liberty or property, the Religion Clauses are stated in absolute
terms, unqualified by the requirement of "due process," "unreasonableness," or "lawful
order." Only the right to free speech is comparable in its absolute grant. Given the
unequivocal and unqualified grant couched in the language, the Court cannot simply
dismiss a claim of exemption based on the Free Exercise Clause, solely on the premise
that the law in question is a general criminal law.
143
If the burden is great and the
sincerity of the religious belief is not in question, adherence to the benevolent neutrality-
accommodation approach require that the Court make an individual determination and
not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent neutrality-
accommodation approach does not mean that the Court ought to grant exemptions
every time a free exercise claim comes before it. This is an erroneous reading of the
framework which the dissent of Mr. Justice Carpio seems to entertain. Although
benevolent neutrality is the lens with which the Court ought to view religion clause
cases, the interest of the state should also be afforded utmost protection. This is
precisely the purpose of the testto draw the line between mandatory, permissible and
forbidden religious exercise. Thus, under the framework, the Court cannot simply
dismiss a claim under the Free Exercise Clause because the conduct in question
offends a law or the orthodox view, as proposed by Mr. Justice Carpio, for this precisely
is the protection afforded by the religion clauses of the Constitution.
144
As stated in the
Decision:
xxx While the Court cannot adopt a doctrinal formulation that can eliminate the difficult
questions of judgment in determining the degree of burden on religious practice or
importance of the state interest or the sufficiency of the means adopted by the state to
pursue its interest, the Court can set a doctrine on the ideal towards which religious
clause jurisprudence should be directed. We here lay down the doctrine that in
Philippine jurisdiction, we adopt the benevolent neutrality approach not only because of
its merits as discussed above, but more importantly, because our constitutional history
and interpretation indubitably show that benevolent neutrality is the launching pad from
which the Court should take off in interpreting religion clause cases. The ideal towards
which this approach is directed is the protection of religious liberty "not only for a
minority, however small- not only for a majority, however large but for each of us" to the
greatest extent possible within flexible constitutional limits.
145

II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As mentioned,
what remained to be resolved, upon which remand was necessary, pertained to the final
task of subjecting this case to the careful application of the compelling state interest test,
i.e., determining whether respondent is entitled to exemption, an issue which is
essentially factual or evidentiary in nature.
After the termination of further proceedings with the OCA, and with the transmittal of the
Hearing Officers report,
146
along with the evidence submitted by the OSG, this case is
once again with us, to resolve the penultimate question of whether respondent should be
found guilty of the administrative charge of "disgraceful and immoral conduct." It is at this
point then that we examine the report and documents submitted by the hearing officer of
this case, and apply the three-step process of the compelling state interest test based on
the evidence presented by the parties, especially the government.
On the sincerity of religious belief, the Solicitor General categorically concedes that the
sincerity and centrality of respondents claimed religious belief and practice are beyond
serious doubt.
147
Thus, having previously established the preliminary conditions required
by the compelling state interest test, i.e., that a law or government practice inhibits the
free exercise of respondents religious beliefs, and there being no doubt as to the
sincerity and centrality of her faith to claim the exemption based on the free exercise
clause, the burden shifted to the government to demonstrate that the law or practice
justifies a compelling secular objective and that it is the least restrictive means of
achieving that objective.
A look at the evidence that the OSG has presented fails to demonstrate "the gravest
abuses, endangering paramount interests" which could limit or override respondents
fundamental right to religious freedom. Neither did the government exert any effort to
show that the means it seeks to achieve its legitimate state objective is the least
intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" and submarking The September 30, 2003 Letter to the OSG of
Bro. Raymond B. Leach, Legal Representative of the Watch Tower Bible and Tract
Society of the Philippines, Inc.
Purpose: To show that the OSG exerted efforts to examine the sincerity and centrality of
respondents claimed religious belief and practice.
2. Exhibit "B-OSG" and submarking The duly notarized certification dated September
30, 2003 issued and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondents claimed
religious belief and practice; and (2) to prove that the Declaration of Pledging
Faithfulness, being a purely internal arrangement within the congregation of the
Jehovahs Witnesses, cannot be a source of any legal protection for respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a compelling
interest to override respondents claimed religious belief and practice, in order to protect
marriage and the family as basic social institutions. The Solicitor General, quoting the
Constitution
148
and the Family Code,
149
argues that marriage and the family are so
crucial to the stability and peace of the nation that the conjugal arrangement embraced
in the Declaration of Pledging Faithfulness should not be recognized or given effect, as
"it is utterly destructive of the avowed institutions of marriage and the family for it
reduces to a mockery these legally exalted and socially significant institutions which in
their purity demand respect and dignity."
150

Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the Solicitor General
in so far as he asserts that the State has a compelling interest in the preservation of
marriage and the family as basic social institutions, which is ultimately the public policy
underlying the criminal sanctions against concubinage and bigamy. He also argues that
in dismissing the administrative complaint against respondent, "the majority opinion
effectively condones and accords a semblance of legitimacy to her patently unlawful
cohabitation..." and "facilitates the circumvention of the Revised Penal Code." According
to Mr. Justice Carpio, by choosing to turn a blind eye to respondents criminal conduct,
the majority is in fact recognizing a practice, custom or agreement that subverts
marriage. He argues in a similar fashion as regards the states interest in the sound
administration of justice.
There has never been any question that the state has an interest in protecting the
institutions of marriage and the family, or even in the sound administration of justice.
Indeed, the provisions by which respondents relationship is said to have impinged, e.g.,
Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code, Articles
334 and 349 of the Revised Penal Code, and even the provisions on marriage and
family in the Civil Code and Family Code, all clearly demonstrate the States need to
protect these secular interests.
Be that as it may, the free exercise of religion is specifically articulated as one of the
fundamental rights in our Constitution. It is a fundamental right that enjoys a preferred
position in the hierarchy of rights "the most inalienable and sacred of human rights,"
in the words of Jefferson. Hence, it is not enough to contend that the states interest is
important, because our Constitution itself holds the right to religious freedom sacred.
The State must articulate in specific terms the state interest involved in preventing the
exemption, which must be compelling, for only the gravest abuses, endangering
paramount interests can limit the fundamental right to religious freedom. To rule
otherwise would be to emasculate the Free Exercise Clause as a source of right by
itself.
Thus, it is not the States broad interest in "protecting the institutions of marriage and the
family," or even "in the sound administration of justice" that must be weighed against
respondents claim, but the States narrow interest in refusing to make an exception for
the cohabitation which respondents faith finds moral. In other words, the government
must do more than assert the objectives at risk if exemption is given; it must precisely
show how and to what extent those objectives will be undermined if exemptions are
granted.
151
This, the Solicitor General failed to do.
To paraphrase Justice Blackmuns application of the compelling interest test, the States
interest in enforcing its prohibition, in order to be sufficiently compelling to outweigh a
free exercise claim, cannot be merely abstract or symbolic. The State cannot plausibly
assert that unbending application of a criminal prohibition is essential to fulfill any
compelling interest, if it does not, in fact, attempt to enforce that prohibition. In the case
at bar, the State has not evinced any concrete interest in enforcing the concubinage or
bigamy charges against respondent or her partner. The State has never sought to
prosecute respondent nor her partner. The States asserted interest thus amounts only
to the symbolic preservation of an unenforced prohibition. Incidentally, as echoes of the
words of Messrs. J. Bellosillo and Vitug, in their concurring opinions in our Decision,
dated August 4, 2003, to deny the exemption would effectively break up "an otherwise
ideal union of two individuals who have managed to stay together as husband and wife
[approximately twenty-five years]" and have the effect of defeating the very substance of
marriage and the family.
The Solicitor General also argued against respondents religious freedom on the basis of
morality, i.e., that "the conjugal arrangement of respondent and her live-in partner should
not be condoned because adulterous relationships are constantly frowned upon by
society";
152
and "that State laws on marriage, which are moral in nature, take clear
precedence over the religious beliefs and practices of any church, religious sect or
denomination on marriage. Verily, religious beliefs and practices should not be permitted
to override laws relating to public policy such as those of marriage."
153

The above arguments are mere reiterations of the arguments raised by Mme. Justice
Ynares-Santiago in her dissenting opinion to our Decision dated August 4, 2003, which
she offers again in toto. These arguments have already been addressed in our decision
dated August 4, 2003.
154
In said Decision, we noted that Mme. Justice Ynares-
Santiagos dissenting opinion dwelt more on the standards of morality, without
categorically holding that religious freedom is not in issue.
155
We, therefore, went into a
discussion on morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions.
156
Thus, when the law speaks of
"immorality" in the Civil Service Law or "immoral" in the Code of Professional
Responsibility for lawyers,
157
or "public morals" in the Revised Penal Code,
158
or
"morals" in the New Civil Code,
159
or "moral character" in the Constitution,
160
the
distinction between public and secular morality on the one hand, and religious
morality, on the other, should be kept in mind;
161

(b) Although the morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion, provided it does not
offend compelling state interests;
162

(c) The jurisdiction of the Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority.
163

(d) Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under this
public and secular morality fall under the phrase "disgraceful and immoral
conduct" for which a government employee may be held administratively
liable.
164
Only one conduct is in question before this Court, i.e., the conjugal
arrangement of a government employee whose partner is legally married to
another which Philippine law and jurisprudence consider both immoral and
illegal.
165

(e) While there is no dispute that under settled jurisprudence, respondents
conduct constitutes "disgraceful and immoral conduct," the case at bar involves
the defense of religious freedom, therefore none of the cases cited by Mme.
Justice Ynares-Santiago apply.
166
There is no jurisprudence in Philippine
jurisdiction holding that the defense of religious freedom of a member of the
Jehovahs Witnesses under the same circumstances as respondent will not
prevail over the laws on adultery, concubinage or some other law. We cannot
summarily conclude therefore
that her conduct is likewise so "odious" and "barbaric" as to be immoral and punishable
by law.
167

Again, we note the arguments raised by Mr. Justice Carpio with respect to charging
respondent with conduct prejudicial to the best interest of the service, and we reiterate
that the dissent offends due process as respondent was not given an opportunity to
defend herself against the charge of "conduct prejudicial to the best interest of the
service." Indeed, there is no evidence of the alleged prejudice to the best interest of the
service.
168

Mr. Justice Carpios slippery slope argument, on the other hand, is non-sequitur. If the
Court grants respondent exemption from the laws which respondent Escritor has been
charged to have violated, the exemption would not apply to Catholics who have secured
church annulment of their marriage even without a final annulment from a civil court.
First, unlike Jehovahs Witnesses, the Catholic faith considers cohabitation without
marriage as immoral. Second, but more important, the Jehovahs Witnesses have
standards and procedures which must be followed before cohabitation without marriage
is given the blessing of the congregation. This includes an investigative process whereby
the elders of the congregation verify the circumstances of the declarants. Also, the
Declaration is not a blanket authority to cohabit without marriage because once all legal
impediments for the couple are lifted, the validity of the Declaration ceases, and the
congregation requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative.
Nevertheless, insofar as he raises the issue of equality among religions, we look to the
words of the Religion Clauses, which clearly single out religion for both a benefit and a
burden: "No law shall be made respecting an establishment of religion, or prohibiting the
free exercise thereof" On its face, the language grants a unique advantage to religious
conduct, protecting it from governmental imposition; and imposes a unique
disadvantage, preventing the government from supporting it. To understand this as a
provision which puts religion on an equal footing with other bases for action seems to be
a curious reading. There are no "free exercise" of "establishment" provisions for science,
sports, philosophy, or family relations. The language itself thus seems to answer
whether we have a paradigm of equality or liberty; the language of the Clause is clearly
in the form of a grant of liberty.
169

In this case, the governments conduct may appear innocent and nondiscriminatory but
in effect, it is oppressive to the minority. In the interpretation of a document, such as the
Bill of Rights, designed to protect the minority from the majority, the question of which
perspective is appropriate would seem easy to answer. Moreover, the text, history,
structure and values implicated in the interpretation of the clauses, all point toward this
perspective. Thus, substantive equalitya reading of the religion clauses which leaves
both politically dominant and the politically weak religious groups equal in their inability
to use the government (law) to assist their own religion or burden othersmakes the
most sense in the interpretation of the Bill of Rights, a document designed to protect
minorities and individuals from mobocracy in a democracy (the majority or a coalition of
minorities).
170

As previously discussed, our Constitution adheres to the benevolent neutrality approach
that gives room for accommodation of religious exercises as required by the Free
Exercise Clause.
171
Thus, in arguing that respondent should be held administratively
liable as the arrangement she had was "illegal per se because, by universally recognized
standards, it is inherently or by its very nature bad, improper, immoral and contrary to
good conscience,"
172
the Solicitor General failed to appreciate that benevolent neutrality
could allow for accommodation of morality based on religion, provided it does not offend
compelling state interests.
173

Finally, even assuming that the OSG has proved a compelling state interest, it has to
further demonstrate that the state has used the least intrusive means possible so that
the free exercise is not infringed any more than necessary to achieve the legitimate goal
of the state, i.e., it has chosen a way to achieve its legitimate state end that imposes as
little as possible on religious liberties.
174
Again, the Solicitor General utterly failed to
prove this element of the test. Other than the two documents offered as cited above
which established the sincerity of respondents religious belief and the fact that the
agreement was an internal arrangement within respondents congregation, no iota of
evidence was offered. In fact, the records are bereft of even a feeble attempt to procure
any such evidence to show that the means the state adopted in pursuing this compelling
interest is the least restrictive to respondents religious freedom.
Thus, we find that in this particular case and under these distinct circumstances,
respondent Escritors conjugal arrangement cannot be penalized as she has made out a
case for exemption from the law based on her fundamental right to freedom of religion.
The Court recognizes that state interests must be upheld in order that freedoms -
including religious freedom - may be enjoyed. In the area of religious exercise as a
preferred freedom, however, man stands accountable to an authority higher than the
state, and so the state interest sought to be upheld must be so compelling that its
violation will erode the very fabric of the state that will also protect the freedom. In the
absence of a showing that such state interest exists, man must be allowed to subscribe
to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is dismissed.
SO ORDERED.
REYNATO S. PUNO
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
Asscociate Justice
ANGELINA SANDOVAL-
GUTIERREZ
Associate Justice
ANTONIO T. CARPIO
Asscociate Justice
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
RENATO C. CORONA
Asscociate Justice
CONCHITA CARPIO MORALES
Associate Justice
ROMEO J. CALLEJO, SR.
Asscociate Justice
ADOLFO S. AZCUNA DANTE O. TINGA
Associate Justice Asscociate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
CANCIO C. GARCIA
Asscociate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice


Footnotes
1
Estrada v. Escritor, 455 Phil. 411 (2003).
2
Id. at 444. Incidentally, Escritor moved for the inhibition of Judge Caoibes from
hearing her case to avoid suspicion and bias as she previously filed an
administrative case against him. Escritors motion was denied.
3
Id. The Code provides:
Sec. 46. Discipline: General Provisions.
(a) No officer or employee in the Civil Service shall be suspended or
dismissed except for cause as provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
4
Id. at 445.
5
Id. at 445, 447.
6
Id. at 445, 453, and 457.
7
Id. at 445-456. The Declaration provides:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D.
Quilapio, Jr., as my mate in marital relationship; that I have done all within
my ability to obtain legal recognition of this relationship by the proper
public authorities and that it is because of having been unable to do so
that I therefore make this public declaration pledging faithfulness in this
marital relationship.
I recognize this relationship as a binding tie before Jehovah God and
before all persons to be held to and honored in full accord with the
principles of Gods Word. I will continue to seek the means to obtain legal
recognition of this relationship by the civil authorities and if at any future
time a change in circumstances make this possible, I promise to legalize
this union.
Signed this 28th day of July 1991.
Parenthetically, Escritors partner, Quilapio, executed a similar pledge on
the same day. Both pledges were executed in Atimonan, Quezon and
signed by three witnesses. At the time Escritor executed her pledge, her
husband was still alive but living with another woman. Quilapio was
likewise married at that time, but had been separated in fact from his wife.
Id. at 446.
8
Id. at 447-448, 452-453. Based on the testimony of Gregorio Salazar, a
member of the Jehovahs Witnesses since 1985. As presiding minister since
1991, he is aware of the rules and regulations of the Congregation. An
authenticated copy of the magazine article entitled, "Maintaining Marriage Before
God and Men," which explains the rationale behind the Declaration, was also
presented.
9
Id. at 449.
10
Id. at 452.
11
Id. at 449.
12
See id. at 447-452.
13
Id. at 445, 453, and 457.
14
Id. at 596.
15
Id. at 599-600.
16
Agustin v. C.A., G.R. No. 107846, April 18, 1997, 271 SCRA 457; Gokongwei
v. SEC, G.R. No. 52129, April 21, 1980, 97 SCRA 78; Commissioner of Public
Highways v. Burgos, G.R. No. L-36706, March 31, 1980, 96 SCRA 831;
Municipality of Daet v. C.A., G.R. No. L-35861, October 18, 1979, 93 SCRA 503;
and Peoples Homesite and Housing Corp. v. Mencias, G.R. No. L-24114,
August 16, 1967, 20 SCRA 1031.
17
See discussion under Estrada v. Escritor, 455 Phil. 411, 458-468 (2003).
18
During primitive times, when there was no distinction between the religious and
secular, and the same authority that promulgated laws regulating relations
between man and man promulgated laws concerning mans obligations to the
supernatural. See id. at 458-459.
19
This was the time of theocracy, during the rise of the Hebrew state and the
Mosaic religion. See id. at 459-461.
20
Following the rise of Saul, and the pre-Christian Rome which engaged in
emperor-worship. See id. at 461-462.
21
Id. at 462-463.
22
Id. at 468.
23
Cohen, William & Danelski, David J., Constitutional Law: Civil Liberty and
Individual Rights 565(4th ed. 1997).
24
Id.
25
See Estrada v. Escritor, 455 Phil. 411, 479-480 (2003).
26
Cohen, William & Danelski, David J., Constitutional Law: Civil Liberty and
Individual Rights 575(4th ed. 1997).
27
Estrada v. Escritor, 455 Phil. 411, 480 (2003), citing Beth, L., American Theory
of Church and State 71 (1958).
28
See id. at 487, 512-516.
29
Id. at 515, citing Buzzard, L., Ericsson, S., The Battle for Religious Liberty 46
(1980); Beth, L., American Theory of Church and State 71 & 72 (1958); and
Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial Policy Making
1276 (2nd ed. 1980).
30
Id. at 515, citing The Constitution and Religion 1541.
31
See Drakeman, D., Church-State Constitutional Issues 55 (1991), citing Cord,
R., Separation of Church and State: Historical Fact and Current Fiction 50. Thus:
The [separationist] school of thought argues that the First Congress
intended to allow government support of religion, at least as long as that
support did not discriminate in favor of one particular religion. . . the
Supreme Court has overlooked many important pieces of history.
Madison, for example, was on the congressional committee that
appointed a chaplain, he declared several national days of prayer and
fasting during his presidency, and he sponsored Jeffersons bill for
punishing Sabbath breakers; moreover, while president, Jefferson
allowed federal support of religious missions to the Indians. . . And so,
concludes one recent book, "there is no support in the Congressional
records that either the First Congress, which framed the First
Amendment, or its principal author and sponsor, James Madison,
intended that Amendment to create a state of complete independence
between religion and government. In fact, the evidence in the public
documents goes the other way." Id. at 513-514.
32
Id. at 514, citing Drakeman, D., Church-State Constitutional Issues 55 (1991),
Cord, R., Separation of Church and State: Historical Fact and Current Fiction 50;
and 1 The Debates and Proceedings in the Congress of the United States,
Compiled from Authentic Materials 949-950 (Annala, Gales, J. and Seaton, W.,
eds.). Only two members of U.S. Congress opposed the resolution, one on the
ground that the move was a "mimicking of European customs, where they made
a mere mockery of thanksgivings," the other on establishment clause concerns.
Nevertheless, the salutary effect of thanksgivings throughout Western history
was acknowledged and the motion was passed without further recorded
discussion.
33
Id. at 515, citing Weber, P., Neutrality and First Amendment Interpretation in
Equal Separation 3 (1990).
34
330 U.S. 1 (1946). It was in this case that the U.S. Supreme Court adopted
Jeffersons metaphor of "a wall of separation between church and state" as
encapsulating the meaning of the Establishment Clause. Said the U.S. Court:
"The First Amendment has erected a wall between church and state. That wall
must be kept high and impregnable. We could not approve the slightest
breach." Id. at 18.
35
Everson v. Board of Education, 330 U.S. 1, 18 (1947).
36
See Estrada v. Escritor, 455 Phil. 411, 516 (2003), citing The Constitution and
Religion 1541; and Kurland, Of Church and State and the Supreme Court, 29
U.Chi.L.Rev. 1, 5 (1961). Parenthetically, the U.S. Court in Employment Division,
Oregon Department of Human Resources v. Smith, 494 U.S. 872 (1990), echoed
the rationale of the separationists, when it held that if government acts in pursuit
of a generally applicable law with a secular purpose that merely incidentally
burdens religious exercise, the First Amendment has not been offended.
37
374 U.S. 203 (1963).
38
Estrada v. Escritor, 455 Phil. 411, 517 (2003), citing Buzzard, L., Ericsson, S.,
The Battle for Religious Liberty 60 (1980).
39
Id. at 517-518, citing Kelley, D. Strict Neutrality and the Free Exercise of
Religion in Weber, P., Equal Separation 1189 (1990).
40
Id. at 518, citing 75. Monsma, S. The Neutrality Principle and a Pluralist
Concept of Accommodation, in Weber, P., Equal Separation 74-75 (1990).
41
I.e., the "garden" of the church must be walled in for its own protection from the
"wilderness" of the world with its potential for corrupting those values so
necessary to religious commitment. According to Williams, this wall is breached,
for the church is in the state, and so the remaining purpose of the wall is to
safeguard religious liberty. Williams wall, therefore, would allow for interaction
between church and state, but is strict with regard to state action which would
threaten the integrity of religious commitment. His conception of separation is not
total such that it provides basis for certain interactions between church and state
dictated by apparent necessity or practicality.
See discussion of the birth of the theory in Estrada v. Escritor, 455 Phil.
411, 518-519 (2003).
42
343 U.S. 306 (1951).
43
Zorach v. Clauson, 343 U.S. 306, 312-314 (1951).
44
Estrada v. Escritor, 455 Phil. 411, 521-522 (2003).
45
Marsh v. Chambers, 463 US 783, 792-93 (1983).
46
Sherbert v. Verner, 374 US 398, 403-04 (1963).
47
Bowen v. Kendrick, 487 US 589, 611 (1988).
48
Board of Education v. Allen, 392 US 236, 238 (1968).
49
Everson v. Board of Education, 330 US 1, 17 (1947).
50
Committee for Public Education and Religious Liberty v. Regan, 444 US 646,
653-54 (1980).
51
Cited in McConnel, M., Accommodation of Religion: An Update and a
Response to the Critics, 60 The George Washington Law Review 685, 688. See
Estrada v. Escritor, 455 Phil. 411, 522-523 (2003).
52
Estrada v. Escritor, 455 Phil. 411, 482 (2003), citing Carter, S., The
Resurrection of Religious Freedom, 107 Harvard Law Review 118, 1280129
(1993).
53
Id. at 482, citing Sullivan, K., Religion and Liberal Democracy, 59 The
University of Chicago Law Review 195, 214-215 (1992).
54
Id.
55
374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970 (1963). See Johnson, Bradley
C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson: More Rotted Fruit From
Employment Division v. Smith, 80 Chi.-Kent L. Rev. 1287, 1302 (2005).
56
Carmella, Angela C., State Constitutional Protection of Religious Exercise: An
Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L.Rev. 275, 277 (1993).
57
Sherbert v. Verner, 374 U.S. 398, 403 (1963).
58
Id. at 406.
59
Estrada v. Escritor, 455 Phil. 411, 495 (2003), citing Lupu, I., The Religion
Clauses and Justice Brennan in Full, 87 California Law Review 1105, 1114, 1105
and 1110 (1999).
60
Carmella, Angela C., State Constitutional Protection of Religious Exercise: An
Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L.Rev. 275, 277 (1993).
61
406 U.S. 205 (1972).
62
Id. at 214-215, 219-220.
63
Ivan E. Bodensteiner, The Demise of the First Amendment as a Guarantor of
Religious Freedom, 27 Whittier L. Rev. 415,417-418 (2005). (citations omitted)
64
See Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty
Versus Equality, 1993 B. Y. U. L. Rev. 7, 30-32 (1993).
65
Id. at 30-32.
66
Id.
67
Estrada v. Escritor, 455 Phil. 411, 498 (2003), citing Stephens, Jr., O.H. and
Scheb, II J.M., American Constitutional Law 522-523 and 526 (2nd ed. 1999).
68
Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson:
More Rotted Fruit From Employment Division v. Smith, 80 Chi.-Kent L. Rev.
1287, 1304 (2005).
69
494 U.S. 872 (1990).
70
Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1211 (2nd ed.
2002).
71
494 U.S. 872, 878-889 (1990), cited in Chemerinsky, Erwin, Constitutional
Law: Principles and Policies 1211 (2nd ed. 2002).
72
494 U.S. 872, 879 (1990), cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).
73
494 U.S. 872, 881 (1990), cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).
74
494 U.S. 872, 882 (1990), cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).
75
494 U.S. 872, 884 (1990), cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).
76
494 U.S. 872, 888 (1990), cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1212 (2nd ed. 2002).
77
See Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1213
(2nd ed. 2002).
78
Employment Division v. Smith, 494 U.S. 872, 906 (1990). (OConnor, J.
concurring in the judgment) This portion of her concurring opinion was supported
by Justices Brennan, Marshall and Blackmun who dissented from the Courts
decision; cited in Chemerinsky, Erwin, Constitutional Law: Principles and Policies
1212 (2nd ed. 2002).
79
Id at 903. (OConnor, J. concurring in the judgment), cited in Chemerinsky,
Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).
80
Id. at 902. (OConnor, J. concurring in the judgment) cited in Chemerinsky,
Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed. 2002).
81
Id. at 908-909. (Blackmun, J. dissenting), cited in Chemerinsky, Erwin,
Constitutional Law: Principles and Policies 1213 (2nd ed. 2002).
82
Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 Hastings L.J.
699 (2005).
83
Id.
84
Aden, Steven H & Strang, Lee J., When a "Rule" Doesnt Rule: The Failure of
the Oregon Employment Division v. Smith "Hybrid Rights Exception," 108 Penn.
St. L. Rev. 573, 581 (2003).
85
Id.
86
Estrada v. Escritor, 455 Phil. 411, 501 (2003), citing McConnell, M.,
Accommodation of Religion: An Update and a Response to the Critics, 60 The
George Washington Law Review 685, 726 (1992).
87
Id. at 482, citing McCoy, T., A Coherent Methodology for First Amendment
Speech and Religion Clause Cases, 48 Vanderbilt Law Review, 1335, 1350-1352
(1995).
88
Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 Hastings L.J.
699 (2005).
89
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing II Ducat, C., Constitutional
Interpretation 1180 & 1191 (2000). See also Sullivan, K., Religion and Liberal
Democracy, 59 The University of Chicago Law Review 195, 216 (1992).
90
Id. at 502, citing McConnell, M., Religious Freedom at a Crossroads, 59 The
University of Chicago Law Review 115, 139 (1992).
91
Id., citing Sullivan, K., Religion and Liberal Democracy, 59 The University of
Chicago Law Review 195, 216 (1992).
92
Tebbe, Nelson, Free Exercise and the Problem of Symmetry, 56 Hastings L.J.
699 (2005).
93
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing McCoy, T., A Coherent
Methodology for First Amendment Speech and Religion Clause Cases, 48
Vanderbilt Law Review, 1335, 1350-1351 (1995).
94
Reynolds v. U.S., 98 U.S. 145 (1878); Minersville School District v. Gobitis,
310 U.S. 586 (1940); and Employment Division, Oregon Department of Human
Resources v. Smith, 494 U.S. 872 (1990).
95
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing McCoy, T., A Coherent
Methodology for First Amendment Speech and Religion Clause Cases, 48
Vanderbilt Law Review, 1335, 1350-1351 (1995).
96
Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson:
More Rotted Fruit From Employment Division v. Smith, 80 Chi.-Kent L. Rev.
1287, 1327 (2005).
97
Bodensteiner, Ivan E., The Demise of the First Amendment As a Guarantor of
Religious Freedom, 27 Whittier L. Rev. 415, 419 (2005).
98
Aden, Steven H & Strang, Lee J., When a "Rule" Doesnt Rule: The Failure of
the Oregon Employment Division v. Smith "Hybrid Rights Exception", 108 Penn.
St. L. Rev. 573, 584 (2003).
99
See Cohen, William & Danelski, David J., Constitutional Law: Civil Liberty and
Individual Rights 620-621 (4th ed. 1997).
100
Id.
101
Estrada v. Escritor, 455 Phil. 411, 502 (2003), citing Carter, S., The
Resurrection of Religious Freedom, 107 Harvard Law Review 118 (1993).
102
42 U.S.C. 2000bb.
103
42 U.S.C. 2000bb, Sec. (a) (4), cited in Chemerinsky, Erwin, Constitutional
Law: Principles and Policies 1216 (2nd ed. 2002).
104
Id.
105
Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed.
2002).
106
City of Boerne v. Flores, 521 U.S. 507 (1997), cited in Chemerinsky, Erwin,
Constitutional Law: Principles and Policies 1216 (2nd ed. 2002).
107
City of Boerne clearly invalidated the RFRA as applied to state and local
governments, but did not resolve the constitutionality of the law as applied to the
federal government. Some federal courts have expressly ruled that the RFRA is
constitutional as applied to the federal government. See Chemerinsky, Erwin,
Constitutional Law: Principles and Policies 1216 (2nd ed. 2002).
108
See Noonan, John T., Jr. & Gaffney, Edward McGlynn, Jr., Religious
Freedom: History, Cases, and Other Materials on the Interaction of Religion and
Government 531 (2001).
109
Carmella, Angela C., State Constitutional Protection of Religious Exercise: An
Emerging Post-Smith Jurisprudence, 1993 B.Y.U.L.Rev. 275, 278 (1993).
110
Johnson, Bradley C., By its Fruits Shall Ye Know; Axson-Flynn v. Johnson:
More Rotted Fruit From Employment Division v. Smith, 80 Chi.-Kent L. Rev.
1287, 1327 (2005).
111
Estrada v. Escritor, 455 Phil. 411, 526 (2003).
112
Id. at 527, citing Buzzard, L., Ericsson, S., The Battle for Religious Liberty 61-
62 (1980).
113
Walz v. Tax Commission, 397 U.S. 664, 673 (1969).
114
343 U.S. 306 (1952).
115
463 U.S. 783 (1983).
116
McConnell, M., Accommodation of Religion: An Update and a Response to
the Critics, 60 The George Washington Law Review 685, 715 (1992).
117
333 U.S. 203 (1948).
118
Estrada v. Escritor, 455 Phil. 411, 527 (2003), citing Buzzard, L., Ericsson, S.,
The Battle for Religious Liberty 61-63 (1980).
119
Kmiec, Douglas W. & Presser, Stephen B., Individual Rights and the
American Constitution 105 (1998).
120
Employment Division v. Smith, 494 U.S. 872, 903 (1990), cited in
Chemerinsky, Erwin, Constitutional Law: Principles and Policies 1212 (2nd ed.
2002).
121
See, e.g. Michael McConnell, Free Exercise Revisionism and the Smith
Decision, 57 U. Chi. L. Rev. 1109 (1990); Jesse H. Choper, The Rise and
Decline of the Constitutional Protection of Religious Liberty, 70 Neb. L. Rev. 651
(1991) (criticizing Smith). Cited in Chemerinsky, Erwin, Constitutional Law:
Principles and Policies 1213 (2nd ed. 2002).
122
McConnell, The Origins and Historical Understanding of Free Exercise of
Religion, 103 Harvard Law Review 1410, 1416-1417 (1990).
123
Constitution, (1935), Art. VI, Sec. 22, par 3(b); Constitution, (1973), Art. VI,
Sec. 22(3); and Constitution, (1987), Art.VI, Sec. 28(3).
124
Constitution, (1935), Art. VI, Sec. 23(3); Constitution, (1973), Art. VIII, Sec.
18(2); and Constitution, (1987), Art. VI, Sec. 29(2).
125
Constitution, (1935) Art. XIII, Sec. 5; Constitution, (1973), Art. XV, Sec. 8(8);
and Constitution, (1987), Art. XIV, Sec. 3(3).
126
"Divine Providence" in the 1935 and 1973 Constitutions; and "Almighty God"
in the 1987 Constitution.
127
Estrada v. Escritor, 455 Phil. 411, 573-574 (2003).
128
Id. at 564 and 575.
129
Id. at 563-564.
130
Id. at 574. As stated in the Decision dated August 4, 2003:
Considering the American origin of the Philippine religion clauses and the
intent to adopt the historical background, nature, extent and limitations of
the First Amendment of the U.S. Constitution when it was included in the
1935 Bill of Rights, it is not surprising that nearly all the major Philippine
cases involving the religion clauses turn to U.S. jurisprudence in
explaining the nature, extent and limitations of these clauses. However, a
close scrutiny of these cases would also reveal that while U.S.
jurisprudence on religion clauses flows into two main streams of
interpretation - separation and benevolent neutrality - the well-spring of
Philippine jurisprudence on this subject is for the most part, benevolent
neutrality which gives room for accommodation. Id. at 536.
131
101 Phil. 386 (1957).
132
G.R. No. 95770, March 1, 1993, 219 SCRA 256.
133
Gerona v. Secretary of Education, 106 Phil. 2 (1959). In this prior case,
petitioners were also members of the Jehovahs Witnesses. They challenged a
Department Order issued by the Secretary of Education implementing Republic
Act No. 1265 which prescribed compulsory flag ceremonies in all public schools.
In violation of the Order, petitioners children refused to salute the Philippine flag,
sing the national anthem, or recite the patriotic pledge, hence they were expelled
from school. Seeking protection under the Free Exercise Clause, petitioners
claimed that their refusal was on account of their religious belief that the
Philippine flag is an image and saluting the same is contrary to their religious
belief. The Court denied exemption, and sustained the expulsion of petitioners
children, on the ground that "If the exercise of religious belief clashes with the
established institutions of society and with the law, then the former must yield to
the latter."
134
Id. at 270-271.
135
G.R. No. L-25246, September 12, 1974, 59 SCRA 54. See also Basa v.
Federacion Obrera, G.R. No. L-27113, November 19, 1974, 61 SCRA 93;
Gonzalez v. Central Azucarera de Tarlac Labor Union, G.R. No. L-38178,
October 3, 1985, 139 SCRA 30.
136
Victoriano v. Elizalde Rope Workers Union, G.R. No. L-25246, September 12,
1974, 59 SCRA 54, 74-75. The Court stressed that "(a)lthough the exemption
may benefit those who are members of religious sects that prohibit their
members from joining labor unions, the benefit upon the religious sects is merely
incidental and indirect." In enacting Republic Act No. 3350, Congress merely
relieved the exercise of religion by certain persons of a burden imposed by union
security agreements which Congress itself also imposed through the Industrial
Peace Act. The Court concluded the issue of exemption by citing Sherbert which
laid down the rule that when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some "compelling state interest"
intervenes. The Court then abruptly added that "(i)n the instant case, We see no
compelling state interest to withhold exemption." Id.
137
Estrada v. Escritor, 455 Phil. 411, 576-578 (2003).
138
Id. at 529-531.
139
98 U.S. 145 (1878).
140
See Kmiec, Douglas, W, & Presser, Stephen B, Individual Rights and the
American Constitution 105 (1998). In this case, the issue was whether a general
federal law criminalizing polygamy can be applied to a Mormon whose religion
included that practice. The U.S. Court, in affirming Reynolds conviction, ruled
that the prohibition of polygamy was justified by the importance of monogamous,
heterosexual marriage, a practice upon which society may be said to be built,
and perhaps even upon which democratic traditions depend. Thus, according to
the U.S. Court, this important societal interest prevails over the countervailing
religious practice of the Mormons.
141
A.M. No. MTJ-92-691, September 10, 1993, 226 SCRA 193.
142
494 U.S. 872 (1990). (OConnor, J. concurring) According to Justice
OConnor:
Even if, as an empirical matter, a governments criminal laws might
usually serve a compelling interest in health, safety, or public order, the
First Amendment at least requires a case-by-case determination of the
question, sensitive to the facts of each particular claim Given the range
of conduct that a State might legitimately make criminal, we cannot
assume, merely because a law carries criminal sanctions and is generally
applicable, that the First Amendment never requires the State to grant a
limited exemption for religiously motivated conduct.
Parenthetically, J. Brennan, J. Marshall, and J. Blackmun joined Parts I
and II of Justice OConnors opinion, including the above-cited portions,
but did not concur in the judgment.
143
See Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty
Versus Equality, 1993 B. Y. U. L. Rev. 7, 12-13 (1993).
144
Estrada v. Escritor, 455 Phil. 411, 574-575 (2003).
145
Id., citing McConnell, M., Religious Freedom at a Crossroads, 59(1) Univ. of
Chicago Law Review 115, 169 (1992).
146
Dated May 6, 2005, by retired Associate Justice Romulo S. Quimbo, rollo, p.
714.
147
Rollo, pp. 687-689.
148
OSG Memorandum-In-Intervention, rollo, pp. 20-21, citing Constitution, Art. II,
Sec. 12, which provides: "The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous social institution."
149
Id. at 21, citing the Family Code, Art. 149, which provides: "The family, being
the foundation of the nation, is a basic social institution which public policy
cherishes and protects. Consequently, family relations are governed by law and
no custom, practice or agreement destructive of the family shall be recognized or
given effect."
150
Id. at 21-22.
151
See Estrada v. Escritor, 455 Phil. 411, 529-531 (2003).
152
OSG Memorandum-In-Intervention, rollo, p. 23.
153
Id. at 26.
154
Estrada v. Escritor, 455 Phil. 411, 580-595 (2003). This part of the decision
addressed the issue of morality raised by Mme. Justice Ynares-Santiago and Mr.
Justice Vitug, who also had a separate opinion, albeit differing in conclusion.
155
Id. at 580.
156
Id. at 586-588.
157
Rule 1.01 of the Code of Professional Responsibility provides that, "(a) lawyer
shall not engage in unlawful, dishonest, immoral or deceitful conduct. (emphasis
supplied)
158
Title Six of the Revised Penal Codeis entitled Crimes against Public Morals
and includes therein provisions on gambling and betting. (emphasis supplied)
159
The New Civil Code provides, viz:
"Article 6. Rights may be waived, unless the waiver is contrary to law, public
order, public policy, morals, or good ustoms or prejudicial to a third person with a
right recognized by law.
Article 21. Any person who willfully causes loss or injury to another in manner
that is contrary to morals, good customs or public policy shall compensate the
latter for the damage.
Article 1306. The contran/a>blish such stipulations, clauses, terms and
conditions as they may deem convenient, provided that are not contrary to law,
morals, good customs, public order, or public policy.
Article 1409. The following contracts are inexistent and void from the beginning:
(1) Those whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy; x x x" (emphases supplied)
160
Article XIV, Section 3 provides in relevant part, viz:
(1)All educational institutions shall include the study of the Constitution as
part of the curricula.
(2)They shall inculcate patriotism and nationalism, foster love of
humanity, respect for human rights, appreciation of the role of national
heroes in the historical development of the country, teach the rights and
duties of citizenship, strengthen ethical and spiritual values, develop
moral character and personal discipline, encourage critical and creative
thinking, broaden scientific and technological knowledge, and promote
vocational efficiency. (emphasis supplied)
161
Estrada v. Escritor, 455 Phil. 411, 586 (2003).
162
Id. at 589-590.
163
Id. at 591.
164
Id. at 592.
165
Id. at 593.
166
Id. at 593-595.
167
Id. at 594-595.
168
Id. at 595-596.
169
Pepper, Stephen, Conflicting Paradigms of Religious Freedom: Liberty Versus
Equality, 1993 B. Y. U. L. Rev. 7, 12 (1993).
170
Id. at 51.
171
Estrada v. Escritor, 455 Phil. 411, 574 (2003).
172
OSG Memorandum-In-Intervention, rollo, p. 708.
173
See Estrada v. Escritor, 455 Phil. 411, 536-554 (2003).
174
Id. at 529-531.




DISSENTING OPINION
YNARES-SANTIAGO, J .:
With due respect, I am unable to agree with the finding of the majority that "in this
particular case and under these particular circumstances, respondent Escritors conjugal
arrangement does not constitute disgraceful and immoral conduct" and its decision to
dismiss the administrative complaint filed by petitioner against respondent Soledad S.
Escritor.
The issue in this case is simple. What is the meaning or standard of "disgraceful and
immoral conduct" to be applied by the Supreme Court in disciplinary cases involving
court personnel?
The degree of morality required of every employee or official in the public service has
been consistently high. The rules are particularly strict when the respondent is a Judge
or a court employee.
1
Even where the Court has viewed certain cases with human
understanding and compassion, it has insisted that no untoward conduct involving public
officers should be left without proper and commensurate sanction.
2
The compassion is
shown through relatively light penalties. Never, however, has this Court justified,
condoned, or blessed the continuation of an adulterous or illicit relationship such as the
one in this case, after the same has been brought to its attention.
Is it time to adopt a more liberal approach, a more "modern" view and a more permissive
pragmatism which allow adulterous or illicit relations to continue provided the job
performance of the court employee concerned is not affected and the place and order in
the workplace are not compromised? When does private morality involving a court
employee become a matter of public concern?
The Civil Service Law punishes public officers and employees for disgraceful and
immoral conduct.
3
Whether an act is immoral within the meaning of the statute is not to
be determined by respondents concept of morality. The law provides the standard; the
offense is complete if respondent intended to perform, and did in fact perform, the act
which it condemns.
4

The ascertainment of what is moral or immoral calls for the discovery of contemporary
community standards. For those in the service of the Government, provisions of law and
court precedents also have to be considered. The task is elusive.
The laymans definition of what is "moral" pertains to excellence of character or
disposition. It relates to the distinction between right and wrong; virtue and vice; ethical
praise or blame. Moral law refers to the body of requirements in conformity to which
virtuous action consists. Applied to persons, it is conformity to the rules of morality, being
virtuous with regards to moral conduct.
5

That which is not consistent with or not conforming to moral law, opposed to or violating
morality, and now, more often, morally evil or impure, is immoral. Immoral is the state of
not being virtuous with regard to sexual conduct.
6

The term begs the definition. Hence, anything contrary to the standards of moral conduct
is immoral. A grossly immoral act must be so corrupt and false as to constitute a criminal
act or so unprincipled as to be reprehensible to a high degree.
7

Anything plainly evil or dissolute is, of course, unchangingly immoral. However, at the
fringes or boundary limits of what is morally acceptable and what is unacceptably wrong,
the concept of immorality tends to shift according to circumstances of time, person, and
place. When a case involving the concept of immorality comes to court, the applicable
provisions of law and jurisprudence take center stage.
Those who choose to tolerate the situation where a man and a woman separated from
their legitimate spouses decide to live together in an "ideal" and yet unlawful union state
or more specifically, those who argue that respondents cohabiting with a man married
to another woman is not something which is willful, flagrant, or shameless show a
moral indifference to the opinion of the good and respectable members of the community
in a manner prejudicial to the public service.
Insofar as concepts of morality are concerned, various individuals or cultures may
indeed differ. In certain countries, a woman who does not cover herself with a burka
from head to foot may be arrested for immoral behavior. In other countries, near nudity
in beaches passes by unnoticed. In the present case, the perceived fixation of our
society over sex is criticized. The lesser degree of condemnation on the sins of laziness,
gluttony, vanity, selfishness, avarice and cowardice is decried as discriminatory.
The issue in this case is legal and not philosophical. It is a limited one. Is respondent
Soledad S. Escritor guilty of "disgraceful and immoral" conduct in the context of the Civil
Service Law? Are there any sanctions that must be imposed?
We cannot overlook the fact that respondent Escritor would have been convicted for a
criminal offense if the offended party had been inclined and justified to prosecute her
prior to his death in 1998. Even now, she is a co-principal in the crime of concubinage. A
married woman who has sexual intercourse with a man not her husband, and the man
who has carnal knowledge of her knowing her to be married, commit the crime of
adultery.
8
Abandonment by the legal husband without justification does not exculpate the
offender; it merely mitigates the penalty.
The concubine with whom a married man cohabits suffers the penalty of destierro.
9
It is
true that criminal proceedings cannot be instituted against persons charged with adultery
or concubinage except upon complaint of the offended party.
10
This does not mean that
no actionable offense has been committed if the offended party does not press charges.
It simply cannot be prosecuted. The conduct is not thereby approved, endorsed or
commended. It is merely tolerated.
The inescapable fact in this case is that acts defined as criminal under penal law have
been committed.
There are experts in Criminal Law who believe that the codal provisions on adultery and
concubinage are terribly outmoded and should be drastically revised. However, the task
of amendment or revision belongs to Congress, and not to the Supreme Court.
Our existing rule is that an act so corrupt or false as to constitute a criminal act is
"grossly immoral."
11
It is not merely "immoral." Respondent now asks the Court to go all
the way to the opposite extreme and condone her illicit relations with not even an
admonition or a slight tap on the wrist.
I do not think the Court is ready to render a precedent-setting decision to the effect that,
under exceptional circumstances, employees of the judiciary may live in a relationship of
adultery or concubinage with no fear of any penalty or sanction and that after being
discovered and charged, they may continue the adulterous relationship until death ends
it. Indeed, the decision in this case is not limited to court interpreter Soledad Escritor. It
is not apro hac vice ruling. It applies to court employees all over the country and to
everybody in the civil service. It is not a private ruling but one which is public and far-
reaching in its consequences.
In the 1975 case of De Dios v. Alejo,
12
the Court applied compassion and empathy but
nonetheless recognized as most important a mending of ways through a total breaking
of relationships. The facts in that case are strikingly similar to those in this case. Yet, the
Court required a high degree of morality even in the presence of apparently exculpating
circumstances. It was stated:
While it is permissible to view with human understanding and compassion a situation like
that in which respondents find themselves, the good of the service and the degree of
morality which every official and employee in the public service must observe, if respect
and confidence are to be maintained by the government in the enforcement of the law,
demand that no untoward conduct on his part, affecting morality, integrity and efficiency,
while holding office should be left without proper and commensurate sanction, all
attendant circumstances taken into account. In the instant case, We cannot close our
eyes to the important considerations that respondents have rendered government
service for more than thirty-three and twenty-five years, respectively, and that there is no
showing that they have ever been found guilty of any administrative misconduct during
all those periods. In the case of respondent Alejo, it seems rather sadistic to make her
suffer the extreme penalty of dismissal from the service after she had taken care of her
co-respondents four children, giving them the needed love and attention of a foster
mother after they were completely abandoned by their errant and unfaithful natural
mother. Even respondent Marfil, if to a lesser degree, is deserving of compassion. Most
importantly, respondents have amply demonstrated that they recognize their
mistake and have, therefore, actually mended their ways by totally breaking their
relationship complained of, in order to conform with the imperatives of public
interest. (Emphasis supplied)
The standards for those in the judicial service are quite exacting.
The Court has ruled that in the case of public servants who are in the judiciary, their
conduct and behavior, from the presiding judge to the lowliest clerk, must not only
be characterized by propriety and decorum, but above all else, must be above
suspicion.
13

In Burgos v. Aquino,
14
it was ruled:
The Code of Judicial Ethics mandates that the conduct of court personnel must be free
from any whiff of impropriety, not only with respect to his duties in the judicial branch but
also to his behavior outside the court as a private individual. There is no dichotomy of
morality; a court employee is also judged by his private morals. These exacting
standards of morality and decency have been strictly adhered to and laid down by the
Court to those in the service of the judiciary. Respondent, as a court stenographer, did
not live up to her commitment to lead a moral life. Her act of maintaining relations with
Atty. Burgos speaks for itself.
Respondent Aquino was a court stenographer who was suspended for six months for
maintaining illicit relations with the husband of complainant Virginia E. Burgos. The Court
therein stated that a second offense shall result in dismissal.
We should not lose sight of the fact that the judicial system over which it presides is
essentially composed of human beings who, as such, are naturally prey to weakness
and prone to errors. Nonetheless, in Ecube-Badel v. Badel,
15
we imposed on respondent
a suspension for six months and one day to one year with warning of dismissal should
the illicit relations be repeated or continued.
In Nalupta v. Tapec,
16
a deputy sheriff was suspended, also for six months, for having
illicit relations with a certain Cristian Dalida who begot a son by him. His wife complained
and neighbors confirmed that Tapec was frequently seen leaving the house of
Consolacion Inocencio in the morning and returning to it in the afternoon. Tapec and
Inocencio begot two children. Consistently with the other cases, we imposed the penalty
of suspension for the first offense with the graver penalty of dismissal for a second
offense.
The earlier case of Aquino v. Navarro
17
involved an officer in the Ministry of Education,
Culture and Sports who was abandoned by her husband a year after their marriage and
who lived alone for eighteen years with their child. Pretending that she sincerely believed
her husband to have died, she entered into a marital relationship with Gonzalo Aquino
and had children by him in 1968 and 1969. Eighteen days before their third child was
born on May 25, 1975, the two decided to get married. Notwithstanding the illicit
relationship which blossomed into a bigamous marriage, the full force of the law was not
applied on her, "considering the exceptional circumstances that befell her in her quest
for a better life." Still, a penalty of six months suspension was imposed with a warning
that "any moral relapse on her part will be severely dealt with."
Times are changing. Illicit sex is now looked upon more kindly. However, we should not
completely disregard or overlook a relationship of adultery or concubinage involving a
court employee and not order it to be terminated. It should not ignore what people will
say about our moral standards and how a permissive approach will be used by other
court employees to freely engage in similarly illicit relationship with no fear of disciplinary
punishment.
As earlier mentioned, respondent Escritor and Luciano Quilapio, Jr. had existing
marriages with their respective legitimate spouses when they decided to live together.
To give an aura of regularity and respectability to what was undeniably an adulterous
and, therefore, immoral relationship, the two decided to acquire through a religious
ceremony what they could not accomplish legally. They executed on July 28, 1991 the
"Declaration of Pledging Faithfulness" to make their relationship what they alleged it
would be a binding tie before Jehovah God.
In this case, respondent is charged not as a Jehovahs Witness but in her capacity as a
court employee. It is contended that respected elders of the Jehovahs Witnesses
sanction "an informal conjugal relationship" between respondent and her marital partner
for more than two decades, provided it is characterized by faithfulness and devotion to
one another. However, the "informal conjugal relationship" is not between two single and
otherwise eligible persons where all that is missing is a valid wedding ceremony. The
two persons who started to live together in an ostensible marital relationship are married
to other persons.
We must be concerned not with the dogmas or rules of any church or religious sect but
with the legal effects under the Civil Service Law of an illicit or adulterous relationship
characterized by the facts of this case.
There is no conflict in this case between the dogmas or doctrines of the Roman Catholic
Church and those of the Jehovahs Witnesses or any other church or denomination. The
perceived conflict is non-existing and irrelevant.
The issue is legal and not religious. The terms "disgraceful" and "immoral" may be
religious concepts, but we are concerned with conduct which under the law and
jurisprudence is proscribed and, if perpetrated, how it should be punished.
Respondent cannot legally justify her conduct by showing that it was morally right by the
standards of the congregation to which she belongs. Her defense of freedom of religion
is unavailing. Her relationship with Mr. Quilapio is illicit and immoral, both under the
Revised Administrative Code
18
and the Revised Penal Code,
19
notwithstanding the
supposed imprimatur given to them by their religion.
The peculiar religious standards alleged to be those of the sect to which respondent
belongs can not shield her from the effects of the law. Neither can her illicit relationship
be condoned on the basis of a written agreement approved by their religious community.
To condone what is inherently wrong in the face of the standards set by law is to render
nugatory the safeguards set to protect the civil service and, in this case, the judiciary.
The Court cannot be the instrument by which one group of people is exempted from the
effects of these laws just because they belong to a particular religion. Moreover, it is the
sworn mandate of the Court to supervise the conduct of an employee of the judiciary,
and it must do so with an even hand regardless of her religious affiliation.
I find that respondents "Declaration of Pledging Faithfulness" does nothing for her
insofar as this administrative matter is concerned, for written therein are admissions
regarding the legal impediments to her marrying Quilapio. In the said document, she
even pledged to seek all avenues to obtain legal recognition by civil authorities of her
union with Quilapio.
20
However, the record is silent as to any effort on respondents part
to effect this covenant.
The evidence shows that respondent repeatedly admitted the existence of the legal
infirmities that plague her relationship with Quilapio.
21
As a court interpreter, she is an
integral member of the judiciary and her service as such is crucial to the administration
of justice. Her acts and omissions constitute a possible violation of the law the very
same law that she is sworn to uphold as an employee of the judiciary. How can she work
under the pretense of being a contributing force to the judicial system if she herself is
committing acts that may constitute breaking the law?
Respondent invokes her constitutional right to religious freedom. The separation of
church and state has been inviolable in this jurisdiction for a century. However, the
doctrine is not involved in this case.
22
Furthermore, the legislature made cohabitation
with a woman who is not ones wife a crime through the enactment of the Revised Penal
Code.
23
The legislative power has also seen fit to enact the Civil Service Law and has
given said law general application.
The argument that a marital relationship is the concern of religious authorities and not
the State has no basis.
In Reynolds v. United States,
24
the U.S. Supreme Court stated:
It is impossible to believe that the constitutional guaranty of religious freedom was
intended to prohibit legislation in respect to this most important feature of social life.
Marriage, while from its very nature a sacred obligation, is, nevertheless, in most
civilized nations, a civil contract, and usually regulated by law. Upon it society may be
said to be built, and out of its fruits spring social relations and social obligations and
duties, with which government is necessarily required to deal.
The strengthening of marriage ties and the concomitant hostility to adulterous or illicit
marital relations is a primary governmental concern. It has nothing to do with the
particular religious affiliations of those affected by legislation in this field.
The relations, duties, obligations and consequences of marriage are important to the
morals and civilization of a people and to the peace and welfare of society.
25
Any
attempt to inject freedom of religion in an effort to exempt oneself from the Civil Service
rules relating to the sanctity of the marriage tie must fail.
The U.S. Supreme Court in the above-cited case of Reynolds v. United States
26
upheld
federal legislation prohibiting bigamy and polygamy in territories of the United States,
more specifically Utah. Members of the Mormon Church asserted that the duty to
practice polygamy was an accepted doctrine of their church. In fact, Mormons had
trekked from the regular States of the Union to what was then a mere Territory in order
to practice their religious beliefs, among them polygamy. The Court declared that while it
protected religious belief and opinion, it did not deprive Congress of the power to reach
actions violative of social duties or subversive of good order. Polygamy was outlawed
even for Mormons who considered it a religious obligation.
We must not exempt illegal conduct or adulterous relations from governmental regulation
simply because their practitioners claim it is part of their free exercise of religious
profession and worship.
Indeed, the Court distinguishes between religious practices, including the seemingly
bizarre, which may not be regulated, and unacceptable religious conduct which should
be prevented despite claims that it forms part of religious freedom.
In Ebralinag v. Division Superintendent of Schools,
27
we validated the exemption of
Jehovahs Witnesses from coerced participation in flag ceremonies of public schools.
Following the ruling in West Virginia v. Barnette,
28
we declared that unity and loyalty, the
avowed objectives of flag ceremonies, cannot be attained through coercion. Enforced
unity and loyalty is not a good that is constitutionally obtainable at the expense of
religious liberty. A desirable end cannot be promoted by prohibited means.
The exemption from participation in flag ceremonies cannot be applied to the tolerance
of adulterous relationships by court personnel in the name of religious freedom.
A clear and present danger of a substantive evil, destructive to public morals, is a
ground for the reasonable regulation of the free exercise and enjoyment of religious
profession.
29
In addition to the destruction of public morals, the substantive evil in this
case is the tearing down of morality, good order, and discipline in the judiciary.
Jurisprudence on immoral conduct of employees in the civil service has been consistent.
There is nothing in this case that warrants a departure from precedents. We must not
sanction or encourage illicit or adulterous relations among government employees.
Soledad S. Escritor and Luciano D. Quilapio are devoted members of Jehovahs
Witness. Exemptions granted under our Muslim Laws to legitimate followers of Islam do
not apply to them.
30
The Court has no legislative power to place Jehovahs Witness in
the same legal category as Muslims.
In Bucatcat v. Bucatcat,
31
it was held that conduct such as that demonstrated by the
respondent is immoral and deserving of punishment. For such conduct, the respondent,
another court interpreter, was dismissed from the service. It was held:
Every employee of the judiciary should be an example of integrity, uprightness and
honesty. Like any public servant, he must exhibit the highest sense of honesty and
integrity not only in the performance of his official duties but in his personal and private
dealings with other people, to preserve the courts good name and standing. It cannot be
overstressed that the image of a court of justice is mirrored in the conduct, official and
otherwise, of the personnel who work thereat, from the judge to the lowest of its
personnel. Court employees have been enjoined to adhere to the exacting standards of
morality and decency in their professional and private conduct in order to preserve the
good name and integrity of courts of justice.
All those who work in the judiciary are bound by the most exacting standards of ethics
and morality to maintain the peoples faith in the courts as dispensers of justice. In Liguid
v. Camano,
32
it was ruled:
Surely, respondents behavior of living openly and scandalously for over two (2) decades
with a woman not his wife and siring a child by her is representative of the gross and
serious misconduct penalized by the ultimate penalty of dismissal under Section 22 (c),
Rule XIV of the Omnibus Rules Implementing Book IV of Executive Order No. 292
otherwise known as the Revised Administrative Code of 1987. As defined, misconduct is
a transgression of some established or definite rule of action, more particularly, unlawful
behavior or gross negligence by the public officer. Respondents conduct is an example
of the kind of gross and flaunting misconduct that so quickly and surely corrodes the
respect for the courts without which government cannot continue and that tears apart the
bonds of our polity.
Earlier, in Navarro v. Navarro,
33
the penalty of suspension was imposed on a court
employee for maintaining illicit relations with a woman not his wife, thus:
Time and again we have stressed adherence to the principle that public office is a public
trust. All government officials and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives. This constitutional mandate should always
be in the minds of all public servants to guide them in their actions during their entire
tenure in the government service. The good of the service and the degree of morality
which every official and employee in the public service must observe, if respect and
confidence are to be maintained by the Government in the enforcement of the law,
demand that no untoward conduct on his part, affecting morality, integrity and efficiency
while holding office should be left without proper and commensurate sanction, all
attendant circumstances taken into account.
The exacting standards of ethics and morality imposed upon court judges and court
employees are required to maintain the peoples faith in the courts as dispensers of
justice, and whose image is mirrored by their actuations. As the Court eloquently stated
through Madame Justice Cecilia Muoz-Palma:
[T]he image of the court of justice is necessarily mirrored in the conduct, official or
otherwise, of the men and woman who work thereat, from the judge to the least and
lowest of its personnel hence, it becomes the imperative sacred duty of each and
everyone in the court to maintain its good name and standing as a true temple of
justice.
34

The high degree of moral uprightness that is demanded of employees of the government
entails many sacrifices that are peculiar to the civil service. By aspiring to these
positions, government employees are deemed to have submitted themselves to greater
scrutiny of their conduct, all in the pursuit of a professional civil service. The Court has
repeatedly applied these principles in analogous cases.
35

Immorality is punishable by suspension of six (6) months and one day to one (1) year for
the first offense and dismissal for the second offense.
36
Considering that respondents
misconduct is in the nature of a continuing offense, it must be treated as a first offense,
and her continued cohabitation with Luciano E. Quilapio, Jr. must be deemed a second
offense, which will warrant the penalty of dismissal.
ACCORDINGLY, I vote that respondent Soledad S. Escritor is GUILTY of immorality
and disgraceful conduct and should be SUSPENDED for a period of Six (6) months and
One day without pay, with a warning that the continuance of her illicit cohabitation with
Luciano D. Quilapio, Jr. shall be deemed a second offense which shall warrant the
penalty of dismissal.
CONSUELO YNARES-SANTIAGO
Associate Justice


Footnotes
1
Lacuata v. Bautista, A.M. No. P-94-1005, 12 August 1994, 235 SCRA 290.
2
De Dios v. Alejo, A.M. No. P-137, 15 December 1975, 68 SCRA 354.
3
Revised Administrative Code, Book V, Title I, Subtitle A, Section 46 (b) (5).
4
Cleveland v. United States, 329 U.S. 14, 67 Sup. Ct. 13 (1946).
5
Oxford Universal Dictionary, Vol. 2, p. 1280.
6
Id., p. 961.
7
Sibal, Philippine Legal Encyclopedia, p. 406; Soberano v. Villanueva, 116 Phil.
1208 (1962); Reyes v. Wong, A.M. No. 547, 29 January 1975, 63 SCRA 668.
8
Revised Penal Code, Art. 333.
9
Revised Penal Code, Art. 334.
10
Quilatan v. Caruncho, 21 Phil. 399, 403 (1912), Rules of Court, Rule 110,
Section 5.
11
Reyes v. Wong, supra.
12
Supra.
13
Lacuata v. Bautista, supra.
14
Supra.
15
339 Phil. 510 (1997).
16
A.M. No. P-88-263, 30 March 1993, 220 SCRA 505.
17
220 Phil. 49 (1985).
18
E.O. 292, Sec. 46 (5).
19
Art. 334.
20
Rollo, Exhibits "1" and "2", pp. 14-15.
21
TSN, October 12, 2000, pp. 11-15.
22
Constitution, Art. II, Sec. 6; 1973 Constitution, Art. XV, Sec. 15.
23
Art. 334.
24
98 U.S. 145; 25 L.Ed. 244 (1879).
25
Maynard v. Hill, 125 U.S. 190; 31 L. Ed. 654.
26
Supra.
27
G.R. No. 95770, 1 March 1993, 219 SCRA 256.
28
319 U.S. 624 (1943).
29
American Bible Society v. City of Manila, 101 Phil. 386 (1957).
30
Sulu Islamic Association of Masjid Lambayong v. Malik, A.M. No. MTJ-92-691,
10 September 1993, 226 SCRA 193.
31
380 Phil. 555 (2000).
32
A.M. No. RTJ-99-1509, 8 August 2002.
33
A.M. No. OCA-00-61, 6 September 2000, 339 SCRA 709.
34
Id., at 716-717; citing Lim-Arce v. Arce, A.M. No. P-89-312, 9 January 1992,
205 SCRA 21 and Sy v. Cruz, 321 Phil. 231 [1995].
35
Benavidez v. Vega, A.M. No. P-01-1530, 13 December 2001; Alday v. Cruz,
A.M. No. RTJ-00-1530, 14 March 2001, 354 SCRA 322.
36
Civil Service Rules, Rule XIV, Section 23 (o).




DISSENTING OPINION
CARPIO, J .:
I maintain my dissent from the majority opinion as it now orders the dismissal of the
administrative complaint filed by petitioner Alejandro Estrada against respondent
Soledad S. Escritor.
The majority opinion relies heavily on Sherbert v. Verner
1
in upholding Escritors claim of
exemption from administrative liability grounded on her religious belief as a member of
the Jehovahs Witnesses. This religious sect allows Escritors cohabitation with Luciano
D. Quilapio, Jr., who has a subsisting marriage with another woman.
The compelling state interest test espoused in Sherbert has been abandoned more than
15 years ago by the U.S. Supreme Court in the Employment Division v. Smith
2
cases.
In the Smith cases, the U.S. Supreme Court set aside the balancing test for religious
minorities laid down in Sherbert. Instead, the U.S. Supreme Court ruled categorically in
the Smith cases that the guarantee of religious liberty as embodied in the Free Exercise
Clause does not require the grant of exemptions from generally applicable laws to
individuals whose religious practice conflict with those laws.
In the first Employment Division v. Smith (Smith I),
3
petitioner denied respondents
application for unemployment compensation benefits under an Oregon statute declaring
ineligible for benefits employees discharged for work-related misconduct. The
misconduct for which respondents were discharged from their jobs consisted of their
ingesting peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their
Native American Church. The Oregon Supreme Court ruled that although the denials of
benefits were proper under Oregon law, Sherbert required the Oregon Supreme Court to
hold that the denials significantly burdened respondents religious freedom in violation of
the Free Exercise Clause. The Oregon Supreme Court did not attach significance to the
fact that peyote possession is a felony in Oregon.
The U.S. Supreme Court vacated the Oregon Supreme Courts judgment and ordered
the remand of the case for a definitive ruling on whether the religious use of peyote is
legal in Oregon. The U.S. Supreme Court deemed the legality or illegality of the
questioned conduct critical in its analysis of respondents claim for protection under the
Free Exercise Clause.
In Smith I, the U.S. Supreme Court distinguished respondents conduct with that
involved in Sherbert, thus:
x x x In Sherbert, as in Thomas and Hobbie v. Unemployment Appeals Commn of
Fla.,
4
the conduct that gave rise to the termination of employment was perfectly legal;
indeed, the Court assumed that it was immune from state regulation.
5
The results we
reached in Sherbert, Thomas and Hobbie might well have been different if the
employees had been discharged for engaging in criminal conduct. x x x The protection
that the First Amendment provides to "legitimate claims to the free exercise of religion"
does not extend to conduct that a State has validly proscribed.
6
(Emphasis supplied)
In the second Employment Division v. Smith (Smith II),
7
the Oregon Supreme Court
held on remand that respondents religiously inspired use of peyote fell within the
prohibition of the Oregon statute classifying peyote as a "controlled substance" and
punishing its possession as a felony. Although the Oregon Supreme Court noted that the
statute makes no exception for the sacramental use of peyote, it still concluded that the
prohibition was not valid under the Free Exercise Clause.
The U.S. Supreme Court reversed the Oregon Supreme Court. The U.S. Supreme Court
ruled that a claim of exemption from a generally applicable law grounded on the right of
free exercise could not be evaluated under the compelling state interest test of Sherbert,
particularly where such law does not violate other constitutional protections. The U.S.
Supreme Court expressly declared:
x x x We have never held that an individuals religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is free to
regulate. x x x
8

x x x x
The only decisions in which we have held that the First Amendment bars application of a
neutral, generally applicable law to religiously motivated action have involved not the
Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other
constitutional protections, such as freedom of speech and of the press. x x x
9

Respondents argue that even though exemption from generally applicable criminal laws
need not automatically be extended to religiously motivated conduct, at least the claim
for a religious exemption must be evaluated under the balancing test set forth in
Sherbert v. Verner. x x x In recent years we have abstained from applying the Sherbert
test (outside the unemployment compensation field) at all. x x x
10

Even if we were inclined to breathe into Sherbert some life beyond the unemployment
compensation field, we would not apply it to require exemptions from a generally
applicable criminal law. x x x
11
(Emphasis supplied)
What the Smith cases teach us is that the compelling state interest test in Sherbert is not
the correct test in determining the legitimacy of a claim of exemption from generally
applicable, religion-neutral laws that have the incidental effect of burdening particular
religious practice. Any such claim for exemption should be analyzed by considering
whether the conduct in question is one that "the State has validly proscribed,"
irrespective of the sincerity or centrality of an individuals religious beliefs.
Here, Escritor is indisputably engaged in criminal conduct. Escritors continued
cohabitation with Quilapio is patently in violation of Article 334 of the Revised Penal
Code on concubinage. Article 334 makes no exception for religiously sanctioned
cohabitation such as that existing between Escritor and Quilapio. The majority opinion in
fact concedes that the present case involves a claim of exemption "from a law of general
applicability that inadvertently burdens religious exercise."
12
The majority opinion even
concedes further that the conduct in question is one "which Philippine law and
jurisprudence consider both immoral and illegal."
13
And yet, the majority opinion
expediently brushes aside the illegality of Escritors questioned conduct using the
obsolete compelling state interest test in Sherbert.
The majority opinion mentions two "opposing strains of jurisprudence on the religion
clauses" in U.S. history, namely, separation or strict neutrality and benevolent neutrality
or accommodation. The majority opinion asserts that the framers of our 1935, 1973, and
1987 Constitutions intended to adopt a benevolent neutrality approach in interpreting the
religion clauses, i.e., the Establishment and Free Exercise Clauses. The majority opinion
then reasons that in determining claims of exemption based on freedom of religion, this
Court must adopt the compelling state interest test laid down by the U.S. Supreme Court
in Sherbert, which according to the majority, best exemplifies the benevolent neutrality
approach. Hence, even as the majority opinion acknowledges that the U.S. Supreme
Court in the Smith cases has abandoned the compelling state interest test espoused in
Sherbert, the majority opinion dismisses this abandonment in its analysis of Escritors
free exercise exemption claim by simply labeling the Smith cases as exemplifying the
strict neutrality approach.
The majority opinion blatantly ignores that whatever theory may be current in the United
States whether strict neutrality, benevolent neutrality or some other theory the
undeniable fact is what is clearly stated in Smith II:
x x x We have never held that an individuals religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is free to
regulate. x x x
14

Thus, from the 1879 case of Reynolds v. U.S.
15
on the practice of polygamy by Mormons
to the 1988 and 1990 Smith cases on the use of prohibited drugs by native American
Indians, the U.S. Supreme Court has consistently held that religious beliefs do not
excuse any person from liability for violation of a valid criminal law of general application.
The majority opinion simply refuses to face and accept this reality.
The present case involves conduct that violates Article 334 of the Revised Penal Code,
a provision of law that no one challenges as unconstitutional. Clearly, the theories
invoked in the majority opinion have no application to the present case based on an
unbroken line of U.S. Supreme Court decisions. In any event, we shall discuss for
academic purposes the merits of the theories advanced in the majority opinion.
While the majority opinion only mentions separation and benevolent neutrality, a close
reading of the major U.S. Supreme Court opinions specifically relating to the religion
clauses presents three principal theories at play, namely, (a) the strict separation or "no
aid" theory, (b) the governmental neutrality theory, and (c) the accommodation or
benevolent neutrality theory.
16

The strict separation or "no aid" theory holds that the establishment clause viewed in
conjunction with the free exercise clause requires a strict separation of church and state
and that government can do nothing which involves governmental support of religion or
which is favorable to the cultivation of religious interests.
17
This theory found its first
expression in the case of Everson v. Board of Education,
18
which espoused the "no aid"
principle. Thus, the government cannot by its programs, policies, or laws do anything to
aid or support religion or religious activities.
19

Everson upheld the validity of a New Jersey statute authorizing bus fare reimbursement
to parents of parochial, as well as public school children. Apparently, the strict
interpretation or "no aid" theory prohibits state benefits to a particular sect or sects only,
but does not prohibit benefits that accrue to all, including one or more sects. Eversondid
not involve religiously motivated conduct that constituted a violation of a criminal statute.
Under the governmental neutrality theory, the establishment clause requires government
to be neutral on religious matters.
20
This theory was articulated by Mr. Justice Clark in
the case of Abington School District v. Schempp,
21
where he stated that what the
Constitution requires is "wholesome neutrality," i.e., laws and governmental programs
must be directed to secular ends and must have a primary effect that neither advances
nor inhibits religion.
22
This test as stated by Mr. Justice Clark embodies a theory of strict
neutrality
23
thus, the government may not use the religious factor as a basis for
classification with the purpose of advancing or inhibiting religion:
The place of religion in our society is an exalted one, achieved through a long tradition of
reliance on the home, the church and the inviolable citadel of the individual heart and
mind. We have come to recognize through bitter experience that it is not within the
power of government to invade that citadel, whether its purpose or effect be to aid or
oppose, to advance or retard. In the relationship between man and religion, the state is
firmly committed to a position of neutrality.
24
(Italics supplied)
However, the concept of governmental neutrality can be interpreted in various ways
to some, anything but total neutrality is anathema; to others, "neutrality can only mean
that government policy must place religion at neither a special advantage nor a special
disadvantage."
25

Schempp struck down a Pennsylvania law allowing the recitation of the Lords Prayer
and the reading of the Bible without comment in public schools, although the recitation
and reading were voluntary and did not favor any sect.Schempp did not involve
religiously motivated conduct that constituted a violation of a criminal statute.
The accommodation theory provides that any limitation derived from the establishment
clause on cannot be rigidly applied so as to preclude all aid to religion and that in some
situations government must, and in other situations may, accommodate its policies and
laws in the furtherance of religious freedom.
26
The accommodation theory found its first
expression in Zorach v. Clauson.
27
The U.S. Supreme Court held in Zorach that a state
could authorize an arrangement whereby public school children could be released one
hour a week for religious instruction off the school premises. Zorach did not involve
religiously motivated conduct that constituted a violation of a criminal statute.
In his book Religion and the Constitution published in 1964, Professor Paul G. Kauper
used the term "benevolent neutrality" in the following context:
It would be a mistake, however, to suggest that the theory of accommodation x x x is
unrelated to other ideas and theories that have been developed, notably the no-aid and
neutrality concepts. Rather, accommodation, instead of being viewed as a wholly
independent theory of interpretation, should be seen as a modification of the no-aid or
neutrality concepts. x x x
These ideas cannot be pressed to their absolute limit. Not only must the no-aid or
neutrality concept be subordinated to the necessities of free exercise, but an area of
legislative discretion must be allowed where a state may choose to advance the cause
of religious freedom even at the expense of not being completely neutral. Indeed, this
may be described as the larger or benevolent neutrality.
28
(Emphasis and italics
supplied)
Six years later, the U.S. Supreme Court used the term "benevolent neutrality" for the first
time in Walz v. Tax Commission.
29
In Walz, the U.S. Supreme Court sustained the
constitutionality of tax exemption of property used exclusively for religious purposes on
the basis of "benevolent neutrality," as follows:
The Court has struggled to find a neutral course between the two Religion Clauses, both
of which are cast in absolute terms, and either of which, if expanded to a logical
extreme, would tend to clash with the other. x x x
x x x x
The course of constitutional neutrality in this area cannot be an absolutely straight line;
rigidity could well defeat the basic purpose of these provisions, which is to insure that no
religion be sponsored or favored, none commanded, and none inhibited. The general
principle deducible from the First Amendment and all that has been said by the Court is
this: that we will not tolerate either governmentally established religion or governmental
interference with religion. Short of those expressly proscribed governmental acts there is
room for play in the joints productive of a benevolent neutrality which will permit religious
exercise to exist without sponsorship and without interference.
30
(Emphasis and italics
supplied)
At issue in Walz was a provision in New Yorks Constitution authorizing property tax
exemptions to religious organizations for religious properties used solely for religious
worship. Walz did not involve religiously motivated conduct that constituted a violation of
a criminal statute.
The majority opinion cited the case of Walz in support of its assertion that the framers of
the 1935 Constitution intended to adopt the benevolent neutrality approach in the
interpretation of the religion clauses, viz.:
x x x With the inclusion of the church property tax exemption in the body of the 1935
Constitution and not merely as an ordinance appended to the Constitution,
the benevolent neutrality referred to in the Walz case was given constitutional imprimatur
under the regime of the 1935 Constitution. x x x
The U.S. Supreme Court decided Walz only in 1970, more than three decades after the
adoption of our 1935 Constitution. It is certainly doubtful whether the framers of our 1935
Constitution intended to give "constitutional imprimatur" to a theory of interpretation
espoused in a case that was yet to be formulated. Moreover, when the U.S. Supreme
Court upheld the constitutionality of church property tax exemption on the basis of
"benevolent neutrality," it did so on grounds that no particular religion is singled out for
favorable treatment, and partly on historical grounds that church tax exemptions have
been accepted without challenge in all states for most of the nations history.
31

The majority opinion vigorously argues the merits of adopting the theory of
accommodation in the interpretation of our Constitution's religion clauses. However, the
majority opinion fails to mention that a distinction is often drawn by courts and
commentators between mandatory accommodation and permissive accommodation.
Mandatory accommodation is exemplified by the key idea in Sherbert that exemptions
from generally applicable laws are required by force of the Free Exercise
Clause,
32
which the majority opinion adheres to in granting Escritors claim of free
exercise exemption.
Permissive accommodation refers to exercises of political discretion that benefit religion,
and that the Constitution neither requires nor forbids.
33
The U.S. Supreme Court
recognized in Smith II that although the Free Exercise Clause did not require permissive
accommodation, the political branches could shield religious exercise through legislative
accommodation,
34
for example, by making an exception to proscriptive drug laws for
sacramental peyote use.
Professor Michael W. McConnell, whose views on the accommodation theory were
frequently quoted by the majority opinion, defends mandatory
accommodation.
35
However, Prof. Kauper, likewise an accommodationist, favors
permissive accommodation, stating that "as a general proposition, no person should be
allowed to claim that because of his religion he is entitled as a matter of constitutional
right to claim an exemption from general regulatory and tax laws."
36
Prof. Kauper further
explains his position that religious liberty furnishes no ground for claiming immunity to
laws which place reasonable restrictions on overt conduct in the furtherance of public
interests protected by the states police power,
37
as follows:
Where the issue is not the use of governmental power to sanction religious belief and
practices by some positive program but the granting of exemption on religious grounds
from laws of general operation, what determines whether the government is required, or
permitted, to make the accommodation? While a state may appropriately grant
exemptions from its general police and tax laws, it should not be constitutionally required
to do so unless this immunity can properly be claimed as part of the constitutional
guarantee of religious liberty. Thus, exemptions from property tax and military service,
health and labor laws should be at the discretion of government. Whether Sherbert
carried the principle of required accommodation too far is debatable. It may well be that
the court here undertook a determination of questions better left to the legislature and
that in this area, x x x the policy of granting exemptions on religious grounds
should be left to legislative discretion.
38
(Emphasis supplied)
It is true that a test needs to be applied by the Court in determining the validity of a free
exercise claim of exemption as made here by Escritor. The compelling state interest test
in Sherbert pushes the limits of religious liberty too far, and so too does the majority
opinion insofar as it grants Escritor immunity to a law of general operation on the ground
of religious liberty. Making a distinction between permissive accommodation and
mandatory accommodation is more critically important in analyzing free exercise
exemption claims. Such limitations forces the Court to confront how far it can validly set
the limits of religious liberty under the Free Exercise Clause, rather than presenting the
separation theory and accommodation theory as opposite concepts, and then rejecting
relevant and instructive American jurisprudence (such as the Smith cases) just because
it does not espouse the theory selected.
Theories are only guideposts and "there is no magic formula to settle all disputes
between religion and the law, no legal pill to ease the pain of perceived injustice and
religious oppression, and certainly no perfect theory to bind judges or
legislators."
39
The Smith cases, particularly Smith II, cannot be so easily dismissed by
the majority opinion and labeled as "best exemplifying the strict neutrality approach."
The Smith Court affirmed the power and the discretion of legislatures to enact statutory
protection beyond what the Free Exercise Clause required. The U.S. Supreme Court
indicated in Smith II that legislatures could enact accommodations to protect religion
beyond the Free Exercise Clause minimum without "establishing" religion and thereby
running afoul of the Establishment Clause.
40
What the Smith cases espouse, therefore,
is not really the strict neutrality approach, but more of permissive accommodation.
41

Even assuming that the theory of benevolent neutrality and the compelling state interest
test are applicable, the State has a compelling interest in exacting from everyone
connected with the dispensation of justice, from the highest magistrate to the lowest of
its personnel, the highest standard of conduct. This Court has repeatedly held that "the
image of a court of justice is necessarily mirrored in the conduct, official or otherwise, of
the men and women who work thereat."
42
While arguably not constituting "disgraceful
and immoral conduct,"
43
Escritors cohabitation with Quilapio is a patent violation of our
penal law on concubinage that vitiates "the integrity of court personnel and the court
itself."
44
The publics faith and confidence in the administration of justice would certainly
be eroded and undermined if tolerated within the judiciarys ranks are court employees
blatantly violating our criminal laws.
I therefore maintain that Escritors admitted cohabitation with Quilapio is sufficient basis
to hold her guilty of conduct prejudicial to the best interest of the service and to impose
upon her the appropriate penalty.
Equally compelling is the States interest in the preservation of marriage and the family
as basic social institutions,
45
which is ultimately the public policy underlying Articles 334
and 349 of the Revised Penal Code. This Court has recognized in countless cases that
marriage and the family are basic social institutions in which the State is vitally
interested
46
and in the protection of which the State has the strongest
interest.
47
In Domingo v. Court of Appeals,
48
the Court stressed that:
Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social
institution, is the foundation of the family;" as such, it "shall be protected by the State." x
x x So crucial are marriage and the family to the stability and peace of the nation that
their "nature, consequences, and incidents are governed by law and not subject to
stipulation.
The same sentiment has been expressed in Article 149 of the Family Code:
The family, being the foundation of the nation, is a basic social institution which public
policy cherishes and protects. Consequently, family relations are governed by law and
no custom, practice or agreement destructive of the family shall be recognized or given
effect. (Emphasis supplied)
And yet, notwithstanding the foregoing compelling state interests at stake, the majority
all too willingly and easily places them in jeopardy by upholding Escritors claim of
exemption. On this point, Professor William P. Marshall aptly observes that one of the
problems involved in free exercise exemption analysis is that it requires the Court to
weigh the state interest against the interest of the narrower class comprised only of
those seeking exemption. On the other hand, in other doctrinal areas, the Court
balances the state interest in the regulation at issue against the interests of the regulated
class taken as a whole. Prof. Marshall persuasively argues that this leads to both
unpredictability in the exemption balancing process and potential inconsistency in result
"as each regulation may be subject to limitless challenges based upon the peculiar
identity of the challenger."
49
Moreover, Prof. Marshall notes that the exemption balancing
process necessarily leads to underestimating the strength of the countervailing state
interest.
50
Indeed, the state interest in a challenged regulation will seldom be seriously
threatened if only a few persons seek exemption from it.
51

In dismissing the administrative complaint against Escritor, the majority opinion
effectively condones and accords a semblance of legitimacy to her patently unlawful
cohabitation with Quilapio, while in the eyes of the law, Quilapio remains married to his
legal wife. This condonation in fact facilitates the circumvention by Escritor and Quilapio
of Articles 334 and 349 of the Revised Penal Code on concubinage and
bigamy.
52
Without having his first marriage legally dissolved, Quilapio can now continue
to cohabit with Escritor with impunity. How do we reconcile this scenario with the
Constitutions emphatic declaration that marriage is "an inviolable social institution"?
53

By choosing to turn a blind eye to Escritors criminal conduct, the majority is in fact
recognizing and according judicial imprimatur to a practice, custom or agreement that
subverts marriage, albeit one that is sanctioned by a particular religious sect. The
majoritys opinion here bestows "a credibility and legitimacy upon the religious belief in
question simply by its being judicially recognized as constitutionally sacrosanct."
54
This is
another problem that arises in free exercise exemption analysis the benevolent
neutrality approach fails to take into account the role that equality plays in free exercise
theory.
55
While the text of the Free Exercise Clause is consistent with protecting religion
from discrimination, it does not compel discrimination in favor of religion.
56
However, the
benevolent neutrality approach promotes its own form of inequality when under it,
exemptions are granted only to religious claimants like Escritor, whose religiously-
sanctioned but otherwise illegal conjugal arrangement with Quilapio acquires a veneer of
"special judicial reinforcement."
57

Catholics may secure a church annulment of their marriage. A church annulment does
not exempt Catholics from criminal or administrative liability if they cohabit with someone
other than their legal spouse before their marriage is finally annulled by a civil court.
Catholics cannot legally justify before civil courts such act of concubinage on the ground
that the act conforms to their religious beliefs because they have a secured a church
annulment which freed them from their marital vows. If this Court condones Escritors act
of concubinage on religious grounds, then it will have to condone acts of concubinage by
Catholics who have secured church annulment of their marriage even without a final
annulment from a civil court. The majority pushes their opinion on a slippery slope.
It may well be asked how, under a well-meaning but overly solicitous grant of exemption
based on the Freedom of Exercise Clause of our Constitution, an individual can be given
the private right to ignore a generally applicable, religion-neutral law. For this is what the
majority opinion has effectually granted Escritor in dismissing the administrative
complaint against her. The accommodation of Escritors religious beliefs under the
benevolent neutrality approach is too high a price to pay when weighed against its
prejudicial effect on the sound administration of justice and the protection of marriage
and the family as basic social institutions.
Finally, there is even no claim here that concubinage is central to the religious belief of
the Jehovahs Witnesses, or even a part of the religious belief of the Jehovahs
Witnesses. Escritor merely claims that her live-in arrangement with a married man is, in
the words of the majority opinion, "in conformity with her and her partners religious
belief." This case is not an issue of a statute colliding with centrally or vitally held beliefs
of a religious denomination, as in the case of Sherbert. This case is about a religious
cover for an obviously criminal act.
In Sherbert, the conduct in question was the refusal of a member of the Seventh Day
Adventist Church to work on the Sabbath Day or on Saturdays, which prevented
prospective employers from giving petitioner in Sherbert employment. Petitioner in
Sherbert then claimed unemployment benefits, which the State denied because the law
withheld benefits to those who failed without good cause to accept available suitable
work. In Sherbert, the questioned conduct the refusal to work on Saturdays was
part of the religious tenets of the Seventh Day Adventists. The questioned conduct in
Sherbert was not a criminal conduct, unlike the questioned conduct of Escritor in this
case. Clearly, even assuming for the sake of argument that Sherbert remains good law
in the United States and thus has some persuasive force here, still Sherbert is patently
inapplicable to the present case.
The positive law and the institutions of government are concerned not with correct belief
but with overt conduct related to good order, peace, justice, freedom, and community
welfare.
58
Hence, while there are times when government must adapt to, or acquiesce to
meet the needs of religious exercise, there are also times when the exercises a religion
wishes to pursue must be adapted or even prohibited in order to meet the needs of
public policy.
59
For indeed, even religious liberty has its limits. And certainly, "there is a
price to be paid, even by religion, for living in a constitutional democracy."
60

Certainly, observance of provisions of the Revised Penal Code, whose validity or
constitutionality are not even challenged, is a price that all religions in the Philippines
must willingly pay for the sake of good order and peace in the community. To hold
otherwise would, as aptly stated in Reynolds v. U.S.,
61
"make the professed doctrines of
religious belief superior to the law of the land," and in effect "permit every citizen to
become a law unto himself." The majority opinion will make every religion a separate
republic, making religion a haven for criminal conduct that otherwise would be
punishable under the laws of the land. Today concubinage, tomorrow bigamy, will enjoy
protection from criminal sanction under the new doctrine foisted by the majority opinion.
Accordingly, I vote to suspend respondent Soledad S. Escritor for six months and one
day without pay for conduct prejudicial to the best interest of the service. However, the
suspension shall be lifted immediately upon Escritors manifestation to this Court that
she has ceased cohabiting with Luciano D. Quilapio, Jr. Moreover, respondent Escritor
is warned that her continued cohabitation with Quilapio, during or after her suspension
and while Quilapios marriage with his legal wife still subsists, shall merit the penalty of
dismissal from the service.
ANTONIO T. CARPIO
Associate Justice
DIGEST
FACTS:

Soledad Escritor is a court interpreter since 1999 in the RTC of Las Pinas City.
Alejandro Estrada, the complainant, wrote to Judge Jose F. Caoibes, presiding judge of
Branch 253, RTC of Las Pinas City, requesting for an investigation of rumors that
Escritor has been living with Luciano Quilapio Jr., a man not her husband, and had
eventually begotten a son. Escritors husband, who had lived with another woman, died
a year before she entered into the judiciary. On the other hand, Quilapio is still legally
married to another woman. Estrada is not related to either Escritor or Quilapio and is not
a resident of Las Pinas but of Bacoor, Cavite. According to the complainant,
respondent should not be allowed to remain employed in the judiciary for it will appear
as if the court allows such act.

Escritor is a member of the religious sect known as the Jehovahs Witnesses and the
Watch Tower and Bible Tract Society where her conjugal arrangement with Quilapio is in
conformity with their religious beliefs. After ten years of living together, she executed on
July 28, 1991 a Declaration of Pledging Faithfulness which was approved by the
congregation. Such declaration is effective when legal impediments render it impossible
for a couple to legalize their union. Gregorio, Salazar, a member of the Jehovahs
Witnesses since 1985 and has been a presiding minister since 1991, testified and
explained the import of and procedures for executing the declaration which was
completely executed by Escritor and Quilapios in Atimonan, Quezon and was signed by
three witnesses and recorded in Watch Tower Central Office.

ISSUE:

Whether or not respondent should be found guilty of the administrative charge of gross
and immoral conduct and be penalized by the State for such conjugal arrangement.

HELD:

A distinction between public and secular morality and religious morality should be kept in
mind. The jurisdiction of the Court extends only to public and secular morality.

The Court states that our Constitution adheres the benevolent neutrality approach that
gives room for accommodation of religious exercises as required by the Free Exercise
Clause. This benevolent neutrality could allow for accommodation of morality based on
religion, provided it does not offend compelling state interests.


The states interest is the preservation of the integrity of the judiciary by maintaining
among its ranks a high standard of morality and decency. There is nothing in the
OCAs (Office of the Court Administrator) memorandum to the Court that demonstrates
how this interest is so compelling that it should override respondents plea of religious
freedom. Indeed, it is inappropriate for the complainant, a private person, to present
evidence on the compelling interest of the state. The burden of evidence should be
discharged by the proper agency of the government which is the Office of the Solicitor
General.

In order to properly settle the case at bar, it is essential that the government be given an
opportunity to demonstrate the compelling state interest it seeks to uphold in opposing
the respondents position that her conjugal arrangement is not immoral and punishable
as it is within the scope of free exercise protection. The Court could not prohibit and
punish her conduct where the Free Exercise Clause protects it, since this would be an
unconstitutional encroachment of her right to religious freedom. Furthermore, the court
cannot simply take a passing look at respondents claim of religious freedom but must
also apply the compelling state interest test.

IN VIEW WHEREOF, the case is REMANDED to the Office of the Court Administrator.
The Solicitor General is ordered to intervene in the case where it will be given the
opportunity (a) to examine the sincerity and centrality of respondent's claimed religious
belief and practice; (b) to present evidence on the state's "compelling interest" to
override respondent's religious belief and practice; and (c) to show that the means the
state adopts in pursuing its interest is the least restrictive to respondent's religious
freedom. The rehearing should be concluded thirty (30) days from the Office of the Court
Administrator's receipt of this Decision.

Goitia vs. Campo-Rueda (35 Phil. 252)
G.R. No. 11263 November 2, 1916
ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,
vs.
JOSE CAMPOS RUEDA, defendant-appellee.
Eduardo Gutierrez Repide and Felix Socias for appellant.
Sanz, Opisso and Luzuriaga for appellee.

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



Separate Opinions


MORELAND, J ., concurring:
I based my vote in this case upon the ground that a husband cannot, by his own
wrongful acts, relieve himself from the duty to support his wife imposed by law; and
where a husband, by wrongful, illegal, and unbearable conduct, drives his wife from the
domicile fixed by him, he cannot take advantage of her departure to abrogate the law
applicable to the marital relation and repudiate his duties thereunder. In law and for all
purposes within its purview, the wife still remains an inmate of the conjugal domicile; for I
regard it as a principle of law universally recognized that where a person by his wrongful
and illegal acts creates a condition which under ordinary circumstances would produce
the loss of rights or status pertaining to another, the law will, whenever necessary to
protect fully the rights or status of the person affected by such acts, regard the condition
by such acts created as not existing and will recur to and act upon the original situation
of the parties to determine their relative rights or the status of the person adversely
affected.
I do not believe, therefore, that the case is properly conceived by defendant, when the
consideration thereof proceeds solely on the theory that the wife is outside the domicile
fixed by the husband. Under the facts alleged in the complainant the wife is legally still
within the conjugal domicile.

DIGEST
FACTS:

Luisa Goitia y de la Camara, petitioner, and Jose Campos y Rueda, respondent, were
married on January 7, 1915 and had a residence at 115 Calle San Marcelino Manila.
They stayed together for a month before petitioner returned to her parents home. Goitia
filed a complaint against respondent for support outside the conjugal home. It was
alleged that respondent demanded her to perform unchaste and lascivious acts on his
genital organs. Petitioner refused to perform such acts and demanded her husband
other than the legal and valid cohabitation. Since Goitia kept on refusing, respondent
maltreated her by word and deed, inflicting injuries upon her lops, face and different
body parts. The trial court ruled in favor of respondent and stated that Goitia could not
compel her husband to support her except in the conjugal home unless it is by virtue of a
judicial decree granting her separation or divorce from respondent. Goitia filed motion
for review.

ISSUE: Whether or not Goitia can compel her husband to support her outside the
conjugal home.

HELD:

The obligation on the part of the husband to support his wife is created merely in the act
of marriage. The law provides that the husband, who is obliged to support the wife, may
fulfill the obligation either by paying her a fixed pension or by maintaining her in his own
home at his option. However, this option given by law is not absolute. The law will not
permit the husband to evade or terminate his obligation to support his wife if the wife is
driven away from the conjugal home because of his wrongful acts. In the case at bar,
the wife was forced to leave the conjugal abode because of the lewd designs and
physical assault of the husband, she can therefore claim support from the husband for
separate maintenance even outside the conjugal home.

Balogbog vs. CA (G.R. No. 83598, 7 March 1997)
G.R. No. 83598 March 7, 1997
LEONCIA BALOGBOG and GAUDIOSO BALOGBOG, petitioners,
vs.
HONORABLE COURT OF APPEALS, RAMONITO BALOGBOG and GENEROSO
BALOGBOG, respondents.

MENDOZA, J .:
This is a petition for review of the decision
1
of the Court of Appeals, affirming the
decision of the Court of First Instance of Cebu City (Branch IX), declaring private
respondents heirs of the deceased Basilio and Genoveva Balogbog entitled to inherit
from them.
The facts are as follows. Petitioners Leoncia and Gaudioso Balogbog are the children of
Basilio Balogbog and Genoveva Arzibal who died intestate in 1951 and 1961,
respectively. They had an older brother, Gavino, but he died in 1935, predeceasing their
parents.
In 1968, private respondents Ramonito and Generoso Balogbog brought an action for
partition and accounting against petitioners, claiming that they were the legitimate
children of Gavino by Catalina Ubas and that, as such, they were entitled to the one-third
share of Gavino in the estate of their grandparents.
In their answer, petitioners denied knowing private respondents. They alleged that their
brother Gavino died single and without issue in their parents' residence at Tag-amakan,
Asturias, Cebu. In the beginning they claimed that the properties of the estate had been
sold to them by their mother when she was still alive, but they later withdrew this
allegation.
Private respondents presented Priscilo Y. Trazo,
2
then 81 years old, mayor of the
municipality of Asturias from 1928 to 1934, who testified that he knew Gavino and
Catalina to be husband and wife and Ramonito to be their first child. On
crossexamination, Trazo explained that he knew Gavino and Catalina because they
performed at his campaign rallies, Catalina as "balitaw" dancer and Gavino Balogbog as
her guitarist. Trazo said he attended the wedding of Gavino and Catalina sometime in
1929, in which Rev. Father Emiliano Jomao-as officiated and Egmidio Manuel, then a
municipal councilor, acted as one of the witnesses.
The second witness presented was Matias Pogoy,
3
a family friend of private
respondents, who testified that private respondents are the children of Gavino and
Catalina. According to him, the wedding of Gavino and Catalina was solemnized in the
Catholic Church of Asturias, Cebu and that he knew this because he attended their
wedding and was in fact asked by Gavino to accompany Catalina and carry her wedding
dress from her residence in Camanaol to the poblacion of Asturias before the wedding
day. He testified that Gavino died in 1935 in his residence at Obogon, Balamban, Cebu,
in the presence of his wife. (This contradicts petitioners' claim made in their answer that
Gavino died in the ancestral house at Tag-amakan, Asturias.) Pogoy said he was a
carpenter and he was the one who had made the coffin of Gavino. He also made the
coffin of the couple's son, Petronilo, who died when he was six.
Catalina Ubas testified concerning her marriage to Gavino.
4
She testified that after the
wedding, she was handed a "receipt," presumably the marriage certificate, by Fr.
Jomao-as, but it was burned during the war. She said that she and Gavino lived together
in Obogon and begot three children, namely, Ramonito, Petronilo, and Generoso.
Petronilo died after an illness at the age of six. On crossexamination, she stated that
after the death of Gavino, she lived in common law relation with a man for a year and
then they separated.
Private respondents produced a certificate from the Office of the Local Civil Registrar
(Exh. P) that the Register of Marriages did not have a record of the marriage of Gavino
and Catalina, another certificate from the Office of the Treasurer (Exh. L) that there was
no record of the birth of Ramonito in that office and, for this reason, the record must be
presumed to have been lost or destroyed during the war, and a certificate by the Parish
Priest of Asturias that there was likewise no record of birth of Ramonito in the church,
the records of which were either lost or destroyed during the war. (Exh. M)
On the other hand, as defendant below, petitioner Leoncia Balogbog testified
5
that
Gavino died single at the family residence in Asturias. She denied that her brother had
any legitimate children and stated that she did not know private respondents before this
case was filed. She obtained a certificate (Exh. 10) from the Local Civil Registrar of
Asturias to the effect that that office did not have a record of the names of Gavino and
Catalina. The certificate was prepared by Assistant Municipal Treasurer Juan Maranga,
who testified that there was no record of the marriage of Gavino and Catalina in the
Book of Marriages between 1925 to 1935.
6

Witness Jose Narvasa testified
7
that Gavino died single in 1935 and that Catalina lived
with a certain Eleuterio Keriado after the war, although he did not know whether they
were legally married. He added, however, that Catalina had children by a man she had
married before the war, although he did not know the names of the children. On
crossexamination, Narvasa stated that Leoncia Balogbog, who requested him to testify,
was also his bondsman in a criminal case filed by a certain Mr. Cuyos.
Ramonito Balogbog was presented
8
to rebut Leoncia Balogbog's testimony.
On June 15, 1973, the Court of First Instance of Cebu City rendered judgment for private
respondents (plaintiffs below), ordering petitioners to render an accounting from 1960
until the finality of its judgment, to partition the estate and deliver to private respondents
one-third of the estate of Basilio and Genoveva, and to pay attorney's fees and costs.
Petitioners filed a motion for new trial and/or reconsideration, contending that the trial
court erred in not giving weight to the certification of the Office of the Municipal
Treasurer of Asturias (Exh. 10) to the effect that no marriage of Gavino and Catalina was
recorded in the Book of Marriages for the years 1925-1935. Their motion was denied by
the trial court, as was their second motion for new trial and/or reconsideration based on
the church records of the parish of Asturias which did not contain the record of the
alleged marriage in that church.
On appeal, the Court of Appeals affirmed. It held that private respondents failed to
overcome the legal presumption that a man and a woman deporting themselves as
husband and wife are in fact married, that a child is presumed to be legitimate, and that
things happen according to the ordinary course of nature and the ordinary habits of
life.
9
Hence, this petition.
We find no reversible error committed by the Court of Appeals.
First. Petitioners contend that the marriage of Gavino and Catalina should have been
proven in accordance with Arts. 53 and 54 of the Civil Code of 1889 because this was
the law in force at the time the alleged marriage was celebrated. Art. 53 provides that
marriages celebrated under the Civil Code of 1889 should be proven only by a certified
copy of the memorandum in the Civil Registry, unless the books thereof have not been
kept or have been lost, or unless they are questioned in the courts, in which case any
other proof, such as that of the continuous possession by parents of the status of
husband and wife, may be considered, provided that the registration of the birth of their
children as their legitimate children is also submitted in evidence.
This Court noted long ago, however, that Arts. 42 to 107 of the Civil Code of 1889 of
Spain did not take effect, having been suspended by the Governor General of the
Philippines shortly after the extension of that code to this
country.
10
Consequently, Arts. 53 and 54 never came into force. Since this case was
brought in the lower court in 1968, the existence of the marriage must be determined in
accordance with the present Civil Code, which repealed the provisions of the former Civil
Code, except as they related to vested rights,
11
and the rules on evidence. Under the
Rules of Court, the presumption is that a man and a woman conducting themselves as
husband and wife are legally married.
12
This presumption may be rebutted only by
cogent proof to the contrary.
13
In this case, petitioners' claim that the certification
presented by private respondents (to the effect that the record of the marriage had been
lost or destroyed during the war) was belied by the production of the Book of Marriages
by the assistant municipal treasurer of Asturias. Petitioners argue that this book does not
contain any entry pertaining to the alleged marriage of private respondents' parents.
This contention has no merit. In Pugeda v. Trias,
14
the defendants, who questioned the
marriage of the plaintiffs, produced a photostatic copy of the record of marriages of the
Municipality of Rosario, Cavite for the month of January, 1916, to show that there was
no record of the alleged marriage. Nonetheless, evidence consisting of the testimonies
of witnesses was held competent to prove the marriage. Indeed, although a marriage
contract is considered primary evidence of marriage,
15
the failure to present it is not
proof that no marriage took place. Other evidence may be presented to prove
marriage.
16
Here, private respondents proved, through testimonial evidence, that
Gavino and Catalina were married in 1929; that they had three children, one of whom
died in infancy; that their marriage subsisted until 1935 when Gavino died; and that their
children, private respondents herein, were recognized by Gavino's family and by the
public as the legitimate children of Gavino.
Neither is there merit in the argument that the existence of the marriage cannot be
presumed because there was no evidence showing in particular that Gavino and
Catalina, in the presence of two witnesses, declared that they were taking each other as
husband and wife.
17
An exchange of vows can be presumed to have been made from
the testimonies of the witnesses who state that a wedding took place, since the very
purpose for having a wedding is to exchange vows of marital commitment. It would
indeed be unusual to have a wedding without an exchange of vows and quite unnatural
for people not to notice its absence.
The law favors the validity of marriage, because the State is interested in the
preservation of the family and the sanctity of the family is a matter of constitutional
concern. As stated in Adong v. Cheong Seng Gee:
18

The basis of human society throughout the civilized world is that of
marriage. Marriage in this jurisdiction is not only a civil contract, but it is a
new relation, an institution in the maintenance of which the public is
deeply interested. Consequently, every intendment of the law leans
toward legalizing matrimony. Persons dwelling together in apparent
matrimony are presumed, in the absence of any counter-presumption or
evidence special to the case, to be in fact married. The reason is that
such is the common order of society, and if the parties were not what they
thus hold themselves out as being, they would be living in the constant
violation of decency and of law. A presumption established by our Code
of Civil Procedure is "that a man and a woman deporting themselves as
husband and wife have entered into a lawful contract of marriage." (Sec.
334, No. 28)Semper praesumitur pro matrimonio Always presume
marriage. (U.S. vs. Villafuerte and Rabano [1905], 4 Phil., 476; Son Cui
vs. Guepangco, supra; U.S. vs. Memoracion and Uri [1916], 34 Phil., 633;
Teter vs. Teter [1884], 101 Ind., 129.)
Second. Petitioners contend that private respondents' reliance solely on testimonial
evidence to support their claim that private respondents had been in the continuous
possession of the status of legitimate children is contrary to Art. 265 of the Civil Code
which provides that such status shall be proven by the record of birth in the Civil
Register, by an authentic document or by final judgment. But in accordance with Arts.
266 and 267, in the absence of titles indicated in Art. 265, the filiation of children may be
proven by continuous possession of the status of a legitimate child and by any other
means allowed by the Rules of Court or special laws. Thus the Civil Code provides:
Art. 266. In the absence of the titles indicated in the preceding article, the
filiation shall be proved by the continuous possession of status of a
legitimate child.
Art. 267. In the absence of a record of birth, authentic document, final
judgment or possession of status, legitimate filiation may be proved by
any other means allowed by the Rules of Court and special laws.
Petitioners contend that there is no justification for presenting testimonies as to the
possession by private respondents of the status of legitimate children because the Book
of Marriages for the years 1928-1929 is available.
What is in issue, however, is not the marriage of Gavino and Catalina but the filiation of
private respondents as their children. The marriage of Gavino and Catalina has already
been shown in the preceding discussion. The treasurer of Asturias, Cebu certified that
the records of birth of that municipality for the year 1930 could not be found, presumably
because they were lost or destroyed during the war (Exh. L). But Matias Pogoy testified
that Gavino and Catalina begot three children, one of whom, Petronilo, died at the age of
six. Catalina testified that private respondents Ramonito and Generoso are her children
by Gavino Balogbog. That private respondents are the children of Gavino and Catalina
Balogbog cannot therefore be doubted.
Moreover, the evidence in the record shows that petitioner Gaudioso Balogbog admitted
to the police of Balamban, Cebu that Ramonito is his nephew. As the Court of Appeals
found:
Ironically, it is appellant Gaudioso himself who supplies the clincher that
tips the balance in favor of the appellees. In an investigation before the
Police Investigating Committee of Balamban, Cebu, held on March 8,
1968, conducted for the purpose of inquiring into a complaint filed by
Ramonito against a patrolman of the Balamban police force, Gaudioso
testified that the complainant in that administrative case is his nephew.
Excerpts from the transcript of the proceedings conducted on that date
(Exhs. "N", "N-1", "N-2", "N-3" and "N-4") read:
Atty. Kiamco May it please this investigative body.
Q. Do you know the complainant in this Administrative
Case No. 1?
A. Yes I know.
Q. Why do you know him?
A. I know because he is my nephew.
Q. Are you in good terms with your nephew, the
complainant?
A. Yes.
Q. Do you mean to say that you are close to him?
A. Yes. We are close.
Q. Why do you say you are close?
A. We are close because aside from the fact that he is my
nephew we were also leaving (sic) in the same house in
Butuan City, and I even barrow (sic) from him money in the
amount of P300.00, when I return to Balamban, Cebu.
xxx xxx xxx
Q. Why is Ramonito Balogbog your nephew?
A. Because he is the son of my elder brother.
This admission of relationship is admissible against Gaudioso although
made in another case. It is considered as a reliable declaration against
interest (Rule 130, Section 22). Significantly, Gaudioso did not try to offer
any explanation to blunt the effects of that declaration. He did not even
testify during the trial. Such silence can only mean that Ramonito is
indeed the nephew of Gaudioso, the former being the son of Gavino.
WHEREFORE, the decision appealed from is AFFIRMED.
SO ORDERED.
Regalado, Romero, Puno and Torres, Jr., JJ., concur.

DIGEST
FACTS:

Ramonito and Generoso Balogbog filed an action for partition and accounting against
their Aunt Leoncia and Uncle Gaudioso for partition and accounting of their
grandparents estate at the Court of First Instance of Cebu City which was granted by
the latter. Leoncia and Gaudioso appealed to the Court of Appeals but the latter
affirmed the lower courts decision.

Basilio Balogbog and Genoveva Arnibal died intestate in 1951 and 1961 respectively.
They have three children, Leoncia, Gaudioso and Gavino, their older brother who died in
1935. Ramoncito and Generoso was claiming that they were the legitimate children of
Gavino by Catalina Ubas and that, as such they were entitled to the one-third share in
the estate of their grandparents. However, Leoncia and Gaudioso claimed they are not
aware that their brother has 2 sons and that he was married. They started to question
the validity of the marriage between their brother Gavino and Catalina despite how
Gaudioso himself admitted during a police investigation proceeding that indeed
Ramonito is his nephew as the latter is the son of his elder brother Gavino.

In the efforts of Ramoncito and Generoso to prove the validity of their parents marriage,
they presented Priscilo Trazo, 81 years old then mayor of Asturias from 1928 to 1934
and Matias Pogoy who both testified that he knew Gavino and Catalina to be husband
and wife and that they have three children. Catalina herself testified that she was
handed a receipt presumably the marriage certificate by Fr. Jomao-as but it was
burned during the war.

On the other hand,Leoncia claimed that her brother Gavino died single at the family
residence in Asturias. She obtained a certificate from the local Civil Registrar of Asturias
to the effect that the office did not have a record of the names of Gavino and Catalina
which was prepared by Assistant Municipal Treasurer Juan Maranga who testified in the
hearing as well.

Leoncia and Gaudioso contended that the marriage of Gavino and Catalina should have
been proven in accordance with Arts. 53 and 54 of the Civil Code of 1889 because this
was the law in force at the time of the alleged marriage was celebrated.

Art. 53 provides that marriages celebrated under the Civil Code of 1889 should be
proven only by a certified copy of the memorandum in the Civil Registry, unless the
books thereof have not been kept or have been lost, or unless they are questioned in the
courts, in which case any other proof, such as that of the continuous possession by
parents of the status of husband and wife, may be considered, provided that the
registration of the birth of their children as their legitimate children is also submitted in
evidence.

ISSUE: Whether or not Gavino and Catalinas marriage is valid.

HELD:

Supreme Court affirmed the decisions of the trial court and Court of Appeals in rendering
Gavino and Catalinas marriage as valid and thus entitle Ramonito and Generoso one
third of their grandparents estate.

The court further states that Arts. 42 to 107 of the Civil Code of 889 of Spain did not take
effect, having been suspended by the Governor General of the Philippines shortly after
the extension of that code of this country. Therefore, Arts. 53 and 54 never came into
force. Since this case was brought in the lower court in 1968, the existence of the
marriage must be determined in accordance with the present Civil Code, which repealed
the provisions of the former Civil Code, except as they related to vested rights, and the
rules of evidence. Under the Rules of Court, the presumption is that a man and a woman
conducting themselves as husband and wife are legally married.

Albeit, a marriage contract is considered primary evidence of marriage, failure to present
it would not mean that marriage did not take place. Other evidence may be presented
where in this case evidence consisting of the testimonies of witnesses was held
competent to prove the marriage of Gavino and Catalina in 1929, that they have three
children, one of whom, Petronilo, died at the age of six and that they are recognized by
Gavinos family and by the public as the legitimate children of Gavino.

Article 2-6
Section 444, Local Government Code
Eugenio vs. Velez (185 SCRA 45)
G.R. No. 85140 May 17, 1990
TOMAS EUGENIO, SR., petitioner,
vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20,
Cagayan de Oro City, DEPUTY SHERIFF JOHNSON TAN, JR., Deputy Sheriff of
Branch 20, Regional Trial Court, Cagayan de Oro City, and the Private
Respondents, the petitioners in Sp. Proc. No. 88-55, for "Habeas Corpus", namely:
CRISANTA VARGAS-SANCHEZ, SANTOS and NARCISA VARGAS-
BENTULAN, respondents.
G.R. No. 86470 May 17, 1990.
TOMAS EUGENIO, petitioner-appellant,
vs.
HON. ALEJANDRO M. VELEZ, Presiding Judge, Regional Trial Court, Branch 20,
Cagayan de Oro City, CRISANTA VARGAS-SANCHEZ, FELIX VARGAS, ERNESTO
VARGAS, NATIVIDAD VARGAS-CAGAPE, NENITA VARGAS-CADENAS, LUDIVINA
VARGAS-DE LOS SANTOS and NARCISA VARGAS-BENTULAN,respondents-
appellees.
Maximo G. Rodriguez for petitioner.
Erasmo B. Damasing and Oliver Asis Improso for respondents.

PADILLA, J .:
On 5 October 1988, petitioner came to this Court with a petition for certiorari and
prohibition with application for restraining order and/or injunction (docketed as G.R. No.
85140) seeking to enjoin respondent Judge from proceeding with the Habeas
Corpus case (Sp. Proc. No. 88- 55, RTC, Branch 20, Cagayan de Oro City), * the
respondent Sheriff from enforcing and implementing the writ and orders of the
respondent Judge dated 28, 29, and 30 September 1988, and to declare said writ and
orders as null and void. In a resolution issued on 11 October 1988, this Court required
comment from the respondents on the petition but denied the application for a temporary
restraining order.
The records disclose the following:
Unaware of the death on 28 August 1988 of (Vitaliana Vargas Vitaliana for brevity), her
full blood brothers and sisters, herein private respondents (Vargases', for brevity) filed on
27 September 1988, a petition for habeas corpus before the RTC of Misamis Oriental
(Branch 20, Cagayan de Oro City) alleging that Vitaliana was forcibly taken from her
residence sometime in 1987 and confined by herein petitioner in his palacial residence in
Jasaan, Misamis Oriental. Despite her desire to escape, Vitaliana was allegedly
deprived of her liberty without any legal authority. At the time the petition was filed, it was
alleged that Vitaliana was 25 years of age, single, and living with petitioner Tomas
Eugenio.
The respondent court in an order dated 28 September 1988 issued the writ of habeas
corpus, but the writ was returned unsatisfied. Petitioner refused to surrender the body of
Vitaliana (who had died on 28 August 1988) to the respondent sheriff, reasoning that a
corpse cannot be the subject of habeas corpus proceedings; besides, according to
petitioner, he had already obtained a burial permit from the Undersecretary of the
Department of Health, authorizing the burial at the palace quadrangle of the Philippine
Benevolent Christian Missionary, Inc. (PBCM), a registered religious sect, of which he
(petitioner) is the Supreme President and Founder.
Petitioner also alleged that Vitaliana died of heart failure due to toxemia of pregnancy in
his residence on 28 August 1988. As her common law husband, petitioner claimed legal
custody of her body. These reasons were incorporated in an explanation filed before the
respondent court. Two (2) orders dated 29 and 30 September 1988 were then issued by
respondent court, directing delivery of the deceased's body to a funeral parlor in
Cagayan de Oro City and its autopsy.
Petitioner (as respondent in the habeas corpus proceedings) filed an urgent motion to
dismiss the petition therein, claiming lack of jurisdiction of the court over the nature of
the action under sec. 1(b) of Rule 16 in relation to sec. 2, Rule 72 of the Rules of
Court.
1
A special proceeding for habeas corpus, petitioner argued, is not applicable to a
dead person but extends only to all cases of illegal confinement or detention of a live
person.
Before resolving the motion to dismiss, private respondents (as petitioners below) were
granted leave to amend their petition.
2
Claiming to have knowledge of the death of
Vitaliana only on 28 September 1988 (or after the filing of thehabeas corpus petition),
private respondents (Vargases') alleged that petitioner Tomas Eugenia who is not in any
way related to Vitaliana was wrongfully interfering with their (Vargases') duty to bury her.
Invoking Arts. 305 and 308 of the Civil Code,
3
the Vargases contended that, as the next
of kin in the Philippines, they are the legal custodians of the dead body of their sister
Vitaliana. An exchange of pleadings followed. The motion to dismiss was finally
submitted for resolution on 21 October 1988.
In the absence of a restraining order from this Court, proceedings continued before the
respondent court; the body was placed in a coffin, transferred to the Greenhills Memorial
Homes in Cagayan de Oro City, viewed by the presiding Judge of respondent court, and
examined by a duly authorized government pathologist.
4

Denying the motion to dismiss filed by petitioner, the court a quo held in an
order,
5
dated 17 November 1988, that:
It should be noted from the original petition, to the first amended petition,
up to the second amended petition that the ultimate facts show that if the
person of Vitaliana Vargas turns out to be dead then this Court is being
prayed to declare the petitioners as the persons entitled to the custody,
interment and/or burial of the body of said deceased. The Court,
considering the circumstance that Vitaliana Vargas was already dead on
August 28, 1988 but only revealed to the Court on September 29, 1988
by respondent's counsel, did not lose jurisdiction over the nature and
subject matter of this case because it may entertain this case thru the
allegations in the body of the petition on the determination as to who is
entitled to the custody of the dead body of the late Vitaliana Vargas as
well as the burial or interment thereof, for the reason that under the
provisions of Sec. 19 of Batas Pambansa Blg. 129, which reads as
follows:
Sec. 19. Jurisdiction in civil cases. Regional Trial Courts shall exercise
exclusive original jurisdiction:
(1) In all civil actions in which the subject of the litigation is
incapable of pecuniary estimation;
xxx xxx xxx
(5) In all actions involving the contract of marriage and
marital relations;
(6) In all cases not within the exclusive jurisdiction of any
court, tribunal, person or body exercising judicial or quasi-
judicial functions:
xxx xxx xxx
it so provides that the Regional Trial Court has exclusive original
jurisdiction to try this case. The authority to try the issue of custody and
burial of a dead person is within the lawful jurisdiction of this Court
because of Batas Pambansa Blg. 129 and because of the allegations of
the pleadings in this case, which are enumerated in Sec. 19, pars. 1, 5
and 6 of Batas Pambansa Blg. 129.
Thereafter, the court a quo proceeded as in or civil cases and, in due course, rendered a
decision on 17 January 1989,
6
resolving the main issue of whether or not said court
acquired jurisdiction over the case by treating it as an action for custody of a dead body,
without the petitioners having to file a separate civil action for such relief, and without the
Court first dismissing the original petition for habeas corpus.
Citing Sections 19 and 20 of Batas Pambansa Blg. 129 (the Judiciary Reorganization
Act of 1981),
7
Sections 5 and 6 of Rule 135 of the Rules of Court
8
Articles 305 and 308
in relation to Article 294 of the Civil Code and Section 1104 of the Revised
Administrative Code,
9
the decision stated:
. . . . By a mere reading of the petition the court observed that the
allegations in the original petition as well as in the two amended petitions
show that Vitaliana Vargas has been restrained of her liberty and if she
were dead then relief was prayed for the custody and burial of said dead
person. The amendments to the petition were but elaborations but the
ultimate facts remained the same, hence, this court strongly finds that this
court has ample jurisdiction to entertain and sit on this case as an action
for custody and burial of the dead body because the body of the petition
controls and is binding and since this case was raffled to this court to the
exclusion of all other courts, it is the primary duty of this court to decide
and dispose of this case. . . . .
10

Satisfied with its jurisdiction, the respondent court then proceeded to the matter of
rightful custody over the dead body, (for purposes of burial thereof). The order of
preference to give support under Art. 294 was used as the basis of the award. Since
there was no surviving spouse, ascendants or descendants, the brothers and sisters
were preferred over petitioner who was merely a common law spouse, the latter being
himself legally married to another woman.
11

On 23 January 1989, a new petition for review with application for a temporary
restraining order and/or preliminary injunction was filed with this Court (G.R. No. 86470).
Raised therein were pure questions of law, basically Identical to those raised in the
earlier petition (G.R. No. 85140); hence, the consolidation of both cases.
12
On 7
February 1989, petitioner filed an urgent motion for the issuance of an injunction to
maintain status quo pending appeal, which this Court denied in a resolution dated 23
February 1989 stating that "Tomas Eugenio has so far failed to sufficiently establish a
clear legal right to the custody of the dead body of Vitaliana Vargas, which now needs a
decent burial." The petitions were then submitted for decision without further pleadings.
Between the two (2) consolidated petitions, the following issues are raised:
1. propriety of a habeas corpus proceeding under Rule 102 of the Rules
of Court to recover custody of the dead body of a 25 year old female,
single, whose nearest surviving claimants are full blood brothers and
sisters and a common law husband.
2. jurisdiction of the RTC over such proceedings and/or its authority to
treat the action as one for custody/possession/authority to bury the
deceased/recovery of the dead.
3. interpretation of par. 1, Art. 294 of the Civil Code (Art.
199 of the new Family Code) which states:
Art. 294. The claim for support, when proper and two or
more persons are obliged to give it, shall be made in the
following order:
(1) From the spouse;
xxx xxx xxx
Section 19, Batas Pambansa Blg. 129 provides for the exclusive original jurisdiction of
the Regional Trial Courts over civil cases. Under Sec. 2, Rule 102 of the Rules of Court,
the writ of habeas corpus may be granted by a Court of First Instance (now Regional
Trial Court). It is an elementary rule of procedure that what controls is not the caption of
the complaint or petition; but the allegations therein determine the nature of the action,
and even without the prayer for a specific remedy, proper relief may nevertheless be
granted by the court if the facts alleged in the complaint and the evidence introduced so
warrant.
13

When the petition for habeas corpus was filed before the court a quo, it was not certain
whether Vitaliana was dead or alive. While habeas corpus is a writ of right, it will not
issue as a matter of course or as a mere perfimetory operation on the filing of the
petition. Judicial discretion is exercised in its issuance, and such facts must be made to
appear to the judge to whom the petition is presented as, in his judgment, prima
facie entitle the petitioner to the writ.
14
While the court may refuse to grant the writ if the
petition is insufficient in form and substance, the writ should issue if the petition complies
with the legal requirements and its averments make a prima facie case for relief.
However, a judge who is asked to issue a writ of habeas corpus need not be very critical
in looking into the petition for very clear grounds for the exercise of this jurisdiction. The
latter's power to make full inquiry into the cause of commitment or detention will enable
him to correct any errors or defects in the petition.
15

In Macazo and Nunez vs. Nunez, 16 the Court frowned upon the dismissal of a habeas
corpus petition filed by a brother to obtain custody of a minor sister, stating:
All these circumstances notwithstanding, we believe that the case should
not have been dismissed. The court below should not have overlooked
that by dismissing the petition, it was virtually sanctioning the continuance
of an adulterous and scandalous relation between the minor and her
married employer, respondent Benildo Nunez against all principles of law
and morality. It is no excuse that the minor has expressed preference for
remaining with said respondent, because the minor may not chose to
continue an illicit relation that morals and law repudiate.
xxx xxx xxx
The minor's welfare being the paramount consideration, the court below
should not allow the technicality, that Teofilo Macazo was not originally
made a party, to stand in the way of its giving the child full protection.
Even in a habeas corpus proceeding the court had power to award
temporary custody to the petitioner herein, or some other suitable person,
after summoning and hearing all parties concerned. What matters is that
the immoral situation disclosed by the records be not allowed to
continue.
17

After the fact of Vitaliana's death was made known to the petitioners in the habeas
corpus proceedings,amendment of the petition for habeas corpus, not dismissal, was
proper to avoid multiplicity of suits. Amendments to pleadings are generally favored and
should be liberally allowed in furtherance of justice in order that every case may so far
as possible be determined on its real facts and in order to expedite the trial of cases or
prevent circuity of action and unnecessary expense, unless there are circumstances
such as inexcusable delay or the taking of the adverse party by surprise or the like,
which justify a refusal of permission to amend.
18
As correctly alleged by respondents,
the writ of habeas corpus as a remedy became moot and academic due to the death of
the person allegedly restrained of liberty, but the issue of custody remained, which the
court a quo had to resolve.
Petitioner claims he is the spouse contemplated under Art. 294 of the Civil Code, the
term spouse used therein not being preceded by any qualification; hence, in the absence
of such qualification, he is the rightful custodian of Vitaliana's body. Vitaliana's brothers
and sisters contend otherwise. Indeed, Philippine Law does not recognize common law
marriages. A man and woman not legally married who cohabit for many years as
husband and wife, who represent themselves to the public as husband and wife, and
who are reputed to be husband and wife in the community where they live may be
considered legally mauled in common law jurisdictions but not in the Philippines.
19

While it is true that our laws do not just brush aside the fact that such relationships are
present in our society, and that they produce a community of properties and interests
which is governed by law,
20
authority exists in case law to the effect that such form of
co-ownership requires that the man and woman living together must not in any way be
incapacitated to contract marriage.
21
In any case, herein petitioner has a subsisting
marriage with another woman, a legal impediment which disqualified him from even
legally marrying Vitaliana. In Santero vs. CFI of Cavite,
22
,the Court, thru Mr. Justice
Paras, interpreting Art. 188 of the Civil Code (Support of Surviving Spouse and Children
During Liquidation of Inventoried Property) stated: "Be it noted however that with respect
to 'spouse', the same must be the legitimate 'spouse' (not common-law spouses)."
There is a view that under Article 332 of the Revised Penal Code, the term "spouse"
embraces common law relation for purposes of exemption from criminal liability in cases
of theft, swindling and malicious mischief committed or caused mutually by spouses. The
Penal Code article, it is said, makes no distinction between a couple whose cohabitation
is sanctioned by a sacrament or legal tie and another who are husband and wife de
facto.
23
But this view cannot even apply to the facts of the case at bar. We hold that the
provisions of the Civil Code, unless expressly providing to the contrary as in Article 144,
when referring to a "spouse" contemplate a lawfully wedded spouse. Petitioner vis-a-vis
Vitaliana was not a lawfully-wedded spouse to her; in fact, he was not legally capacitated
to marry her in her lifetime.
Custody of the dead body of Vitaliana was correctly awarded to her surviving brothers
and sisters (the Vargases). Section 1103 of the Revised Administrative Code provides:
Sec. 1103. Persons charged with duty of burial. The immediate duty of
burying the body of a deceased person, regardless of the ultimate liability
for the expense thereof, shall devolve upon the persons hereinbelow
specified:
xxx xxx xxx
(b) If the deceased was an unmarried man or woman, or a
child, and left any kin, the duty of burial shall devolve upon
the nearest of kin of the deceased, if they be adults and
within the Philippines and in possession of sufficient
means to defray the necessary expenses.
WHEREFORE, the decision appealed from is AFFIRMED. Both petitions are hereby
DISMISSED. No Costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin,
Sarmiento, Cortes, Medialdea and Regalado, JJ., concur.
Gancayco and Grino-Aquino, JJ., are on leave.
DIGEST
FACTS:

Vitaliana Vargas brothers and sisters unaware of the formers death on August 28, 1988
filed a petition for Habeas Corpus on September 27, 1988 before the RTC of Misamis
Oriental alleging that she was forcible taken from her residence sometime in 1987 and
was confined by the herein petitioner, Tomas Eugenio in his palacial residence in
Jasaan, Misamis Oriental. The court then issued a writ of habeas corpus but petitioner
refused to surrender the Vitalianas body to the sheriff on the ground that a corpse
cannot be subjected to habeas corpus proceedings. Vitaliana, 25 year old single, died of
heart failure due to toxemia of pregnancy in Eugenios residence. The court ordered that
the body should be delivered to a funeral parlor for autopsy but Eugenio assailed the
lack of jurisdiction of the court.

ISSUE: Whether or not the petitioner can claim custody of the deceased.

HELD:

The court held that the custody of the dead body of Vitaliana was correctly awarded to
the surviving brothers and sisters pursuant to Section 1103 of the Revised
Administrative Code which provides:

Persons charged with duty of burial- if the deceased was an unmarried man or woman
or a child and left any kin; the duty of the burial shall devolve upon the nearest kin of the
deceased.

Albeit, petitioner claims he is the spouse as contemplated under Art. 294 of the Civil
Code, Philippine law does not recognize common law marriages where a man and a
woman not legally married who cohabit for many years as husband and wife, who
represent themselves to the public as husband and wife, and who are reputed to be
husband and wife in the community where they live may be considered legally mauled in
common law jurisdictions. In addition, it requires that the man and woman living
together must not in any way be incapacitated to contract marriage. Whereas, the
petitioner has a subsisting marriage with another woman, legal impediment that
disqualified him from even legally marrying Vitaliana.

Cosca Vs. Palaypayon (237 SCRA 249)
A.M. No. MTJ-92-721 September 30, 1994
JUVY N. COSCA, EDMUNDO B. PERALTA, RAMON C. SAMBO, and APOLLO A.
VILLAMORA, complainants,
vs.
HON. LUCIO P. PALAYPAYON, JR., Presiding Judge, and NELIA B. ESMERALDA-
BAROY, Clerk of Court II, both of the Municipal Trial Court of Tinambac,
Camarines Sur, respondents.
Esteban R. Abonal for complainants.
Haide B. Vista-Gumba for respondents.

PER CURIAM, J .:
Complainants Juvy N. Cosca, Edmundo B. Peralta, Ramon C. Sambo, and Apollo
Villamora, are Stenographer I, Interpreter I, Clerk II, and Process Server, respectively, of
the Municipal Trial Court of Tinambac, Camarines Sur. Respondents Judge Lucio P.
Palaypayon, Jr. and Nelia B. Esmeralda-Baroy are respectively the Presiding Judge and
Clerk of Court II of the same court.
In an administrative complaint filed with the Office of the Court Administrator on October
5, 1992, herein respondents were charged with the following offenses, to wit: (1) illegal
solemnization of marriage; (2) falsification of the monthly reports of cases; (3) bribery in
consideration of an appointment in the court; (4) non-issuance of receipt for cash bond
received; (5) infidelity in the custody of detained prisoners; and (6) requiring payment of
filing fees from exempted entities.
1

Pursuant to a resolution issued by this Court respondents filed their respective
Comments.
2
A Reply to Answers of Respondents was filed by complainants.
3
The case
was thereafter referred to Executive Judge David C. Naval of the Regional Trial Court,
Naga City, for investigation report and recommendation. The case was however
transferred to First Assistant Executive Judge Antonio N. Gerona when Judge Naval
inhibited himself for the reason that his wife is a cousin of respondent Judge
Palaypayon, Jr.
4

The contending versions of the parties regarding the factual antecedents of this
administrative matter, as culled from the records thereof, are set out under each
particular charge against respondents.
1. Illegal solemnization of marriage
Complainants allege that respondent judge solemnized marriages even without the
requisite marriage license. Thus, the following couples were able to get married by the
simple expedient of paying the marriage fees to respondent Baroy, despite the absence
of a marriage license, viz.: Alano P. Abellano and Nelly Edralin, Francisco Selpo and
Julieta Carrido, Eddie Terrobias and Maria Gacer, Renato Gamay and Maricris Belga,
Arsenio Sabater and Margarita Nacario, and Sammy Bocaya and Gina Bismonte. As a
consequence, their marriage contracts (Exhibits B, C, D, F, G, and A, respectively) did
not reflect any marriage license number. In addition, respondent judge did not sign their
marriage contracts and did not indicate the date of solemnization, the reason being that
he allegedly had to wait for the marriage license to be submitted by the parties which
was usually several days after the ceremony. Indubitably, the marriage contracts were
not filed with the local civil registrar. Complainant Ramon Sambo, who prepares the
marriage contracts, called the attention of respondents to the lack of marriage licenses
and its effect on the marriages involved, but the latter opted to proceed with the
celebration of said marriages.
Respondent Nelia Baroy claims that when she was appointed Clerk of Court II, the
employees of the court were already hostile to her, especially complainant Ramon
Sambo who told her that he was filing a protest against her appointment. She avers that
it was only lately when she discovered that the court had a marriage Register which is in
the custody of Sambo; that it was Sambo who failed to furnish the parties copies of the
marriage contract and to register these with the local civil registrar; and that apparently
Sambo kept these marriage contracts in preparation for this administrative case.
Complainant Sambo, however, claims that all file copies of the marriage contracts were
kept by respondent Baroy, but the latter insists that she had instructed Sambo to follow
up the submission by the contracting parties of their marriage licenses as part of his
duties but he failed to do so.
Respondent Judge Palaypayon, Jr. contends that the marriage between Alano P.
Abellano and Nelly Edralin falls under Article 34 of the Civil Code, hence it is exempt
from the marriage license requirement; that he gave strict instructions to complainant
Sambo to furnish the couple a copy of the marriage contract and to file the same with the
civil registrar, but the latter failed to do so; that in order to solve the problem, the
spouses subsequently formalized their marriage by securing a marriage license and
executing their marriage contract, a copy of which was filed with the civil registrar; that
the other five marriages alluded to in the administrative complaint were not illegally
solemnized because the marriage contracts were not signed by him and they did not
contain the date and place of marriage; that copies of these marriage contracts are in
the custody of complainant Sambo; that the alleged marriage of Francisco Selpo and
Julieta Carrido, Eddie Terrobias and Maria Emma Gaor, Renato Gamay and Maricris
Belga, and of Arsenio Sabater and Margarita Nacario were not celebrated by him since
he refused to solemnize them in the absence of a marriage license; that the marriage of
Samy Bocaya and Gina Bismonte was celebrated even without the requisite license due
to the insistence of the parties in order to avoid embarrassment to their guests but that,
at any rate, he did not sign their marriage contract which remains unsigned up to the
present.
2. Falsification of monthly report for July, 1991 regarding the number of
marriages solemnized and the number of documents notarized.
It is alleged that respondent judge made it appear that he solemnized seven (7)
marriages in the month of July, 1992, when in truth he did not do so or at most those
marriages were null and void; that respondents likewise made it appear that they have
notarized only six (6) documents for July, 1992, but the Notarial Register will show that
there were one hundred thirteen (113) documents which were notarized during that
month; and that respondents reported a notarial fee of only P18.50 for each document,
although in fact they collected P20.00 therefor and failed to account for the difference.
Respondent Baroy contends, however, that the marriage registry where all marriages
celebrated by respondent judge are entered is under the exclusive control and custody
of complainant Ramon Sambo, hence he is the only one who should be held responsible
for the entries made therein; that the reported marriages are merely based on the
payments made as solemnization fees which are in the custody of respondent Baroy.
She further avers that it is Sambo who is likewise the custodian of the Notarial Register;
that she cannot be held accountable for whatever alleged difference there is in the
notarial fees because she is liable only for those payments tendered to her by Sambo
himself; that the notarial fees she collects are duly covered by receipts; that of the
P20.00 charged, P18.50 is remitted directly to the Supreme Court as part of the
Judiciary Development Fund and P150 goes to the general fund of the Supreme Court
which is paid to the Municipal Treasurer of Tinambac, Camarines Sur. Respondent
theorizes that the discrepancies in the monthly report were manipulated by complainant
Sambo considering that he is the one in charge of the preparation of the monthly report.
Respondent Judge Palaypayon avers that the erroneous number of marriages
celebrated was intentionally placed by complainant Sambo; that the number of
marriages solemnized should not be based on solemnization fees paid for that month
since not all the marriages paid for are solemnized in the same month. He claims that
there were actually only six (6) documents notarized in the month of July, 1992 which
tallied with the official receipts issued by the clerk of court; that it is Sambo who should
be held accountable for any unreceipted payment for notarial fees because he is the one
in charge of the Notarial Register; and that this case filed by complainant Sambo is
merely in retaliation for his failure to be appointed as the clerk of court. Furthermore,
respondent judge contends that he is not the one supervising or preparing the monthly
report, and that he merely has the ministerial duty to sign the same.
3. Bribery in consideration of an appointment in the court
Complainants allege that because of the retirement of the clerk of court, respondent
judge forwarded to the Supreme Court the applications of Rodel Abogado, Ramon
Sambo, and Jessell Abiog. However, they were surprised when respondent Baroy
reported for duty as clerk of court on October 21, 1991. They later found out that
respondent Baroy was the one appointed because she gave a brand-new air-
conditioning unit to respondent judge.
Respondent Baroy claims that when she was still in Naga City she purchased an air-
conditioning unit but when she was appointed clerk of court she had to transfer to
Tinambac and, since she no longer needed the air conditioner, she decided to sell the
same to respondent judge. The installation and use thereof by the latter in his office was
with the consent of the Mayor of Tinambac.
Respondent judge contends that he endorsed all the applications for the position of clerk
of court to the Supreme Court which has the sole authority over such appointments and
that he had no hand in the appointment of respondent Baroy. He contends that the air-
conditioning unit was bought from his
co-respondent on installment basis on May 29, 1992, eight (8) months after Baroy had
been appointed clerk of court. He claims that he would not be that naive to exhibit to the
public as item which could not be defended as a matter of honor and prestige.
4. Cash bond issued without a receipt
It is alleged that in Criminal Case No. 5438, entitled "People vs. Mendeza, et al.,
"bondswoman Januaria Dacara was allowed by respondent judge to change her
property bond to cash bond; that she paid the amount of P1,000.00 but was never
issued a receipt therefor nor was it made to appear in the records that the bond has
been paid; that despite the lapse of two years, the money was never returned to the
bondswoman; and that it has not been shown that the money was turned over to the
Municipal Treasurer of Tinambac.
Respondent Baroy counters that the cash bond was deposited with the former clerk of
court, then turned over to the acting clerk of court and, later, given to her under a
corresponding receipt; that the cash bond is deposited with the bank; and that should the
bondswoman desire to withdraw the same, she should follow the proper procedure
therefor.
Respondent judge contends that Criminal Case No. 5438 was archieved for failure of the
bondsman to deliver the body of the accused in court despite notice; and that he has
nothing to do with the payment of the cash bond as this is the duty of the clerk of court.
5. Infidelity in the custody of prisoners
Complainants contend that respondent judge usually got detention prisoners to work in
his house, one of whom was Alex Alano, who is accused in Criminal Case No. 5647 for
violation of the Dangerous Drugs Act; that while Alano was in the custody of respondent
judge, the former escaped and was never recaptured; that in order to conceal this fact,
the case was archived pursuant to an order issued by respondent judge dated April 6,
1992.
Respondent judge denied the accusation and claims that he never employed detention
prisoners and that he has adequate household help; and that he had to order the case
archived because it had been pending for more than six (6) months and the accused
therein remained at large.
6. Unlawful collection of docket fees
Finally, respondents are charged with collecting docket fees from the Rural Bank of
Tinambac, Camarines Sur, Inc. although such entity is exempt by law from the payment
of said fees, and that while the corresponding receipt was issued, respondent Baroy
failed to remit the amount to the Supreme Court and, instead, she deposited the same in
her personal account.
Respondents Baroy contends that it was Judge-Designate Felimon Montenegro
(because respondent judge was on sick leave) who instructed her to demand payment of
docket fees from said rural bank; that the bank issued a check for P800.00; that she was
not allowed by the Philippine National Bank to encash the check and, instead, was
instructed to deposit the same in any bank account for clearing; that respondent
deposited the same in her account; and that after the check was cleared, she remitted
P400.00 to the Supreme Court and the other P400.00 was paid to the Municipal
Treasurer of Tinambac.
On the basis of the foregoing contentions, First Vice-Executive Judge Antonio N. Gerona
prepared and submitted to us his Report and Recommendations dated May 20, 1994,
together with the administrative matter. We have perspicaciously reviewed the same and
we are favorably impressed by the thorough and exhaustive presentation and analysis of
the facts and evidence in said report. We commend the investigating judge for his
industry and perspicacity reflected by his findings in said report which, being amply
substantiated by the evidence and supported by logical illations, we hereby approve and
hereunder reproduce at length the material portions thereof.
xxx xxx xxx
The first charge against the respondents is illegal solemnization of
marriage. Judge Palaypayon is charged with having solemnized without a
marriage license the marriage of Sammy Bocaya and Gina Besmonte
(Exh. A). Alano Abellano and Nelly Edralin (Exh. B), Francisco Selpo and
Julieta Carrido (Exh. C), Eddie Terrobias and Maria Emma Gaor (Exh. D),
Renato Gamay and Maricris Belga (Exh. F) and Arsenio Sabater and
Margarita Nacario (Exh. G).
In all these aforementioned marriages, the blank space in the marriage
contracts to show the number of the marriage was solemnized as
required by Article 22 of the Family Code were not filled up. While the
contracting parties and their witnesses signed their marriage contracts,
Judge Palaypayon did not affix his signature in the marriage contracts,
except that of Abellano and Edralin when Judge Palaypayon signed their
marriage certificate as he claims that he solemnized this marriage under
Article 34 of the Family Code of the Philippines. In said marriages the
contracting parties were not furnished a copy of their marriage contract
and the Local Civil Registrar was not sent either a copy of the marriage
certificate as required by Article 23 of the Family Code.
The marriage of Bocaya and Besmonte is shown to have been
solemnized by Judge Palaypayon without a marriage license. The
testimonies of Bocay himself and Pompeo Ariola, one of the witnesses of
the marriage of Bocaya and Besmonte, and the photographs taken when
Judge Palaypayon solemnized their marriage (Exhs. K-3 to K-9)
sufficiently show that Judge Palaypayon really solemnized their marriage.
Bocaya declared that they were advised by Judge Palaypayon to return
after ten (10) days after their marriage was solemnized and bring with
them their marriage license. In the meantime, they already started living
together as husband and wife believing that the formal requisites of
marriage were complied with.
Judge Palaypayon denied that he solemnized the marriage of Bocaya
and Besmonte because the parties allegedly did not have a marriage
license. He declared that in fact he did not sign the marriage certificate,
there was no date stated on it and both the parties and the Local Civil
Registrar did not have a copy of the marriage certificate.
With respect to the photographs which show that he solemnized the
marriage of Bocaya and Besmonte, Judge Palaypayon explains that they
merely show as if he was solemnizing the marriage. It was actually a
simulated solemnization of marriage and not a real one. This happened
because of the pleading of the mother of one of the contracting parties
that he consent to be photographed to show that as if he was solemnizing
the marriage as he was told that the food for the wedding reception was
already prepared, visitors were already invited and the place of the
parties where the reception would be held was more than twenty (20)
kilometers away from the poblacion of Tinambac.
The denial made by Judge Palaypayon is difficult to believe. The fact
alone that he did not sign the marriage certificate or contract, the same
did not bear a date and the parties and the Local Civil Registrar were not
furnished a copy of the marriage certificate, do not by themselves show
that he did not solemnize the marriage. His uncorroborated testimony
cannot prevail over the testimony of Bocaya and Ariola who also
declared, among others, that Bocaya and his bride were advised by
Judge Palaypayon to return after ten (10) days with their marriage license
and whose credibility had not been impeached.
The pictures taken also from the start of the wedding ceremony up to the
signing of the marriage certificate in front of Judge Palaypayon and on his
table (Exhs. K-3, K-3-a, K-3-b, K-3-c, K-4, K-4-a, K-4-b, K-4-c,
K-4-d, K-5, K-5-a, K-5-b, K-6, K-7, K-8, K-8-a and K-9), cannot possibly
be just to show a simulated solemnization of marriage. One or two
pictures may convince a person of the explanation of Judge Palaypayon,
but not all those pictures.
Besides, as a judge it is very difficult to believe that Judge Palaypayon
would allows himself to be photographed as if he was solemnizing a
marriage on a mere pleading of a person whom he did not even know for
the alleged reasons given. It would be highly improper and unbecoming of
him to allow himself to be used as an instrument of deceit by making it
appear that Bocaya and Besmonte were married by him when in truth and
in fact he did not solemnize their marriage.
With respect to the marriage of Abellano and Edralin (Exh. B), Judge
Palaypayon admitted that he solemnized their marriage, but he claims
that it was under Article 34 of the Family Code, so a marriage license was
not required. The contracting parties here executed a joint affidavit that
they have been living together as husband and wife for almost six (6)
years already (Exh. 12; Exh. AA).
In their marriage contract which did not bear any date either when it was
solemnized, it was stated that Abellano was only eighteen (18) years, two
(2) months and seven (7) days old. If he and Edralin had been living
together as husband and wife for almost six (6) years already before they
got married as they stated in their joint affidavit, Abellano must ha(ve)
been less than thirteen (13) years old when he started living with Edralin
as his wife and this is hard to believe. Judge Palaypayon should ha(ve)
been aware of this when he solemnized their marriage as it was his duty
to ascertain the qualification of the contracting parties who might ha(ve)
executed a false joint affidavit in order to have an instant marriage by
avoiding the marriage license requirement.
On May 23, 1992, however, after this case was already filed, Judge
Palaypayon married again Abellano and Edralin, this time with a marriage
license (Exh. BB). The explanation given by Judge Palaypayon why he
solemnized the marriage of the same couple for the second time is that
he did not consider the first marriage he solemnized under Article 34 of
the Family Code as (a) marriage at all because complainant Ramon
Sambo did not follow his instruction that the date should be placed in the
marriage certificate to show when he solemnized the marriage and that
the contracting parties were not furnished a copy of their marriage
certificate.
This act of Judge Palaypayon of solemnizing the marriage of Abellano
and Edralin for the second time with a marriage license already only gave
rise to the suspicion that the first time he solemnized the marriage it was
only made to appear that it was solemnized under exceptional character
as there was not marriage license and Judge Palaypayon had already
signed the marriage certificate. If it was true that he solemnized the first
marriage under exceptional character where a marriage license was not
required, why did he already require the parties to have a marriage
license when he solemnized their marriage for the second time?
The explanation of Judge Palaypayon that the first marriage of Abellano
and Edralin was not a marriage at all as the marriage certificate did not
state the date when the marriage was solemnized and that the
contracting parties were not furnished a copy of their marriage certificate,
is not well taken as they are not any of those grounds under Article(s) 35,
36, 37 and 38 of the Family Code which declare a marriage void from the
beginning. Even if no one, however, received a copy of the marriage
certificate, the marriage is still valid (Jones vs. H(o)rtiguela, 64 Phil. 179).
Judge Palaypayon cannot just absolve himself from responsibility by
blaming his personnel. They are not the guardian(s) of his official function
and under Article 23 of the Family Code it is his duty to furnish the
contracting parties (a) copy of their marriage contract.
With respect to the marriage of Francisco Selpo and Julieta Carrido (Exh.
C), and Arsenio Sabater and Margarita Nacario (Exh. G), Selpo and
Carrido and Sabater and Nacarcio executed joint affidavits that Judge
Palaypayon did not solemnize their marriage (Exh. 13-A and Exh. 1).
Both Carrido and Nacario testified for the respondents that actually Judge
Palaypayon did not solemnize their marriage as they did not have a
marriage license. On cross-examination, however, both admitted that they
did not know who prepared their affidavits. They were just told, Carrido by
a certain Charito Palaypayon, and Nacario by a certain Kagawad
Encinas, to just go to the Municipal building and sign their joint affidavits
there which were already prepared before the Municipal Mayor of
Tinambac, Camarines Sur.
With respect to the marriage of Renato Gamay and Maricris Belga (Exh.
f), their marriage contract was signed by them and by their two (2)
witnesses, Atty. Elmer Brioso and respondent Baroy (Exhs. F-1 and F-2).
Like the other aforementioned marriages, the solemnization fee was also
paid as shown by a receipt dated June 7, 1992 and signed by respondent
Baroy (Exh. F-4).
Judge Palaypayon also denied having solemnized the marriage of Gamay
and Belga allegedly because there was no marriage license. On her part,
respondent Baroy at first denied that the marriage was solemnized. When
she was asked, however, why did she sign the marriage contract as a
witness she answered that she thought the marriage was already
solemnized (TSN, p. 14; 10-28-93).
Respondent Baroy was, and is, the clerk of court of Judge Palaypayon.
She signed the marriage contract of Gamay and Belga as one of the two
principal sponsors. Yet, she wanted to give the impression that she did
not even know that the marriage was solemnized by Judge Palaypayon.
This is found very difficult to believe.
Judge Palaypayon made the same denial of having solemnized also the
marriage of Terrobias and Gaor (Exh. D). The contracting parties and
their witnesses also signed the marriage contract and paid the
solemnization fee, but Judge Palaypayon allegedly did not solemnize
their marriage due to lack of marriage license. Judge Palaypayon
submitted the affidavit of William Medina, Vice-Mayor of Tinambac, to
corroborate his testimony (Exh. 14). Medina, however, did not testify in
this case and so his affidavit has no probative value.
Judge Palaypayon testified that his procedure and practice have been
that before the contracting parties and their witnesses enter his chamber
in order to get married, he already required complainant Ramon Sambo
to whom he assigned the task of preparing the marriage contract, to
already let the parties and their witnesses sign their marriage contracts,
as what happened to Gamay and Belga, and Terrobias and Gaor, among
others. His purpose was to save his precious time as he has been
solemnizing marriages at the rate of three (3) to four (4) times everyday
(TSN, p. 12;
2-1-94).
This alleged practice and procedure, if true, is highly improper and
irregular, if not illegal, because the contracting parties are supposed to be
first asked by the solemnizing officer and declare that they take each
other as husband and wife before the solemnizing officer in the presence
of at least two (2) witnesses before they are supposed to sign their
marriage contracts (Art. 6, Family Code).
The uncorroborated testimony, however, of Judge Palaypayon as to his
alleged practice and procedure before solemnizing a marriage, is not true
as shown by the picture taken during the wedding of Bocaya and
Besmonte (Exhs. K-3 to K-9) and by the testimony of respondent Baroy
herself who declared that the practice of Judge Palaypayon ha(s) been to
let the contracting parties and their witnesses sign the marriage contract
only after Judge Palaypayon has solemnized their marriage (TSN, p. 53;
10-28-93).
Judge Palaypayon did not present any evidence to show also that he was
really solemnizing three (3) to four (4) marriages everyday. On the
contrary his monthly report of cases for July, 1992 shows that his court
had only twenty-seven (27) pending cases and he solemnized only seven
(7) marriages for the whole month (Exh. E). His monthly report of cases
for September, 1992 shows also that he solemnized only four (4)
marriages during the whole month (Exh. 7).
In this first charge of having illegally solemnized marriages, respondent
Judge Palaypayon has presented and marked in evidence several
marriage contracts of other persons, affidavits of persons and certification
issued by the Local Civil Registrar (Exhs. 12-B to 12-H). These persons
who executed affidavits, however, did not testify in this case. Besides, the
marriage contracts and certification mentioned are immaterial as Judge
Palaypayon is not charged of having solemnized these marriages illegally
also. He is not charged that the marriages he solemnized were all illegal.
The second charge against herein respondents, that of having falsified
the monthly report of cases submitted to the Supreme Court and not
stating in the monthly report the actual number of documents notarized
and issuing the corresponding receipts of the notarial fees, have been
sufficiently proven by the complainants insofar as the monthly report of
cases for July and September, 1992 are concerned.
The monthly report of cases of the MTC of Tinambac, Camarines Sur for
July, 1992 both signed by the respondents, show that for said month
there were six (6) documents notarized by Judge Palaypayon in his
capacity as Ex-Officio Notary Public (Exhs. H to H-1-b). The notarial
register of the MTC of Tinambac, Camarines Sur, however, shows that
there were actually one hundred thirteen (113) documents notarized by
Judge Palaypayon for the said month (Exhs. Q to Q-45).
Judge Palaypayon claims that there was no falsification of the monthly
report of cases for July, 1992 because there were only six (6) notarized
documents that were paid (for) as shown by official receipts. He did not,
however, present evidence of the alleged official receipts showing that the
notarial fee for the six (6) documetns were paid. Besides, the monthly
report of cases with respect to the number of documents notarized should
not be based on how many notarized documents were paid of the notarial
fees, but the number of documents placed or recorded in the notarial
register.
Judge Palaypayon admitted that he was not personally verifying and
checking anymore the correctness of the monthly reports because he
relies on his co-respondent who is the Clerk of Court and whom he has
assumed to have checked and verified the records. He merely signs the
monthly report when it is already signed by respondent Baroy.
The explanation of Judge Palaypayon is not well taken because he is
required to have close supervision in the preparation of the monthly report
of cases of which he certifies as to their correctness. As a judge he is
personally responsible for the proper discharge of his functions (The Phil.
Trial Lawyer's Asso. Inc. vs. Agana, Sr., 102 SCRA 517). In Nidera vs.
Lazaro, 174 SCRA 581, it was held that "A judge cannot take refuge
behind the inefficiency or mismanagement of his court personnel."
On the part of respondent Baroy, she puts the blame of the falsification of
the monthly report of cases on complainant Sambo whom she allegedly
assigned to prepare not only the monthly report of cases, but the
preparation and custody of marriage contracts, notarized documents and
the notarial register. By her own admission she has assigned to
complainant Sambo duties she was supposed to perform, yet according
to her she never bother(ed) to check the notarial register of the court to
find out the number of documents notarized in a month (TSN, p. 30; 11-
23-93).
Assuming that respondent Baroy assigned the preparation of the monthly
report of cases to Sambo, which was denied by the latter as he claims
that he only typed the monthly report based on the data given to him by
her, still it is her duty to verify and check whether the report is correct.
The explanation of respondent Baroy that Sambo was the one in custody
of marriage contracts, notarized documents and notarial register, among
other things, is not acceptable not only because as clerk of court she was
supposed to be in custody, control and supervision of all court records
including documents and other properties of the court (p. 32, Manual for
Clerks of Court), but she herself admitted that from January, 1992 she
was already in full control of all the records of the court including receipts
(TSN, p. 11; 11-23-93).
The evidence adduced in this cases in connection with the charge of
falsification, however, also shows that respondent Baroy did not account
for what happened to the notarial fees received for those documents
notarized during the month of July and September, 1992. The evidence
adduced in this case also sufficiently show that she received cash bond
deposits and she did not deposit them to a bank or to the Municipal
Treasurer; and that she only issued temporary receipts for said cash bond
deposits.
For July, 1992 there were only six (6) documents reported to have been
notarized by Judge Palaypayon although the documents notarized for
said month were actually one hundred thirteen (113) as recorded in the
notarial register. For September, 1992, there were only five (5)
documents reported as notarized for that month, though the notarial
register show(s) that there were fifty-six (56) documents actually
notarized. The fee for each document notarized as appearing in the
notarial register was P18.50. Respondent Baroy and Sambo declared that
what was actually being charged was P20.00. Respondent Baroy
declared that P18.50 went to the Supreme Court and P1.50 was being
turned over to the Municipal Treasurer.
Baroy, however, did not present any evidence to show that she really sent
to the Supreme Court the notarial fees of P18.50 for each document
notarized and to the Municipal Treasurer the additional notarial fee of
P1.50. This should be fully accounted for considering that Baroy herself
declared that some notarial fees were allowed by her at her own
discretion to be paid later. Similarly, the solemnization fees have not been
accounted for by Baroy considering that she admitted that even (i)n those
instances where the marriages were not solemnized due to lack of
marriage license the solemnization fees were not returned anymore,
unless the contracting parties made a demand for their return. Judge
Palaypayon declared that he did not know of any instance when
solemnization fee was returned when the marriage was not solemnized
due to lack of marriage license.
Respondent Baroy also claims that Ramon Sambo did not turn over to
her some of the notarial fees. This is difficult to believe. It was not only
because Sambo vehemently denied it, but the minutes of the conference
of the personnel of the MTC of Tinambac dated January 20, 1992 shows
that on that date Baroy informed the personnel of the court that she was
taking over the functions she assigned to Sambo, particularly the
collection of legal fees (Exh. 7). The notarial fees she claims that Sambo
did not turn over to her were for those documents notarized (i)n July and
September, 1992 already. Besides there never was any demand she
made for Sambo to turn over some notarial fees supposedly in his
possession. Neither was there any memorandum she issued on this
matter, in spite of the fact that she has been holding meetings and issuing
memoranda to the personnel of the court (Exhs. V, W, FF, FF-1, FF-2,
FF-3; Exhs. 4-A (supplement(s), 5-8, 6-S, 7-S and 8-S).
It is admitted by respondent Baroy that on October 29, 1991 a cash bond
deposit of a certain Dacara in the amount of One Thousand (P1,000.00)
Pesos was turned over to her after she assumed office and for this cash
bond she issued only a temporary receipt (Exh. Y). She did not deposit
this cash bond in any bank or to the Municipal Treasurer. She just kept it
in her own cash box on the alleged ground that the parties in that case
where the cash bond was deposited informed her that they would settle
the case amicably.
Respondent Baroy declared that she finally deposited the aforementioned
cash bond of One Thousand (P1,000.00) Pesos with the Land Bank of
the Philippines (LBP) in February, 1993, after this administrative case
was already filed (TSN, pp. 27-28; 12-22-93). The Pass Book, however,
shows that actually Baroy opened an account with the LBP, Naga Branch,
only on March 26, 1993 when she deposited an amount of Two Thousand
(P2,000.00) Pesos (Exhs. 8 to 8-1-a). She claims that One Thousand
(P1,000.000) Pesos of the initial deposit was the cash bond of Dacara. If
it were true, it was only after keeping to herself the cash bond of One
Thousand (P1,000.00) Pesos for around one year and five months when
she finally deposited it because of the filing of this case.
On April 29, 1993, or only one month and two days after she finally
deposited the One Thousand (P1,000.00) Pesos cash bond of Dacara,
she withdrew it from the bank without any authority or order from the
court. It was only on July 23, 1993, or after almost three (3) months after
she withdrew it, when she redeposited said cash bond (TSN, p. 6; 1-4-
94).
The evidence presented in this case also show that on February 28, 1993
respondent Baroy received also a cash bond of Three Thousand
(P3,000.00) Pesos from a certain Alfredo Seprones in Crim. Case No.
5180. For this cash bond deposit, respondent Baroy issued only an
annumbered temporary receipt (Exh. X and X-1). Again Baroy just kept
this Three Thousand (P3,000.00) Pesos cash bond to herself. She did not
deposit it either (in) a bank or (with) the Municipal Treasurer. Her
explanation was that the parties in Crim. Case No. 5180 informed her that
they would settle the case amicably. It was on April 26, 1993, or almost
two months later when Judge Palaypayon issued an order for the release
of said cash bond (Exh. 7).
Respondent Baroy also admitted that since she assumed office on
October 21, 1991 she used to issue temporary receipt only for cash bond
deposits and other payments and collections she received. She further
admitted that some of these temporary receipts she issued she failed to
place the number of the receipts such as that receipt marked Exhibit X
(TSN, p. 35; 11-23-93). Baroy claims that she did not know that she had
to use the official receipts of the Supreme Court. It was only from
February, 1993, after this case was already filed, when she only started
issuing official receipts.
The next charge against the respondents is that in order to be appointed
Clerk of Court, Baroy gave Judge Palaypayon an air conditioner as a gift.
The evidence adduced with respect to this charge, show that on August
24, 1991 Baroy bought an air conditioner for the sum of Seventeen
Thousand Six Hundred (P17,600.00) Pesos (Exhs. I and I-1). The same
was paid partly in cash and in check (Exhs. I-2 and I-3). When the air
conditioner was brought to court in order to be installed in the chamber of
Judge Palaypayon, it was still placed in the same box when it was bought
and was not used yet.
The respondents claim that Baroy sold it to Judge Palaypayon for Twenty
Thousand (P20,00.00) Pesos on installment basis with a down payment
of Five Thousand (P5,000.00) Pesos and as proof thereof the
respondents presented a typewritten receipt dated May 29, 1993 (Exh.
22). The receipt was signed by both respondents and by the Municipal
Mayor of Tinambac, Camarines Sur and another person as witness.
The alleged sale between respondents is not beyond suspicion. It was
bought by Baroy at a time when she was applying for the vacant position
of Clerk of Court (to) which she was eventually appointed in October,
1991. From the time she bought the air conditioner on August 24, 1991
until it was installed in the office of Judge Palaypayon it was not used yet.
The sale to Judge Palaypayon was only evidenced by a mere typewritten
receipt dated May 29, 1992 when this case was already filed. The receipt
could have been easily prepared. The Municipal Mayor of Tinambac who
signed in the receipt as a witness did not testify in this case. The sale is
between the Clerk of Court and the Judge of the same court. All these
circumstances give rise to suspicion of at least impropriety. Judges
should avoid such action as would subject (them) to suspicion and (their)
conduct should be free from the appearance of impropriety (Jaagueta vs.
Boncasos, 60 SCRA 27).
With respect to the charge that Judge Palaypayon received a cash bond
deposit of One Thousand (P1,000.00) Pesos from Januaria Dacara
without issuing a receipt, Dacara executed an affidavit regarding this
charge that Judge Palaypayon did not give her a receipt for the P1,000.00
cash bond she deposited (Exh. N). Her affidavit, however, has no
probative value as she did not show that this cash bond of P1,000.00
found its way into the hands of respondent Baroy who issued only a
temporary receipt for it and this has been discussed earlier.
Another charge against Judge Palaypayon is the getting of detention
prisoners to work in his house and one of them escaped while in his
custody and was never found again. To hide this fact, the case against
said accused was ordered archived by Judge Palaypayon. The evidence
adduced with respect to this particular charge, show that in Crim. Case
No. 5647 entitled People vs. Stephen Kalaw, Alex Alano and Allan
Adupe, accused Alex Alano and Allan Adupe were arrested on April 12,
1991 and placed in the municipal jail of Tinambac, Camarines Sur (Exhs.
0, 0-1, 0-2 and 0-3; Exh. 25). The evidence presented that Alex Alano
was taken by Judge Palaypayon from the municipal jail where said
accused was confined and that he escaped while in custody of Judge
Palaypayon is solely testimonial, particularly that of David Ortiz, a former
utility worker of the MTC of Tinambac.
Herein investigator finds said evidence not sufficient. The complainants
should have presented records from the police of Tinambac to show that
Judge Palaypayon took out from the municipal jail Alex Alano where he
was under detention and said accused escaped while in the custody of
Judge Palaypayon.
The order, however, of Judge Palaypayon dated April 6, 1992 in Crim.
Case No. 5047 archiving said case appears to be without basis. The
order states: "this case was filed on April 12, 1991 and the records show
that the warrant of arrest (was) issued against the accused, but up to this
moment there is no return of service for the warrant of arrest issued
against said accused" (Exh. 0-4). The records of said case, however,
show that in fact there was a return of the service of the warrant of arrest
dated April 12, 1991 showing that Alano and Adupe were arrested (Exh.
0-3).
Judge Palaypayon explained that his order dated April 6, 1992 archiving
Crim. Case No. 5047 referred only to one of the accused who remained
at large. The explanation cannot be accepted because the two other
accused, Alano and Adupe, were arrested. Judge Palaypayon should
have issued an order for the arrest of Adupe who allegedly jumped bail,
but Alano was supposed to be confined in the municipal jail if his claim is
true that he did not take custody of Alano.
The explanation also of Judge Palaypayon why he ordered the case
archived was because he heard from the police that Alano escaped. This
explanation is not acceptable either. He should ha(ve) set the case and if
the police failed to bring to court Alano, the former should have been
required to explain in writing why Alano was not brought to court. If the
explanation was that Alano escaped from jail, he should have issued an
order for his arrest. It is only later on when he could not be arrested when
the case should have been ordered archived. The order archiving this
case for the reason that he only heard that Alano escaped is another
circumstance which gave rise to a suspicion that Alano might have really
escaped while in his custody only that the complainants could not present
records or other documentary evidence to prove the same.
The last charge against the respondents is that they collected filing fees
on collection cases filed by the Rural Bank of Tinambac, Camarines Sur
which was supposed to be exempted in paying filing fees under existing
laws and that the filing fees received was deposited by respondent Baroy
in her personal account in the bank. The evidence presented show that
on February 4, 1992 the Rural Bank of Tinambac filed ten (10) civil cases
for collection against farmers and it paid the total amount of Four Hundred
(P400.00) Pesos representing filing fees. The complainants cited Section
14 of Republic Act 720, as amended, which exempts Rural Banks (from)
the payment of filing fees on collection of sums of money cases filed
against farmers on loans they obtained.
Judge Palaypayon, however, had nothing to do with the payment of the
filing fees of the Rural Bank of Tinambac as it was respondent Baroy who
received them and besides, on February 4, 1992, he was on sick leave.
On her part Baroy claims that the bank paid voluntarily the filing fees. The
records, however, shows that respondent Baroy sent a letter to the
manager of the bank dated January 28, 1992 to the effect that if the bank
would not pay she would submit all Rural Bank cases for dismissal
(Annex 6, comment by respondent Baroy).
Respondent Baroy should have checked whether the Rural Bank of
Tinambac was really exempt from the payment of filing fees pursuant to
Republic Act 720, as amended, instead of threatening the bank to have
its cases be submitted to the court in order to have them dismissed. Here
the payment of the filing fees was made on February 4, 1992, but the
Four Hundred (P400.00) Pesos was only turned over to the Municipal
Treasurer on March 12, 1992. Here, there is an undue delay again in
complying with her obligation as accountable officer.
In view of the foregoing findings that the evidence presented by the
complainants sufficiently show that respondent Judge Lucio P.
Palaypayon, Jr. had solemnized marriages, particularly that of Sammy
Bocaya and Gina Besmonte, without a marriage license, and that it
having been shown that he did not comply with his duty in closely
supervising his clerk of court in the preparation of the monthly report of
cases being submitted to the Supreme Court, particularly for the months
of July and September, 1992 where it has been proven that the reports
for said two (2) months were falsified with respect to the number of
documents notarized, it is respectfully recommended that he be imposed
a fine of TEN THOUSAND (P10,000.00) PESOS with a warning that the
same or similar offenses will be more severely dealt with.
The fact that Judge Palaypayon did not sign the marriage contracts or
certificates of those marriages he solemnized without a marriage license,
there were no dates placed in the marriage contracts to show when they
were solemnized, the contracting parties were not furnished their
marriage contracts and the Local Civil Registrar was not being sent any
copy of the marriage contract, will not absolve him from liability. By
solemnizing alone a marriage without a marriage license he as the
solemnizing officer is the one responsible for the irregularity in not
complying (with) the formal requ(i)sites of marriage and under Article 4(3)
of the Family Code of the Philippines, he shall be civilly, criminally and
administratively liable.
Judge Palaypayon is likewise liable for his negligence or failure to comply
with his duty of closely supervising his clerk of court in the performance of
the latter's duties and functions, particularly the preparation of the monthly
report of cases (Bendesula vs. Laya, 58 SCRA 16). His explanation that
he only signed the monthly report of cases only when his clerk of court
already signed the same, cannot be accepted. It is his duty to closely
supervise her, to check and verify the records if the monthly reports
prepared by his clerk of court do not contain false statements. It was held
that "A judge cannot take refuge behind the inefficiency or incompetence
of court personnel (Nidua vs. Lazaro, 174 SCRA 158).
In view also of the foregoing finding that respondent Nelia Esmeralda-
Baroy, the clerk of court of the Municipal Trial Court of Tinambac,
Camarines Sur, has been found to have falsified the monthly report of
cases for the months of July and September, 1992 with respect to the
number of documents notarized, for having failed to account (for) the
notarial fees she received for said two (2) months period; for having failed
to account (for) the solemnization fees of those marriages allegedly not
solemnized, but the solemnization fees were not returned; for
unauthorized issuance of temporary receipts, some of which were issued
unnumbered; for receiving the cash bond of Dacara on October 29, 1991
in the amount of One Thousand (P1,000.00) Pesos for which she issued
only a temporary receipt (Exh. Y) and for depositing it with the Land Bank
of the Philippines only on March 26, 1993, or after one year and five
months in her possession and after this case was already filed; for
withdrawing said cash bond of One Thousand (P1,000.00) Pesos on April
29, 1993 without any court order or authority and redepositing it only on
July 23, 1993; for receiving a cash bond of Three Thousand (P3,000.00)
Pesos from Alfredo Seprones in Crim. Case No. 5180, MTC, Tinambac,
Camarines Sur, for which she issued only an unnumbered temporary
receipt (Exhs. X and X-1) and for not depositing it with a bank or with the
Municipal Treasurer until it was ordered released; and for requiring the
Rural Bank of Tinambac, Camarines Sur to pay filing fees on February 4,
1992 for collection cases filed against farmers in the amount of Four
Hundred (P400.00) Pesos, but turning over said amount to the Municipal
Treasurer only on March 12, 1992, it is respectfully recommended that
said respondent clerk of court Nelia Esmeralda-Baroy be dismissed from
the service.
It is provided that "Withdrawal of court deposits shall be by the clerk of
court who shall issue official receipt to the provincial, city or municipal
treasurer for the amount withdrawn. Court deposits cannot be withdrawn
except by order of the court, . . . ." (Revised Manual of Instructions for
Treasurers, Sec. 183, 184 and 626; p. 127, Manual for Clerks of Court). A
circular also provides that the Clerks of Court shall immediately issue an
official receipt upon receipt of deposits from party litigants and thereafter
deposit intact the collection with the municipal, city or provincial treasurer
and their deposits, can only be withdrawn upon proper receipt and order
of the Court (DOJ Circular No. 52, 26 April 1968; p. 136, Manual for
Clerks of Court). Supreme Court Memorandum Circular No. 5, 25
November 1982, also provides that "all collections of funds of fiduciary
character including rental deposits, shall be deposited immediately by the
clerk of court concerned upon receipt thereof with City, Municipal or
Provincial Treasurer where his court is located" and that "no withdrawal of
any of such deposits shall be made except upon lawful order of the court
exercising jurisdiction over the subject matter.
Respondent Baroy had either failed to comply with the foregoing circulars,
or deliberately disregarded, or even intentionally violated them. By her
conduct, she demonstrated her callous unconcern for the obligations and
responsibility of her duties and functions as a clerk of court and
accountable officer. The gross neglect of her duties shown by her
constitute(s) a serious misconduct which warrant(s) her removal from
office. In the case of Belen P. Ferriola vs. Norma Hiam, Clerk of Court,
MTCC, Branch I, Batangas City; A.M. No. P-90-414; August 9, 1993, it
was held that "The clerk of court is not authorized to keep funds in his/her
custody; monies received by him/her shall be deposited immediately upon
receipt thereof with the City, Municipal or Provincial Treasurer. Supreme
Court Circular Nos. 5 dated November 25, 1982 and 5-A dated December
3, 1982. Respondent Hiam's failure to remit the cash bail bonds and fine
she collected constitutes serious misconduct and her misappropriation of
said funds constitutes dishonesty. "Respondent Norma Hiam was found
guilty of dishonesty and serious misconduct prejudicial to the best interest
of the service and (the Court) ordered her immediate dismissal (from) the
service.
xxx xxx xxx
We here emphasize once again our adjuration that the conduct and behavior of
everyone connected with an office charged with the dispensation of justice, from the
presiding judge to the lowliest clerk, should be circumscribed with the heavy burden of
responsibility. His conduct, at all times, must not only be characterized by propriety and
decorum but, above all else, must be beyond suspicion. Every employee should be an
example of integrity, uprightness and honesty.
5
Integrity in a judicial office is more than
a virtue, it is a necessity.
6
It applies, without qualification as to rank or position, from the
judge to the least of its personnel, they being standard-bearers of the exacting norms of
ethics and morality imposed upon a Court of justice.
On the charge regarding illegal marriages the Family Code pertinently provides that the
formal requisites of marriage are, inter alia, a valid marriage license except in the cases
provided for therein.
7
Complementarily, it declares that the absence of any of the
essential or formal requisites shall generally render the marriage void ab initio and that,
while an irregularity in the formal requisites shall not affect the validity of the marriage,
the party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable.
8

The civil aspect is addressed to the contracting parties and those affected by the illegal
marriages, and what we are providing for herein pertains to the administrative liability of
respondents, all without prejudice to their criminal responsibility. The Revised Penal
Code provides that "(p)riests or ministers of any religious denomination or sect, or civil
authorities who shall perform or authorize any illegal marriage ceremony shall be
punished in accordance with the provisions of the Marriage Law."
9
This is of course,
within the province of the prosecutorial agencies of the Government.
The recommendation with respect to the administrative sanction to be imposed on
respondent judge should, therefore, be modified. For one, with respect to the charge of
illegal solemnization of marriages, it does appear that he had not taken to heart, but
actually trifled with, the law's concern for the institution of marriage and the legal effects
flowing from civil status. This, and his undeniable participation in the other offenses
charged as hereinbefore narrated in detail, approximate such serious degree of
misconduct and of gross negligence in the performance of judicial duties as to ineludibly
require a higher penalty.
WHEREFORE, the Court hereby imposes a FINE of P20,000.00 on respondent Judge
Lucio P. Palaypayon. Jr., with a stern warning that any repetition of the same or similar
offenses in the future will definitely be severely dealt with. Respondent Nelia Esmeralda-
Baroy is hereby DISMISSED from the service, with forfeiture of all retirement benefits
and with prejudice to employment in any branch, agency or instrumentality of the
Government, including government-owned or controlled corporations.
Let copies of this decision be spread on their records and furnished to the Office of the
Ombudsman for appropriate action.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Cruz, J., took no part.
Bidin, J., is on leave.

DIGEST
FACTS:

The following are the complainants: Juvy N. Cosca (Stenographer 1), Edmundo B.
Peralta (Interpreter 1), Ramon C. Sambo (Clerk II) and Apollo Villamora (Process
Server). Respondents are Judge Lucio Palaypayon Jr., the presiding judge, and Nelia
B. Esmeralda-Baroy, clerk of court II. All work in MTC-Tinambac, Camarines Sur.

Complainants alleged that Palaypayon solemnized marriages even without the requisite
of a marriage license. Hence, the following couples were able to get married just by
paying the marriage fees to respondent Baroy: Alano P. Abellano & Nelly Edralin;
Francisco Selpo & Julieta Carrido; Eddie Terrobias & Maria Gacer; Renato Gamay &
Maricris Belga; Arsenio Sabater & Margarita Nacario; Sammy Bocaya & Gina Bismonte.
As a consequence, the marriage contracts of the following couples did not reflect any
marriage license number. In addition, Palaypayon did not sign the marriage contracts
and did not indicate the date of solemnization reasoning out that he allegedly had to wait
for the marriage license to be submitted by the parties which happens usually several
days after the marriage ceremony.

Palaypayon contends that marriage between Abellano & Edralin falls under Article 34 of
the Civil Code thus exempted from the marriage license requirement. According to him,
he gave strict instructions to complainant Sambo to furnish the couple copy of the
marriage contract and to file the same with the civil registrar but the latter failed to do
so. In order to solve the problem, the spouses subsequently formalized the marriage by
securing a marriage license and executing their marriage contract, a copy of which was
then filed with the civil registrar. The other five marriages were not illegally solemnized
because Palaypayon did not sign their marriage contracts and the date and place of
marriage are not included. It was alleged that copies of these marriage contracts are in
the custody of complainant Sambo. The alleged marriage of Selpo & Carrido, Terrobias
& Gacer, Gamay & Belga, Sabater & Nacario were not celebrated by him since he
refused to solemnize them in the absence of a marriage license and that the marriage of
Bocaya & Bismonte was celebrated even without the requisite license due to the
insistence of the parties to avoid embarrassment with the guests which he again did not
sign the marriage contract.

An illegal solemnization of marriage was charged against the respondents.

ISSUE: Whether the marriage solemnized by Judge Palaypayon were valid.

HELD:

Bocaya & Besmontes marriage was solemnized without a marriage license along with
the other couples. The testimonies of Bocay and Pompeo Ariola including the
photographs taken showed that it was really Judge Palaypayon who solemnized their
marriage. Bocaya declared that they were advised by judge to return after 10 days after
the solemnization and bring with them their marriage license. They already started living
together as husband and wife even without the formal requisite. With respect to the
photographs, judge explained that it was a simulated solemnization of marriage and not
a real one. However, considering that there were pictures from the start of the wedding
ceremony up to the signing of the marriage certificates in front of him. The court held
that it is hard to believe that it was simulated.

On the other hand, Judge Palaypayon admitted that he solemnized marriage between
Abellano & Edralin and claimed it was under Article 34 of the Civil Code so the marriage
license was dispensed with considering that the contracting parties executed a joint
affidavit that they have been living together as husband and wife for almost 6 years
already. However, it was shown in the marriage contract that Abellano was only 18 yrs
2months and 7 days old. If he and Edralin had been living together for 6 years already
before they got married as what is stated in the joint affidavit, Abellano must have been
less than 13 years old when they started living together which is hard to believe.
Palaypayon should have been aware, as it is his duty to ascertain the qualification of the
contracting parties who might have executed a false joint affidavit in order to avoid the
marriage license requirement.

Article 4 of the Family Code pertinently provides that in the absence of any of the
essential or formal requisites shall render the marriage void ab initio whereas an
irregularity in the formal requisite shall not affect the validity of the marriage but the party
or parties responsible for the irregularity shall be civilly, criminally, and administratively
liable.


Wassmer vs. Velez (12 SCRA 648)
G.R. No. L-20089 December 26, 1964
BEATRIZ P. WASSMER, plaintiff-appellee,
vs.
FRANCISCO X. VELEZ, defendant-appellant.
Jalandoni & Jamir for defendant-appellant.
Samson S. Alcantara for plaintiff-appellee.
BENGZON, J.P., J .:
The facts that culminated in this case started with dreams and hopes, followed by
appropriate planning and serious endeavors, but terminated in frustration and, what is
worse, complete public humiliation.
Francisco X. Velez and Beatriz P. Wassmer, following their mutual promise of love,
decided to get married and set September 4, 1954 as the big day. On September 2,
1954 Velez left this note for his bride-to-be:
Dear Bet
Will have to postpone wedding My mother opposes it. Am leaving on
the Convair today.
Please do not ask too many people about the reason why That would
only create a scandal.
Paquing
But the next day, September 3, he sent her the following telegram:
NOTHING CHANGED REST ASSURED RETURNING VERY SOON
APOLOGIZE MAMA PAPA LOVE .
PAKING
Thereafter Velez did not appear nor was he heard from again.
Sued by Beatriz for damages, Velez filed no answer and was declared in default. Plaintiff
adduced evidence before the clerk of court as commissioner, and on April 29, 1955,
judgment was rendered ordering defendant to pay plaintiff P2,000.00 as actual
damages; P25,000.00 as moral and exemplary damages; P2,500.00 as attorney's fees;
and the costs.
On June 21, 1955 defendant filed a "petition for relief from orders, judgment and
proceedings and motion for new trial and reconsideration." Plaintiff moved to strike it cut.
But the court, on August 2, 1955, ordered the parties and their attorneys to appear
before it on August 23, 1955 "to explore at this stage of the proceedings the possibility of
arriving at an amicable settlement." It added that should any of them fail to appear "the
petition for relief and the opposition thereto will be deemed submitted for resolution."
On August 23, 1955 defendant failed to appear before court. Instead, on the following
day his counsel filed a motion to defer for two weeks the resolution on defendants
petition for relief. The counsel stated that he would confer with defendant in Cagayan de
Oro City the latter's residence on the possibility of an amicable element. The court
granted two weeks counted from August 25, 1955.
Plaintiff manifested on June 15, 1956 that the two weeks given by the court had expired
on September 8, 1955 but that defendant and his counsel had failed to appear.
Another chance for amicable settlement was given by the court in its order of July 6,
1956 calling the parties and their attorneys to appear on July 13, 1956. This time.
however, defendant's counsel informed the court that chances of settling the case
amicably were nil.
On July 20, 1956 the court issued an order denying defendant's aforesaid petition.
Defendant has appealed to this Court. In his petition of June 21, 1955 in the court a
quo defendant alleged excusable negligence as ground to set aside the judgment by
default. Specifically, it was stated that defendant filed no answer in the belief that an
amicable settlement was being negotiated.
A petition for relief from judgment on grounds of fraud, accident, mistake or excusable
negligence, must be duly supported by an affidavit of merits stating facts constituting a
valid defense. (Sec. 3, Rule 38, Rules of Court.) Defendant's affidavit of merits attached
to his petition of June 21, 1955 stated: "That he has a good and valid defense against
plaintiff's cause of action, his failure to marry the plaintiff as scheduled having been due
to fortuitous event and/or circumstances beyond his control." An affidavit of merits like
this stating mere conclusions or opinions instead of facts is not valid. (Cortes vs. Co Bun
Kim, L-3926, Oct. 10, 1951; Vaswani vs. P. Tarrachand Bros., L-15800, December 29,
1960.)
Defendant, however, would contend that the affidavit of merits was in fact unnecessary,
or a mere surplusage, because the judgment sought to be set aside was null and void, it
having been based on evidence adduced before the clerk of court. In Province
of Pangasinan vs. Palisoc, L-16519, October 30, 1962, this Court pointed out that the
procedure of designating the clerk of court as commissioner to receive evidence is
sanctioned by Rule 34 (now Rule 33) of the Rules of Court. Now as to defendant's
consent to said procedure, the same did not have to be obtained for he was declared in
default and thus had no standing in court (Velez vs. Ramas, 40 Phil. 787; Alano vs.
Court of First Instance, L-14557, October 30, 1959).
In support of his "motion for new trial and reconsideration," defendant asserts that the
judgment is contrary to law. The reason given is that "there is no provision of the Civil
Code authorizing" an action for breach of promise to marry. Indeed, our ruling
in Hermosisima vs. Court of Appeals (L-14628, Sept. 30, 1960), as reiterated in Estopa
vs. Biansay (L-14733, Sept. 30, 1960), is that "mere breach of a promise to marry" is not
an actionable wrong. We pointed out that Congress deliberately eliminated from the draft
of the new Civil Code the provisions that would have it so.
It must not be overlooked, however, that the extent to which acts not contrary to law may
be perpetrated with impunity, is not limitless for Article 21 of said Code provides that
"any person who wilfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage."
The record reveals that on August 23, 1954 plaintiff and defendant applied for a license
to contract marriage, which was subsequently issued (Exhs. A, A-1). Their wedding was
set for September 4, 1954. Invitations were printed and distributed to relatives, friends
and acquaintances (Tsn., 5; Exh. C). The bride-to-be's trousseau, party drsrses and
other apparel for the important occasion were purchased (Tsn., 7-8). Dresses for the
maid of honor and the flower girl were prepared. A matrimonial bed, with accessories,
was bought. Bridal showers were given and gifts received (Tsn., 6; Exh. E). And then,
with but two days before the wedding, defendant, who was then 28 years old,: simply left
a note for plaintiff stating: "Will have to postpone wedding My mother opposes it ... "
He enplaned to his home city in Mindanao, and the next day, the day before the
wedding, he wired plaintiff: "Nothing changed rest assured returning soon." But he never
returned and was never heard from again.
Surely this is not a case of mere breach of promise to marry. As stated, mere breach of
promise to marry is not an actionable wrong. But to formally set a wedding and go
through all the above-described preparation and publicity, only to walk out of it when the
matrimony is about to be solemnized, is quite different. This is palpably and unjustifiably
contrary to good customs for which defendant must be held answerable in damages in
accordance with Article 21 aforesaid.
Defendant urges in his afore-stated petition that the damages awarded were excessive.
No question is raised as to the award of actual damages. What defendant would really
assert hereunder is that the award of moral and exemplary damages, in the amount of
P25,000.00, should be totally eliminated.
Per express provision of Article 2219 (10) of the New Civil Code, moral damages are
recoverable in the cases mentioned in Article 21 of said Code. As to exemplary
damages, defendant contends that the same could not be adjudged against him
because under Article 2232 of the New Civil Code the condition precedent is that "the
defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner."
The argument is devoid of merit as under the above-narrated circumstances of this case
defendant clearly acted in a "wanton ... , reckless [and] oppressive manner." This Court's
opinion, however, is that considering the particular circumstances of this case,
P15,000.00 as moral and exemplary damages is deemed to be a reasonable award.
PREMISES CONSIDERED, with the above-indicated modification, the lower court's
judgment is hereby affirmed, with costs.
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala,
Makalintal, and Zaldivar, JJ.,concur.

DIGEST
In 1954, Francisco Velez and Beatriz Wassmer planned their marriage. They decided to
schedule it on September 4, 1954. And so Wassmer made preparations such as: making
and sending wedding invitations, bought her wedding dress and other apparels, and
other wedding necessities. But 2 days before the scheduled day of wedding, Velez sent
a letter to Wassmer advising her that he will not be able to attend the wedding because
his mom was opposed to said wedding. And one day before the wedding, he sent
another message to Wassmer advising her that nothing has changed and that he will be
returning soon. However, he never returned.
This prompted Wassmer to file a civil case against Velez. Velez never filed an answer
and eventually judgment was made in favor of Wassmer. The court awarded exemplary
and moral damages in favor of Wassmer.
On appeal, Velez argued that his failure to attend the scheduled wedding was because
of fortuitous events. He further argued that he cannot be held civilly liable for breaching
his promise to marry Wassmer because there is no law upon which such an action may
be grounded. He also contested the award of exemplary and moral damages against
him.
ISSUE: Whether or not the award of damages is proper.
HELD: Yes. The defense of fortuitous events raised by Velez is not tenable and also
unsubstantiated. It is true that a breach of promise to marry per se is not an actionable
wrong. However, in this case, it was not a simple breach of promise to marry. because of
such promise, Wassmer made preparations for the wedding. Velezs unreasonable
withdrawal from the wedding is contrary to morals, good customs or public policy.
Wassmers cause of action is supported under Article 21 of the Civil Code which
provides in part any person who wilfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the latter for
the damage.
And under the law, any violation of Article 21 entitles the injured party to receive an
award for moral damages as properly awarded by the lower court in this case. Further,
the award of exemplary damages is also proper. Here, the circumstances of this case
show that Velez, in breaching his promise to Wassmer, acted in wanton, reckless, and
oppressive manner this warrants the imposition of exemplary damages against him.


Article 7
Navarro vs. Domagtoy (A.M. No. MTJ-96-1088, 19 July 1996)
RODOLFO G. NAVARRO, complainant, vs. JUDGE HERNANDO C.
DOMAGTOY, respondent.
D E C I S I O N
ROMERO, J .:
The complainant in this administrative case is the Municipal Mayor of Dapa, Surigao
del Norte, Rodolfo G. Navarro. He has submitted evidence in relation to two specific
acts committed by respondent Municipal Circuit Trial Court Judge Hernando Domagtoy,
which, he contends, exhibits gross misconduct as well as inefficiency in office and
ignorance of the law.
First, on September 27, 1994, respondent judge solemnized the wedding between
Gaspar A. Tagadan and Arlyn F. Borga, despite the knowledge that the groom is merely
separated from his first wife.
Second, it is alleged that he performed a marriage ceremony between Floriano
Dador Sumaylo and Gemma G. del Rosario outside his court's jurisdiction on October
27, 1994. Respondent judge holds office and has jurisdiction in the Municipal Circuit
Trial Court of Sta. Monica-Burgos, Surigao del Norte. The wedding was solemnized at
the respondent judge's residence in the municipality of Dapa, which does not fall within
his jurisdictional area of the municipalities of Sta. Monica and Burgos, located some 40
to 45 kilometers away from the municipality of Dapa, Surigao del Norte.
In his letter-comment to the Office of the Court Administrator, respondent judge
avers that the office and name of the Municipal Mayor of Dapa have been used by
someone else, who, as the mayor's "lackey," is overly concerned with his actuations
both as judge and as a private person. The same person had earlier filed Administrative
Matter No. 94-980-MTC, which was dismissed for lack of merit on September 15, 1994,
and Administrative Matter No. OCA-IPI-95-16, "Antonio Adapon v. Judge Hernando C.
Domagtoy," which is still pending.
In relation to the charges against him, respondent judge seeks exculpation from his
act of having solemnized the marriage between Gaspar Tagadan, a married man
separated from his wife, and Arlyn F. Borga by stating that he merely relied on the
Affidavit issued by the Municipal Trial Judge of Basey, Samar, confirming the fact that
Mr. Tagadan and his first wife have not seen each other for almost seven years.
[1]
With
respect to the second charge, he maintains that in solemnizing the marriage between
Sumaylo and del Rosario, he did not violate Article 7, paragraph 1 of the Family Code
which states that: "Marriage may be solemnized by: (1) Any incumbent member of the
judiciary within the court's jurisdiction; and that Article 8 thereof applies to the case in
question.
The complaint was not referred, as is usual, for investigation, since the pleadings
submitted were considered sufficient for a resolution of the case.
[2]

Since the countercharges of sinister motives and fraud on the part of complainant
have not been sufficiently proven, they will not be dwelt upon. The acts complained of
and respondent judge's answer thereto will suffice and can be objectively assessed by
themselves to prove the latter's malfeasance.
The certified true copy of the marriage contract between Gaspar Tagadan and Arlyn
Borga states that Tagadan's civil status is "separated." Despite this declaration, the
wedding ceremony was solemnized by respondent judge. He presented in evidence a
joint affidavit by Maurecio A. Labado, Sr. and Eugenio Bullecer, subscribed and sworn to
before Judge Demosthenes C. Duquilla, Municipal Trial Judge of Basey, Samar.
[3]
The
affidavit was not issued by the latter judge, as claimed by respondent judge, but merely
acknowledged before him. In their affidavit, the affiants stated that they knew Gaspar
Tagadan to have been civilly married to Ida D. Pearanda in September 1983; that after
thirteen years of cohabitation and having borne five children, Ida Pearanda left the
conjugal dwelling in Valencia, Bukidnon and that she has not returned nor been heard of
for almost seven years, thereby giving rise to the presumption that she is already dead.
In effect, Judge Domagtoy maintains that the aforementioned joint affidavit is
sufficient proof of Ida Pearanda's presumptive death, and ample reason for him to
proceed with the marriage ceremony. We do not agree.
Article 41 of the Family Code expressly provides:
"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." (Emphasis added.)
There is nothing ambiguous or difficult to comprehend in this provision. In fact, the
law is clear and simple. Even if the spouse present has a well-founded belief that the
absent spouse was already dead, a summary proceeding for the declaration of
presumptive death is necessary in order to contract a subsequent marriage, a
mandatory requirement which has been precisely incorporated into the Family Code to
discourage subsequent marriages where it is not proven that the previous marriage has
been dissolved or a missing spouse is factually or presumptively dead, in accordance
with pertinent provisions of law.
In the case at bar, Gaspar Tagadan did not institute a summary proceeding for the
declaration of his first wife's presumptive death. Absent this judicial declaration, he
remains married to Ida Pearanda. Whether wittingly, or unwittingly, it was manifest
error on the part of respondent judge to have accepted the joint affidavit submitted by
the groom. Such neglect or ignorance of the law has resulted in a bigamous, and
therefore void, marriage. Under Article 35 of the Family Code, "The following marriage
shall be void from the beginning: (4) Those bigamous x x x marriages not falling under
Article 41."
The second issue involves the solemnization of a marriage ceremony outside the
court's jurisdiction, covered by Articles 7 and 8 of the Family Code, thus:
"Art. 7. Marriage may be solemnized by:
(1) Any incumbent member of the judiciary within the court's jurisdiction;
x x x x x x xxx (Emphasis supplied.)
Art. 8. The marriage shall be solemnized publicly in the chambers of the judge or in open
court, in the church, chapel or temple, or in the office of the consul-general, consul or
vice-consul, as the case may be, and not elsewhere, except in cases of marriages
contracted on the point of death or in remote places in accordance with Article 29
of this Code, or where both parties request the solemnizing officer in writing in
which case the marriage may be solemnized at a house or place designated by
them in a sworn statement to that effect."
Respondent judge points to Article 8 and its exceptions as the justifications for his
having solemnized the marriage between Floriano Sumaylo and Gemma del Rosario
outside of his court's jurisdiction. As the aforequoted provision states, a marriage can be
held outside of the judge's chambers or courtroom only in the following instances: (1) at
the point of death, (2) in remote places in accordance with Article 29 or (3) upon request
of both parties in writing in a sworn statement to this effect. There is no pretense that
either Sumaylo or del Rosario was at the point of death or in a remote place. Moreover,
the written request presented addressed to the respondent judge was made by only one
party, Gemma del Rosario.
[4]

More importantly, the elementary principle underlying this provision is the authority
of the solemnizing judge. Under Article 3, one of the formal requisites of marriage is the
"authority of the solemnizing officer." Under Article 7, marriage may be solemnized by,
among others, "any incumbent member of the judiciary within the court's jurisdiction."
Article 8, which is a directory provision, refers only to the venue of the marriage
ceremony and does not alter or qualify the authority of the solemnizing officer as
provided in the preceding provision. Non-compliance herewith will not invalidate the
marriage.
A priest who is commissioned and allowed by his local ordinary to marry the faithful,
is authorized to do so only within the area of the diocese or place allowed by his
Bishop. An appellate court Justice or a Justice of this Court has jurisdiction over the
entire Philippines to solemnize marriages, regardless of the venue, as long as the
requisites of the law are complied with. However, judges who are appointed to specific
jurisdictions, may officiate in weddings only within said areas and not beyond. Where a
judge solemnizes a marriage outside his court's jurisdiction, there is a resultant
irregularity in the formal requisite laid down in Article 3, which while it may not affect the
validity of the marriage, may subject the officiating official to administrative liability.
[5]

Inasmuch as respondent judge's jurisdiction covers the municipalities of Sta. Monica
and Burgos, he was not clothed with authority to solemnize a marriage in the
municipality of Dapa, Surigao del Norte. By citing Article 8 and the exceptions therein as
grounds for the exercise of his misplaced authority, respondent judge again
demonstrated a lack of understanding of the basic principles of civil law.
Accordingly, the Court finds respondent to have acted in gross ignorance of the
law. The legal principles applicable in the cases brought to our attention are elementary
and uncomplicated, prompting us to conclude that respondent's failure to apply them is
due to a lack of comprehension of the law.
The judiciary should be composed of persons who, if not experts, are at least,
proficient in the law they are sworn to apply, more than the ordinary laymen. They
should be skilled and competent in understanding and applying the law. It is imperative
that they be conversant with basic legal principles like the ones involved in instant
case.
[6]
It is not too much to expect them to know and apply the law
intelligently.
[7]
Otherwise, the system of justice rests on a shaky foundation indeed,
compounded by the errors committed by those not learned in the law. While magistrates
may at times make mistakes in judgment, for which they are not penalized, the
respondent judge exhibited ignorance of elementary provisions of law, in an area which
has greatly prejudiced the status of married persons.
The marriage between Gaspar Tagadan and Arlyn Borga is considered bigamous
and void, there being a subsisting marriage between Gaspar Tagadan and Ida
Pearanda.
The Office of the Court Administrator recommends, in its Memorandum to the Court,
a six-month suspension and a stern warning that a repetition of the same or similar acts
will be dealt with more severely. Considering that one of the marriages in question
resulted in a bigamous union and therefore void, and the other lacked the necessary
authority of respondent judge, the Court adopts said recommendation. Respondent is
advised to be more circumspect in applying the law and to cultivate a deeper
understanding of the law.
IN VIEW OF THE FOREGOING, respondent Judge Hernando C. Domagtoy is
hereby SUSPENDED for a period of six (6) months and given a STERN WARNING that
a repetition of the same or similar acts will be dealt with more severely.
SO ORDERED.
Regalado (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.



DIGEST
FACTS:

Municipal Mayor of Dapa, Surigao del Norte, Rodolfo G. Navarro filed a complaint on
two specific acts committed by respondent Municipal Circuit Trial Court Judge Hernando
Domagtoy on the grounds of gross misconduct, ineffiency in offce and ignorance of the
law.

It was alleged that Domagtoy solemnized marriage of Gaspar Tagadan and Arlyn Borja
on September 27, 1994 despite the knowledge that the groom has a subsisting marriage
with Ida Penaranda and that they are merely separated. It was told that Ida left their
conjugal home in Bukidnon and has not returned and been heard for almost seven
years. The said judge likewise solemnize marriage of Floriano Dadoy Sumaylo and
Gemma G. del Rosario outside his courts jurisdiction on October 27, 1994. The judge
holds his office and has jurisdiction in the Municipal Circuit Trial Court of Sta Monica-
Burgos, Surigao del Norte but he solemnized the said wedding at his residence in the
municipality of Dapa located 40 to 50 km away.

ISSUE: Whether or not the marriages solemnized were void.

HELD:

The court held that the marriage between Tagadan and Borja was void and bigamous
there being a subsisting marriage between Tagadan and Penaranda. Albeit, the latter
was gone for seven years and the spouse had a well-founded belief that the absent
spouse was dead, Tagadan did not institute a summary proceeding as provided in the
Civil Code for the declaration of presumptive death of the absentee, without prejudice to
the effect of reappearance of the absent spouse.

With regard to the marriage of Sumaylo and Del Rosario, the latter only made the written
request where it should have been both parties as stated in Article 8 of the Family
Code. Their non-compliance did not invalidate their marriage however, Domagtoy may
be held administratively liable.


Aranas vs. Judge Occiano (A.M. No. MTJ-02-1309, 11 April 2002)
MERCEDITA MATA ARAES, petitioner, vs. JUDGE SALVADOR M.
OCCIANO, respondent.
D E C I S I O N
PUNO, J .:
Petitioner Mercedita Mata Araes charges respondent judge with Gross Ignorance
of the Law via a sworn Letter-Complaint dated 23 May 2001. Respondent is the
Presiding Judge of the Municipal Trial Court of Balatan, Camarines Sur. Petitioner
alleges that on 17 February 2000, respondent judge solemnized her marriage to her late
groom Dominador B. Orobia without the requisite marriage license and at Nabua,
Camarines Sur which is outside his territorial jurisdiction.
They lived together as husband and wife on the strength of this marriage until her
husband passed away. However, since the marriage was a nullity, petitioners right to
inherit the vast properties left by Orobia was not recognized. She was likewise
deprived of receiving the pensions of Orobia, a retired Commodore of the Philippine
Navy.
Petitioner prays that sanctions be imposed against respondent judge for his illegal
acts and unethical misrepresentations which allegedly caused her so much hardships,
embarrassment and sufferings.
On 28 May 2001, the case was referred by the Office of the Chief Justice to then
Acting Court Administrator Zenaida N. Elepao for appropriate action. On 8 June 2001,
the Office of the Court Administrator required respondent judge to comment.
In his Comment dated 5 July 2001, respondent judge averred that he was requested
by a certain Juan Arroyo on 15 February 2000 to solemnize the marriage of the parties
on 17 February 2000. Having been assured that all the documents to the marriage were
complete, he agreed to solemnize the marriage in his sala at the Municipal Trial Court of
Balatan, Camarines Sur. However, on 17 February 2000, Arroyo informed him that
Orobia had a difficulty walking and could not stand the rigors of travelling to Balatan
which is located almost 25 kilometers from his residence in Nabua. Arroyo then
requested if respondent judge could solemnize the marriage in Nabua, to which request
he acceded.
Respondent judge further avers that before he started the ceremony, he carefully
examined the documents submitted to him by petitioner. When he discovered that the
parties did not possess the requisite marriage license, he refused to solemnize the
marriage and suggested its resetting to another date. However, due to the earnest pleas
of the parties, the influx of visitors, and the delivery of provisions for the occasion, he
proceeded to solemnize the marriage out of human compassion. He also feared that if
he reset the wedding, it might aggravate the physical condition of Orobia who just
suffered from a stroke. After the solemnization, he reiterated the necessity for the
marriage license and admonished the parties that their failure to give it would render the
marriage void. Petitioner and Orobia assured respondent judge that they would give the
license to him in the afternoon of that same day. When they failed to comply, respondent
judge followed it up with Arroyo but the latter only gave him the same reassurance that
the marriage license would be delivered to his sala at the Municipal Trial Court of
Balatan, Camarines Sur.
Respondent judge vigorously denies that he told the contracting parties that their
marriage is valid despite the absence of a marriage license. He attributes the hardships
and embarrassment suffered by the petitioner as due to her own fault and negligence.
On 12 September 2001, petitioner filed her Affidavit of Desistance dated 28 August
2001 with the Office of the Court Administrator. She attested that respondent judge
initially refused to solemnize her marriage due to the want of a duly issued marriage
license and that it was because of her prodding and reassurances that he eventually
solemnized the same. She confessed that she filed this administrative case out of rage.
However, after reading the Comment filed by respondent judge, she realized her own
shortcomings and is now bothered by her conscience.
Reviewing the records of the case, it appears that petitioner and Orobia filed their
Application for Marriage License on 5 January 2000. It was stamped in this Application
that the marriage license shall be issued on 17 January 2000. However, neither
petitioner nor Orobia claimed it.
It also appears that the Office of the Civil Registrar General issued a Certification
that it has no record of such marriage that allegedly took place on 17 February 2000.
Likewise, the Office of the Local Civil Registrar of Nabua, Camarines Sur issued another
Certification dated 7 May 2001 that it cannot issue a true copy of the Marriage Contract
of the parties since it has no record of their marriage.
On 8 May 2001, petitioner sought the assistance of respondent judge so the latter
could communicate with the Office of the Local Civil Registrar of Nabua, Camarines Sur
for the issuance of her marriage license. Respondent judge wrote the Local Civil
Registrar of Nabua, Camarines Sur. In a letter dated 9 May 2001, a Clerk of said office,
Grace T. Escobal, informed respondent judge that their office cannot issue the marriage
license due to the failure of Orobia to submit the Death Certificate of his previous
spouse.
The Office of the Court Administrator, in its Report and Recommendation dated 15
November 2000, found the respondent judge guilty of solemnizing a marriage without a
duly issued marriage license and for doing so outside his territorial jurisdiction. A fine of
P5,000.00 was recommended to be imposed on respondent judge.
We agree.
Under the Judiciary Reorganization Act of 1980, or B.P.129, the authority of the
regional trial court judges and judges of inferior courts to solemnize marriages is
confined to their territorial jurisdiction as defined by the Supreme Court.
The case at bar is not without precedent. In Navarro vs. Domagtoy,
[1]
respondent
judge held office and had jurisdiction in the Municipal Circuit Trial Court of Sta. Monica-
Burgos, Surigao del Norte. However, he solemnized a wedding at his residence in the
municipality of Dapa, Surigao del Norte which did not fall within the jurisdictional area of
the municipalities of Sta. Monica and Burgos. We held that:
A priest who is commissioned and allowed by his local ordinance to marry the faithful is
authorized to do so only within the area or diocese or place allowed by his Bishop. An
appellate court Justice or a Justice of this Court has jurisdiction over the entire
Philippines to solemnize marriages, regardless of the venue, as long as the requisites of
the law are complied with. However, judges who are appointed to specific
jurisdictions, may officiate in weddings only within said areas and not beyond.
Where a judge solemnizes a marriage outside his courts jurisdiction, there is a
resultant irregularity in the formal requisite laid down in Article 3, which while it
may not affect the validity of the marriage, may subject the officiating official to
administrative liability.
[2]
(Emphasis supplied.)
In said case, we suspended respondent judge for six (6) months on the ground that
his act of solemnizing a marriage outside his jurisdiction constitutes gross ignorance
of the law. We further held that:
The judiciary should be composed of persons who, if not experts, are at least, proficient
in the law they are sworn to apply, more than the ordinary laymen. They should be
skilled and competent in understanding and applying the law. It is imperative that they be
conversant with basic legal principles like the ones involved in the instant case. x x x
While magistrates may at times make mistakes in judgment, for which they are not
penalized, the respondent judge exhibited ignorance of elementary provisions of law, in
an area which has greatly prejudiced the status of married persons.
[3]

In the case at bar, the territorial jurisdiction of respondent judge is limited to the
municipality of Balatan, Camarines Sur. His act of solemnizing the marriage of petitioner
and Orobia in Nabua, Camarines Sur therefore is contrary to law and subjects him to
administrative liability. His act may not amount to gross ignorance of the law for he
allegedly solemnized the marriage out of human compassion but nonetheless, he cannot
avoid liability for violating the law on marriage.
Respondent judge should also be faulted for solemnizing a marriage without the
requisite marriage license. In People vs. Lara,
[4]
we held that a marriage which
preceded the issuance of the marriage license is void, and that the subsequent issuance
of such license cannot render valid or even add an iota of validity to the marriage.
Except in cases provided by law, it is the marriage license that gives the solemnizing
officer the authority to solemnize a marriage. Respondent judge did not possess such
authority when he solemnized the marriage of petitioner. In this respect, respondent
judge acted in gross ignorance of the law.
Respondent judge cannot be exculpated despite the Affidavit of Desistance filed by
petitioner. This Court has consistently held in a catena of cases that the withdrawal of
the complaint does not necessarily have the legal effect of exonerating respondent from
disciplinary action. Otherwise, the prompt and fair administration of justice, as well as the
discipline of court personnel, would be undermined.
[5]
Disciplinary actions of this nature
do not involve purely private or personal matters. They can not be made to depend upon
the will of every complainant who may, for one reason or another, condone a detestable
act. We cannot be bound by the unilateral act of a complainant in a matter which
involves the Courts constitutional power to discipline judges. Otherwise, that power may
be put to naught, undermine the trust character of a public office and impair the integrity
and dignity of this Court as a disciplining authority.
[6]

WHEREFORE, respondent Judge Salvador M. Occiano, Presiding Judge of the
Municipal Trial Court of Balatan, Camarines Sur, is fined P5,000.00 pesos with a
STERN WARNING that a repetition of the same or similar offense in the future will be
dealt with more severely.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.

DIGEST
FACTS:

Petitioner Mercedita Mata Aranes charged respondent Judge Occiano with gross
ignorance of the law. Occiano is the presiding judge in Court of Balatan, Camarines
Sur. However, he solemnized the marriage of Aranes and Dominador Orobia on
February 17, 2000 at the couples residence in Nabua, Camarines Sur which is outside
his territorial jurisdiction and without the requisite of marriage license.

It appeared in the records that petitioner and Orobia filed their application of marriage
license on January 5, 2000 and was stamped that it will be issued on January 17, 2000
but neither of them claimed it. In addition, no record also appeared with the Office of the
Civil Registrar General for the alleged marriage.

Before Judge Occiano started the ceremony, he carefully examined the documents and
first refused to conduct the marriage and advised them to reset the date considering the
absence of the marriage license. However, due to the earnest pleas of the parties, the
influx of visitors and fear that the postponement of the wedding might aggravate the
physical condition of Orobia who just suffered from stroke, he solemnized the marriage
on the assurance of the couple that they will provide the license that same afternoon.
Occiano denies that he told the couple that their marriage is valid.

ISSUE: Whether Judge Occiano is guilty of solemnizing a marriage without a duly issued
marriage license and conducting it outside his territorial jurisdiction.

HELD:

The court held that the territorial jurisdiction of respondent judge is limited to the
municipality of Balatan, Camarines Sur. His act of solemnizing the marriage of petitioner
and Orobia in Nabua, Camarines Sur therefore is contrary to law and subjects him to
administrative liability. His act may not amount to gross ignorance of the law for he
allegedly solemnized the marriage out of human compassion but nonetheless, he cannot
avoid liability for violating the law on marriage.

WHEREFORE, respondent Judge Salvador M. Occiano, Presiding Judge of the
Municipal Trial Court of Balatan, Camarines Sur, is fined P5,000.00 pesos with a STERN
WARNING that a repetition of the same or similar offense in the future will be dealt with
more severely.


Article 22
Lim Tanhu vs. Ramolete (66 SCRA 425)
G.R. No. L-40098 August 29, 1975
ANTONIO LIM TANHU, DY OCHAY, ALFONSO LEONARDO NG SUA and CO
OYO, petitioners,
vs.
HON. JOSE R. RAMOLETE as Presiding Judge, Branch III, CFI, Cebu and TAN
PUT, respondents.
Zosa, Zosa, Castillo, Alcudia & Koh for petitioners.
Fidel Manalo and Florido & Associates for respondents.

BARREDO, J .:
Petition for (1) certiorari to annul and set aside certain actuations of respondent Court of
First Instance of Cebu Branch III in its Civil Case No. 12328, an action for accounting of
properties and money totalling allegedly about P15 million pesos filed with a common
cause of action against six defendants, in which after declaring four of the said
defendants herein petitioners, in default and while the trial as against the two defendants
not declared in default was in progress, said court granted plaintiff's motion to dismiss
the case in so far as the non-defaulted defendants were concerned and thereafter
proceeded to hear ex-parte the rest of the plaintiffs evidence and subsequently rendered
judgment by default against the defaulted defendants, with the particularities that notice
of the motion to dismiss was not duly served on any of the defendants, who had alleged
a compulsory counterclaim against plaintiff in their joint answer, and the judgment so
rendered granted reliefs not prayed for in the complaint, and (2) prohibition to enjoin
further proceedings relative to the motion for immediate execution of the said judgment.
Originally, this litigation was a complaint filed on February 9, 1971 by respondent Tan
Put only against the spouses-petitioners Antonio Lim Tanhu and Dy Ochay.
Subsequently, in an amended complaint dated September 26, 1972, their son Lim Teck
Chuan and the other spouses-petitioners Alfonso Leonardo Ng Sua and Co Oyo and
their son Eng Chong Leonardo were included as defendants. In said amended
complaint, respondent Tan alleged that she "is the widow of Tee Hoon Lim Po Chuan,
who was a partner in the commercial partnership, Glory Commercial Company ... with
Antonio Lim Tanhu and Alfonso Ng Sua that "defendant Antonio Lim Tanhu, Alfonso
Leonardo Ng Sua, Lim Teck Chuan, and Eng Chong Leonardo, through fraud and
machination, took actual and active management of the partnership and although Tee
Hoon Lim Po Chuan was the manager of Glory Commercial Company, defendants
managed to use the funds of the partnership to purchase lands and building's in the
cities of Cebu, Lapulapu, Mandaue, and the municipalities of Talisay and Minglanilla,
some of which were hidden, but the description of those already discovered were as
follows: (list of properties) ...;" and that:
13. (A)fter the death of Tee Hoon Lim Po Chuan, the defendants, without
liquidation continued the business of Glory Commercial Company by
purportedly organizing a corporation known as the Glory Commercial
Company, Incorporated, with paid up capital in the sum of P125,000.00,
which money and other assets of the said Glory Commercial Company,
Incorporated are actually the assets of the defunct Glory Commercial
Company partnership, of which the plaintiff has a share equivalent to one
third (/
3
) thereof;
14. (P)laintiff, on several occasions after the death of her husband, has
asked defendants of the above-mentioned properties and for the
liquidation of the business of the defunct partnership, including
investments on real estate in Hong Kong, but defendants kept on
promising to liquidate said properties and just told plaintiff to
15. (S)ometime in the month of November, 1967, defendants, Antonio
Lim Tanhu, by means of fraud deceit and misrepresentations did then and
there, induce and convince the plaintiff to execute a quitclaim of all her
rights and interests, in the assets of the partnership of Glory Commercial
Company, which is null and void, executed through fraud and without any
legal effect. The original of said quitclaim is in the possession of the
adverse party defendant Antonio Lim Tanhu.
16. (A)s a matter of fact, after the execution of said quitclaim, defendant
Antonio Lim Tanhu offered to pay the plaintiff the amount P65,000.00
within a period of one (1) month, for which plaintiff was made to sign a
receipt for the amount of P65,000.00 although no such amount was given
and plaintiff was not even given a copy of said document;
17. (T)hereafter, in the year 1968-69, the defendants who had earlier
promised to liquidate the aforesaid properties and assets in favor among
others of plaintiff and until the middle of the year 1970 when the plaintiff
formally demanded from the defendants the accounting of real and
personal properties of the Glory Commercial Company, defendants
refused and stated that they would not give the share of the plaintiff. (Pp.
36-37, Record.)
She prayed as follows:
WHEREFORE, it is most respectfully prayed that judgment be rendered:
a) Ordering the defendants to render an accounting of the real and
personal properties of the Glory Commercial Company including those
registered in the names of the defendants and other persons, which
properties are located in the Philippines and in Hong Kong;
b) Ordering the defendants to deliver to the plaintiff after accounting, one
third (/
3
) of the total value of all the properties which is approximately
P5,000,000.00 representing the just share of the plaintiff;
c) Ordering the defendants to pay the attorney of the plaintiff the sum of
Two Hundred Fifty Thousand Pesos (P250,000.00) by way of attorney's
fees and damages in the sum of One Million Pesos (P1,000,000.00).
This Honorable Court is prayed for other remedies and reliefs consistent
with law and equity and order the defendants to pay the costs. (Page 38,
Record.)
The admission of said amended complaint was opposed by defendants upon the ground
that there were material modifications of the causes of action previously alleged, but
respondent judge nevertheless allowed the amendment reasoning that:
The present action is for accounting of real and personal properties as
well as for the recovery of the same with damages.
An objective consideration of pars. 13 and 15 of the amended complaint
pointed out by the defendants to sustain their opposition will show that the
allegations of facts therein are merely to amplify material averments
constituting the cause of action in the original complaint. It likewise
include necessary and indispensable defendants without whom no final
determination can be had in the action and in order that complete relief is
to be accorded as between those already parties.
Considering that the amendments sought to be introduced do not change
the main causes of action in the original complaint and the reliefs
demanded and to allow amendments is the rule, and to refuse them the
exception and in order that the real question between the parties may be
properly and justly threshed out in a single proceeding to avoid multiplicity
of actions. (Page 40, Record.)
In a single answer with counterclaim, over the signature of their common counsel,
defendants denied specifically not only the allegation that respondent Tan is the widow
of Tee Hoon because, according to them, his legitimate wife was Ang Siok Tin still living
and with whom he had four (4) legitimate children, a twin born in 1942, and two others
born in 1949 and 1965, all presently residing in Hongkong, but also all the allegations of
fraud and conversion quoted above, the truth being, according to them, that proper
liquidation had been regularly made of the business of the partnership and Tee Hoon
used to receive his just share until his death, as a result of which the partnership was
dissolved and what corresponded to him were all given to his wife and children. To quote
the pertinent portions of said answer:
AND BY WAY OF SPECIAL AND AFFIRMATIVE DEFENSES,
defendants hereby incorporate all facts averred and alleged in the
answer, and further most respectfully declare:
1. That in the event that plaintiff is filing the present complaint as an heir
of Tee Hoon Lim Po Chuan, then, she has no legal capacity to sue as
such, considering that the legitimate wife, namely: Ang Siok Tin, together
with their children are still alive. Under Sec. 1, (d), Rule 16 of the Revised
Rules of Court, lack of legal capacity to sue is one of the grounds for a
motion to dismiss and so defendants prays that a preliminary hearing be
conducted as provided for in Sec. 5, of the same rule;
2. That in the alternative case or event that plaintiff is filing the present
case under Art. 144 of the Civil Code, then, her claim or demand has
been paid, waived abandoned or otherwise extinguished as evidenced by
the 'quitclaim' Annex 'A' hereof, the ground cited is another ground for a
motion to dismiss (Sec. 1, (h), Rule 16) and hence defendants pray that a
preliminary hearing be made in connection therewith pursuant to Section
5 of the aforementioned rule;
3. That Tee Hoon Lim Po Chuan was legally married to Ang Siok Tin and
were blessed with the following children, to wit: Ching Siong Lim and
Ching Hing Lim (twins) born on February 16, 1942; Lim Shing Ping born
on March 3, 1949 and Lim Eng Lu born on June 25, 1965 and presently
residing in Hongkong;
4. That even before the death of Tee Hoon Lim Po Chuan, the plaintiff
was no longer his common law wife and even though she was not entitled
to anything left by Tee Hoon Lim Po Chuan, yet, out of the kindness and
generosity on the part of the defendants, particularly Antonio Lain Tanhu,
who, was inspiring to be monk and in fact he is now a monk, plaintiff was
given a substantial amount evidenced by the 'quitclaim' (Annex 'A');
5. That the defendants have acquired properties out of their own personal
fund and certainly not from the funds belonging to the partnership, just as
Tee Hoon Lim Po Chuan had acquired properties out of his personal fund
and which are now in the possession of the widow and neither the
defendants nor the partnership have anything to do about said properties;
6. That it would have been impossible to buy properties from funds
belonging to the partnership without the other partners knowing about it
considering that the amount taken allegedly is quite big and with such big
amount withdrawn the partnership would have been insolvent;
7. That plaintiff and Tee Hoon Lim Po Chuan were not blessed with
children who would have been lawfully entitled to succeed to the
properties left by the latter together with the widow and legitimate
children;
8. That despite the fact that plaintiff knew that she was no longer entitled
to anything of the shares of the late Tee Hoon Lim Po Chuan, yet, this
suit was filed against the defendant who have to interpose the following

C O U N T E R C L A I M
A. That the defendants hereby reproduced, by way of reference, all the
allegations and foregoing averments as part of this counterclaim; .
B. That plaintiff knew and was aware she was merely the common-law
wife of Tee Hoon Lim Po Chuan and that the lawful and legal is still living,
together with the legitimate children, and yet she deliberately suppressed
this fact, thus showing her bad faith and is therefore liable for exemplary
damages in an amount which the Honorable Court may determine in the
exercise of its sound judicial discretion. In the event that plaintiff is
married to Tee Hoon Lim Po Chuan, then, her marriage is bigamous and
should suffer the consequences thereof;
C. That plaintiff was aware and had knowledge about the 'quitclaim', even
though she was not entitled to it, and yet she falsely claimed that
defendants refused even to see her and for filing this unfounded,
baseless, futile and puerile complaint, defendants suffered mental
anguish and torture conservatively estimated to be not less than
P3,000.00;
D. That in order to defend their rights in court, defendants were
constrained to engage the services of the undersigned counsel, obligating
themselves to pay P500,000.00 as attorney's fees;
E. That by way of litigation expenses during the time that this case will be
before this Honorable Court and until the same will be finally terminated
and adjudicated, defendants will have to spend at least P5,000.00. (Pp.
44-47. Record.)
After unsuccessfully trying to show that this counterclaim is merely permissive and
should be dismissed for non-payment of the corresponding filing fee, and after being
overruled by the court, in due time, plaintiff answered the same, denying its material
allegations.
On February 3, 1973, however, the date set for the pre-trial, both of the two defendants-
spouses the Lim Tanhus and Ng Suas, did not appear, for which reason, upon motion of
plaintiff dated February 16, 1973, in an order of March 12, 1973, they were all "declared
in DEFAULT as of February 3, 1973 when they failed to appear at the pre-trial." They
sought to hive this order lifted thru a motion for reconsideration, but the effort failed when
the court denied it. Thereafter, the trial started, but at the stage thereof where the first
witness of the plaintiff by the name of Antonio Nuez who testified that he is her adopted
son, was up for re-cross-examination, said plaintiff unexpectedly filed on October 19,
1974 the following simple and unreasoned
MOTION TO DROP DEFENDANTS LIM TECK
CHUAN AND ENG CHONG LEONARDO
COMES now plaintiff, through her undersigned counsel, unto the
Honorable Court most respectfully moves to drop from the complaint the
defendants Lim Teck Chuan and Eng Chong Leonardo and to consider
the case dismissed insofar as said defendants Lim Teck Chuan and Eng
Chong Leonardo are concerned.
WHEREFORE, it is most respectfully prayed of the Honorable Court to
drop from the complaint the defendants Lim Teck Chuan and Eng Chong
Leonardo and to dismiss the case against them without pronouncement
as to costs. (Page 50, Record.)
which she set for hearing on December 21, 1974. According to
petitioners, none of the defendants declared in default were notified of
said motion, in violation of Section 9 of Rule 13, since they had asked for
the lifting of the order of default, albeit unsuccessfully, and as regards the
defendants not declared in default, the setting of the hearing of said
motion on October 21, 1974 infringed the three-day requirement of
Section 4 of Rule 15, inasmuch as Atty. Adelino Sitoy of Lim Teck Chuan
was served with a copy of the motion personally only on October 19,
1974, while Atty. Benjamin Alcudia of Eng Chong Leonardo was served
by registered mail sent only on the same date.
Evidently without even verifying the notices of service, just as simply as
plaintiff had couched her motion, and also without any legal grounds
stated, respondent court granted the prayer of the above motion thus:
ORDER
Acting on the motion of the plaintiff praying for the dismissal of the
complaint as against defendants Lim Teck Chuan and Eng Chong
Leonardo.
The same is hereby GRANTED. The complaint as against defendant Lim
Teck Chuan and Eng Chong Leonardo is hereby ordered DISMISSED
without pronouncement as to costs.
Simultaneously, the following order was also issued:
Considering that defendants Antonio Lim Tanhu and his spouse Dy
Ochay as well as defendants Alfonso Ng Sua and his spouse Co Oyo
have been declared in default for failure to appear during the pre-trial and
as to the other defendants the complaint had already been ordered
dismissed as against them.
Let the hearing of the plaintiff's evidence ex-parte be set on November
20, 1974, at 8:30 A.M. before the Branch Clerk of Court who is deputized
for the purpose, to swear in witnesses and to submit her report within ten
(10) days thereafter. Notify the plaintiff.
SO ORDERED.
Cebu City, Philippines, October 21, 1974. (Page 52, Record.)
But, in connection with this last order, the scheduled ex-parte reception of evidence did
not take place on November 20, 1974, for on October 28, 1974, upon verbal motion of
plaintiff, the court issued the following self-explanatory order: .
Acting favorably on the motion of the plaintiff dated October 18, 1974, the
Court deputized the Branch Clerk of Court to receive the evidence of the
plaintiff ex-parte to be made on November 20, 1974. However, on
October 28, 1974, the plaintiff, together with her witnesses, appeared in
court and asked, thru counsel, that she be allowed to present her
evidence.
Considering the time and expenses incurred by the plaintiff in bringing her
witnesses to the court, the Branch Clerk of Court is hereby authorized to
receive immediately the evidence of the plaintiff ex-parte.
SO ORDERED.
Cebu City, Philippines, October 28, 1974. (Page 53. Record.)
Upon learning of these orders on October 23, 1973, the defendant Lim Teck Cheng, thru
counsel, Atty. Sitoy, filed a motion for reconsideration thereof, and on November 1,
1974, defendant Eng Chong Leonardo, thru counsel Atty. Alcudia, filed also his own
motion for reconsideration and clarification of the same orders. These motions were
denied in an order dated December 6, 1974 but received by the movants only on
December 23, 1974. Meanwhile, respondent court rendered the impugned decision on
December 20, 1974. It does not appear when the parties were served copies of this
decision.
Subsequently, on January 6, 1975, all the defendants, thru counsel, filed a motion to
quash the order of October 28, 1974. Without waiting however for the resolution thereof,
on January 13, 1974, Lim Teck Chuan and Eng Chong Leonardo went to the Court of
Appeals with a petition for certiorari seeking the annulment of the above-mentioned
orders of October 21, 1974 and October 28, 1974 and decision of December 20, 1974.
By resolution of January 24, 1975, the Court of Appeals dismissed said petition, holding
that its filing was premature, considering that the motion to quash the order of October
28, 1974 was still unresolved by the trial court. This holding was reiterated in the
subsequent resolution of February 5, 1975 denying the motion for reconsideration of the
previous dismissal.
On the other hand, on January 20, 1975, the other defendants, petitioners herein, filed
their notice of appeal, appeal bond and motion for extension to file their record on
appeal, which was granted, the extension to expire after fifteen (15) days from January
26 and 27, 1975, for defendants Lim Tanhu and Ng Suas, respectively. But on February
7, 1975, before the perfection of their appeal, petitioners filed the present petition with
this Court. And with the evident intent to make their procedural position clear, counsel for
defendants, Atty. Manuel Zosa, filed with respondent court a manifestation dated
February 14, 1975 stating that "when the non-defaulted defendants Eng Chong
Leonardo and Lim Teck Chuan filed their petition in the Court of Appeals, they in effect
abandoned their motion to quash the order of October 28, 1974," and that similarly
"when Antonio Lim Tanhu, Dy Ochay, Alfonso Leonardo Ng Sua and Co Oyo, filed their
petition for certiorari and prohibition ... in the Supreme Court, they likewise abandoned
their motion to quash." This manifestation was acted upon by respondent court together
with plaintiffs motion for execution pending appeal in its order of the same date February
14, 1975 this wise:
ORDER
When these incidents, the motion to quash the order of October 28, 1974
and the motion for execution pending appeal were called for hearing
today, counsel for the defendants-movants submitted their manifestation
inviting the attention of this Court that by their filing for certiorari and
prohibition with preliminary injunction in the Court of Appeals which was
dismissed and later the defaulted defendants filed with the Supreme
Court certiorari with prohibition they in effect abandoned their motion to
quash.
IN VIEW HEREOF, the motion to quash is ordered ABANDONED. The
resolution of the motion for execution pending appeal shall be resolved
after the petition for certiorari and prohibition shall have been resolved by
the Supreme Court.
SO ORDERED.
Cebu City, Philippines, February 14, 1975. (Page 216, Record.)
Upon these premises, it is the position of petitioners that respondent court acted illegally,
in violation of the rules or with grave abuse of discretion in acting on respondent's motion
to dismiss of October 18, 1974 without previously ascertaining whether or not due notice
thereof had been served on the adverse parties, as, in fact, no such notice was timely
served on the non-defaulted defendants Lim Teck Chuan and Eng Chong Leonardo and
no notice at all was ever sent to the other defendants, herein petitioners, and more so, in
actually ordering the dismissal of the case by its order of October 21, 1974 and at the
same time setting the case for further hearing as against the defaulted defendants,
herein petitioners, actually hearing the same ex-parte and thereafter rendering the
decision of December 20, 1974 granting respondent Tan even reliefs not prayed for in
the complaint. According to the petitioners, to begin with, there was compulsory
counterclaim in the common answer of the defendants the nature of which is such that it
cannot be decided in an independent action and as to which the attention of respondent
court was duly called in the motions for reconsideration. Besides, and more importantly,
under Section 4 of Rule 18, respondent court had no authority to divide the case before
it by dismissing the same as against the non-defaulted defendants and thereafter
proceeding to hear it ex-parte and subsequently rendering judgment against the
defaulted defendants, considering that in their view, under the said provision of the rules,
when a common cause of action is alleged against several defendants, the default of
any of them is a mere formality by which those defaulted are not allowed to take part in
the proceedings, but otherwise, all the defendants, defaulted and not defaulted, are
supposed to have but a common fate, win or lose. In other words, petitioners posit that in
such a situation, there can only be one common judgment for or against all the
defendant, the non-defaulted and the defaulted. Thus, petitioners contend that the order
of dismissal of October 21, 1974 should be considered also as the final judgment insofar
as they are concerned, or, in the alternative, it should be set aside together with all the
proceedings and decision held and rendered subsequent thereto, and that the trial be
resumed as of said date, with the defendants Lim Teck Chuan and Eng Chong Leonardo
being allowed to defend the case for all the defendants.
On the other hand, private respondent maintains the contrary view that inasmuch as
petitioners had been properly declared in default, they have no personality nor interest to
question the dismissal of the case as against their non-defaulted co-defendants and
should suffer the consequences of their own default. Respondent further contends, and
this is the only position discussed in the memorandum submitted by her counsel, that
since petitioners have already made or at least started to make their appeal, as they are
in fact entitled to appeal, this special civil action has no reason for being. Additionally,
she invokes the point of prematurity upheld by the Court of Appeals in regard to the
above-mentioned petition therein of the non-defaulted defendants Lim Teck Chuan and
Eng Chong Leonardo. Finally, she argues that in any event, the errors attributed to
respondent court are errors of judgment and may be reviewed only in an appeal.
After careful scrutiny of all the above-related proceedings, in the court below and mature
deliberation, the Court has arrived at the conclusion that petitioners should be granted
relief, if only to stress emphatically once more that the rules of procedure may not be
misused and abused as instruments for the denial of substantial justice. A review of the
record of this case immediately discloses that here is another demonstrative instance of
how some members of the bar, availing of their proficiency in invoking the letter of the
rules without regard to their real spirit and intent, succeed in inducing courts to act
contrary to the dictates of justice and equity, and, in some instances, to wittingly or
unwittingly abet unfair advantage by ironically camouflaging their actuations as earnest
efforts to satisfy the public clamor for speedy disposition of litigations, forgetting all the
while that the plain injunction of Section 2 of Rule 1 is that the "rules shall be liberally
construed in order to promote their object and to assist the parties in obtaining not only
'speedy' but more imperatively, "just ... and inexpensive determination of every action
and proceeding." We cannot simply pass over the impression that the procedural
maneuvers and tactics revealed in the records of the case at bar were deliberately
planned with the calculated end in view of depriving petitioners and their co-defendants
below of every opportunity to properly defend themselves against a claim of more than
substantial character, considering the millions of pesos worth of properties involved as
found by respondent judge himself in the impugned decision, a claim that appears, in the
light of the allegations of the answer and the documents already brought to the attention
of the court at the pre-trial, to be rather dubious. What is most regrettable is that
apparently, all of these alarming circumstances have escaped respondent judge who did
not seem to have hesitated in acting favorably on the motions of the plaintiff conducive
to the deplorable objective just mentioned, and which motions, at the very least,
appeared to be 'of highly controversial' merit, considering that their obvious tendency
and immediate result would be to convert the proceedings into a one-sided affair, a
situation that should be readily condemnable and intolerable to any court of justice.
Indeed, a seeming disposition on the part of respondent court to lean more on the
contentions of private respondent may be discerned from the manner it resolved the
attempts of defendants Dy Ochay and Antonio Lim Tanhu to have the earlier order of
default against them lifted. Notwithstanding that Dy Ochay's motion of October 8, 1971,
co-signed by her with their counsel, Atty. Jovencio Enjambre (Annex 2 of respondent
answer herein) was over the jurat of the notary public before whom she took her oath, in
the order of November 2, 1971, (Annex 3 id.) it was held that "the oath appearing at the
bottom of the motion is not the one contemplated by the abovequoted pertinent provision
(See. 3, Rule 18) of the rules. It is not even a verification. (See. 6, Rule 7.) What the rule
requires as interpreted by the Supreme Court is that the motion must have to be
accompanied by an affidavit of merits that the defendant has a meritorious defense,
thereby ignoring the very simple legal point that the ruling of the Supreme Court in Ong
Peng vs. Custodio, 1 SCRA 781, relied upon by His Honor, under which a separate
affidavit of merit is required refers obviously to instances where the motion is not over
oath of the party concerned, considering that what the cited provision literally requires is
no more than a "motion under oath." Stated otherwise, when a motion to lift an order of
default contains the reasons for the failure to answer as well as the facts constituting the
prospective defense of the defendant and it is sworn to by said defendant, neither a
formal verification nor a separate affidavit of merit is necessary.
What is worse, the same order further held that the motion to lift the order of default "is
an admission that there was a valid service of summons" and that said motion could not
amount to a challenge against the jurisdiction of the court over the person of the
defendant. Such a rationalization is patently specious and reveals an evident failure to
grasp the import of the legal concepts involved. A motion to lift an order of default on the
ground that service of summons has not been made in accordance with the rules is in
order and is in essence verily an attack against the jurisdiction of the court over the
person of the defendant, no less than if it were worded in a manner specifically
embodying such a direct challenge.
And then, in the order of February 14, 1972 (Annex 6, id.) lifting at last the order of
default as against defendant Lim Tanhu, His Honor posited that said defendant "has a
defense (quitclaim) which renders the claim of the plaintiff contentious." We have read
defendants' motion for reconsideration of November 25, 1971 (Annex 5, id.), but We
cannot find in it any reference to a "quitclaim". Rather, the allegation of a quitclaim is in
the amended complaint (Pars. 15-16, Annex B of the petition herein) in which plaintiff
maintains that her signature thereto was secured through fraud and deceit. In truth, the
motion for reconsideration just mentioned, Annex 5, merely reiterated the allegation in
Dy Ochay's earlier motion of October 8, 1971, Annex 2, to set aside the order of default,
that plaintiff Tan could be but the common law wife only of Tee Hoon, since his
legitimate wife was still alive, which allegation, His Honor held in the order of November
2, 1971, Annex 3, to be "not good and meritorious defense". To top it all, whereas, as
already stated, the order of February 19, 1972, Annex 6, lifted the default against Lim
Tanhu because of the additional consideration that "he has a defense (quitclaim) which
renders the claim of the plaintiff contentious," the default of Dy Ochay was maintained
notwithstanding that exactly the same "contentions" defense as that of her husband was
invoked by her.
Such tenuous, if not altogether erroneous reasonings and manifest inconsistency in the
legal postures in the orders in question can hardly convince Us that the matters here in
issue were accorded due and proper consideration by respondent court. In fact, under
the circumstances herein obtaining, it seems appropriate to stress that, having in view
the rather substantial value of the subject matter involved together with the obviously
contentious character of plaintiff's claim, which is discernible even on the face of the
complaint itself, utmost care should have been taken to avoid the slightest suspicion of
improper motivations on the part of anyone concerned. Upon the considerations
hereunder to follow, the Court expresses its grave concern that much has to be done to
dispel the impression that herein petitioners and their co-defendants are being railroaded
out of their rights and properties without due process of law, on the strength of
procedural technicalities adroitly planned by counsel and seemingly unnoticed and
undetected by respondent court, whose orders, gauged by their tenor and the citations
of supposedly pertinent provisions and jurisprudence made therein, cannot be said to
have proceeded from utter lack of juridical knowledgeability and competence.
1
The first thing that has struck the Court upon reviewing the record is the seeming alacrity
with which the motion to dismiss the case against non-defaulted defendants Lim Teck
Chuan and Eng Chong Leonardo was disposed of, which definitely ought not to have
been the case. The trial was proceeding with the testimony of the first witness of plaintiff
and he was still under re-cross-examination. Undoubtedly, the motion to dismiss at that
stage and in the light of the declaration of default against the rest of the defendants was
a well calculated surprise move, obviously designed to secure utmost advantage of the
situation, regardless of its apparent unfairness. To say that it must have been entirely
unexpected by all the defendants, defaulted and non-defaulted , is merely to rightly
assume that the parties in a judicial proceeding can never be the victims of any
procedural waylaying as long as lawyers and judges are imbued with the requisite sense
of equity and justice.
But the situation here was aggravated by the indisputable fact that the adverse parties
who were entitled to be notified of such unanticipated dismissal motion did not get due
notice thereof. Certainly, the non-defaulted defendants had the right to the three-day
prior notice required by Section 4 of Rule 15. How could they have had such
indispensable notice when the motion was set for hearing on Monday, October 21, 1974,
whereas the counsel for Lim Teck Chuan, Atty. Sitoy was personally served with the
notice only on Saturday, October 19, 1974 and the counsel for Eng Chong Leonardo,
Atty. Alcudia, was notified by registered mail which was posted only that same Saturday,
October 19, 1974? According to Chief Justice Moran, "three days at least must intervene
between the date of service of notice and the date set for the hearing, otherwise the
court may not validly act on the motion." (Comments on the Rules of Court by Moran,
Vol. 1, 1970 ed. p. 474.) Such is the correct construction of Section 4 of Rule 15. And in
the instant case, there can be no question that the notices to the non-defaulted
defendants were short of the requirement of said provision.
We can understand the over-anxiety of counsel for plaintiff, but what is incomprehensible
is the seeming inattention of respondent judge to the explicit mandate of the pertinent
rule, not to speak of the imperatives of fairness, considering he should have realized the
far-reaching implications, specially from the point of view he subsequently adopted,
albeit erroneously, of his favorably acting on it. Actually, he was aware of said
consequences, for simultaneously with his order of dismissal, he immediately set the
case for the ex-parte hearing of the evidence against the defaulted defendants, which,
incidentally, from the tenor of his order which We have quoted above, appears to have
been done by him motu propio As a matter of fact, plaintiff's motion also quoted above
did not pray for it.
Withal, respondent court's twin actions of October 21, 1974 further ignores or is
inconsistent with a number of known juridical principles concerning defaults, which We
will here take occasion to reiterate and further elucidate on, if only to avoid a repetition of
the unfortunate errors committed in this case. Perhaps some of these principles have not
been amply projected and elaborated before, and such paucity of elucidation could be
the reason why respondent judge must have acted as he did. Still, the Court cannot but
express its vehement condemnation of any judicial actuation that unduly deprives any
party of the right to be heard without clear and specific warrant under the terms of
existing rules or binding jurisprudence. Extreme care must be the instant reaction of
every judge when confronted with a situation involving risks that the proceedings may
not be fair and square to all the parties concerned. Indeed, a keen sense of fairness,
equity and justice that constantly looks for consistency between the letter of the adjective
rules and these basic principles must be possessed by every judge, If substance is to
prevail, as it must, over form in our courts. Literal observance of the rules, when it is
conducive to unfair and undue advantage on the part of any litigant before it, is unworthy
of any court of justice and equity. Withal, only those rules and procedure informed, with
and founded on public policy deserve obedience in accord with their unequivocal
language or words..
Before proceeding to the discussion of the default aspects of this case, however, it
should not be amiss to advert first to the patent incorrectness, apparent on the face of
the record, of the aforementioned order of dismissal of October 21, 1974 of the case
below as regards non-defaulted defendants Lim and Leonardo. While it is true that said
defendants are not petitioners herein, the Court deems it necessary for a full view of the
outrageous procedural strategy conceived by respondent's counsel and sanctioned by
respondent court to also make reference to the very evident fact that in ordering said
dismissal respondent court disregarded completely the existence of defendant's
counterclaim which it had itself earlier held if indirectly, to be compulsory in nature when
it refused to dismiss the same on the ground alleged by respondent Tan that he
docketing fees for the filing thereof had not been paid by defendants.
Indeed, that said counterclaim is compulsory needs no extended elaboration. As may be
noted in the allegations hereof aforequoted, it arose out of or is necessarily connected
with the occurrence that is the subject matter of the plaintiff's claim, (Section 4, Rule 9)
namely, plaintiff's allegedly being the widow of the deceased Tee Hoon entitled, as such,
to demand accounting of and to receive the share of her alleged late husband as partner
of defendants Antonio Lim Tanhu and Alfonso Leonardo Ng Sua in Glory Commercial
Company, the truth of which allegations all the defendants have denied. Defendants
maintain in their counterclaim that plaintiff knew of the falsity of said allegations even
before she filed her complaint, for she had in fact admitted her common-law relationship
with said deceased in a document she had jointly executed with him by way of
agreement to terminate their illegitimate relationship, for which she received P40,000
from the deceased, and with respect to her pretended share in the capital and profits in
the partnership, it is also defendants' posture that she had already quitclaimed, with the
assistance of able counsel, whatever rights if any she had thereto in November, 1967,
for the sum of P25,000 duly receipted by her, which quitclaim was, however, executed,
according to respondent herself in her amended complaint, through fraud. And having
filed her complaint knowing, according to defendants, as she ought to have known, that
the material allegations thereof are false and baseless, she has caused them to suffer
damages. Undoubtedly, with such allegations, defendants' counterclaim is compulsory,
not only because the same evidence to sustain it will also refute the cause or causes of
action alleged in plaintiff's complaint, (Moran, supra p. 352) but also because from its
very nature, it is obvious that the same cannot "remain pending for independent
adjudication by the court." (Section 2, Rule 17.)
The provision of the rules just cited specifically enjoins that "(i)f a counterclaim has been
pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss,
the action shall not be dismissed against the defendant's objection unless the
counterclaim can remain pending for independent adjudication by the court." Defendants
Lim and Leonardo had no opportunity to object to the motion to dismiss before the order
granting the same was issued, for the simple reason that they were not opportunity
notified of the motion therefor, but the record shows clearly that at least defendant Lim
immediately brought the matter of their compulsory counterclaim to the attention of the
trial court in his motion for reconsideration of October 23, 1974, even as the counsel for
the other defendant, Leonardo, predicated his motion on other grounds. In its order of
December 6, 1974, however, respondent court not only upheld the plaintiffs supposed
absolute right to choose her adversaries but also held that the counterclaim is not
compulsory, thereby virtually making unexplained and inexplicable 180-degree turnabout
in that respect.
There is another equally fundamental consideration why the motion to dismiss should
not have been granted. As the plaintiff's complaint has been framed, all the six
defendants are charged with having actually taken part in a conspiracy to
misappropriate, conceal and convert to their own benefit the profits, properties and all
other assets of the partnership Glory Commercial Company, to the extent that they have
allegedly organized a corporation, Glory Commercial Company, Inc. with what they had
illegally gotten from the partnership. Upon such allegations, no judgment finding the
existence of the alleged conspiracy or holding the capital of the corporation to be the
money of the partnership is legally possible without the presence of all the defendants.
The non-defaulted defendants are alleged to be stockholders of the corporation and any
decision depriving the same of all its assets cannot but prejudice the interests of said
defendants. Accordingly, upon these premises, and even prescinding from the other
reasons to be discussed anon it is clear that all the six defendants below, defaulted and
non-defaulted, are indispensable parties. Respondents could do no less than grant that
they are so on page 23 of their answer. Such being the case, the questioned order of
dismissal is exactly the opposite of what ought to have been done. Whenever it appears
to the court in the course of a proceeding that an indispensable party has not been
joined, it is the duty of the court to stop the trial and to order the inclusion of such party.
(The Revised Rules of Court, Annotated & Commented by Senator Vicente J. Francisco,
Vol. 1, p. 271, 1973 ed. See also Cortez vs. Avila, 101 Phil. 705.) Such an order is
unavoidable, for the "general rule with reference to the making of parties in a civil action
requires the joinder of all necessary parties wherever possible, and the joinder of all
indispensable parties under any and all conditions, the presence of those latter being
a sine qua non of the exercise of judicial power." (Borlasa vs. Polistico, 47 Phil. 345, at
p. 347.) It is precisely " when an indispensable party is not before the court (that) the
action should be dismissed." (People v. Rodriguez, 106 Phil. 325, at p. 327.) The
absence of an indispensable party renders all subsequent actuations of the court null
and void, for want of authority to act, not only as to the absent parties but even as to
those present. In short, what respondent court did here was exactly the reverse of what
the law ordains it eliminated those who by law should precisely be joined.
As may he noted from the order of respondent court quoted earlier, which resolved the
motions for reconsideration of the dismissal order filed by the non-defaulted defendants,
His Honor rationalized his position thus:
It is the rule that it is the absolute prerogative of the plaintiff to choose, the
theory upon which he predicates his right of action, or the parties he
desires to sue, without dictation or imposition by the court or the adverse
party. If he makes a mistake in the choice of his right of action, or in that
of the parties against whom he seeks to enforce it, that is his own
concern as he alone suffers therefrom. The plaintiff cannot be compelled
to choose his defendants, He may not, at his own expense, be forced to
implead anyone who, under the adverse party's theory, is to answer for
defendant's liability. Neither may the Court compel him to furnish the
means by which defendant may avoid or mitigate their liability. (Vao vs.
Alo, 95 Phil. 495-496.)
This being the rule this court cannot compel the plaintiff to continue
prosecuting her cause of action against the defendants-movants if in the
course of the trial she believes she can enforce it against the remaining
defendants subject only to the limitation provided in Section 2, Rule 17 of
the Rules of Court. ... (Pages 6263, Record.)
Noticeably, His Honor has employed the same equivocal terminology as in plaintiff's
motion of October 18, 1974 by referring to the action he had taken as being "dismissal of
the complaint against them or their being dropped therefrom", without perceiving that the
reason for the evidently intentional ambiguity is transparent. The apparent idea is to rely
on the theory that under Section 11 of Rule 3, parties may be dropped by the court upon
motion of any party at any stage of the action, hence "it is the absolute right prerogative
of the plaintiff to choosethe parties he desires to sue, without dictation or imposition by
the court or the adverse party." In other words, the ambivalent pose is suggested that
plaintiff's motion of October 18, 1974 was not predicated on Section 2 of Rule 17 but
more on Section 11 of Rule 3. But the truth is that nothing can be more incorrect. To
start with, the latter rule does not comprehend whimsical and irrational dropping or
adding of parties in a complaint. What it really contemplates is erroneous or mistaken
non-joinder and misjoinder of parties. No one is free to join anybody in a complaint in
court only to drop him unceremoniously later at the pleasure of the plaintiff. The rule
presupposes that the original inclusion had been made in the honest conviction that it
was proper and the subsequent dropping is requested because it has turned out that
such inclusion was a mistake. And this is the reason why the rule ordains that the
dropping be "on such terms as are just" just to all the other parties. In the case at bar,
there is nothing in the record to legally justify the dropping of the non-defaulted
defendants, Lim and Leonardo. The motion of October 18, 1974 cites none. From all
appearances, plaintiff just decided to ask for it, without any relevant explanation at all.
Usually, the court in granting such a motion inquires for the reasons and in the
appropriate instances directs the granting of some form of compensation for the trouble
undergone by the defendant in answering the complaint, preparing for or proceeding
partially to trial, hiring counsel and making corresponding expenses in the premises.
Nothing of these, appears in the order in question. Most importantly, His Honor ought to
have considered that the outright dropping of the non-defaulted defendants Lim and
Leonardo, over their objection at that, would certainly be unjust not only to the
petitioners, their own parents, who would in consequence be entirely defenseless, but
also to Lim and Leonardo themselves who would naturally correspondingly suffer from
the eventual judgment against their parents. Respondent court paid no heed at all to the
mandate that such dropping must be on such terms as are just" meaning to all
concerned with its legal and factual effects.
Thus, it is quite plain that respondent court erred in issuing its order of dismissal of
October 21, 1974 as well as its order of December 6, 1974 denying reconsideration of
such dismissal. As We make this ruling, We are not oblivious of the circumstance that
defendants Lim and Leonardo are not parties herein. But such consideration is
inconsequential. The fate of the case of petitioners is inseparably tied up with said order
of dismissal, if only because the order of ex-parte hearing of October 21, 1974 which
directly affects and prejudices said petitioners is predicated thereon. Necessarily,
therefore, We have to pass on the legality of said order, if We are to decide the case of
herein petitioners properly and fairly.
The attitude of the non-defaulted defendants of no longer pursuing further their
questioning of the dismissal is from another point of view understandable. On the one
hand, why should they insist on being defendants when plaintiff herself has already
release from her claims? On the other hand, as far as their respective parents-co-
defendants are concerned, they must have realized that they (their parents) could even
be benefited by such dismissal because they could question whether or not plaintiff can
still prosecute her case against them after she had secured the order of dismissal in
question. And it is in connection with this last point that the true and correct concept of
default becomes relevant.
At this juncture, it may also be stated that the decision of the Court of Appeals of
January 24, 1975 in G. R. No. SP-03066 dismissing the petition for certiorari of non-
defaulted defendants Lim and Leonardo impugning the order of dismissal of October 21,
1974, has no bearing at all in this case, not only because that dismissal was premised
by the appellate court on its holding that the said petition was premature inasmuch as
the trial court had not yet resolved the motion of the defendants of October 28, 1974
praying that said disputed order be quashed, but principally because herein petitioners
were not parties in that proceeding and cannot, therefore, be bound by its result. In
particular, We deem it warranted to draw the attention of private respondent's counsel to
his allegations in paragraphs XI to XIV of his answer, which relate to said decision of the
Court of Appeals and which have the clear tendency to make it appear to the Court that
the appeals court had upheld the legality and validity of the actuations of the trial court
being questioned, when as a matter of indisputable fact, the dismissal of the petition was
based solely and exclusively on its being premature without in any manner delving into
its merits. The Court must and does admonish counsel that such manner of pleading,
being deceptive and lacking in candor, has no place in any court, much less in the
Supreme Court, and if We are adopting a passive attitude in the premises, it is due only
to the fact that this is counsel's first offense. But similar conduct on his part in the future
will definitely be dealt with more severely. Parties and counsel would be well advised to
avoid such attempts to befuddle the issues as invariably then will be exposed for what
they are, certainly unethical and degrading to the dignity of the law profession.
Moreover, almost always they only betray the inherent weakness of the cause of the
party resorting to them.
2
Coming now to the matter itself of default, it is quite apparent that the impugned orders
must have proceeded from inadequate apprehension of the fundamental precepts
governing such procedure under the Rules of Court. It is time indeed that the concept of
this procedural device were fully understood by the bench and bar, instead of being
merely taken for granted as being that of a simple expedient of not allowing the
offending party to take part in the proceedings, so that after his adversary shall have
presented his evidence, judgment may be rendered in favor of such opponent, with
hardly any chance of said judgment being reversed or modified.
The Rules of Court contain a separate rule on the subject of default, Rule 18. But said
rule is concerned solely with default resulting from failure of the defendant or defendants
to answer within the reglementary period. Referring to the simplest form of default, that
is, where there is only one defendant in the action and he fails to answer on time,
Section 1 of the rule provides that upon "proof of such failure, (the court shall) declare
the defendant in default. Thereupon the court shall proceed to receive the plaintiff's
evidence and render judgment granting him such relief as the complaint and the facts
proven may warrant." This last clause is clarified by Section 5 which says that "a
judgment entered against a party in default shall not exceed the amount or be different in
kind from that prayed for."
Unequivocal, in the literal sense, as these provisions are, they do not readily convey the
full import of what they contemplate. To begin with, contrary to the immediate notion that
can be drawn from their language, these provisions are not to be understood as
meaning that default or the failure of the defendant to answer should be "interpreted as
an admission by the said defendant that the plaintiff's cause of action find support in the
law or that plaintiff is entitled to the relief prayed for." (Moran, supra, p. 535 citing
Macondary & Co. v. Eustaquio, 64 Phil. 466, citing with approval Chaffin v. McFadden,
41 Ark. 42; Johnson v. Pierce, 12 Ark. 599; Mayden v. Johnson, 59 Ga. 105; People v.
Rust, 292 111. 328; Ken v. Leopold 21 111. A. 163; Chicago, etc. Electric R. Co. v.
Krempel 116 111. A. 253.)
Being declared in default does not constitute a waiver of rights except that of being
heard and of presenting evidence in the trial court. According to Section 2, "except as
provided in Section 9 of Rule 13, a party declared in default shall not be entitled to notice
of subsequent proceedings, nor to take part in the trial." That provision referred to reads:
"No service of papers other than substantially amended pleadings and final orders or
judgments shall be necessary on a party in default unless he files a motion to set aside
the order of default, in which event he shall be entitled to notice of all further proceedings
regardless of whether the order of default is set aside or not." And pursuant to Section 2
of Rule 41, "a party who has been declared in default may likewise appeal from the
judgment rendered against him as contrary to the evidence or to the law, even if no
petition for relief to set aside the order of default has been presented by him in
accordance with Rule 38.".
In other words, a defaulted defendant is not actually thrown out of court. While in a
sense it may be said that by defaulting he leaves himself at the mercy of the court, the
rules see to it that any judgment against him must be in accordance with law. The
evidence to support the plaintiff's cause is, of course, presented in his absence, but the
court is not supposed to admit that which is basically incompetent. Although the
defendant would not be in a position to object, elementary justice requires that, only
legal evidence should be considered against him. If the evidence presented should not
be sufficient to justify a judgment for the plaintiff, the complaint must be dismissed. And if
an unfavorable judgment should be justifiable, it cannot exceed in amount or be different
in kind from what is prayed for in the complaint.
Incidentally, these considerations argue against the present widespread practice of trial
judges, as was done by His Honor in this case, of delegating to their clerks of court the
reception of the plaintiff's evidence when the defendant is in default. Such a Practice is
wrong in principle and orientation. It has no basis in any rule. When a defendant allows
himself to be declared in default, he relies on the faith that the court would take care that
his rights are not unduly prejudiced. He has a right to presume that the law and the rules
will still be observed. The proceedings are held in his forced absence, and it is but fair
that the plaintiff should not be allowed to take advantage of the situation to win by foul or
illegal means or with inherently incompetent evidence. Thus, in such instances, there is
need for more attention from the court, which only the judge himself can provide. The
clerk of court would not be in a position much less have the authority to act in the
premises in the manner demanded by the rules of fair play and as contemplated in the
law, considering his comparably limited area of discretion and his presumably inferior
preparation for the functions of a judge. Besides, the default of the defendant is no
excuse for the court to renounce the opportunity to closely observe the demeanor and
conduct of the witnesses of the plaintiff, the better to appreciate their truthfulness and
credibility. We therefore declare as a matter of judicial policy that there being no
imperative reason for judges to do otherwise, the practice should be discontinued.
Another matter of practice worthy of mention at this point is that it is preferable to leave
enough opportunity open for possible lifting of the order of default before proceeding with
the reception of the plaintiff's evidence and the rendition of the decision. "A judgment by
default may amount to a positive and considerable injustice to the defendant; and the
possibility of such serious consequences necessitates a careful and liberal examination
of the grounds upon which the defendant may seek to set it aside." (Moran, supra p.
534, citing Coombs vs. Santos, 24 Phil. 446; 449-450.) The expression, therefore, in
Section 1 of Rule 18 aforequoted which says that "thereupon the court shall proceed to
receive the plaintiff's evidence etc." is not to be taken literally. The gain in time and
dispatch should the court immediately try the case on the very day of or shortly after the
declaration of default is far outweighed by the inconvenience and complications involved
in having to undo everything already done in the event the defendant should justify his
omission to answer on time.
The foregoing observations, as may be noted, refer to instances where the only
defendant or all the defendants, there being several, are declared in default. There are
additional rules embodying more considerations of justice and equity in cases where
there are several defendants against whom a common cause of action is averred and
not all of them answer opportunely or are in default, particularly in reference to the power
of the court to render judgment in such situations. Thus, in addition to the limitation of
Section 5 that the judgment by default should not be more in amount nor different in kind
from the reliefs specifically sought by plaintiff in his complaint, Section 4 restricts the
authority of the court in rendering judgment in the situations just mentioned as follows:
Sec. 4. Judgment when some defendants answer, and other make
difficult. When a complaint states a common cause of action against
several defendant some of whom answer, and the others fail to do so, the
court shall try the case against all upon the answer thus filed and render
judgment upon the evidence presented. The same proceeding applies
when a common cause of action is pleaded in a counterclaim, cross-claim
and third-party claim.
Very aptly does Chief Justice Moran elucidate on this provision and the controlling
jurisprudence explanatory thereof this wise:
Where a complaint states a common cause of action against several
defendants and some appear to defend the case on the merits while
others make default, the defense interposed by those who appear to
litigate the case inures to the benefit of those who fail to appear, and if the
court finds that a good defense has been made, all of the defendants
must be absolved. In other words, the answer filed by one or some of the
defendants inures to the benefit of all the others, even those who have
not seasonably filed their answer. (Bueno v. Ortiz, L-22978, June 27,
1968, 23 SCRA 1151.) The proper mode of proceeding where a
complaint states a common cause of action against several defendants,
and one of them makes default, is simply to enter a formal default order
against him, and proceed with the cause upon the answers of the others.
The defaulting defendant merely loses his standing in court, he not being
entitled to the service of notice in the cause, nor to appear in the suit in
any way. He cannot adduce evidence; nor can he be heard at the final
hearing, (Lim Toco v. Go Fay, 80 Phil. 166.) although he may appeal the
judgment rendered against him on the merits. (Rule 41, sec. 2.) If the
case is finally decided in the plaintiff's favor, a final decree is then entered
against all the defendants; but if the suit should be decided against the
plaintiff, the action will be dismissed as to all the defendants alike. (Velez
v. Ramas, 40 Phil. 787-792; Frow v. de la Vega, 15 Wal. 552,21 L. Ed.
60.) In other words the judgment will affect the defaulting defendants
either favorably or adversely. (Castro v. Pea, 80 Phil. 488.)
Defaulting defendant may ask execution if judgment is in his favor.
(Castro v. Pea, supra.) (Moran, Rules of Court, Vol. 1, pp. 538-539.)
In Castro vs. Pea, 80 Phil. 488, one of the numerous cases cited by
Moran, this Court elaborated on the construction of the same rule when it
sanctioned the execution, upon motion and for the benefit of the
defendant in default, of a judgment which was adverse to the plaintiff. The
Court held:
As above stated, Emilia Matanguihan, by her counsel, also was a movant
in the petition for execution Annex 1. Did she have a right to be such,
having been declared in default? In Frow vs. De la Vega,supra, cited as
authority in Velez vs. Ramas, supra, the Supreme Court of the United
States adopted as ground for its own decision the following ruling of the
New York Court of Errors in Clason vs. Morris, 10 Jons., 524:
It would be unreasonable to hold that because one defendant had made
default, the plaintiff should have a decree even against him, where the
court is satisfied from the proofs offered by the other, that in fact the
plaintiff is not entitled to a decree. (21 Law, ed., 61.)
The reason is simple: justice has to be consistent. The complaint stating a
common cause of action against several defendants, the complainant's
rights or lack of them in the controversy have to be the same, and
not different, as against all the defendant's although one or some make
default and the other or others appear, join issue, and enter into trial. For
instance, in the case of Clason vs. Morris above cited, the New York
Court of Errors in effect held that in such a case if the plaintiff is not
entitled to a decree, he will not be entitled to it, not only as against the
defendant appearing and resisting his action but also as against the one
who made default. In the case at bar, the cause of action in the plaintiff's
complaint was common against the Mayor of Manila, Emilia Matanguihan,
and the other defendants in Civil Case No. 1318 of the lower court. The
Court of First Instance in its judgment found and held upon the evidence
adduced by the plaintiff and the defendant mayor that as between said
plaintiff and defendant Matanguihan the latter was the one legally entitled
to occupy the stalls; and it decreed, among other things, that said plaintiff
immediately vacate them. Paraphrasing the New York Court of Errors, it
would be unreasonable to hold now that because Matanguihan had made
default, the said plaintiff should be declared, as against her, legally
entitled to the occupancy of the stalls, or to remain therein, although the
Court of First Instance was so firmly satisfied, from the proofs offered by
the other defendant, that the same plaintiff was not entitled to such
occupancy that it peremptorily ordered her to vacate the stalls. If in the
cases of Clason vs. Morris, supra, Frow vs. De la Vega, supra, and Velez
vs. Ramas, supra the decrees entered inured to the benefit of the
defaulting defendants, there is no reason why that entered in said case
No. 1318 should not be held also to have inured to the benefit of the
defaulting defendant Matanguihan and the doctrine in said three cases
plainly implies that there is nothing in the law governing default which
would prohibit the court from rendering judgment favorable to the
defaulting defendant in such cases. If it inured to her benefit, it stands to
reason that she had a right to claim that benefit, for it would not be a
benefit if the supposed beneficiary were barred from claiming it; and if the
benefit necessitated the execution of the decree, she must be possessed
of the right to ask for the execution thereof as she did when she, by
counsel, participated in the petition for execution Annex 1.
Section 7 of Rule 35 would seem to afford a solid support to the above
considerations. It provides that when a complaint states a common cause
of action against several defendants, some of whom answer, and the
others make default, 'the court shall try the case against all upon the
answer thus filed and render judgment upon the evidence presented by
the parties in court'. It is obvious that under this provision the case is tried
jointly not only against the defendants answering but also against those
defaulting, and the trial is held upon the answer filed by the former; and
the judgment, if adverse, will prejudice the defaulting defendants no less
than those who answer. In other words, the defaulting defendants are
held bound by the answer filed by their co-defendants and by the
judgment which the court may render against all of them. By the same
token, and by all rules of equity and fair play, if the judgment should
happen to be favorable, totally or partially, to the answering defendants, it
must correspondingly benefit the defaulting ones, for it would not be just
to let the judgment produce effects as to the defaulting defendants only
when adverse to them and not when favorable.
In Bueno vs. Ortiz, 23 SCRA 1151, the Court applied the provision under discussion in
the following words:
In answer to the charge that respondent Judge had committed a grave
abuse of discretion in rendering a default judgment against the PC,
respondents allege that, not having filed its answer within the
reglementary period, the PC was in default, so that it was proper for
Patanao to forthwith present his evidence and for respondent Judge to
render said judgment. It should be noted, however, that in entering the
area in question and seeking to prevent Patanao from continuing his
logging operations therein, the PC was merely executing an order of the
Director of Forestry and acting as his agent. Patanao's cause of action
against the other respondents in Case No. 190, namely, the Director of
Forestry, the District Forester of Agusan, the Forest Officer of Bayugan,
Agusan, and the Secretary of Agriculture and Natural Resources.
Pursuant to Rule 18, Section 4, of the Rules of Court, 'when a complaint
states a common cause of action against several defendants some of
whom answer and the others fail to do so, the court shall try the case
against all upon the answer thus filed (by some) and render judgment
upon the evidence presented.' In other words, the answer filed by one or
some of the defendants inures to the benefit of all the others, even those
who have not seasonably filed their answer.
Indeed, since the petition in Case No. 190 sets forth a common cause of
action against all of the respondents therein, a decision in favor of one of
them would necessarily favor the others. In fact, the main issue, in said
case, is whether Patanao has a timber license to undertake logging
operations in the disputed area. It is not possible to decide such issue in
the negative, insofar as the Director of Forestry, and to settle it otherwise,
as regards the PC, which is merely acting as agent of the Director of
Forestry, and is, therefore, his alter ego, with respect to the disputed
forest area.
Stated differently, in all instances where a common cause of action is alleged against
several defendants, some of whom answer and the others do not, the latter or those in
default acquire a vested right not only to own the defense interposed in the answer of
their co- defendant or co-defendants not in default but also to expect a result of the
litigation totally common with them in kind and in amount whether favorable or
unfavorable. The substantive unity of the plaintiff's cause against all the defendants is
carried through to its adjective phase as ineluctably demanded by the homogeneity and
indivisibility of justice itself. Indeed, since the singleness of the cause of action also
inevitably implies that all the defendants are indispensable parties, the court's power to
act is integral and cannot be split such that it cannot relieve any of them and at the same
time render judgment against the rest. Considering the tenor of the section in question, it
is to be assumed that when any defendant allows himself to be declared in default
knowing that his defendant has already answered, he does so trusting in the assurance
implicit in the rule that his default is in essence a mere formality that deprives him of no
more than the right to take part in the trial and that the court would deem anything done
by or for the answering defendant as done by or for him. The presumption is that
otherwise he would not -have seen to that he would not be in default. Of course, he has
to suffer the consequences of whatever the answering defendant may do or fail to do,
regardless of possible adverse consequences, but if the complaint has to be dismissed
in so far as the answering defendant is concerned it becomes his inalienable right that
the same be dismissed also as to him. It does not matter that the dismissal is upon the
evidence presented by the plaintiff or upon the latter's mere desistance, for in both
contingencies, the lack of sufficient legal basis must be the cause. The integrity of the
common cause of action against all the defendants and the indispensability of all of them
in the proceedings do not permit any possibility of waiver of the plaintiff's right only as to
one or some of them, without including all of them, and so, as a rule, withdrawal must be
deemed to be a confession of weakness as to all. This is not only elementary justice; it
also precludes the concomitant hazard that plaintiff might resort to the kind of procedural
strategem practiced by private respondent herein that resulted in totally depriving
petitioners of every opportunity to defend themselves against her claims which, after all,
as will be seen later in this opinion, the record does not show to be invulnerable, both in
their factual and legal aspects, taking into consideration the tenor of the pleadings and
the probative value of the competent evidence which were before the trial court when it
rendered its assailed decision where all the defendants are indispensable parties, for
which reason the absence of any of them in the case would result in the court losing its
competency to act validly, any compromise that the plaintiff might wish to make with any
of them must, as a matter of correct procedure, have to await until after the rendition of
the judgment, at which stage the plaintiff may then treat the matter of its execution and
the satisfaction of his claim as variably as he might please. Accordingly, in the case now
before Us together with the dismissal of the complaint against the non-defaulted
defendants, the court should have ordered also the dismissal thereof as to petitioners.
Indeed, there is more reason to apply here the principle of unity and indivisibility of the
action just discussed because all the defendants here have already joined genuine
issues with plaintiff. Their default was only at the pre-trial. And as to such absence of
petitioners at the pre-trial, the same could be attributed to the fact that they might not
have considered it necessary anymore to be present, since their respective children Lim
and Leonardo, with whom they have common defenses, could take care of their
defenses as well. Anything that might have had to be done by them at such pre-trial
could have been done for them by their children, at least initially, specially because in
the light of the pleadings before the court, the prospects of a compromise must have
appeared to be rather remote. Such attitude of petitioners is neither uncommon nor
totally unjustified. Under the circumstances, to declare them immediately and irrevocably
in default was not an absolute necessity. Practical considerations and reasons of equity
should have moved respondent court to be more understanding in dealing with the
situation. After all, declaring them in default as respondent court did not impair their right
to a common fate with their children.
3
Another issue to be resolved in this case is the question of whether or not herein
petitioners were entitled to notice of plaintiff's motion to drop their co-defendants Lim and
Leonardo, considering that petitioners had been previously declared in default. In this
connection, the decisive consideration is that according to the applicable rule, Section 9,
Rule 13, already quoted above, (1) even after a defendant has been declared in default,
provided he "files a motion to set aside the order of default, he shall be entitled to
notice of all further proceedings regardless of whether the order of default is set aside or
not" and (2) a party in default who has not filed such a motion to set aside must still be
served with all "substantially amended or supplemented pleadings." In the instant case,
it cannot be denied that petitioners had all filed their motion for reconsideration of the
order declaring them in default. Respondents' own answer to the petition therein makes
reference to the order of April 3, 1973, Annex 8 of said answer, which denied said
motion for reconsideration. On page 3 of petitioners' memorandum herein this motion is
referred to as "a motion to set aside the order of default." But as We have not been
favored by the parties with a copy of the said motion, We do not even know the excuse
given for petitioners' failure to appear at the pre-trial, and We cannot, therefore,
determine whether or not the motion complied with the requirements of Section 3 of Rule
18 which We have held to be controlling in cases of default for failure to answer on time.
(The Philippine-British Co. Inc. etc. et al. vs. The Hon. Walfrido de los Angeles etc. et al.,
63 SCRA 50.)
We do not, however, have here, as earlier noted, a case of default for failure to answer
but one for failure to appear at the pre-trial. We reiterate, in the situation now before Us,
issues have already been joined. In fact, evidence had been partially offered already at
the pre-trial and more of it at the actual trial which had already begun with the first
witness of the plaintiff undergoing re-cross-examination. With these facts in mind and
considering that issues had already been joined even as regards the defaulted
defendants, it would be requiring the obvious to pretend that there was still need for an
oath or a verification as to the merits of the defense of the defaulted defendants in their
motion to reconsider their default. Inasmuch as none of the parties had asked for a
summary judgment there can be no question that the issues joined were genuine, and
consequently, the reason for requiring such oath or verification no longer holds. Besides,
it may also be reiterated that being the parents of the non-defaulted defendants,
petitioners must have assumed that their presence was superfluous, particularly
because the cause of action against them as well as their own defenses are common.
Under these circumstances, the form of the motion by which the default was sought to
be lifted is secondary and the requirements of Section 3 of Rule 18 need not be strictly
complied with, unlike in cases of default for failure to answer. We can thus hold as We
do hold for the purposes of the revival of their right to notice under Section 9 of Rule 13,
that petitioner's motion for reconsideration was in substance legally adequate regardless
of whether or not it was under oath.
In any event, the dropping of the defendants Lim and Leonardo from plaintiff's amended
complaint was virtually a second amendment of plaintiffs complaint. And there can be no
doubt that such amendment was substantial, for with the elimination thereby of two
defendants allegedly solidarily liable with their co-defendants, herein petitioners, it had
the effect of increasing proportionally what each of the remaining defendants, the said
petitioners, would have to answer for jointly and severally. Accordingly, notice to
petitioners of the plaintiff's motion of October 18, 1974 was legally indispensable under
the rule above-quoted. Consequently, respondent court had no authority to act on the
motion, to dismiss, pursuant to Section 6 of Rule 15, for according to Senator Francisco,
"(t) he Rules of Court clearly provide that no motion shall be acted upon by the Court
without the proof of service of notice thereof, together with a copy of the motion and
other papers accompanying it, to all parties concerned at least three days before the
hearing thereof, stating the time and place for the hearing of the motion. (Rule 26,
section 4, 5 and 6, Rules of Court (now Sec. 15, new Rules). When the motion does not
comply with this requirement, it is not a motion. It presents no question which the court
could decide. And the Court acquires no jurisdiction to consider it. (Roman Catholic
Bishop of Lipa vs. Municipality of Unisan 44 Phil., 866; Manakil vs. Revilla, 42 Phil., 81.)
(Laserna vs. Javier, et al., CA-G.R. No. 7885, April 22, 1955; 21 L.J. 36, citing Roman
Catholic Bishop of Lipa vs. Municipality of Unisan 44 Phil., 866; Manakil vs. Revilla, 42
Phil., 81.) (Francisco. The Revised Rules of Court in the Philippines, pp. 861-862.) Thus,
We see again, from a different angle, why respondent court's order of dismissal of
October 21, 1974 is fatally ineffective.
4
The foregoing considerations notwithstanding, it is respondents' position that certiorari is
not the proper remedy of petitioners. It is contended that inasmuch as said petitioners
have in fact made their appeal already by filing the required notice of appeal and appeal
bond and a motion for extension to file their record on appeal, which motion was granted
by respondent court, their only recourse is to prosecute that appeal. Additionally, it is
also maintained that since petitioners have expressly withdrawn their motion to quash of
January 4, 1975 impugning the order of October 28, 1974, they have lost their right to
assail by certiorari the actuations of respondent court now being questioned, respondent
court not having been given the opportunity to correct any possible error it might have
committed.
We do not agree. As already shown in the foregoing discussion, the proceedings in the
court below have gone so far out of hand that prompt action is needed to restore order in
the entangled situation created by the series of plainly illegal orders it had issued. The
essential purpose of certiorari is to keep the proceedings in lower judicial courts and
tribunals within legal bounds, so that due process and the rule of law may prevail at all
times and arbitrariness, whimsicality and unfairness which justice abhors may
immediately be stamped out before graver injury, juridical and otherwise, ensues. While
generally these objectives may well be attained in an ordinary appeal, it is undoubtedly
the better rule to allow the special remedy of certiorari at the option of the party
adversely affected, when the irregularity committed by the trial court is so grave and so
far reaching in its consequences that the long and cumbersome procedure of appeal will
only further aggravate the situation of the aggrieved party because other untoward
actuations are likely to materialize as natural consequences of those already
perpetrated. If the law were otherwise, certiorari would have no reason at all for being.
No elaborate discussion is needed to show the urgent need for corrective measures in
the case at bar. Verily, this is one case that calls for the exercise of the Supreme Court's
inherent power of supervision over all kinds of judicial actions of lower courts. Private
respondent's procedural technique designed to disable petitioners to defend themselves
against her claim which appears on the face of the record itself to be at least highly
controversial seems to have so fascinated respondent court that none would be
surprised should her pending motion for immediate execution of the impugned judgment
receive similar ready sanction as her previous motions which turned the proceedings
into a one-sided affair. The stakes here are high. Not only is the subject matter
considerably substantial; there is the more important aspect that not only the spirit and
intent of the rules but even the basic rudiments of fair play have been disregarded. For
the Court to leave unrestrained the obvious tendency of the proceedings below would be
nothing short of wittingly condoning inequity and injustice resulting from erroneous
construction and unwarranted application of procedural rules.
5
The sum and total of all the foregoing disquisitions is that the decision here in question is
legally anomalous. It is predicated on two fatal malactuations of respondent court
namely (1) the dismissal of the complaint against the non-defaulted defendants Lim and
Leonardo and (2) the ex-parte reception of the evidence of the plaintiff by the clerk of
court, the subsequent using of the same as basis for its judgment and the rendition of
such judgment.
For at least three reasons which We have already fully discussed above, the order of
dismissal of October 21, 1974 is unworthy of Our sanction: (1) there was no timely notice
of the motion therefor to the non-defaulted defendants, aside from there being no notice
at all to herein petitioners; (2) the common answer of the defendants, including the non-
defaulted, contained a compulsory counterclaim incapable of being determined in an
independent action; and (3) the immediate effect of such dismissal was the removal of
the two non-defaulted defendants as parties, and inasmuch as they are both
indispensable parties in the case, the court consequently lost the" sine qua non of the
exercise of judicial power", per Borlasa vs. Polistico, supra. This is not to mention
anymore the irregular delegation to the clerk of court of the function of receiving plaintiff's
evidence. And as regards the ex-parte reception of plaintiff's evidence and subsequent
rendition of the judgment by default based thereon, We have seen that it was violative of
the right of the petitioners, under the applicable rules and principles on default, to a
common and single fate with their non-defaulted co-defendants. And We are not yet
referring, as We shall do this anon to the numerous reversible errors in the decision
itself.
It is to be noted, however, that the above-indicated two fundamental flaws in respondent
court's actuations do not call for a common corrective remedy. We cannot simply rule
that all the impugned proceedings are null and void and should be set aside, without
being faced with the insurmountable obstacle that by so doing We would be reviewing
the case as against the two non-defaulted defendants who are not before Us not being
parties hereto. Upon the other hand, for Us to hold that the order of dismissal should be
allowed to stand, as contended by respondents themselves who insist that the same is
already final, not only because the period for its finality has long passed but also
because allegedly, albeit not very accurately, said 'non-defaulted defendants
unsuccessfully tried to have it set aside by the Court of Appeals whose decision on their
petition is also already final, We would have to disregard whatever evidence had been
presented by the plaintiff against them and, of course, the findings of respondent court
based thereon which, as the assailed decision shows, are adverse to them. In other
words, whichever of the two apparent remedies the Court chooses, it would necessarily
entail some kind of possible juridical imperfection. Speaking of their respective practical
or pragmatic effects, to annul the dismissal would inevitably prejudice the rights of the
non-defaulted defendants whom We have not heard and who even respondents would
not wish to have anything anymore to do with the case. On the other hand, to include
petitioners in the dismissal would naturally set at naught every effort private respondent
has made to establish or prove her case thru means sanctioned by respondent court. In
short, We are confronted with a legal para-dilemma. But one thing is certain this
difficult situations has been brought about by none other than private respondent who
has quite cynically resorted to procedural maneuvers without realizing that the
technicalities of the adjective law, even when apparently accurate from the literal point of
view, cannot prevail over the imperatives of the substantive law and of equity that always
underlie them and which have to be inevitably considered in the construction of the
pertinent procedural rules.
All things considered, after careful and mature deliberation, the Court has arrived at the
conclusion that as between the two possible alternatives just stated, it would only be fair,
equitable and proper to uphold the position of petitioners. In other words, We rule that
the order of dismissal of October 21, 1974 is in law a dismissal of the whole case of the
plaintiff, including as to petitioners herein. Consequently, all proceedings held by
respondent court subsequent thereto including and principally its decision of December
20, 1974 are illegal and should be set aside.
This conclusion is fully justified by the following considerations of equity:
1. It is very clear to Us that the procedural maneuver resorted to by private respondent in
securing the decision in her favor was ill-conceived. It was characterized by that which
every principle of law and equity disdains taking unfair advantage of the rules of
procedure in order to unduly deprive the other party of full opportunity to defend his
cause. The idea of "dropping" the non-defaulted defendants with the end in view of
completely incapacitating their co-defendants from making any defense, without
considering that all of them are indispensable parties to a common cause of action to
which they have countered with a common defense readily connotes an intent to secure
a one-sided decision, even improperly. And when, in this connection, the obvious
weakness of plaintiff's evidence is taken into account, one easily understands why such
tactics had to be availed of. We cannot directly or indirectly give Our assent to the
commission of unfairness and inequity in the application of the rules of procedure,
particularly when the propriety of reliance thereon is not beyond controversy.
2. The theories of remedial law pursued by private respondents, although approved by
His Honor, run counter to such basic principles in the rules on default and such
elementary rules on dismissal of actions and notice of motions that no trial court should
be unaware of or should be mistaken in applying. We are at a loss as to why His Honor
failed to see through counsel's inequitous strategy, when the provisions (1) on the three-
day rule on notice of motions, Section 4 of Rule 15, (2) against dismissal of actions on
motion of plaintiff when there is a compulsory counterclaim, Section 2, Rule 17, (3)
against permitting the absence of indispensable parties, Section 7, Rule 3, (4) on service
of papers upon defendants in default when there are substantial amendments to
pleadings, Section 9, Rule 13, and (5) on the unity and integrity of the fate of defendants
in default with those not in default where the cause of action against them and their own
defenses are common, Section 4, Rule 18, are so plain and the jurisprudence
declaratory of their intent and proper construction are so readily comprehensible that any
error as to their application would be unusual in any competent trial court.
3. After all, all the malactuations of respondent court are traceable to the initiative of
private respondent and/or her counsel. She cannot, therefore, complain that she is being
made to unjustifiably suffer the consequences of what We have found to be erroneous
orders of respondent court. It is only fair that she should not be allowed to benefit from
her own frustrated objective of securing a one-sided decision.
4. More importantly, We do not hesitate to hold that on the basis of its own recitals, the
decision in question cannot stand close scrutiny. What is more, the very considerations
contained therein reveal convincingly the inherent weakness of the cause of the plaintiff.
To be sure, We have been giving serious thought to the idea of merely returning this
case for a resumption of trial by setting aside the order of dismissal of October 21, 1974,
with all its attendant difficulties on account of its adverse effects on parties who have not
been heard, but upon closer study of the pleadings and the decision and other
circumstances extant in the record before Us, We are now persuaded that such a course
of action would only lead to more legal complications incident to attempts on the part of
the parties concerned to desperately squeeze themselves out of a bad situation.
Anyway, We feel confident that by and large, there is enough basis here and now for Us
to rule out the claim of the plaintiff.
Even a mere superficial reading of the decision would immediately reveal that it is
littered on its face with deficiencies and imperfections which would have had no reason
for being were there less haste and more circumspection in rendering the same.
Recklessness in jumping to unwarranted conclusions, both factual and legal, is at once
evident in its findings relative precisely to the main bases themselves of the reliefs
granted. It is apparent therein that no effort has been made to avoid glaring
inconsistencies. Where references are made to codal provisions and jurisprudence,
inaccuracy and inapplicability are at once manifest. It hardly commends itself as a
deliberate and consciencious adjudication of a litigation which, considering the
substantial value of the subject matter it involves and the unprecedented procedure that
was followed by respondent's counsel, calls for greater attention and skill than the
general run of cases would.
Inter alia, the following features of the decision make it highly improbable that if We took
another course of action, private respondent would still be able to make out any case
against petitioners, not to speak of their co-defendants who have already been
exonerated by respondent herself thru her motion to dismiss:
1. According to His Honor's own statement of plaintiff's case, "she is the widow of the
late Tee Hoon Po Chuan (Po Chuan, for short) who was then one of the partners in the
commercial partnership, Glory Commercial Co. with defendants Antonio Lim Tanhu (Lim
Tanhu, for short) and Alfonso Leonardo Ng Sua (Ng Sua, for short) as co-partners; that
after the death of her husband on March 11, 1966 she is entitled to share not only in the
capital and profits of the partnership but also in the other assets, both real and personal,
acquired by the partnership with funds of the latter during its lifetime."
Relatedly, in the latter part of the decision, the findings are to the following effect: .
That the herein plaintiff Tan Put and her late husband Po Chuan married
at the Philippine Independent Church of Cebu City on December, 20,
1949; that Po Chuan died on March 11, 1966; that the plaintiff and the
late Po Chuan were childless but the former has a foster son Antonio
Nuez whom she has reared since his birth with whom she lives up to the
present; that prior to the marriage of the plaintiff to Po Chuan the latter
was already managing the partnership Glory Commercial Co. then
engaged in a little business in hardware at Manalili St., Cebu City; that
prior to and just after the marriage of the plaintiff to Po Chuan she was
engaged in the drugstore business; that not long after her marriage, upon
the suggestion of Po Chuan the plaintiff sold her drugstore for
P125,000.00 which amount she gave to her husband in the presence of
defendant Lim Tanhu and was invested in the partnership Glory
Commercial Co. sometime in 1950; that after the investment of the
above-stated amount in the partnership its business flourished and it
embarked in the import business and also engaged in the wholesale and
retail trade of cement and GI sheets and under huge profits;
xxx xxx xxx
That the late Po Chuan was the one who actively managed the business
of the partnership Glory Commercial Co. he was the one who made the
final decisions and approved the appointments of new personnel who
were taken in by the partnership; that the late Po Chuan and defendants
Lim Tanhu and Ng Sua are brothers, the latter two (2) being the elder
brothers of the former; that defendants Lim Tanhu and Ng Sua are both
naturalized Filipino citizens whereas the late Po Chuan until the time of
his death was a Chinese citizen; that the three (3) brothers were partners
in the Glory Commercial Co. but Po Chuan was practically the owner of
the partnership having the controlling interest; that defendants Lim Tanhu
and Ng Sua were partners in name but they were mere employees of Po
Chuan .... (Pp. 89-91, Record.)
How did His Honor arrive at these conclusions? To start with, it is not clear in the
decision whether or not in making its findings of fact the court took into account the
allegations in the pleadings of the parties and whatever might have transpired at the pre-
trial. All that We can gather in this respect is that references are made therein to pre-trial
exhibits and to Annex A of the answer of the defendants to plaintiff's amended
complaint. Indeed, it was incumbent upon the court to consider not only the evidence
formally offered at the trial but also the admissions, expressed or implied, in the
pleadings, as well as whatever might have been placed before it or brought to its
attention during the pre-trial. In this connection, it is to be regretted that none of the
parties has thought it proper to give Us an idea of what took place at the pre-trial of the
present case and what are contained in the pre-trial order, if any was issued pursuant to
Section 4 of Rule 20.
The fundamental purpose of pre-trial, aside from affording the parties every opportunity
to compromise or settle their differences, is for the court to be apprised of the unsettled
issues between the parties and of their respective evidence relative thereto, to the end
that it may take corresponding measures that would abbreviate the trial as much as
possible and the judge may be able to ascertain the facts with the least observance of
technical rules. In other words whatever is said or done by the parties or their counsel at
the pre- trial serves to put the judge on notice of their respective basic positions, in order
that in appropriate cases he may, if necessary in the interest of justice and a more
accurate determination of the facts, make inquiries about or require clarifications of
matters taken up at the pre-trial, before finally resolving any issue of fact or of law. In
brief, the pre-trial constitutes part and parcel of the proceedings, and hence, matters
dealt with therein may not be disregarded in the process of decision making. Otherwise,
the real essence of compulsory pre-trial would be insignificant and worthless.
Now, applying these postulates to the findings of respondent court just quoted, it will be
observed that the court's conclusion about the supposed marriage of plaintiff to the
deceased Tee Hoon Lim Po Chuan is contrary to the weight of the evidence brought
before it during the trial and the pre-trial.
Under Article 55 of the Civil Code, the declaration of the contracting parties that they
take each other as husband and wife "shall be set forth in an instrument" signed by the
parties as well as by their witnesses and the person solemnizing the marriage.
Accordingly, the primary evidence of a marriage must be an authentic copy of the
marriage contract. While a marriage may also be proved by other competent evidence,
the absence of the contract must first be satisfactorily explained. Surely, the certification
of the person who allegedly solemnized a marriage is not admissible evidence of such
marriage unless proof of loss of the contract or of any other satisfactory reason for its
non-production is first presented to the court. In the case at bar, the purported
certification issued by a Mons. Jose M. Recoleto, Bishop, Philippine Independent
Church, Cebu City, is not, therefore, competent evidence, there being absolutely no
showing as to unavailability of the marriage contract and, indeed, as to the authenticity
of the signature of said certifier, the jurat allegedly signed by a second assistant
provincial fiscal not being authorized by law, since it is not part of the functions of his
office. Besides, inasmuch as the bishop did not testify, the same is hearsay.
As regards the testimony of plaintiff herself on the same point and that of her witness
Antonio Nuez, there can be no question that they are both self-serving and of very little
evidentiary value, it having been disclosed at the trial that plaintiff has already assigned
all her rights in this case to said Nuez, thereby making him the real party in interest
here and, therefore, naturally as biased as herself. Besides, in the portion of the
testimony of Nuez copied in Annex C of petitioner's memorandum, it appears admitted
that he was born only on March 25, 1942, which means that he was less than eight
years old at the supposed time of the alleged marriage. If for this reason alone, it is
extremely doubtful if he could have been sufficiently aware of such event as to be
competent to testify about it.
Incidentally, another Annex C of the same memorandum purports to be the certificate of
birth of one Antonio T. Uy supposed to have been born on March 23, 1937 at Centro
Misamis, Misamis Occidental, the son of one Uy Bien, father, and Tan Put, mother.
Significantly, respondents have not made any adverse comment on this document. It is
more likely, therefore, that the witness is really the son of plaintiff by her husband Uy
Kim Beng. But she testified she was childless. So which is which? In any event, if on the
strength of this document, Nuez is actually the legitimate son of Tan Put and not her
adopted son, he would have been but 13 years old in 1949, the year of her alleged
marriage to Po Chuan, and even then, considering such age, his testimony in regard
thereto would still be suspect.
Now, as against such flimsy evidence of plaintiff, the court had before it, two documents
of great weight belying the pretended marriage. We refer to (1) Exhibit LL, the income
tax return of the deceased Tee Hoon Lim Po Chuan indicating that the name of his wife
was Ang Sick Tin and (2) the quitclaim, Annex A of the answer, wherein plaintiff Tan Put
stated that she had been living with the deceased without benefit of marriage and that
she was his "common-law wife". Surely, these two documents are far more reliable than
all the evidence of the plaintiff put together.
Of course, Exhibit LL is what might be termed as pre-trial evidence. But it is evidence
offered to the judge himself, not to the clerk of court, and should have at least moved
him to ask plaintiff to explain if not rebut it before jumping to the conclusion regarding her
alleged marriage to the deceased, Po Chuan. And in regard to the quitclaim containing
the admission of a common-law relationship only, it is to be observed that His Honor
found that "defendants Lim Tanhu and Ng Sua had the plaintiff execute a quitclaim on
November 29, 1967 (Annex "A", Answer) where they gave plaintiff the amount of
P25,000 as her share in the capital and profits of the business of Glory Commercial Co.
which was engaged in the hardware business", without making mention of any evidence
of fraud and misrepresentation in its execution, thereby indicating either that no evidence
to prove that allegation of the plaintiff had been presented by her or that whatever
evidence was actually offered did not produce persuasion upon the court. Stated
differently, since the existence of the quitclaim has been duly established without any
circumstance to detract from its legal import, the court should have held that plaintiff was
bound by her admission therein that she was the common-law wife only of Po Chuan
and what is more, that she had already renounced for valuable consideration whatever
claim she might have relative to the partnership Glory Commercial Co.
And when it is borne in mind that in addition to all these considerations, there are
mentioned and discussed in the memorandum of petitioners (1) the certification of the
Local Civil Registrar of Cebu City and (2) a similar certification of the Apostolic Prefect of
the Philippine Independent Church, Parish of Sto. Nio, Cebu City, that their respective
official records corresponding to December 1949 to December 1950 do not show any
marriage between Tee Hoon Lim Po Chuan and Tan Put, neither of which certifications
have been impugned by respondent until now, it stands to reason that plaintiff's claim of
marriage is really unfounded. Withal, there is still another document, also mentioned and
discussed in the same memorandum and unimpugned by respondents, a written
agreement executed in Chinese, but purportedly translated into English by the Chinese
Consul of Cebu, between Tan Put and Tee Hoon Lim Po Chuan to the following effect:
CONSULATE OF THE REPUBLIC OF CHINA Cebu City, Philippines
T R A N S L A T I O N
This is to certify that 1, Miss Tan Ki Eng Alias Tan Put, have lived with Mr.
Lim Po Chuan alias TeeHoon since 1949 but it recently occurs that we
are incompatible with each other and are not in the position to keep living
together permanently. With the mutual concurrence, we decided to
terminate the existing relationship of common law-marriage and promised
not to interfere each other's affairs from now on. The Forty Thousand
Pesos (P40,000.00) has been given to me by Mr. Lim Po Chuan for my
subsistence.
Witnesses:
Mr. Lim Beng Guan Mr. Huang Sing Se
Signed on the 10 day of the 7th month of the 54th year of the Republic of
China (corresponding to the year 1965).
(SGD) TAN KI ENG
Verified from the records. JORGE TABAR (Pp. 283-284, Record.)
Indeed, not only does this document prove that plaintiff's relation to the deceased was
that of a common-law wife but that they had settled their property interests with the
payment to her of P40,000.
In the light of all these circumstances, We find no alternative but to hold that plaintiff Tan
Put's allegation that she is the widow of Tee Hoon Lim Po Chuan has not been
satisfactorily established and that, on the contrary, the evidence on record convincingly
shows that her relation with said deceased was that of a common-law wife and
furthermore, that all her claims against the company and its surviving partners as well as
those against the estate of the deceased have already been settled and paid. We take
judicial notice of the fact that the respective counsel who assisted the parties in the
quitclaim, Attys. H. Hermosisima and Natalio Castillo, are members in good standing of
the Philippine Bar, with the particularity that the latter has been a member of the Cabinet
and of the House of Representatives of the Philippines, hence, absent any credible proof
that they had allowed themselves to be parties to a fraudulent document His Honor did
right in recognizing its existence, albeit erring in not giving due legal significance to its
contents.
2. If, as We have seen, plaintiff's evidence of her alleged status as legitimate wife of Po
Chuan is not only unconvincing but has been actually overcome by the more competent
and weighty evidence in favor of the defendants, her attempt to substantiate her main
cause of action that defendants Lim Tanhu and Ng Sua have defrauded the partnership
Glory Commercial Co. and converted its properties to themselves is even more dismal.
From the very evidence summarized by His Honor in the decision in question, it is clear
that not an iota of reliable proof exists of such alleged misdeeds.
Of course, the existence of the partnership has not been denied, it is actually admitted
impliedly in defendants' affirmative defense that Po Chuan's share had already been
duly settled with and paid to both the plaintiff and his legitimate family. But the evidence
as to the actual participation of the defendants Lim Tanhu and Ng Sua in the operation
of the business that could have enabled them to make the extractions of funds alleged
by plaintiff is at best confusing and at certain points manifestly inconsistent.
In her amended complaint, plaintiff repeatedly alleged that as widow of Po Chuan she is
entitled to /
3
share of the assets and properties of the partnership. In fact, her prayer in
said complaint is, among others, for the delivery to her of such /
3
share. His Honor's
statement of the case as well as his findings and judgment are all to that same effect.
But what did she actually try to prove at the ex- parte hearing?
According to the decision, plaintiff had shown that she had money of her own when she
"married" Po Chuan and "that prior to and just after the marriage of the plaintiff to Po
Chuan, she was engaged in the drugstore business; that not long after her marriage,
upon the suggestion of Po Chuan, the plaintiff sold her drugstore for P125,000 which
amount she gave to her husband in the presence of Tanhu and was invested in the
partnership Glory Commercial Co. sometime in 1950; that after the investment of the
above-stated amount in the partnership, its business flourished and it embarked in the
import business and also engaged in the wholesale and retail trade of cement and GI
sheets and under (sic) huge profits." (pp. 25-26, Annex L, petition.)
To begin with, this theory of her having contributed of P125,000 to the capital of the
partnership by reason of which the business flourished and amassed all the millions
referred to in the decision has not been alleged in the complaint, and inasmuch as what
was being rendered was a judgment by default, such theory should not have been
allowed to be the subject of any evidence. But inasmuch as it was the clerk of court who
received the evidence, it is understandable that he failed to observe the rule. Then, on
the other hand, if it was her capital that made the partnership flourish, why would she
claim to be entitled to only to /
3
of its assets and profits? Under her theory found proven
by respondent court, she was actually the owner of everything, particularly because His
Honor also found "that defendants Lim Tanhu and Ng Sua were partners in the name but
they were employees of Po Chuan that defendants Lim Tanhu and Ng Sua had no
means of livelihood at the time of their employment with the Glory Commercial Co. under
the management of the late Po Chuan except their salaries therefrom; ..." (p. 27, id.)
Why then does she claim only /
3
share? Is this an indication of her generosity towards
defendants or of a concocted cause of action existing only in her confused imagination
engendered by the death of her common-law husband with whom she had settled her
common-law claim for recompense of her services as common law wife for less than
what she must have known would go to his legitimate wife and children?
Actually, as may be noted from the decision itself, the trial court was confused as to the
participation of defendants Lim Tanhu and Ng Sua in Glory Commercial Co. At one
point, they were deemed partners, at another point mere employees and then elsewhere
as partners-employees, a newly found concept, to be sure, in the law on partnership.
And the confusion is worse comfounded in the judgment which allows these "partners in
name" and "partners-employees" or employees who had no means of livelihood and who
must not have contributed any capital in the business, "as Po Chuan was practically the
owner of the partnership having the controlling interest", /
3
each of the huge assets and
profits of the partnership. Incidentally, it may be observed at this juncture that the
decision has made Po Chuan play the inconsistent role of being "practically the owner"
but at the same time getting his capital from the P125,000 given to him by plaintiff and
from which capital the business allegedly "flourished."
Anent the allegation of plaintiff that the properties shown by her exhibits to be in the
names of defendants Lim Tanhu and Ng Sua were bought by them with partnership
funds, His Honor confirmed the same by finding and holding that "it is likewise clear that
real properties together with the improvements in the names of defendants Lim Tanhu
and Ng Sua were acquired with partnership funds as these defendants were only
partners-employees of deceased Po Chuan in the Glory Commercial Co. until the time of
his death on March 11, 1966." (p. 30, id.) It Is Our considered view, however, that this
conclusion of His Honor is based on nothing but pure unwarranted conjecture. Nowhere
is it shown in the decision how said defendants could have extracted money from the
partnership in the fraudulent and illegal manner pretended by plaintiff. Neither in the
testimony of Nuez nor in that of plaintiff, as these are summarized in the decision, can
there be found any single act of extraction of partnership funds committed by any of said
defendants. That the partnership might have grown into a multi-million enterprise and
that the properties described in the exhibits enumerated in the decision are not in the
names of Po Chuan, who was Chinese, but of the defendants who are Filipinos, do not
necessarily prove that Po Chuan had not gotten his share of the profits of the business
or that the properties in the names of the defendants were bought with money of the
partnership. In this connection, it is decisively important to consider that on the basis of
the concordant and mutually cumulative testimonies of plaintiff and Nuez, respondent
court found very explicitly that, and We reiterate:
xxx xxx xxx
That the late Po Chuan was the one who actively managed the business
of the partnership Glory Commercial Co. he was the one who made the
final decisions and approved the appointments of new Personnel who
were taken in by the partnership; that the late Po Chuan and defendants
Lim Tanhu and Ng Sua are brothers, the latter to (2) being the elder
brothers of the former; that defendants Lim Tanhu and Ng Sua are both
naturalized Filipino citizens whereas the late Po Chuan until the time of
his death was a Chinese citizen; that the three (3) brothers were partners
in the Glory Commercial Co. but Po Chuan was practically the owner of
the partnership having the controlling interest; that defendants Lim Tanhu
and Ng Sua were partners in name but they were mere employees of Po
Chuan; .... (Pp. 90-91, Record.)
If Po Chuan was in control of the affairs and the running of the partnership, how could
the defendants have defrauded him of such huge amounts as plaintiff had made his
Honor believe? Upon the other hand, since Po Chuan was in control of the affairs of the
partnership, the more logical inference is that if defendants had obtained any portion of
the funds of the partnership for themselves, it must have been with the knowledge and
consent of Po Chuan, for which reason no accounting could be demanded from them
therefor, considering that Article 1807 of the Civil Code refers only to what is taken by a
partner without the consent of the other partner or partners. Incidentally again, this
theory about Po Chuan having been actively managing the partnership up to his death is
a substantial deviation from the allegation in the amended complaint to the effect that
"defendants Antonio Lim Tanhu, Alfonso Leonardo Ng Sua, Lim Teck Chuan and Eng
Chong Leonardo, through fraud and machination, took actual and active management of
the partnership and although Tee Hoon Lim Po Chuan was the manager of Glory
Commercial Co., defendants managed to use the funds of the partnership to purchase
lands and buildings etc. (Par. 4, p. 2 of amended complaint, Annex B of petition) and
should not have been permitted to be proven by the hearing officer, who naturally did not
know any better.
Moreover, it is very significant that according to the very tax declarations and land titles
listed in the decision, most if not all of the properties supposed to have been acquired by
the defendants Lim Tanhu and Ng Sua with funds of the partnership appear to have
been transferred to their names only in 1969 or later, that is, long after the partnership
had been automatically dissolved as a result of the death of Po Chuan. Accordingly,
defendants have no obligation to account to anyone for such acquisitions in the absence
of clear proof that they had violated the trust of Po Chuan during the existence of the
partnership. (See Hanlon vs. Hansserman and. Beam, 40 Phil. 796.)
There are other particulars which should have caused His Honor to readily disbelieve
plaintiffs' pretensions. Nuez testified that "for about 18 years he was in charge of the GI
sheets and sometimes attended to the imported items of the business of Glory
Commercial Co." Counting 18 years back from 1965 or 1966 would take Us to 1947 or
1948. Since according to Exhibit LL, the baptismal certificate produced by the same
witness as his birth certificate, shows he was born in March, 1942, how could he have
started managing Glory Commercial Co. in 1949 when he must have been barely six or
seven years old? It should not have escaped His Honor's attention that the photographs
showing the premises of Philippine Metal Industries after its organization "a year or two
after the establishment of Cebu Can Factory in 1957 or 1958" must have been taken
after 1959. How could Nuez have been only 13 years old then as claimed by him to
have been his age in those photographs when according to his "birth certificate", he was
born in 1942? His Honor should not have overlooked that according to the same
witness, defendant Ng Sua was living in Bantayan until he was directed to return to
Cebu after the fishing business thereat floundered, whereas all that the witness knew
about defendant Lim Teck Chuan's arrival from Hongkong and the expenditure of
partnership money for him were only told to him allegedly by Po Chuan, which
testimonies are veritably exculpatory as to Ng Sua and hearsay as to Lim Teck Chuan.
Neither should His Honor have failed to note that according to plaintiff herself, "Lim
Tanhu was employed by her husband although he did not go there always being a mere
employee of Glory Commercial Co." (p. 22, Annex the decision.)
The decision is rather emphatic in that Lim Tanhu and Ng Sua had no known income
except their salaries. Actually, it is not stated, however, from what evidence such
conclusion was derived in so far as Ng Sua is concerned. On the other hand, with
respect to Lim Tanhu, the decision itself states that according to Exhibit NN-Pre trial, in
the supposed income tax return of Lim Tanhu for 1964, he had an income of P4,800 as
salary from Philippine Metal Industries alone and had a total assess sable net income of
P23,920.77 that year for which he paid a tax of P4,656.00. (p. 14. Annex L, id.) And per
Exhibit GG-Pretrial in the year, he had a net income of P32,000 for which be paid a tax
of P3,512.40. (id.) As early as 1962, "his fishing business in Madridejos Cebu was
making money, and he reported "a net gain from operation (in) the amount of P865.64"
(id., per Exhibit VV-Pre-trial.) From what then did his Honor gather the conclusion that all
the properties registered in his name have come from funds malversed from the
partnership?
It is rather unusual that His Honor delved into financial statements and books of Glory
Commercial Co. without the aid of any accountant or without the same being explained
by any witness who had prepared them or who has knowledge of the entries therein.
This must be the reason why there are apparent inconsistencies and inaccuracies in the
conclusions His Honor made out of them. In Exhibit SS-Pre-trial, the reported total
assets of the company amounted to P2,328,460.27 as of December, 1965, and yet,
Exhibit TT-Pre-trial, according to His Honor, showed that the total value of goods
available as of the same date was P11,166,327.62. On the other hand, per Exhibit XX-
Pre-trial, the supposed balance sheet of the company for 1966, "the value of inventoried
merchandise, both local and imported", as found by His Honor, was P584,034.38. Again,
as of December 31, 1966, the value of the company's goods available for sale was
P5,524,050.87, per Exhibit YY and YY-Pre-trial. Then, per Exhibit II-3-Pre-trial, the
supposed Book of Account, whatever that is, of the company showed its "cash analysis"
was P12,223,182.55. We do not hesitate to make the observation that His Honor, unless
he is a certified public accountant, was hardly qualified to read such exhibits and draw
any definite conclusions therefrom, without risk of erring and committing an injustice. In
any event, there is no comprehensible explanation in the decision of the conclusion of
His Honor that there were P12,223,182.55 cash money defendants have to account for,
particularly when it can be very clearly seen in Exhibits 11-4, 11-4- A, 11-5 and 11-6-
Pre-trial, Glory Commercial Co. had accounts payable as of December 31, 1965 in the
amount of P4,801,321.17. (p. 15, id.) Under the circumstances, We are not prepared to
permit anyone to predicate any claim or right from respondent court's unaided exercise
of accounting knowledge.
Additionally, We note that the decision has not made any finding regarding the allegation
in the amended complaint that a corporation denominated Glory Commercial Co., Inc.
was organized after the death of Po Chuan with capital from the funds of the partnership.
We note also that there is absolutely no finding made as to how the defendants Dy
Ochay and Co Oyo could in any way be accountable to plaintiff, just because they
happen to be the wives of Lim Tanhu and Ng Sua, respectively. We further note that
while His Honor has ordered defendants to deliver or pay jointly and severally to the
plaintiff P4,074,394.18 or /
3
of the P12,223,182.55, the supposed cash belonging to the
partnership as of December 31, 1965, in the same breath, they have also been
sentenced to partition and give /
3
share of the properties enumerated in the dispositive
portion of the decision, which seemingly are the very properties allegedly purchased
from the funds of the partnership which would naturally include the P12,223,182.55
defendants have to account for. Besides, assuming there has not yet been any
liquidation of the partnership, contrary to the allegation of the defendants, then Glory
Commercial Co. would have the status of a partnership in liquidation and the only right
plaintiff could have would be to what might result after such liquidation to belong to the
deceased partner, and before this is finished, it is impossible to determine, what rights or
interests, if any, the deceased had (Bearneza vs. Dequilla 43 Phil. 237). In other words,
no specific amounts or properties may be adjudicated to the heir or legal representative
of the deceased partner without the liquidation being first terminated.
Indeed, only time and the fear that this decision would be much more extended than it is
already prevent us from further pointing out the inexplicable deficiencies and
imperfections of the decision in question. After all, what have been discussed should be
more than sufficient to support Our conclusion that not only must said decision be set
aside but also that the action of the plaintiff must be totally dismissed, and, were it not
seemingly futile and productive of other legal complications, that plaintiff is liable on
defendants' counterclaims. Resolution of the other issues raised by the parties albeit
important and perhaps pivotal has likewise become superfluous.
IN VIEW OF ALL THE FOREGOING, the petition is granted. All proceedings held in
respondent court in its Civil Case No. 12328 subsequent to the order of dismissal of
October 21, 1974 are hereby annulled and set aside, particularly the ex-
parte proceedings against petitioners and the decision on December 20, 1974.
Respondent court is hereby ordered to enter an order extending the effects of its order of
dismissal of the action dated October 21, 1974 to herein petitioners Antonio Lim Tanhu,
Dy Ochay, Alfonso Leonardo Ng Sua and Co Oyo. And respondent court is hereby
permanently enjoined from taking any further action in said civil case gave and except as
herein indicated. Costs against private respondent.
Makalintal, C.J., Fernando, Aquino and Concepcion Jr., JJ., concur.
DIGEST
FACTS:

Private respondent Tan Put alleged that she is the widow of Tee Hoon Lim Po Chuan,
who was a partner and practically the owner who has controlling interest of Glory
Commercial Company and a Chinese Citizen until his death. Defendant Antonio Lim
Tanhu and Alfonso Leonardo Ng Sua were partners in name but they were mere
employees of Po Chuan and were naturalized Filipino Citizens. Tan Put filed complaint
against spouses-petitoner Lim Tanhu and Dy Ochay including their son Tech Chuan and
the other spouses-petitoner Ng Sua and Co Oyo including also their son Eng Chong
Leonardo, that through fraud and machination took actual and active management of the
partnership and that she alleged entitlement to share not only in the capital and profits of
the partnership but also in the other assets, both real and personal, acquired by the
partnership with funds of the latter during its lifetime."
According to the petitioners, Ang Siok Tin is the legitimate wife, still living, and with
whom Tee Hoon had four legitimate children, a twin born in 1942, and two others born in
1949 and 1965, all presently residing in Hong Kong. Tee Hoon died in 1966 and as a
result of which the partnership was dissolved and what corresponded to him were all
given to his legitimate wife and children.

Tan Put prior of her alleged marriage with Tee Hoon on 1949, was engaged in the
drugstore business; that not long after her marriage, upon the suggestion of the latter
sold her drugstore for P125,000.00 which amount she gave to her husband as
investment in Glory Commercial Co. sometime in 1950; that after the investment of the
above-stated amount in the partnership its business flourished and it embarked in the
import business and also engaged in the wholesale and retail trade of cement and GI
sheets and under huge profits.

Defendants interpose that Tan Put knew and was are that she was merely the common-
law wife of Tee Hoon. Tan Put and Tee Hoon were childless but the former had a foster
child, Antonio Nunez.

ISSUE: Whether Tan Put, as she alleged being married with Tee Hoon, can claim from
the company of the latters share.

HELD:

Under Article 55 of the Civil Code, the declaration of the contracting parties that they
take each other as husband and wife "shall be set forth in an instrument" signed by the
parties as well as by their witnesses and the person solemnizing the marriage.
Accordingly, the primary evidence of a marriage must be an authentic copy of the
marriage contract. While a marriage may also be proved by other competent evidence,
the absence of the contract must first be satisfactorily explained. Surely, the certification
of the person who allegedly solemnized a marriage is not admissible evidence of such
marriage unless proof of loss of the contract or of any other satisfactory reason for its
non-production is first presented to the court. In the case at bar, the purported
certification issued by a Mons. Jose M. Recoleto, Bishop, Philippine Independent
Church, Cebu City, is not, therefore, competent evidence, there being absolutely no
showing as to unavailability of the marriage contract and, indeed, as to the authenticity
of the signature of said certifier, the jurat allegedly signed by a second assistant
provincial fiscal not being authorized by law, since it is not part of the functions of his
office. Besides, inasmuch as the bishop did not testify, the same is hearsay.
An agreement with Tee Hoon was shown and signed by Tan Put that she received
P40,000 for her subsistence when they terminated their relationship of common-law
marriage and promised not to interfere with each others affairs since they are
incompatible and not in the position to keep living together permanently. Hence, this
document not only proves that her relation was that of a common-law wife but had also
settled property interests in the payment of P40,000.
IN VIEW OF ALL THE FOREGOING, the petition is granted. All proceedings held in
respondent court in its Civil Case No. 12328 subsequent to the order of dismissal of
October 21, 1974 are hereby annulled and set aside, particularly the ex-
parte proceedings against petitioners and the decision on December 20, 1974.
Respondent court is hereby ordered to enter an order extending the effects of its order of
dismissal of the action dated October 21, 1974 to herein petitioners Antonio Lim Tanhu,
Dy Ochay, Alfonso Leonardo Ng Sua and Co Oyo. And respondent court is hereby
permanently enjoined from taking any further action in said civil case gave and except as
herein indicated. Costs against private respondent.

Vda de Chua vs. CA (G.R. No. 116835, 5 March 1998)
G.R. No. 116835 March 5, 1998
ANTONIETTA GARCIA VDA. DE CHUA, petitioner,
vs.
COURT OF APPEALS (Special Eight Division), HON. JAPAL M. GUIANI, RTC,
Branch 14, 12th Judicial Region, Cotabato City, and FLORITA A. VALLEJO, as
Administratrix of the Estate of the late Roberto L. Chua, respondents.

KAPUNAN, J .:
Assailed before us in this Appeal by Certiorari under Rule 45 of the Rules of Court is the
decision of the Court of Appeals in CA-GR Sp. No. 33101, promulgated on 19 April 1994
affirming the decision of the Regional Trial Court, Branch 14, of Cotabato City in Special
Procedure Case No. 331.
As culled from the records, the following facts have been established by evidence:
During his lifetime, Roberto Lim Chua lived out of wedlock with private respondent
Florita A. Vallejo from 1970 up to 1981. Out of this union, the couple begot two
illegitimate children, namely, Roberto Rafson Alonzo and Rudyard Pride Alonzo.
On 28 May 1992, Roberto Chua died intestate in Davao City.
On 2 July 1992, private respondent filed with the Regional Trial Court of Cotabato City a
Petition
1
which is reproduced hereunder:
IN RE: PETITION FOR DECLARATION
OF HEIRSHIP, GUARDIANSHIP OVER
THE PERSONS AND PROPERTIES OF
MINORS ROBERT RAFSON ALONZO SP. PROC. NO/ 331
and RUDYARD PRIDE ALONZO, all
surnamed CHUA and ISSUANCE OF
LETTERS OF ADMINISTRATION.
FLORITA ALONZO VALLEJO,
Petitioner
PETITION
COMES NOW the petitioner assisted by counsel and unto this Honorable Court
most respectfully states:
1. That she is of legal age, Filipino, married but separated from her husband and
residing at Quezon Avenue, Cotabato City, Philippines;
2. That sometime from 1970 up to and until late 1981 your petitioner lived with
Roberto Lim Chua as husband and wife and out of said union they begot two (2)
children, namely, Robert Rafson Alonzo Chua who was born in General Santos
City on April 28, 1977 and Rudyard Pride Alonzo Chua who was born in Davao
City on August 30, 1978. A xerox copy of the birth certificate of each child is
hereto attached as annex "A" and "B", respectively.
3. That the aforementioned children who are still minors today are both staying
with herein petitioner at her address at Quezon Avenue, Cotabato City;
4. That Roberto Lim Chua, father of the above-mentioned minors, died intestate
on May 28, 1992 in Davao City.
5. That the aforementioned deceased left properties both real and personal worth
P5,000,000.00 consisting of the following:
a) Lot in Kakar, Cotabato City covered by TCT
No. T-12835 with an area of 290 sq. m. estimated at P50,000.00
b) Lot in Kakar, Cotabato City covered by TCT
No. T-12834 with an area of 323 sq. m. 50,000.00
c) Lot in Davao City covered by TCT
No. T-126583 with an area of 303 sq. m. 50,000.00
d) Lot in Davao City covered by TCT
No. T-126584 with an area of 303 sq. m. 50,000.00
e) Residential house in Cotabato City valued at 30,000.00
f) Residential house in Davao City valued at 600,000.00
g) Car, Colt Lancer with Motor No. 4G33-3 AF6393 210,000.00
h) Colt, Galant Super Saloon with Motor
No. 4G37-GB0165 545,000.00
i) Car, Colt Galant with Motor No. 4G52-52D75248 110,000.00
j) Reo Isuzu Dump Truck with Motor
No. DA640-838635 350,000.00
k) Hino Dump Truck with Motor No. ED100-T47148 350,000.00
l) Stockholdings in various corporations with par value
estimated at 3,335,000.00
Total P5,000,000.00
6. That deceased Roberto Lim Chua died single and without legitimate
descendants or ascendants, hence, the above named minors Robert Rafson
Alonzo Chua and Rudyard Pride Alonzo Chua, his children with herein petitioner
shall succeed to the entire estate of the deceased. (Article 988 of the Civil Code
of the Philippines).
7. That the names, ages and residences of the relatives of said minors are the
following, to wit:
Names Relationship Ages Residence
1. Carlos Chua Uncle 60 Quezon Avenue,
Cotabato City
2. Aida Chua Auntie 55 Rosary Heights,
Cotabato City
3. Romulo Uy Uncle 40 c/o Overseas
Fishing Exporation
Co. Inc., Matina,
Davao City
6. That considering the fact that the aforementioned minors by operation of law
are to succeed to the entire estate of Roberto Lim Chua under the provisions of
Article 988 of the New Civil Code of the Philippines, it is necessary that for the
protection of the rights and interest of Robert Rafson Alonzo Chua and Rudyard
Pride Alonzo Chua, both minors and heirs of deceased Roberto Lim Chua, a
guardian over the persons and properties of said minors be appointed by this
Honorable Court.
7. That herein petitioner being the mother and natural guardian of said minors is
also competent and willing to act as the guardian of minors Robert Rafson
Alonzo Chua and Rudyard Pride Alonzo Chua both staying and living with her;
that petitioner possesses all the qualifications and none of the disqualifications of
a guardian.
WHEREFORE, premises considered, it is most respectfully prayed:
1. That, upon proper notice and hearing, an order be issued declaring minors
ROBERTO RAFSON ALONZO CHUA and RUDYARD PRIDE ALONZO CHUA
as heirs to the intestate estate of deceased ROBERTO LIM CHUA;
2. That Letters of Administration be issued to herein petitioner for the
administration of the estate of the deceased ROBERTO LIM CHUA;
3. That the petitioner be also appointed the guardian of the persons and estate of
minors ROBERT RAFSON ALONZO CHUA and RUDYARD PRIDE ALONZO
CHUA;
4. That after all the property of deceased Roberto Lim Chua have been
inventoried and expenses and just debts, have been paid, the intestate estate of
Roberto Lim Chua be distributed to its rightful heirs, the minors in this case,
pursuant to the provisions of Article 988 of the New Civil Code of the Philippines.
5. And for such other reliefs and remedies this Honorable Court may consider fit
and proper in the premises.
Cotabato City, Philippines, June 29, 1992.
(Sgd.) FLORITA ALONZO VALLEJO
(Petitioner)
The trial court issued an order setting the hearing of the petition on 14 August 1992 and
directed that notice thereof be published in a newspaper of general circulation in the
province of Maguindanao and Cotabato City and or Davao City.
On 21 July 1992, herein petitioner Antonietta Garcia Vda. de Chua, representing to be
the surviving spouse of Roberto Chua, filed a Motion to Dismiss
2
on the ground of
improper venue. Petitioner alleged that at the time of the decedent's death Davao City
was his residence, hence, the Regional Trial Court of Davao City is the proper forum.
Private respondent filed an opposition to the Motion to Dismiss
3
dated July 20, 1992
based on the following grounds:
(1) That this petition is for the guardianship of the minor children of the petitioner
who are heirs to the estate of the late Roberto L. Chua and under Section 1, Rule
92 of the Rules of Court the venue shall be at the place where the minor resides;
(2) That the above-named minors are residents of Cotabato City:
(3) That the movant in this case has no personality to intervene nor oppose in the
granting of this petition for the reason that she is a total stranger to the minors
Robert Rafson Alonzo and Rudyard Pride Alonzo, all surnamed Chua.
(4) That deceased Roberto L. Chua died a bachelor. He is the father of the
above-named minors with the petitioner in this case;
(5) That movant/oppositor Antonietta Chua is not the surviving spouse of the late
Roberto L. Chua but a pretender to the estate of the latter since the deceased
never contracted marriage with any woman until he died.
On 6 August 1992, private respondent Vallejo filed a Motion for Admission of an
Amended Petition
4
"in order that the designation of the case title can properly and
appropriately capture or capsulize in clear terms the material averments in the body of
the pleadings; thus avoiding any confusion or misconception of the nature and real intent
and purpose of this petition." The amended petition
5
contained identical material
allegations but differed in its title, thus:.
IN RE: PETITION FOR THE SETTLEMENT OF THE INTESTATE ESTATE OF
ROBERTO L. CHUA, DECLARATION OF HEIRSHIP, GUARDIANSHIP OVER
THE PERSONS AND PROPERTIES OF MINORS ROBERT AND RUDYARD, all
surnamed CHUA and ISSUANCE OF LETTERS OF ADMINISTRATION.
FLORITA ALONZO VALLEJO,
Petitioner.
Paragraph 4 of the original petition was also amended to read as follows:
4. That Roberto Lim Chua, father of the abovementioned minors is a resident of
Cotabato City and died intestate on May 28, 1992 at Davao City.
The petition contained exactly the same prayers as the original petition.
Petitioner opposed the motion to amend petition alleging that at the hearing of said
motion on 24 July 1992, private respondent's counsel allegedly admitted that the sole
intention of the original petition was to secure guardianship over the persons and
property of the minors.
6

On 21 August 1992, the trial court issued an Order
7
denying the motion to dismiss for
lack of merit. The court ruled that Antonietta Garcia had no personality to file the motion
to dismiss not having proven her status as wife of the decedent. Further, the court found
that the actual residence of the deceased was Cotabato City, and even assuming that
there was concurrent venue among the Regional Trial Courts where the decedent had
resided, the R.T.C. of Cotabato had already taken cognizance of the settlement of the
decedent's estate to the exclusion of all others. The pertinent portions of the order read:
At the hearing of the motion to dismiss on August 19, 1992, counsel for movant
Antonietta G. Chua presented 18 Exhibits in support of her allegation that she
was the lawful wife of the decedent and that the latter resides in Davao City at
the time of his death. Exh. "1" was the xerox copy of the alleged marriage
contract between the movant and the petitioner. This cannot be admitted in
evidence on the ground of the timely objection of the counsels for petitioner that
the best evidence is the original copy or authenticated copy which the movant
cannot produce. Further, the counsels for petitioner in opposition presented the
following: a certification from the Local Civil Registrar concerned that no such
marriage contract was ever registered with them; a letter from Judge Augusto
Banzali, the alleged person to have solemnized the alleged marriage that he has
not solemnized such alleged marriage. Exhibit "2" through "18" consist among
others of Transfer Certificate of Title issued in the name of Roberto L. Chua
married to Antonietta Garcia, and a resident of Davao City; Residence
Certificates from 1988 and 1989 issued at Davao City indicating that he was
married and was born in Cotabato City; Income Tax Returns for 1990 and 1991
filed in Davao City where the status of the decedent was stated as married;
passport of the decedent specifying that he was married and his residence was
Davao City. Petitioner through counsels, objected to the admission in evidence of
Exhibits "2" through "18" if the purpose is to establish the truth of the alleged
marriage between the decedent and Antonietta Garcia. The best evidence they
said is the marriage contract. They do not object to the admission of said exhibit
if the purpose is to show that Davao City was the business residence of the
decedent.
Petitioner through counsels, presented Exhibit "A" through "K" to support her
allegation that the decedent was a resident of Cotabato City; that he died a
bachelor; that he begot two illegitimate children with the petitioner as mother.
Among these exhibits are Income Tax Returns filed in Cotabato City from 1968
through 1979 indicating therein that he was single; birth certificates of the alleged
two illegitimate children of the decedent; Resident Certificates of the decedent
issued in Cotabato City; Registration Certificate of Vehicle of the decedent
showing that his residence is Cotabato City.
It is clear from the foregoing that the movant failed to establish the truth of her
allegation that she was the lawful wife of the decedent. The best evidence is a
valid marriage contract which the movant failed to produce. Transfer Certificates
of Title, Residence Certificates, passports and other similar documents cannot
prove marriage especially so when the petitioner has submitted a certification
from the Local Civil Registrar concerned that the alleged marriage was not
registered and a letter from the judge alleged to have solemnized the marriage
that he has not solemnized said alleged marriage. Consequently, she has no
personality to file the subject motion to dismiss.
On the issue of the residence of the decedent at the time of his death, the
decedent as a businessman has many business residences from different parts
of the country where he usually stays to supervise and pursue his business
ventures. Davao City is one of them. It cannot be denied that Cotabato City is his
actual residence where his alleged illegitimate children also reside.
The place of residence of the deceased in settlement of estates, probate of will,
and issuance of letters of administration does not constitute an element of
jurisdiction over the subject matter. It is merely constitutive of venue (Fule vs.
CA, L-40502, November 29, 1976). Even assuming that there is concurrent
venue among the Regional Trial Courts of the places where the decedent has
residences, the Regional Trial Court first taking cognizance of the settlement of
the estate of the decedent, shall exercise jurisdiction to the exclusion of all other
courts (Section 1, Rule 73). It was this Court which first took cognizance of the
case when the petition was filed on July 2, 1992, docketed as Special
Proceeding No. 331 and an order of publication issued by this Court on July 13,
1992.
WHEREFORE, in view of the foregoing, the motion to dismiss is hereby denied
for lack of merit.
On 31 August 1992, upon motion of private respondent, the trial court issued an order
appointing Romulo Lim Uy, a first cousin of the deceased, as special administrator of the
decedent's estate.
8

On the same day, the trial court, likewise, issued an Order appointing Florita Vallejo as
guardian over the persons and properties of the two minor children.
9

Thereafter, petitioner filed a Motion dated 25 October 1993
10
praying that the letters of
administration issued to Vallejo be recalled and that new letters of administration be
issued to her. She, likewise, filed a Motion dated 5 November 1993
11
to declare the
proceedings a mistrial. Both motions were denied by the trial court in its Order dated 22
November 1993.
12
Petitioner's motion for reconsideration of the order was denied by the
trial court in an Order dated 13 December 1993.
13

Assailing the last two orders of the trial court, petitioner filed a petition for certiorari and
prohibition (Rule 65) with the respondent Court of Appeals, docketed as CA G.R. No.
Sp. 33101, alleging that the trial court acted with grave abuse of discretion in:
(1) unilaterally and summarily converting, if not treating, the guardianship
proceedings into an intestate proceeding;
(2) summarily hearing the intestate proceedings without jurisdiction and without
any notice to herein petitioner whatsoever; and
(3) issuing the questioned order (sic) on the alleged pretension that herein
petitioner has no personality to intervene in SPL Proc. No. 331 questioning the
highly anomalous orders precipitately issued ex-parte by the public respondent
R.T.C. without notice to the petitioners.
Petitioner in the main argued that private respondent herself admitted in her opposition
to petitioner's motion to dismiss filed in the trial court and in open court that the original
petition she filed is one for guardianship; hence, the trial court acted beyond its
jurisdiction when it issued letters of administration over the estate of Roberto L. Chua,
thereby converting the petition into an intestate proceeding, without the amended
petition being published in a newspaper of general circulation as required by Section 3,
Rule 79.
The Court of Appeals, in its decision promulgated on 19 April 1994,
14
denied the petition
ratiocinating that the original petition filed was one for guardianship of the illegitimate
children of the deceased as well as for administration of his intestate estate. While
private respondent may have alleged in her opposition to the motion to dismiss that
petition was for guardianship, the fact remains that the very allegations of the original
petition unmistakably showed a twin purpose: (1) guardianship; and (2) issuance of
letters of administration. As such, it was unnecessary for her to republish the notice of
hearing through a newspaper of general circulation in the province. The amended
petition was filed for the only reason stated in the motion for leave: so that the "case title
can properly and appropriately capture or capsulize in clear terms the material
averments in the body of the pleadings; thus avoiding any confusion or misconception of
the nature and real intent and purpose of this petition," which was for guardianship over
the persons and properties of her minor children and for the settlement of the intestate
estate of the decedent who was their father. In other words, there being no change in the
material allegations between the original and amended petitions, the publication of the
first in a newspaper of general circulation sufficed for purposes of compliance with the
legal requirements of notice.
Moreover, the appellate court ruled that the petitioner's remedy is appeal from the orders
complained of under Section 1(f), Rule 109 of the Rules of Court, not certiorari and
prohibition.
Not satisfied with the decision of the Court of Appeals, petitioner comes to this Court
contending that the appellate court committed the following errors:
I
THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY AND
SERIOUSLY ERRED IN HOLDING THAT THE ORIGINAL PETITION (Annex F,
Petition) WAS FOR A TWIN PURPOSE, TO WIT: FOR GUARDIANSHIP AND
FOR INTESTATE ESTATE PROCEEDINGS;
II
THE PUBLIC RESPONDENT COURT APPEALS SERIOUSLY ERRED IN
HOLDING THAT THERE IS NO NEED TO PUBLISH THE AMENDED PETITION
FOR ADMINISTRATION OF THE INTESTATE ESTATE THEREBY
CONTRAVENING THE RULES OF COURT AND THE RULINGS OF THE
SUPREME COURT.
III
THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
NOT NULLIFYING THE ORDERS (Annex "P" to "T") PRECIPITATELY
ISSUED EX-PARTE BY THE PUBLIC RESPONDENT REGIONAL TRIAL
COURT IN THE INTESTATE PROCEEDINGS WITHOUT PRIOR HEARING OR
NOTICE TO HEREIN PETITIONER THEREBY DEPRIVING THE LATTER
(ANTONIETTA GARCIA VDA. DE CHUA ) OF DUE PROCESS AND
OPPORTUNITY TO BE HEARD.
IV
THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED IN
SWEEPINGLY HOLDING THAT PETITIONER'S REMEDY IS APPEAL.
15

In support of her first assignment of error, petitioner submits that the Court of Appeals'
conclusion that the original petition was one for guardianship and administration of the
intestate estate is contradicted by the evidence on hand, asserting that the original
petition failed to allege and state the jurisdictional facts required by the Rules of Court in
petitions for administration of a decedent's estate, such as: (a) the last actual residence
of the decedent at the time of his death; (b) names, ages and residences of the heirs;
and (c) the names and residences of the creditors of the decedent. Petitioner also
reiterates her argument regarding private respondent's alleged admission that the
original petition was one for guardianship and not for issuance of letters of
administration, pointing to the Opposition to the Motion to Dismiss dated 20 July 1992,
where the private respondent alleged.
1. That this petition is for guardianship of the minor children of the petitioner who
are heirs to the estate of the late Roberto L. Chua and under Section 1, Rule 92
of the Rules of Court the venue shall be at the place where the minor resides.
16

as well as to the statements made by counsel for the private respondent during the 24
July 1992 hearing on the motion to dismiss:
ATTY. RENDON:
We filed our opposition to the motion to dismiss the petition because this is a
petition for guardianship of minors, not for intestate proceedings. So this is a
case where the mother wanted to be appointed as guardian because she is also
the litigant here. Because whenever there is an intestate proceedings, she has to
represent the minors, and under the Rules of Court in any guardianship
proceedings, the venue is at the place where the minor is actually residing.
17

The petition is devoid of merit.
The title alone of the original petition clearly shows that the petition is one which includes
the issuance of letters of administration. The title of said petition reads:
IN RE: PETITION FOR DECLARATION OF HEIRSHIPS, GUARDIANSHIP
OVER THE PERSON AND PROPERTIES OF MINORS ROBERTO ALONZO
AND RUDYARD ALONZO, all surnamed CHUA and ISSUANCE OF LETTERS
OF ADMINISTRATION.
18

Likewise, the prayer of the petition states:
2. That Letters of Administration be issued to herein petition for the
administration of the estate of the deceased ROBERTO LIM CHUA.
The original petition also contains the jurisdictional facts required in a petition for the
issuance of letters of administration. Section 2, Rule 79 of the Rules of Court reads:
Sec. 2. Contents of petition for letters of administration A petition for letters of
administration must be filed by an interested person and must show, so far as
known to the petitioner:
(a) jurisdictional facts;
(b) The names, ages, and residences of the heirs and the names and residences
of the creditors, of the decedent'
(c) The probative value and character of the property of the estate;.
(d) The name of the person for whom letters of administration are prayed;
But no defect in the petition shall render void the issuance of letters of
administration. (emphasis ours).
The jurisdictional facts required in a petition for issuance of letters of administration are:
(1) the death of the testator; (2) residence at the time of death in the province where the
probate court is located; and (3) if the decedent was a non-resident, the fact of being a
resident of a foreign country and that the decedent has left an estate in the province
where the court is sitting.
19

While paragraph 4 of the original petition stating:
(4) That Roberto Lim Chua, father of the above mentioned minors, died intestate
on May 28, 1992 in Davao City.
failed to indicate the residence of the deceased at the time of his death, the omission
was cured by the amended petitions wherein the same paragraph now reads:
(4) That Roberto Lim Chua, father of the abovementioned minors is a resident of
Cotabato City and died intestate on May 28, 1992 at Davao City.
20
(Emphasis in
the original.)
All told the original petition alleged substantially all the facts required to be stated in the
petition for letters of administration. Consequently, there was no need to publish the
amended petition as petitioner would insist in her second assignment of errors.
Be that as it may, petitioner has no legal standing to file the motion to dismiss as she is
not related to the deceased, nor does she have any interest in his estate as creditor or
otherwise. The Rules are explicit on who may do so:
Sec. 4. Opposition to petition for administration Any interested person, may by
filing a written opposition, contest the petition on the ground of incompetency of
the person for whom letters of administration are prayed therein, or on the
ground of the contestant's own right to the administration, and may pray that
letters issue to himself, or to any competent person or persons named in the
opposition..
Only an interested person may oppose the petition for issuance of letters of
administration. An interested person is one who would be benefited by the estate such
as an heir, or one who has a claim against the estate, such as a creditor; his interest is
material and direct, and not one that is only indirect or contingent.
21

Petitioner was not able to prove her status as the surviving wife of the decedent. The
best proof of marriage between man and wife is a marriage contract which Antonietta
Chua failed to produce. The lower court correctly disregarded the photostat copy of the
marriage certificate which she presented, this being a violation of the best evidence rule,
together with other worthless pieces of evidence. The trial court correctly ruled in its 21
August 1992 Order that:
. . . Transfer Certificates of Title, Residence Certificates, passports and other
similar documents cannot prove marriage especially so when the petitioner has
submitted a certification from the Local Civil Registrar concerned that the alleged
marriage was not registered and a letter from the judge alleged to have
solemnized the marriage that he has not solemnized said alleged marriage. . . .
22

Under her third assignment of error, petitioner claims that the trial court issued its orders,
Annexes "P" to "T" without prior hearing or notice to her, thus, depriving her of due
process.
The orders referred to by petitioner are: Order dated 31 August 1992 appointing Romulo
Lim Uy, first cousin of the deceased, as special administrator of the estate; Order dated
31 August 1992 appointing private respondent as guardian over the person and property
of the minors; Order dated 5 August 1993, directing the transfer of the remains of the
deceased from Davao City to Cotabato City; Order dated 6 September 1993 directing
petitioner to turn over a Mitsubishi Gallant car owned by the estate of the deceased to
the special administrator; and Order dated 28 September 1993, authorizing the sheriff to
break open the deceased's house for the purpose of conducting an inventory of the
properties found therein, after the sheriff was refused entry to the house by the driver
and maid of petitioner.
Apart from the fact that petitioner was not entitled to notice of the proceedings of the trial
court, not being able to establish proof of her alleged marriage to the deceased, or of her
interest in the estate as creditor or otherwise, petitioner categorically stated in the instant
petition that on 25 October 1993 she filed a motion praying for the recall of the letters of
administration issued by the trial court and another motion dated 5 August 1993 praying
that the proceedings conducted by the trial court be declared as a mistrial and the court
orders relative thereto be set aside and nullified. Petitioner further stated that her
motions were denied by the trial court in its Order dated 22 November 21, 1993 and that
on 30 November 1993 she filed a motion for reconsideration of the order of denial which
in turn was denied by the trial court on 13 December 1993.
Due process was designed to afford opportunity to be heard, not that an actual hearing
should always and indispensably be held.
23
The essence of due process is simply an
opportunity to be heard.
24
Here, even granting that the petitioner was not notified of the
orders of the trial court marked as Exhibits "P" to "T," inclusive, nonetheless, she was
duly heard in her motions to recall letters of administration and to declare the
proceedings of the court as a "mistrial," which motions were denied in the Order dated
22 November 1993.
25
A motion for the reconsideration of this order of denial was also
duly heard by the trial court but was denied in its Order of 13 December 1993.
26

Denial of due process cannot be successfully invoked by a party who has had the
opportunity to be heard on his motion for reconsideration.
27

As to the last assignment of errors, we agree with the Court of Appeals that the proper
remedy of the petitioner in said court was an ordinary appeal and not a special civil
action for certiorari; which can be availed of if a party has no plain, speedy and adequate
remedy in the ordinary course of law. Except for her bare allegation that an ordinary
appeal would be inadequate, nothing on record would indicate that extraordinary remedy
of certiorari or prohibition is warranted.
Finally, petitioner further argues as supplement to her memorandum that the ruling of the
Court of Appeals treating the Special Proceeding No. 331 as one for both guardianship
and settlement of estate is in contravention of our ruling in Gomez vs. Imperial,
28
which
the petitioner quotes:
The distribution of the residue of the estate of the deceased is a function
pertaining property not to the guardianship proceedings, but to another
proceeding which the heirs are at liberty to initiate.
Petitioner's reliance on said case is misplaced. In the Gomez case, the action before the
lower court was merely one for guardianship. Therefore said court did not have the
jurisdiction to distribute the estate of the deceased. While in the case at bar, the petition
filed before the court was both for guardianship and settlement of estate.
IN VIEW OF THE FOREGOING, the petition of petitioner Antonietta Chua is hereby
denied.
SO ORDERED.
Narvasa, C.J., Romero and Purisima, JJ., concur.
DIGEST
Facts:
Roberto Chua was the common-law husband of Florita A. Vallejo and had two
illegitimate sons with her. On May 28, 1992, Roberto Chua died intestate in Davao City.
Upon the death of Roberto, Vallejo filed with the Regional Trial Court of Cotabato City a
petition for the guardianship and administration over the persons and properties of the
two minors. Herein petitioner filed for its dismissal, claiming that she was the sole
surviving heir of the decedent being his wife; and that the decedent was a resident of
Davao City and not Cotabato City, which means that the said court was not the proper
forum to settle said matters. The petitioner failed to submit the original copy of the
marriage contract and the evidences that she used were: a photocopy of said marriage
contract, Transfer Certificate of Title issued in the name of Roberto L. Chua married to
Antonietta Garcia, and a resident of DavaoCity; Residence Certificates from 1988 and
1989 issued at Davao City indicating that he was married and was born in Cotabato City;
Income Tax Returns for 1990 and 1991 filed in Davao City where the status of the
decedent was stated as married; passport of the decedent specifying that he was
married and his residence was Davao City.
The trial court ruled that she failed to establish the validity of marriage, and even denied
her petition. This was later appealed to the appellate court, but it decided infavor of
herein respondents.

Issue:
Whether or not the trial and appellate court is correct on their ruling on the validity of the
marriage of Antonietta Garcia to Roberto Chua.

Ruling:
The Supreme Court held that the lower court and the appellate court are correct in
holding that petitioner herein failed to establish the truth of her allegation that she was
the lawful wife of the decedent. The best evidence is a valid marriage contract which the
petitioner failed to produce. Transfer Certificates of Title, Residence Certificates,
passports and other similar documents cannot prove marriage especially so when the
petitioner has submitted a certification from the Local Civil Registrar concerned that the
alleged marriage was not registered and a letter from the judge alleged to have
solemnized the marriage that he has not solemnized said alleged marriage.

The lower court correctly disregarded the Photostat copy of the marriage certificate
which she presented, this being a violation of the best evidence rule, together with other
worthless pieces of evidence. A valid, original marriage contract would be the best
evidence that the petitioner should have presented. Failure to present it as evidence
would make the marriage dubious.


Article 25
Republic vs. CA and Castro (G.R. No. 103047, 12 September 1994)
G.R. No. 103047 September 2, 1994
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS AND ANGELINA M. CASTRO, respondents.
Parungao, Abesamis, Eleazar & Pulgar Law Offices for private respondent.

PUNO, J .:
The case at bench originated from a petition filed by private respondent Angelina M.
Castro in the Regional Trial Court of Quezon City seeking a judicial declaration of nullity
of her marriage to Edwin F. Cardenas.
1
As ground therefor, Castro claims that no
marriage license was ever issued to them prior to the solemnization of their marriage.
Despite notice, defendant Edwin F. Cardenas failed to file his answer. Consequently, he
was declared in default. Trial proceeded in his absence.
The controlling facts are undisputed:
On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were married in a civil
ceremony performed by Judge Pablo M. Malvar, City Court Judge of Pasay City. The
marriage was celebrated without the knowledge of Castro's parents. Defendant
Cardenas personally attended to the processing of the documents required for the
celebration of the marriage, including the procurement of the marriage, license. In fact,
the marriage contract itself states that marriage license no. 3196182 was issued in the
name of the contracting parties on June 24, 1970 in Pasig, Metro Manila.
The couple did not immediately live together as husband and wife since the marriage
was unknown to Castro's parents. Thus, it was only in March 1971, when Castro
discovered she was pregnant, that the couple decided to live together. However, their
cohabitation lasted only for four (4) months. Thereafter, the couple parted ways. On
October 19, 1971, Castro gave birth. The baby was adopted by Castro's brother, with the
consent of Cardenas.
The baby is now in the United States. Desiring to follow her daughter, Castro wanted to
put in order her marital status before leaving for the States. She thus consulted a lawyer,
Atty. Frumencio E. Pulgar, regarding the possible annulment of her marriage. Through
her lawyer's efforts, they discovered that there was no marriage license issued to
Cardenas prior to the celebration of their marriage.
As proof, Angelina Castro offered in evidence a certification from the Civil Register of
Pasig, Metro Manila. It reads:
February 20, 1987
TO WHOM IT MAY CONCERN:
This is to certify that the names EDWIN F. CARDENAS and ANGELINA
M. CASTRO who were allegedly married in the Pasay City Court on June
21, 1970 under an alleged (s)upportive marriage license
no. 3196182 allegedly issued in the municipality on June 20, 1970 cannot
be located as said license no. 3196182 does not appear from our records.
Issued upon request of Mr. Ed Atanacio.
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Castro testified that she did not go to the civil registrar of Pasig on or before June 24,
1970 in order to apply for a license. Neither did she sign any application therefor. She
affixed her signature only on the marriage contract on June 24, 1970 in Pasay City.
The trial court denied the petition.
2
It held that the above certification was inadequate to
establish the alleged non-issuance of a marriage license prior to the celebration of the
marriage between the parties. It ruled that the "inability of the certifying official to locate
the marriage license is not conclusive to show that there was no marriage license
issued."
Unsatisfied with the decision, Castro appealed to respondent appellate court. She
insisted that the certification from the local civil registrar sufficiently established the
absence of a marriage license.
As stated earlier, respondent appellate court reversed the Decision of the trial court.
3
It
declared the marriage between the contracting parties null and void and directed the
Civil Registrar of Pasig to cancel the subject marriage contract.
Hence this petition for review on certiorari.
Petitioner Republic of the Philippines urges that respondent appellate court erred when it
ruled that the certification issued by the civil registrar that marriage license no. 3196182
was not in their record adequately proved that no such license was ever issued.
Petitioner also faults the respondent court for relying on the self-serving and
uncorroborated testimony of private respondent Castro that she had no part in the
procurement of the subject marriage license. Petitioner thus insists that the certification
and the uncorroborated testimony of private respondent are insufficient to overthrow the
legal presumption regarding the validity of a marriage.
Petitioner also points that in declaring the marriage between the parties as null and void,
respondent appellate court disregarded the presumption that the solemnizing officer,
Judge Pablo M. Malvar, regularly performed his duties when he attested in the marriage
contract that marriage license no. 3196182 was duly presented to him before the
solemnization of the subject marriage.
The issues, being interrelated, shall be discussed jointly.
The core issue presented by the case at bench is whether or not the documentary and
testimonial evidence presented by private respondent are sufficient to establish that no
marriage license was issued by the Civil Registrar of Pasig prior to the celebration of the
marriage of private respondent to Edwin F. Cardenas.
We affirm the impugned Decision.
At the time the subject marriage was solemnized on June 24, 1970, the law governing
marital relations was the New Civil Code. The law
4
provides that no marriage shall be
solemnized without a marriage license first issued by a local civil registrar. Being one of
the essential requisites of a valid marriage, absence of a license would render the
marriage voidab initio.
5

Petitioner posits that the certification of the local civil registrar of due search and inability
to find a record or entry to the effect that marriage license no. 3196182 was issued to the
parties is not adequate to prove its non-issuance.
We hold otherwise. The presentation of such certification in court is sanctioned by
Section 29, Rule 132 of the Rules of Court, viz.:
Sec. 29. Proof of lack of record. A written statement signed by an
officer having custody of an official record or by his deputy, that after
diligent search, no record or entry of a specified tenor is found to exist in
the records of his office, accompanied by a certificate as above provided,
is admissible as evidence that the records of his office contain no such
record or entry.
The above Rule authorized the custodian of documents to certify that despite diligent
search, a particular document does not exist in his office or that a particular entry of a
specified tenor was not to be found in a register. As custodians of public documents, civil
registrars are public officers charged with the duty, inter alia, of maintaining a register
book where they are required to enter all applications for marriage licenses, including the
names of the applicants, the date the marriage license was issued and such other
relevant data.
6

The certification of "due search and inability to find" issued by the civil registrar of Pasig
enjoys probative value, he being the officer charged under the law to keep a record of all
data relative to the issuance of a marriage license. Unaccompanied by any circumstance
of suspicion and pursuant to Section 29, Rule 132 of the Rules of Court, a certificate of
"due search and inability to find" sufficiently proved that his office did not issue marriage
license no. 3196182 to the contracting parties.
The fact that private respondent Castro offered only her testimony in support of her
petition is, in itself, not a ground to deny her petition. The failure to offer any other
witness to corroborate her testimony is mainly due to the peculiar circumstances of the
case. It will be remembered that the subject marriage was a civil ceremony performed by
a judge of a city court. The subject marriage is one of those commonly known as a
"secret marriage" a legally non-existent phrase but ordinarily used to refer to a civil
marriage celebrated without the knowledge of the relatives and/or friends of either or
both of the contracting parties. The records show that the marriage between Castro and
Cardenas was initially unknown to the parents of the former.
Surely, the fact that only private respondent Castro testified during the trial cannot be
held against her. Her husband, Edwin F. Cardenas, was duly served with notice of the
proceedings and a copy of the petition. Despite receipt thereof, he chose to ignore the
same. For failure to answer, he was properly declared in default. Private respondent
cannot be faulted for her husband's lack of interest to participate in the proceedings.
There was absolutely no evidence on record to show that there was collusion between
private respondent and her husband Cardenas.
It is noteworthy to mention that the finding of the appellate court that the marriage
between the contracting parties is null and void for lack of a marriage license does not
discount the fact that indeed, a spurious marriage license, purporting to be issued by the
civil registrar of Pasig, may have been presented by Cardenas to the solemnizing officer.
In fine, we hold that, under the circumstances of the case, the documentary and
testimonial evidence presented by private respondent Castro sufficiently established the
absence of the subject marriage license.
IN VIEW WHEREOF, the petition is DENIED there being no showing of any reversible
error committed by respondent appellate court.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.

DIGEST
FACTS:

Angelina Castro, with her parents unaware, contracted a civil marriage with Edwin
Cardenas. They did not immediately live together and it was only upon Castro found out
that she was pregnant that they decided to live together wherein the said cohabitation
lasted for only 4 months. Thereafter, they parted ways and Castro gave birth that was
adopted by her brother with the consent of Cardenas.

The baby was brought in the US and in Castros earnest desire to follow her daughter
wanted to put in order her marital status before leaving for US. She filed a petition
seeking a declaration for the nullity of her marriage. Her lawyer then found out that there
was no marriage license issued prior to the celebration of their marriage proven by the
certification issued by the Civil Registrar of Pasig.

ISSUE: Whether or not the documentary and testimonial evidence resorted to by Castro
is sufficient to establish that no marriage license was issued to the parties prior to the
solemnization of their marriage.

HELD:

The court affirmed the decision of CA that the certification issued by the Civil Registrar
unaccompanied by any circumstances of suspicion sufficiently prove that the office did
not issue a marriage license to the contracting parties. Albeit the fact that the testimony
of Castro is not supported by any other witnesses is not a ground to deny her petition
because of the peculiar circumstances of her case. Furthermore, Cardenas was duly
served with notice of the proceedings, which he chose to ignore.

Under the circumstances of the case, the documentary and testimonial evidence
presented by private respondent Castro sufficiently established the absence of the
subject marriage license.


Article 26
Garcia vs. Recio
[G.R. No. 138322. October 2, 2001]
GRACE J. GARCIA, a.k.a. GRACE J. GARCIA-RECIO, petitioner, vs. REDERICK A.
RECIO, respondent.
D E C I S I O N
PANGANIBAN, J .:
A divorce obtained abroad by an alien may be recognized in our jurisdiction,
provided such decree is valid according to the national law of the foreigner. However,
the divorce decree and the governing personal law of the alien spouse who obtained the
divorce must be proven. Our courts do not take judicial notice of foreign laws and
judgments; hence, like any other facts, both the divorce decree and the national law of
the alien must be alleged and proven according to our law on evidence.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to
nullify the January 7, 1999 Decision
[1]
and the March 24, 1999 Order
[2]
of the Regional
Trial Court of Cabanatuan City, Branch 28, in Civil Case No. 3026AF. The assailed
Decision disposed as follows:
WHEREFORE, this Court declares the marriage between Grace J. Garcia and Rederick
A. Recio solemnized on January 12, 1994 at Cabanatuan City as dissolved and both
parties can now remarry under existing and applicable laws to any and/or both parties.
[3]

The assailed Order denied reconsideration of the above-quoted Decision.
The Facts
Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian citizen,
in Malabon, Rizal, on March 1, 1987.
[4]
They lived together as husband and wife in
Australia. On May 18, 1989,
[5]
a decree of divorce, purportedly dissolving the marriage,
was issued by an Australian family court.
On June 26, 1992, respondent became an Australian citizen, as shown by a
Certificate of Australian Citizenship issued by the Australian government.
[6]
Petitioner --
a Filipina -- and respondent were married on January 12, 1994 in Our Lady of Perpetual
Help Church in Cabanatuan City.
[7]
In their application for a marriage license, respondent
was declared as single and Filipino.
[8]

Starting October 22, 1995, petitioner and respondent lived separately without prior
judicial dissolution of their marriage. While the two were still in Australia, their conjugal
assets were divided on May 16, 1996, in accordance with their Statutory Declarations
secured in Australia.
[9]

On March 3, 1998, petitioner filed a Complaint for Declaration of Nullity of
Marriage
[10]
in the court a quo, on the ground of bigamy -- respondent allegedly had a
prior subsisting marriage at the time he married her on January 12, 1994. She claimed
that she learned of respondents marriage to Editha Samson only in November, 1997.
In his Answer, respondent averred that, as far back as 1993, he had revealed to
petitioner his prior marriage and its subsequent dissolution.
[11]
He contended that his first
marriage to an Australian citizen had been validly dissolved by a divorce decree
obtained in Australia in 1989;
[12]
thus, he was legally capacitated to marry petitioner in
1994.
On July 7, 1998 -- or about five years after the couples wedding and while the suit
for the declaration of nullity was pending -- respondent was able to secure a divorce
decree from a family court in Sydney, Australia because the marriage ha[d] irretrievably
broken down.
[13]

Respondent prayed in his Answer that the Complaint be dismissed on the ground
that it stated no cause of action.
[14]
The Office of the Solicitor General agreed with
respondent.
[15]
The court marked and admitted the documentary evidence of both
parties.
[16]
After they submitted their respective memoranda, the case was submitted for
resolution.
[17]

Thereafter, the trial court rendered the assailed Decision and Order.
Ruling of the Trial Court
The trial court declared the marriage dissolved on the ground that the divorce issued
in Australia was valid and recognized in the Philippines. It deemed the marriage ended,
but not on the basis of any defect in an essential element of the marriage; that
is, respondents alleged lack of legal capacity to remarry. Rather, it based its Decision
on the divorce decree obtained by respondent. The Australian divorce had ended the
marriage; thus, there was no more marital union to nullify or annul.
Hence, this Petition.
[18]

Issues
Petitioner submits the following issues for our consideration:
1
The trial court gravely erred in finding that the divorce decree obtained in Australia by
the respondent ipso facto terminated his first marriage to Editha Samson thereby
capacitating him to contract a second marriage with the petitioner.
2
The failure of the respondent, who is now a naturalized Australian, to present a
certificate of legal capacity to marry constitutes absence of a substantial requisite
voiding the petitioners marriage to the respondent
3
The trial court seriously erred in the application of Art. 26 of the Family Code in this
case.
4
The trial court patently and grievously erred in disregarding Arts. 11, 13, 21, 35, 40, 52
and 53 of the Family Code as the applicable provisions in this case.
5
The trial court gravely erred in pronouncing that the divorce decree obtained by the
respondent in Australia ipso facto capacitated the parties to remarry, without first
securing a recognition of the judgment granting the divorce decree before our courts.
[19]

The Petition raises five issues, but for purposes of this Decision, we shall
concentrate on two pivotal ones: (1) whether the divorce between respondent and Editha
Samson was proven, and (2) whether respondent was proven to be legally capacitated
to marry petitioner. Because of our ruling on these two, there is no more necessity to
take up the rest.
The Courts Ruling
The Petition is partly meritorious.
First Issue:
Proving the Divorce Between Respondent and Editha Samson
Petitioner assails the trial courts recognition of the divorce between respondent and
Editha Samson. Citing Adong v. Cheong Seng Gee,
[20]
petitioner argues that the divorce
decree, like any other foreign judgment, may be given recognition in this jurisdiction only
upon proof of the existence of (1) the foreign law allowing absolute divorce and (2) the
alleged divorce decree itself. She adds that respondent miserably failed to establish
these elements.
Petitioner adds that, based on the first paragraph of Article 26 of the Family Code,
marriages solemnized abroad are governed by the law of the place where they were
celebrated (the lex loci celebrationis). In effect, the Code requires the presentation of
the foreign law to show the conformity of the marriage in question to the legal
requirements of the place where the marriage was performed.
At the outset, we lay the following basic legal principles as the take-off points for our
discussion. Philippine law does not provide for absolute divorce; hence, our courts
cannot grant it.
[21]
A marriage between two Filipinos cannot be dissolved even by a
divorce obtained abroad, because of Articles 15
[22]
and 17
[23]
of the Civil Code.
[24]
In
mixed marriages involving a Filipino and a foreigner, Article 26
[25]
of the Family Code
allows the former to contract a subsequent marriage in case the divorce is validly
obtained abroad by the alien spouse capacitating him or her to remarry.
[26]
A divorce
obtained abroad by a couple, who are both aliens, may be recognized in the Philippines,
provided it is consistent with their respective national laws.
[27]

A comparison between marriage and divorce, as far as pleading and proof are
concerned, can be made. Van Dorn v. Romillo Jr. decrees that aliens may obtain
divorces abroad, which may be recognized in the Philippines, provided they are valid
according to their national law.
[28]
Therefore, before a foreign divorce decree can be
recognized by our courts, the party pleading it must prove the divorce as a fact and
demonstrate its conformity to the foreign law allowing it.
[29]
Presentation solely of the
divorce decree is insufficient.
Divorce as a Question of Fact
Petitioner insists that before a divorce decree can be admitted in evidence, it must
first comply with the registration requirements under Articles 11, 13 and 52 of the Family
Code. These articles read as follows:
ART. 11. Where a marriage license is required, each of the contracting parties shall file
separately a sworn application for such license with the proper local civil registrar which
shall specify the following:
x x x x x x x x x
(5) If previously married, how, when and where the previous marriage was
dissolved or annulled;
x x x x x x x x x
ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to
ART. 13. In case either of the contracting parties has been previously married, the
applicant shall be required to furnish, instead of the birth or baptismal certificate required
in the last preceding article, the death certificate of the deceased spouse or the judicial
decree of the absolute divorce, or the judicial decree of annulment or declaration of
nullity of his or her previous marriage. x x x.
ART. 52. The judgment of annulment or of absolute nullity of the marriage, the partition
and distribution of the properties of the spouses, and the delivery of the childrens
presumptive legitimes shall be recorded in the appropriate civil registry and registries of
property; otherwise, the same shall not affect their persons.
Respondent, on the other hand, argues that the Australian divorce decree is a public
document -- a written official act of an Australian family court. Therefore, it requires no
further proof of its authenticity and due execution.
Respondent is getting ahead of himself. Before a foreign judgment is given
presumptive evidentiary value, the document must first be presented and admitted in
evidence.
[30]
A divorce obtained abroad is proven by the divorce decree itself. Indeed
the best evidence of a judgment is the judgment itself.
[31]
The decree purports to be a
written act or record of an act of an official body or tribunal of a foreign country.
[32]

Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document
may be proven as a public or official record of a foreign country by either (1) an official
publication or (2) a copy thereof attested
[33]
by the officer having legal custody of the
document. If the record is not kept in the Philippines, such copy must be (a)
accompanied by a certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the record is kept and
(b) authenticated by the seal of his office.
[34]

The divorce decree between respondent and Editha Samson appears to be an
authentic one issued by an Australian family court.
[35]
However, appearance is not
sufficient; compliance with the aforementioned rules on evidence must be demonstrated.
Fortunately for respondents cause, when the divorce decree of May 18, 1989 was
submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to
the fact that it had not been registered in the Local Civil Registry of Cabanatuan
City.
[36]
The trial court ruled that it was admissible, subject to petitioners
qualification.
[37]
Hence, it was admitted in evidence and accorded weight by the
judge. Indeed, petitioners failure to object properly rendered the divorce decree
admissible as a written act of the Family Court of Sydney, Australia.
[38]

Compliance with the quoted articles (11, 13 and 52) of the Family Code is not
necessary; respondent was no longer bound by Philippine personal laws after he
acquired Australian citizenship in 1992.
[39]
Naturalization is the legal act of adopting an
alien and clothing him with the political and civil rights belonging to a
citizen.
[40]
Naturalized citizens, freed from the protective cloak of their former states, don
the attires of their adoptive countries. By becoming an Australian, respondent severed
his allegiance to the Philippines and the vinculum juris that had tied him to Philippine
personal laws.
Burden of Proving Australian Law
Respondent contends that the burden to prove Australian divorce law falls upon
petitioner, because she is the party challenging the validity of a foreign judgment. He
contends that petitioner was satisfied with the original of the divorce decree and was
cognizant of the marital laws of Australia, because she had lived and worked in that
country for quite a long time. Besides, the Australian divorce law is allegedly known by
Philippine courts; thus, judges may take judicial notice of foreign laws in the exercise of
sound discretion.
We are not persuaded. The burden of proof lies with the party who alleges the
existence of a fact or thing necessary in the prosecution or defense of an action.
[41]
In
civil cases, plaintiffs have the burden of proving the material allegations of the complaint
when those are denied by the answer; and defendants have the burden of proving the
material allegations in their answer when they introduce new matters.
[42]
Since the
divorce was a defense raised by respondent, the burden of proving the pertinent
Australian law validating it falls squarely upon him.
It is well-settled in our jurisdiction that our courts cannot take judicial notice of
foreign laws.
[43]
Like any other facts, they must be alleged and proved. Australian marital
laws are not among those matters that judges are supposed to know by reason of their
judicial function.
[44]
The power of judicial notice must be exercised with caution, and
every reasonable doubt upon the subject should be resolved in the negative.
Second Issue: Respondents Legal Capacity to Remarry
Petitioner contends that, in view of the insufficient proof of the divorce, respondent
was legally incapacitated to marry her in 1994. Hence, she concludes that their
marriage was void ab initio.
Respondent replies that the Australian divorce decree, which was validly admitted in
evidence, adequately established his legal capacity to marry under Australian law.
Respondents contention is untenable. In its strict legal sense, divorce means the
legal dissolution of a lawful union for a cause arising after marriage. But divorces are of
different types. The two basic ones are (1) absolute divorce or a vinculo matrimonii and
(2) limited divorce or a mensa et thoro. The first kind terminates the marriage, while the
second suspends it and leaves the bond in full force.
[45]
There is no showing in the case
at bar which type of divorce was procured by respondent.
Respondent presented a decree nisi or an interlocutory decree -- a conditional or
provisional judgment of divorce. It is in effect the same as a separation from bed and
board, although an absolute divorce may follow after the lapse of the prescribed period
during which no reconciliation is effected.
[46]

Even after the divorce becomes absolute, the court may under some foreign
statutes and practices, still restrict remarriage. Under some other jurisdictions,
remarriage may be limited by statute; thus, the guilty party in a divorce which was
granted on the ground of adultery may be prohibited from marrying again. The court
may allow a remarriage only after proof of good behavior.
[47]

On its face, the herein Australian divorce decree contains a restriction that reads:
1. A party to a marriage who marries again before this decree
becomes absolute (unless the other party has died) commits the offence of
bigamy.
[48]

This quotation bolsters our contention that the divorce obtained by respondent may
have been restricted. It did not absolutely establish his legal capacity to remarry
according to his national law. Hence, we find no basis for the ruling of the trial court,
which erroneously assumed that the Australian divorce ipso facto restored respondents
capacity to remarry despite the paucity of evidence on this matter.
We also reject the claim of respondent that the divorce decree raises a disputable
presumption or presumptive evidence as to his civil status based on Section 48, Rule
39
[49]
of the Rules of Court, for the simple reason that no proof has been presented on
the legal effects of the divorce decree obtained under Australian laws.
Significance of the Certificate of Legal Capacity
Petitioner argues that the certificate of legal capacity required by Article 21 of the
Family Code was not submitted together with the application for a marriage
license. According to her, its absence is proof that respondent did not have legal
capacity to remarry.
We clarify. To repeat, the legal capacity to contract marriage is determined by the
national law of the party concerned. The certificate mentioned in Article 21 of the Family
Code would have been sufficient to establish the legal capacity of respondent, had he
duly presented it in court. A duly authenticated and admitted certificate is prima facie
evidence of legal capacity to marry on the part of the alien applicant for a marriage
license.
[50]

As it is, however, there is absolutely no evidence that proves respondents legal
capacity to marry petitioner. A review of the records before this Court shows that only
the following exhibits were presented before the lower court: (1) for petitioner: (a) Exhibit
A Complaint;
[51]
(b) Exhibit B Certificate of Marriage Between Rederick A. Recio
(Filipino-Australian) and Grace J. Garcia (Filipino) on January 12, 1994 in Cabanatuan
City, Nueva Ecija;
[52]
(c) Exhibit C Certificate of Marriage Between Rederick A. Recio
(Filipino) and Editha D. Samson (Australian) on March 1, 1987 in Malabon, Metro
Manila;
[53]
(d) Exhibit D Office of the City Registrar of Cabanatuan City Certification
that no information of annulment between Rederick A. Recio and Editha D. Samson was
in its records;
[54]
and (e) Exhibit E Certificate of Australian Citizenship of Rederick A.
Recio;
[55]
(2) for respondent: (a) Exhibit 1 -- Amended Answer;
[56]
(b) Exhibit 2
Family Law Act 1975 Decree Nisi of Dissolution of Marriage in the Family Court of
Australia;
[57]
(c) Exhibit 3 Certificate of Australian Citizenship of Rederick A.
Recio;
[58]
(d) Exhibit 4 Decree Nisi of Dissolution of Marriage in the Family Court of
Australia Certificate;
[59]
and Exhibit 5 -- Statutory Declaration of the Legal Separation
Between Rederick A. Recio and Grace J. Garcia Recio since October 22, 1995.
[60]

Based on the above records, we cannot conclude that respondent, who was then a
naturalized Australian citizen, was legally capacitated to marry petitioner on January 12,
1994. We agree with petitioners contention that the court a quo erred in finding that the
divorce decree ipso facto clothed respondent with the legal capacity to remarry without
requiring him to adduce sufficient evidence to show the Australian personal law
governing his status; or at the very least, to prove his legal capacity to contract the
second marriage.
Neither can we grant petitioners prayer to declare her marriage to respondent null
and void on the ground of bigamy. After all, it may turn out that under Australian law, he
was really capacitated to marry petitioner as a direct result of the divorce
decree. Hence, we believe that the most judicious course is to remand this case to the
trial court to receive evidence, if any, which show petitioners legal capacity to marry
petitioner. Failing in that, then the court a quo may declare a nullity of the parties
marriage on the ground of bigamy, there being already in evidence two existing marriage
certificates, which were both obtained in the Philippines, one in Malabon, Metro Manila
dated March 1, 1987 and the other, in Cabanatuan City dated January 12, 1994.
WHEREFORE, in the interest of orderly procedure and substantial justice,
we REMAND the case to the court a quo for the purpose of receiving evidence which
conclusively show respondents legal capacity to marry petitioner; and failing in that, of
declaring the parties marriage void on the ground of bigamy, as above discussed. No
costs.
SO ORDERED.
Melo, (Chairman), Vitug, and Sandoval-Gutierrez, JJ., concur.



DIGEST
FACTS:

Rederick A. Recio, a Filipino, was married to Editha Samson, an Australian Citizen, in
Malabon, Rizal on March 1, 1987. They lived as husband and wife in Australia.
However, an Australian family court issued purportedly a decree of divorce, dissolving
the marriage of Rederick and Editha on May 18, 1989.

On January 12, 1994, Rederick married Grace J. Garcia where it was solemnized at Our
lady of Perpetual Help Church, Cabanatuan City. Since October 22, 1995, the couple
lived separately without prior judicial dissolution of their marriage. As a matter of fact,
while they were still in Australia, their conjugal assets were divided on May 16, 1996, in
accordance with their Statutory Declarations secured in Australia.

Grace filed a Complaint for Declaration of Nullity of Marriage on the ground of bigamy on
March 3, 1998, claiming that she learned only in November 1997, Redericks marriage
with Editha Samson.


ISSUE: Whether the decree of divorce submitted by Rederick Recio is admissible as
evidence to prove his legal capacity to marry petitioner and absolved him of bigamy.


HELD:

The nullity of Redericks marriage with Editha as shown by the divorce decree issued
was valid and recognized in the Philippines since the respondent is a naturalized
Australian. However, there is absolutely no evidence that proves respondents legal
capacity to marry petitioner though the former presented a divorce decree. The said
decree, being a foreign document was inadmissible to court as evidence primarily
because it was not authenticated by the consul/ embassy of the country where it will be
used.

Under Sections 24 and 25 of Rule 132, a writing or document may be proven as a public
or official record of a foreign country by either:
(1) an official publication or
(2) a copy thereof attested by the officer having legal custody of the document. If the
record is not kept in the Philippines, such copy must be:
(a) accompanied by a certificate issued by the proper diplomatic or consular officer in the
Philippine foreign service stationed in the foreign country in which the record is kept and
(b) authenticated by the seal of his office.
Thus, the Supreme Court remands the case to the Regional Trial Court of Cabanatuan
City to receive or trial evidence that will conclusively prove respondents legal capacity to
marry petitioner and thus free him on the ground of bigamy.

Pilapil vs. Ibay-Somera
G.R. No. 80116 June 30, 1989
IMELDA MANALAYSAY PILAPIL, petitioner,
vs.
HON. CORONA IBAY-SOMERA, in her capacity as Presiding Judge of the Regional
Trial Court of Manila, Branch XXVI; HON. LUIS C. VICTOR, in his capacity as the
City Fiscal of Manila; and ERICH EKKEHARD GEILING, respondents.

REGALADO, J .:
An ill-starred marriage of a Filipina and a foreigner which ended in a foreign absolute
divorce, only to be followed by a criminal infidelity suit of the latter against the former,
provides Us the opportunity to lay down a decisional rule on what hitherto appears to be
an unresolved jurisdictional question.
On September 7, 1979, petitioner Imelda Manalaysay Pilapil, a Filipino citizen, and
private respondent Erich Ekkehard Geiling, a German national, were married before the
Registrar of Births, Marriages and Deaths at Friedensweiler in the Federal Republic of
Germany. The marriage started auspiciously enough, and the couple lived together for
some time in Malate, Manila where their only child, Isabella Pilapil Geiling, was born on
April 20, 1980.
1

Thereafter, marital discord set in, with mutual recriminations between the spouses,
followed by a separation de facto between them.
After about three and a half years of marriage, such connubial disharmony eventuated in
private respondent initiating a divorce proceeding against petitioner in Germany before
the Schoneberg Local Court in January, 1983. He claimed that there was failure of their
marriage and that they had been living apart since April, 1982.
2

Petitioner, on the other hand, filed an action for legal separation, support and separation
of property before the Regional Trial Court of Manila, Branch XXXII, on January 23,
1983 where the same is still pending as Civil Case No. 83-15866.
3

On January 15, 1986, Division 20 of the Schoneberg Local Court, Federal Republic of
Germany, promulgated a decree of divorce on the ground of failure of marriage of the
spouses. The custody of the child was granted to petitioner. The records show that
under German law said court was locally and internationally competent for the divorce
proceeding and that the dissolution of said marriage was legally founded on and
authorized by the applicable law of that foreign jurisdiction.
4

On June 27, 1986, or more than five months after the issuance of the divorce decree,
private respondent filed two complaints for adultery before the City Fiscal of Manila
alleging that, while still married to said respondent, petitioner "had an affair with a certain
William Chia as early as 1982 and with yet another man named Jesus Chua sometime in
1983". Assistant Fiscal Jacinto A. de los Reyes, Jr., after the corresponding
investigation, recommended the dismissal of the cases on the ground of insufficiency of
evidence.
5
However, upon review, the respondent city fiscal approved a resolution,
dated January 8, 1986, directing the filing of two complaints for adultery against the
petitioner.
6
The complaints were accordingly filed and were eventually raffled to two
branches of the Regional Trial Court of Manila. The case entitled "People of the
Philippines vs. Imelda Pilapil and William Chia", docketed as Criminal Case No. 87-
52435, was assigned to Branch XXVI presided by the respondent judge; while the other
case, "People of the Philippines vs. Imelda Pilapil and James Chua", docketed as
Criminal Case No. 87-52434 went to the sala of Judge Leonardo Cruz, Branch XXV, of
the same court.
7

On March 14, 1987, petitioner filed a petition with the Secretary of Justice asking that the
aforesaid resolution of respondent fiscal be set aside and the cases against her be
dismissed.
8
A similar petition was filed by James Chua, her co-accused in Criminal
Case No. 87-52434. The Secretary of Justice, through the Chief State Prosecutor, gave
due course to both petitions and directed the respondent city fiscal to inform the
Department of Justice "if the accused have already been arraigned and if not yet
arraigned, to move to defer further proceedings" and to elevate the entire records of both
cases to his office for review.
9

Petitioner thereafter filed a motion in both criminal cases to defer her arraignment and to
suspend further proceedings thereon.
10
As a consequence, Judge Leonardo Cruz
suspended proceedings in Criminal Case No. 87-52434. On the other hand, respondent
judge merely reset the date of the arraignment in Criminal Case No. 87-52435 to April 6,
1987. Before such scheduled date, petitioner moved for the cancellation of the
arraignment and for the suspension of proceedings in said Criminal Case No. 87-52435
until after the resolution of the petition for review then pending before the Secretary of
Justice.
11
A motion to quash was also filed in the same case on the ground of lack of
jurisdiction,
12
which motion was denied by the respondent judge in an order dated
September 8, 1987. The same order also directed the arraignment of both accused
therein, that is, petitioner and William Chia. The latter entered a plea of not guilty while
the petitioner refused to be arraigned. Such refusal of the petitioner being considered by
respondent judge as direct contempt, she and her counsel were fined and the former
was ordered detained until she submitted herself for arraignment.
13
Later, private
respondent entered a plea of not guilty.
14

On October 27, 1987, petitioner filed this special civil action for certiorari and prohibition,
with a prayer for a temporary restraining order, seeking the annulment of the order of the
lower court denying her motion to quash. The petition is anchored on the main ground
that the court is without jurisdiction "to try and decide the charge of adultery, which is a
private offense that cannot be prosecuted de officio (sic), since the purported
complainant, a foreigner, does not qualify as an offended spouse having obtained a final
divorce decree under his national law prior to his filing the criminal complaint."
15

On October 21, 1987, this Court issued a temporary restraining order enjoining the
respondents from implementing the aforesaid order of September 8, 1987 and from
further proceeding with Criminal Case No. 87-52435. Subsequently, on March 23, 1988
Secretary of Justice Sedfrey A. Ordoez acted on the aforesaid petitions for review and,
upholding petitioner's ratiocinations, issued a resolution directing the respondent city
fiscal to move for the dismissal of the complaints against the petitioner.
16

We find this petition meritorious. The writs prayed for shall accordingly issue.
Under Article 344 of the Revised Penal Code,
17
the crime of adultery, as well as four
other crimes against chastity, cannot be prosecuted except upon a sworn written
complaint filed by the offended spouse. It has long since been established, with
unwavering consistency, that compliance with this rule is a jurisdictional, and not merely
a formal, requirement.
18
While in point of strict law the jurisdiction of the court over the
offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint
is just as jurisdictional a mandate since it is that complaint which starts the prosecutory
proceeding
19
and without which the court cannot exercise its jurisdiction to try the case.
Now, the law specifically provides that in prosecutions for adultery and concubinage the
person who can legally file the complaint should be the offended spouse, and nobody
else. Unlike the offenses of seduction, abduction, rape and acts of lasciviousness, no
provision is made for the prosecution of the crimes of adultery and concubinage by the
parents, grandparents or guardian of the offended party. The so-called exclusive and
successive rule in the prosecution of the first four offenses above mentioned do not
apply to adultery and concubinage. It is significant that while the State, as parens
patriae, was added and vested by the 1985 Rules of Criminal Procedure with the power
to initiate the criminal action for a deceased or incapacitated victim in the aforesaid
offenses of seduction, abduction, rape and acts of lasciviousness, in default of her
parents, grandparents or guardian, such amendment did not include the crimes of
adultery and concubinage. In other words, only the offended spouse, and no other, is
authorized by law to initiate the action therefor.
Corollary to such exclusive grant of power to the offended spouse to institute the action,
it necessarily follows that such initiator must have the status, capacity or legal
representation to do so at the time of the filing of the criminal action. This is a familiar
and express rule in civil actions; in fact, lack of legal capacity to sue, as a ground for a
motion to dismiss in civil cases, is determined as of the filing of the complaint or petition.
The absence of an equivalent explicit rule in the prosecution of criminal cases does not
mean that the same requirement and rationale would not apply. Understandably, it may
not have been found necessary since criminal actions are generally and fundamentally
commenced by the State, through the People of the Philippines, the offended party
being merely the complaining witness therein. However, in the so-called "private crimes"
or those which cannot be prosecuted de oficio, and the present prosecution for adultery
is of such genre, the offended spouse assumes a more predominant role since the right
to commence the action, or to refrain therefrom, is a matter exclusively within his power
and option.
This policy was adopted out of consideration for the aggrieved party who might prefer to
suffer the outrage in silence rather than go through the scandal of a public
trial.
20
Hence, as cogently argued by petitioner, Article 344 of the Revised Penal Code
thus presupposes that the marital relationship is still subsisting at the time of the
institution of the criminal action for, adultery. This is a logical consequence since
the raison d'etre of said provision of law would be absent where the supposed offended
party had ceased to be the spouse of the alleged offender at the time of the filing of the
criminal case.
21

In these cases, therefore, it is indispensable that the status and capacity of the
complainant to commence the action be definitely established and, as already
demonstrated, such status or capacity must indubitably exist as of the time he initiates
the action. It would be absurd if his capacity to bring the action would be determined by
his status before or subsequent to the commencement thereof, where such capacity or
status existed prior to but ceased before, or was acquired subsequent to but did not exist
at the time of, the institution of the case. We would thereby have the anomalous
spectacle of a party bringing suit at the very time when he is without the legal capacity to
do so.
To repeat, there does not appear to be any local precedential jurisprudence on the
specific issue as to when precisely the status of a complainant as an offended spouse
must exist where a criminal prosecution can be commenced only by one who in law can
be categorized as possessed of such status. Stated differently and with reference to the
present case, the inquiry ;would be whether it is necessary in the commencement of a
criminal action for adultery that the marital bonds between the complainant and the
accused be unsevered and existing at the time of the institution of the action by the
former against the latter.
American jurisprudence, on cases involving statutes in that jurisdiction which are in pari
materia with ours, yields the rule that after a divorce has been decreed, the innocent
spouse no longer has the right to institute proceedings against the offenders where the
statute provides that the innocent spouse shall have the exclusive right to institute a
prosecution for adultery. Where, however, proceedings have been properly commenced,
a divorce subsequently granted can have no legal effect on the prosecution of the
criminal proceedings to a conclusion.
22

In the cited Loftus case, the Supreme Court of Iowa held that
'No prosecution for adultery can be commenced except on the complaint
of the husband or wife.' Section 4932, Code. Though Loftus was husband
of defendant when the offense is said to have been committed, he had
ceased to be such when the prosecution was begun; and appellant insists
that his status was not such as to entitle him to make the complaint. We
have repeatedly said that the offense is against the unoffending spouse,
as well as the state, in explaining the reason for this provision in the
statute; and we are of the opinion that the unoffending spouse must be
such when the prosecution is commenced. (Emphasis supplied.)
We see no reason why the same doctrinal rule should not apply in this case and in our
jurisdiction, considering our statutory law and jural policy on the matter. We are
convinced that in cases of such nature, the status of the complainant vis-a-vis the
accused must be determined as of the time the complaint was filed. Thus, the person
who initiates the adultery case must be an offended spouse, and by this is meant that he
is still married to the accused spouse, at the time of the filing of the complaint.
In the present case, the fact that private respondent obtained a valid divorce in his
country, the Federal Republic of Germany, is admitted. Said divorce and its legal effects
may be recognized in the Philippines insofar as private respondent is concerned
23
in
view of the nationality principle in our civil law on the matter of status of persons.
Thus, in the recent case of Van Dorn vs. Romillo, Jr., et al.,
24
after a divorce was
granted by a United States court between Alice Van Dornja Filipina, and her American
husband, the latter filed a civil case in a trial court here alleging that her business
concern was conjugal property and praying that she be ordered to render an accounting
and that the plaintiff be granted the right to manage the business. Rejecting his
pretensions, this Court perspicuously demonstrated the error of such stance, thus:
There can be no question as to the validity of that Nevada divorce in any
of the States of the United States. The decree is binding on private
respondent as an American citizen. For instance, private respondent
cannot sue petitioner, as her husband, in any State of the Union. ...
It is true that owing to the nationality principle embodied in Article 15 of
the Civil Code, only Philippine nationals are covered by the policy against
absolute divorces the same being considered contrary to our concept of
public policy and morality. However, aliens may obtain divorces abroad,
which may be recognized in the Philippines, provided they are valid
according to their national law. ...
Thus, pursuant to his national law, private respondent is no longer the
husband of petitioner. He would have no standing to sue in the case
below as petitioner's husband entitled to exercise control over conjugal
assets. ...
25

Under the same considerations and rationale, private respondent, being no longer the
husband of petitioner, had no legal standing to commence the adultery case under the
imposture that he was the offended spouse at the time he filed suit.
The allegation of private respondent that he could not have brought this case before the
decree of divorce for lack of knowledge, even if true, is of no legal significance or
consequence in this case. When said respondent initiated the divorce proceeding, he
obviously knew that there would no longer be a family nor marriage vows to protect once
a dissolution of the marriage is decreed. Neither would there be a danger of introducing
spurious heirs into the family, which is said to be one of the reasons for the particular
formulation of our law on adultery,
26
since there would thenceforth be no spousal
relationship to speak of. The severance of the marital bond had the effect of dissociating
the former spouses from each other, hence the actuations of one would not affect or cast
obloquy on the other.
The aforecited case of United States vs. Mata cannot be successfully relied upon by
private respondent. In applying Article 433 of the old Penal Code, substantially the same
as Article 333 of the Revised Penal Code, which punished adultery "although the
marriage be afterwards declared void", the Court merely stated that "the lawmakers
intended to declare adulterous the infidelity of a married woman to her marital vows,
even though it should be made to appear that she is entitled to have her marriage
contract declared null and void, until and unless she actually secures a formal judicial
declaration to that effect". Definitely, it cannot be logically inferred therefrom that the
complaint can still be filed after the declaration of nullity because such declaration that
the marriage is void ab initio is equivalent to stating that it never existed. There being no
marriage from the beginning, any complaint for adultery filed after said declaration of
nullity would no longer have a leg to stand on. Moreover, what was consequently
contemplated and within the purview of the decision in said case is the situation where
the criminal action for adultery was filed before the termination of the marriage by a
judicial declaration of its nullity ab initio. The same rule and requisite would necessarily
apply where the termination of the marriage was effected, as in this case, by a valid
foreign divorce.
Private respondent's invocation of Donio-Teves, et al. vs. Vamenta, hereinbefore
cited,
27
must suffer the same fate of inapplicability. A cursory reading of said case
reveals that the offended spouse therein had duly and seasonably filed a complaint for
adultery, although an issue was raised as to its sufficiency but which was resolved in
favor of the complainant. Said case did not involve a factual situation akin to the one at
bar or any issue determinative of the controversy herein.
WHEREFORE, the questioned order denying petitioner's motion to quash is SET
ASIDE and another one enteredDISMISSING the complaint in Criminal Case No. 87-
52435 for lack of jurisdiction. The temporary restraining order issued in this case on
October 21, 1987 is hereby made permanent.
SO ORDERED.
Melencio-Herrera, Padilla and Sarmiento, JJ., concur.


Separate Opinions

PARAS, J ., concurring:
It is my considered opinion that regardless of whether We consider the German absolute
divorce as valid also in the Philippines, the fact is that the husband in the instant case,
by the very act of his obtaining an absolute divorce in Germany can no longer be
considered as the offended party in case his former wife actually has carnal knowledge
with another, because in divorcing her, he already implicitly authorized the woman to
have sexual relations with others. A contrary ruling would be less than fair for a man,
who is free to have sex will be allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the
absolute divorce between the American husband and his American wife as valid and
binding in the Philippines on the theory that their status and capacity are governed by
their National law, namely, American law. There is no decision yet of the Supreme Court
regarding the validity of such a divorce if one of the parties, say an American, is married
to a Filipino wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and
precisely because of theNational law doctrine, he considers the absolute divorce as valid
insofar as the American husband is concerned but void insofar as the Filipino wife is
involved. This results in what he calls a "socially grotesque situation," where a Filipino
woman is still married to a man who is no longer her husband. It is the opinion however,
of the undersigned that very likely the opposite expresses the correct view. While under
the national law of the husband the absolute divorce will be valid, still one of the
exceptions to the application of the proper foreign law (one of the exceptions to comity)
is when the foreign law will work an injustice or injury to the people or residents of the
forum. Consequently since to recognize the absolute divorce as valid on the part of the
husband would be injurious or prejudicial to the Filipino wife whose marriage would be
still valid under her national law, it would seem that under our law existing before the
new Family Code (which took effect on August 3, 1988) the divorce should be
considered void both with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the
fact that the husband was an American can with a Filipino wife because in said case the
validity of the divorce insofar as the Filipino wife is concerned was NEVER put in issue.

Separate Opinions
PARAS, J ., concurring:
It is my considered opinion that regardless of whether We consider the German absolute
divorce as valid also in the Philippines, the fact is that the husband in the instant case,
by the very act of his obtaining an absolute divorce in Germany can no longer be
considered as the offended party in case his former wife actually has carnal knowledge
with another, because in divorcing her, he already implicitly authorized the woman to
have sexual relations with others. A contrary ruling would be less than fair for a man,
who is free to have sex will be allowed to deprive the woman of the same privilege.
In the case of Recto v. Harden (100 Phil. 427 [1956]), the Supreme Court considered the
absolute divorce between the American husband and his American wife as valid and
binding in the Philippines on the theory that their status and capacity are governed by
their National law, namely, American law. There is no decision yet of the Supreme Court
regarding the validity of such a divorce if one of the parties, say an American, is married
to a Filipino wife, for then two (2) different nationalities would be involved.
In the book of Senate President Jovito Salonga entitled Private International Law and
precisely because of theNational law doctrine, he considers the absolute divorce as valid
insofar as the American husband is concerned but void insofar as the Filipino wife is
involved. This results in what he calls a "socially grotesque situation," where a Filipino
woman is still married to a man who is no longer her husband. It is the opinion however,
of the undersigned that very likely the opposite expresses the correct view. While under
the national law of the husband the absolute divorce will be valid, still one of the
exceptions to the application of the proper foreign law (one of the exceptions to comity)
is when the foreign law will work an injustice or injury to the people or residents of the
forum. Consequently since to recognize the absolute divorce as valid on the part of the
husband would be injurious or prejudicial to the Filipino wife whose marriage would be
still valid under her national law, it would seem that under our law existing before the
new Family Code (which took effect on August 3, 1988) the divorce should be
considered void both with respect to the American husband and the Filipino wife.
The recent case of Van Dorn v. Romillo, Jr. (139 SCRA [1985]) cannot apply despite the
fact that the husband was an American can with a Filipino wife because in said case the
validity of the divorce insofar as the Filipino wife is concerned was NEVER put in issue.

DIGEST
FACTS:

Imelda M. Pilapil, a Filipino citizen, was married with private respondent, Erich Ekkehard
Geiling, a German national before the Registrar of Births, Marriages and Deaths at
Friedensweiler, Federal Republic of Germany. They have a child who was born on April
20, 1980 and named Isabella Pilapil Geiling. Conjugal disharmony eventuated in private
respondent and he initiated a divorce proceeding against petitioner in Germany before
the Schoneberg Local Court in January 1983. The petitioner then filed an action for legal
separation, support and separation of property before the RTC Manila on January 23,
1983.
The decree of divorce was promulgated on January 15, 1986 on the ground of failure of
marriage of the spouses. The custody of the child was granted to the petitioner.
On June 27, 1986, private respondent filed 2 complaints for adultery before the City
Fiscal of Manila alleging that while still married to Imelda, latter had an affair with
William Chia as early as 1982 and another man named Jesus Chua sometime in 1983.

ISSUE: Whether private respondent can prosecute petitioner on the ground of adultery
even though they are no longer husband and wife as decree of divorce was already
issued.

HELD:
The law specifically provided that in prosecution for adultery and concubinage, the
person who can legally file the complaint should be the offended spouse and nobody
else. Though in this case, it appeared that private respondent is the offended spouse,
the latter obtained a valid divorce in his country, the Federal Republic of Germany, and
said divorce and its legal effects may be recognized in the Philippines in so far as he is
concerned. Thus, under the same consideration and rationale, private respondent is no
longer the husband of petitioner and has no legal standing to commence the adultery
case under the imposture that he was the offended spouse at the time he filed suit.

Van Dorn vs. Romillo (139 SCRA 139)
G.R. No. L-68470 October 8, 1985
ALICE REYES VAN DORN, petitioner,
vs.
HON. MANUEL V. ROMILLO, JR., as Presiding Judge of Branch CX, Regional Trial
Court of the National Capital Region Pasay City and RICHARD
UPTON respondents.

MELENCIO-HERRERA, J .:\
In this Petition for certiorari and Prohibition, petitioner Alice Reyes Van Dorn seeks to set
aside the Orders, dated September 15, 1983 and August 3, 1984, in Civil Case No.
1075-P, issued by respondent Judge, which denied her Motion to Dismiss said case,
and her Motion for Reconsideration of the Dismissal Order, respectively.
The basic background facts are that petitioner is a citizen of the Philippines while private
respondent is a citizen of the United States; that they were married in Hongkong in 1972;
that, after the marriage, they established their residence in the Philippines; that they
begot two children born on April 4, 1973 and December 18, 1975, respectively; that the
parties were divorced in Nevada, United States, in 1982; and that petitioner has re-
married also in Nevada, this time to Theodore Van Dorn.
Dated June 8, 1983, private respondent filed suit against petitioner in Civil Case No.
1075-P of the Regional Trial Court, Branch CXV, in Pasay City, stating that petitioner's
business in Ermita, Manila, (the Galleon Shop, for short), is conjugal property of the
parties, and asking that petitioner be ordered to render an accounting of that business,
and that private respondent be declared with right to manage the conjugal property.
Petitioner moved to dismiss the case on the ground that the cause of action is barred by
previous judgment in the divorce proceedings before the Nevada Court wherein
respondent had acknowledged that he and petitioner had "no community property" as of
June 11, 1982. The Court below denied the Motion to Dismiss in the mentioned case on
the ground that the property involved is located in the Philippines so that the Divorce
Decree has no bearing in the case. The denial is now the subject of this certiorari
proceeding.
Generally, the denial of a Motion to Dismiss in a civil case is interlocutory and is not
subject to appeal. certiorari and Prohibition are neither the remedies to question the
propriety of an interlocutory order of the trial Court. However, when a grave abuse of
discretion was patently committed, or the lower Court acted capriciously and
whimsically, then it devolves upon this Court in a certiorari proceeding to exercise its
supervisory authority and to correct the error committed which, in such a case, is
equivalent to lack of jurisdiction.
1
Prohibition would then lie since it would be useless
and a waste of time to go ahead with the proceedings.
2
Weconsider the petition filed in
this case within the exception, and we have given it due course.
For resolution is the effect of the foreign divorce on the parties and their alleged conjugal
property in the Philippines.
Petitioner contends that respondent is estopped from laying claim on the alleged
conjugal property because of the representation he made in the divorce proceedings
before the American Court that they had no community of property; that the Galleon
Shop was not established through conjugal funds, and that respondent's claim is barred
by prior judgment.
For his part, respondent avers that the Divorce Decree issued by the Nevada Court
cannot prevail over the prohibitive laws of the Philippines and its declared national
policy; that the acts and declaration of a foreign Court cannot, especially if the same is
contrary to public policy, divest Philippine Courts of jurisdiction to entertain matters
within its jurisdiction.
For the resolution of this case, it is not necessary to determine whether the property
relations between petitioner and private respondent, after their marriage, were upon
absolute or relative community property, upon complete separation of property, or upon
any other regime. The pivotal fact in this case is the Nevada divorce of the parties.
The Nevada District Court, which decreed the divorce, had obtained jurisdiction over
petitioner who appeared in person before the Court during the trial of the case. It also
obtained jurisdiction over private respondent who, giving his address as No. 381 Bush
Street, San Francisco, California, authorized his attorneys in the divorce case, Karp &
Gradt Ltd., to agree to the divorce on the ground of incompatibility in the understanding
that there were neither community property nor community obligations.
3
As explicitly
stated in the Power of Attorney he executed in favor of the law firm of KARP & GRAD
LTD., 336 W. Liberty, Reno, Nevada, to represent him in the divorce proceedings:
xxx xxx xxx
You are hereby authorized to accept service of Summons, to file an
Answer, appear on my behalf and do an things necessary and proper to
represent me, without further contesting, subject to the following:
1. That my spouse seeks a divorce on the ground of incompatibility.
2. That there is no community of property to be adjudicated by the Court.
3. 'I'hat there are no community obligations to be adjudicated by the court.
xxx xxx xxx
4

There can be no question as to the validity of that Nevada divorce in any of the States of
the United States. The decree is binding on private respondent as an American citizen.
For instance, private respondent cannot sue petitioner, as her husband, in any State of
the Union. What he is contending in this case is that the divorce is not valid and binding
in this jurisdiction, the same being contrary to local law and public policy.
It is true that owing to the nationality principle embodied in Article 15 of the Civil
Code,
5
only Philippine nationals are covered by the policy against absolute divorces the
same being considered contrary to our concept of public police and morality. However,
aliens may obtain divorces abroad, which may be recognized in the Philippines, provided
they are valid according to their national law.
6
In this case, the divorce in Nevada
released private respondent from the marriage from the standards of American law,
under which divorce dissolves the marriage. As stated by the Federal Supreme Court of
the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799:
The purpose and effect of a decree of divorce from the bond of matrimony
by a court of competent jurisdiction are to change the existing status or
domestic relation of husband and wife, and to free them both from the
bond. The marriage tie when thus severed as to one party, ceases to bind
either. A husband without a wife, or a wife without a husband, is unknown
to the law. When the law provides, in the nature of a penalty. that the
guilty party shall not marry again, that party, as well as the other, is still
absolutely freed from the bond of the former marriage.
Thus, pursuant to his national law, private respondent is no longer the husband of
petitioner. He would have no standing to sue in the case below as petitioner's husband
entitled to exercise control over conjugal assets. As he is bound by the Decision of his
own country's Court, which validly exercised jurisdiction over him, and whose decision
he does not repudiate, he is estopped by his own representation before said Court from
asserting his right over the alleged conjugal property.
To maintain, as private respondent does, that, under our laws, petitioner has to be
considered still married to private respondent and still subject to a wife's obligations
under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be
obliged to live together with, observe respect and fidelity, and render support to private
respondent. The latter should not continue to be one of her heirs with possible rights to
conjugal property. She should not be discriminated against in her own country if the
ends of justice are to be served.
WHEREFORE, the Petition is granted, and respondent Judge is hereby ordered to
dismiss the Complaint filed in Civil Case No. 1075-P of his Court.
Without costs.
SO ORDERED.
Teehankee (Chairman), Plana, Relova, Gutierrez, Jr., De la Fuente and Patajo, JJ.,
concur.

DIGEST
FACTS:

Alice Reyes Van Dorn, a Filipino Citizen and private respondent, Richard Upton, a US
citizen, was married in Hong Kong in 1979. They established their residence in the
Philippines and had 2 children. They were divorced in Nevada, USA in 1982 and
petitioner remarried, this time with Theodore Van Dorn. A suit against petitioner was
filed on June 8, 1983, stating that petitioners business in Ermita Manila, the Galleon
Shop, is a conjugal property with Upton and prayed therein that Alice be ordered to
render an accounting of the business and he be declared as the administrator of the said
property.

ISSUE: Whether or not the foreign divorce between the petitioner and private
respondent in Nevada is binding in the Philippines where petitioner is a Filipino citizen.

HELD:

Private respondent is no longer the husband of the petitioner. He would have no
standing to sue petitioner to exercise control over conjugal assets. He is estopped by
his own representation before the court from asserting his right over the alleged conjugal
property. Furthermore, aliens may obtain divorces abroad, which may be recognized in
the Philippines, provided they are valid according to their national law. Petitioner is not
bound to her marital obligations to respondent by virtue of her nationality laws. She
should not be discriminated against her own country if the end of justice is to be served.

Republic vs. Orbecido (G.R. No. 154380, 5 October 2005)
FIRST DIVISION

REPUBLIC OF THE PHILIPPINES,
Petitioner,
G.R. No. 154380




- versus -

Present:

Davide, Jr., C.J.,
(Chairman),
Quisumbing,
Ynares-Santiago,
Carpio, and
Azcuna, JJ.
CIPRIANO ORBECIDO III,
Respondent.

Promulgated:
October 5, 2005
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
QUISUMBING, J .:
Given a valid marriage between two Filipino citizens, where one party is later
naturalized as a foreign citizen and obtains a valid divorce decree capacitating him or
her to remarry, can the Filipino spouse likewise remarry under Philippine law?
Before us is a case of first impression that behooves the Court to make a definite
ruling on this apparently novel question, presented as a pure question of law.
In this petition for review, the Solicitor General assails the Decision[1] dated
May 15, 2002, of the Regional Trial Court of Molave, Zamboanga del Sur, Branch 23
and itsResolution[2] dated July 4, 2002 denying the motion for reconsideration. The
court a quo had declared that herein respondent Cipriano Orbecido III is capacitated to
remarry. Thefallo of the impugned Decision reads:
WHEREFORE, by virtue of the provision of the second paragraph
of Art. 26 of the Family Code and by reason of the divorce decree
obtained against him by his American wife, the petitioner is given the
capacity to remarry under the Philippine Law.
IT IS SO ORDERED.[3]
The factual antecedents, as narrated by the trial court, are as follows.
On May 24, 1981, Cipriano Orbecido III married Lady Myros M. Villanueva at the
United Church of Christ in the Philippines in Lam-an, Ozamis City. Their marriage was
blessed with a son and a daughter, Kristoffer Simbortriz V. Orbecido and Lady Kimberly
V. Orbecido.
In 1986, Ciprianos wife left for the United States bringing along their son
Kristoffer. A few years later, Cipriano discovered that his wife had been naturalized as
an American citizen.
Sometime in 2000, Cipriano learned from his son that his wife had obtained a
divorce decree and then married a certain Innocent Stanley. She, Stanley and her child
by him currently live at 5566 A. Walnut Grove Avenue, San Gabriel, California.
Cipriano thereafter filed with the trial court a petition for authority to remarry
invoking Paragraph 2 of Article 26 of the Family Code. No opposition was filed. Finding
merit in the petition, the court granted the same. The Republic, herein petitioner,
through the Office of the Solicitor General (OSG), sought reconsideration but it was
denied.
In this petition, the OSG raises a pure question of law:
WHETHER OR NOT RESPONDENT CAN REMARRY UNDER ARTICLE
26 OF THE FAMILY CODE[4]
The OSG contends that Paragraph 2 of Article 26 of the Family Code is not
applicable to the instant case because it only applies to a valid mixed marriage; that is, a
marriage celebrated between a Filipino citizen and an alien. The proper remedy,
according to the OSG, is to file a petition for annulment or for legal separation.[5]
Furthermore, the OSG argues there is no law that governs respondents situation. The
OSG posits that this is a matter of legislation and not of judicial determination.[6]
For his part, respondent admits that Article 26 is not directly applicable to his case
but insists that when his naturalized alien wife obtained a divorce decree which
capacitated her to remarry, he is likewise capacitated by operation of law pursuant to
Section 12, Article II of the Constitution.[7]
At the outset, we note that the petition for authority to remarry filed before the trial
court actually constituted a petition for declaratory relief. In this connection, Section 1,
Rule 63 of the Rules of Court provides:
RULE 63
DECLARATORY RELIEF AND SIMILAR REMEDIES

Section 1. Who may file petitionAny person interested under a
deed, will, contract or other written instrument, or whose rights are
affected by a statute, executive order or regulation, ordinance, or other
governmental regulation may, before breach or violation thereof, bring an
action in the appropriate Regional Trial Court to determine any question
of construction or validity arising, and for a declaration of his rights or
duties, thereunder.
. . .
The requisites of a petition for declaratory relief are: (1) there must be a justiciable
controversy; (2) the controversy must be between persons whose interests are adverse;
(3) that the party seeking the relief has a legal interest in the controversy; and (4) that
the issue is ripe for judicial determination.[8]
This case concerns the applicability of Paragraph 2 of Article 26 to a marriage
between two Filipino citizens where one later acquired alien citizenship, obtained a
divorce decree, and remarried while in the U.S.A. The interests of the parties are also
adverse, as petitioner representing the State asserts its duty to protect the institution of
marriage while respondent, a private citizen, insists on a declaration of his capacity to
remarry. Respondent, praying for relief, has legal interest in the controversy. The issue
raised is also ripe for judicial determination inasmuch as when respondent remarries,
litigation ensues and puts into question the validity of his second marriage.
Coming now to the substantive issue, does Paragraph 2 of Article 26 of the Family
Code apply to the case of respondent? Necessarily, we must dwell on how this
provision had come about in the first place, and what was the intent of the legislators in
its enactment?
Brief Historical Background
On July 6, 1987, then President Corazon Aquino signed into law Executive Order
No. 209, otherwise known as the Family Code, which took effect on August 3, 1988.
Article 26 thereof states:
All marriages solemnized outside the Philippines in accordance
with the laws in force in the country where they were solemnized, and
valid there as such, shall also be valid in this country, except those
prohibited under Articles 35, 37, and 38.
On July 17, 1987, shortly after the signing of the original Family Code, Executive
Order No. 227 was likewise signed into law, amending Articles 26, 36, and 39 of the
Family Code. A second paragraph was added to Article 26. As so amended, it now
provides:
ART. 26. All marriages solemnized outside the Philippines in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1), (4), (5) and (6), 36, 37 and
38.
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained abroad by
the alien spouse capacitating him or her to remarry, the Filipino spouse
shall have capacity to remarry under Philippine law. (Emphasis supplied)
On its face, the foregoing provision does not appear to govern the situation
presented by the case at hand. It seems to apply only to cases where at the time of the
celebration of the marriage, the parties are a Filipino citizen and a foreigner. The instant
case is one where at the time the marriage was solemnized, the parties were two Filipino
citizens, but later on, the wife was naturalized as an American citizen and subsequently
obtained a divorce granting her capacity to remarry, and indeed she remarried an
American citizen while residing in the U.S.A.
Noteworthy, in the Report of the Public Hearings[9] on the Family Code, the
Catholic Bishops Conference of the Philippines (CBCP) registered the following
objections to Paragraph 2 of Article 26:
1. The rule is discriminatory. It discriminates against those
whose spouses are Filipinos who divorce them abroad. These
spouses who are divorced will not be able to re-marry, while the
spouses of foreigners who validly divorce them abroad can.
2. This is the beginning of the recognition of the validity of
divorce even for Filipino citizens. For those whose foreign
spouses validly divorce them abroad will also be considered to be
validly divorced here and can re-marry. We propose that this be
deleted and made into law only after more widespread
consultation. (Emphasis supplied.)
Legislative Intent
Records of the proceedings of the Family Code deliberations showed that the
intent of Paragraph 2 of Article 26, according to Judge Alicia Sempio-Diy, a member of
the Civil Code Revision Committee, is to avoid the absurd situation where the Filipino
spouse remains married to the alien spouse who, after obtaining a divorce, is no longer
married to the Filipino spouse.
Interestingly, Paragraph 2 of Article 26 traces its origin to the 1985 case of Van
Dorn v. Romillo, Jr.[10] The Van Dorn case involved a marriage between a Filipino
citizen and a foreigner. The Court held therein that a divorce decree validly obtained by
the alien spouse is valid in the Philippines, and consequently, the Filipino spouse is
capacitated to remarry under Philippine law.
Does the same principle apply to a case where at the time of the celebration of
the marriage, the parties were Filipino citizens, but later on, one of them obtains a
foreign citizenship by naturalization?
The jurisprudential answer lies latent in the 1998 case of Quita v. Court of
Appeals.[11] In Quita, the parties were, as in this case, Filipino citizens when they got
married. The wife became a naturalized American citizen in 1954 and obtained a
divorce in the same year. The Court therein hinted, by way of obiter dictum, that a
Filipino divorced by his naturalized foreign spouse is no longer married under Philippine
law and can thus remarry.
Thus, taking into consideration the legislative intent and applying the rule of
reason, we hold that Paragraph 2 of Article 26 should be interpreted to include cases
involving parties who, at the time of the celebration of the marriage were Filipino citizens,
but later on, one of them becomes naturalized as a foreign citizen and obtains a divorce
decree. The Filipino spouse should likewise be allowed to remarry as if the other party
were a foreigner at the time of the solemnization of the marriage. To rule otherwise
would be to sanction absurdity and injustice. Where the interpretation of a statute
according to its exact and literal import would lead to mischievous results or contravene
the clear purpose of the legislature, it should be construed according to its spirit and
reason, disregarding as far as necessary the letter of the law. A statute may therefore
be extended to cases not within the literal meaning of its terms, so long as they come
within its spirit or intent.[12]
If we are to give meaning to the legislative intent to avoid the absurd situation
where the Filipino spouse remains married to the alien spouse who, after obtaining a
divorce is no longer married to the Filipino spouse, then the instant case must be
deemed as coming within the contemplation of Paragraph 2 of Article 26.
In view of the foregoing, we state the twin elements for the application of
Paragraph 2 of Article 26 as follows:
1. There is a valid marriage that has been celebrated between
a Filipino citizen and a foreigner; and
2. A valid divorce is obtained abroad by the alien spouse
capacitating him or her to remarry.
The reckoning point is not the citizenship of the parties at the time of the
celebration of the marriage, but their citizenship at the time a valid divorce is obtained
abroad by the alien spouse capacitating the latter to remarry.
In this case, when Ciprianos wife was naturalized as an American citizen, there
was still a valid marriage that has been celebrated between her and Cipriano. As fate
would have it, the naturalized alien wife subsequently obtained a valid divorce
capacitating her to remarry. Clearly, the twin requisites for the application of Paragraph
2 of Article 26 are both present in this case. Thus Cipriano, the divorced Filipino
spouse, should be allowed to remarry.
We are also unable to sustain the OSGs theory that the proper remedy of the
Filipino spouse is to file either a petition for annulment or a petition for legal separation.
Annulment would be a long and tedious process, and in this particular case, not even
feasible, considering that the marriage of the parties appears to have all the badges of
validity. On the other hand, legal separation would not be a sufficient remedy for it
would not sever the marriage tie; hence, the legally separated Filipino spouse would still
remain married to the naturalized alien spouse.
However, we note that the records are bereft of competent evidence duly
submitted by respondent concerning the divorce decree and the naturalization of
respondents wife. It is settled rule that one who alleges a fact has the burden of proving
it and mere allegation is not evidence.[13]
Accordingly, for his plea to prosper, respondent herein must prove his allegation
that his wife was naturalized as an American citizen. Likewise, before a foreign divorce
decree can be recognized by our own courts, the party pleading it must prove the
divorce as a fact and demonstrate its conformity to the foreign law allowing it.[14] Such
foreign law must also be proved as our courts cannot take judicial notice of foreign laws.
Like any other fact, such laws must be alleged and proved.[15] Furthermore,
respondent must also show that the divorce decree allows his former wife to remarry as
specifically required in Article 26. Otherwise, there would be no evidence sufficient to
declare that he is capacitated to enter into another marriage.
Nevertheless, we are unanimous in our holding that Paragraph 2 of Article 26 of
the Family Code (E.O. No. 209, as amended by E.O. No. 227), should be interpreted to
allow a Filipino citizen, who has been divorced by a spouse who had acquired foreign
citizenship and remarried, also to remarry. However, considering that in the present
petition there is no sufficient evidence submitted and on record, we are unable to
declare, based on respondents bare allegations that his wife, who was naturalized as an
American citizen, had obtained a divorce decree and had remarried an American, that
respondent is now capacitated to remarry. Such declaration could only be made
properly upon respondents submission of the aforecited evidence in his favor.
ACCORDINGLY, the petition by the Republic of the Philippines is GRANTED.
The assailed Decision dated May 15, 2002, and Resolution dated July 4, 2002, of the
Regional Trial Court of Molave, Zamboanga del Sur, Branch 23, are hereby SET ASIDE.
No pronouncement as to costs.
SO ORDERED.

LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:



HILARIO G. DAVIDE, JR.
Chief Justice
Chairman



CONSUELO YNARES-SANTIAGO ANTONIO T. CARPIO
Associate Justice Associate Justice




ADOLFO S. AZCUNA
Associate Justice



CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.



HILARIO G. DAVIDE, JR.
Chief Justice
DIGEST
FACTS:

Cipriano Orbecido III was married with Lady Myros Villanueva on May 24, 1981 at the
United Church of Christ in the Philippines in Ozamis City. They had a son and a
daughter named Kristoffer and Kimberly, respectively. In 1986, the wife left for US
bringing along their son Kristoffer. A few years later, Orbecido discovered that his wife
had been naturalized as an American citizen and learned from his son that his wife
sometime in 2000 had obtained a divorce decree and married a certain Stanley. He
thereafter filed with the trial court a petition for authority to remarry invoking Paragraph 2
of Article 26 of the Family Code.

ISSUE: Whether or not Orbecido can remarry under Article 26 of the Family Code.

HELD:

The court ruled that taking into consideration the legislative intent and applying the rule
of reason, Article 26 Par.2 should be interpreted to include cases involving parties who,
at the time of the celebration of the marriage were Filipino citizens, but later on, one of
them becomes naturalized as a foreign citizen and obtains a divorce decree. The
Filipino spouse should likewise be allowed to remarry as if the other party were a
foreigner at the time of the solemnization of the marriage.

Hence, the courts unanimous decision in holding Article 26 Par 2 be interpreted as
allowing a Filipino citizen who has been divorced by a spouse who had acquired a
citizenship and remarried, also to remarry under Philippine law.


Marriages Exempt from License Requirement (Article 27-34) 2 Hours

Ninal vs. Bayadog (328 SCRA 122)
ENGRACE NIAL for Herself and as Guardian ad Litem of the minors BABYLINE
NIAL, INGRID NIAL, ARCHIE NIAL & PEPITO NIAL, JR., petitioners, vs.
NORMA BAYADOG, respondent. Ncmmis
D E C I S I O N
YNARES_SANTIAGO, J .:
May the heirs of a deceased person file a petition for the declaration of nullity of his
marriage after his death?
Pepito Nial was married to Teodulfa Bellones on September 26, 1974. Out of their
marriage were born herein petitioners. Teodulfa was shot by Pepito resulting in her
death on April 24, 1985. One year and 8 months thereafter or on December 11, 1986,
Pepito and respondent Norma Badayog got married without any marriage license. In lieu
thereof, Pepito and Norma executed an affidavit dated December 11, 1986 stating that
they had lived together as husband and wife for at least five years and were thus exempt
from securing a marriage license. On February 19, 1997, Pepito died in a car accident.
After their fathers death, petitioners filed a petition for declaration of nullity of the
marriage of Pepito to Norma alleging that the said marriage was void for lack of a
marriage license. The case was filed under the assumption that the validity or invalidity
of the second marriage would affect petitioners successional rights. Norma filed a
motion to dismiss on the ground that petitioners have no cause of action since they are
not among the persons who could file an action for "annulment of marriage" under Article
47 of the Family Code.
Judge Ferdinand J. Marcos of the Regional Trial Court of Toledo City, Cebu, Branch 59,
dismissed the petition after finding that the Family Code is "rather silent, obscure,
insufficient" to resolve the following issues:
(1) Whether or not plaintiffs have a cause of action against defendant in
asking for the declaration of the nullity of marriage of their deceased
father, Pepito G. Nial, with her specially so when at the time of the filing
of this instant suit, their father Pepito G. Nial is already dead;
(2) Whether or not the second marriage of plaintiffs deceased father with
defendant is null and void ab initio;
(3) Whether or not plaintiffs are estopped from assailing the validity of the
second marriage after it was dissolved due to their fathers death.
[1]

Thus, the lower court ruled that petitioners should have filed the action to declare null
and void their fathers marriage to respondent before his death, applying by analogy
Article 47 of the Family Code which enumerates the time and the persons who could
initiate an action for annulment of marriage.
[2]
Hence, this petition for review with this
Court grounded on a pure question of law. Scnc m
This petition was originally dismissed for non-compliance with Section 11, Rule 13 of the
1997 Rules of Civil Procedure, and because "the verification failed to state the basis of
petitioners averment that the allegations in the petition are true and correct." It was
thus treated as an unsigned pleading which produces no legal effect under Section 3,
Rule 7, of the 1997 Rules.
[3]
However, upon motion of petitioners, this Court
reconsidered the dismissal and reinstated the petition for review.
[4]

The two marriages involved herein having been solemnized prior to the effectivity of the
Family Code (FC), the applicable law to determine their validity is the Civil Code which
was the law in effect at the time of their celebration.
[5]
A valid marriage license is a
requisite of marriage under Article 53 of the Civil Code,
[6]
the absence of which renders
the marriage void ab initio pursuant to Article 80(3)
[7]
in relation to Article 58.
[8]
The
requirement and issuance of marriage license is the States demonstration of its
involvement and participation in every marriage, in the maintenance of which the general
public is interested.
[9]
This interest proceeds from the constitutional mandate that the
State recognizes the sanctity of family life and of affording protection to the family as a
basic "autonomous social institution."
[10]
Specifically, the Constitution considers marriage
as an "inviolable social institution," and is the foundation of family life which shall be
protected by the State.
[11]
This is why the Family Code considers marriage as "a special
contract of permanent union"
[12]
and case law considers it "not just an adventure but a
lifetime commitment."
[13]

However, there are several instances recognized by the Civil Code wherein a marriage
license is dispensed with, one of which is that provided in Article 76,
[14]
referring to the
marriage of a man and a woman who have lived together and exclusively with each
other as husband and wife for a continuous and unbroken period of at least five years
before the marriage. The rationale why no license is required in such case is to avoid
exposing the parties to humiliation, shame and embarrassment concomitant with the
scandalous cohabitation of persons outside a valid marriage due to the publication of
every applicants name for a marriage license. The publicity attending the marriage
license may discourage such persons from legitimizing their status.
[15]
To preserve
peace in the family, avoid the peeping and suspicious eye of public exposure and
contain the source of gossip arising from the publication of their names, the law deemed
it wise to preserve their privacy and exempt them from that requirement. Sdaa miso
There is no dispute that the marriage of petitioners father to respondent Norma was
celebrated without any marriage license. In lieu thereof, they executed an affidavit
stating that "they have attained the age of majority, and, being unmarried, have lived
together as husband and wife for at least five years, and that we now desire to marry
each other."
[16]
The only issue that needs to be resolved pertains to what nature of
cohabitation is contemplated under Article 76 of the Civil Code to warrant the counting of
the five year period in order to exempt the future spouses from securing a marriage
license. Should it be a cohabitation wherein both parties are capacitated to marry each
other during the entire five-year continuous period or should it be a cohabitation wherein
both parties have lived together and exclusively with each other as husband and wife
during the entire five-year continuous period regardless of whether there is a legal
impediment to their being lawfully married, which impediment may have either
disappeared or intervened sometime during the cohabitation period?
Working on the assumption that Pepito and Norma have lived together as husband and
wife for five years without the benefit of marriage, that five-year period should be
computed on the basis of a cohabitation as "husband and wife" where the only missing
factor is the special contract of marriage to validate the union. In other words, the five-
year common-law cohabitation period, which is counted back from the date of
celebration of marriage, should be a period of legal union had it not been for the
absence of the marriage. This 5-year period should be the years immediately before the
day of the marriage and it should be a period of cohabitation characterized by exclusivity
meaning no third party was involved at any time within the 5 years and continuity that
is unbroken. Otherwise, if that continuous 5-year cohabitation is computed without any
distinction as to whether the parties were capacitated to marry each other during the
entire five years, then the law would be sanctioning immorality and encouraging parties
to have common law relationships and placing them on the same footing with those who
lived faithfully with their spouse. Marriage being a special relationship must be respected
as such and its requirements must be strictly observed. The presumption that a man and
a woman deporting themselves as husband and wife is based on the approximation of
the requirements of the law. The parties should not be afforded any excuse to not
comply with every single requirement and later use the same missing element as a pre-
conceived escape ground to nullify their marriage. There should be no exemption from
securing a marriage license unless the circumstances clearly fall within the ambit of the
exception. It should be noted that a license is required in order to notify the public that
two persons are about to be united in matrimony and that anyone who is aware or has
knowledge of any impediment to the union of the two shall make it known to the local
civil registrar.
[17]
The Civil Code provides:
Article 63: "x x x. This notice shall request all persons having knowledge
of any impediment to the marriage to advice the local civil registrar
thereof. x x x."
Article 64: "Upon being advised of any alleged impediment to the
marriage, the local civil registrar shall forthwith make an investigation,
examining persons under oath. x x x" Sdaad
This is reiterated in the Family Code thus:
Article 17 provides in part: "x x x. This notice shall request all persons
having knowledge of any impediment to the marriage to advise the local
civil registrar thereof. x x x."
Article 18 reads in part: "x x x. In case of any impediment known to the
local civil registrar or brought to his attention, he shall note down the
particulars thereof and his findings thereon in the application for a
marriage license. x x x."
This is the same reason why our civil laws, past or present, absolutely prohibited the
concurrence of multiple marriages by the same person during the same period. Thus,
any marriage subsequently contracted during the lifetime of the first spouse shall be
illegal and void,
[18]
subject only to the exception in cases of absence or where the prior
marriage was dissolved or annulled. The Revised Penal Code complements the civil law
in that the contracting of two or more marriages and the having of extramarital affairs are
considered felonies, i.e., bigamy and concubinage and adultery.
[19]
The law sanctions
monogamy.
In this case, at the time of Pepito and respondents marriage, it cannot be said that they
have lived with each other as husband and wife for at least five years prior to their
wedding day. From the time Pepitos first marriage was dissolved to the time of his
marriage with respondent, only about twenty months had elapsed. Even assuming that
Pepito and his first wife had separated in fact, and thereafter both Pepito and respondent
had started living with each other that has already lasted for five years, the fact remains
that their five-year period cohabitation was not the cohabitation contemplated by law. It
should be in the nature of a perfect union that is valid under the law but rendered
imperfect only by the absence of the marriage contract. Pepito had a subsisting marriage
at the time when he started cohabiting with respondent. It is immaterial that when they
lived with each other, Pepito had already been separated in fact from his lawful spouse.
The subsistence of the marriage even where there was actual severance of the filial
companionship between the spouses cannot make any cohabitation by either spouse
with any third party as being one as "husband and wife". Scs daad
Having determined that the second marriage involved in this case is not covered by the
exception to the requirement of a marriage license, it is void ab initio because of the
absence of such element.
The next issue to be resolved is: do petitioners have the personality to file a petition to
declare their fathers marriage void after his death?
Contrary to respondent judges ruling, Article 47 of the Family Code
[20]
cannot be applied
even by analogy to petitions for declaration of nullity of marriage. The second ground for
annulment of marriage relied upon by the trial court, which allows "the sane spouse" to
file an annulment suit "at any time before the death of either party" is inapplicable. Article
47 pertains to the grounds, periods and persons who can file an annulment suit, not a
suit for declaration of nullity of marriage. The Code is silent as to who can file a petition
to declare the nullity of a marriage. Voidable and void marriages are not identical. A
marriage that is annulable is valid until otherwise declared by the court; whereas a
marriage that is void ab initio is considered as having never to have taken place
[21]
and
cannot be the source of rights. The first can be generally ratified or confirmed by free
cohabitation or prescription while the other can never be ratified. A voidable marriage
cannot be assailed collaterally except in a direct proceeding while a void marriage can
be attacked collaterally. Consequently, void marriages can be questioned even after the
death of either party but voidable marriages can be assailed only during the lifetime of
the parties and not after death of either, in which case the parties and their offspring will
be left as if the marriage had been perfectly valid.
[22]
That is why the action or defense
for nullity is imprescriptible, unlike voidable marriages where the action prescribes. Only
the parties to a voidable marriage can assail it but any proper interested party may
attack a void marriage. Void marriages have no legal effects except those declared by
law concerning the properties of the alleged spouses, regarding co-ownership or
ownership through actual joint contribution,
[23]
and its effect on the children born to such
void marriages as provided in Article 50 in relation to Article 43 and 44 as well as Article
51, 53 and 54 of the Family Code. On the contrary, the property regime governing
voidable marriages is generally conjugal partnership and the children conceived before
its annulment are legitimate. Sup rema
Contrary to the trial courts ruling, the death of petitioners father extinguished the
alleged marital bond between him and respondent. The conclusion is erroneous and
proceeds from a wrong premise that there was a marriage bond that was dissolved
between the two. It should be noted that their marriage was void hence it is deemed as if
it never existed at all and the death of either extinguished nothing.
Jurisprudence under the Civil Code states that no judicial decree is necessary in order to
establish the nullity of a marriage.
[24]
"A void marriage does not require a judicial decree
to restore the parties to their original rights or to make the marriage void but though no
sentence of avoidance be absolutely necessary, yet as well for the sake of good order of
society as for the peace of mind of all concerned, it is expedient that the nullity of the
marriage should be ascertained and declared by the decree of a court of competent
jurisdiction."
[25]
"Under ordinary circumstances, the effect of a void marriage, so far as
concerns the conferring of legal rights upon the parties, is as though no marriage had
ever taken place. And therefore, being good for no legal purpose, its invalidity can be
maintained in any proceeding in which the fact of marriage may be material, either direct
or collateral, in any civil court between any parties at any time, whether before or after
the death of either or both the husband and the wife, and upon mere proof of the facts
rendering such marriage void, it will be disregarded or treated as non-existent by the
courts." It is not like a voidable marriage which cannot be collaterally attacked except in
direct proceeding instituted during the lifetime of the parties so that on the death of
either, the marriage cannot be impeached, and is made good ab initio.
[26]
But Article 40
of the Family Code expressly provides that there must be a judicial declaration of the
nullity of a previous marriage, though void, before a party can enter into a second
marriage
[27]
and such absolute nullity can be based only on a final judgment to that
effect.
[28]
For the same reason, the law makes either the action or defense for the
declaration of absolute nullity of marriage imprescriptible.
[29]
Corollarily, if the death of
either party would extinguish the cause of action or the ground for defense, then the
same cannot be considered imprescriptible. Juris
However, other than for purposes of remarriage, no judicial action is necessary to
declare a marriage an absolute nullity. For other purposes, such as but not limited to
determination of heirship, legitimacy or illegitimacy of a child, settlement of estate,
dissolution of property regime, or a criminal case for that matter, the court may pass
upon the validity of marriage even in a suit not directly instituted to question the same so
long as it is essential to the determination of the case. This is without prejudice to any
issue that may arise in the case. When such need arises, a final judgment of declaration
of nullity is necessary even if the purpose is other than to remarry. The clause "on the
basis of a final judgment declaring such previous marriage void" in Article 40 of the
Family Code connotes that such final judgment need not be obtained only for purpose of
remarriage.
WHEREFORE, the petition is GRANTED. The assailed Order of the Regional Trial
Court, Toledo City, Cebu, Branch 59, dismissing Civil Case No. T-639, is REVERSED
and SET ASIDE. The said case is ordered REINSTATED.
SO ORDERED.
Davide, Jr., (Chairman), Puno, and Kapunan, JJ., concur. Sc juris
Pardo, J., on official business abroad.

DIGEST
FACTS:

Pepito Ninal was married with Teodulfa Bellones on September 26, 1974. They had 3
children namely Babyline, Ingrid and Archie, petitioners. Due to the shot inflicted by
Pepito to Teodulfa, the latter died on April 24, 1985 leaving the children under the
guardianship of Engrace Ninal. 1 year and 8 months later, Pepito and Norma Badayog
got married without any marriage license. They instituted an affidavit stating that they
had lived together for at least 5 years exempting from securing the marriage license.
Pepito died in a car accident on February 19, 1977. After his death, petitioners filed a
petition for declaration of nullity of the marriage of Pepito and Norma alleging that said
marriage was void for lack of marriage license.

ISSUES:

1. Whether or not the second marriage of Pepito was void?
2. Whether or not the heirs of the deceased may file for the declaration of the nullity of
Pepitos marriage after his death?

HELD:

The marriage of Pepito and Norma is void for absence of the marriage license. They
cannot be exempted even though they instituted an affidavit and claimed that they
cohabit for at least 5 years because from the time of Pepitos first marriage was
dissolved to the time of his marriage with Norma, only about 20 months had elapsed.
Albeit, Pepito and his first wife had separated in fact, and thereafter both Pepito and
Norma had started living with each other that has already lasted for five years, the fact
remains that their five-year period cohabitation was not the cohabitation contemplated by
law. Hence, his marriage to Norma is still void.

Void marriages are deemed to have not taken place and cannot be the source of rights.
It can be questioned even after the death of one of the parties and any proper interested
party may attack a void marriage.

Manzano vs. Sanchez (A.M. No. MTJ-00-1329, 8 March 2001)
HERMINIA BORJA-MANZANO, petitioner, vs. JUDGE ROQUE R. SANCHEZ, MTC,
Infanta, Pangasinan, respondent.
R E S O L U T I O N
DAVIDE, JR., C.J .:
The solemnization of a marriage between two contracting parties who were both
bound by a prior existing marriage is the bone of contention of the instant complaint
against respondent Judge Roque R. Sanchez, Municipal Trial Court, Infanta,
Pangasinan. For this act, complainant Herminia Borja-Manzano charges respondent
Judge with gross ignorance of the law in a sworn Complaint-Affidavit filed with the Office
of the Court Administrator on 12 May 1999.
Complainant avers that she was the lawful wife of the late David Manzano, having
been married to him on 21 May 1966 in San Gabriel Archangel Parish, Araneta Avenue,
Caloocan City.
[1]
Four children were born out of that marriage.
[2]
On 22 March 1993,
however, her husband contracted another marriage with one Luzviminda Payao before
respondent Judge.
[3]
When respondent Judge solemnized said marriage, he knew or
ought to know that the same was void and bigamous, as the marriage contract clearly
stated that both contracting parties were separated.
Respondent Judge, on the other hand, claims in his Comment that when he
officiated the marriage between Manzano and Payao he did not know that Manzano was
legally married. What he knew was that the two had been living together as husband
and wife for seven years already without the benefit of marriage, as manifested in their
joint affidavit.
[4]
According to him, had he known that the late Manzano was married, he
would have advised the latter not to marry again; otherwise, he (Manzano) could be
charged with bigamy. He then prayed that the complaint be dismissed for lack of merit
and for being designed merely to harass him.
After an evaluation of the Complaint and the Comment, the Court Administrator
recommended that respondent Judge be found guilty of gross ignorance of the law and
be ordered to pay a fine of P2,000, with a warning that a repetition of the same or similar
act would be dealt with more severely.
On 25 October 2000, this Court required the parties to manifest whether they were
willing to submit the case for resolution on the basis of the pleadings thus
filed. Complainant answered in the affirmative.
For his part, respondent Judge filed a Manifestation reiterating his plea for the
dismissal of the complaint and setting aside his earlier Comment. He therein invites the
attention of the Court to two separate affidavits
[5]
of the late Manzano and of Payao,
which were allegedly unearthed by a member of his staff upon his instruction. In those
affidavits, both David Manzano and Luzviminda Payao expressly stated that they were
married to Herminia Borja and Domingo Relos, respectively; and that since their
respective marriages had been marked by constant quarrels, they had both left their
families and had never cohabited or communicated with their spouses
anymore. Respondent Judge alleges that on the basis of those affidavits, he agreed to
solemnize the marriage in question in accordance with Article 34 of the Family Code.
We find merit in the complaint.
Article 34 of the Family Code provides:
No license shall be necessary for the marriage of a man and a woman who have lived
together as husband and wife for at least five years and without any legal impediment to
marry each other. The contracting parties shall state the foregoing facts in an affidavit
before any person authorized by law to administer oaths. The solemnizing officer shall
also state under oath that he ascertained the qualifications of the contracting parties and
found no legal impediment to the marriage.
For this provision on legal ratification of marital cohabitation to apply, the following
requisites must concur:
1. The man and woman must have been living together as husband and wife for
at least five years before the marriage;
2. The parties must have no legal impediment to marry each other;
3. The fact of absence of legal impediment between the parties must be present
at the time of marriage;
4. The parties must execute an affidavit stating that they have lived together for
at least five years [and are without legal impediment to marry each other];
and
5. The solemnizing officer must execute a sworn statement that he had
ascertained the qualifications of the parties and that he had found no legal
impediment to their marriage.
[6]

Not all of these requirements are present in the case at bar. It is significant to note
that in their separate affidavits executed on 22 March 1993 and sworn to before
respondent Judge himself, David Manzano and Luzviminda Payao expressly stated the
fact of their prior existing marriage. Also, in their marriage contract, it was indicated that
both were separated.
Respondent Judge knew or ought to know that a subsisting previous marriage is a
diriment impediment, which would make the subsequent marriage null and void.
[7]
In fact,
in his Comment, he stated that had he known that the late Manzano was married he
would have discouraged him from contracting another marriage. And respondent Judge
cannot deny knowledge of Manzanos and Payaos subsisting previous marriage, as the
same was clearly stated in their separate affidavits which were subscribed and sworn to
before him.
The fact that Manzano and Payao had been living apart from their respective
spouses for a long time already is immaterial. Article 63(1) of the Family Code allows
spouses who have obtained a decree of legal separation to live separately from each
other, but in such a case the marriage bonds are not severed. Elsewise stated, legal
separation does not dissolve the marriage tie, much less authorize the parties to
remarry. This holds true all the more when the separation is merely de facto, as in the
case at bar.
Neither can respondent Judge take refuge on the Joint Affidavit of David Manzano
and Luzviminda Payao stating that they had been cohabiting as husband and wife for
seven years. Just like separation, free and voluntary cohabitation with another person
for at least five years does not severe the tie of a subsisting previous marriage. Marital
cohabitation for a long period of time between two individuals who are legally
capacitatedto marry each other is merely a ground for exemption from marriage
license. It could not serve as a justification for respondent Judge to solemnize a
subsequent marriage vitiated by the impediment of a prior existing marriage.
Clearly, respondent Judge demonstrated gross ignorance of the law when he
solemnized a void and bigamous marriage. The maxim ignorance of the law excuses
no one has special application to judges,
[8]
who, under Rule 1.01 of the Code of Judicial
Conduct, should be the embodiment of competence, integrity, and independence. It is
highly imperative that judges be conversant with the law and basic legal principles.
[9]
And
when the law transgressed is simple and elementary, the failure to know it constitutes
gross ignorance of the law.
[10]

ACCORDINGLY, the recommendation of the Court Administrator is hereby
ADOPTED, with the MODIFICATION that the amount of fine to be imposed upon
respondent Judge Roque Sanchez is increased to P20,000.
SO ORDERED.
Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

DIGEST
FACTS:

Herminia Borja-Manzano was the lawful wife of the late David Manzano having been
married on May 21, 1966 in San Gabriel Archangel Parish in Caloocan. They had four
children. On March 22, 1993, her husband contracted another marriage with Luzviminda
Payao before respondent Judge. The marriage contract clearly stated that both
contracting parties were separated thus, respondent Judge ought to know that the
marriage was void and bigamous. He claims that when he officiated the marriage of
David and Payao, he knew that the two had been living together as husband and wife for
seven years as manifested in their joint affidavit that they both left their families and had
never cohabit or communicated with their spouses due to constant quarrels.

ISSUE: Whether the solemnization of a marriage between two contracting parties who
both have an existing marriage can contract marriage if they have been cohabitating for
5 years under Article 34 of Family Code.

HELD:

Among the requisites of Article 34 is that parties must have no legal impediment to marry
each other. Considering that both parties has a subsisting marriage, as indicated in their
marriage contract that they are both separated is an impediment that would make their
subsequent marriage null and void. Just like separation, free and voluntary cohabitation
with another person for at least 5 years does not severe the tie of a subsisting previous
marriage. Clearly, respondent Judge Sanchez demonstrated gross ignorance of the law
when he solemnized a void and bigamous marriage.

Cosca vs. Palaypayon
A.M. No. MTJ-92-721 September 30, 1994
JUVY N. COSCA, EDMUNDO B. PERALTA, RAMON C. SAMBO, and APOLLO A.
VILLAMORA, complainants,
vs.
HON. LUCIO P. PALAYPAYON, JR., Presiding Judge, and NELIA B. ESMERALDA-
BAROY, Clerk of Court II, both of the Municipal Trial Court of Tinambac,
Camarines Sur, respondents.
Esteban R. Abonal for complainants.
Haide B. Vista-Gumba for respondents.

PER CURIAM, J .:
Complainants Juvy N. Cosca, Edmundo B. Peralta, Ramon C. Sambo, and Apollo
Villamora, are Stenographer I, Interpreter I, Clerk II, and Process Server, respectively, of
the Municipal Trial Court of Tinambac, Camarines Sur. Respondents Judge Lucio P.
Palaypayon, Jr. and Nelia B. Esmeralda-Baroy are respectively the Presiding Judge and
Clerk of Court II of the same court.
In an administrative complaint filed with the Office of the Court Administrator on October
5, 1992, herein respondents were charged with the following offenses, to wit: (1) illegal
solemnization of marriage; (2) falsification of the monthly reports of cases; (3) bribery in
consideration of an appointment in the court; (4) non-issuance of receipt for cash bond
received; (5) infidelity in the custody of detained prisoners; and (6) requiring payment of
filing fees from exempted entities.
1

Pursuant to a resolution issued by this Court respondents filed their respective
Comments.
2
A Reply to Answers of Respondents was filed by complainants.
3
The case
was thereafter referred to Executive Judge David C. Naval of the Regional Trial Court,
Naga City, for investigation report and recommendation. The case was however
transferred to First Assistant Executive Judge Antonio N. Gerona when Judge Naval
inhibited himself for the reason that his wife is a cousin of respondent Judge
Palaypayon, Jr.
4

The contending versions of the parties regarding the factual antecedents of this
administrative matter, as culled from the records thereof, are set out under each
particular charge against respondents.
1. Illegal solemnization of marriage
Complainants allege that respondent judge solemnized marriages even without the
requisite marriage license. Thus, the following couples were able to get married by the
simple expedient of paying the marriage fees to respondent Baroy, despite the absence
of a marriage license, viz.: Alano P. Abellano and Nelly Edralin, Francisco Selpo and
Julieta Carrido, Eddie Terrobias and Maria Gacer, Renato Gamay and Maricris Belga,
Arsenio Sabater and Margarita Nacario, and Sammy Bocaya and Gina Bismonte. As a
consequence, their marriage contracts (Exhibits B, C, D, F, G, and A, respectively) did
not reflect any marriage license number. In addition, respondent judge did not sign their
marriage contracts and did not indicate the date of solemnization, the reason being that
he allegedly had to wait for the marriage license to be submitted by the parties which
was usually several days after the ceremony. Indubitably, the marriage contracts were
not filed with the local civil registrar. Complainant Ramon Sambo, who prepares the
marriage contracts, called the attention of respondents to the lack of marriage licenses
and its effect on the marriages involved, but the latter opted to proceed with the
celebration of said marriages.
Respondent Nelia Baroy claims that when she was appointed Clerk of Court II, the
employees of the court were already hostile to her, especially complainant Ramon
Sambo who told her that he was filing a protest against her appointment. She avers that
it was only lately when she discovered that the court had a marriage Register which is in
the custody of Sambo; that it was Sambo who failed to furnish the parties copies of the
marriage contract and to register these with the local civil registrar; and that apparently
Sambo kept these marriage contracts in preparation for this administrative case.
Complainant Sambo, however, claims that all file copies of the marriage contracts were
kept by respondent Baroy, but the latter insists that she had instructed Sambo to follow
up the submission by the contracting parties of their marriage licenses as part of his
duties but he failed to do so.
Respondent Judge Palaypayon, Jr. contends that the marriage between Alano P.
Abellano and Nelly Edralin falls under Article 34 of the Civil Code, hence it is exempt
from the marriage license requirement; that he gave strict instructions to complainant
Sambo to furnish the couple a copy of the marriage contract and to file the same with the
civil registrar, but the latter failed to do so; that in order to solve the problem, the
spouses subsequently formalized their marriage by securing a marriage license and
executing their marriage contract, a copy of which was filed with the civil registrar; that
the other five marriages alluded to in the administrative complaint were not illegally
solemnized because the marriage contracts were not signed by him and they did not
contain the date and place of marriage; that copies of these marriage contracts are in
the custody of complainant Sambo; that the alleged marriage of Francisco Selpo and
Julieta Carrido, Eddie Terrobias and Maria Emma Gaor, Renato Gamay and Maricris
Belga, and of Arsenio Sabater and Margarita Nacario were not celebrated by him since
he refused to solemnize them in the absence of a marriage license; that the marriage of
Samy Bocaya and Gina Bismonte was celebrated even without the requisite license due
to the insistence of the parties in order to avoid embarrassment to their guests but that,
at any rate, he did not sign their marriage contract which remains unsigned up to the
present.
2. Falsification of monthly report for July, 1991 regarding the number of
marriages solemnized and the number of documents notarized.
It is alleged that respondent judge made it appear that he solemnized seven (7)
marriages in the month of July, 1992, when in truth he did not do so or at most those
marriages were null and void; that respondents likewise made it appear that they have
notarized only six (6) documents for July, 1992, but the Notarial Register will show that
there were one hundred thirteen (113) documents which were notarized during that
month; and that respondents reported a notarial fee of only P18.50 for each document,
although in fact they collected P20.00 therefor and failed to account for the difference.
Respondent Baroy contends, however, that the marriage registry where all marriages
celebrated by respondent judge are entered is under the exclusive control and custody
of complainant Ramon Sambo, hence he is the only one who should be held responsible
for the entries made therein; that the reported marriages are merely based on the
payments made as solemnization fees which are in the custody of respondent Baroy.
She further avers that it is Sambo who is likewise the custodian of the Notarial Register;
that she cannot be held accountable for whatever alleged difference there is in the
notarial fees because she is liable only for those payments tendered to her by Sambo
himself; that the notarial fees she collects are duly covered by receipts; that of the
P20.00 charged, P18.50 is remitted directly to the Supreme Court as part of the
Judiciary Development Fund and P150 goes to the general fund of the Supreme Court
which is paid to the Municipal Treasurer of Tinambac, Camarines Sur. Respondent
theorizes that the discrepancies in the monthly report were manipulated by complainant
Sambo considering that he is the one in charge of the preparation of the monthly report.
Respondent Judge Palaypayon avers that the erroneous number of marriages
celebrated was intentionally placed by complainant Sambo; that the number of
marriages solemnized should not be based on solemnization fees paid for that month
since not all the marriages paid for are solemnized in the same month. He claims that
there were actually only six (6) documents notarized in the month of July, 1992 which
tallied with the official receipts issued by the clerk of court; that it is Sambo who should
be held accountable for any unreceipted payment for notarial fees because he is the one
in charge of the Notarial Register; and that this case filed by complainant Sambo is
merely in retaliation for his failure to be appointed as the clerk of court. Furthermore,
respondent judge contends that he is not the one supervising or preparing the monthly
report, and that he merely has the ministerial duty to sign the same.
3. Bribery in consideration of an appointment in the court
Complainants allege that because of the retirement of the clerk of court, respondent
judge forwarded to the Supreme Court the applications of Rodel Abogado, Ramon
Sambo, and Jessell Abiog. However, they were surprised when respondent Baroy
reported for duty as clerk of court on October 21, 1991. They later found out that
respondent Baroy was the one appointed because she gave a brand-new air-
conditioning unit to respondent judge.
Respondent Baroy claims that when she was still in Naga City she purchased an air-
conditioning unit but when she was appointed clerk of court she had to transfer to
Tinambac and, since she no longer needed the air conditioner, she decided to sell the
same to respondent judge. The installation and use thereof by the latter in his office was
with the consent of the Mayor of Tinambac.
Respondent judge contends that he endorsed all the applications for the position of clerk
of court to the Supreme Court which has the sole authority over such appointments and
that he had no hand in the appointment of respondent Baroy. He contends that the air-
conditioning unit was bought from his
co-respondent on installment basis on May 29, 1992, eight (8) months after Baroy had
been appointed clerk of court. He claims that he would not be that naive to exhibit to the
public as item which could not be defended as a matter of honor and prestige.
4. Cash bond issued without a receipt
It is alleged that in Criminal Case No. 5438, entitled "People vs. Mendeza, et al.,
"bondswoman Januaria Dacara was allowed by respondent judge to change her
property bond to cash bond; that she paid the amount of P1,000.00 but was never
issued a receipt therefor nor was it made to appear in the records that the bond has
been paid; that despite the lapse of two years, the money was never returned to the
bondswoman; and that it has not been shown that the money was turned over to the
Municipal Treasurer of Tinambac.
Respondent Baroy counters that the cash bond was deposited with the former clerk of
court, then turned over to the acting clerk of court and, later, given to her under a
corresponding receipt; that the cash bond is deposited with the bank; and that should the
bondswoman desire to withdraw the same, she should follow the proper procedure
therefor.
Respondent judge contends that Criminal Case No. 5438 was archieved for failure of the
bondsman to deliver the body of the accused in court despite notice; and that he has
nothing to do with the payment of the cash bond as this is the duty of the clerk of court.
5. Infidelity in the custody of prisoners
Complainants contend that respondent judge usually got detention prisoners to work in
his house, one of whom was Alex Alano, who is accused in Criminal Case No. 5647 for
violation of the Dangerous Drugs Act; that while Alano was in the custody of respondent
judge, the former escaped and was never recaptured; that in order to conceal this fact,
the case was archived pursuant to an order issued by respondent judge dated April 6,
1992.
Respondent judge denied the accusation and claims that he never employed detention
prisoners and that he has adequate household help; and that he had to order the case
archived because it had been pending for more than six (6) months and the accused
therein remained at large.
6. Unlawful collection of docket fees
Finally, respondents are charged with collecting docket fees from the Rural Bank of
Tinambac, Camarines Sur, Inc. although such entity is exempt by law from the payment
of said fees, and that while the corresponding receipt was issued, respondent Baroy
failed to remit the amount to the Supreme Court and, instead, she deposited the same in
her personal account.
Respondents Baroy contends that it was Judge-Designate Felimon Montenegro
(because respondent judge was on sick leave) who instructed her to demand payment of
docket fees from said rural bank; that the bank issued a check for P800.00; that she was
not allowed by the Philippine National Bank to encash the check and, instead, was
instructed to deposit the same in any bank account for clearing; that respondent
deposited the same in her account; and that after the check was cleared, she remitted
P400.00 to the Supreme Court and the other P400.00 was paid to the Municipal
Treasurer of Tinambac.
On the basis of the foregoing contentions, First Vice-Executive Judge Antonio N. Gerona
prepared and submitted to us his Report and Recommendations dated May 20, 1994,
together with the administrative matter. We have perspicaciously reviewed the same and
we are favorably impressed by the thorough and exhaustive presentation and analysis of
the facts and evidence in said report. We commend the investigating judge for his
industry and perspicacity reflected by his findings in said report which, being amply
substantiated by the evidence and supported by logical illations, we hereby approve and
hereunder reproduce at length the material portions thereof.
xxx xxx xxx
The first charge against the respondents is illegal solemnization of
marriage. Judge Palaypayon is charged with having solemnized without a
marriage license the marriage of Sammy Bocaya and Gina Besmonte
(Exh. A). Alano Abellano and Nelly Edralin (Exh. B), Francisco Selpo and
Julieta Carrido (Exh. C), Eddie Terrobias and Maria Emma Gaor (Exh. D),
Renato Gamay and Maricris Belga (Exh. F) and Arsenio Sabater and
Margarita Nacario (Exh. G).
In all these aforementioned marriages, the blank space in the marriage
contracts to show the number of the marriage was solemnized as
required by Article 22 of the Family Code were not filled up. While the
contracting parties and their witnesses signed their marriage contracts,
Judge Palaypayon did not affix his signature in the marriage contracts,
except that of Abellano and Edralin when Judge Palaypayon signed their
marriage certificate as he claims that he solemnized this marriage under
Article 34 of the Family Code of the Philippines. In said marriages the
contracting parties were not furnished a copy of their marriage contract
and the Local Civil Registrar was not sent either a copy of the marriage
certificate as required by Article 23 of the Family Code.
The marriage of Bocaya and Besmonte is shown to have been
solemnized by Judge Palaypayon without a marriage license. The
testimonies of Bocay himself and Pompeo Ariola, one of the witnesses of
the marriage of Bocaya and Besmonte, and the photographs taken when
Judge Palaypayon solemnized their marriage (Exhs. K-3 to K-9)
sufficiently show that Judge Palaypayon really solemnized their marriage.
Bocaya declared that they were advised by Judge Palaypayon to return
after ten (10) days after their marriage was solemnized and bring with
them their marriage license. In the meantime, they already started living
together as husband and wife believing that the formal requisites of
marriage were complied with.
Judge Palaypayon denied that he solemnized the marriage of Bocaya
and Besmonte because the parties allegedly did not have a marriage
license. He declared that in fact he did not sign the marriage certificate,
there was no date stated on it and both the parties and the Local Civil
Registrar did not have a copy of the marriage certificate.
With respect to the photographs which show that he solemnized the
marriage of Bocaya and Besmonte, Judge Palaypayon explains that they
merely show as if he was solemnizing the marriage. It was actually a
simulated solemnization of marriage and not a real one. This happened
because of the pleading of the mother of one of the contracting parties
that he consent to be photographed to show that as if he was solemnizing
the marriage as he was told that the food for the wedding reception was
already prepared, visitors were already invited and the place of the
parties where the reception would be held was more than twenty (20)
kilometers away from the poblacion of Tinambac.
The denial made by Judge Palaypayon is difficult to believe. The fact
alone that he did not sign the marriage certificate or contract, the same
did not bear a date and the parties and the Local Civil Registrar were not
furnished a copy of the marriage certificate, do not by themselves show
that he did not solemnize the marriage. His uncorroborated testimony
cannot prevail over the testimony of Bocaya and Ariola who also
declared, among others, that Bocaya and his bride were advised by
Judge Palaypayon to return after ten (10) days with their marriage license
and whose credibility had not been impeached.
The pictures taken also from the start of the wedding ceremony up to the
signing of the marriage certificate in front of Judge Palaypayon and on his
table (Exhs. K-3, K-3-a, K-3-b, K-3-c, K-4, K-4-a, K-4-b, K-4-c,
K-4-d, K-5, K-5-a, K-5-b, K-6, K-7, K-8, K-8-a and K-9), cannot possibly
be just to show a simulated solemnization of marriage. One or two
pictures may convince a person of the explanation of Judge Palaypayon,
but not all those pictures.
Besides, as a judge it is very difficult to believe that Judge Palaypayon
would allows himself to be photographed as if he was solemnizing a
marriage on a mere pleading of a person whom he did not even know for
the alleged reasons given. It would be highly improper and unbecoming of
him to allow himself to be used as an instrument of deceit by making it
appear that Bocaya and Besmonte were married by him when in truth and
in fact he did not solemnize their marriage.
With respect to the marriage of Abellano and Edralin (Exh. B), Judge
Palaypayon admitted that he solemnized their marriage, but he claims
that it was under Article 34 of the Family Code, so a marriage license was
not required. The contracting parties here executed a joint affidavit that
they have been living together as husband and wife for almost six (6)
years already (Exh. 12; Exh. AA).
In their marriage contract which did not bear any date either when it was
solemnized, it was stated that Abellano was only eighteen (18) years, two
(2) months and seven (7) days old. If he and Edralin had been living
together as husband and wife for almost six (6) years already before they
got married as they stated in their joint affidavit, Abellano must ha(ve)
been less than thirteen (13) years old when he started living with Edralin
as his wife and this is hard to believe. Judge Palaypayon should ha(ve)
been aware of this when he solemnized their marriage as it was his duty
to ascertain the qualification of the contracting parties who might ha(ve)
executed a false joint affidavit in order to have an instant marriage by
avoiding the marriage license requirement.
On May 23, 1992, however, after this case was already filed, Judge
Palaypayon married again Abellano and Edralin, this time with a marriage
license (Exh. BB). The explanation given by Judge Palaypayon why he
solemnized the marriage of the same couple for the second time is that
he did not consider the first marriage he solemnized under Article 34 of
the Family Code as (a) marriage at all because complainant Ramon
Sambo did not follow his instruction that the date should be placed in the
marriage certificate to show when he solemnized the marriage and that
the contracting parties were not furnished a copy of their marriage
certificate.
This act of Judge Palaypayon of solemnizing the marriage of Abellano
and Edralin for the second time with a marriage license already only gave
rise to the suspicion that the first time he solemnized the marriage it was
only made to appear that it was solemnized under exceptional character
as there was not marriage license and Judge Palaypayon had already
signed the marriage certificate. If it was true that he solemnized the first
marriage under exceptional character where a marriage license was not
required, why did he already require the parties to have a marriage
license when he solemnized their marriage for the second time?
The explanation of Judge Palaypayon that the first marriage of Abellano
and Edralin was not a marriage at all as the marriage certificate did not
state the date when the marriage was solemnized and that the
contracting parties were not furnished a copy of their marriage certificate,
is not well taken as they are not any of those grounds under Article(s) 35,
36, 37 and 38 of the Family Code which declare a marriage void from the
beginning. Even if no one, however, received a copy of the marriage
certificate, the marriage is still valid (Jones vs. H(o)rtiguela, 64 Phil. 179).
Judge Palaypayon cannot just absolve himself from responsibility by
blaming his personnel. They are not the guardian(s) of his official function
and under Article 23 of the Family Code it is his duty to furnish the
contracting parties (a) copy of their marriage contract.
With respect to the marriage of Francisco Selpo and Julieta Carrido (Exh.
C), and Arsenio Sabater and Margarita Nacario (Exh. G), Selpo and
Carrido and Sabater and Nacarcio executed joint affidavits that Judge
Palaypayon did not solemnize their marriage (Exh. 13-A and Exh. 1).
Both Carrido and Nacario testified for the respondents that actually Judge
Palaypayon did not solemnize their marriage as they did not have a
marriage license. On cross-examination, however, both admitted that they
did not know who prepared their affidavits. They were just told, Carrido by
a certain Charito Palaypayon, and Nacario by a certain Kagawad
Encinas, to just go to the Municipal building and sign their joint affidavits
there which were already prepared before the Municipal Mayor of
Tinambac, Camarines Sur.
With respect to the marriage of Renato Gamay and Maricris Belga (Exh.
f), their marriage contract was signed by them and by their two (2)
witnesses, Atty. Elmer Brioso and respondent Baroy (Exhs. F-1 and F-2).
Like the other aforementioned marriages, the solemnization fee was also
paid as shown by a receipt dated June 7, 1992 and signed by respondent
Baroy (Exh. F-4).
Judge Palaypayon also denied having solemnized the marriage of Gamay
and Belga allegedly because there was no marriage license. On her part,
respondent Baroy at first denied that the marriage was solemnized. When
she was asked, however, why did she sign the marriage contract as a
witness she answered that she thought the marriage was already
solemnized (TSN, p. 14; 10-28-93).
Respondent Baroy was, and is, the clerk of court of Judge Palaypayon.
She signed the marriage contract of Gamay and Belga as one of the two
principal sponsors. Yet, she wanted to give the impression that she did
not even know that the marriage was solemnized by Judge Palaypayon.
This is found very difficult to believe.
Judge Palaypayon made the same denial of having solemnized also the
marriage of Terrobias and Gaor (Exh. D). The contracting parties and
their witnesses also signed the marriage contract and paid the
solemnization fee, but Judge Palaypayon allegedly did not solemnize
their marriage due to lack of marriage license. Judge Palaypayon
submitted the affidavit of William Medina, Vice-Mayor of Tinambac, to
corroborate his testimony (Exh. 14). Medina, however, did not testify in
this case and so his affidavit has no probative value.
Judge Palaypayon testified that his procedure and practice have been
that before the contracting parties and their witnesses enter his chamber
in order to get married, he already required complainant Ramon Sambo
to whom he assigned the task of preparing the marriage contract, to
already let the parties and their witnesses sign their marriage contracts,
as what happened to Gamay and Belga, and Terrobias and Gaor, among
others. His purpose was to save his precious time as he has been
solemnizing marriages at the rate of three (3) to four (4) times everyday
(TSN, p. 12;
2-1-94).
This alleged practice and procedure, if true, is highly improper and
irregular, if not illegal, because the contracting parties are supposed to be
first asked by the solemnizing officer and declare that they take each
other as husband and wife before the solemnizing officer in the presence
of at least two (2) witnesses before they are supposed to sign their
marriage contracts (Art. 6, Family Code).
The uncorroborated testimony, however, of Judge Palaypayon as to his
alleged practice and procedure before solemnizing a marriage, is not true
as shown by the picture taken during the wedding of Bocaya and
Besmonte (Exhs. K-3 to K-9) and by the testimony of respondent Baroy
herself who declared that the practice of Judge Palaypayon ha(s) been to
let the contracting parties and their witnesses sign the marriage contract
only after Judge Palaypayon has solemnized their marriage (TSN, p. 53;
10-28-93).
Judge Palaypayon did not present any evidence to show also that he was
really solemnizing three (3) to four (4) marriages everyday. On the
contrary his monthly report of cases for July, 1992 shows that his court
had only twenty-seven (27) pending cases and he solemnized only seven
(7) marriages for the whole month (Exh. E). His monthly report of cases
for September, 1992 shows also that he solemnized only four (4)
marriages during the whole month (Exh. 7).
In this first charge of having illegally solemnized marriages, respondent
Judge Palaypayon has presented and marked in evidence several
marriage contracts of other persons, affidavits of persons and certification
issued by the Local Civil Registrar (Exhs. 12-B to 12-H). These persons
who executed affidavits, however, did not testify in this case. Besides, the
marriage contracts and certification mentioned are immaterial as Judge
Palaypayon is not charged of having solemnized these marriages illegally
also. He is not charged that the marriages he solemnized were all illegal.
The second charge against herein respondents, that of having falsified
the monthly report of cases submitted to the Supreme Court and not
stating in the monthly report the actual number of documents notarized
and issuing the corresponding receipts of the notarial fees, have been
sufficiently proven by the complainants insofar as the monthly report of
cases for July and September, 1992 are concerned.
The monthly report of cases of the MTC of Tinambac, Camarines Sur for
July, 1992 both signed by the respondents, show that for said month
there were six (6) documents notarized by Judge Palaypayon in his
capacity as Ex-Officio Notary Public (Exhs. H to H-1-b). The notarial
register of the MTC of Tinambac, Camarines Sur, however, shows that
there were actually one hundred thirteen (113) documents notarized by
Judge Palaypayon for the said month (Exhs. Q to Q-45).
Judge Palaypayon claims that there was no falsification of the monthly
report of cases for July, 1992 because there were only six (6) notarized
documents that were paid (for) as shown by official receipts. He did not,
however, present evidence of the alleged official receipts showing that the
notarial fee for the six (6) documetns were paid. Besides, the monthly
report of cases with respect to the number of documents notarized should
not be based on how many notarized documents were paid of the notarial
fees, but the number of documents placed or recorded in the notarial
register.
Judge Palaypayon admitted that he was not personally verifying and
checking anymore the correctness of the monthly reports because he
relies on his co-respondent who is the Clerk of Court and whom he has
assumed to have checked and verified the records. He merely signs the
monthly report when it is already signed by respondent Baroy.
The explanation of Judge Palaypayon is not well taken because he is
required to have close supervision in the preparation of the monthly report
of cases of which he certifies as to their correctness. As a judge he is
personally responsible for the proper discharge of his functions (The Phil.
Trial Lawyer's Asso. Inc. vs. Agana, Sr., 102 SCRA 517). In Nidera vs.
Lazaro, 174 SCRA 581, it was held that "A judge cannot take refuge
behind the inefficiency or mismanagement of his court personnel."
On the part of respondent Baroy, she puts the blame of the falsification of
the monthly report of cases on complainant Sambo whom she allegedly
assigned to prepare not only the monthly report of cases, but the
preparation and custody of marriage contracts, notarized documents and
the notarial register. By her own admission she has assigned to
complainant Sambo duties she was supposed to perform, yet according
to her she never bother(ed) to check the notarial register of the court to
find out the number of documents notarized in a month (TSN, p. 30; 11-
23-93).
Assuming that respondent Baroy assigned the preparation of the monthly
report of cases to Sambo, which was denied by the latter as he claims
that he only typed the monthly report based on the data given to him by
her, still it is her duty to verify and check whether the report is correct.
The explanation of respondent Baroy that Sambo was the one in custody
of marriage contracts, notarized documents and notarial register, among
other things, is not acceptable not only because as clerk of court she was
supposed to be in custody, control and supervision of all court records
including documents and other properties of the court (p. 32, Manual for
Clerks of Court), but she herself admitted that from January, 1992 she
was already in full control of all the records of the court including receipts
(TSN, p. 11; 11-23-93).
The evidence adduced in this cases in connection with the charge of
falsification, however, also shows that respondent Baroy did not account
for what happened to the notarial fees received for those documents
notarized during the month of July and September, 1992. The evidence
adduced in this case also sufficiently show that she received cash bond
deposits and she did not deposit them to a bank or to the Municipal
Treasurer; and that she only issued temporary receipts for said cash bond
deposits.
For July, 1992 there were only six (6) documents reported to have been
notarized by Judge Palaypayon although the documents notarized for
said month were actually one hundred thirteen (113) as recorded in the
notarial register. For September, 1992, there were only five (5)
documents reported as notarized for that month, though the notarial
register show(s) that there were fifty-six (56) documents actually
notarized. The fee for each document notarized as appearing in the
notarial register was P18.50. Respondent Baroy and Sambo declared that
what was actually being charged was P20.00. Respondent Baroy
declared that P18.50 went to the Supreme Court and P1.50 was being
turned over to the Municipal Treasurer.
Baroy, however, did not present any evidence to show that she really sent
to the Supreme Court the notarial fees of P18.50 for each document
notarized and to the Municipal Treasurer the additional notarial fee of
P1.50. This should be fully accounted for considering that Baroy herself
declared that some notarial fees were allowed by her at her own
discretion to be paid later. Similarly, the solemnization fees have not been
accounted for by Baroy considering that she admitted that even (i)n those
instances where the marriages were not solemnized due to lack of
marriage license the solemnization fees were not returned anymore,
unless the contracting parties made a demand for their return. Judge
Palaypayon declared that he did not know of any instance when
solemnization fee was returned when the marriage was not solemnized
due to lack of marriage license.
Respondent Baroy also claims that Ramon Sambo did not turn over to
her some of the notarial fees. This is difficult to believe. It was not only
because Sambo vehemently denied it, but the minutes of the conference
of the personnel of the MTC of Tinambac dated January 20, 1992 shows
that on that date Baroy informed the personnel of the court that she was
taking over the functions she assigned to Sambo, particularly the
collection of legal fees (Exh. 7). The notarial fees she claims that Sambo
did not turn over to her were for those documents notarized (i)n July and
September, 1992 already. Besides there never was any demand she
made for Sambo to turn over some notarial fees supposedly in his
possession. Neither was there any memorandum she issued on this
matter, in spite of the fact that she has been holding meetings and issuing
memoranda to the personnel of the court (Exhs. V, W, FF, FF-1, FF-2,
FF-3; Exhs. 4-A (supplement(s), 5-8, 6-S, 7-S and 8-S).
It is admitted by respondent Baroy that on October 29, 1991 a cash bond
deposit of a certain Dacara in the amount of One Thousand (P1,000.00)
Pesos was turned over to her after she assumed office and for this cash
bond she issued only a temporary receipt (Exh. Y). She did not deposit
this cash bond in any bank or to the Municipal Treasurer. She just kept it
in her own cash box on the alleged ground that the parties in that case
where the cash bond was deposited informed her that they would settle
the case amicably.
Respondent Baroy declared that she finally deposited the aforementioned
cash bond of One Thousand (P1,000.00) Pesos with the Land Bank of
the Philippines (LBP) in February, 1993, after this administrative case
was already filed (TSN, pp. 27-28; 12-22-93). The Pass Book, however,
shows that actually Baroy opened an account with the LBP, Naga Branch,
only on March 26, 1993 when she deposited an amount of Two Thousand
(P2,000.00) Pesos (Exhs. 8 to 8-1-a). She claims that One Thousand
(P1,000.000) Pesos of the initial deposit was the cash bond of Dacara. If
it were true, it was only after keeping to herself the cash bond of One
Thousand (P1,000.00) Pesos for around one year and five months when
she finally deposited it because of the filing of this case.
On April 29, 1993, or only one month and two days after she finally
deposited the One Thousand (P1,000.00) Pesos cash bond of Dacara,
she withdrew it from the bank without any authority or order from the
court. It was only on July 23, 1993, or after almost three (3) months after
she withdrew it, when she redeposited said cash bond (TSN, p. 6; 1-4-
94).
The evidence presented in this case also show that on February 28, 1993
respondent Baroy received also a cash bond of Three Thousand
(P3,000.00) Pesos from a certain Alfredo Seprones in Crim. Case No.
5180. For this cash bond deposit, respondent Baroy issued only an
annumbered temporary receipt (Exh. X and X-1). Again Baroy just kept
this Three Thousand (P3,000.00) Pesos cash bond to herself. She did not
deposit it either (in) a bank or (with) the Municipal Treasurer. Her
explanation was that the parties in Crim. Case No. 5180 informed her that
they would settle the case amicably. It was on April 26, 1993, or almost
two months later when Judge Palaypayon issued an order for the release
of said cash bond (Exh. 7).
Respondent Baroy also admitted that since she assumed office on
October 21, 1991 she used to issue temporary receipt only for cash bond
deposits and other payments and collections she received. She further
admitted that some of these temporary receipts she issued she failed to
place the number of the receipts such as that receipt marked Exhibit X
(TSN, p. 35; 11-23-93). Baroy claims that she did not know that she had
to use the official receipts of the Supreme Court. It was only from
February, 1993, after this case was already filed, when she only started
issuing official receipts.
The next charge against the respondents is that in order to be appointed
Clerk of Court, Baroy gave Judge Palaypayon an air conditioner as a gift.
The evidence adduced with respect to this charge, show that on August
24, 1991 Baroy bought an air conditioner for the sum of Seventeen
Thousand Six Hundred (P17,600.00) Pesos (Exhs. I and I-1). The same
was paid partly in cash and in check (Exhs. I-2 and I-3). When the air
conditioner was brought to court in order to be installed in the chamber of
Judge Palaypayon, it was still placed in the same box when it was bought
and was not used yet.
The respondents claim that Baroy sold it to Judge Palaypayon for Twenty
Thousand (P20,00.00) Pesos on installment basis with a down payment
of Five Thousand (P5,000.00) Pesos and as proof thereof the
respondents presented a typewritten receipt dated May 29, 1993 (Exh.
22). The receipt was signed by both respondents and by the Municipal
Mayor of Tinambac, Camarines Sur and another person as witness.
The alleged sale between respondents is not beyond suspicion. It was
bought by Baroy at a time when she was applying for the vacant position
of Clerk of Court (to) which she was eventually appointed in October,
1991. From the time she bought the air conditioner on August 24, 1991
until it was installed in the office of Judge Palaypayon it was not used yet.
The sale to Judge Palaypayon was only evidenced by a mere typewritten
receipt dated May 29, 1992 when this case was already filed. The receipt
could have been easily prepared. The Municipal Mayor of Tinambac who
signed in the receipt as a witness did not testify in this case. The sale is
between the Clerk of Court and the Judge of the same court. All these
circumstances give rise to suspicion of at least impropriety. Judges
should avoid such action as would subject (them) to suspicion and (their)
conduct should be free from the appearance of impropriety (Jaagueta vs.
Boncasos, 60 SCRA 27).
With respect to the charge that Judge Palaypayon received a cash bond
deposit of One Thousand (P1,000.00) Pesos from Januaria Dacara
without issuing a receipt, Dacara executed an affidavit regarding this
charge that Judge Palaypayon did not give her a receipt for the P1,000.00
cash bond she deposited (Exh. N). Her affidavit, however, has no
probative value as she did not show that this cash bond of P1,000.00
found its way into the hands of respondent Baroy who issued only a
temporary receipt for it and this has been discussed earlier.
Another charge against Judge Palaypayon is the getting of detention
prisoners to work in his house and one of them escaped while in his
custody and was never found again. To hide this fact, the case against
said accused was ordered archived by Judge Palaypayon. The evidence
adduced with respect to this particular charge, show that in Crim. Case
No. 5647 entitled People vs. Stephen Kalaw, Alex Alano and Allan
Adupe, accused Alex Alano and Allan Adupe were arrested on April 12,
1991 and placed in the municipal jail of Tinambac, Camarines Sur (Exhs.
0, 0-1, 0-2 and 0-3; Exh. 25). The evidence presented that Alex Alano
was taken by Judge Palaypayon from the municipal jail where said
accused was confined and that he escaped while in custody of Judge
Palaypayon is solely testimonial, particularly that of David Ortiz, a former
utility worker of the MTC of Tinambac.
Herein investigator finds said evidence not sufficient. The complainants
should have presented records from the police of Tinambac to show that
Judge Palaypayon took out from the municipal jail Alex Alano where he
was under detention and said accused escaped while in the custody of
Judge Palaypayon.
The order, however, of Judge Palaypayon dated April 6, 1992 in Crim.
Case No. 5047 archiving said case appears to be without basis. The
order states: "this case was filed on April 12, 1991 and the records show
that the warrant of arrest (was) issued against the accused, but up to this
moment there is no return of service for the warrant of arrest issued
against said accused" (Exh. 0-4). The records of said case, however,
show that in fact there was a return of the service of the warrant of arrest
dated April 12, 1991 showing that Alano and Adupe were arrested (Exh.
0-3).
Judge Palaypayon explained that his order dated April 6, 1992 archiving
Crim. Case No. 5047 referred only to one of the accused who remained
at large. The explanation cannot be accepted because the two other
accused, Alano and Adupe, were arrested. Judge Palaypayon should
have issued an order for the arrest of Adupe who allegedly jumped bail,
but Alano was supposed to be confined in the municipal jail if his claim is
true that he did not take custody of Alano.
The explanation also of Judge Palaypayon why he ordered the case
archived was because he heard from the police that Alano escaped. This
explanation is not acceptable either. He should ha(ve) set the case and if
the police failed to bring to court Alano, the former should have been
required to explain in writing why Alano was not brought to court. If the
explanation was that Alano escaped from jail, he should have issued an
order for his arrest. It is only later on when he could not be arrested when
the case should have been ordered archived. The order archiving this
case for the reason that he only heard that Alano escaped is another
circumstance which gave rise to a suspicion that Alano might have really
escaped while in his custody only that the complainants could not present
records or other documentary evidence to prove the same.
The last charge against the respondents is that they collected filing fees
on collection cases filed by the Rural Bank of Tinambac, Camarines Sur
which was supposed to be exempted in paying filing fees under existing
laws and that the filing fees received was deposited by respondent Baroy
in her personal account in the bank. The evidence presented show that
on February 4, 1992 the Rural Bank of Tinambac filed ten (10) civil cases
for collection against farmers and it paid the total amount of Four Hundred
(P400.00) Pesos representing filing fees. The complainants cited Section
14 of Republic Act 720, as amended, which exempts Rural Banks (from)
the payment of filing fees on collection of sums of money cases filed
against farmers on loans they obtained.
Judge Palaypayon, however, had nothing to do with the payment of the
filing fees of the Rural Bank of Tinambac as it was respondent Baroy who
received them and besides, on February 4, 1992, he was on sick leave.
On her part Baroy claims that the bank paid voluntarily the filing fees. The
records, however, shows that respondent Baroy sent a letter to the
manager of the bank dated January 28, 1992 to the effect that if the bank
would not pay she would submit all Rural Bank cases for dismissal
(Annex 6, comment by respondent Baroy).
Respondent Baroy should have checked whether the Rural Bank of
Tinambac was really exempt from the payment of filing fees pursuant to
Republic Act 720, as amended, instead of threatening the bank to have
its cases be submitted to the court in order to have them dismissed. Here
the payment of the filing fees was made on February 4, 1992, but the
Four Hundred (P400.00) Pesos was only turned over to the Municipal
Treasurer on March 12, 1992. Here, there is an undue delay again in
complying with her obligation as accountable officer.
In view of the foregoing findings that the evidence presented by the
complainants sufficiently show that respondent Judge Lucio P.
Palaypayon, Jr. had solemnized marriages, particularly that of Sammy
Bocaya and Gina Besmonte, without a marriage license, and that it
having been shown that he did not comply with his duty in closely
supervising his clerk of court in the preparation of the monthly report of
cases being submitted to the Supreme Court, particularly for the months
of July and September, 1992 where it has been proven that the reports
for said two (2) months were falsified with respect to the number of
documents notarized, it is respectfully recommended that he be imposed
a fine of TEN THOUSAND (P10,000.00) PESOS with a warning that the
same or similar offenses will be more severely dealt with.
The fact that Judge Palaypayon did not sign the marriage contracts or
certificates of those marriages he solemnized without a marriage license,
there were no dates placed in the marriage contracts to show when they
were solemnized, the contracting parties were not furnished their
marriage contracts and the Local Civil Registrar was not being sent any
copy of the marriage contract, will not absolve him from liability. By
solemnizing alone a marriage without a marriage license he as the
solemnizing officer is the one responsible for the irregularity in not
complying (with) the formal requ(i)sites of marriage and under Article 4(3)
of the Family Code of the Philippines, he shall be civilly, criminally and
administratively liable.
Judge Palaypayon is likewise liable for his negligence or failure to comply
with his duty of closely supervising his clerk of court in the performance of
the latter's duties and functions, particularly the preparation of the monthly
report of cases (Bendesula vs. Laya, 58 SCRA 16). His explanation that
he only signed the monthly report of cases only when his clerk of court
already signed the same, cannot be accepted. It is his duty to closely
supervise her, to check and verify the records if the monthly reports
prepared by his clerk of court do not contain false statements. It was held
that "A judge cannot take refuge behind the inefficiency or incompetence
of court personnel (Nidua vs. Lazaro, 174 SCRA 158).
In view also of the foregoing finding that respondent Nelia Esmeralda-
Baroy, the clerk of court of the Municipal Trial Court of Tinambac,
Camarines Sur, has been found to have falsified the monthly report of
cases for the months of July and September, 1992 with respect to the
number of documents notarized, for having failed to account (for) the
notarial fees she received for said two (2) months period; for having failed
to account (for) the solemnization fees of those marriages allegedly not
solemnized, but the solemnization fees were not returned; for
unauthorized issuance of temporary receipts, some of which were issued
unnumbered; for receiving the cash bond of Dacara on October 29, 1991
in the amount of One Thousand (P1,000.00) Pesos for which she issued
only a temporary receipt (Exh. Y) and for depositing it with the Land Bank
of the Philippines only on March 26, 1993, or after one year and five
months in her possession and after this case was already filed; for
withdrawing said cash bond of One Thousand (P1,000.00) Pesos on April
29, 1993 without any court order or authority and redepositing it only on
July 23, 1993; for receiving a cash bond of Three Thousand (P3,000.00)
Pesos from Alfredo Seprones in Crim. Case No. 5180, MTC, Tinambac,
Camarines Sur, for which she issued only an unnumbered temporary
receipt (Exhs. X and X-1) and for not depositing it with a bank or with the
Municipal Treasurer until it was ordered released; and for requiring the
Rural Bank of Tinambac, Camarines Sur to pay filing fees on February 4,
1992 for collection cases filed against farmers in the amount of Four
Hundred (P400.00) Pesos, but turning over said amount to the Municipal
Treasurer only on March 12, 1992, it is respectfully recommended that
said respondent clerk of court Nelia Esmeralda-Baroy be dismissed from
the service.
It is provided that "Withdrawal of court deposits shall be by the clerk of
court who shall issue official receipt to the provincial, city or municipal
treasurer for the amount withdrawn. Court deposits cannot be withdrawn
except by order of the court, . . . ." (Revised Manual of Instructions for
Treasurers, Sec. 183, 184 and 626; p. 127, Manual for Clerks of Court). A
circular also provides that the Clerks of Court shall immediately issue an
official receipt upon receipt of deposits from party litigants and thereafter
deposit intact the collection with the municipal, city or provincial treasurer
and their deposits, can only be withdrawn upon proper receipt and order
of the Court (DOJ Circular No. 52, 26 April 1968; p. 136, Manual for
Clerks of Court). Supreme Court Memorandum Circular No. 5, 25
November 1982, also provides that "all collections of funds of fiduciary
character including rental deposits, shall be deposited immediately by the
clerk of court concerned upon receipt thereof with City, Municipal or
Provincial Treasurer where his court is located" and that "no withdrawal of
any of such deposits shall be made except upon lawful order of the court
exercising jurisdiction over the subject matter.
Respondent Baroy had either failed to comply with the foregoing circulars,
or deliberately disregarded, or even intentionally violated them. By her
conduct, she demonstrated her callous unconcern for the obligations and
responsibility of her duties and functions as a clerk of court and
accountable officer. The gross neglect of her duties shown by her
constitute(s) a serious misconduct which warrant(s) her removal from
office. In the case of Belen P. Ferriola vs. Norma Hiam, Clerk of Court,
MTCC, Branch I, Batangas City; A.M. No. P-90-414; August 9, 1993, it
was held that "The clerk of court is not authorized to keep funds in his/her
custody; monies received by him/her shall be deposited immediately upon
receipt thereof with the City, Municipal or Provincial Treasurer. Supreme
Court Circular Nos. 5 dated November 25, 1982 and 5-A dated December
3, 1982. Respondent Hiam's failure to remit the cash bail bonds and fine
she collected constitutes serious misconduct and her misappropriation of
said funds constitutes dishonesty. "Respondent Norma Hiam was found
guilty of dishonesty and serious misconduct prejudicial to the best interest
of the service and (the Court) ordered her immediate dismissal (from) the
service.
xxx xxx xxx
We here emphasize once again our adjuration that the conduct and behavior of
everyone connected with an office charged with the dispensation of justice, from the
presiding judge to the lowliest clerk, should be circumscribed with the heavy burden of
responsibility. His conduct, at all times, must not only be characterized by propriety and
decorum but, above all else, must be beyond suspicion. Every employee should be an
example of integrity, uprightness and honesty.
5
Integrity in a judicial office is more than
a virtue, it is a necessity.
6
It applies, without qualification as to rank or position, from the
judge to the least of its personnel, they being standard-bearers of the exacting norms of
ethics and morality imposed upon a Court of justice.
On the charge regarding illegal marriages the Family Code pertinently provides that the
formal requisites of marriage are, inter alia, a valid marriage license except in the cases
provided for therein.
7
Complementarily, it declares that the absence of any of the
essential or formal requisites shall generally render the marriage void ab initio and that,
while an irregularity in the formal requisites shall not affect the validity of the marriage,
the party or parties responsible for the irregularity shall be civilly, criminally and
administratively liable.
8

The civil aspect is addressed to the contracting parties and those affected by the illegal
marriages, and what we are providing for herein pertains to the administrative liability of
respondents, all without prejudice to their criminal responsibility. The Revised Penal
Code provides that "(p)riests or ministers of any religious denomination or sect, or civil
authorities who shall perform or authorize any illegal marriage ceremony shall be
punished in accordance with the provisions of the Marriage Law."
9
This is of course,
within the province of the prosecutorial agencies of the Government.
The recommendation with respect to the administrative sanction to be imposed on
respondent judge should, therefore, be modified. For one, with respect to the charge of
illegal solemnization of marriages, it does appear that he had not taken to heart, but
actually trifled with, the law's concern for the institution of marriage and the legal effects
flowing from civil status. This, and his undeniable participation in the other offenses
charged as hereinbefore narrated in detail, approximate such serious degree of
misconduct and of gross negligence in the performance of judicial duties as to ineludibly
require a higher penalty.
WHEREFORE, the Court hereby imposes a FINE of P20,000.00 on respondent Judge
Lucio P. Palaypayon. Jr., with a stern warning that any repetition of the same or similar
offenses in the future will definitely be severely dealt with. Respondent Nelia Esmeralda-
Baroy is hereby DISMISSED from the service, with forfeiture of all retirement benefits
and with prejudice to employment in any branch, agency or instrumentality of the
Government, including government-owned or controlled corporations.
Let copies of this decision be spread on their records and furnished to the Office of the
Ombudsman for appropriate action.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo,
Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Cruz, J., took no part.
Bidin, J., is on leave.
DIGEST
FACTS:

The following are the complainants: Juvy N. Cosca (Stenographer 1), Edmundo B.
Peralta (Interpreter 1), Ramon C. Sambo (Clerk II) and Apollo Villamora (Process
Server). Respondents are Judge Lucio Palaypayon Jr., the presiding judge, and Nelia
B. Esmeralda-Baroy, clerk of court II. All work in MTC-Tinambac, Camarines Sur.

Complainants alleged that Palaypayon solemnized marriages even without the requisite
of a marriage license. Hence, the following couples were able to get married just by
paying the marriage fees to respondent Baroy: Alano P. Abellano & Nelly Edralin;
Francisco Selpo & Julieta Carrido; Eddie Terrobias & Maria Gacer; Renato Gamay &
Maricris Belga; Arsenio Sabater & Margarita Nacario; Sammy Bocaya & Gina Bismonte.
As a consequence, the marriage contracts of the following couples did not reflect any
marriage license number. In addition, Palaypayon did not sign the marriage contracts
and did not indicate the date of solemnization reasoning out that he allegedly had to wait
for the marriage license to be submitted by the parties which happens usually several
days after the marriage ceremony.

Palaypayon contends that marriage between Abellano & Edralin falls under Article 34 of
the Civil Code thus exempted from the marriage license requirement. According to him,
he gave strict instructions to complainant Sambo to furnish the couple copy of the
marriage contract and to file the same with the civil registrar but the latter failed to do
so. In order to solve the problem, the spouses subsequently formalized the marriage by
securing a marriage license and executing their marriage contract, a copy of which was
then filed with the civil registrar. The other five marriages were not illegally solemnized
because Palaypayon did not sign their marriage contracts and the date and place of
marriage are not included. It was alleged that copies of these marriage contracts are in
the custody of complainant Sambo. The alleged marriage of Selpo & Carrido, Terrobias
& Gacer, Gamay & Belga, Sabater & Nacario were not celebrated by him since he
refused to solemnize them in the absence of a marriage license and that the marriage of
Bocaya & Bismonte was celebrated even without the requisite license due to the
insistence of the parties to avoid embarrassment with the guests which he again did not
sign the marriage contract.

An illegal solemnization of marriage was charged against the respondents.

ISSUE: Whether the marriage solemnized by Judge Palaypayon were valid.

HELD:

Bocaya & Besmontes marriage was solemnized without a marriage license along with
the other couples. The testimonies of Bocay and Pompeo Ariola including the
photographs taken showed that it was really Judge Palaypayon who solemnized their
marriage. Bocaya declared that they were advised by judge to return after 10 days after
the solemnization and bring with them their marriage license. They already started living
together as husband and wife even without the formal requisite. With respect to the
photographs, judge explained that it was a simulated solemnization of marriage and not
a real one. However, considering that there were pictures from the start of the wedding
ceremony up to the signing of the marriage certificates in front of him. The court held
that it is hard to believe that it was simulated.

On the other hand, Judge Palaypayon admitted that he solemnized marriage between
Abellano & Edralin and claimed it was under Article 34 of the Civil Code so the marriage
license was dispensed with considering that the contracting parties executed a joint
affidavit that they have been living together as husband and wife for almost 6 years
already. However, it was shown in the marriage contract that Abellano was only 18 yrs
2months and 7 days old. If he and Edralin had been living together for 6 years already
before they got married as what is stated in the joint affidavit, Abellano must have been
less than 13 years old when they started living together which is hard to believe.
Palaypayon should have been aware, as it is his duty to ascertain the qualification of the
contracting parties who might have executed a false joint affidavit in order to avoid the
marriage license requirement.

Article 4 of the Family Code pertinently provides that in the absence of any of the
essential or formal requisites shall render the marriage void ab initio whereas an
irregularity in the formal requisite shall not affect the validity of the marriage but the party
or parties responsible for the irregularity shall be civilly, criminally, and administratively
liable.

Mariategui vs. CA (G.R. No. 57062, 24 January 1992)
MARIA DEL ROSARIO MARIATEGUI, ET AL., petitioners,
vs.
HON. COURT OF APPEALS, JACINTO MARIATEGUI, JULIAN MARIATEGUI and
PAULINA MARIATEGUI,respondents.
Montesa, Albon & Associates for petitioners.
Parmenio B. Patacsil, Patacsil Twins Law Office for the heirs of the late Maria del
Rosario Mariategui.
Tinga, Fuentes & Tagle Firm for private respondents.

BIDIN, J .:
This is a petition for review on certiorari of the decision * of the Court of Appeals dated
December 24, 1980 in CA-G.R. No. 61841, entitled "Jacinto Mariategui, et al. v. Maria
del Rosario Mariategui, et al.," reversing the judgment of the then Court of First Instance
of Rizal, Branch VIII ** at Pasig, Metro Manila.
The undisputed facts are as follows:
Lupo Mariategui died without a will on June 26, 1953 (Brief for respondents, Rollo, pp.
116; 8). During his lifetime, Lupo Mariategui contracted three (3) marriages. With his first
wife, Eusebia Montellano, who died on November 8, 1904, he begot four (4) children,
namely: Baldomera, Maria del Rosario, Urbana and Ireneo. Baldomera died and was
survived by her children named Antero, Rufina, Catalino, Maria, Gerardo, Virginia and
Federico, all surnamed Espina. Ireneo also died and left a son named Ruperto. With his
second wife, Flaviana Montellano, he begot a daughter named Cresenciana who was
born on May 8, 1910 (Rollo, Annex "A", p. 36).
Lupo Mariategui and Felipa Velasco (Lupo's third wife) got married sometime in 1930.
They had three children, namely: Jacinto, born on July 3, 1929, Julian, born on February
16, 1931 and Paulina, born on April 19, 1938. Felipa Velasco Mariategui died in 1941
(Rollo, Ibid).
At the time of his death, Lupo Mariategui left certain properties which he acquired when
he was still unmarried (Brief for respondents, Rollo, pp. 116; 4). These properties are
described in the complaint as Lots Nos. 163, 66, 1346 and 156 of the Muntinglupa
Estate (Rollo, Annex "A", p. 39).
On December 2, 1967, Lupo's descendants by his first and second marriages, namely,
Maria del Rosario, Urbana, Ruperto, Cresencia, all surnamed Mariategui and Antero,
Rufina, Catalino, Maria, Gerardo, Virginia and Federico, all surnamed Espina, executed
a deed of extrajudicial partition whereby they adjudicated unto themselves Lot No. 163
of the Muntinglupa Estate. Thereafter, Lot No. 163 was the subject of a voluntary
registration proceedings filed by the adjudicatees under Act No. 496, and the land
registration court issued a decree ordering the registration of the lot. Thus, on April 1,
1971, OCT No. 8828 was issued in the name of the above-mentioned heirs.
Subsequently, the registered owners caused the subdivision of the said lot into Lots Nos.
163-A to 163-H, for which separate transfer certificates of title were issued to the
respective parties (Rollo, ibid).
On April 23, 1973, Lupo's children by his third marriage with Felipa Velasco (Jacinto,
Julian and Paulina) filed with the lower court an amended complaint claiming that Lot
No. 163 together with Lots Nos. 669, 1346 and 154 were owned by their common father,
Lupo Mariategui, and that, with the adjudication of Lot No. 163 to their co-heirs, they
(children of the third marriage) were deprived of their respective shares in the lots.
Plaintiffs pray for partition of the estate of their deceased father and annulment of the
deed of extrajudicial partition dated December 2, 1967 (Petition, Rollo, p. 10). Cresencia
Mariategui Abas, Flaviana Mariategui Cabrera and Isabel Santos were impleaded in the
complaint as unwilling defendants as they would not like to join the suit as plaintiffs
although they acknowledged the status and rights of the plaintiffs and agreed to the
partition of the parcels of land as well as the accounting of their fruits (Ibid., Rollo, p. 8;
Record on Appeal, p. 4).
The defendants (now petitioners) filed an answer with counterclaim (Amended Record
on Appeal, p. 13). Thereafter, they filed a motion to dismiss on the grounds of lack of
cause of action and prescription. They specifically contended that the complaint was one
for recognition of natural children. On August 14, 1974, the motion to dismiss was
denied by the trial court, in an order the dispositive portion of which reads:
It is therefore the opinion of the Court that Articles 278 and 285 of the
Civil Code cited by counsel for the defendants are of erroneous
application to this case. The motion to dismiss is therefore denied for lack
of merit.
SO ORDERED. (Ibid, p. 37).
However, on February 16, 1977, the complaint as well as petitioners' counterclaim were
dismissed by the trial court, in its decision stating thus:
The plaintiffs' right to inherit depends upon the acknowledgment or
recognition of their continuous enjoyment and possession of status of
children of their supposed father. The evidence fails to sustain either
premise, and it is clear that this action cannot be sustained. (Ibid, Rollo,
pp. 67-68)
The plaintiffs elevated the case to the Court of Appeals on the ground that the trial court
committed an error ". . . in not finding that the parents of the appellants, Lupo Mariategui
and Felipa Velasco (were) lawfully married, and in holding (that) they (appellants) are
not legitimate children of their said parents, thereby divesting them of their inheritance . .
. " (Rollo, pp. 14-15).
On December 24, 1980, the Court of Appeals rendered a decision declaring all the
children and descendants of Lupo Mariategui, including appellants Jacinto, Julian and
Paulina (children of the third marriage) as entitled to equal shares in the estate of Lupo
Mariategui; directing the adjudicatees in the extrajudicial partition of real properties who
eventually acquired transfer certificates of title thereto, to execute deeds of
reconveyance in favor, and for the shares, of Jacinto, Julian and Paulina provided rights
of innocent third persons are not prejudiced otherwise the said adjudicatees shall
reimburse the said heirs the fair market value of their shares; and directing all the parties
to submit to the lower court a project of partition in the net estate of Lupo Mariategui
after payment of taxes, other government charges and outstanding legal obligations.
The defendants-appellees filed a motion for reconsideration of said decision but it was
denied for lack of merit. Hence, this petition which was given due course by the court on
December 7, 1981.
The petitioners submit to the Court the following issues: (a) whether or not prescription
barred private respondents' right to demand the partition of the estate of Lupo
Mariategui, and (b) whether or not the private respondents, who belatedly filed the action
for recognition, were able to prove their successional rights over said estate. The
resolution of these issues hinges, however, on the resolution of the preliminary
matter, i.e., the nature of the complaint filed by the private respondents.
The complaint alleged, among other things, that "plaintiffs are the children of the
deceased spouses Lupo Mariategui . . . and Felipa Velasco"; that "during his lifetime,
Lupo Mariategui had repeatedly acknowledged and confirmed plaintiffs as his children
and the latter, in turn, have continuously enjoyed such status since their birth"; and "on
the basis of their relationship to the deceased Lupo Mariategui and in accordance with
the law on intestate succession, plaintiffs are entitled to inherit shares in the foregoing
estate (Record on Appeal, pp. 5 & 6). It prayed, among others, that plaintiffs be declared
as children and heirs of Lupo Mariategui and adjudication in favor of plaintiffs their lawful
shares in the estate of the decedent (Ibid, p. 10).
A perusal of the entire allegations of the complaint, however, shows that the action is
principally one of partition. The allegation with respect to the status of the private
respondents was raised only collaterally to assert their rights in the estate of the
deceased. Hence, the Court of Appeals correctly adopted the settled rule that the nature
of an action filed in court is determined by the facts alleged in the complaint constituting
the cause of action (Republic vs. Estenzo, 158 SCRA 282 [1988]).
It has been held that, if the relief demanded is not the proper one which may be granted
under the law, it does not characterize or determine the nature of plaintiffs' action, and
the relief to which plaintiff is entitled based on the facts alleged by him in his complaint,
although it is not the relief demanded, is what determines the nature of the action (1
Moran, p. 127, 1979 ed., citing Baguioro vs. Barrios, et al., 77 Phil. 120).
With respect to the legal basis of private respondents' demand for partition of the estate
of Lupo Mariategui, the Court of Appeals aptly held that the private respondents are
legitimate children of the deceased.
Lupo Mariategui and Felipa Velasco were alleged to have been lawfully married in or
about 1930. This fact is based on the declaration communicated by Lupo Mariategui to
Jacinto who testified that "when (his) father was still living, he was able to mention to
(him) that he and (his) mother were able to get married before a Justice of the Peace of
Taguig, Rizal." The spouses deported themselves as husband and wife, and were
known in the community to be such. Although no marriage certificate was introduced to
this effect, no evidence was likewise offered to controvert these facts. Moreover, the
mere fact that no record of the marriage exists does not invalidate the marriage,
provided all requisites for its validity are present (People vs. Borromeo, 133 SCRA 106
[1984]).
Under these circumstances, a marriage may be presumed to have taken place between
Lupo and Felipa. The laws presume that a man and a woman, deporting themselves as
husband and wife, have entered into a lawful contract of marriage; that a child born in
lawful wedlock, there being no divorce, absolute or from bed and board is legitimate; and
that things have happened according to the ordinary course of nature and the ordinary
habits of life (Section 5 (z), (bb), (cc), Rule 131, Rules of Court; Corpus v. Corpus, 85
SCRA 567 [1978]; Saurnaba v. Workmen's Compensation, 85 SCRA 502 [1978];
Alavado v. City Gov't. of Tacloban, 139 SCRA 230 [1985]; Reyes v. Court of Appeals,
135 SCRA 439 [1985]).
Courts look upon the presumption of marriage with great favor as it is founded on the
following rationale:
The basis of human society throughout the civilized world is that of
marriage. Marriage in this jurisdiction is not only a civil contract, but it is a
new relation, an institution in the maintenance of which the public is
deeply interested. Consequently, every intendment of the law leans
toward legalizing matrimony. Persons dwelling together in apparent
matrimony are presumed, in the absence of any counterpresumption or
evidence special to that case, to be in fact married. The reason is that
such is the common order of society and if the parties were not what they
thus hold themselves out as being, they would be living in the constant
violation of decency and of
law . . . (Adong vs. Cheong Seng Gee, 43 Phil. 43, 56 [1922] quoted in
Alavado vs. City Government of Tacloban, 139 SCRA 230 [1985]).
So much so that once a man and a woman have lived as husband and wife and such
relationship is not denied nor contradicted, the presumption of their being married must
be admitted as a fact (Alavado v. City Gov't. of Tacloban, supra).
The Civil Code provides for the manner under which legitimate filiation may be proven.
However, considering the effectivity of the Family Code of the Philippines, the case at
bar must be decided under a new if not entirely dissimilar set of rules because the
parties have been overtaken by events, to use the popular phrase (Uyguangco vs. Court
of Appeals, G.R. No. 76873, October 26, 1989). Thus, under Title VI of the Family Code,
there are only two classes of children legitimate and illegitimate. The fine distinctions
among various types of illegitimate children have been eliminated (Castro vs. Court of
Appeals, 173 SCRA 656 [1989]).
Article 172 of the said Code provides that the filiation of legitimate children may be
established by the record of birth appearing in the civil register or a final judgment or by
the open and continuous possession of the status of a legitimate child.
Evidence on record proves the legitimate filiation of the private respondents. Jacinto's
birth certificate is a record of birth referred to in the said article. Again, no evidence
which tends to disprove facts contained therein was adduced before the lower court. In
the case of the two other private respondents, Julian and Paulina, they may not have
presented in evidence any of the documents required by Article 172 but they
continuously enjoyed the status of children of Lupo Mariategui in the same manner as
their brother Jacinto.
While the trial court found Jacinto's testimonies to be inconsequential and lacking in
substance as to certain dates and names of relatives with whom their family resided,
these are but minor details. The nagging fact is that for a considerable length of time and
despite the death of Felipa in 1941, the private respondents and Lupo lived together until
Lupo's death in 1953. It should be noted that even the trial court mentioned in its
decision the admission made in the affidavit of Cresenciana Mariategui Abas, one of the
petitioners herein, that " . . . Jacinto, Julian and Paulina Mariategui ay pawang mga
kapatid ko sa
ama . . ." (Exh. M, Record on Appeal, pp. 65-66).
In view of the foregoing, there can be no other conclusion than that private respondents
are legitimate children and heirs of Lupo Mariategui and therefore, the time limitation
prescribed in Article 285 for filing an action for recognition is inapplicable to this case.
Corollarily, prescription does not run against private respondents with respect to the
filing of the action for partition so long as the heirs for whose benefit prescription is
invoked, have not expressly or impliedly repudiated the co-ownership. In other words,
prescription of an action for partition does not lie except when the co-ownership is
properly repudiated by the co-owner (Del Banco vs. Intermediate Appellate Court, 156
SCRA 55 [1987] citing Jardin vs. Hollasco, 117 SCRA 532 [1982]).
Otherwise stated, a co-owner cannot acquire by prescription the share of the other co-
owners absent a clear repudiation of co-ownership duly communicated to the other co-
owners (Mariano vs. De Vega, 148 SCRA 342 [1987]). Furthermore, an action to
demand partition is imprescriptible and cannot be barred by laches (Del Banco vs. IAC,
156 SCRA 55 [1987]). On the other hand, an action for partition may be seen to be at
once an action for declaration of co-ownership and for segregation and conveyance of a
determinate portion of the property involved (Roque vs. IAC, 165 SCRA 118 [1988]).
Petitioners contend that they have repudiated the co-ownership when they executed the
extrajudicial partition excluding the private respondents and registered the properties in
their own names (Petition, p. 16; Rollo, p. 20). However, no valid repudiation was made
by petitioners to the prejudice of private respondents. Assuming petitioners' registration
of the subject lot in 1971 was an act of repudiation of the co-ownership, prescription had
not yet set in when private respondents filed in 1973 the present action for partition
(Ceniza vs. C.A., 181 SCRA 552 [1990]).
In their complaint, private respondents averred that in spite of their demands, petitioners,
except the unwilling defendants in the lower court, failed and refused to acknowledge
and convey their lawful shares in the estate of their father (Record on Appeal, p. 6). This
allegation, though denied by the petitioners in their answer (Ibid, p. 14), was never
successfully refuted by them. Put differently, in spite of petitioners' undisputed
knowledge of their relationship to private respondents who are therefore their co-heirs,
petitioners fraudulently withheld private respondent's share in the estate of Lupo
Mariategui. According to respondent Jacinto, since 1962, he had been inquiring from
petitioner Maria del Rosario about their (respondents) share in the property left by their
deceased father and had been assured by the latter (Maria del Rosario) not to worry
because they will get some shares. As a matter of fact, sometime in 1969, Jacinto
constructed a house where he now resides on Lot No. 163 without any complaint from
petitioners.
Petitioners' registration of the properties in their names in 1971 did not operate as a valid
repudiation of the co-ownership. In Adille vs. Court of Appeals (157 SCRA 455, 461-462
[1988]), the Court held:
Prescription, as a mode of terminating a relation of co-ownership, must
have been preceded by repudiation (of the co-ownership). The act of
repudiation, in turn, is subject to certain conditions: (1) a co-owner
repudiates the co-ownership; (2) such an act of repudiation is clearly
made known to the other co-owners; (3) the evidence thereon is clear and
conclusive; and (4) he has been in possession through open, continuous,
exclusive, and notorious possession of the property for the period
required by law.
xxx xxx xxx
It is true that registration under the Torrens system is constructive notice
of title, but it has likewise been our holding that the Torrens title does not
furnish shield for fraud. It is therefore no argument to say that the act of
registration is equivalent to notice of repudiation, assuming there was
one, notwithstanding the long-standing rule that registration operates as a
universal notice of title.
Inasmuch as petitioners registered the properties in their names in fraud of their co-heirs
prescription can only be deemed to have commenced from the time private respondents
discovered the petitioners' act of defraudation (Adille vs. Court of Appeals, supra).
Hence, prescription definitely may not be invoked by petitioners because private
respondents commenced the instant action barely two months after learning that
petitioners had registered in their names the lots involved.
WHEREFORE, the petition is DENIED and the assailed decision of the Court of Appeals
dated December 24, 1980 is Affirmed.
SO ORDERED.
Gutierrez, Jr., Feliciano, Davide, Jr. and Romero, JJ., concur.

DIGEST
FACTS:

Lupo Mariategui died without a will on June 26, 1953 and contracted 3 marriages during
his lifetime. He acquired the Muntinlupa Estate while he was still a bachelor. He had 4
children with his first wife Eusebia Montellano, who died in 1904 namely Baldomera,
Maria del Rosario, Urbano and Ireneo. Baldomera had 7 children namely Antero,
Rufina, Catalino, Maria, Gerardo, Virginia and Federico, all surnamed Espina. Ireneo on
the other hand had a son named Ruperto. On the other hand, Lupos second wife is
Flaviana Montellano where they had a daughter named Cresenciana. Lupo got married
for the third time in 1930 with Felipa Velasco and had 3 children namely Jacinto, Julian
and Paulina. Jacinto testified that his parents got married before a Justice of the Peace
of Taguig Rizal. The spouses deported themselves as husband and wife, and were
known in the community to be such.

Lupos descendants by his first and second marriages executed a deed of extrajudicial
partition whereby they adjudicated themselves Lot NO. 163 of the Muntinlupa Estate and
was subjected to a voluntary registration proceedings and a decree ordering the
registration of the lot was issued. The siblings in the third marriage prayed for inclusion
in the partition of the estate of their deceased father and annulment of the deed of
extrajudicial partition dated Dec. 1967.

ISSUE: Whether the marriage of Lupo with Felipa is valid in the absence of a marriage
license.

HELD:

Although no marriage certificate was introduced to prove Lupo and Felipas marriage, no
evidence was likewise offered to controvert these facts. Moreover, the mere fact that no
record of the marriage exists does not invalidate the marriage, provided all requisites for
its validity are present.

Under these circumstances, a marriage may be presumed to have taken place between
Lupo and Felipa. The laws presume that a man and a woman, deporting themselves as
husband and wife, have entered into a lawful contract of marriage; that a child born in
lawful wedlock, there being no divorce, absolute or from bed and board is legitimate; and
that things have happened according to the ordinary course of nature and the ordinary
habits of life.

Hence, Felipas children are legitimate and therefore have successional rights.


Republic vs. Dayot (G. R. No. 175581, 28 March 2008)
G.R. No. 175581 March 28, 2008
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
JOSE A. DAYOT, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179474
FELISA TECSON-DAYOT, Petitioner,
vs.
JOSE A. DAYOT, Respondent.
D E C I S I O N
CHICO-NAZARIO, J .:
Before us are two consolidated petitions. G.R. No. 175581 and G.R. No. 179474 are
Petitions for Review under Rule 45 of the Rules of Court filed by the Republic of the
Philippines and Felisa Tecson-Dayot (Felisa), respectively, both challenging the
Amended Decision
1
of the Court of Appeals, dated 7 November 2006, in CA-G.R. CV
No. 68759, which declared the marriage between Jose Dayot (Jose) and Felisa void ab
initio.
The records disclose that on 24 November 1986, Jose and Felisa were married at the
Pasay City Hall. The marriage was solemnized by Rev. Tomas V. Atienza.
2
In lieu of a
marriage license, Jose and Felisa executed a sworn affidavit,
3
also dated 24 November
1986, attesting that both of them had attained the age of maturity, and that being
unmarried, they had lived together as husband and wife for at least five years.
On 7 July 1993, Jose filed a Complaint
4
for Annulment and/or Declaration of Nullity of
Marriage with the Regional Trial Court (RTC), Bian, Laguna, Branch 25. He contended
that his marriage with Felisa was a sham, as no marriage ceremony was celebrated
between the parties; that he did not execute the sworn affidavit stating that he and Felisa
had lived as husband and wife for at least five years; and that his consent to the
marriage was secured through fraud.
In his Complaint, Jose gave his version of the events which led to his filing of the same.
According to Jose, he was introduced to Felisa in 1986. Immediately thereafter, he came
to live as a boarder in Felisas house, the latter being his landlady. Some three weeks
later, Felisa requested him to accompany her to the Pasay City Hall, ostensibly so she
could claim a package sent to her by her brother from Saudi Arabia. At the Pasay City
Hall, upon a pre-arranged signal from Felisa, a man bearing three folded pieces of paper
approached them. They were told that Jose needed to sign the papers so that the
package could be released to Felisa. He initially refused to do so. However, Felisa
cajoled him, and told him that his refusal could get both of them killed by her brother who
had learned about their relationship. Reluctantly, he signed the pieces of paper, and
gave them to the man who immediately left. It was in February 1987 when he discovered
that he had contracted marriage with Felisa. He alleged that he saw a piece of paper
lying on top of the table at the sala of Felisas house. When he perused the same, he
discovered that it was a copy of his marriage contract with Felisa. When he confronted
Felisa, the latter feigned ignorance.
In opposing the Complaint, Felisa denied Joses allegations and defended the validity of
their marriage. She declared that they had maintained their relationship as man and wife
absent the legality of marriage in the early part of 1980, but that she had deferred
contracting marriage with him on account of their age difference.
5
In her pre-trial brief,
Felisa expounded that while her marriage to Jose was subsisting, the latter contracted
marriage with a certain Rufina Pascual (Rufina) on 31 August 1990. On 3 June 1993,
Felisa filed an action for bigamy against Jose. Subsequently, she filed an administrative
complaint against Jose with the Office of the Ombudsman, since Jose and Rufina were
both employees of the National Statistics and Coordinating Board.
6
The Ombudsman
found Jose administratively liable for disgraceful and immoral conduct, and meted out to
him the penalty of suspension from service for one year without emolument.
7

On 26 July 2000, the RTC rendered a Decision
8
dismissing the Complaint. It disposed:
WHEREFORE, after a careful evaluation and analysis of the evidence presented by both
parties, this Court finds and so holds that the [C]omplaint does not deserve a favorable
consideration. Accordingly, the above-entitled case is hereby ordered DISMISSED with
costs against [Jose].
9

The RTC ruled that from the testimonies and evidence presented, the marriage
celebrated between Jose and Felisa on 24 November 1986 was valid. It dismissed
Joses version of the story as implausible, and rationalized that:
Any person in his right frame of mind would easily suspect any attempt to make him or
her sign a blank sheet of paper. [Jose] could have already detected that something was
amiss, unusual, as they were at Pasay City Hall to get a package for [Felisa] but it [was]
he who was made to sign the pieces of paper for the release of the said package.
Another indirect suggestion that could have put him on guard was the fact that, by his
own admission, [Felisa] told him that her brother would kill them if he will not sign the
papers. And yet it took him, more or less, three months to "discover" that the pieces of
paper that he signed was [sic] purportedly the marriage contract. [Jose] does not seem
to be that ignorant, as perceived by this Court, to be "taken in for a ride" by [Felisa.]
[Joses] claim that he did not consent to the marriage was belied by the fact that he
acknowledged Felisa Tecson as his wife when he wrote [Felisas] name in the duly
notarized statement of assets and liabilities he filled up on May 12, 1988, one year after
he discovered the marriage contract he is now claiming to be sham and false. [Jose],
again, in his company I.D., wrote the name of [Felisa] as the person to be contacted in
case of emergency. This Court does not believe that the only reason why her name was
written in his company I.D. was because he was residing there then. This is just but a
lame excuse because if he really considers her not his lawfully wedded wife, he would
have written instead the name of his sister.
When [Joses] sister was put into the witness stand, under oath, she testified that she
signed her name voluntarily as a witness to the marriage in the marriage certificate
(T.S.N., page 25, November 29, 1996) and she further testified that the signature
appearing over the name of Jose Dayot was the signature of his [sic] brother that he
voluntarily affixed in the marriage contract (page 26 of T.S.N. taken on November 29,
1996), and when she was asked by the Honorable Court if indeed she believed that
Felisa Tecson was really chosen by her brother she answered yes. The testimony of his
sister all the more belied his claim that his consent was procured through fraud.
10

Moreover, on the matter of fraud, the RTC ruled that Joses action had prescribed. It
cited Article 87
11
of the New Civil Code which requires that the action for annulment of
marriage must be commenced by the injured party within four years after the discovery
of the fraud. Thus:
That granting even for the sake of argument that his consent was obtained by [Felisa]
through fraud, trickery and machinations, he could have filed an annulment or
declaration of nullity of marriage at the earliest possible opportunity, the time when he
discovered the alleged sham and false marriage contract. [Jose] did not take any action
to void the marriage at the earliest instance. x x x.
12

Undeterred, Jose filed an appeal from the foregoing RTC Decision to the Court of
Appeals. In a Decision dated 11 August 2005, the Court of Appeals found the appeal to
be without merit. The dispositive portion of the appellate courts Decision reads:
WHEREFORE, the Decision appealed from is AFFIRMED.
13

The Court of Appeals applied the Civil Code to the marriage between Jose and Felisa as
it was solemnized prior to the effectivity of the Family Code. The appellate court
observed that the circumstances constituting fraud as a ground for annulment of
marriage under Article 86
14
of the Civil Code did not exist in the marriage between the
parties. Further, it ruled that the action for annulment of marriage on the ground of fraud
was filed beyond the prescriptive period provided by law. The Court of Appeals struck
down Joses appeal in the following manner:
Nonetheless, even if we consider that fraud or intimidation was employed on Jose in
giving his consent to the marriage, the action for the annulment thereof had already
prescribed. Article 87 (4) and (5) of the Civil Code provides that the action for annulment
of marriage on the ground that the consent of a party was obtained by fraud, force or
intimidation must be commenced by said party within four (4) years after the discovery of
the fraud and within four (4) years from the time the force or intimidation ceased.
Inasmuch as the fraud was allegedly discovered by Jose in February, 1987 then he had
only until February, 1991 within which to file an action for annulment of marriage.
However, it was only on July 7, 1993 that Jose filed the complaint for annulment of his
marriage to Felisa.
15

Likewise, the Court of Appeals did not accept Joses assertion that his marriage to Felisa
was void ab initio for lack of a marriage license. It ruled that the marriage was
solemnized under Article 76
16
of the Civil Code as one of exceptional character, with the
parties executing an affidavit of marriage between man and woman who have lived
together as husband and wife for at least five years. The Court of Appeals concluded
that the falsity in the affidavit to the effect that Jose and Felisa had lived together as
husband and wife for the period required by Article 76 did not affect the validity of the
marriage, seeing that the solemnizing officer was misled by the statements contained
therein. In this manner, the Court of Appeals gave credence to the good-faith reliance of
the solemnizing officer over the falsity of the affidavit. The appellate court further noted
that on the dorsal side of said affidavit of marriage, Rev. Tomas V. Atienza, the
solemnizing officer, stated that he took steps to ascertain the ages and other
qualifications of the contracting parties and found no legal impediment to their marriage.
Finally, the Court of Appeals dismissed Joses argument that neither he nor Felisa was a
member of the sect to which Rev. Tomas V. Atienza belonged. According to the Court of
Appeals, Article 56
17
of the Civil Code did not require that either one of the contracting
parties to the marriage must belong to the solemnizing officers church or religious sect.
The prescription was established only in Article 7
18
of the Family Code which does not
govern the parties marriage.
Differing with the ruling of the Court of Appeals, Jose filed a Motion for Reconsideration
thereof.1avvphi1 His central opposition was that the requisites for the proper application
of the exemption from a marriage license under Article 76 of the Civil Code were not fully
attendant in the case at bar. In particular, Jose cited the legal condition that the man and
the woman must have been living together as husband and wife for at least five years
before the marriage. Essentially, he maintained that the affidavit of marital cohabitation
executed by him and Felisa was false.
The Court of Appeals granted Joses Motion for Reconsideration and reversed itself.
Accordingly, it rendered an Amended Decision, dated 7 November 2006, the fallo of
which reads:
WHEREFORE, the Decision dated August 11, 2005 is RECALLED and SET ASIDE and
another one entered declaring the marriage between Jose A. Dayot and Felisa C.
Tecson void ab initio.
Furnish a copy of this Amended Decision to the Local Civil Registrar of Pasay City.
19

In its Amended Decision, the Court of Appeals relied on the ruling of this Court in Nial
v. Bayadog,
20
and reasoned that:
In Nial v. Bayadog, where the contracting parties to a marriage solemnized without a
marriage license on the basis of their affidavit that they had attained the age of majority,
that being unmarried, they had lived together for at least five (5) years and that they
desired to marry each other, the Supreme Court ruled as follows:
"x x x In other words, the five-year common-law cohabitation period, which is counted
back from the date of celebration of marriage, should be a period of legal union had it
not been for the absence of the marriage. This 5-year period should be the years
immediately before the day of the marriage and it should be a period of cohabitation
characterized by exclusivity meaning no third party was involved at any time within the
5 years and continuity that is unbroken. Otherwise, if that continuous 5-year
cohabitation is computed without any distinction as to whether the parties were
capacitated to marry each other during the entire five years, then the law would be
sanctioning immorality and encouraging parties to have common law relationships and
placing them on the same footing with those who lived faithfully with their spouse.
Marriage being a special relationship must be respected as such and its requirements
must be strictly observed. The presumption that a man and a woman deporting
themselves as husband and wife is based on the approximation of the requirements of
the law. The parties should not be afforded any excuse to not comply with every single
requirement and later use the same missing element as a pre-conceived escape ground
to nullify their marriage. There should be no exemption from securing a marriage license
unless the circumstances clearly fall within the ambit of the exception. It should be noted
that a license is required in order to notify the public that two persons are about to be
united in matrimony and that anyone who is aware or has knowledge of any impediment
to the union of the two shall make it known to the local civil registrar.
Article 80(3) of the Civil Code provides that a marriage solemnized without a marriage
license, save marriages of exceptional character, shall be void from the beginning.
Inasmuch as the marriage between Jose and Felisa is not covered by the exception to
the requirement of a marriage license, it is, therefore, void ab initio because of the
absence of a marriage license.
21

Felisa sought reconsideration of the Amended Decision, but to no avail. The appellate
court rendered a Resolution
22
dated 10 May 2007, denying Felisas motion.
Meanwhile, the Republic of the Philippines, through the Office of the Solicitor General
(OSG), filed a Petition for Review before this Court in G.R. No. 175581, praying that the
Court of Appeals Amended Decision dated 7 November 2006 be reversed and set aside
for lack of merit, and that the marriage between Jose and Felisa be declared valid and
subsisting. Felisa filed a separate Petition for Review, docketed as G.R. No. 179474,
similarly assailing the appellate courts Amended Decision. On 1 August 2007, this Court
resolved to consolidate the two Petitions in the interest of uniformity of the Court rulings
in similar cases brought before it for resolution.
23

The Republic of the Philippines propounds the following arguments for the allowance of
its Petition, to wit:
I
RESPONDENT FAILED TO OVERTHROW THE PRESUMPTION OF THE
VALIDITY OF HIS MARRIAGE TO FELISA.
II
RESPONDENT DID NOT COME TO THE COURT WITH CLEAN HANDS AND
SHOULD NOT BE ALLOWED TO PROFIT FROM HIS OWN FRAUDULENT
CONDUCT.
III
RESPONDENT IS ESTOPPED FROM ASSAILING THE LEGALITY OF HIS
MARRIAGE FOR LACK OF MARRIAGE LICEN[S]E.
24

Correlative to the above, Felisa submits that the Court of Appeals misapplied
Nial.
25
She differentiates the case at bar from Nial by reasoning that one of the parties
therein had an existing prior marriage, a circumstance which does not obtain in her
cohabitation with Jose. Finally, Felisa adduces that Jose only sought the annulment of
their marriage after a criminal case for bigamy and an administrative case had been filed
against him in order to avoid liability. Felisa surmises that the declaration of nullity of
their marriage would exonerate Jose from any liability.
For our resolution is the validity of the marriage between Jose and Felisa. To reach a
considered ruling on the issue, we shall jointly tackle the related arguments vented by
petitioners Republic of the Philippines and Felisa.
The Republic of the Philippines asserts that several circumstances give rise to the
presumption that a valid marriage exists between Jose and Felisa. For her part, Felisa
echoes the claim that any doubt should be resolved in favor of the validity of the
marriage by citing this Courts ruling in Hernandez v. Court of Appeals.
26
To buttress its
assertion, the Republic points to the affidavit executed by Jose and Felisa, dated 24
November 1986, attesting that they have lived together as husband and wife for at least
five years, which they used in lieu of a marriage license. It is the Republics position that
the falsity of the statements in the affidavit does not affect the validity of the marriage, as
the essential and formal requisites were complied with; and the solemnizing officer was
not required to investigate as to whether the said affidavit was legally obtained. The
Republic opines that as a marriage under a license is not invalidated by the fact that the
license was wrongfully obtained, so must a marriage not be invalidated by the fact that
the parties incorporated a fabricated statement in their affidavit that they cohabited as
husband and wife for at least five years. In addition, the Republic posits that the parties
marriage contract states that their marriage was solemnized under Article 76 of the Civil
Code. It also bears the signature of the parties and their witnesses, and must be
considered a primary evidence of marriage. To further fortify its Petition, the Republic
adduces the following documents: (1) Joses notarized Statement of Assets and
Liabilities, dated 12 May 1988 wherein he wrote Felisas name as his wife; (2)
Certification dated 25 July 1993 issued by the Barangay Chairman 192, Zone ZZ, District
24 of Pasay City, attesting that Jose and Felisa had lived together as husband and wife
in said barangay; and (3) Joses company ID card, dated 2 May 1988, indicating Felisas
name as his wife.
The first assignment of error compels this Court to rule on the issue of the effect of a
false affidavit under Article 76 of the Civil Code. A survey of the prevailing rules is in
order.
It is beyond dispute that the marriage of Jose and Felisa was celebrated on 24
November 1986, prior to the effectivity of the Family Code. Accordingly, the Civil Code
governs their union. Article 53 of the Civil Code spells out the essential requisites of
marriage as a contract:
ART. 53. No marriage shall be solemnized unless all these requisites are complied with:
(1) Legal capacity of the contracting parties;
(2) Their consent, freely given;
(3) Authority of the person performing the marriage; and
(4) A marriage license, except in a marriage of exceptional character. (Emphasis
ours.)
Article 58
27
makes explicit that no marriage shall be solemnized without a license first
being issued by the local civil registrar of the municipality where either contracting party
habitually resides, save marriages of an exceptional character authorized by the Civil
Code, but not those under Article 75.
28
Article 80(3)
29
of the Civil Code makes it clear
that a marriage performed without the corresponding marriage license is void, this being
nothing more than the legitimate consequence flowing from the fact that the license is
the essence of the marriage contract.
30
This is in stark contrast to the old Marriage
Law,
31
whereby the absence of a marriage license did not make the marriage void. The
rationale for the compulsory character of a marriage license under the Civil Code is that
it is the authority granted by the State to the contracting parties, after the proper
government official has inquired into their capacity to contract marriage.
32

Under the Civil Code, marriages of exceptional character are covered by Chapter 2, Title
III, comprising Articles 72 to 79. To wit, these marriages are: (1) marriages in articulo
mortis or at the point of death during peace or war, (2) marriages in remote places, (2)
consular marriages,
33
(3) ratification of marital cohabitation, (4) religious ratification of a
civil marriage, (5) Mohammedan or pagan marriages, and (6) mixed marriages.
34

The instant case pertains to a ratification of marital cohabitation under Article 76 of the
Civil Code, which provides:
ART. 76. No marriage license shall be necessary when a man and a woman who have
attained the age of majority and who, being unmarried, have lived together as husband
and wife for at least five years, desire to marry each other. The contracting parties shall
state the foregoing facts in an affidavit before any person authorized by law to administer
oaths. The official, priest or minister who solemnized the marriage shall also state in an
affidavit that he took steps to ascertain the ages and other qualifications of the
contracting parties and that he found no legal impediment to the marriage.
The reason for the law,
35
as espoused by the Code Commission, is that the publicity
attending a marriage license may discourage such persons who have lived in a state of
cohabitation from legalizing their status.
36

It is not contested herein that the marriage of Jose and Felisa was performed without a
marriage license. In lieu thereof, they executed an affidavit declaring that "they have
attained the age of maturity; that being unmarried, they have lived together as husband
and wife for at least five years; and that because of this union, they desire to marry each
other."
37
One of the central issues in the Petition at bar is thus: whether the falsity of an
affidavit of marital cohabitation, where the parties have in truth fallen short of the
minimum five-year requirement, effectively renders the marriage void ab initio for lack of
a marriage license.
We answer in the affirmative.
Marriages of exceptional character are, doubtless, the exceptions to the rule on the
indispensability of the formal requisite of a marriage license. Under the rules of statutory
construction, exceptions, as a general rule, should be strictly
38
but reasonably
construed.
39
They extend only so far as their language fairly warrants, and all doubts
should be resolved in favor of the general provisions rather than the exception.
40
Where
a general rule is established by statute with exceptions, the court will not curtail the
former or add to the latter by implication.
41
For the exception in Article 76 to apply, it is a
sine qua non thereto that the man and the woman must have attained the age of
majority, and that, being unmarried, they have lived together as husband and wife for at
least five years.
A strict but reasonable construction of Article 76 leaves us with no other expediency but
to read the law as it is plainly written. The exception of a marriage license under Article
76 applies only to those who have lived together as husband and wife for at least five
years and desire to marry each other. The Civil Code, in no ambiguous terms, places a
minimum period requirement of five years of cohabitation. No other reading of the law
can be had, since the language of Article 76 is precise. The minimum requisite of five
years of cohabitation is an indispensability carved in the language of the law. For a
marriage celebrated under Article 76 to be valid, this material fact cannot be dispensed
with. It is embodied in the law not as a directory requirement, but as one that partakes of
a mandatory character. It is worthy to mention that Article 76 also prescribes that the
contracting parties shall state the requisite facts
42
in an affidavit before any person
authorized by law to administer oaths; and that the official, priest or minister who
solemnized the marriage shall also state in an affidavit that he took steps to ascertain
the ages and other qualifications of the contracting parties and that he found no legal
impediment to the marriage.
It is indubitably established that Jose and Felisa have not lived together for five years at
the time they executed their sworn affidavit and contracted marriage. The Republic
admitted that Jose and Felisa started living together only in June 1986, or barely five
months before the celebration of their marriage.
43
The Court of Appeals also noted
Felisas testimony that Jose was introduced to her by her neighbor, Teresita Perwel,
sometime in February or March 1986 after the EDSA Revolution.
44
The appellate court
also cited Felisas own testimony that it was only in June 1986 when Jose commenced
to live in her house.
45

Moreover, it is noteworthy that the question as to whether they satisfied the minimum
five-year requisite is factual in nature. A question of fact arises when there is a need to
decide on the truth or falsehood of the alleged facts.
46
Under Rule 45, factual findings are
ordinarily not subject to this Courts review.
47
It is already well-settled that:
The general rule is that the findings of facts of the Court of Appeals are binding on this
Court. A recognized exception to this rule is when the Court of Appeals and the trial
court, or in this case the administrative body, make contradictory findings. However, the
exception does not apply in every instance that the Court of Appeals and the trial court
or administrative body disagree. The factual findings of the Court of Appeals remain
conclusive on this Court if such findings are supported by the record or based on
substantial evidence.
48

Therefore, the falsity of the affidavit dated 24 November 1986, executed by Jose and
Felisa to exempt them from the requirement of a marriage license, is beyond question.
We cannot accept the insistence of the Republic that the falsity of the statements in the
parties affidavit will not affect the validity of marriage, since all the essential and formal
requisites were complied with. The argument deserves scant merit. Patently, it cannot be
denied that the marriage between Jose and Felisa was celebrated without the formal
requisite of a marriage license. Neither did Jose and Felisa meet the explicit legal
requirement in Article 76, that they should have lived together as husband and wife for at
least five years, so as to be excepted from the requirement of a marriage license.
Anent petitioners reliance on the presumption of marriage, this Court holds that the
same finds no applicability to the case at bar. Essentially, when we speak of a
presumption of marriage, it is with reference to the prima facie presumption that a man
and a woman deporting themselves as husband and wife have entered into a lawful
contract of marriage.
49
Restated more explicitly, persons dwelling together in apparent
matrimony are presumed, in the absence of any counter-presumption or evidence
special to the case, to be in fact married.
50
The present case does not involve an
apparent marriage to which the presumption still needs to be applied. There is no
question that Jose and Felisa actually entered into a contract of marriage on 24
November 1986, hence, compelling Jose to institute a Complaint for Annulment and/or
Declaration of Nullity of Marriage, which spawned the instant consolidated Petitions.
In the same vein, the declaration of the Civil Code
51
that every intendment of law or fact
leans towards the validity of marriage will not salvage the parties marriage, and extricate
them from the effect of a violation of the law. The marriage of Jose and Felisa was
entered into without the requisite marriage license or compliance with the stringent
requirements of a marriage under exceptional circumstance. The solemnization of a
marriage without prior license is a clear violation of the law and would lead or could be
used, at least, for the perpetration of fraud against innocent and unwary parties, which
was one of the evils that the law sought to prevent by making a prior license a
prerequisite for a valid marriage.
52
The protection of marriage as a sacred institution
requires not just the defense of a true and genuine union but the exposure of an invalid
one as well.
53
To permit a false affidavit to take the place of a marriage license is to
allow an abject circumvention of the law. If this Court is to protect the fabric of the
institution of marriage, we must be wary of deceptive schemes that violate the legal
measures set forth in our laws.
Similarly, we are not impressed by the ratiocination of the Republic that as a marriage
under a license is not invalidated by the fact that the license was wrongfully obtained, so
must a marriage not be invalidated by a fabricated statement that the parties have
cohabited for at least five years as required by law. The contrast is flagrant. The former
is with reference to an irregularity of the marriage license, and not to the absence of one.
Here, there is no marriage license at all. Furthermore, the falsity of the allegation in the
sworn affidavit relating to the period of Jose and Felisas cohabitation, which would have
qualified their marriage as an exception to the requirement for a marriage license,
cannot be a mere irregularity, for it refers to a quintessential fact that the law precisely
required to be deposed and attested to by the parties under oath. If the essential matter
in the sworn affidavit is a lie, then it is but a mere scrap of paper, without force and
effect. Hence, it is as if there was no affidavit at all.
In its second assignment of error, the Republic puts forth the argument that based on
equity, Jose should be denied relief because he perpetrated the fabrication, and cannot
thereby profit from his wrongdoing. This is a misplaced invocation. It must be stated that
equity finds no room for application where there is a law.
54
There is a law on the
ratification of marital cohabitation, which is set in precise terms under Article 76 of the
Civil Code. Nonetheless, the authorities are consistent that the declaration of nullity of
the parties marriage is without prejudice to their criminal liability.
55

The Republic further avers in its third assignment of error that Jose is deemed estopped
from assailing the legality of his marriage for lack of a marriage license. It is claimed that
Jose and Felisa had lived together from 1986 to 1990, notwithstanding Joses
subsequent marriage to Rufina Pascual on 31 August 1990, and that it took Jose seven
years before he sought the declaration of nullity; hence, estoppel had set in.
This is erroneous. An action for nullity of marriage is imprescriptible.
56
Jose and Felisas
marriage was celebrated sans a marriage license. No other conclusion can be reached
except that it is void ab initio. In this case, the right to impugn a void marriage does not
prescribe, and may be raised any time.
Lastly, to settle all doubts, jurisprudence has laid down the rule that the five-year
common-law cohabitation period under Article 76 means a five-year period computed
back from the date of celebration of marriage, and refers to a period of legal union had it
not been for the absence of a marriage.
57
It covers the years immediately preceding the
day of the marriage, characterized by exclusivity - meaning no third party was involved
at any time within the five years - and continuity that is unbroken.
58

WHEREFORE, the Petitions are DENIED. The Amended Decision of the Court of
Appeals, dated 7 November 2006 in CA-G.R. CV No. 68759, declaring the marriage of
Jose Dayot to Felisa Tecson-Dayot void ab initio, is AFFIRMED, without prejudice to
their criminal liability, if any. No costs.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
WE CONCUR:
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
Acting Chairperson
DANTE O. TINGA
*

Associate Justice
PRESBITERO J. VELASCO, JR.
**

Associate Justice
RUBEN T. REYES
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
Acting Chairperson, Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division Acting
Chairpersons attestation, it is hereby certified that the conclusions in the above Decision
were reached in consultation before the case was assigned to the writer of the opinion of
the Courts Division.
REYNATO S. PUNO
Chief Justice

DIGEST
FACTS:

Jose and Felisa Dayot were married at the Pasay City Hall on November 24, 1986. In
lieu of a marriage license, they executed a sworn affidavit that they had lived together for
at least 5years. On August 1990, Jose contracted marriage with a certain Rufina
Pascual. They were both employees of the National Statistics and Coordinating Board.
Felisa then filed on June 1993 an action for bigamy against Jose and an administrative
complaint with the Office of the Ombudsman. On the other hand, Jose filed a complaint
on July 1993 for annulment and/or declaration of nullity of marriage where he contended
that his marriage with Felisa was a sham and his consent was secured through fraud.

ISSUE: Whether or not Joses marriage with Felisa is valid considering that they
executed a sworn affidavit in lieu of the marriage license requirement.

HELD:

CA indubitably established that Jose and Felisa have not lived together for five years at
the time they executed their sworn affidavit and contracted marriage. Jose and Felisa
started living together only in June 1986, or barely five months before the celebration of
their marriage on November 1986. Findings of facts of the Court of Appeals are binding
in the Supreme Court.

The solemnization of a marriage without prior license is a clear violation of the law and
invalidates a marriage. Furthermore, the falsity of the allegation in the sworn affidavit
relating to the period of Jose and Felisas cohabitation, which would have qualified their
marriage as an exception to the requirement for a marriage license, cannot be a mere
irregularity, for it refers to a quintessential fact that the law precisely required to be
deposed and attested to by the parties under oath. Hence, Jose and Felisas marriage
is void ab initio. The court also ruled that an action for nullity of marriage is
imprescriptible. The right to impugn marriage does not prescribe and may be raised any
time.


Void and Voidable Marriages (Articles 35-54) 10 Hours

Article 35
Domingo vs. CA (226 SCRA 572)
ROBERTO DOMINGO, petitioner,
vs.
COURT OF APPEALS and DELIA SOLEDAD AVERA represented by her Attorney-
in-Fact MOISES R. AVERA, respondents.
Jose P.O. Aliling IV for petitioner.
De Guzman, Meneses & Associates for private respondent.

ROMERO, J .:
The instant petition seeks the reversal of respondent court's ruling finding no grave
abuse of discretion in the lower court's order denying petitioner's motion to dismiss the
petition for declaration of nullity of marriage and separation of property.
On May 29, 1991, private respondent Delia Soledad A. Domingo filed a petition before
the Regional Trial Court of Pasig entitled "Declaration of Nullity of Marriage and
Separation of Property" against petitioner Roberto Domingo. The petition which was
docketed as Special Proceedings No. 1989-J alleged among others that: they were
married on November 29, 1976 at the YMCA Youth Center Bldg., as evidenced by a
Marriage Contract Registry No. 1277K-76 with Marriage License No. 4999036 issued at
Carmona, Cavite; unknown to her, he had a previous marriage with one Emerlina dela
Paz on April 25, 1969 which marriage is valid and still existing; she came to know of the
prior marriage only sometime in 1983 when Emerlina dela Paz sued them for bigamy;
from January 23 1979 up to the present, she has been working in Saudi Arabia and she
used to come to the Philippines only when she would avail of the one-month annual
vacation leave granted by her foreign employer since 1983 up to the present, he has
been unemployed and completely dependent upon her for support and subsistence; out
of her personal earnings, she purchased real and personal properties with a total
amount of approximately P350,000.00, which are under the possession and
administration of Roberto; sometime in June 1989, while on her one-month vacation, she
discovered that he was cohabiting with another woman; she further discovered that he
had been disposing of some of her properties without her knowledge or consent; she
confronted him about this and thereafter appointed her brother Moises R. Avera as her
attorney-in-fact to take care of her properties; he failed and refused to turn over the
possession and administration of said properties to her brother/attorney-in-fact; and he is
not authorized to administer and possess the same on account of the nullity of their
marriage. The petition prayed that a temporary restraining order or a writ of preliminary
injunction be issued enjoining Roberto from exercising any act of administration and
ownership over said properties; their marriage be declared null and void and of no force
and effect; and Delia Soledad be declared the sole and exclusive owner of all properties
acquired at the time of their void marriage and such properties be placed under the
proper management and administration of the attorney-in-fact.
Petitioner filed a Motion to Dismiss on the ground that the petition stated no cause of
action. The marriage being void ab initio, the petition for the declaration of its nullity is,
therefore, superfluous and unnecessary. It added that private respondent has no
property which is in his possession.
On August 20, 1991, Judge Maria Alicia M. Austria issued an Order denying the motion
to dismiss for lack of merit. She explained:
Movant argues that a second marriage contracted after a first marriage by
a man with another woman is illegal and void (citing the case of Yap v.
Court of Appeals, 145 SCRA 229) and no judicial decree is necessary to
establish the invalidity of a void marriage (citing the cases of People v.
Aragon, 100 Phil. 1033; People v. Mendoza, 95 Phil. 845). Indeed, under
the Yap case there is no dispute that the second marriage contracted by
respondent with herein petitioner after a first marriage with another
woman is illegal and void. However, as to whether or not the second
marriage should first be judicially declared a nullity is not an issue in said
case. In the case of Vda. de Consuegra v. GSIS, the Supreme Court
ruled in explicit terms, thus:
And with respect to the right of the second wife, this Court
observed that although the second marriage can be
presumed to be void ab initio as it was celebrated while the
first marriage was still subsisting, still there is need for
judicial declaration of its nullity. (37 SCRA 316, 326)
The above ruling which is of later vintage deviated from the
previous rulings of the Supreme Court in the aforecited
cases of Aragon and Mendoza.
Finally, the contention of respondent movant that petitioner
has no property in his possession is an issue that may be
determined only after trial on the merits.
1

A motion for reconsideration was filed stressing the erroneous application of Vda. de
Consuegra v. GSIS
2
and the absence of justiciable controversy as to the nullity of the
marriage. On September 11, 1991, Judge Austria denied the motion for reconsideration
and gave petitioner fifteen (15) days from receipt within which to file his answer.
Instead of filing the required answer, petitioner filed a special civil action
of certiorari and mandamus on the ground that the lower court acted with grave abuse of
discretion amounting to lack of jurisdiction in denying the motion to dismiss.
On February 7, 1992, the Court of Appeals
3
dismissed the petition. It explained that the
case of Yap v. CA
4
cited by petitioner and that of Consuegra v. GSIS relied upon by the
lower court do not have relevance in the case at bar, there being no identity of facts
because these cases dealt with the successional rights of the second wife while the
instant case prays for separation of property corollary with the declaration of nullity of
marriage. It observed that the separation and subsequent distribution of the properties
acquired during the union can be had only upon proper determination of the status of the
marital relationship between said parties, whether or not the validity of the first marriage
is denied by petitioner. Furthermore, in order to avoid duplication and multiplicity of suits,
the declaration of nullity of marriage may be invoked in this proceeding together with the
partition and distribution of the properties involved. Citing Articles 48, 50 and 52 of the
Family Code, it held that private respondent's prayer for declaration of absolute nullity of
their marriage may be raised together with other incidents of their marriage such as the
separation of their properties. Lastly, it noted that since the Court has jurisdiction, the
alleged error in refusing to grant the motion to dismiss is merely one of law for which the
remedy ordinarily would have been to file an answer, proceed with the trial and in case
of an adverse decision, reiterate the issue on appeal. The motion for reconsideration
was subsequently denied for lack of merit.
5

Hence, this petition.
The two basic issues confronting the Court in the instant case are the following.
First, whether or not a petition for judicial declaration of a void marriage is necessary. If
in the affirmative, whether the same should be filed only for purposes of remarriage.
Second, whether or not SP No. 1989-J is the proper remedy of private respondent to
recover certain real and personal properties allegedly belonging to her exclusively.
Petitioner, invoking the ruling in People v. Aragon
6
and People v. Mendoza,
7
contends
that SP. No. 1989-J for Declaration of Nullity of Marriage and Separation of Property
filed by private respondent must be dismissed for being unnecessary and superfluous.
Furthermore, under his own interpretation of Article 40 of the Family Code, he submits
that a petition for declaration of absolute nullity of marriage is required only for purposes
of remarriage. Since the petition in SP No. 1989-J contains no allegation of private
respondent's intention to remarry, said petition should therefore, be dismissed.
On the other hand, private respondent insists on the necessity of a judicial declaration of
the nullity of their marriage, not for purposes of remarriage, but in order to provide a
basis for the separation and distribution of the properties acquired during coverture.
There is no question that the marriage of petitioner and private respondent celebrated
while the former's previous marriage with one Emerlina de la Paz was still subsisting, is
bigamous. As such, it is from the beginning.
8
Petitioner himself does not dispute the
absolute nullity of their marriage.
9

The cases of People v. Aragon and People v. Mendoza relied upon by petitioner are
cases where the Court had earlier ruled that no judicial decree is necessary to establish
the invalidity of a void, bigamous marriage. It is noteworthy to observe that Justice Alex
Reyes, however, dissented on these occasions stating that:
Though the logician may say that where the former marriage was void
there would be nothing to dissolve, still it is not for the spouses to judge
whether that marriage was void or not. That judgment is reserved to the
courts. . . .
10

This dissenting opinion was adopted as the majority position in subsequent cases
involving the same issue. Thus, in Gomez v. Lipana,
11
the Court abandoned its earlier
ruling in the Aragon and Mendoza cases. In reversing the lower court's order forfeiting
the husband's share of the disputed property acquired during the second marriage, the
Court stated that "if the nullity, or annulment of the marriage is the basis for the
application of Article 1417, there is need for a judicial declaration thereof, which of
course contemplates an action for that purpose."
Citing Gomez v. Lipana, the Court subsequently held in Vda. de Consuegra
v. Government Service Insurance System, that "although the second marriage can be
presumed to be void ab initio as it was celebrated while the first marriage was still
subsisting, still there is need for judicial declaration of such nullity."
In Tolentino v. Paras,
12
however, the Court turned around and applied
the Aragon and Mendoza ruling once again. In granting the prayer of the first wife asking
for a declaration as the lawful surviving spouse and the correction of the death certificate
of her deceased husband, it explained that "(t)he second marriage that he contracted
with private respondent during the lifetime of his first spouse is null and void from the
beginning and of no force and effect. No judicial decree is necessary to establish the
invalidity of a void marriage."
However, in the more recent case of Wiegel v. Sempio-Diy
13
the Court reverted to
the Consuegra case and held that there was "no need of introducing evidence about the
existing prior marriage of her first husband at the time they married each other, for then
such a marriage though void still needs according to this Court a judicial declaration of
such fact and for all legal intents and purposes she would still be regarded as a married
woman at the time she contracted her marriage with respondent Karl Heinz Wiegel."
Came the Family Code which settled once and for all the conflicting jurisprudence on the
matter. A declaration of the absolute nullity of a marriage is now explicitly required either
as a cause of action or a ground for defense.
14
Where the absolute nullity of a previous
marriage is sought to be invoked for purposes of contracting a second marriage, the sole
basis acceptable in law for said projected marriage be free from legal infirmity is a final
judgment declaring the previous marriage void.
15

The Family Law Revision Committee and the Civil Code Revision Committee
16
which
drafted what is now the Family Code of the Philippines took the position that parties to a
marriage should not be allowed to assume that their marriage is void even if such be the
fact but must first secure a judicial declaration of the nullity of their marriage before they
can be allowed to marry again. This is borne out by the following minutes of the 152nd
Joint Meeting of the Civil Code and Family Law Committees where the present Article
40, then Art. 39, was discussed.
B. Article 39.
The absolute nullity of a marriage may be invoked only on
the basis of a final judgment declaring the marriage void,
except as provided in Article 41.
Justice Caguioa remarked that the above provision should include not
only void but also voidable marriages. He then suggested that the above
provision be modified as follows:
The validity of a marriage may be invoked only . . .
Justice Reyes (J.B.L. Reyes), however, proposed that they say:
The validity or invalidity of a marriage may be invoked
only . . .
On the other hand, Justice Puno suggested that they say:
The invalidity of a marriage may be invoked only . . .
Justice Caguioa explained that his idea is that one cannot determine for
himself whether or not his marriage is valid and that a court action is
needed. Justice Puno accordingly proposed that the provision be
modified to read:
The invalidity of a marriage may be invoked only on the
basis of a final judgment annulling the marriage or
declaring the marriage void, except as provided in Article
41.
Justice Caguioa remarked that in annulment, there is no question. Justice
Puno, however, pointed out that, even if it is a judgment of annulment,
they still have to produce the judgment.
Justice Caguioa suggested that they say:
The invalidity of a marriage may be invoked only on the
basis of a final judgment declaring the marriage invalid,
except as provided in Article 41.
Justice Puno raised the question: When a marriage is declared invalid,
does it include the annulment of a marriage and the declaration that the
marriage is void? Justice Caguioa replied in the affirmative. Dean Gupit
added that in some judgments, even if the marriage is annulled, it is
declared void. Justice Puno suggested that this matter be made clear in
the provision.
Prof. Baviera remarked that the original idea in the provision is to require
first a judicial declaration of a void marriage and not annullable marriages,
with which the other members concurred. Judge Diy added that
annullable marriages are presumed valid until a direct action is filed to
annul it, which the other members affirmed. Justice Puno remarked that if
this is so, then the phrase "absolute nullity" can stand since it might result
in confusion if they change the phrase to "invalidity" if what they are
referring to in the provision is the declaration that the marriage is void.
Prof. Bautista commented that they will be doing away with collateral
defense as well as collateral attack. Justice Caguioa explained that the
idea in the provision is that there should be a final judgment declaring the
marriage void and a party should not declare for himself whether or not
the marriage is void, while the other members affirmed. Justice Caguioa
added that they are, therefore, trying to avoid a collateral attack on that
point. Prof. Bautista stated that there are actions which are brought on the
assumption that the marriage is valid. He then asked: Are they depriving
one of the right to raise the defense that he has no liability because the
basis of the liability is void? Prof. Bautista added that they cannot say that
there will be no judgment on the validity or invalidity of the marriage
because it will be taken up in the same proceeding. It will not be a
unilateral declaration that, it is a void marriage. Justice Caguioa saw the
point of Prof. Bautista and suggested that they limit the provision to
remarriage. He then proposed that Article 39 be reworded as follows:
The absolute nullity of a marriage for purposes of
remarriage may be invoked only on the basis of final
judgment . . .
Justice Puno suggested that the above be modified as follows:
The absolute nullity of a previous marriage may be invoked
for purposes of establishing the validity of a subsequent
marriage only on the basis of a final judgment declaring
such previous marriage void, except as provided in Article
41.
Justice Puno later modified the above as follows:
For the purpose of establishing the validity of a subsequent
marriage, the absolute nullity of a previous marriage may
only be invoked on the basis of a final judgment declaring
such nullity, except as provided in Article 41.
Justice Caguioa commented that the above provision is too broad and will
not solve the objection of Prof. Bautista. He proposed that they say:
For the purpose of entering into a subsequent marriage,
the absolute nullity of a previous marriage may only be
invoked on the basis of a final judgment declaring such
nullity, except as provided in Article 41.
Justice Caguioa explained that the idea in the above provision is that if
one enters into a subsequent marriage without obtaining a final judgment
declaring the nullity of a previous marriage, said subsequent marriage is
void ab initio.
After further deliberation, Justice Puno suggested that they go back to the
original wording of the provision as follows:
The absolute nullity of a previous marriage may be invoked
for purposes of remarriage only on the basis of a final
judgment declaring such previous marriage void, except as
provided in Article 41.
17

In fact, the requirement for a declaration of absolute nullity of a marriage is also for the
protection of the spouse who, believing that his or her marriage is illegal and void,
marries again. With the judicial declaration of the nullity of his or her first marriage, the
person who marries again cannot be charged with bigamy.
18

Just over a year ago, the Court made the pronouncement that there is a necessity for a
declaration of absolute nullity of a prior subsisting marriage before contracting another in
the recent case of Terre v. Terre.
19
The Court, in turning down the defense of
respondent Terre who was charged with grossly immoral conduct consisting of
contracting a second marriage and living with another woman other than complainant
while his prior marriage with the latter remained subsisting, said that "for purposes of
determining whether a person is legally free to contract a second marriage, a judicial
declaration that the first marriage was null and void ab initio is essential."
As regards the necessity for a judicial declaration of absolute nullity of marriage,
petitioner submits that the same can be maintained only if it is for the purpose of
remarriage. Failure to allege this purpose, according to petitioner's theory, will warrant
dismissal of the same.
Article 40 of the Family Code provides:
Art. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void. (n)
Crucial to the proper interpretation of Article 40 is the position in the provision of the
word "solely." As it is placed, the same shows that it is meant to qualify "final judgment
declaring such previous marriage void." Realizing the need for careful craftsmanship in
conveying the precise intent of the Committee members, the provision in question, as it
finally emerged, did not state "The absolute nullity of a previous marriage may be
invoked solely for purposes of remarriage . . .," in which case "solely" would clearly
qualify the phrase "for purposes of remarriage." Had the phraseology been such, the
interpretation of petitioner would have been correct and, that is, that the absolute nullity
of a previous marriage may be invoked solely for purposes of remarriage, thus rendering
irrelevant the clause "on the basis solely of a final judgment declaring such previous
marriage void."
That Article 40 as finally formulated included the significant clause denotes that such
final judgment declaring the previous marriage void need not be obtained only for
purposes of remarriage. Undoubtedly, one can conceive of other instances where a
party might well invoke the absolute nullity of a previous marriage for purposes other
than remarriage, such as in case of an action for liquidation, partition, distribution and
separation of property between the erstwhile spouses, as well as an action for the
custody and support of their common children and the delivery of the latters' presumptive
legitimes. In such cases, evidence needs must be adduced, testimonial or documentary,
to prove the existence of grounds rendering such a previous marriage an absolute
nullity. These need not be limited solely to an earlier final judgment of a court declaring
such previous marriage void. Hence, in the instance where a party who has previously
contracted a marriage which remains subsisting desires to enter into another marriage
which is legally unassailable, he is required by law to prove that the previous one was an
absolute nullity. But this he may do on the basis solely of a final judgment declaring such
previous marriage void.
This leads us to the question: Why the distinction? In other words, for purposes of
remarriage, why should the only legally acceptable basis for declaring a previous
marriage an absolute nullity be a final judgment declaring such previous marriage void?
Whereas, for purposes other than remarriage, other evidence is acceptable?
Marriage, a sacrosanct institution, declared by the Constitution as an "inviolable social
institution, is the foundation of the family;" as such, it "shall be protected by the
State."
20
In more explicit terms, the Family Code characterizes it as "a special contract
of permanent union between a man and a woman entered into in accordance with law
for the establishment of conjugal, and family life."
21
So crucial are marriage and the
family to the stability and peace of the nation that their "nature, consequences, and
incidents are governed by law and not subject to stipulation . . ."
22
As a matter of policy,
therefore, the nullification of a marriage for the purpose of contracting another cannot be
accomplished merely on the basis of the perception of both parties or of one that their
union is so defective with respect to the essential requisites of a contract of marriage as
to render it void ipso jure and with no legal effect and nothing more. Were this so, this
inviolable social institution would be reduced to a mockery and would rest on very shaky
foundations indeed. And the grounds for nullifying marriage would be as diverse and far-
ranging as human ingenuity and fancy could conceive. For such a social significant
institution, an official state pronouncement through the courts, and nothing less, will
satisfy the exacting norms of society. Not only would such an open and public
declaration by the courts definitively confirm the nullity of the contract of marriage, but
the same would be easily verifiable through records accessible to everyone.
That the law seeks to ensure that a prior marriage is no impediment to a second sought
to be contracted by one of the parties may be gleaned from new information required in
the Family Code to be included in the application for a marriage license, viz, "If
previously married, how, when and where the previous marriage was dissolved and
annulled."
23

Reverting to the case before us, petitioner's interpretation of Art. 40 of the Family Code
is, undoubtedly, quite restrictive. Thus, his position that private respondent's failure to
state in the petition that the same is filed to enable her to remarry will result in the
dismissal of SP No. 1989-J is untenable. His misconstruction of Art. 40 resulting from the
misplaced emphasis on the term "solely" was in fact anticipated by the members of the
Committee.
Dean Gupit commented the word "only" may be misconstrued to refer to
"for purposes of remarriage." Judge Diy stated that "only" refers to "final
judgment." Justice Puno suggested that they say "on the basis only of a
final judgment." Prof. Baviera suggested that they use the legal term
"solely" instead of "only," which the Committee approved.
24
(Emphasis
supplied)
Pursuing his previous argument that the declaration for absolute nullity of marriage is
unnecessary, petitioner suggests that private respondent should have filed an ordinary
civil action for the recovery of the properties alleged to have been acquired during their
union. In such an eventuality, the lower court would not be acting as a mere special
court but would be clothed with jurisdiction to rule on the issues of possession and
ownership. In addition, he pointed out that there is actually nothing to separate or
partition as the petition admits that all the properties were acquired with private
respondent's money.
The Court of Appeals disregarded this argument and concluded that "the prayer for
declaration of absolute nullity of marriage may be raised together with the other incident
of their marriage such as the separation of their properties."
When a marriage is declared void ab initio, the law states that the final judgment therein
shall provide for "the liquidation, partition and distribution of the properties of the
spouses, the custody and support of the common children, and the delivery of their
presumptive legitimes, unless such matters had been adjudicated in previous judicial
proceedings."
25
Other specific effects flowing therefrom, in proper cases, are the
following:
Art. 43. xxx xxx xxx
(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;
(3) Donations by reason of marriage shall remain valid, except that if the
donee contracted the marriage in bad faith, such donations made to said
donee are revoked by operation of law;
(4) The innocent spouse may revoke the designation of the other spouse
who acted in bad faith as a beneficiary in any insurance policy, even if
such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad faith shall
be disqualified to inherit from the innocent spouse by testate and intestate
succession. (n)
Art. 44. If both spouses of the subsequent marriage acted in bad faith,
said marriage shall be void ab initio and all donations by reason of
marriage and testamentary disposition made by one in favor of the other
are revoked by operation of law. (n)
26

Based on the foregoing provisions, private respondent's ultimate prayer for separation of
property will simply be one of the necessary consequences of the judicial declaration of
absolute nullity of their marriage. Thus, petitioner's suggestion that in order for their
properties to be separated, an ordinary civil action has to be instituted for that purpose is
baseless. The Family Code has clearly provided the effects of the declaration of nullity of
marriage, one of which is the separation of property according to the regime of property
relations governing them. It stands to reason that the lower court before whom the issue
of nullity of a first marriage is brought is likewise clothed with jurisdiction to decide the
incidental questions regarding the couple's properties. Accordingly, the respondent court
committed no reversible error in finding that the lower court committed no grave abuse of
discretion in denying petitioner's motion to dismiss SP No. 1989-J.
WHEREFORE, the instant petition is hereby DENIED. The decision of respondent Court
dated February 7, 1992 and the Resolution dated March 20, 1992 are AFFIRMED.
SO ORDERED.
Bidin and Melo, JJ., concur.
Feliciano, J., is on leave.



Separate Opinions

VITUG, J ., concurring:
I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P. Romero. I
should like, however, to put in a modest observation.
Void marriages are inexistent from the very beginning and, I believe, no judicial decree
is required to establish their nullity, except in the following instances:
(a) For purposes of remarriage pursuant to the provision of Article 40 of the Family
Code; viz.:
The absolute nullity of a previous marriage may be invoked for purposes
of remarriage on the basis solely of a final judgment declaring such
previous marriage void. (n)
(b) A marriage celebrated prior to the effectivity of the Family Code in case a party
thereto was psychologically incapacitated to comply with the essential marital obligations
of marriage (Article 36, Family Code), where an action or defense for the declaration of
nullity prescribes ten (10) years after the Family Code took effect (Article 39, Family
Code); otherwise, the marriage is deemed unaffected by the Family Code.
A void marriage, even without its being judicially declared a nullity, albeit the preferability
for, and justiciability (fully discussed in the majority opinion) of, such a declaration, will
not give it the status or the consequences of a valid marriage, saving only specific
instances where certain effects of a valid marriage can still flow from the void marriage.
Examples of these cases are children of void marriages under Article 36 (due to
psychological incapacity) and Article 53, in relation to Article 52 (due to failure of
partition, delivery of presumptive legitimes of children and recording thereof following the
annulment or declaration of nullity a prior marriage), conceived or born before the judicial
declaration of nullity of such void marriages, who the law deems as legitimate (Article 54,
Family Code).
In most, if not in all, other cases, a void marriage is to be considered extant per se.
Neither the conjugal, partnership of gain under the old regime nor the absolute
community of property under the new Code (absent a marriage settlement), will apply;
instead, their property relations shall be governed by the co-ownership rules under either
Article 147 or Article 148 of the Family Code. I must hasten to add as a personal view,
however, that the exceptional effects on children of a void marriage because of the
psychological incapacity of a party thereto should have been extended to cover even the
personal and property relations of the spouses. Unlike the other cases of void marriages
where the grounds therefor may be established by hard facts and with little uncertainty,
the term "psychological incapacity" is so relative and unsettling that until a judicial
declaration of nullity is made its interim effects can long and literally hang on the balance
not only insofar as the spouses themselves are concerned but also as regards third
persons with whom the spouses deal.


# Separate Opinions
VITUG, J ., concurring:
I concur with the opinion so well expressed by Mme. Justice Flerida Ruth P. Romero. I
should like, however, to put in a modest observation.
Void marriages are inexistent from the very beginning and, I believe, no judicial decree
is required to establish their nullity, except in the following instances:
(a) For purposes of remarriage pursuant to the provision of Article 40 of the Family
Code; viz.:
The absolute nullity of a previous marriage may be invoked for purposes
of remarriage on the basis solely of a final judgment declaring such
previous marriage void. (n)
(b) A marriage celebrated prior to the effectivity of the Family Code in case a party
thereto was psychologically incapacitated to comply with the essential marital obligations
of marriage (Article 36, Family Code), where an action or defense for the declaration of
nullity prescribes ten (10) years after the Family Code took effect (Article 39, Family
Code); otherwise, the marriage is deemed unaffected by the Family Code.
A void marriage, even without its being judicially declared a nullity, albeit the preferability
for, and justiciability (fully discussed in the majority opinion) of, such a declaration, will
not give it the status or the consequences of a valid marriage, saving only specific
instances where certain effects of a valid marriage can still flow from the void marriage.
Examples of these cases are children of void marriages under Article 36 (due to
psychological incapacity) and Article 53, in relation to Article 52 (due to failure of
partition, delivery of presumptive legitimes of children and recording thereof following the
annulment or declaration of nullity a prior marriage), conceived or born before the judicial
declaration of nullity of such void marriages, who the law deems as legitimate (Article 54,
Family Code).
In most, if not in all, other cases, a void marriage is to be considered extant per se.
Neither the conjugal, partnership of gain under the old regime nor the absolute
community of property under the new Code (absent a marriage settlement), will apply;
instead, their property relations shall be governed by the co-ownership rules under either
Article 147 or Article 148 of the Family Code. I must hasten to add as a personal view,
however, that the exceptional effects on children of a void marriage because of the
psychological incapacity of a party thereto should have been extended to cover even the
personal and property relations of the spouses. Unlike the other cases of void marriages
where the grounds therefor may be established by hard facts and with little uncertainty,
the term "psychological incapacity" is so relative and unsettling that until a judicial
declaration of nullity is made its interim effects can long and literally hang on the balance
not only insofar as the spouses themselves are concerned but also as regards third
persons with whom the spouses deal.

DIGEST
FACTS:

Soledad Domingo, married with Roberto Domingo in 1976, filed a petition for the
declaration of nullity of marriage and separation of property. She did not know that
Domingo had been previously married to Emerlinda dela Paz in 1969. She came to
know the previous marriage when the latter filed a suit of bigamy against her.
Furthermore, when she came home from Saudi during her one-month leave from work,
she discovered that Roberto cohabited with another woman and had been disposing
some of her properties which is administered by Roberto. The latter claims that because
their marriage was void ab initio, the declaration of such voidance is unnecessary and
superfluous. On the other hand, Soledad insists the declaration of the nullity of marriage
not for the purpose of remarriage, but in order to provide a basis for the separation and
distribution of properties acquired during the marriage.

ISSUE: Whether or not a petition for judicial declaration should only be filed for purposes
of remarriage.

HELD:

The declaration of the nullity of marriage is indeed required for purposed of remarriage.
However, it is also necessary for the protection of the subsequent spouse who believed
in good faith that his or her partner was not lawfully married marries the same. With this,
the said person is freed from being charged with bigamy.

When a marriage is declared void ab initio, law states that final judgment shall provide
for the liquidation, partition and distribution of the properties of the spouses, the custody
and support of the common children and the delivery of their presumptive legitimes,
unless such matters had been adjudicated in previous judicial proceedings. Soledads
prayer for separation of property will simply be the necessary consequence of the
judicial declaration of absolute nullity of their marriage. Hence, the petitioners
suggestion that for their properties be separated, an ordinary civil action has to be
instituted for that purpose is baseless. The Family Code has clearly provided the effects
of the declaration of nullity of marriage, one of which is the separation of property
according to the regime of property relations governing them.

Ninal vs. Bayadog
*see previous
DIGEST



Article 36
Republic vs. CA and Molina (G.R. No. 108763, 13 February 1997)
G.R. No. 108763 February 13, 1997
REPUBLIC OF THE PHILIPPINES,
vs.
COURT OF APPEALS and RORIDEL OLAVIANO MOLINA, respondents.

PANGANIBAN, J .:
The Family Code of the Philippines provides an entirely new ground (in addition to
those enumerated in the Civil Code) to assail the validity of a marriage, namely,
"psychological incapacity." Since the Code's effectivity, our courts have been
swamped with various petitions to declare marriages void based on this ground.
Although this Court had interpreted the meaning of psychological incapacity in
the recent case of Santos vs. Court of Appeals, still many judges and lawyers find
difficulty in applying said novel provision in specific cases. In the present case
and in the context of the herein assailed Decision of the Court of Appeals, the
Solicitor General has labelled exaggerated to be sure but nonetheless
expressive of his frustration Article 36 as the "most liberal divorce procedure in
the world." Hence, this Court in addition to resolving the present case, finds the
need to lay down specific guidelines in the interpretation and application of Article
36 of the Family Code.
Before us is a petition for review on certiorari under Rule 45 challenging the
January 25, 1993 Decision
1
of the Court of Appeals
2
in CA-G.R. CV No. 34858
affirming in toto the May 14, 1991 decision of the Regional Trial Court of La
Trinidad,
3
Benguet, which declared the marriage of respondent Roridel Olaviano
Molina to Reynaldo Molina void ab initio, on the ground of "psychological
incapacity" under Article 36 of the Family Code.
The Facts
This case was commenced on August 16, 1990 with the filing by respondent
Roridel O. Molina of a verified petition for declaration of nullity of her marriage to
Reynaldo Molina. Essentially, the petition alleged that Roridel and Reynaldo were
married on April 14, 1985 at the San Agustin Church
4
in Manila; that a son, Andre
O. Molina was born; that after a year of marriage, Reynaldo showed signs of
"immaturity and irresponsibility" as a husband and a father since he preferred to
spend more time with his peers and friends on whom he squandered his money;
that he depended on his parents for aid and assistance, and was never honest
with his wife in regard to their finances, resulting in frequent quarrels between
them; that sometime in February 1986, Reynaldo was relieved of his job in Manila,
and since then Roridel had been the sole breadwinner of the family; that in
October 1986 the couple had a very intense quarrel, as a result of which their
relationship was estranged; that in March 1987, Roridel resigned from her job in
Manila and went to live with her parents in Baguio City; that a few weeks later,
Reynaldo left Roridel and their child, and had since then abandoned them; that
Reynaldo had thus shown that he was psychologically incapable of complying
with essential marital obligations and was a highly immature and habitually
quarrel some individual who thought of himself as a king to be served; and that it
would be to the couple's best interest to have their marriage declared null and
void in order to free them from what appeared to be an incompatible marriage
from the start.
In his Answer filed on August 28, 1989, Reynaldo admitted that he and Roridel
could no longer live together as husband and wife, but contended that their
misunderstandings and frequent quarrels were due to (1) Roridel's strange
behavior of insisting on maintaining her group of friends even after their marriage;
(2) Roridel's refusal to perform some of her marital duties such as cooking meals;
and (3) Roridel's failure to run the household and handle their finances.
During the pre-trial on October 17, 1990, the following were stipulated:
1. That the parties herein were legally married on April 14, 1985 at
the Church of St. Augustine, Manila;
2. That out of their marriage, a child named Albert Andre Olaviano
Molina was born on July 29, 1986;
3. That the parties are separated-in-fact for more than three years;
4. That petitioner is not asking support for her and her child;
5. That the respondent is not asking for damages;
6. That the common child of the parties is in the custody of the
petitioner wife.
Evidence for herein respondent wife consisted of her own testimony and that of
her friends Rosemarie Ventura and Maria Leonora Padilla as well as of Ruth G.
Lalas, a social worker, and of Dr. Teresita Hidalgo-Sison, a psychiatrist of the
Baguio General Hospital and Medical Center. She also submitted documents
marked as Exhibits "A" to "E-1." Reynaldo did not present any evidence as he
appeared only during the pre-trial conference.
On May 14, 1991, the trial court rendered judgment declaring the marriage void.
The appeal of petitioner was denied by the Court of Appeals which affirmed in
toto the RTC's decision. Hence, the present recourse.
The Issue
In his petition, the Solicitor General insists that "the Court of Appeals made an
erroneous and incorrect interpretation of the phrase 'psychological incapacity' (as
provided under Art. 36 of the Family Code) and made an incorrect application
thereof to the facts of the case," adding that the appealed Decision tended "to
establish in effect the most liberal divorce procedure in the world which is
anathema to our culture."
In denying the Solicitor General's appeal, the respondent Court relied
5
heavily on
the trial court's findings "that the marriage between the parties broke up because
of their opposing and conflicting personalities." Then, it added it sown opinion
that "the Civil Code Revision Committee (hereinafter referred to as Committee)
intended to liberalize the application of our civil laws on personal and family
rights. . . ." It concluded that:
As ground for annulment of marriage, We view psychologically
incapacity as a broad range of mental and behavioral conduct on the
part of one spouse indicative of how he or she regards the marital
union, his or her personal relationship with the other spouse, as well
as his or her conduct in the long haul for the attainment of the
principal objectives of marriage. If said conduct, observed and
considered as a whole, tends to cause the union to self-destruct
because it defeats the very objectives of marriage, then there is
enough reason to leave the spouses to their individual fates.
In the case at bar, We find that the trial judge committed no
indiscretion in analyzing and deciding the instant case, as it did,
hence, We find no cogent reason to disturb the findings and
conclusions thus made.
Respondent, in her Memorandum, adopts these discussions of the Court of
Appeals.
The petitioner, on the other hand, argues that "opposing and conflicting
personalities" is not equivalent to psychological incapacity, explaining that such
ground "is not simply the neglect by the parties to the marriage of their
responsibilities and duties, but a defect in their psychological nature which
renders them incapable of performing such marital responsibilities and duties."
The Court's Ruling
The petition is meritorious.
In Leouel Santos vs. Court of Appeals
6
this Court, speaking thru Mr. Justice Jose
C. Vitug, ruled that "psychological incapacity should refer to no less than a mental
(nor physical) incapacity . . . and that (t)here is hardly any doubt that the
intendment of the law has been to confine the meaning of 'psychological
incapacity' to the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to give meaning and
significance to the marriage. This psychologic condition must exist at the time the
marriage is celebrated." Citing Dr. Gerardo Veloso, a former presiding judge of the
Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila,
7
Justice
Vitug wrote that "the psychological incapacity must be characterized by (a)
gravity, (b) juridical antecedence, and (c) incurability."
On the other hand, in the present case, there is no clear showing to us that the
psychological defect spoken of is an incapacity. It appears to us to be more of a
"difficulty," if not outright "refusal" or "neglect" in the performance of some
marital obligations. Mere showing of "irreconciliable differences" and "conflicting
personalities" in no wise constitutes psychological incapacity. It is not enough to
prove that the parties failed to meet their responsibilities and duties as married
persons; it is essential that they must be shown to be incapable of doing so, due
to some psychological (nor physical) illness.
The evidence adduced by respondent merely showed that she and her husband
could nor get along with each other. There had been no showing of the gravity of
the problem; neither its juridical antecedence nor its incurability. The expert
testimony of Dr. Sison showed no incurable psychiatric disorder but only
incompatibility, not psychological incapacity. Dr. Sison testified:
8

COURT
Q It is therefore the recommendation of the
psychiatrist based on your findings that it is better for
the Court to annul (sic) the marriage?
A Yes, Your Honor.
Q There is no hope for the marriage?
A There is no hope, the man is also living with another
woman.
Q Is it also the stand of the psychiatrist that the parties
are psychologically unfit for each other but they are
psychologically fit with other parties?
A Yes, Your Honor.
Q Neither are they psychologically unfit for their
professions?
A Yes, Your Honor.
The Court has no more questions.
In the case of Reynaldo, there is no showing that his alleged personality traits
were constitutive of psychological incapacity existing at the time of marriage
celebration. While some effort was made to prove that there was a failure to fulfill
pre-nuptial impressions of "thoughtfulness and gentleness" on Reynaldo's part of
being "conservative, homely and intelligent" on the part of Roridel, such failure of
expectation is nor indicative of antecedent psychological incapacity. If at all, it
merely shows love's temporary blindness to the faults and blemishes of the
beloved.
During its deliberations, the Court decided to go beyond merely ruling on the facts
of this case vis-a-visexisting law and jurisprudence. In view of the novelty of Art.
36 of the Family Code and the difficulty experienced by many trial courts
interpreting and applying it, the Court decided to invite two amici curiae, namely,
the Most Reverend Oscar V. Cruz,
9
Vicar J udicial (Presiding J udge) of the National
Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, and
Justice Ricardo C. Puno,
10
a member of the Family Code Revision Committee. The
Court takes this occasion to thank these friends of the Court for their informative
and interesting discussions during the oral argument on December 3, 1996, which
they followed up with written memoranda.
From their submissions and the Court's own deliberations, the following
guidelines in the interpretation and application of Art. 36 of the Family Code are
hereby handed down for the guidance of the bench and the bar:
(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff.
Any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. This is rooted in the fact that both
our Constitution and our laws cherish the validity of marriage and unity of the
family. Thus, our Constitution devotes an entire Article on the
Family,
11
recognizing it "as the foundation of the nation." It decrees marriage as
legally "inviolable," thereby protecting it from dissolution at the whim of the
parties. Both the family and marriage are to be "protected" by the state.
The Family Code
12
echoes this constitutional edict on marriage and the family and
emphasizes the permanence, inviolability and solidarity
(2) The root cause of the psychological incapacity must be (a) medically or
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts
and (d) clearly explained in the decision. Article 36 of the Family Code requires
that the incapacity must be psychological not physical. although its
manifestations and/or symptoms may be physical. The evidence must convince
the court that the parties, or one of them, was mentally or physically ill to such an
extent that the person could not have known the obligations he was assuming, or
knowing them, could not have given valid assumption thereof. Although no
example of such incapacity need be given here so as not to limit the application of
the provision under the principle of ejusdem generis,
13
nevertheless such root
cause must be identified as a psychological illness and its incapacitating nature
explained. Expert evidence may be given qualified psychiatrist and clinical
psychologists.
(3) The incapacity must be proven to be existing at "the time of the celebration" of
the marriage. The evidence must show that the illness was existing when the
parties exchanged their "I do's." The manifestation of the illness need not be
perceivable at such time, but the illness itself must have attached at such
moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent
or incurable. Such incurability may be absolute or even relative only in regard to
the other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of a
profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may
not be psychologically capacitated to procreate, bear and raise his/her own
children as an essential obligation of marriage.
(5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. Thus, "mild characteriological
peculiarities, mood changes, occasional emotional outbursts" cannot be accepted
as root causes. The illness must be shown as downright incapacity or inability,
nor a refusal, neglect or difficulty, much less ill will. In other words, there is a natal
or supervening disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really
accepting and thereby complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to
71 of the Family Code as regards the husband and wife as well as Articles 220, 221
and 225 of the same Code in regard to parents and their children. Such non-
complied marital obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not controlling or decisive, should be
given great respect by our courts. It is clear that Article 36 was taken by the
Family Code Revision Committee from Canon 1095 of the New Code of Canon
Law, which became effective in 1983 and which provides:
The following are incapable of contracting marriage: Those who are
unable to assume the essential obligations of marriage due to
causes of psychological nature.
14

Since the purpose of including such provision in our Family Code is to harmonize
our civil laws with the religious faith of our people, it stands to reason that to
achieve such harmonization, great persuasive weight should be given to decision
of such appellate tribunal. Ideally subject to our law on evidence what is
decreed as canonically invalid should also be decreed civilly void.
This is one instance where, in view of the evident source and purpose of the
Family Code provision, contemporaneous religious interpretation is to be given
persuasive effect. Here, the State and the Church while remaining independent,
separate and apart from each other shall walk together in synodal cadence
towards the same goal of protecting and cherishing marriage and the family as the
inviolable base of the nation.
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall he handed down
unless the Solicitor General issues a certification, which will be quoted in the
decision, briefly staring therein his reasons for his agreement or opposition, as
the case may be, to the petition. The Solicitor General, along with the prosecuting
attorney, shall submit to the court such certification within fifteen (15) days from
the date the case is deemed submitted for resolution of the court. The Solicitor
General shall discharge the equivalent function of the defensor
vinculi contemplated under Canon 1095.
In the instant case and applying Leouel Santos, we have already ruled to grant the
petition. Such ruling becomes even more cogent with the use of the foregoing
guidelines.
WHEREFORE, the petition is GRANTED. The assailed Decision is REVERSED and
SET ASIDE. The marriage of Roridel Olaviano to Reynaldo Molina subsists and
remains valid.
SO ORDERED.
Narvasa, C.J ., Davide, J r., Bellosillo, Melo, Puno Francisco, Hermosisima, J r., and
Torres, J r., J J ., concur.
Regalado, Kapunan and Mendoza, J J ., concurs in the result.



Separate Opinions

PADILLA, J ., concuring opinion:
I concur in the result of the decision penned by Mr. Justice Panganiban but only
because of the peculiar facts of the case. As to whether or not the psychological
incapacity exists in a given case calling for annulment of a marriage, depends
crucially, more than in any field of the law, on the facts of the case. InLeouel
Santos v. Court of Appeals and J ulia Rosario-Bedia Santos, G.R. No. 112019, 4
January 1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was
psychological incapacity on the part of the wife to discharge the duties of a wife in
a valid marriage. The facts of the present case, after an indepth study, do not
support a similar conclusion. Obviously, each case must be judged, not on the
basis of a priori assumptions, predilections or generalizations but according to its
own facts. In the field of psychological incapacity as a ground for annulment of
marriage, it is trite to say that no case is on "all fours" with another case. The trial
judge must take pains in examining the actual millieu and the appellate court
must, as much as possible, avoid substituting its own judgment for that of the trial
court.
ROMERO, J ., separate opinion:
The majority opinion, overturning that of the Court of Appeals which affirmed the
Regional Trial Court ruling. upheld petitioner Solicitor General's position that
"opposing and conflicting personalities" is not equivalent to psychological
incapacity, for the latter "is not simply the neglect by the parties to the marriage of
their responsibilities and duties, but a defect in their Psychological nature which
renders them incapable of performing such marital responsibilities and duties.
In the present case, the alleged personality traits of Reynaldo, the husband, did
not constitute so much "psychological incapacity" as a "difficulty," if not outright
"refusal" or "neglect" in the performance of some marital obligations. "It is not
enough to prove that the parties failed to meet their responsibilities and duties as
married persons; it is essential that they must be shown to be incapable of doing
so, due to some psychological (not physical) illness."
I would add that neither should the incapacity be the result of mental illness. For if
it were due to insanity or defects in the mental faculties short of insanity, there is
a resultant defect of vice of consent, thus rendering the marriage annulable under
Art. 45 of the Family Code.
That the intent of the members of the U.P. Law Center's Civil Code Revision
Committee was to excludemental inability to understand the essential nature of
marriage and focus strictly on psychological incapacity is demonstrated in the
way the provision in question underwent revisions.
At the Committee meeting of July 26, 1986, the draft provision read:
(7) Those marriages contracted by any party who, at the time of the
celebration, was wanting in the sufficient use of reason or judgment
to understand the essential nature of marriage or was
psychologically or mentally incapacitated to discharge the essential
marital obligations, even if such lack of incapacity is made manifest
after the celebration.
The twists and turns which the ensuing discussion took finally produced the
following revised provision even before the session was over:
(7) That contracted by any party who, at the time of the celebration,
was psychologically incapacitated to discharge the essential marital
obligations, even if such lack or incapacity becomes manifest after
the celebration.
Noticeably, the immediately preceding formulation above has dropped any
reference to "wanting in the sufficient use of reason or judgment to understand
the essential nature or marriage" and to "mentally incapacitated." It was explained
that these phrases refer to "defects in the mental faculties vitiating consent, which
is not the idea . . . but lack of appreciation of one's marital obligation." There being
a defect in consent, "it is clear that it should be a ground for voidable marriage
because there is the appearance of consent and it is capable of convalidation for
the simple reason that there are lucid intervals and there are sanity is curable. . . .
Psychological incapacity does not refer to mental faculties and has nothing to do
with consent; it refers to obligations attendant to
marriage."
1

My own position as a member of the Committee then was that psychological
incapacity is, in a sense, insanity of a lesser degree.
As to the proposal of Justice Caguioa to use the term "psychological or mental
impotence," Archbishop Oscar Cruz opined in he earlier February 9, 1984 session
that this term "is an invention of some churchmen who are moralists but not
canonists, that is why it is considered a weak phrase." He said that the Code of
Canon Law would rather express it as "psychological or mental incapacity to
discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may be
psychologically impotent with one but not with another.
One of the guidelines enumerated in the majority opinion for the interpretation
and application of Art. 36 is: "Such incapacity must also be shown to be medically
or clinically permanent or incurable. Such incurability may be absolute or even
relative only in regard to the other spouse, not necessarily absolutely against
everyone of the same sex."
The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the
phrase" and is incurable" but Prof. Esteban B. Bautista commented that this
would give rise to the question of how they will determine curability and Justice
Caguioa agreed that it would be more problematic. Yet the possibility that one
may be cured after the psychological incapacity becomes manifest after the
marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice
Caguioa suggested that the remedy was to allow the afflicted spouse to remarry.
For clarity, the Committee classified the bases for determining void
marriages, viz:
1. lack of one or more of the essential requisites of
marriage as contract;
2. reasons of public policy;
3. special cases and special situations.
The ground of psychological incapacity was subsumed under "special
cases and special situations," hence its special treatment in Art. 36 in the
Family Code as finally enacted.
Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding
or annulling marriages that even comes close to being psychological in nature.
Where consent is vitiated due to circumstances existing at the time of the
marriage, such marriage which stands valid until annulled is capable of
ratification or convalidation.
On the other hand, for reasons of public policy or lack of essential requisites,
some marriages are void from the beginning.
With the revision of Book I of the Civil Code, particularly the provisions on
Marriage, the drafters, now open to fresh winds of change in keeping with the
more permissive mores and practices of the time, took a leaf from the relatively
liberal provisions of Canon Law.
Canon 1095 which states, inter alia, that the following persons are incapable of
contracting marriage: "3. (those) who, because of causes of a psychological
nature, are unable to assume the essential obligations of marriage" provided the
model for what is now Art. 36 of the Family Code: "A marriage contracted by any
party who, at the time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be void
even if such incapacity becomes manifest only after its solemnization.
It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of
marriages with respect to their validity: valid and void. Civil Law, however,
recognizes an intermediate state, the voidable or annullable marriages. When the
Ecclesiastical Tribunal "annuls" a marriage, it actually declares the marriage null
and void, i.e., it never really existed in the first place, for a valid sacramental
marriage can never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by the formal
annulment process which entails a full tribunal procedure with a Court selection
and a formal hearing.
Such so-called church "annulments" are not recognized by Civil Law as severing
the marriage ties as to capacitate the parties to enter lawfully into another
marriage. The grounds for nullifying civil marriage, not being congruent with
those laid down by Canon Law, the former being more strict, quite a number of
married couples have found themselves in limbo freed from the marriage bonds
in the eyes of the Catholic Church but yet unable to contract a valid civil marriage
under state laws. Heedless of civil law sanctions, some persons contract new
marriages or enter into live-in relationships.
It was precisely to provide a satisfactory solution to such anomalous situations
that the Civil Law Revision Committee decided to engraft the Canon Law concept
of psychological incapacity into the Family Code and classified the same as a
ground for declaring marriages void ab initio or totally in existent from the
beginning.
A brief historical note on the Old Canon Law (1917). This Old Code, while it did not
provide directly for psychological incapacity, in effect recognized the same
indirectly from a combination of three old canons: "Canon #1081 required persons
to 'be capable according to law' in order to give valid consent; Canon #1082
required that persons 'be at least not ignorant' of the major elements required in
marriage; and Canon #1087 (the force and fear category) required that internal and
external freedom be present in order for consent to be valid. This line of
interpretation produced two distinct but related grounds for annulment, called
'lack of due discretion' and 'lack of due competence.' Lack of due discretion
means that the person did not have the ability to give valid consent at the time of
the wedding and therefore the union is invalid. Lack of due competence means
that the person was incapable of carrying out the obligations of the promise he or
she made during the wedding ceremony.
"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s
involving sexual disorders such as homosexuality and nymphomania laid the
foundation for a broader approach to the kind of proof necessary for
psychological grounds for annulment. The Rota had reasoned for the first time in
several cases that the capacity to give valid consent at the time of marriage was
probably not present in persons who had displayed such problems shortly after
the marriage. The nature of this change was nothing short of revolutionary. Once
the Rota itself had demonstrated a cautious willingness to use this kind of
hindsight, the way was paved for what came after 1970. Diocesan Tribunals began
to accept proof of serious psychological problems that manifested themselves
shortly after the ceremony as proof of an inability to give valid consent at the time
of the ceremony.
Furthermore, and equally significant, the professional opinion of a psychological
expert became increasingly important in such cases. Data about the person's
entire life, both before and after the ceremony, were presented to these experts
and they were asked to give professional opinions about a party's mental at the
time of the wedding. These opinions were rarely challenged and tended to be
accepted as decisive evidence of lack of valid consent.
The Church took pains to point out that its new openness in this area did not
amount to the addition of new grounds for annulment, but rather was an
accommodation by the Church to the advances made in psychology during the
past decades. There was now the expertise to provide the all-important
connecting link between a marriage breakdown and premarital causes.
During the 1970s, the Church broadened its whole idea of marriage from that of a
legal contract to that of a covenant. The result of this was that it could no longer
be assumed in annulment cases that a person who could intellectually understand
the concept of marriage could necessarily give valid consent to marry. The ability
to both grasp and assume the real obligations of a mature, lifelong
commitment are now considered a necessary prerequisite to valid matrimonial
consent.
2

Rotal decisions continued applying the concept of incipient psychological
incapacity, "not only to sexual anomalies but to all kinds of personality disorders
that incapacitate a spouse or both spouses from assuming or carrying out the
essential obligations of marriage. For marriage . . . is not merely cohabitation or
the right of the spouses to each others' body for heterosexual acts, but is, in its
totality, the right to the community of the whole of life, i.e., the right to a
developing. lifelong relationship. Rotal decisions since 1973 have refined the
meaning of psychological or psychic capacity for marriage as presupposing the
development of an adult personality; as meaning the capacity of the spouses to
give themselves to each other and to accept the other as a distinct person; that
the spouses must be 'other oriented' since the obligations of marriage are rooted
in a self-giving love; and that the spouses must have the capacity for
interpersonal relationship because marriage is more than just a physical reality
but involves a true intertwining of personalities. The fulfillment of the obligations
of marriage depends. according to Church decisions, on the strength of this
interpersonal relationship. A serious incapacity for interpersonal sharing and
support is held to impair the relationship and consequently, the ability to fulfill the
essential marital obligations. The marital capacity of one spouse is not considered
in isolation but in reference to the fundamental relationship to the other spouse.
3

Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature
marital relationship:
The courts consider the following elements crucial to the marital
commitment: (1) a permanent and faithful commitment to the
marriage partner; (2) openness to children and partner; (3) stability;
(4) emotional maturity; (5) financial responsibility; (6) an ability to
cope with the ordinary stresses and strains of marriage, etc.
Fr. Green goes on to speak about some of the psychological
conditions that might lead to the failure of a marriage:
At stake is a type of constitutional impairment precluding conjugal
communion even with the best intentions of the parties. Among the
psychic factors possibly giving rise to his or her inability to fulfill
marital obligations are the following: (1) antisocial personality with
its fundamental lack of loyalty to persons or sense of moral values;
(2) hyperesthesia, where the individual has no real freedom of
sexual choice; (3) the inadequate personality where personal
responses consistently fallshort of reasonable expectations.
xxx xxx xxx
The psychological grounds are the best approach for anyone who
doubts whether he or she has a case for an annulment on any other
terms. A situation that does not fit into any of the more traditional
categories often fits very easily into the psychological category.
As new as the psychological grounds are, experts are already
detecting a shift in their use. Whereas originally the emphasis was
on the parties' inability to exercise proper judgment at the time of
the marriage (lack of due discretion), recent cases seem to be
concentrating on the parties' to assume or carry out their
responsibilities an obligations as promised (lack of due
competence). An advantage to using the ground of lack of due
competence is that the at the time the marriage was entered
into civil divorce and breakup of the family almost is of someone's
failure out marital responsibilities as promised at the time the
marriage was entered into.
4

In the instant case, "opposing and conflicting personalities" of the spouses were
not considered equivalent to psychological incapacity. As well in Santos v. Court
of Appeals cited in the ponencia, the Court held that the failure of the wife to
return home from the U.S. or to communicate with her husband for more then five
years is not proof of her psychological incapacity as to render the marriage a
nullity.
5
Therefore, Art. 36 is inapplicable and the marriages remain valid and
subsisting.
However in the recent case of Chi Ming Tsoi v. Court of Appeals,
6
this Court
upheld both the Regional Trial Court and the Court of Appeals in declaring the
presence of psychological incapacity on the part of the husband. Said petitioner
husband, after ten (10) months' sleeping with his wife never had coitus with her, a
fact he did not deny but he alleged that it was due to the physical disorder of his
wife which, however, he failed to prove. Goaded by the indifference and stubborn
refusal of her husband to fulfill a basic marital obligation described as "to
procreate children based on the universal principle that procreation of children
through sexual cooperation is the basic end of marriage," the wife brought the
action in the lower court to declare the marriage null.
The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the
Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila (Branch I) on
Psychological incapacity concluded:
If a spouse, although physically capable but simply refuses to
perform his or her essential marriage obligations, and the refusal is
senseless and constant, Catholic marriage tribunals attribute the
causes to psychological incapacity than to stubborn
refusal. Senseless and protracted refusal is equivalent to
psychological incapacity. Thus, the prolonged refusal of a spouse to
have sexual intercourse with his or her spouse is considered a sign
of psychological incapacity.
We declared:
This Court, finding the gravity of the failed relationship in which the parties found
themselves trapped in its mire of unfulfilled vows and unconsummated marital
obligations, can do no less but sustain the studied judgment of respondent
appellate court.
1 concur with the majority opinion that the herein marriage remains valid and
subsisting absent psychological incapacity (under Art. 36 of the Family Code) on
the part of either or both of the spouses.

VITUG, J ., concurring:
I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in
his ponencia, and I find to be most helpful the guidelines that he prepared for the
bench and the bar in the proper appreciation of Article 36 of Executive Order No.
209 ("The Family Code of the Philippines"). The term "psychological incapacity"
was neither defined nor exemplified by the Family Code. Thus
Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even
if such incapacity becomes manifest only after its solemnization.
The Revision Committee, constituted under the auspices of the U.P. Law
Center, which drafted the Code explained:
(T)he Committee would like the judge to interpret the provision on a
case-to-case basis, guided by experience, the findings of experts
and researchers in psychological disciplines, and by decisions of
church tribunals which, although not binding on the civil courts,
may be given persuasive effect since the provision was taken from
Canon Law.
1

Article 36 of the Family Code was concededly taken from Canon 1095 of the New
Code of Canon Law
Canon 1095. (The following persons) are incapable of contracting
marriage; (those)
1. who lack sufficient use of reason;
2. who suffer from a grave defect of discretion of judgment
concerning essential matrimonial rights and duties, to be given and
accepted mutually;
3. who for causes of psychological nature are unable to assume the
essential obligations of marriage
that should give that much value to Canon Law jurisprudence as an aid to
the interpretation and construction of the statutory enactment.
2

The principles in the proper application of the law teach us that the several
provisions of a Code must be read like a congruent whole. Thus, in determining
the import of "psychological incapacity" under Article 36, one must also read it
along with, albeit to be taken as distinct from, the other grounds enumerated in
the Code, like Articles 35, 37, 38 and 41 that would likewise, but for distinct
reasons, render the marriage merely voidable, or Article 55 that could justify a
petition for legal separation. Care must be observed so that these various
circumstances are not applied so indiscriminately as if the law were indifferent on
the matter.
I would wish to reiterate the Court's' statement in Santos vs. Court of
Appeals;
3
viz:
(T)he use of the phrase "psychological incapacity" under Article 36
of the Code has not been meant to comprehend all such possible
cases of psychoses as, likewise mentioned by some ecclesiastical
authorities, extremely low intelligence, immaturity, and like
circumstances. . . Article 36 of the Family Code cannot be taken and
construed independently of, but must stand in conjunction with,
existing precepts in our law on marriage. Thus correlated,
"psychological incapacity" should refer to no less than a mental (not
physical) incapacity that causes a party to be truly incognitive of the
basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed by
Article 68 of the Family Code, include their mutual obligations to live
together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law
has been to confine the meaning of "psychological incapacity" to
the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability of the spouse to
have sexual relations with the other. This conclusion is implicit
under Article 54 of the Family Code which considers children
conceived prior to the judicial declaration of nullity of the void
marriage to be "legitimate."
The other forms of psychoses, if existing at the inception of
marriage, like the state of a party being of unsound mind or
concealment of drug addiction, habitual alcoholism, homosexuality
or lesbianism, merely renders the marriage contract voidable
pursuant to Article 46, Family Code. If drug addiction, habitual
alcoholism, lesbianism or homosexuality should occur only during
the marriage, they become mere grounds for legal separation under
Article 55 of the Family Code. These provisions of the Code,
however, do not necessarily preclude the possibility of these
various circumstances being themselves, depending on the degree
and severity of the disorder, indicia of psychological
incapacity.
4

In fine, the term "psychological incapacity," to be a ground for then nullity of
marriage under Article 36 of the Family Code, must be able to pass the following
tests; viz:
First, the incapacity must be psychological or mental, not physical, in nature;
Second, the psychological incapacity must relate to the inability, not mere refusal,
to understand, assume end discharge the basic marital obligations of living
together, observing love, respect and fidelity and rendering mutual help and
support;
Third, the psychologic condition must exist at the time the marriage is contracted
although its overt manifestations and the marriage may occur only thereafter; and
Fourth, the mental disorder must be grave or serious and incurable.
It may well be that the Family Code Revision Committee has envisioned Article 36,
as not a few observers would suspect, as another form of absolute divorce or, as
still others would also put it, to be a alternative to divorce; however, the fact still
remains that the language of the law has failed to carry out, even if true, any such
intendment. It might have indeed turned out for the better, if it were otherwise,
there could be good reasons to doubt the constitutionality of the measure. The
fundamental law itself, no less, has laid down in terse language its unequivocal
command on how the State should regard marriage and the family, thus
Section 2, Article XV:
Sec. 2. Marriage, as an inviolable social institution, is the foundation
of the family and shall be protected by the State.
Section 12, Article II:
Sec. 12. The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social
institution . . . .
Section 1, Article XV:
Sec. 1. The State recognizes the Filipino family as the foundation of
the nation. Accordingly, it shall strengthen its solidarity and actively
promote its total development. (The 1987 Constitution)
The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so
much for the specific issue there resolved but for the tone it has set. The Court
there has held that constitutional provisions are to be considered mandatory
unless by necessary implication, a different intention is manifest such that to have
them enforced strictly would cause more harm than by disregarding them. It is
quite clear to me that the constitutional mandate on marriage and the family has
not been meant to be simply directory in character, nor for mere expediency or
convenience, but one that demands a meaningful, not half-hearted, respect.

Separate Opinions
PADILLA, J ., concuring opinion:
I concur in the result of the decision penned by Mr. Justice Panganiban but only
because of the peculiar facts of the case. As to whether or not the psychological
incapacity exists in a given case calling for annulment of a marriage, depends
crucially, more than in any field of the law, on the facts of the case. InLeouel
Santos v. Court of Appeals and J ulia Rosario-Bedia Santos, G.R. No. 112019, 4
January 1995, 240 SCRA 20-36, I maintained, and I still maintain, that there was
psychological incapacity on the part of the wife to discharge the duties of a wife in
a valid marriage. The facts of the present case, after an indepth study, do not
support a similar conclusion. Obviously, each case must be judged, not on the
basis of a priori assumptions, predilections or generalizations but according to its
own facts. In the field of psychological incapacity as a ground for annulment of
marriage, it is trite to say that no case is on "all fours" with another case. The trial
judge must take pains in examining the actual millieu and the appellate court
must, as much as possible, avoid substituting its own judgment for that of the trial
court.
ROMERO, J ., separate opinion:
The majority opinion, overturning that of the Court of Appeals which affirmed the
Regional Trial Court ruling. upheld petitioner Solicitor General's position that
"opposing and conflicting personalities" is not equivalent to psychological
incapacity, for the latter "is not simply the neglect by the parties to the marriage of
their responsibilities and duties, but a defect in their Psychological nature which
renders them incapable of performing such marital responsibilities and duties.
In the present case, the alleged personality traits of Reynaldo, the husband, did
not constitute so much "psychological incapacity" as a "difficulty," if not outright
"refusal" or "neglect" in the performance of some marital obligations. "It is not
enough to prove that the parties failed to meet their responsibilities and duties as
married persons; it is essential that they must be shown to be incapable of doing
so, due to some psychological (not physical) illness."
I would add that neither should the incapacity be the result of mental illness. For if
it were due to insanity or defects in the mental faculties short of insanity, there is
a resultant defect of vice of consent, thus rendering the marriage annulable under
Art. 45 of the Family Code.
That the intent of the members of the U.P. Law Center's Civil Code Revision
Committee was to excludemental inability to understand the essential nature of
marriage and focus strictly on psychological incapacity is demonstrated in the
way the provision in question underwent revisions.
At the Committee meeting of July 26, 1986, the draft provision read:
(7) Those marriages contracted by any party who, at the time of the
celebration, was wanting in the sufficient use of reason or judgment
to understand the essential nature of marriage or was
psychologically or mentally incapacitated to discharge the essential
marital obligations, even if such lack of incapacity is made manifest
after the celebration.
The twists and turns which the ensuing discussion took finally produced the
following revised provision even before the session was over:
(7) That contracted by any party who, at the time of the celebration,
was psychologically incapacitated to discharge the essential marital
obligations, even if such lack or incapacity becomes manifest after
the celebration.
Noticeably, the immediately preceding formulation above has dropped any
reference to "wanting in the sufficient use of reason or judgment to understand
the essential nature or marriage" and to "mentally incapacitated." It was explained
that these phrases refer to "defects in the mental faculties vitiating consent, which
is not the idea . . . but lack of appreciation of one's marital obligation." There being
a defect in consent, "it is clear that it should be a ground for voidable marriage
because there is the appearance of consent and it is capable of convalidation for
the simple reason that there are lucid intervals and there are sanity is curable. . . .
Psychological incapacity does not refer to mental faculties and has nothing to do
with consent; it refers to obligations attendant to
marriage."
1

My own position as a member of the Committee then was that psychological
incapacity is, in a sense, insanity of a lesser degree.
As to the proposal of Justice Caguioa to use the term "psychological or mental
impotence," Archbishop Oscar Cruz opined in he earlier February 9, 1984 session
that this term "is an invention of some churchmen who are moralists but not
canonists, that is why it is considered a weak phrase." He said that the Code of
Canon Law would rather express it as "psychological or mental incapacity to
discharge. . . ." Justice Ricardo C. Puno opined that sometimes a person may be
psychologically impotent with one but not with another.
One of the guidelines enumerated in the majority opinion for the interpretation
and application of Art. 36 is: "Such incapacity must also be shown to be medically
or clinically permanent or incurable. Such incurability may be absolute or even
relative only in regard to the other spouse, not necessarily absolutely against
everyone of the same sex."
The Committee, through Prof. Araceli T. Barrera, considered the inclusion of the
phrase" and is incurable" but Prof. Esteban B. Bautista commented that this
would give rise to the question of how they will determine curability and Justice
Caguioa agreed that it would be more problematic. Yet the possibility that one
may be cured after the psychological incapacity becomes manifest after the
marriage was not ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice
Caguioa suggested that the remedy was to allow the afflicted spouse to remarry.
For clarity, the Committee classified the bases for determining void
marriages, viz:
1. lack of one or more of the essential requisites of
marriage as contract;
2. reasons of public policy;
3. special cases and special situations.
The ground of psychological incapacity was subsumed under "special
cases and special situations," hence its special treatment in Art. 36 in the
Family Code as finally enacted.
Nowhere in the Civil Code provisions on Marriage is there a ground for avoiding
or annulling marriages that even comes close to being psychological in nature.
Where consent is vitiated due to circumstances existing at the time of the
marriage, such marriage which stands valid until annulled is capable of
ratification or convalidation.
On the other hand, for reasons of public policy or lack of essential requisites,
some marriages are void from the beginning.
With the revision of Book I of the Civil Code, particularly the provisions on
Marriage, the drafters, now open to fresh winds of change in keeping with the
more permissive mores and practices of the time, took a leaf from the relatively
liberal provisions of Canon Law.
Canon 1095 which states, inter alia, that the following persons are incapable of
contracting marriage: "3. (those) who, because of causes of a psychological
nature, are unable to assume the essential obligations of marriage" provided the
model for what is now Art. 36 of the Family Code: "A marriage contracted by any
party who, at the time of the celebration, was psychologically incapacitated to
comply with the essential marital obligations of marriage, shall likewise be void
even if such incapacity becomes manifest only after its solemnization.
It bears stressing that unlike in Civil Law, Canon Law recognizes only two types of
marriages with respect to their validity: valid and void. Civil Law, however,
recognizes an intermediate state, the voidable or annullable marriages. When the
Ecclesiastical Tribunal "annuls" a marriage, it actually declares the marriage null
and void, i.e., it never really existed in the first place, for a valid sacramental
marriage can never be dissolved. Hence, a properly performed and consummated
marriage between two living Roman Catholics can only be nullified by the formal
annulment process which entails a full tribunal procedure with a Court selection
and a formal hearing.
Such so-called church "annulments" are not recognized by Civil Law as severing
the marriage ties as to capacitate the parties to enter lawfully into another
marriage. The grounds for nullifying civil marriage, not being congruent with
those laid down by Canon Law, the former being more strict, quite a number of
married couples have found themselves in limbo freed from the marriage bonds
in the eyes of the Catholic Church but yet unable to contract a valid civil marriage
under state laws. Heedless of civil law sanctions, some persons contract new
marriages or enter into live-in relationships.
It was precisely to provide a satisfactory solution to such anomalous situations
that the Civil Law Revision Committee decided to engraft the Canon Law concept
of psychological incapacity into the Family Code and classified the same as a
ground for declaring marriages void ab initio or totally in existent from the
beginning.
A brief historical note on the Old Canon Law (1917). This Old Code, while it did not
provide directly for psychological incapacity, in effect recognized the same
indirectly from a combination of three old canons: "Canon #1081 required persons
to 'be capable according to law' in order to give valid consent; Canon #1082
required that persons 'be at least not ignorant' of the major elements required in
marriage; and Canon #1087 (the force and fear category) required that internal and
external freedom be present in order for consent to be valid. This line of
interpretation produced two distinct but related grounds for annulment, called
'lack of due discretion' and 'lack of due competence.' Lack of due discretion
means that the person did not have the ability to give valid consent at the time of
the wedding and therefore the union is invalid. Lack of due competence means
that the person was incapable of carrying out the obligations of the promise he or
she made during the wedding ceremony.
"Favorable annulment decisions by the Roman Rota in the 1950s and 1960s
involving sexual disorders such as homosexuality and nymphomania laid the
foundation for a broader approach to the kind of proof necessary for
psychological grounds for annulment. The Rota had reasoned for the first time in
several cases that the capacity to give valid consent at the time of marriage was
probably not present in persons who had displayed such problems shortly after
the marriage. The nature of this change was nothing short of revolutionary. Once
the Rota itself had demonstrated a cautious willingness to use this kind of
hindsight, the way was paved for what came after 1970. Diocesan Tribunals began
to accept proof of serious psychological problems that manifested themselves
shortly after the ceremony as proof of an inability to give valid consent at the time
of the ceremony.
Furthermore, and equally significant, the professional opinion of a psychological
expert became increasingly important in such cases. Data about the person's
entire life, both before and after the ceremony, were presented to these experts
and they were asked to give professional opinions about a party's mental at the
time of the wedding. These opinions were rarely challenged and tended to be
accepted as decisive evidence of lack of valid consent.
The Church took pains to point out that its new openness in this area did not
amount to the addition of new grounds for annulment, but rather was an
accommodation by the Church to the advances made in psychology during the
past decades. There was now the expertise to provide the all-important
connecting link between a marriage breakdown and premarital causes.
During the 1970s, the Church broadened its whole idea of marriage from that of a
legal contract to that of a covenant. The result of this was that it could no longer
be assumed in annulment cases that a person who could intellectually understand
the concept of marriage could necessarily give valid consent to marry. The ability
to both grasp and assume the real obligations of a mature, lifelong
commitment are now considered a necessary prerequisite to valid matrimonial
consent.
2

Rotal decisions continued applying the concept of incipient psychological
incapacity, "not only to sexual anomalies but to all kinds of personality disorders
that incapacitate a spouse or both spouses from assuming or carrying out the
essential obligations of marriage. For marriage . . . is not merely cohabitation or
the right of the spouses to each others' body for heterosexual acts, but is, in its
totality, the right to the community of the whole of life, i.e., the right to a
developing. lifelong relationship. Rotal decisions since 1973 have refined the
meaning of psychological or psychic capacity for marriage as presupposing the
development of an adult personality; as meaning the capacity of the spouses to
give themselves to each other and to accept the other as a distinct person; that
the spouses must be 'other oriented' since the obligations of marriage are rooted
in a self-giving love; and that the spouses must have the capacity for
interpersonal relationship because marriage is more than just a physical reality
but involves a true intertwining of personalities. The fulfillment of the obligations
of marriage depends. according to Church decisions, on the strength of this
interpersonal relationship. A serious incapacity for interpersonal sharing and
support is held to impair the relationship and consequently, the ability to fulfill the
essential marital obligations. The marital capacity of one spouse is not considered
in isolation but in reference to the fundamental relationship to the other spouse.
3

Fr. Green, in an article in Catholic Mind, lists six elements necessary to the mature
marital relationship:
The courts consider the following elements crucial to the marital
commitment: (1) a permanent and faithful commitment to the
marriage partner; (2) openness to children and partner; (3) stability;
(4) emotional maturity; (5) financial responsibility; (6) an ability to
cope with the ordinary stresses and strains of marriage, etc.
Fr. Green goes on to speak about some of the psychological
conditions that might lead to the failure of a marriage:
At stake is a type of constitutional impairment precluding conjugal
communion even with the best intentions of the parties. Among the
psychic factors possibly giving rise to his or her inability to fulfill
marital obligations are the following: (1) antisocial personality with
its fundamental lack of loyalty to persons or sense of moral values;
(2) hyperesthesia, where the individual has no real freedom of
sexual choice; (3) the inadequate personality where personal
responses consistently fallshort of reasonable expectations.
xxx xxx xxx
The psychological grounds are the best approach for anyone who
doubts whether he or she has a case for an annulment on any other
terms. A situation that does not fit into any of the more traditional
categories often fits very easily into the psychological category.
As new as the psychological grounds are, experts are already
detecting a shift in their use. Whereas originally the emphasis was
on the parties' inability to exercise proper judgment at the time of
the marriage (lack of due discretion), recent cases seem to be
concentrating on the parties' to assume or carry out their
responsibilities an obligations as promised (lack of due
competence). An advantage to using the ground of lack of due
competence is that the at the time the marriage was entered
into civil divorce and breakup of the family almost is of someone's
failure out marital responsibilities as promised at the time the
marriage was entered into.
4

In the instant case, "opposing and conflicting personalities" of the spouses were
not considered equivalent to psychological incapacity. As well in Santos v. Court
of Appeals cited in the ponencia, the Court held that the failure of the wife to
return home from the U.S. or to communicate with her husband for more then five
years is not proof of her psychological incapacity as to render the marriage a
nullity.
5
Therefore, Art. 36 is inapplicable and the marriages remain valid and
subsisting.
However in the recent case of Chi Ming Tsoi v. Court of Appeals,
6
this Court
upheld both the Regional Trial Court and the Court of Appeals in declaring the
presence of psychological incapacity on the part of the husband. Said petitioner
husband, after ten (10) months' sleeping with his wife never had coitus with her, a
fact he did not deny but he alleged that it was due to the physical disorder of his
wife which, however, he failed to prove. Goaded by the indifference and stubborn
refusal of her husband to fulfill a basic marital obligation described as "to
procreate children based on the universal principle that procreation of children
through sexual cooperation is the basic end of marriage," the wife brought the
action in the lower court to declare the marriage null.
The Court, quoting Dr. Gerardo Veloso, a former Presiding Judge of the
Metropolitan Marriage Tribunal of the Catholic Archdiocese of Manila (Branch I) on
Psychological incapacity concluded:
If a spouse, although physically capable but simply refuses to
perform his or her essential marriage obligations, and the refusal is
senseless and constant, Catholic marriage tribunals attribute the
causes to psychological incapacity than to stubborn
refusal. Senseless and protracted refusal is equivalent to
psychological incapacity. Thus, the prolonged refusal of a spouse to
have sexual intercourse with his or her spouse is considered a sign
of psychological incapacity.
We declared:
This Court, finding the gravity of the failed relationship in which the parties found
themselves trapped in its mire of unfulfilled vows and unconsummated marital
obligations, can do no less but sustain the studied judgment of respondent
appellate court.
1 concur with the majority opinion that the herein marriage remains valid and
subsisting absent psychological incapacity (under Art. 36 of the Family Code) on
the part of either or both of the spouses.

VITUG, J ., concurring:
I fully concur with my esteemed 'colleague Mr. Justice Artemio V. Panganiban in
his ponencia, and I find to be most helpful the guidelines that he prepared for the
bench and the bar in the proper appreciation of Article 36 of Executive Order No.
209 ("The Family Code of the Philippines"). The term "psychological incapacity"
was neither defined nor exemplified by the Family Code. Thus
Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even
if such incapacity becomes manifest only after its solemnization.
The Revision Committee, constituted under the auspices of the U.P. Law
Center, which drafted the Code explained:
(T)he Committee would like the judge to interpret the provision on a
case-to-case basis, guided by experience, the findings of experts
and researchers in psychological disciplines, and by decisions of
church tribunals which, although not binding on the civil courts,
may be given persuasive effect since the provision was taken from
Canon Law.
1

Article 36 of the Family Code was concededly taken from Canon 1095 of the New
Code of Canon Law
Canon 1095. (The following persons) are incapable of contracting
marriage; (those)
1. who lack sufficient use of reason;
2. who suffer from a grave defect of discretion of judgment
concerning essential matrimonial rights and duties, to be given and
accepted mutually;
3. who for causes of psychological nature are unable to assume the
essential obligations of marriage
that should give that much value to Canon Law jurisprudence as an aid to
the interpretation and construction of the statutory enactment.
2

The principles in the proper application of the law teach us that the several
provisions of a Code must be read like a congruent whole. Thus, in determining
the import of "psychological incapacity" under Article 36, one must also read it
along with, albeit to be taken as distinct from, the other grounds enumerated in
the Code, like Articles 35, 37, 38 and 41 that would likewise, but for distinct
reasons, render the marriage merely voidable, or Article 55 that could justify a
petition for legal separation. Care must be observed so that these various
circumstances are not applied so indiscriminately as if the law were indifferent on
the matter.
I would wish to reiterate the Court's' statement in Santos vs. Court of
Appeals;
3
viz:
(T)he use of the phrase "psychological incapacity" under Article 36
of the Code has not been meant to comprehend all such possible
cases of psychoses as, likewise mentioned by some ecclesiastical
authorities, extremely low intelligence, immaturity, and like
circumstances. . . Article 36 of the Family Code cannot be taken and
construed independently of, but must stand in conjunction with,
existing precepts in our law on marriage. Thus correlated,
"psychological incapacity" should refer to no less than a mental (not
physical) incapacity that causes a party to be truly incognitive of the
basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed by
Article 68 of the Family Code, include their mutual obligations to live
together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law
has been to confine the meaning of "psychological incapacity" to
the most serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability of the spouse to
have sexual relations with the other. This conclusion is implicit
under Article 54 of the Family Code which considers children
conceived prior to the judicial declaration of nullity of the void
marriage to be "legitimate."
The other forms of psychoses, if existing at the inception of
marriage, like the state of a party being of unsound mind or
concealment of drug addiction, habitual alcoholism, homosexuality
or lesbianism, merely renders the marriage contract voidable
pursuant to Article 46, Family Code. If drug addiction, habitual
alcoholism, lesbianism or homosexuality should occur only during
the marriage, they become mere grounds for legal separation under
Article 55 of the Family Code. These provisions of the Code,
however, do not necessarily preclude the possibility of these
various circumstances being themselves, depending on the degree
and severity of the disorder, indicia of psychological
incapacity.
4

In fine, the term "psychological incapacity," to be a ground for then nullity of
marriage under Article 36 of the Family Code, must be able to pass the following
tests; viz:
First, the incapacity must be psychological or mental, not physical, in nature;
Second, the psychological incapacity must relate to the inability, not mere refusal,
to understand, assume end discharge the basic marital obligations of living
together, observing love, respect and fidelity and rendering mutual help and
support;
Third, the psychologic condition must exist at the time the marriage is contracted
although its overt manifestations and the marriage may occur only thereafter; and
Fourth, the mental disorder must be grave or serious and incurable.
It may well be that the Family Code Revision Committee has envisioned Article 36,
as not a few observers would suspect, as another form of absolute divorce or, as
still others would also put it, to be a alternative to divorce; however, the fact still
remains that the language of the law has failed to carry out, even if true, any such
intendment. It might have indeed turned out for the better, if it were otherwise,
there could be good reasons to doubt the constitutionality of the measure. The
fundamental law itself, no less, has laid down in terse language its unequivocal
command on how the State should regard marriage and the family, thus
Section 2, Article XV:
Sec. 2. Marriage, as an inviolable social institution, is the foundation
of the family and shall be protected by the State.
Section 12, Article II:
Sec. 12. The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social
institution . . . .
Section 1, Article XV:
Sec. 1. The State recognizes the Filipino family as the foundation of
the nation. Accordingly, it shall strengthen its solidarity and actively
promote its total development. (The 1987 Constitution)
The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so
much for the specific issue there resolved but for the tone it has set. The Court
there has held that constitutional provisions are to be considered mandatory
unless by necessary implication, a different intention is manifest such that to have
them enforced strictly would cause more harm than by disregarding them. It is
quite clear to me that the constitutional mandate on marriage and the family has
not been meant to be simply directory in character, nor for mere expediency or
convenience, but one that demands a meaningful, not half-hearted, respect.
DIGEST
FACTS:

The case at bar challenges the decision of CA affirming the marriage of the respondent
Roridel Molina to Reynaldo Molina void in the ground of psychological incapacity. The
couple got married in 1985, after a year, Reynaldo manifested signs of immaturity and
irresponsibility both as husband and a father preferring to spend more time with friends
whom he squandered his money, depends on his parents for aid and assistance and
was never honest with his wife in regard to their finances. In 1986, the couple had an
intense quarrel and as a result their relationship was estranged. Roridel quit her work
and went to live with her parents in Baguio City in 1987 and a few weeks later, Reynaldo
left her and their child. Since then he abandoned them.

ISSUE: Whether or not the marriage is void on the ground of psychological incapacity.

HELD:

The marriage between Roridel and Reynaldo subsists and remains valid. What
constitutes psychological incapacity is not mere showing of irreconcilable differences
and confliction personalities. It is indispensable that the parties must exhibit inclinations
which would not meet the essential marital responsibilites and duties due to some
psychological illness. Reynaldos action at the time of the marriage did not manifest
such characteristics that would comprise grounds for psychological incapacity. The
evidence shown by Roridel merely showed that she and her husband cannot get along
with each other and had not shown gravity of the problem neither its juridical
antecedence nor its incurability. In addition, the expert testimony by Dr Sison showed
no incurable psychiatric disorder but only incompatibility which is not considered as
psychological incapacity.

The following are the guidelines as to the grounds of psychological incapacity laid set
forth in this case:
burden of proof to show nullity belongs to the plaintiff
root causes of the incapacity must be medically and clinically inclined
such incapacity should be in existence at the time of the marriage
such incapacity must be grave so as to disable the person in complying with the
essentials of marital obligations of marriage
such incapacity must be embraced in Art. 68-71 as well as Art 220, 221 and 225 of the
Family Code
decision of the National Matrimonial Appellate Court or the Catholic Church must be
respected
court shall order the prosecuting attorney and the fiscal assigned to it to act on behalf of
the state.


Louel Santos vs. CA (G.R. No. 112019, 4 January 1995)
LEOUEL SANTOS, petitioner,
vs.
THE HONORABLE COURT OF APPEALS AND JULIA ROSARIO BEDIA-
SANTOS, respondents.

VITUG, J .:
Concededly a highly, if not indeed the most likely, controversial provision introduced by
the Family Code is Article 36 (as amended by E.O. No. 227 dated 17 July 1987), which
declares:
Art. 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization.
The present petition for review on certiorari, at the instance of Leouel Santos
("Leouel"), brings into fore the above provision which is now invoked by him.
Undaunted by the decisions of the court a quo
1
and the Court of Appeal,
2
Leouel
persists in beseeching its application in his attempt to have his marriage with
herein private respondent, Julia Rosario Bedia-Santos ("Julia"), declared a
nullity.
It was in Iloilo City where Leouel, who then held the rank of First Lieutenant in the
Philippine Army, first met Julia. The meeting later proved to be an eventful day for
Leouel and Julia. On 20 September 1986, the two exchanged vows before Municipal
Trial Court Judge Cornelio G. Lazaro of Iloilo City, followed, shortly thereafter, by a
church wedding. Leouel and Julia lived with the latter's parents at the J. Bedia
Compound, La Paz, Iloilo City. On 18 July 1987, Julia gave birth to a baby boy, and he
was christened Leouel Santos, Jr. The ecstasy, however, did not last long. It was bound
to happen, Leouel averred, because of the frequent interference by Julia's parents into
the young spouses family affairs. Occasionally, the couple would also start a "quarrel"
over a number of other things, like when and where the couple should start living
independently from Julia's parents or whenever Julia would express resentment on
Leouel's spending a few days with his own parents.
On 18 May 1988, Julia finally left for the United Sates of America to work as a nurse
despite Leouel's pleas to so dissuade her. Seven months after her departure, or on 01
January 1989, Julia called up Leouel for the first time by long distance telephone. She
promised to return home upon the expiration of her contract in July 1989. She never did.
When Leouel got a chance to visit the United States, where he underwent a training
program under the auspices of the Armed Forces of the Philippines from 01 April up to
25 August 1990, he desperately tried to locate, or to somehow get in touch with, Julia
but all his efforts were of no avail.
Having failed to get Julia to somehow come home, Leouel filed with the regional trial
Court of Negros Oriental, Branch 30, a complaint for "Voiding of marriage Under Article
36 of the Family Code" (docketed, Civil Case No. 9814). Summons was served by
publication in a newspaper of general circulation in Negros Oriental.
On 31 May 1991, respondent Julia, in her answer (through counsel), opposed the
complaint and denied its allegations, claiming, in main, that it was the petitioner who
had, in fact, been irresponsible and incompetent.
A possible collusion between the parties to obtain a decree of nullity of their marriage
was ruled out by the Office of the Provincial Prosecutor (in its report to the court).
On 25 October 1991, after pre-trial conferences had repeatedly been
set, albeit unsuccessfully, by the court, Julia ultimately filed a manifestation, stating that
she would neither appear nor submit evidence.
On 06 November 1991, the court a quo finally dismissed the complaint for lack of merit.
3

Leouel appealed to the Court of Appeal. The latter affirmed the decision of the trial
court.
4

The petition should be denied not only because of its non-compliance with Circular 28-
91, which requires a certification of non-shopping, but also for its lack of merit.
Leouel argues that the failure of Julia to return home, or at the very least to
communicate with him, for more than five years are circumstances that clearly show her
being psychologically incapacitated to enter into married life. In his own words, Leouel
asserts:
. . . (T)here is no leave, there is no affection for (him) because respondent
Julia Rosario Bedia-Santos failed all these years to communicate with the
petitioner. A wife who does not care to inform her husband about her
whereabouts for a period of five years, more or less, is psychologically
incapacitated.
The family Code did not define the term "psychological incapacity." The deliberations
during the sessions of the Family Code Revision Committee, which has drafted the
Code, can, however, provide an insight on the import of the provision.
Art. 35. The following marriages shall be void from the beginning:
xxx xxx xxx
Art. 36. . . .
(7) Those marriages contracted by any party who, at the time of the
celebration, was wanting in the sufficient use of reason or judgment to
understand the essential nature of marriage or was psychologically or
mentally incapacitated to discharge the essential marital obligations, even
if such lack of incapacity is made manifest after the celebration.
On subparagraph (7), which as lifted from the Canon Law, Justice (Jose
B.L.) Reyes suggested that they say "wanting in sufficient use," but
Justice (Eduardo) Caguioa preferred to say "wanting in the sufficient use."
On the other hand, Justice Reyes proposed that they say "wanting in
sufficient reason." Justice Caguioa, however, pointed out that the idea is
that one is not lacking in judgment but that he is lacking in the exercise of
judgment. He added that lack of judgment would make the marriage
voidable. Judge (Alicia Sempio-) Diy remarked that lack of judgment is
more serious than insufficient use of judgment and yet the latter would
make the marriage null and void and the former only voidable. Justice
Caguioa suggested that subparagraph (7) be modified to read:
"That contracted by any party who, at the time of the
celebration, was psychologically incapacitated to discharge
the essential marital obligations, even if such lack of
incapacity is made manifest after the celebration."
Justice Caguioa explained that the phrase "was wanting in sufficient use
of reason of judgment to understand the essential nature of marriage"
refers to defects in the mental faculties vitiating consent, which is not the
idea in subparagraph (7), but lack of appreciation of one's marital
obligations.
Judge Diy raised the question: Since "insanity" is also a psychological or
mental incapacity, why is "insanity" only a ground for annulment and not
for declaration or nullity? In reply, Justice Caguioa explained that in
insanity, there is the appearance of consent, which is the reason why it is
a ground for voidable marriages, while subparagraph (7) does not refer to
consent but to the very essence of marital obligations.
Prof. (Araceli) Baviera suggested that, in subparagraph (7), the word
"mentally" be deleted, with which Justice Caguioa concurred. Judge Diy,
however, prefers to retain the word "mentally."
Justice Caguioa remarked that subparagraph (7) refers to psychological
impotence. Justice (Ricardo) Puno stated that sometimes a person may
be psychologically impotent with one but not with another. Justice (Leonor
Ines-) Luciano said that it is called selective impotency.
Dean (Fortunato) Gupit stated that the confusion lies in the fact that in
inserting the Canon Law annulment in the Family Code, the Committee
used a language which describes a ground for voidable marriages under
the Civil Code. Justice Caguioa added that in Canon Law, there are
voidable marriages under the Canon Law, there are no voidable
marriages Dean Gupit said that this is precisely the reason why they
should make a distinction.
Justice Puno remarked that in Canon Law, the defects in marriage cannot
be cured.
Justice Reyes pointed out that the problem is: Why is "insanity" a ground
for void ab initio marriages? In reply, Justice Caguioa explained that
insanity is curable and there are lucid intervals, while psychological
incapacity is not.
On another point, Justice Puno suggested that the phrase "even if such
lack or incapacity is made manifest" be modified to read "even if such lack
or incapacity becomes manifest."
Justice Reyes remarked that in insanity, at the time of the marriage, it is
not apparent.
Justice Caguioa stated that there are two interpretations of the phrase
"psychological or mentally incapacitated" in the first one, there is
vitiation of consent because one does not know all the consequences of
the marriages, and if he had known these completely, he might not have
consented to the marriage.
xxx xxx xxx
Prof. Bautista stated that he is in favor of making psychological incapacity
a ground for voidable marriages since otherwise it will encourage one
who really understood the consequences of marriage to claim that he did
not and to make excuses for invalidating the marriage by acting as if he
did not understand the obligations of marriage. Dean Gupit added that it
is a loose way of providing for divorce.
xxx xxx xxx
Justice Caguioa explained that his point is that in the case of incapacity
by reason of defects in the mental faculties, which is less than insanity,
there is a defect in consent and, therefore, it is clear that it should be a
ground for voidable marriage because there is the appearance of consent
and it is capable of convalidation for the simple reason that there are lucid
intervals and there are cases when the insanity is curable. He
emphasized that psychological incapacity does not refer to mental
faculties and has nothing to do with consent; it refers to obligations
attendant to marriage.
xxx xxx xxx
On psychological incapacity, Prof. (Flerida Ruth P.) Romero inquired if
they do not consider it as going to the very essence of consent. She
asked if they are really removing it from consent. In reply, Justice
Caguioa explained that, ultimately, consent in general is effected but he
stressed that his point is that it is not principally a vitiation of consent
since there is a valid consent. He objected to the lumping together of the
validity of the marriage celebration and the obligations attendant to
marriage, which are completely different from each other, because they
require a different capacity, which is eighteen years of age, for marriage
but in contract, it is different. Justice Puno, however, felt that
psychological incapacity is still a kind of vice of consent and that it should
not be classified as a voidable marriage which is incapable of
convalidation; it should be convalidated but there should be no
prescription. In other words, as long as the defect has not been cured,
there is always a right to annul the marriage and if the defect has been
really cured, it should be a defense in the action for annulment so that
when the action for annulment is instituted, the issue can be raised that
actually, although one might have been psychologically incapacitated, at
the time the action is brought, it is no longer true that he has no concept
of the consequence of marriage.
Prof. (Esteban) Bautista raised the question: Will not cohabitation be a
defense? In response, Justice Puno stated that even the bearing of
children and cohabitation should not be a sign that psychological
incapacity has been cured.
Prof. Romero opined that psychological incapacity is still insanity of a
lesser degree. Justice Luciano suggested that they invite a psychiatrist,
who is the expert on this matter. Justice Caguioa, however, reiterated that
psychological incapacity is not a defect in the mind but in the
understanding of the consequences of marriage, and therefore, a
psychiatrist will not be a help.
Prof. Bautista stated that, in the same manner that there is a lucid interval
in insanity, there are also momentary periods when there is an
understanding of the consequences of marriage. Justice Reyes and Dean
Gupit remarked that the ground of psychological incapacity will not apply
if the marriage was contracted at the time when there is understanding of
the consequences of marriage.
5

xxx xxx xxx
Judge Diy proposed that they include physical incapacity to copulate
among the grounds for void marriages. Justice Reyes commented that in
some instances the impotence that in some instances the impotence is
only temporary and only with respect to a particular person. Judge Diy
stated that they can specify that it is incurable. Justice Caguioa remarked
that the term "incurable" has a different meaning in law and in medicine.
Judge Diy stated that "psychological incapacity" can also be cured.
Justice Caguioa, however, pointed out that "psychological incapacity" is
incurable.
Justice Puno observed that under the present draft provision, it is enough
to show that at the time of the celebration of the marriage, one was
psychologically incapacitated so that later on if already he can comply
with the essential marital obligations, the marriage is still void ab initio.
Justice Caguioa explained that since in divorce, the psychological
incapacity may occur after the marriage, in void marriages, it has to be at
the time of the celebration of marriage. He, however, stressed that the
idea in the provision is that at the time of the celebration of the marriage,
one is psychologically incapacitated to comply with the essential marital
obligations, which incapacity continues and later becomes manifest.
Justice Puno and Judge Diy, however, pointed out that it is possible that
after the marriage, one's psychological incapacity become manifest but
later on he is cured. Justice Reyes and Justice Caguioa opined that the
remedy in this case is to allow him to remarry.
6

xxx xxx xxx
Justice Puno formulated the next Article as follows:
Art. 37. A marriage contracted by any party who, at the
time of the celebration, was psychologically incapacitated,
to comply with the essential obligations of marriage shall
likewise be void from the beginning even if such incapacity
becomes manifest after its solemnization.
Justice Caguioa suggested that "even if" be substituted with "although."
On the other hand, Prof. Bautista proposed that the clause "although such
incapacity becomes manifest after its solemnization" be deleted since it
may encourage one to create the manifestation of psychological
incapacity. Justice Caguioa pointed out that, as in other provisions, they
cannot argue on the basis of abuse.
Judge Diy suggested that they also include mental and physical
incapacities, which are lesser in degree than psychological incapacity.
Justice Caguioa explained that mental and physical incapacities are vices
of consent while psychological incapacity is not a species of vice or
consent.
Dean Gupit read what Bishop Cruz said on the matter in the minutes of
their February 9, 1984 meeting:
"On the third ground, Bishop Cruz indicated that the
phrase "psychological or mental impotence" is an invention
of some churchmen who are moralists but not canonists,
that is why it is considered a weak phrase. He said that the
Code of Canon Law would rather express it as
"psychological or mental incapacity to discharge . . ."
Justice Caguioa remarked that they deleted the word "mental" precisely to
distinguish it from vice of consent. He explained that "psychological
incapacity" refers to lack of understanding of the essential obligations of
marriage.
Justice Puno reminded the members that, at the last meeting, they have
decided not to go into the classification of "psychological incapacity"
because there was a lot of debate on it and that this is precisely the
reason why they classified it as a special case.
At this point, Justice Puno, remarked that, since there having been
annulments of marriages arising from psychological incapacity, Civil Law
should not reconcile with Canon Law because it is a new ground even
under Canon Law.
Prof. Romero raised the question: With this common provision in Civil
Law and in Canon Law, are they going to have a provision in the Family
Code to the effect that marriages annulled or declared void by the church
on the ground of psychological incapacity is automatically annulled in Civil
Law? The other members replied negatively.
Justice Puno and Prof. Romero inquired if Article 37 should be retroactive
or prospective in application.
Justice Diy opined that she was for its retroactivity because it is their
answer to the problem of church annulments of marriages, which are still
valid under the Civil Law. On the other hand, Justice Reyes and Justice
Puno were concerned about the avalanche of cases.
Dean Gupit suggested that they put the issue to a vote, which the
Committee approved.
The members voted as follows:
(1) Justice Reyes, Justice Puno and Prof. Romero were for prospectivity.
(2) Justice Caguioa, Judge Diy, Dean Gupit, Prof. Bautista and Director
Eufemio were for retroactivity.
(3) Prof. Baviera abstained.
Justice Caguioa suggested that they put in the prescriptive period of ten
years within which the action for declaration of nullity of the marriage
should be filed in court. The Committee approved the suggestion.
7

It could well be that, in sum, the Family Code Revision Committee in ultimately deciding
to adopt the provision with less specificity than expected, has in fact, so designed the
law as to allow some resiliency in its application. Mme. Justice Alicia V. Sempio-Diy, a
member of the Code Committee, has been quoted by Mr. Justice Josue N. Bellosillo
in Salita vs. Hon. Magtolis (G.R. No. 106429, 13 June 1994); thus:
8

The Committee did not give any examples of psychological incapacity for
fear that the giving of examples would limit the applicability of the
provision under the principle of ejusdem generis. Rather, the Committee
would like the judge to interpret the provision on a case-to-case basis,
guided by experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals which,
although not binding on the civil courts, may be given persuasive effect
since the provision was taken from Canon Law.
A part of the provision is similar to Canon 1095 of the New Code of Canon Law,
9
which
reads:
Canon 1095. They are incapable of contracting marriage:
1. who lack sufficient use of reason;
2. who suffer from a grave defect of discretion of judgment concerning
essentila matrimonial rights and duties, to be given and accepted
mutually;
3. who for causes of psychological nature are unable to assume the
essential obligations of marriage. (Emphasis supplied.)
Accordingly, although neither decisive nor even perhaps all that persuasive for having no
juridical or secular effect, the jurisprudence under Canon Law prevailing at the time of
the code's enactment, nevertheless, cannot be dismissed as impertinent for its value as
an aid, at least, to the interpretation or construction of the codal provision.
One author, Ladislas Orsy, S.J., in his treaties,
10
giving an account on how the third
paragraph of Canon 1095 has been framed, states:
The history of the drafting of this canon does not leave any doubt that the
legislator intended, indeed, to broaden the rule. A strict and narrow norm
was proposed first:
Those who cannot assume the essential obligations of
marriage because of a grave psycho-sexual anomaly (ob
gravem anomaliam psychosexualem) are unable to
contract marriage (cf. SCH/1975, canon 297, a new canon,
novus);
then a broader one followed:
. . . because of a grave psychological anomaly (ob gravem anomaliam
psychicam) . . . (cf.SCH/1980, canon 1049);
then the same wording was retained in the text submitted to the pope
(cf. SCH/1982, canon 1095, 3);
finally, a new version was promulgated:
because of causes of a psychological nature (ob causas naturae
psychiae).
So the progress was from psycho-sexual to psychological anomaly, then
the term anomaly was altogether eliminated. it would be, however,
incorrect to draw the conclusion that the cause of the incapacity need not
be some kind of psychological disorder; after all, normal and healthy
person should be able to assume the ordinary obligations of marriage.
Fr. Orsy concedes that the term "psychological incapacity" defies any precise definition
since psychological causes can be of an infinite variety.
In a book, entitled "Canons and Commentaries on Marriage," written by Ignatius
Gramunt, Javier Hervada and LeRoy Wauck, the following explanation appears:
This incapacity consists of the following: (a) a true inability to
commit oneself to the essentials of marriage. Some psychosexual
disorders and other disorders of personality can be the psychic cause of
this defect, which is here described in legal terms. This particular type of
incapacity consists of a real inability to render what is due by the contract.
This could be compared to the incapacity of a farmer to enter a binding
contract to deliver the crops which he cannot possibly reap; (b) this
inability to commit oneself must refer to the essential obligations of
marriage: the conjugal act, the community of life and love, the rendering
of mutual help, the procreation and education of offspring; (c) the inability
must be tantamount to a psychological abnormality. The mere difficulty of
assuming these obligations, which could be overcome by normal effort,
obviously does not constitute incapacity. The canon contemplates a true
psychological disorder which incapacitates a person from giving what is
due (cf. John Paul II, Address to R. Rota, Feb. 5, 1987). However, if the
marriage is to be declared invalid under this incapacity, it must be proved
not only that the person is afflicted by a psychological defect, but that the
defect did in fact deprive the person, at the moment of giving consent, of
the ability to assume the essential duties of marriage and consequently of
the possibility of being bound by these duties.
Justice Sempio-Diy
11
cites with approval the work of Dr. Gerardo Veloso, a former
Presiding Judge of the Metropolitan Marriage Tribunal of the Catholic Archdiocese of
Manila (Branch 1), who opines that psychological incapacity must be characterized by
(a) gravity, (b) juridical antecedence, and (c) incurability. The incapacity must be grave
or serious such that the party would be incapable of carrying out the ordinary duties
required in marriage; it must be rooted in the history of the party antedating the
marriage, although the overt manifestations may emerge only after the marriage; and it
must be incurable or, even if it were otherwise, the cure would be beyond the means of
the party involved.
It should be obvious, looking at all the foregoing disquisitions, including, and most
importantly, the deliberations of the Family Code Revision Committee itself, that the use
of the phrase "psychological incapacity" under Article 36 of the Code has not been
meant to comprehend all such possible cases of psychoses as, likewise mentioned by
some ecclesiastical authorities, extremely low intelligence, immaturity, and like
circumstances (cited in Fr. Artemio Baluma's "Void and Voidable Marriages in the Family
Code and their Parallels in Canon Law," quoting from the Diagnostic Statistical Manual
of Mental Disorder by the American Psychiatric Association; Edward Hudson's
"Handbook II for Marriage Nullity Cases"). Article 36 of the Family Code cannot be taken
and construed independently of, but must stand in conjunction with, existing precepts in
our law on marriage. Thus correlated, "psychological incapacity" should refer to no less
than a mental (not physical) incapacity that causes a party to be truly incognitive of the
basic marital covenants that concomitantly must be assumed and discharged by the
parties to the marriage which, as so expressed by Article 68 of the Family Code, include
their mutual obligations to live together, observe love, respect and fidelity and render
help and support. There is hardly any doubt that the intendment of the law has been to
confine the meaning of "psychological incapacity" to the most serious cases of
personality disorders clearly demonstrative of an utter intensitivity or inability to give
meaning and significance to the marriage. This pschologic condition must exist at the
time the marriage is celebrated. The law does not evidently envision, upon the other
hand, an inability of the spouse to have sexual relations with the other. This conclusion
is implicit under Article 54 of the Family Code which considers children conceived prior
to the judicial declaration of nullity of the void marriage to be "legitimate."
The other forms of psychoses, if existing at the inception of marriage, like the state of a
party being of unsound mind or concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to
Article 46, Family Code. If drug addiction, habitual alcholism, lesbianism or
homosexuality should occur only during the marriage, they become mere grounds for
legal separation under Article 55 of the Family Code. These provisions of the Code,
however, do not necessarily preclude the possibility of these various circumstances
being themselves, depending on the degree and severity of the disorder, indicia of
psychological incapacity.
Until further statutory and jurisprudential parameters are established, every
circumstance that may have some bearing on the degree, extent, and other conditions of
that incapacity must, in every case, be carefully examined and evaluated so that no
precipitate and indiscriminate nullity is peremptorily decreed. The well-considered
opinions of psychiatrists, psychologists, and persons with expertise in psychological
disciplines might be helpful or even desirable.
Marriage is not an adventure but a lifetime commitment. We should continue to be
reminded that innate in our society, then enshrined in our Civil Code, and even now still
indelible in Article 1 of the Family Code, is that
Art. 1. Marriage is a special contract of permanent union between a man
a woman entered into in accordance with law for the establishment of
conjugal and family life. It is the foundation of the family and an inviolable
social institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that marriage
settlements may fix the property relations during the marriage within the
limits provided by this Code. (Emphasis supplied.)
Our Constitution is no less emphatic:
Sec. 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote
its total development.
Sec. 2. Marriage, as an inviolable social institution, is the foundation of
the family and shall be protected by the State. (Article XV, 1987
Constitution).
The above provisions express so well and so distinctly the basic nucleus of our laws on
marriage and the family, and they are doubt the tenets we still hold on to.
The factual settings in the case at bench, in no measure at all, can come close to the
standards required to decree a nullity of marriage. Undeniably and understandably,
Leouel stands aggrieved, even desperate, in his present situation. Regrettably, neither
law nor society itself can always provide all the specific answers to every individual
problem.
WHEREFORE, the petition is DENIED.
SO ORDERED.
Narvasa, C.J., Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno
Kapunan and Mendoza, JJ., concur.
Feliciano, J., is on leave.



Separate Opinions

PADILLA, J ., dissenting:
It is difficult to dissent from a well-written and studied opinion as Mr. Justice
Vitug's ponencia. But, after an extended reflection on the facts of this case, I cannot see
my way clear into holding, as the majority do, that there is no ground for the declaration
of nullity of the marriage between petitioner and private respondent.
To my mind, it is clear that private respondent has been shown to be psychologically
incapacitated to comply with at least one essential marital obligation, i.e. that of living
and cohabiting with her husband, herein petitioner. On the other hand, it has not been
shown that petitioner does not deserve to live and cohabit with his wife, herein private
respondent.
There appears to be no disagreement that the term "psychological incapacity" defies
precision in definition. But, as used in Article 36 of the Family Code as a ground for the
declaration of nullity of a marriage, the intent of the framers of the Code is evidently to
expand and liberalize the grounds for nullifying a marriage, as well pointed out by
Madam Justice Flerida Ruth P. Romero in her separate opinion in this case.
While it is true that the board term "psychological incapacity" can open the doors to
abuse by couples who may wish to have an easy way out of their marriage, there are,
however, enough safeguards against this contingency, among which, is the intervention
by the State, through the public prosecutor, to guard against collusion between the
parties and/or fabrication of evidence.
In their case at bench, it has been abundantly established that private respondent Julia
Rosario Bedia-Santos exhibits specific behavior which, to my mind, shows that she is
psychologically incapacitated to fulfill her essential marital obligations, to writ:
a. It took her seven (7) months after she left for the United States to call
up her husband.
b. Julia promised to return home after her job contract expired in July
1989, but she never did and neither is there any showing that she
informed her husband (herein petitioner) of her whereabouts in the U.S.A.
c. When petitioner went to the United States on a mission for the
Philippine Army, he exerted efforts to "touch base" with Julia; there were
no similar efforts on the part of Julia; there were no similar efforts on the
part of Julia to do the same.
d. When petitioner filed this suit, more than five (5) years had elapsed,
without Julia indicating her plans to rejoin the petitioner or her
whereabouts.
e. When petitioner filed this case in the trial court, Julia, in her answer,
claimed that it is the former who has been irresponsible and incompetent.
f. During the trial, Julia waived her right to appear and submit evidence.
A spouse's obligation to live and cohabit with his/her partner in marriage is a basic
ground rule in marriage, unless there are overpowering compelling reasons such as, for
instance, an incurable contagious disease on the part of a spouse or cruelty of one
partner, bordering on insanity. There may also be instances when, for economic and
practical reasons, husband and wife have to live separately, but the marital bond
between the spouses always remains. Mutual love and respect for each other would, in
such cases, compel the absent spouse to at least have regular contracts with the other
to inform the latter of his/her condition and whereabouts.
In the present case, it is apparent that private respondent Julia Rosario Bedia-Santos
has no intention of cohabiting with petitioner, her husband, or maintaining contact with
him. In fact, her acts eloquently show that she does not want her husband to know of her
whereabouts and neither has she any intention of living and cohabiting with him.
To me there appears to be, on the part of private respondent, an unmistakeable
indication of psychological incapacity to comply with her essential marital obligations,
although these indications were made manifest after the celebration of the marriage.
It would be a great injustice, I believe, to petitioner for this Court to give a much too
restrictive interpretation of the law and compel the petitioner to continue to be married to
a wife who for purposes of fulfilling her marital duties has, for all practical purposes,
ceased to exist.
Besides, there are public policy considerations involved in the ruling the Court makes
today. Is it not, in effect directly or indirectly, facilitating the transformation of petitioner
into a "habitual tryster" or one forced to maintain illicit relations with another woman or
women with emerging problems of illegitimate children, simply because he is denied by
private respondent, his wife, the companionship and conjugal love which he has sought
from her and to which he is legally entitled?
I do not go as far as to suggest that Art. 36 of the Family Code is a sanction for absolute
divorce but I submit that we should not constrict it to non-recognition of its evident
purpose and thus deny to one like petitioner, an opportunity to turn a new leaf in his life
by declaring his marriage a nullity by reason of his wife's psychological incapacity to
perform an essential marital obligation.
I therefore vote to GRANT the petition and to DECLARE the marriage between petitioner
Leouel Santos and private respondent Julia Rosario Bedia-Santos VOID on the basis of
Article 36 of the Family Code.
ROMERO, J ., concurring:
I agree under the circumstances of the case, petitioner is not entitled to have his
marriage declared a nullity on the ground of psychological incapacity of private
respondent.
However, as a member of both the Family Law Revision Committee of the Integrated
Bar of the Philippines and the Civil Code Revision Committee of the UP Law Center, I
wish to add some observations. The letter
1
dated April 15, 1985 of then Judge Alicia V.
Sempio-Diy written in behalf of the Family Law and Civil Code Revision Committee to
then Assemblywoman Mercedes Cojuangco-Teodoro traced the background of the
inclusion of the present Article 36 in the Family Code.
During its early meetings, the Family Law Committee had thought of
including a chapter on absolute divorce in the draft of a new Family Code
(Book I of the Civil Code) that it had been tasked by the IBP and the UP
Law Center to prepare. In fact, some members of the Committee were in
favor of a no-fault divorce between the spouses after a number of years
of separation, legal or de-facto. Justice J.B.L. Reyes was then requested
to prepare a proposal for an action for dissolution of marriage and the
effects thereof based on two grounds: (a) five continuous years of
separation between the spouses, with or without a judicial decree of legal
separation, and (b) whenever a married person would have obtained a
decree of absolute divorce in another country. Actually, such a proposal is
one for absolute divorce but called by another name. Later, even the Civil
Code Revision Committee took time to discuss the proposal of Justice
Reyes on this matter.
Subsequently, however, when the Civil Code Revision Committee and
Family Law Committee started holding joint meetings on the preparation
of the draft of the New Family Code, they agreed and formulated the
definition of marriage as
"a special contract of permanent partnership between a
man and a woman entered into in accordance with law for
the establishment of conjugal and family life. It is an
inviolable social institution whose nature, consequences,
and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits
provided by law."
With the above definition, and considering the Christian traditional
concept of marriage of the Filipino people as a permanent, inviolable,
indissoluble social institution upon which the family and society are
founded, and also realizing the strong opposition that any provision on
absolute divorce would encounter from the Catholic Church and the
Catholic sector of our citizenry to whom the great majority of our people
belong, the two Committees in their joint meetings did not pursue the idea
of absolute divorce and instead opted for an action for judicial declaration
of invalidity of marriage based on grounds available in the Canon Law. It
was thought that such an action would not only be an acceptable
alternative to divorce but would also solve the nagging problem of church
annulments of marriages on grounds not recognized by the civil law of the
State. Justice Reyes was thus requested to again prepare a draft of
provisions on such action for celebration of invalidity of marriage. Still
later, to avoid the overlapping of provisions on void marriages as found in
the present Civil Code and those proposed by Justice Reyes on judicial
declaration of invalidity of marriage on grounds similar to the Canon Law,
the two Committees now working as a Joint Committee in the preparation
of a New Family Code decided to consolidate the present provisions on
void marriages with the proposals of Justice Reyes. The result was the
inclusion of an additional kind of void marriage in the enumeration of void
marriages in the present Civil Code, to wit:
"(7) Those marriages contracted by any party who, at the
time of the celebration, was wanting in the sufficient use of
reason or judgment to understand the essential nature of
marriage or was psychologically or mentally incapacitated
to discharge the essential marital obligations, even if such
lack of incapacity is made manifest after the celebration."
as well as the following implementing provisions:
"Art. 32. The absolute nullity of a marriage may be invoked
or pleaded only on the basis of a final judgment declaring
the marriage void, without prejudice to the provision of
Article 34."
"Art. 33. The action or defense for the declaration of the
absolute nullity of a marriage shall not prescribe."
xxx xxx xxx
It is believed that many hopelessly broken marriages in our country today
may already dissolved or annulled on the grounds proposed by the Joint
Committee on declaration of nullity as well as annulment of marriages,
thus rendering an absolute divorce law unnecessary. In fact, during a
conference with Father Gerald Healy of the Ateneo University as well as
another meeting with Archbishop Oscar Cruz of the Archdiocese of
Pampanga, the Joint Committee was informed that since Vatican II, the
Catholic Church has been declaring marriages null and void on the
ground of "lack of due discretion" for causes that, in other jurisdictions,
would be clear grounds for divorce, like teen-age or premature marriages;
marriage to a man who, because of some personality disorder or
disturbance, cannot support a family; the foolish or ridiculous choice of a
spouse by an otherwise perfectly normal person; marriage to a woman
who refuses to cohabit with her husband or who refuses to have children.
Bishop Cruz also informed the Committee that they have found out in
tribunal work that a lot of machismo among husbands are manifestations
of their sociopathic personality anomaly, like inflicting physical violence
upon their wives, constitutional indolence or laziness, drug dependence
or addiction, and psychological anomaly. . . . (Emphasis supplied)
Clearly, by incorporating what is now Article 36 into the Family Code, the Revision
Committee referred to above intended to add another ground to those already listed in
the Civil Code as grounds for nullifying a marriage, thus expanding or liberalizing the
same. Inherent in the inclusion of the provision on psychological incapacity was the
understanding that every petition for declaration of nullity based on it should be treated
on a case-to-case basis; hence, the absence of a definition and an enumeration of what
constitutes psychological incapacity. Moreover, the Committee feared that the giving of
examples would limit the applicability of the provision under the principle of ejusdem
generis. But the law requires that the same be existing at the time of marriage although it
be manifested later.
Admittedly, the provision on psychological incapacity, just like any other provision of law,
is open to abuse. To prevent this, "the court shall take order the prosecuting attorney or
fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not fabricated or
suppressed."
2
Moreover, the judge, in interpreting the provision on a case-to-case basis,
must be guided by "experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which, although not binding on the civil
courts, may be given persuasive effect since the provisions was taken from Canon
Law."
3

The constitutional and statutory provisions on the family
4
will remain the lodestar which
our society will hope to achieve ultimately. Therefore, the inclusion of Article 36 is not to
be taken as an abandonment of the ideal which we all cherish. If at all, it is a recognition
of the reality that some marriages, by reason of the incapacity of one of the contracting
parties, fall short of this ideal; thus, the parties are constrained to find a way of putting an
end to their union through some legally-accepted means.
Any criticism directed at the way that judges have interpreted the provision since its
enactment as to render it easier for unhappily-married couples to separate is addressed,
not to the wisdom of the lawmakers but to the manner by which some members of the
Bench have implemented the provision. These are not interchangeable, each being
separate and distinct from the other.

Separate Opinions
PADILLA, J ., dissenting:
It is difficult to dissent from a well-written and studied opinion as Mr. Justice
Vitug's ponencia. But, after an extended reflection on the facts of this case, I cannot see
my way clear into holding, as the majority do, that there is no ground for the declaration
of nullity of the marriage between petitioner and private respondent.
To my mind, it is clear that private respondent has been shown to be psychologically
incapacitated to comply with at least one essential marital obligation, i.e. that of living
and cohabiting with her husband, herein petitioner. On the other hand, it has not been
shown that petitioner does not deserve to live and cohabit with his wife, herein private
respondent.
There appears to be no disagreement that the term "psychological incapacity" defies
precision in definition. But, as used in Article 36 of the Family Code as a ground for the
declaration of nullity of a marriage, the intent of the framers of the Code is evidently to
expand and liberalize the grounds for nullifying a marriage, as well pointed out by
Madam Justice Flerida Ruth P. Romero in her separate opinion in this case.
While it is true that the board term "psychological incapacity" can open the doors to
abuse by couples who may wish to have an easy way out of their marriage, there are,
however, enough safeguards against this contingency, among which, is the intervention
by the State, through the public prosecutor, to guard against collusion between the
parties and/or fabrication of evidence.
In their case at bench, it has been abundantly established that private respondent Julia
Rosario Bedia-Santos exhibits specific behavior which, to my mind, shows that she is
psychologically incapacitated to fulfill her essential marital obligations, to writ:
a. It took her seven (7) months after she left for the United States to call
up her husband.
b. Julia promised to return home after her job contract expired in July
1989, but she never did and neither is there any showing that she
informed her husband (herein petitioner) of her whereabouts in the U.S.A.
c. When petitioner went to the United States on a mission for the
Philippine Army, he exerted efforts to "touch base" with Julia; there were
no similar efforts on the part of Julia; there were no similar efforts on the
part of Julia to do the same.
d. When petitioner filed this suit, more than five (5) years had elapsed,
without Julia indicating her plans to rejoin the petitioner or her
whereabouts.
e. When petitioner filed this case in the trial court, Julia, in her answer,
claimed that it is the former who has been irresponsible and incompetent.
f. During the trial, Julia waived her right to appear and submit evidence.
A spouse's obligation to live and cohabit with his/her partner in marriage is a basic
ground rule in marriage, unless there are overpowering compelling reasons such as, for
instance, an incurable contagious disease on the part of a spouse or cruelty of one
partner, bordering on insanity. There may also be instances when, for economic and
practical reasons, husband and wife have to live separately, but the marital bond
between the spouses always remains. Mutual love and respect for each other would, in
such cases, compel the absent spouse to at least have regular contracts with the other
to inform the latter of his/her condition and whereabouts.
In the present case, it is apparent that private respondent Julia Rosario Bedia-Santos
has no intention of cohabiting with petitioner, her husband, or maintaining contact with
him. In fact, her acts eloquently show that she does not want her husband to know of her
whereabouts and neither has she any intention of living and cohabiting with him.
To me there appears to be, on the part of private respondent, an unmistakeable
indication of psychological incapacity to comply with her essential marital obligations,
although these indications were made manifest after the celebration of the marriage.
It would be a great injustice, I believe, to petitioner for this Court to give a much too
restrictive interpretation of the law and compel the petitioner to continue to be married to
a wife who for purposes of fulfilling her marital duties has, for all practical purposes,
ceased to exist.
Besides, there are public policy considerations involved in the ruling the Court makes
today. Is it not, in effect directly or indirectly, facilitating the transformation of petitioner
into a "habitual tryster" or one forced to maintain illicit relations with another woman or
women with emerging problems of illegitimate children, simply because he is denied by
private respondent, his wife, the companionship and conjugal love which he has sought
from her and to which he is legally entitled?
I do not go as far as to suggest that Art. 36 of the Family Code is a sanction for absolute
divorce but I submit that we should not constrict it to non-recognition of its evident
purpose and thus deny to one like petitioner, an opportunity to turn a new leaf in his life
by declaring his marriage a nullity by reason of his wife's psychological incapacity to
perform an essential marital obligation.
I therefore vote to GRANT the petition and to DECLARE the marriage between petitioner
Leouel Santos and private respondent Julia Rosario Bedia-Santos VOID on the basis of
Article 36 of the Family Code.
ROMERO, J ., concurring:
I agree under the circumstances of the case, petitioner is not entitled to have his
marriage declared a nullity on the ground of psychological incapacity of private
respondent.
However, as a member of both the Family Law Revision Committee of the Integrated
Bar of the Philippines and the Civil Code Revision Committee of the UP Law Center, I
wish to add some observations. The letter
1
dated April 15, 1985 of then Judge Alicia V.
Sempio-Diy written in behalf of the Family Law and Civil Code Revision Committee to
then Assemblywoman Mercedes Cojuangco-Teodoro traced the background of the
inclusion of the present Article 36 in the Family Code.
During its early meetings, the Family Law Committee had thought of
including a chapter on absolute divorce in the draft of a new Family Code
(Book I of the Civil Code) that it had been tasked by the IBP and the UP
Law Center to prepare. In fact, some members of the Committee were in
favor of a no-fault divorce between the spouses after a number of years
of separation, legal or de-facto. Justice J.B.L. Reyes was then requested
to prepare a proposal for an action for dissolution of marriage and the
effects thereof based on two grounds: (a) five continuous years of
separation between the spouses, with or without a judicial decree of legal
separation, and (b) whenever a married person would have obtained a
decree of absolute divorce in another country. Actually, such a proposal is
one for absolute divorce but called by another name. Later, even the Civil
Code Revision Committee took time to discuss the proposal of Justice
Reyes on this matter.
Subsequently, however, when the Civil Code Revision Committee and
Family Law Committee started holding joint meetings on the preparation
of the draft of the New Family Code, they agreed and formulated the
definition of marriage as
"a special contract of permanent partnership between a
man and a woman entered into in accordance with law for
the establishment of conjugal and family life. It is an
inviolable social institution whose nature, consequences,
and incidents are governed by law and not subject to
stipulation, except that marriage settlements may fix the
property relations during the marriage within the limits
provided by law."
With the above definition, and considering the Christian traditional
concept of marriage of the Filipino people as a permanent, inviolable,
indissoluble social institution upon which the family and society are
founded, and also realizing the strong opposition that any provision on
absolute divorce would encounter from the Catholic Church and the
Catholic sector of our citizenry to whom the great majority of our people
belong, the two Committees in their joint meetings did not pursue the idea
of absolute divorce and instead opted for an action for judicial declaration
of invalidity of marriage based on grounds available in the Canon Law. It
was thought that such an action would not only be an acceptable
alternative to divorce but would also solve the nagging problem of church
annulments of marriages on grounds not recognized by the civil law of the
State. Justice Reyes was thus requested to again prepare a draft of
provisions on such action for celebration of invalidity of marriage. Still
later, to avoid the overlapping of provisions on void marriages as found in
the present Civil Code and those proposed by Justice Reyes on judicial
declaration of invalidity of marriage on grounds similar to the Canon Law,
the two Committees now working as a Joint Committee in the preparation
of a New Family Code decided to consolidate the present provisions on
void marriages with the proposals of Justice Reyes. The result was the
inclusion of an additional kind of void marriage in the enumeration of void
marriages in the present Civil Code, to wit:
"(7) Those marriages contracted by any party who, at the
time of the celebration, was wanting in the sufficient use of
reason or judgment to understand the essential nature of
marriage or was psychologically or mentally incapacitated
to discharge the essential marital obligations, even if such
lack of incapacity is made manifest after the celebration."
as well as the following implementing provisions:
"Art. 32. The absolute nullity of a marriage may be invoked
or pleaded only on the basis of a final judgment declaring
the marriage void, without prejudice to the provision of
Article 34."
"Art. 33. The action or defense for the declaration of the
absolute nullity of a marriage shall not prescribe."
xxx xxx xxx
It is believed that many hopelessly broken marriages in our country today
may already dissolved or annulled on the grounds proposed by the Joint
Committee on declaration of nullity as well as annulment of marriages,
thus rendering an absolute divorce law unnecessary. In fact, during a
conference with Father Gerald Healy of the Ateneo University as well as
another meeting with Archbishop Oscar Cruz of the Archdiocese of
Pampanga, the Joint Committee was informed that since Vatican II, the
Catholic Church has been declaring marriages null and void on the
ground of "lack of due discretion" for causes that, in other jurisdictions,
would be clear grounds for divorce, like teen-age or premature marriages;
marriage to a man who, because of some personality disorder or
disturbance, cannot support a family; the foolish or ridiculous choice of a
spouse by an otherwise perfectly normal person; marriage to a woman
who refuses to cohabit with her husband or who refuses to have children.
Bishop Cruz also informed the Committee that they have found out in
tribunal work that a lot of machismo among husbands are manifestations
of their sociopathic personality anomaly, like inflicting physical violence
upon their wives, constitutional indolence or laziness, drug dependence
or addiction, and psychological anomaly. . . . (Emphasis supplied)
Clearly, by incorporating what is now Article 36 into the Family Code, the Revision
Committee referred to above intended to add another ground to those already listed in
the Civil Code as grounds for nullifying a marriage, thus expanding or liberalizing the
same. Inherent in the inclusion of the provision on psychological incapacity was the
understanding that every petition for declaration of nullity based on it should be treated
on a case-to-case basis; hence, the absence of a definition and an enumeration of what
constitutes psychological incapacity. Moreover, the Committee feared that the giving of
examples would limit the applicability of the provision under the principle of ejusdem
generis. But the law requires that the same be existing at the time of marriage although it
be manifested later.
Admittedly, the provision on psychological incapacity, just like any other provision of law,
is open to abuse. To prevent this, "the court shall take order the prosecuting attorney or
fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion
between the parties and to take care that evidence is not fabricated or
suppressed."
2
Moreover, the judge, in interpreting the provision on a case-to-case basis,
must be guided by "experience, the findings of experts and researchers in psychological
disciplines, and by decisions of church tribunals which, although not binding on the civil
courts, may be given persuasive effect since the provisions was taken from Canon
Law."
3

The constitutional and statutory provisions on the family
4
will remain the lodestar which
our society will hope to achieve ultimately. Therefore, the inclusion of Article 36 is not to
be taken as an abandonment of the ideal which we all cherish. If at all, it is a recognition
of the reality that some marriages, by reason of the incapacity of one of the contracting
parties, fall short of this ideal; thus, the parties are constrained to find a way of putting an
end to their union through some legally-accepted means.
Any criticism directed at the way that judges have interpreted the provision since its
enactment as to render it easier for unhappily-married couples to separate is addressed,
not to the wisdom of the lawmakers but to the manner by which some members of the
Bench have implemented the provision. These are not interchangeable, each being
separate and distinct from the other.

DIGEST
FACTS:

Leouel, a First Lieutenant in the Philippine Army, met Julia in Iloilo. The two got married
in 1986 before a municipal trial court followed shortly thereafter, by a church wedding.
The couple lived with Julias parents at the J. Bedia Compound. Julia gave birth to a
baby boy in 1987 and was named as Leouel Santos Jr. Occasionally, the couple will
quarrel over a number of things aside from the interference of Julias parents into their
family affairs.

Julia left in 1988 to work in US as a nurse despite Leouels pleas to dissuade her.
Seven months after her departure, she called her husband and promised to return home
upon the expiration of her contract in July 1989 but she never did. Leouel got a chance
to visit US where he underwent a training program under AFP, he desperately tried to
locate or somehow get in touch with Julia but all his efforts were of no avail.

Leouel filed a complaint to have their marriage declared void under Article 36 of the
Family Code. He argued that failure of Julia to return home or to communicate with him
for more than 5 years are circumstances that show her being psychologically
incapacitated to enter into married life.

ISSUE: Whether their marriage can be considered void under Article 36 of the Family
Code.

HELD:

The intendment of the law has been to confine the meaning of psychological incapacity
to the most serious cases of personal disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and significance to the marriage. This condition
must exist at the time the marriage is celebrated.

Undeniably and understandably, Leouel stands aggrieved, even desperate, in his
present situation. Regrettably, neither law nor society itself can always provide all the
specific answers to every individual problem. Wherefore, his petition was denied.


Republic vs. Quintero-Hamano (G.R. No. 149498, 20 May 2004)
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
LOLITA QUINTERO-HAMANO, respondent.
D E C I S I O N
CORONA, J .:
Before us is a petition for review of the decision
1
dated August 20, 2001 of the Court of
Appeals
2
affirming the decision
3
dated August 28, 1997 of the Regional Trial Court of
Rizal, Branch 72, declaring as null and void the marriage contracted between herein
respondent Lolita M. Quintero-Hamano and her husband Toshio Hamano.
On June 17, 1996, respondent Lolita Quintero-Hamano filed a complaint for declaration
of nullity of her marriage to her husband Toshio Hamano, a Japanese national, on the
ground of psychological incapacity.
Respondent alleged that in October 1986, she and Toshio started a common-law
relationship in Japan. They later lived in the Philippines for a month. Thereafter, Toshio
went back to Japan and stayed there for half of 1987. On November 16, 1987, she gave
birth to their child.
On January 14, 1988, she and Toshio were married by Judge Isauro M. Balderia of the
Municipal Trial Court of Bacoor, Cavite. Unknown to respondent, Toshio was
psychologically incapacitated to assume his marital responsibilities, which incapacity
became manifest only after the marriage. One month after their marriage, Toshio
returned to Japan and promised to return by Christmas to celebrate the holidays with his
family. After sending money to respondent for two months, Toshio stopped giving
financial support. She wrote him several times but he never responded. Sometime in
1991, respondent learned from her friends that Toshio visited the Philippines but he did
not bother to see her and their child.
The summons issued to Toshio remained unserved because he was no longer residing
at his given address. Consequently, on July 8, 1996, respondent filed an ex parte motion
for leave to effect service of summons by publication. The trial court granted the motion
on July 12, 1996. In August 1996, the summons, accompanied by a copy of the petition,
was published in a newspaper of general circulation giving Toshio 15 days to file his
answer. Because Toshio failed to file a responsive pleading after the lapse of 60 days
from publication, respondent filed a motion dated November 5, 1996 to refer the case to
the prosecutor for investigation. The trial court granted the motion on November 7, 1996.
On November 20, 1996, prosecutor Rolando I. Gonzales filed a report finding that no
collusion existed between the parties. He prayed that the Office of the Provincial
Prosecutor be allowed to intervene to ensure that the evidence submitted was not
fabricated. On February 13, 1997, the trial court granted respondents motion to present
her evidence ex parte. She then testified on how Toshio abandoned his family. She
thereafter offered documentary evidence to support her testimony.
On August 28, 1997, the trial court rendered a decision, the dispositive portion of which
read:
WHEREFORE, premises considered, the marriage between petitioner Lolita M.
Quintero-Hamano and Toshio Hamano, is hereby declared NULL and VOID.
The Civil Register of Bacoor, Cavite and the National Statistics Office are
ordered to make proper entries into the records of the afore-named parties
pursuant to this judgment of the Court.
SO ORDERED.
4

In declaring the nullity of the marriage on the ground of Toshios psychological
incapacity, the trial court held that:
It is clear from the records of the case that respondent spouses failed to fulfill his
obligations as husband of the petitioner and father to his daughter. Respondent
remained irresponsible and unconcerned over the needs and welfare of his
family. Such indifference, to the mind of the Court, is a clear manifestation of
insensitivity and lack of respect for his wife and child which characterizes a very
immature person. Certainly, such behavior could be traced to respondents
mental incapacity and disability of entering into marital life.
5

The Office of the Solicitor General, representing herein petitioner Republic of the
Philippines, appealed to the Court of Appeals but the same was denied in a decision
dated August 28, 1997, the dispositive portion of which read:
WHEREFORE, in view of the foregoing, and pursuant to applicable law and
jurisprudence on the matter and evidence on hand, judgment is hereby
rendered denying the instant appeal. The decision of the court a quo
is AFFIRMED. No costs.
SO ORDERED.
6

The appellate court found that Toshio left respondent and their daughter a month after
the celebration of the marriage, and returned to Japan with the promise to support his
family and take steps to make them Japanese citizens. But except for two months, he
never sent any support to nor communicated with them despite the letters respondent
sent. He even visited the Philippines but he did not bother to see them. Respondent, on
the other hand, exerted all efforts to contact Toshio, to no avail.
The appellate court thus concluded that respondent was psychologically incapacitated to
perform his marital obligations to his family, and to "observe mutual love, respect and
fidelity, and render mutual help and support" pursuant to Article 68 of the Family Code of
the Philippines. The appellate court rhetorically asked:
But what is there to preserve when the other spouse is an unwilling party to the
cohesion and creation of a family as a social inviolable institution? Why should
petitioner be made to suffer in a marriage where the other spouse is not around
and worse, left them without even helping them cope up with family life and
assist in the upbringing of their daughter as required under Articles 68 to 71 of
the Family Code?
7

The appellate court emphasized that this case could not be equated with Republic vs.
Court of Appeals and Molina
8
and Santos vs. Court of Appeals.
9
In those cases, the
spouses were Filipinos while this case involved a "mixed marriage," the husband being a
Japanese national.
Hence, this appeal by petitioner Republic based on this lone assignment of error:
I
The Court of Appeals erred in holding that respondent was able to prove the
psychological incapacity of Toshio Hamano to perform his marital obligations,
despite respondents failure to comply with the guidelines laid down in
the Molina case.
10

According to petitioner, mere abandonment by Toshio of his family and his insensitivity
to them did not automatically constitute psychological incapacity. His behavior merely
indicated simple inadequacy in the personality of a spouse falling short of reasonable
expectations. Respondent failed to prove any severe and incurable personality disorder
on the part of Toshio, in accordance with the guidelines set in Molina.
The Office of the Public Attorney, representing respondent, reiterated the ruling of the
courts a quo and sought the denial of the instant petition.
We rule in favor of petitioner.
The Court is mindful of the policy of the 1987 Constitution to protect and strengthen the
family as the basic autonomous social institution and marriage as the foundation of the
family.
11
Thus, any doubt should be resolved in favor of the validity of the marriage.
12

Respondent seeks to annul her marriage with Toshio on the ground of psychological
incapacity. Article 36 of the Family Code of the Philippines provides that:
Art. 36. A marriage contracted by any party who, at the time of the celebration, was
psychologically incapacitated to comply with the essential marital obligations of
marriage, shall likewise be void even if such incapacity becomes manifest only after its
solemnization.
In Molina, we came up with the following guidelines in the interpretation and application
of Article 36 for the guidance of the bench and the bar:
(1) The burden of proof to show the nullity of the marriage belongs to the plaintiff.
Any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. This is rooted in the fact that both
our Constitution and our laws cherish the validity of marriage and unity of the
family. x x x
(2) The root cause of the psychological incapacity must be: (a) medically or
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by
experts and (d) clearly explained in the decision. Article 36 of the Family
Code requires that the incapacity must be psychological - not physical, although
its manifestations and/or symptoms may be physical. The evidence must
convince the court that the parties, or one of them, was mentally or psychically ill
to such an extent that the person could not have known the obligations he was
assuming, or knowing them, could not have given valid assumption thereof.
Although no example of such incapacity need be given here so as not to limit the
application of the provision under the principle of ejusdem generis (Salita vs.
Magtolis, 233 SCRA 100, June 13, 1994), nevertheless such root cause must be
identified as a psychological illness and its incapacitating nature fully explained.
Expert evidence may be given by qualified psychiatrists and clinical
psychologists.
(3) The incapacity must be proven to be existing at "the time of the celebration"
of the marriage. The evidence must show that the illness was existing when the
parties exchanged their "I dos." The manifestation of the illness need not be
perceivable at such time, but the illness itself must have attached at such
moment, or prior thereto.
(4) Such incapacity must also be shown to be medically or clinically permanent or
incurable. Such incurability may be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of a
profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may
not be psychologically capacitated to procreate, bear and raise his/her own
children as an essential obligation of marriage.
(5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. Thus, "mild characteriological
peculiarities, mood changes, occasional emotional outbursts" cannot be
accepted as root causes. The illness must be shown as downright incapacity or
inability, not a refusal, neglect or difficulty, much less ill will. In other words, there
is a natal or supervening disabling factor in the person, an adverse integral
element in the personality structure that effectively incapacitates the person from
really accepting and thereby complying with the obligations essential to marriage.
(6) The essential marital obligations must be those embraced by Articles 68 up to
71 of the Family Code as regards the husband and wife as well as Articles 220,
221 and 225 of the same Code in regard to parents and their children. Such non-
complied marital obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.
(7) Interpretations given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not controlling or decisive, should be
given great respect by our courts. x x x
(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed down
unless the Solicitor General issues a certification, which will be quoted in the
decision, briefly stating therein his reasons for his agreement or opposition, as
the case may be, to the petition. The Solicitor-General, along with the
prosecuting attorney, shall submit to the court such certification within fifteen (15)
days from the date the case is deemed submitted for resolution of the court. The
Solicitor-General shall discharge the equivalent function of the defensor
vinculicontemplated under Canon 1095.
13
(emphasis supplied)
The guidelines incorporate the three basic requirements earlier mandated by the Court
in Santos: "psychological incapacity must be characterized by (a) gravity (b) juridical
antecedence and (c) incurability."
14
The foregoing guidelines do not require that a
physician examine the person to be declared psychologically incapacitated. In fact, the
root cause may be "medically or clinically identified." What is important is the presence
of evidence that can adequately establish the partys psychological condition. For
indeed, if the totality of evidence presented is enough to sustain a finding of
psychological incapacity, then actual medical examination of the person concerned need
not be resorted to.
15

We now proceed to determine whether respondent successfully proved Toshios
psychological incapacity to fulfill his marital responsibilities.
Petitioner showed that Toshio failed to meet his duty to live with, care for and support his
family. He abandoned them a month after his marriage to respondent. Respondent sent
him several letters but he never replied. He made a trip to the Philippines but did not
care at all to see his family.
We find that the totality of evidence presented fell short of proving that Toshio was
psychologically incapacitated to assume his marital responsibilities. Toshios act of
abandonment was doubtlessly irresponsible but it was never alleged nor proven to be
due to some kind of psychological illness. After respondent testified on how Toshio
abandoned his family, no other evidence was presented showing that his behavior was
caused by a psychological disorder. Although, as a rule, there was no need for an actual
medical examination, it would have greatly helped respondents case had she presented
evidence that medically or clinically identified his illness. This could have been done
through an expert witness. This respondent did not do.
We must remember that abandonment is also a ground for legal separation.
16
There was
no showing that the case at bar was not just an instance of abandonment in the context
of legal separation. We cannot presume psychological defect from the mere fact that
Toshio abandoned his family immediately after the celebration of the marriage. As we
ruled in Molina, it is not enough to prove that a spouse failed to meet his responsibility
and duty as a married person; it is essential that he must be shown to be incapable of
doing so due to some psychological,not physical, illness.
17
There was no proof of a natal
or supervening disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates a person from accepting and
complying with the obligations essential to marriage.
18

According to the appellate court, the requirements in Molina and Santos do not apply
here because the present case involves a "mixed marriage," the husband being a
Japanese national. We disagree. In proving psychological incapacity, we find no
distinction between an alien spouse and a Filipino spouse. We cannot be lenient in the
application of the rules merely because the spouse alleged to be psychologically
incapacitated happens to be a foreign national. The medical and clinical rules to
determine psychological incapacity were formulated on the basis of studies of human
behavior in general. Hence, the norms used for determining psychological incapacity
should apply to any person regardless of nationality.
In Pesca vs. Pesca,
19
this Court declared that marriage is an inviolable social institution
that the State cherishes and protects. While we commiserate with respondent,
terminating her marriage to her husband may not necessarily be the fitting denouement.
WHEREFORE, the petition for review is hereby GRANTED. The decision dated August
28, 1997 of the Court of Appeals is hereby REVERSED and SET ASIDE.
SO ORDERED.
Vitug, Sandoval-Gutierrez, and Carpio-Morales, JJ., concur.

DIGEST
FACTS:

Lolita Quintero-Hamano filed a complaint in 1996 for declaration of nullity of her
marriage with Toshio Hamano, a Japanese national, on the ground of psychological
incapacity. She and Toshio started a common-law relationship in Japan and lived in the
Philippines for a month. Thereafter, Toshio went back to Japan and stayed there for half
of 1987. Lolita then gave birth on November 16, 1987.

In 1988, Lolita and Toshio got married in MTC-Bacoor, Cavite. After a month of their
marriage, Toshio returned to Japan and promised to return by Christmas to celebrate the
holidays with his family. Toshio sent money for two months and after that he stopped
giving financial support. She wrote him several times but never respondent. In 1991,
she learned from her friend that Toshio visited the country but did not bother to see her
nor their child.

Toshio was no longer residing at his given address thus summons issued to him
remained unserved. Consequently, in 1996, Lolita filed an ex parte motion for leave to
effect service of summons by publication. The motion was granted and the summons,
accompanied by a copy of the petition, was published in a newspaper of general
circulation giving Toshio 15 days to file his answer. Toshio filed to respond after the
lapse of 60 days from publication, thus, Lolita filed a motion to refer the case to the
prosecutor for investigation.

ISSUE: Whether Toshio was psychologically incapacitated to perform his marital
obligation.

HELD:

The Court is mindful of the 1987 Constitution to protect and strengthen the family as
basic autonomous social institution and marriage as the foundation of the family. Thus,
any doubt should be resolved in favor of the validity of the marriage.

Toshios act of abandonment was doubtlessly irresponsible but it was never alleged nor
proven to be due to some kind of psychological illness. Although as rule, actual medical
examinations are not needed, it would have greatly helped Lolita had she presented
evidence that medically or clinically identified Toshios illness. This could have been
done through an expert witness. It is essential that a person show incapability of doing
marital obligation due to some psychological, not physical illness. Hence, Toshio was
not considered as psychologically incapacitated.


Choa vs. Choa (G.R. No. 1473376, 26 November 2002)
LENI O. CHOA, petitioner,
vs.
ALFONSO C. CHOA, respondent.
D E C I S I O N
PANGANIBAN, J .:
Though interlocutory in character, an order denying a demurrer to evidence may be the
subject of a certiorari proceeding, provided the petitioner can show that it was issued
with grave abuse of discretion; and that appeal in due course is not plain, adequate or
speedy under the circumstances. Indeed, when the plaintiffs evidence is utterly and
patently insufficient to prove the complaint, it would be capricious for a trial judge to deny
the demurrer and to require the defendant to present evidence to controvert a
nonexisting case. Verily, the denial constitutes an unwelcome imposition on the courts
docket and an assault on the defendants resources and peace of mind. In short, such
denial needlessly delays and, thus, effectively denies justice.
The Case
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court,
assailing the March 16, 2000 Decision
1
and the May 22, 2000 Resolution
2
of the Court of
Appeals (CA) in CA-GR SP No. 53100. The decretal portion of the Decision reads as
follows:
"WHEREFORE, the instant Petition is hereby DISMISSED for lack of merit."
3

The assailed Resolution denied petitioners Motion for Reconsideration.
4

The Facts
Petitioner and respondent were married on March 15, 1981. Out of this union, two
children were born, Cheryl Lynne and Albryan. On October 27, 1993, respondent filed
before the Regional Trial Court (RTC) of Negros Occidental, Branch 51, a Complaint
5
for
the annulment of his marriage to petitioner. The Complaint was docketed as Civil Case
No. 93-8098. Afterwards he filed an Amended Complaint
6
dated November 8, 1993 for
the declaration of nullity of his marriage to petitioner based on her alleged psychological
incapacity.
The case went to trial with respondent presenting his evidence in chief. After his last
witness testified, he submitted his Formal Offer of Exhibits
7
dated February 20, 1998.
Instead of offering any objection to it, petitioner filed a Motion to Dismiss (Demurrer to
Evidence)
8
dated May 11, 1998. The lower court then allowed a number of pleadings to
be filed thereafter.
Finally, the RTC issued its December 2, 1998 Order
9
denying petitioners Demurrer to
Evidence. It held that "[respondent] established a quantum of evidence that the
[petitioner] must controvert."
10
After her Motion for Reconsideration
11
was denied in the
March 22, 1999 Order,
12
petitioner elevated the case to the CA by way of a Petition for
Certiorari,
13
docketed as CA-GR No. 53100.
Ruling of the Court of Appeals
The CA held that the denial of the demurrer was merely interlocutory; hence, certiorari
under Rule 65 of the Rules of Court was not available. The proper remedy was for the
defense to present evidence; and if an unfavorable decision was handed down later, to
take an appeal therefrom.
14
In any event, no grave abuse of discretion was committed by
respondent judge in issuing the assailed Orders.
15

The CA also ruled that "the propriety of granting or denying a demurrer to evidence rests
on the sound exercise of the [trial] courts discretion."
16
Further, the "[p]etitioner failed to
show that the issues in the court below [had] been resolved arbitrarily or without basis."
17

Hence, this Petition.
18

The Issues
In her Memorandum,
19
petitioner submits the following issues for our consideration:
"1) Upon the denial of petitioners demurrer to evidence under Rule 33 of the
1997 Rules of Civil Procedure, is she under obligation, as a matter of inflexible
rule, as what the Court of Appeals required of her, to present her evidence, and
when an unfavorable [verdict] is handed down, appeal therefrom in the manner
authorized by law, despite the palpably and patently weak and grossly insufficient
or so inadequate evidence of the private respondent as plaintiff in the annulment
of marriage case, grounded on psychological incapacity under Art. 36 of The
Family Code? Or under such circumstances, can the extraordinary remedy of
certiorari be directly and immediately resorted to by the petitioner; and
"2) In upholding the lower courts denial of petitioners demurrer to evidence, did
the Court of Appeals wantonly violate, ignore or disregard in a whimsical manner
the doctrinal pronouncements of this Court in Molina (G.R. No. 108763, February
13, 1997, 268 SCRA 198) and Santos (G.R. No. 112019, January 14, 1995, 58
SCRA 17)?"
20

Simply stated, the issues are: (1) is certiorari available to correct an order denying a
demurrer to evidence? and (2) in its denial, did the RTC commit grave abuse of
discretion by violating or ignoring the applicable law and jurisprudence?
The Courts Ruling
The Petition is meritorious.
First Issue:
Resort to Certiorari
Petitioner argues that the RTC denied her Demurrer to Evidence despite the patent
weakness and gross insufficiency of respondents evidence. Thus, she was entitled to
the immediate recourse of the extraordinary remedy of certiorari. Echoing the CA,
respondent counters that appeal in due course, not certiorari, is the proper remedy.
We clarify. In general, interlocutory orders are neither appealable nor subject to certiorari
proceedings.
However, this rule is not absolute. In Tadeo v. People,
21
this Court declared that appeal -
- not certiorari -- in due time was indeed the proper remedy, provided there was no grave
abuse of discretion or excess of jurisdiction or oppressive exercise of judicial authority.
In fact, Rules 41 and 65 of the Rules of Court expressly recognize this exception and
allow certiorari when the lower court acts with grave abuse of discretion in the issuance
of an interlocutory order. Rule 41 provides:
"No appeal may be taken from:
x x x x x x x x x
(c) An interlocutory order;
x x x x x x x x x
"In all the above instances where the judgment or final order is not appealable, the
aggrieved party may file an appropriate special civil action under Rule 65."
22

In turn, Section 1 of Rule 65 reads as follows:
"SEC. 1. Petition for certiorari -- When any tribunal, board or officer exercising judicial or
quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no
appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require."
23

Thus, a denial of a demurrer that is tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction may be assailed through a petition for certiorari.
24
In Cruz v.
People, this exception was stressed by the Court in this wise:
"Admittedly, the general rule that the extraordinary writ of certiorari is not available to
challenge interlocutory orders of the trial court may be subject to exceptions. When the
assailed interlocutory orders are patently erroneous or issued with grave abuse of
discretion, the remedy of certiorari lies."
25

Second Issue:
Denial of Demurrer to Evidence
Having established that a writ of certiorari may be issued in exceptional circumstances,
this Court is now tasked to determine whether the present case falls under the
exception; that is, whether the RTC indeed committed a "patent error" or grave abuse of
discretion in denying petitioners Demurrer to Evidence.
A demurrer to evidence is defined as "an objection or exception by one of the parties in
an action at law, to the effect that the evidence which his adversary produced is
insufficient in point of law (whether true or not) to make out his case or sustain the
issue."
26
The demurrer challenges the sufficiency of the plaintiffs evidence to sustain a
verdict.
27
In passing upon the sufficiency of the evidence raised in a demurrer, the court
is merely required to ascertain whether there is competent or sufficient proof to sustain
the indictment or to support a verdict of guilt.
28

We have thoroughly reviewed the records of the present case, and we are convinced
that the evidence against respondent (herein petitioner) is grossly insufficient to support
any finding of psychological incapacity that would warrant a declaration of nullity of the
parties marriage.
First. Respondent claims that the filing by petitioner of a series of charges
against him are proof of the latters psychological incapacity to comply with the
essential obligations of marriage. These charges included Complaints for
perjury,
29
false testimony,
30
concubinage
31
and deportation.
32
According to him,
the filing and the prosecution of these cases clearly showed that his wife (herein
petitioner) wanted not only to put him behind bars, but also to banish him from
the country. He contends that this "is very abnormal for a wife who, instead of
protecting the name and integrity of her husband as the father of her children,
had acted to the contrary."
33

We do not agree. The documents presented by respondent during the trial do not
in any way show the alleged psychological incapacity of his wife. It is the height
of absurdity and inequity to condemn her as psychologically incapacitated to fulfill
her marital obligations, simply because she filed cases against him. The
evidence presented, even if taken as true, merely establishes the prosecution of
the cases against him. To rule that the filings are sufficient to establish her
psychological incapacity is not only totally erroneous, but also grave abuse of
discretion bordering on absurdity.
Second. Neither is the testimony of respondent, taken by itself or in conjunction
with his documentary offerings, sufficient to prove petitioners alleged
psychological incapacity. He testified in these words:
"Q Will you please tell us or explain to the Court what do you mean by
psychologically incapacitated to comply with the essential obligations of
marriage. What do you mean by that?
A Because before our marriage she was already on the family way, so at that
time she even want it aborted by taking pills. She was even immature, carefree,
and she lacked the intention of procreative sexuality.
34

x x x x x x x x x
ATTY. CHUA:
And you consider her that she was carefree, she is psychologically
incapacitated? Will you please elaborate on this what you mean by carefree
approximating psychologically incapacitated?
ATTY. MIRANO:
I think we better ask the witness what he means by carefree.
ATTY. CHUA:
Okay.
COURT:
Witness may answer.
WITNESS:
She does not help in the household chores, she does not take care of the child,
she wants me to hire an attendant in order to take care of the child. Even when
the children were sick she does not bother to let the children see a doctor.
35

x x x x x x x x x
"STENOGRAPHER (reads back the question of Atty. Chua):
ATTY. CHUA:
Now. From the time of courtship up to the time of your marriage to the defendant,
did you notice any characteristic or traits which you consider as psychological
incapacity?
WITNESS:
Sometimes when I cannot visit at her house she gets mad at me, and she wont
talk to me when I call her up by telephone. So, all she wanted for me to visit her
everytime and even at the time when I am busy with some other things. So, I
think that is all."
36

Even if taken as true, the testimony of respondent basically complains about three
aspects of petitioners personality; namely, her alleged (1) lack of attention to their
children, (2) immaturity and (3) lack of an "intention of procreative sexuality." None of
these three, singly or collectively, constitutes "psychological incapacity." Far from it.
In Santos v. CA,
37
this Court clearly explained that "psychological incapacity must be
characterized by (a) gravity, (b) juridical antecedence and (c) incurability."
38
Said the
Court:
"It should be obvious, looking at all the foregoing disquisitions, including, and most
importantly, the deliberations of the Family Code Revision Committee itself, that the use
of the phrase psychological incapacity under Article 36 of the Code has not been meant
to comprehend all such possible cases of psychoses as, likewise mentioned by some
ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances
(cited in Fr. Artemio Baluma's Void and Voidable Marriages in the Family Code and their
Parallels in Canon Law, quoting from the Diagnostic Statistical Manual of Mental
Disorder by the American Psychiatric Association; Edward Hudson's Handbook II for
Marriage Nullity Cases). Article 36 of the Family Code cannot be taken and construed
independently of but must stand in conjunction with, existing precepts in our law on
marriage. Thus correlated, psychological incapacity should refer to no less than a
mental (not physical) incapacity that causes a party to be truly incognitive of the basic
marital covenants that concomitantly must be assumed and discharged by the parties to
the marriage which, as so expressed by Article 68 of the Family Code, include their
mutual obligations to live together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law has been to confine the
meaning of psychological incapacity to the most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or inability to give meaning and significance
to the marriage. This psychologic condition must exist at the time the marriage is
celebrated."
39

Furthermore, in Republic v. Molina,
40
we ruled that the psychological incapacity must be
more than just a "difficulty," a "refusal" or a "neglect" in the performance of some marital
obligations. We stressed that a mere showing of irreconcilable differences and
conflicting personalities in no wise constitutes psychological incapacity.
In the case at bar, the evidence adduced by respondent merely shows that he and his
wife could not get along with each other. There was absolutely no showing of the gravity
or juridical antecedence or incurability of the problems besetting their marital union.
Sorely lacking in respondents evidence is proof that the psychological incapacity was
grave enough to bring about the disability of a party to assume the essential obligations
of marriage. In Molina, we affirmed that "mild characterological peculiarities, mood
changes and occasional emotional outbursts cannot be accepted as root causes of
psychological incapacity. The illness must be shown as downright incapacity or inability,
not a refusal, neglect or difficulty, much less ill will. In other words, there should be a
natal or supervening disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really accepting and
thereby complying with the obligations essential to marriage."
41

Respondents pious peroration that petitioner "lacked the intention of procreative
sexuality" is easily belied by the fact that two children were born during their union.
Moreover, there is absolutely no showing that the alleged "defect" was already existing
at the time of the celebration of the marriage.
Third. Most telling is the insufficiency, if not incompetency, of the supposed
expert testimony presented by respondent. His witness, Dr. Antonio M. Gauzon,
utterly failed to identify and prove the root cause of the alleged psychological
incapacity. Specifically, his testimony did not show that the incapacity, if true,
was medically or clinically permanent or incurable. Neither did he testify that it
was grave enough to bring about the disability of the party to assume the
essential obligations of marriage. The pertinent portions of his testimony are
quoted thus:
"ATTY. CHUA:
And then finally and ultimately you reached the conclusion that both parties,
meaning the husband and the wife in the present case have a personality which
is normal. That is your conclusion?
WITNESS:
They are normal, but they cannot mix together.
Q. So as a general proposition, both of them are of normal personality, only that
they are not compatible with each other?
A. Yes.
Q. And by normal personality, you mean that neither of them suffer from any
personality disorder, bordering on abnormality?
A. Yes.
Q. But Doctor, is not a fact or a fact of life, that no couple could be or are
perfectly match?
A. Precisely, if there is a problem, marital problem, there should be somebody
who knows how to handle marriage, that should try to intervene.
Q. You mean expert advise or services should be needed by the couple?
A. Yes.
Q. Now, if the couple are mature enough and each of them practises what we
call maximum tolerance and give and take, will that serve the purpose?
A. That would served the purpose of getting well.
Q. Yes?
A. Yes.
Q. Meaning to say that the incompatibility could be harmonized?
A. Yes, because they are supposedly normal, but both of them are personally
disordered. It cannot be harmonized. So this case, if only they have tried
professional help to take care of their marital problem, it could have been solved.
Q. Or the situation could have been remedied?
A. Yes. But I would like to say that it must be somebody who is an expert. Not
just any from Tom, Dick and Harry could handle this. That means from the very
beginning they have personalities which they were incompatible. So if anybody
would handle that, they will not mix, they will be always quarreling with each
other. They should not have got married.
42

x x x x x x x x x
Q. Yes. So in this present case, your expert opinion was sought by the plaintiff,
and you found out that both are normal?
A. With different personalities. So that they were incompatible.
Q. Normal, simply incompatible.
A. Yes, with personalities different from each other, which I mentioned there in
my last page. That they are like oil and water, immiscible. Like oil and water, they
will not mix.
Q. You also mentioned that the plaintiff. Meaning to say the husband told you
about the frequent quarrels had with the wife. Did he ever tell you that was a
serious or major quarrel?
A. Actually there was no major quarrel. It was all petty quarrels.
43

x x x x x x x x x
Q. So the problem of this couple is fundamentally a conflicting personalities?
A. Yes.
44

x x x x x x x x x
Q. Now, you mentioned that you maybe able to make them reconcile?
A. Yes.
Q. You mean that given the time and opportunity, things could be worked out?
A. Yes.
Q. You mean reconciliation at this stage with expert services, and the advise of
those who possess the necessary [expertise] could be worked out?
A. Yes, as I said it can be done by therapy. Family therapy.
45

x x x x x x x x x
Q. Doctor, you draw your conclusion that there is psychological inc[a]pacity
existing in this case?
A. Yes.
Q. Because of the
A. The incompatibility.
Q. Incompatibility.
A. Yes.
46

His testimony established merely that the spouses had an "incompatibility," a "defect"
that could possibly be treated or alleviated through psychotherapy. We need not
expound further on the patent insufficiency of the expert testimony to establish the
psychological incapacity of petitioner.
Furthermore, the assessment of petitioner by Dr. Gauzon was based merely on
descriptions communicated to him by respondent. The doctor never conducted any
psychological examination of her. Neither did he ever claim to have done so. In fact, his
Professional Opinion
47
began with the statement "[I]f what Alfonso Choa said about his
wife Leni is true, x x x."
48
The expert witness testified thus:
"ATTY. CHUA
Q Doctor, in this professional opinion of yours, you gathered most of your
material data from the plaintiff who is the husband?
WITNESS
A Yes. By the way, I requested the husband Alfonso, if it was possible for me to
interview Leni, and he said, he doesnt know.
ATTY. CHUA
Q He doesnt know. Now, Doctor if we were to request you to conduct the same
personal interview and written psychological examination on the part of the wife,
[w]ould you be willing to do that?
WITNESS
A Sure for a fee. I maybe able to make them reconcile."
49

Obviously, Dr. Gauzon had no personal knowledge of the facts he testified to, as these
had merely been relayed to him by respondent. The former was working on pure
suppositions and secondhand information fed to him by one side. Consequently, his
testimony can be dismissed as unscientific and unreliable.
Dr. Gauzon tried to save his credibility by asserting that he was able to assess
petitioners character, not only through the descriptions given by respondent, but also
through the formers at least fifteen hours
50
of study of the voluminous transcript of
records of this case. Even if it took the good doctor a whole day or a whole week to
examine the records of this case, we still find his assessment of petitioners
psychological state sorely insufficient and methodologically flawed.
As to respondents argument -- that because Dr. Gauzons testimony had never been
objected to, the objection raised thereafter was deemed waived -- the Supreme Court
has already ruled on the matter. It held that although the question of admissibility of
evidence could not be raised for the first time on appeal, hearsay or unreliable evidence
should be disregarded whether objected to or not, because it has no probative value.
51

We are, of course, mindful of the ruling that a medical examination is not a conditio sine
qua non to a finding of psychological incapacity, so long as the totality of evidence
presented is enough to establish the incapacity adequately.
52
Here, however, the totality
of evidence presented by respondent was completely insufficient to sustain a finding of
psychological incapacity -- more so without any medical, psychiatric or psychological
examination.
The trial court should have carefully studied and assessed the evidence presented by
respondent and taken into account the prevailing jurisprudence on the matter. It could
then have easily concluded, as we conclude now, that it was useless to proceed further
with the tedious process of hearing contravening proof. His evidence was obviously,
grossly and clearly insufficient to support a declaration of nullity of marriage based on
psychological incapacity. Withal, it was grave abuse of discretion for the RTC to deny
the Demurrer and to violate or ignore this Courts rulings in point. Indeed, continuing the
process of litigation would have been a total waste of time and money for the parties and
an unwelcome imposition on the trial courts docket.
We have already ruled that grave abuse of discretion may arise when a lower court or
tribunal violates or contravenes the Constitution, the law or existing jurisprudence.
53
Any
decision, order or resolution of a lower court tantamount to overruling a judicial
pronouncement of the highest Court is unmistakably a very grave abuse of discretion.
54

There is no reason to believe that an appeal would prove to be a plain, speedy or
adequate remedy in the case at bar. An appeal would not promptly relieve petitioner
from the injurious effects of the patently mistaken Orders maintaining the baseless
action of respondent. It would only compel her to go needlessly through a protracted
trial, which would further clog the court dockets with another futile case.
55

WHEREFORE, the Petition is hereby GRANTED and the assailed CA Decision
REVERSED and SET ASIDE. Respondents Demurrer to Evidence is GRANTED, and
the case for declaration of nullity of marriage based on the alleged psychological
incapacity of petitioner is DISMISSED. No pronouncement as to costs.
SO ORDERED.
Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.
Puno, (Chairman), J., abroad on official leave.

DIGEST
FACTS:

Leni Choa and Alfonso Choa got married in 1981. They have 2 children namely Cheryl
Lynne and Albryan. In 1993, Alfonso filed an annulment of his marriage to Leni.
Afterwards, he filed an amended complaint for the declaration of nullity of their marriage
based on psychological incapacity. The case went to trial and the trial court further held
that Alfonso presented quantum evidence that Leni needs to controvert for the dismissal
of the case.

Alfonso claimed that Leni charged him with perjury, concubinage and deportation which
shows latters psychological incapacity because according to him it clearly showed that
his wife not only wanted him behind bars but also to banish outside the country.

ISSUE: Whether or not Alfonso Chua presented quantum evidence for the declaration of
nullity of his marriage with Leni on the ground of psychological incapacity.

HELD:

The court held that documents presented by Alfonso during the trial of the case do not in
any way show the alleged psychological incapacity of his wife. The evidence was
insufficient and shows grave abuse of discretion bordering on absurdity. Alfonso
testified and complained about three aspects of Lenis personality namely lack of
attention to children, immaturity, and lack of an intention of procreative sexuality and
none of these three, singly or collectively, constitutes psychological incapacity.

Psychological incapacity must be characterized by gravity, juridical antecedence, and
incurability. It must be more than just a difficulty, a refusal or a neglect in the
performance of marital obligations. A mere showing of irreconcilable differences and
conflicting personalities does not constitute psychological incapacity.

Furthermore, the testimonial evidence from other witnesses failed to identify and prove
root cause of the alleged psychological incapacity. It just established that the spouses
had an incompatibility or a defect that could possibly be treated or alleviated through
psychotherapy. The totality of evidence presented was completely insufficient to sustain
a finding of psychological incapacity more so without any medical, psychiatric or
psychological examination.


Antonio vs. Reyes (G.R. No. 155800, 10 March 2006)
LEONILO ANTONIO Petitioner,
vs.
MARIE IVONNE F. REYES, Respondent.
D E C I S I O N
TINGA, J .:
Statistics never lie, but lovers often do, quipped a sage. This sad truth has unsettled
many a love transformed into matrimony. Any sort of deception between spouses, no
matter the gravity, is always disquieting. Deceit to the depth and breadth unveiled in the
following pages, dark and irrational as in the modern noir tale, dims any trace of
certitude on the guilty spouses capability to fulfill the marital obligations even more.
The Petition for Review on Certiorari assails the Decision
1
and Resolution
2
of the Court
of Appeals dated 29 November 2001 and 24 October 2002. The Court of Appeals had
reversed the judgment
3
of the Regional Trial Court (RTC) of Makati declaring the
marriage of Leonilo N. Antonio (petitioner) and Marie Ivonne F. Reyes (respondent), null
and void. After careful consideration, we reverse and affirm instead the trial court.
Antecedent Facts
Petitioner and respondent met in August 1989 when petitioner was 26 years old and
respondent was 36 years of age. Barely a year after their first meeting, they got married
before a minister of the Gospel
4
at the Manila City Hall, and through a subsequent
church wedding
5
at the Sta. Rosa de Lima Parish, Bagong Ilog, Pasig, Metro Manila on 6
December 1990.
6
Out of their union, a child was born on 19 April 1991, who sadly died
five (5) months later.
On 8 March 1993,
7
petitioner filed a petition to have his marriage to respondent declared
null and void. He anchored his petition for nullity on Article 36 of the Family Code
alleging that respondent was psychologically incapacitated to comply with the essential
obligations of marriage. He asserted that respondents incapacity existed at the time
their marriage was celebrated and still subsists up to the present.
8

As manifestations of respondents alleged psychological incapacity, petitioner claimed
that respondent persistently lied about herself, the people around her, her occupation,
income, educational attainment and other events or things,
9
to wit:
(1) She concealed the fact that she previously gave birth to an illegitimate son,
10
and
instead introduced the boy to petitioner as the adopted child of her family. She only
confessed the truth about the boys parentage when petitioner learned about it from
other sources after their marriage.
11

(2) She fabricated a story that her brother-in-law, Edwin David, attempted to rape and kill
her when in fact, no such incident occurred.
12

(3) She misrepresented herself as a psychiatrist to her obstetrician, Dr. Consuelo
Gardiner, and told some of her friends that she graduated with a degree in psychology,
when she was neither.
13

(4) She claimed to be a singer or a free-lance voice talent affiliated with Blackgold
Recording Company (Blackgold); yet, not a single member of her family ever witnessed
her alleged singing activities with the group. In the same vein, she postulated that a
luncheon show was held at the Philippine Village Hotel in her honor and even presented
an invitation to that effect
14
but petitioner discovered per certification by the Director of
Sales of said hotel that no such occasion had taken place.
15

(5) She invented friends named Babes Santos and Via Marquez, and under those
names, sent lengthy letters to petitioner claiming to be from Blackgold and touting her as
the "number one moneymaker" in the commercial industry worth P2 million.
16
Petitioner
later found out that respondent herself was the one who wrote and sent the letters to him
when she admitted the truth in one of their quarrels.
17
He likewise realized that Babes
Santos and Via Marquez were only figments of her imagination when he discovered they
were not known in or connected with Blackgold.
18

(6) She represented herself as a person of greater means, thus, she altered her payslip
to make it appear that she earned a higher income. She bought a sala set from a public
market but told petitioner that she acquired it from a famous furniture dealer.
19
She spent
lavishly on unnecessary items and ended up borrowing money from other people on
false pretexts.
20

(7) She exhibited insecurities and jealousies over him to the extent of calling up his
officemates to monitor his whereabouts. When he could no longer take her unusual
behavior, he separated from her in August 1991. He tried to attempt a reconciliation but
since her behavior did not change, he finally left her for good in November 1991.
21

In support of his petition, petitioner presented Dr. Dante Herrera Abcede (Dr. Abcede), a
psychiatrist, and Dr. Arnulfo V.
Lopez (Dr. Lopez), a clinical psychologist, who stated, based on the tests they
conducted, that petitioner was essentially a normal, introspective, shy and conservative
type of person. On the other hand, they observed that respondents persistent and
constant lying
to petitioner was abnormal or pathological. It undermined the basic relationship that
should be based on love, trust and respect.
22
They further asserted that respondents
extreme jealousy was also pathological. It reached the point of paranoia since there was
no actual basis for her to suspect that petitioner was having an affair with another
woman. They concluded based on the foregoing that respondent was psychologically
incapacitated to perform her essential marital obligations.
23

In opposing the petition, respondent claimed that she performed her marital obligations
by attending to all the needs of her husband. She asserted that there was no truth to the
allegation that she fabricated stories, told lies and invented personalities.
24
She
presented her version, thus:
(1) She concealed her child by another man from petitioner because she was afraid of
losing her husband.
25

(2) She told petitioner about Davids attempt to rape and kill her because she surmised
such intent from Davids act of touching her back and ogling her from head to foot.
26

(3) She was actually a BS Banking and Finance graduate and had been teaching
psychology at the Pasig Catholic School for two (2) years.
27

(4) She was a free-lance voice talent of Aris de las Alas, an executive producer of
Channel 9 and she had done three (3) commercials with McCann Erickson for the
advertisement of Coca-cola, Johnson & Johnson, and Traders Royal Bank. She told
petitioner she was a Blackgold recording artist although she was not under contract with
the company, yet she reported to the Blackgold office after office hours. She claimed
that a luncheon show was indeed held in her honor at the Philippine Village Hotel on 8
December 1979.
28

(5) She vowed that the letters sent to petitioner were not written by her and the writers
thereof were not fictitious. Bea Marquez Recto of the Recto political clan was a resident
of the United States while Babes Santos was employed with Saniwares.
29

(6) She admitted that she called up an officemate of her husband but averred that she
merely asked the latter in a diplomatic matter if she was the one asking for chocolates
from petitioner, and not to monitor her husbands whereabouts.
30

(7) She belied the allegation that she spent lavishly as she supported almost ten people
from her monthly budget of P7,000.00.
31

In fine, respondent argued that apart from her non-disclosure of a child prior to their
marriage, the other lies attributed to her by petitioner were mostly hearsay and
unconvincing. Her stance was that the totality of the evidence presented is not sufficient
for a finding of psychological incapacity on her part.
32

In addition, respondent presented Dr. Antonio Efren Reyes (Dr. Reyes), a psychiatrist, to
refute the allegations anent her psychological condition. Dr. Reyes testified that the
series of tests conducted by his assistant,
33
together with the screening procedures and
the Comprehensive Psycho-Pathological Rating Scale (CPRS) he himself conducted,
led him to conclude that respondent was not psychologically incapacitated to perform the
essential marital obligations. He postulated that regressive behavior, gross neuroticism,
psychotic tendencies, and poor control of impulses, which are signs that might point to
the presence of disabling trends, were not elicited from respondent.
34

In rebuttal, Dr. Lopez asseverated that there were flaws in the evaluation conducted by
Dr. Reyes as (i) he was not the one who administered and interpreted respondents
psychological evaluation, and (ii) he made use of only one instrument called CPRS
which was not reliable because a good liar can fake the results of such test.
35

After trial, the lower court gave credence to petitioners evidence and held that
respondents propensity to lying about almost anythingher occupation, state of health,
singing abilities and her income, among othershad been duly established. According to
the trial court, respondents fantastic ability to invent and fabricate stories and
personalities enabled her to live in a world of make-believe. This made her
psychologically incapacitated as it rendered her incapable of giving meaning and
significance to her marriage.
36
The trial court thus declared the marriage between
petitioner and respondent null and void.
Shortly before the trial court rendered its decision, the Metropolitan Tribunal of the
Archdiocese of Manila annulled the Catholic marriage of the parties, on the ground of
lack of due discretion on the part of the parties.
37
During the pendency of the appeal
before the Court of Appeals, the Metropolitan Tribunals ruling was affirmed with
modification by both the National Appellate Matrimonial Tribunal, which held instead that
only respondent was impaired by a lack of due discretion.
38
Subsequently, the decision
of the National Appellate Matrimonial Tribunal was upheld by the Roman Rota of the
Vatican.
39

Petitioner duly alerted the Court of Appeals of these rulings by the Catholic tribunals.
Still, the appellate court reversed the RTCs judgment. While conceding that respondent
may not have been completely honest with petitioner, the Court of Appeals nevertheless
held that the totality of the evidence presented was insufficient to establish respondents
psychological incapacity. It declared that the requirements in the case of Republic v.
Court of Appeals
40
governing the application and interpretation of psychological
incapacity had not been satisfied.
Taking exception to the appellate courts pronouncement, petitioner elevated the case to
this Court. He contends herein that the evidence conclusively establish respondents
psychological incapacity.
In considering the merit of this petition, the Court is heavily influenced by the credence
accorded by the RTC to the factual allegations of petitioner.
41
It is a settled principle of
civil procedure that the conclusions of the trial court regarding the credibility of witnesses
are entitled to great respect from the appellate courts because the trial court had an
opportunity to observe the demeanor of witnesses while giving testimony which may
indicate their candor or lack thereof.
42
The Court is likewise guided by the fact that the
Court of Appeals did not dispute the veracity of the evidence presented by petitioner.
Instead, the appellate court concluded that such evidence was not sufficient to establish
the psychological incapacity of respondent.
43

Thus, the Court is impelled to accept the factual version of petitioner as the operative
facts. Still, the crucial question remains as to whether the state of facts as presented by
petitioner sufficiently meets the standards set for the declaration of nullity of a marriage
under Article 36 of the Family Code. These standards were definitively laid down in the
Courts 1997 ruling in Republic v. Court of Appeals
44
(also known as the Molina case
45
),
and indeed the Court of Appeals cited the Molina guidelines in reversing the RTC in the
case at bar.
46
Since Molinawas decided in 1997, the Supreme Court has yet to squarely
affirm the declaration of nullity of marriage under Article 36 of the Family Code.
47
In fact,
even before Molina was handed down, there was only one case, Chi Ming Tsoi v. Court
of Appeals,
48
wherein the Court definitively concluded that a spouse was psychologically
incapacitated under Article 36.
This state of jurisprudential affairs may have led to the misperception that the remedy
afforded by Article 36 of the Family Code is hollow, insofar as the Supreme Court is
concerned.
49
Yet what Molina and the succeeding cases did ordain was a set of
guidelines which, while undoubtedly onerous on the petitioner seeking the declaration of
nullity, still leave room for a decree of nullity under the proper circumstances. Molina did
not foreclose the grant of a decree of nullity under Article 36, even as it raised the bar for
its allowance.
Legal Guides to Understanding Article 36
Article 36 of the Family Code states that "[a] marriage contracted by any party who, at
the time of the celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization."
50
The concept of psychological
incapacity as a ground for nullity of marriage is novel in our body of laws, although
mental incapacity has long been recognized as a ground for the dissolution of a
marriage.
The Spanish Civil Code of 1889 prohibited from contracting marriage persons "who are
not in the full enjoyment of their reason at the time of contracting marriage."
51
Marriages
with such persons were ordained as void,
52
in the same class as marriages with
underage parties and persons already married, among others. A partys mental capacity
was not a ground for divorce under the Divorce Law of 1917,
53
but a marriage where
"either party was of unsound mind" at the time of its celebration was cited as an
"annullable marriage" under the Marriage Law of 1929.
54
Divorce on the ground of a
spouses incurable insanity was permitted under the divorce law enacted during the
Japanese occupation.
55
Upon the enactment of the Civil Code in 1950, a marriage
contracted by a party of "unsound mind" was classified under Article 85 of the Civil Code
as a voidable marriage.
56
The mental capacity, or lack thereof, of the marrying spouse
was not among the grounds for declaring a marriage void ab initio.
57
Similarly, among
the marriages classified as voidable under Article 45 (2) of the Family Code is one
contracted by a party of unsound mind.
58

Such cause for the annulment of marriage is recognized as a vice of consent, just like
insanity impinges on consent freely given which is one of the essential requisites of a
contract.
59
The initial common consensus on psychological incapacity under Article 36 of
the Family Code was that it did not constitute a specie of vice of consent. Justices
Sempio-Diy and Caguioa, both members of the Family Code revision committee that
drafted the Code, have opined that psychological incapacity is not a vice of consent, and
conceded that the spouse may have given free and voluntary consent to a marriage but
was nonetheless incapable of fulfilling such rights and obligations.
60
Dr. Tolentino
likewise stated in the 1990 edition of his commentaries on the Family Code that this
"psychological incapacity to comply with the essential marital obligations does not affect
the consent to the marriage."
61

There were initial criticisms of this original understanding of Article 36 as phrased by the
Family Code committee. Tolentino opined that "psychologically incapacity to comply
would not be
juridically different from physical incapacity of consummating the marriage, which makes
the marriage only voidable under Article 45 (5) of the Civil Code x x x [and thus] should
have been a cause for annulment of the marriage only."
62
At the same time, Tolentino
noted "[it] would be different if it were psychological incapacity to understand the
essential marital obligations, because then this would amount to lack of consent to the
marriage."
63
These concerns though were answered, beginning with Santos v. Court of
Appeals,
64
wherein the Court, through Justice Vitug, acknowledged that "psychological
incapacity should refer to no less than a mental (not physical) incapacity that causes a
party to be truly incognitive of the basic marital covenants that concomitantly must be
assumed and discharged by the parties to the marriage."
65

The notion that psychological incapacity pertains to the inability to understand the
obligations of marriage, as opposed to a mere inability to comply with them, was further
affirmed in the Molina
66
case. Therein, the Court, through then Justice (now Chief
Justice) Panganiban observed that "[t]he evidence [to establish psychological incapacity]
must convince the court that the parties, or one of them, was mentally or psychically ill to
such extent that the person could not have known the obligations he was assuming, or
knowing them, could not have given valid assumption thereto."
67
Jurisprudence since
then has recognized that psychological incapacity "is a malady so grave and permanent
as to deprive one of awareness of the duties and responsibilities of the matrimonial bond
one is about to assume."
68

It might seem that this present understanding of psychological incapacity deviates from
the literal wording of Article 36, with its central phase reading "psychologically
incapacitated to comply
with the essential marital obligations of marriage."
69
At the same time, it has been
consistently recognized by this Court that the intent of the Family Code committee was
to design the law as to allow some resiliency in its application, by avoiding specific
examples that would limit the applicability of the provision under the principle ofejusdem
generis. Rather, the preference of the revision committee was for "the judge to interpret
the provision ona case-to-case basis, guided by experience, in the findings of
experts and researchers in psychological disciplines, and by decisions of church
tribunals which, although not binding on
the civil courts, may be given persuasive effect since the provision was taken from
Canon Law."
70

We likewise observed in Republic v. Dagdag:
71

Whether or not psychological incapacity exists in a given case calling for annulment of a
marriage, depends crucially, more than in any field of the law, on the facts of the case.
Each case must be judged, not on the basis of a priori assumptions, predilections or
generalizations but according to its own facts. In regard to psychological incapacity as a
ground for annulment of marriage, it is trite to say that no case is on "all fours" with
another case. The trial judge must take pains in examining the factual milieu and the
appellate court must, as much as possible, avoid substituting its own judgment for that of
the trial court.
72

The Court thus acknowledges that the definition of psychological incapacity, as intended
by the revision committee, was not cast in intractable specifics. Judicial understanding of
psychological incapacity may be informed by evolving standards, taking into account the
particulars of each case, current trends in psychological and even canonical thought,
and experience. It is under the auspices of the deliberate ambiguity of the framers that
the Court has developed the Molina rules, which have been consistently applied since
1997. Molina has proven indubitably useful in providing a unitary framework that guides
courts in adjudicating petitions for declaration of nullity under Article 36. At the same
time, the Molina guidelines are not set in stone, the clear legislative intent mandating a
case-to-case perception of each situation, and Molina itself arising from this evolutionary
understanding of Article 36. There is no cause to disavow Molina at present, and indeed
the disposition of this case shall rely primarily on that precedent. There is need though to
emphasize other perspectives as well which should govern the disposition of petitions for
declaration of nullity under Article 36.
Of particular notice has been the citation of the Court, first in Santos then in Molina, of
the considered opinion of canon law experts in the interpretation of psychological
incapacity. This is but unavoidable, considering that the Family Code committee had
bluntly acknowledged that the concept of psychological incapacity was derived from
canon law,
73
and as one member admitted, enacted as a solution to the problem of
marriages already annulled by the Catholic Church but still existent under civil law.
74
It
would be disingenuous to disregard the influence of Catholic Church doctrine in the
formulation and subsequent understanding of Article 36, and the Court has expressly
acknowledged that interpretations given by the National Appellate Matrimonial Tribunal
of the local Church, while not controlling or decisive, should be given great respect by
our courts.
75
Still, it must be emphasized that the Catholic Church is hardly the sole
source of influence in the interpretation of Article 36. Even though the concept may have
been derived from canon law, its incorporation into the Family Code and subsequent
judicial interpretation occurred in wholly secular progression. Indeed, while Church
thought on psychological incapacity is merely persuasive on the trial courts, judicial
decisions of this Court interpreting psychological incapacity are binding on lower
courts.
76

Now is also opportune time to comment on another common legal guide utilized in the
adjudication of petitions for declaration of nullity under Article 36. All too frequently, this
Court and lower courts, in denying petitions of the kind, have favorably cited Sections 1
and 2, Article XV of the Constitution, which respectively state that "[t]he State recognizes
the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total developmen[t]," and that "[m]arriage, as an
inviolable social institution, is the foundation of the family and shall be protected by the
State." These provisions highlight the importance of the family and the constitutional
protection accorded to the institution of marriage.
But the Constitution itself does not establish the parameters of state protection to
marriage as a social institution and the foundation of the family. It remains the province
of the legislature to define all legal aspects of marriage and prescribe the strategy and
the modalities to protect it, based on whatever socio-political influences it deems proper,
and subject of course to the qualification that such legislative enactment itself adheres to
the Constitution and the Bill of Rights. This being the case, it also falls on the legislature
to put into operation the constitutional provisions that protect marriage and the family.
This has been accomplished at present through the enactment of the Family Code,
which 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. While it may appear that
the judicial denial of a petition for declaration of nullity is reflective of the constitutional
mandate to protect marriage, such action in fact merely enforces a statutory definition of
marriage, not a constitutionally ordained decree of what marriage is. Indeed, if
circumstances warrant, Sections 1 and 2 of Article XV need not be the only constitutional
considerations to be taken into account in resolving a petition for declaration of nullity.
Indeed, Article 36 of the Family Code, in classifying marriages contracted by a
psychologically incapacitated person as a nullity, should be deemed as an implement of
this constitutional protection of marriage. Given the avowed State interest in promoting
marriage as the foundation of the family, which in turn serves as the foundation of the
nation, there is a corresponding interest for the State to defend against marriages ill-
equipped to promote family life. Void ab initio marriages under Article 36 do not further
the initiatives of the State concerning marriage and family, as they promote wedlock
among persons who, for reasons independent of their will, are not capacitated to
understand or comply with the essential obligations of marriage.
These are the legal premises that inform us as we decide the present petition.
Molina Guidelines As Applied in This Case
As stated earlier, Molina established the guidelines presently recognized in the judicial
disposition of petitions for nullity under Article 36. The Court has consistently
applied Molina since its promulgation in 1997, and the guidelines therein operate as the
general rules. They warrant citation in full:
1) The burden of proof to show the nullity of the marriage belongs to the plaintiff.
Any doubt should be resolved in favor of the existence and continuation of the
marriage and against its dissolution and nullity. This is rooted in the fact that both
our Constitution and our laws cherish the validity of marriage and unity of the
family. Thus, our Constitution devotes an entire Article on the Family, recognizing
it "as the foundation of the nation." It decrees marriage as legally "inviolable,"
thereby protecting it from dissolution at the whim of the parties. Both the family
and marriage are to be "protected" by the state.
The Family Code echoes this constitutional edict on marriage and the family and
emphasizes their permanence, inviolability and solidarity.
2) The root cause of the psychological incapacity must be: (a) medically or
clinically identified, (b) alleged in the complaint, (c) sufficiently proven by experts
and (d) clearly explained in the decision. Article 36 of the Family Code requires
that the incapacity must be psychologicalnot physical, although its
manifestations and/or symptoms may be physical. The evidence must convince
the court that the parties, or one of them, was mentally or psychically ill to such
an extent that the person could not have known the obligations he was
assuming, or knowing them, could not have given valid assumption thereof.
Although no example of such incapacity need be given here so as not to limit the
application of the provision under the principle ofejusdem generis, nevertheless
such root cause must be identified as a psychological illness and its
incapacitating nature fully explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
3) The incapacity must be proven to be existing at "the time of the celebration" of
the marriage. The evidence must show that the illness was existing when the
parties exchanged their "I dos." The manifestation of the illness need not be
perceivable at such time, but the illness itself must have attached at such
moment, or prior thereto.
4) Such incapacity must also be shown to be medically or clinically permanent or
incurable. Such incurability may be absolute or even relative only in regard to the
other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of a
profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but not be
psychologically capacitated to procreate, bear and raise his/her own children as
an essential obligation of marriage.
5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. Thus, "mild characteriological
peculiarities, mood changes, occasional emotional outbursts" cannot be
accepted as root causes. The illness must be shown as downright incapacity or
inability, not a refusal, neglect or difficulty, much less ill will. In other words, there
is a natal or supervening disabling factor in the person, an adverse integral
element in the personality structure that effectively incapacitates the person from
really accepting and thereby complying with the obligations essential to marriage.
6) The essential marital obligations must be those embraced by Articles 68 up to
71 of the Family Code as regards the husband and wife as well as Articles 220,
221 and 225 of the same Code in regard to parents and their children. Such non-
complied marital obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.
7) Interpretations given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not controlling or decisive, should be
given great respect by our courts. It is clear that Article 36 was taken by the
Family Code Revision Committee from Canon 1095 of the New Code of Canon
Law, which became effective in 1983 and which provides:
"The following are incapable of contracting marriage: Those who are unable to assume
the essential obligations of marriage due to causes of psychological nature."
Since the purpose of including such provision in our Family Code is to harmonize our
civil laws with the religious faith of our people, it stands to reason that to achieve such
harmonization, great persuasive weight should be given to decisions of such appellate
tribunal. Ideallysubject to our law on evidencewhat is decreed as canonically invalid
should also be decreed civilly void.
77

Molina had provided for an additional requirement that the Solicitor General issue a
certification stating his reasons for his agreement or opposition to the petition.
78
This
requirement however was dispensed with following the implementation of A.M. No. 02-
11-10-SC, or the Rule on Declaration of Absolute Nullity of Void Marriages and
Annulment of Voidable Marriages.
79
Still, Article 48 of the Family Code mandates that
the appearance of the prosecuting attorney or fiscal assigned be on behalf of the State
to take steps to prevent collusion between the parties and to take care that evidence is
not fabricated or suppressed. Obviously, collusion is not an issue in this case,
considering the consistent vigorous opposition of respondent to the petition for
declaration of nullity. In any event, the fiscals participation in the hearings before the trial
court is extant from the records of this case.
As earlier noted, the factual findings of the RTC are now deemed binding on this Court,
owing to the great weight accorded to the opinion of the primary trier of facts, and the
refusal of the Court of Appeals to dispute the veracity of these facts. As such, it must be
considered that respondent had consistently lied about many material aspects as to her
character and personality. The question remains whether her pattern of fabrication
sufficiently establishes her psychological incapacity, consistent with Article 36 and
generally, the Molina guidelines.
We find that the present case sufficiently satisfies the guidelines in Molina.
First. Petitioner had sufficiently overcome his burden in proving the psychological
incapacity of his spouse. Apart from his own testimony, he presented witnesses who
corroborated his allegations on his wifes behavior, and certifications from Blackgold
Records and the Philippine Village Hotel Pavillon which disputed respondents claims
pertinent to her alleged singing career. He also presented two (2) expert witnesses from
the field of psychology who testified that the aberrant behavior of respondent was
tantamount to psychological incapacity. In any event, both courts below considered
petitioners evidence as credible enough. Even the appellate court acknowledged that
respondent was not totally honest with petitioner.
80

As in all civil matters, the petitioner in an action for declaration of nullity under Article 36
must be able to establish the cause of action with a preponderance of evidence.
However, since the action cannot be considered as a non-public matter between private
parties, but is impressed with State interest, the Family Code likewise requires the
participation of the State, through the prosecuting attorney, fiscal, or Solicitor General, to
take steps to prevent collusion between the parties and to take care that evidence is not
fabricated or suppressed. Thus, even if the petitioner is able establish the psychological
incapacity of respondent with preponderant evidence, any finding of collusion among the
parties would necessarily negate such proofs.
Second. The root cause of respondents psychological incapacity has been medically or
clinically identified, alleged in the complaint, sufficiently proven by experts, and clearly
explained in the trial courts decision. The initiatory complaint alleged that respondent,
from the start, had exhibited unusual and abnormal behavior "of peren[n]ially telling lies,
fabricating ridiculous stories, and inventing personalities and situations," of writing letters
to petitioner using fictitious names, and of lying about her actual occupation, income,
educational attainment, and family background, among others.
81

These allegations, initially characterized in generalities, were further linked to medical or
clinical causes by expert witnesses from the field of psychology. Petitioner presented
two (2) such witnesses in particular. Dr. Abcede, a psychiatrist who had headed the
department of psychiatry of at least two (2) major hospitals,
82
testified as follows:
WITNESS:
Given that as a fact, which is only based on the affidavit provided to me, I can say that
there are a couple of things that [are] terribly wrong with the standards. There are a
couple of things that seems (sic) to be repeated over and over again in the affidavit. One
of which is the persistent, constant and repeated lying of the "respondent"; which, I think,
based on assessment of normal behavior of an individual, is abnormal or pathological. x
x x
ATTY. RAZ: (Back to the witness)
Q- Would you say then, Mr. witness, that because of these actuations of the respondent
she is then incapable of performing the basic obligations of her marriage?
A- Well, persistent lying violates the respect that one owes towards another. The lack of
concern, the lack of love towards the person, and it is also something that endangers
human relationship. You see, relationship is based on communication between
individuals and what we generally communicate are our thoughts and feelings. But then
when one talks and expresse[s] their feelings, [you] are expected to tell the truth. And
therefore, if you constantly lie, what do you think is going to happen as far as this
relationship is concerned. Therefore, it undermines that basic relationship that should be
based on love, trust and respect.
Q- Would you say then, Mr. witness, that due to the behavior of the respondent in
constantly lying and fabricating stories, she is then incapable of performing the basic
obligations of the marriage?
x x x
ATTY. RAZ: (Back to the witness)
Q- Mr. witness, based on the testimony of Mr. Levy Mendoza, who is the third witness
for the petitioner, testified that the respondent has been calling up the petitioners
officemates and ask him (sic) on the activities of the petitioner and ask him on the
behavior of the petitioner. And this is specifically stated on page six (6) of the transcript
of stenographic notes, what can you say about this, Mr. witness?
A- If an individual is jealous enough to the point that he is paranoid, which means that
there is no actual basis on her suspect (sic) that her husband is having an affair with a
woman, if carried on to the extreme, then that is pathological. That is not abnormal. We
all feel jealous, in the same way as we also lie every now and then; but everything that is
carried out in extreme is abnormal or pathological. If there is no basis in reality to the fact
that the husband is having an affair with another woman and if she persistently believes
that the husband is having an affair with different women, then that is pathological and
we call that paranoid jealousy.
Q- Now, if a person is in paranoid jealousy, would she be considered psychologically
incapacitated to perform the basic obligations of the marriage?
A- Yes, Maam.
83

The other witness, Dr. Lopez, was presented to establish not only the psychological
incapacity of respondent, but also the psychological capacity of petitioner. He concluded
that respondent "is [a] pathological liar, that [she continues] to lie [and] she loves to
fabricate about herself."
84

These two witnesses based their conclusions of psychological incapacity on the case
record, particularly the trial transcripts of respondents testimony, as well as the
supporting affidavits of petitioner. While these witnesses did not personally examine
respondent, the Court had already held in Marcos v. Marcos
85
that personal examination
of the subject by the physician is not required for the spouse to be declared
psychologically incapacitated.
86
We deem the methodology utilized by petitioners
witnesses as sufficient basis for their medical conclusions. Admittedly, Drs. Abcede and
Lopezs common conclusion of respondents psychological incapacity hinged heavily on
their own acceptance of petitioners version as the true set of facts. However, since the
trial court itself accepted the veracity of petitioners factual premises, there is no cause to
dispute the conclusion of psychological incapacity drawn therefrom by petitioners expert
witnesses.
Also, with the totality of the evidence presented as basis, the trial court explicated its
finding of psychological incapacity in its decision in this wise:
To the mind of the Court, all of the above are indications that respondent is
psychologically incapacitated to perform the essential obligations of marriage. It has
been shown clearly from her actuations that respondent has that propensity for telling
lies about almost anything, be it her occupation, her state of health, her singing abilities,
her income, etc. She has this fantastic ability to invent and fabricate stories and
personalities. She practically lived in a world of make believe making her therefore not in
a position to give meaning and significance to her marriage to petitioner. In persistently
and constantly lying to petitioner, respondent undermined the basic tenets of relationship
between spouses that is based on love, trust and respect. As concluded by the
psychiatrist presented by petitioner, such repeated lying is abnormal and pathological
and amounts to psychological incapacity.
87

Third. Respondents psychological incapacity was established to have clearly existed at
the time of and even before the celebration of marriage. She fabricated friends and
made up letters from fictitious characters well before she married petitioner. Likewise,
she kept petitioner in the dark about her natural childs real parentage as she only
confessed when the latter had found out the truth after their marriage.
Fourth. The gravity of respondents psychological incapacity is sufficient to prove her
disability to assume the essential obligations of marriage. It is immediately discernible
that the parties had shared only a little over a year of cohabitation before the
exasperated petitioner left his wife. Whatever such circumstance speaks of the degree of
tolerance of petitioner, it likewise supports the belief that respondents psychological
incapacity, as borne by the record, was so grave in extent that any prolonged marital life
was dubitable.
It should be noted that the lies attributed to respondent were not adopted as false
pretenses in order to induce petitioner into marriage. More disturbingly, they indicate a
failure on the part of respondent to distinguish truth from fiction, or at least abide by the
truth. Petitioners witnesses and the trial court were emphatic on respondents inveterate
proclivity to telling lies and the pathologic nature of her mistruths, which according to
them, were revelatory of respondents inability to understand and perform the essential
obligations of marriage. Indeed, a person unable to distinguish between fantasy and
reality would similarly be unable to comprehend the legal nature of the marital bond,
much less its psychic meaning, and the corresponding obligations attached to marriage,
including parenting. One unable to adhere to reality cannot be expected to adhere as
well to any legal or emotional commitments.
The Court of Appeals somehow concluded that since respondent allegedly tried her best
to effect a reconciliation, she had amply exhibited her ability to perform her marital
obligations. We are not convinced. Given the nature of her psychological condition, her
willingness to remain in the marriage hardly banishes nay extenuates her lack of
capacity to fulfill the essential marital obligations. Respondents ability to even
comprehend what the essential marital obligations are is impaired at best. Considering
that the evidence convincingly disputes respondents ability to adhere to the truth, her
avowals as to her commitment to the marriage cannot be accorded much credence.
At this point, it is worth considering Article 45(3) of the Family Code which states that a
marriage may be annulled if the consent of either party was obtained by fraud, and
Article 46 which enumerates the circumstances constituting fraud under the previous
article, clarifies that "no other misrepresentation or deceit as to character, health, rank,
fortune or chastity shall constitute such fraud as will give grounds for action for the
annulment of marriage." It would be improper to draw linkages between
misrepresentations made by respondent and the misrepresentations under Articles 45
(3) and 46. The fraud under Article 45(3) vitiates the consent of the spouse who is lied
to, and does not allude to vitiated consent of the lying spouse. In this case, the
misrepresentations of respondent point to her own inadequacy to cope with her marital
obligations, kindred to psychological incapacity under Article 36.
Fifth. Respondent is evidently unable to comply with the essential marital obligations as
embraced by Articles 68 to 71 of the Family Code. Article 68, in particular, enjoins the
spouses to live together, observe mutual love, respect and fidelity, and render mutual
help and support. As noted by the trial court, it is difficult to see how an inveterate
pathological liar would be able to commit to the basic tenets of relationship between
spouses based on love, trust and respect.
Sixth. The Court of Appeals clearly erred when it failed to take into consideration the fact
that the marriage of the parties was annulled by the Catholic Church. The appellate court
apparently deemed this detail totally inconsequential as no reference was made to it
anywhere in the assailed decision despite petitioners efforts to bring the matter to its
attention.
88
Such deliberate ignorance is in contravention of Molina, which held that
interpretations given by the National Appellate Matrimonial Tribunal of the Catholic
Church in the Philippines, while not controlling or decisive, should be given great respect
by our courts.
As noted earlier, the Metropolitan Tribunal of the Archdiocese of Manila decreed the
invalidity of the marriage in question in a Conclusion
89
dated 30 March 1995, citing the
"lack of due discretion" on the part of respondent.
90
Such decree of nullity was affirmed
by both the National Appellate Matrimonial Tribunal,
91
and the Roman Rota of the
Vatican.
92
In fact, respondents psychological incapacity was considered so grave that a
restrictive clause
93
was appended to the sentence of nullity prohibiting respondent from
contracting another marriage without the Tribunals consent.
In its Decision dated 4 June 1995, the National Appellate Matrimonial Tribunal
pronounced:
The JURISRPRUDENCE in the Case maintains that matrimonial consent is considered
ontologically defective and wherefore judicially ineffective when elicited by a Part
Contractant in possession and employ of a discretionary judgment faculty with a
perceptive vigor markedly inadequate for the practical understanding of the conjugal
Covenant or serious impaired from the correct appreciation of the integral significance
and implications of the marriage vows.
The FACTS in the Case sufficiently prove with the certitude required by law that based
on the depositions of the Partes in Causa and premised on the testimonies of the
Common and Expert Witnesse[s], the Respondent made the marriage option in
tenure of adverse personality constracts that were markedly antithetical to the
substantive content and implications of the Marriage Covenant, and that seriously
undermined the integrality of her matrimonial consent in terms of its deliberative
component. In other words, afflicted with a discretionary faculty impaired in its
practico-concrete judgment formation on account of an adverse action and
reaction pattern, the Respondent was impaired from eliciting a judicially binding
matrimonial consent. There is no sufficient evidence in the Case however to prove as
well the fact of grave lack of due discretion on the part of the Petitioner.
94

Evidently, the conclusion of psychological incapacity was arrived at not only by the trial
court, but also by canonical bodies. Yet, we must clarify the proper import of the Church
rulings annulling the marriage in this case. They hold sway since they are drawn from a
similar recognition, as the trial court, of the veracity of petitioners allegations. Had the
trial court instead appreciated respondents version as correct, and the appellate court
affirmed such conclusion, the rulings of the Catholic Church on this matter would have
diminished persuasive value. After all, it is the factual findings of the judicial trier of facts,
and not that of the canonical courts, that are accorded significant recognition by this
Court.
Seventh. The final point of contention is the requirement in Molina that such
psychological incapacity be shown to be medically or clinically permanent or incurable. It
was on this score that the Court of Appeals reversed the judgment of the trial court, the
appellate court noting that it did not appear certain that respondents condition was
incurable and that Dr. Abcede did not testify to such effect.
95

Petitioner points out that one month after he and his wife initially separated, he returned
to her, desiring to make their marriage work. However, respondents aberrant behavior
remained unchanged, as she continued to lie, fabricate stories, and maintained her
excessive jealousy. From this fact, he draws the conclusion that respondents condition
is incurable.
From the totality of the evidence, can it be definitively concluded that respondents
condition is incurable? It would seem, at least, that respondents psychosis is quite
grave, and a cure thereof a remarkable feat. Certainly, it would have been easier had
petitioners expert witnesses characterized respondents condition as incurable. Instead,
they remained silent on whether the psychological incapacity was curable or incurable.
But on careful examination, there was good reason for the experts taciturnity on this
point.
The petitioners expert witnesses testified in 1994 and 1995, and the trial court rendered
its decision on 10 August 1995. These events transpired well before Molina was
promulgated in 1997 and made explicit the requirement that the psychological incapacity
must be shown to be medically or clinically permanent or incurable. Such requirement
was not expressly stated in Article 36 or any other provision of the Family Code.
On the other hand, the Court in Santos, which was decided in January 1995, began its
discussion by first citing the deliberations of the Family Code committee,
96
then the
opinion of canonical scholars,
97
before arriving at its formulation of the doctrinal definition
of psychological incapacity.
98
Santos did refer to Justice Caguioas opinion expressed
during the deliberations that "psychological incapacity is incurable,"
99
and the view of a
former presiding judge of the Metropolitan Marriage Tribunal of the Archdiocese of
Manila that psychological incapacity must be characterized "by (a) gravity, (b) juridical
antecedence, and (c) incurability."
100
However, in formulating the doctrinal rule on
psychological incapacity, the Court in Santos omitted any reference to incurability as a
characteristic of psychological incapacity.
101

This disquisition is material as Santos was decided months before the trial court came
out with its own ruling that remained silent on whether respondents psychological
incapacity was incurable. Certainly, Santos did not clearly mandate that the incurability
of the psychological incapacity be established in an action for declaration of nullity. At
least, there was no jurisprudential clarity at the time of the trial of this case and the
subsequent promulgation of the trial courts decision that required a medical finding of
incurability. Such requisite arose only with Molina in 1997, at a time when this case was
on appellate review, or after the reception of evidence.
We are aware that in Pesca v. Pesca,
102
the Court countered an argument
that Molina and Santos should not apply retroactively
with the observation that the interpretation or construction placed by the courts of a law
constitutes a part of that law as of the date the statute in enacted.
103
Yet we approach
this present case from utterly practical considerations. The requirement that
psychological incapacity must be shown to be medically or clinically permanent or
incurable is one that necessarily cannot be divined without expert opinion. Clearly in this
case, there was no categorical averment from the expert witnesses that respondents
psychological incapacity was curable or incurable simply because there was no legal
necessity yet to elicit such a declaration and the appropriate question was not
accordingly propounded to him. If we apply Pesca without deep reflection, there would
be undue prejudice to those cases tried before Molina or Santos, especially those
presently on appellate review, where presumably the respective petitioners and their
expert witnesses would not have seen the need to adduce a diagnosis of incurability. It
may hold in those cases, as in this case, that the psychological incapacity of a spouse is
actually incurable, even if not pronounced as such at the trial court level.
We stated earlier that Molina is not set in stone, and that the interpretation of Article 36
relies heavily on a case-to-case perception. It would be insensate to reason to mandate
in this case an expert medical or clinical diagnosis of incurability, since the parties would
have had no impelling cause to present evidence to that effect at the time this case was
tried by the RTC more than ten (10) years ago. From the totality of the evidence, we are
sufficiently convinced that the incurability of respondents psychological incapacity has
been established by the petitioner. Any lingering doubts are further dispelled by the fact
that the Catholic Church tribunals, which indubitably consider incurability as an integral
requisite of psychological incapacity, were sufficiently convinced that respondent was so
incapacitated to contract marriage to the degree that annulment was warranted.
All told, we conclude that petitioner has established his cause of action for declaration of
nullity under Article 36 of the Family Code. The RTC correctly ruled, and the Court of
Appeals erred in reversing the trial court.
There is little relish in deciding this present petition, pronouncing as it does the marital
bond as having been inexistent in the first place. It is possible that respondent, despite
her psychological state, remains in love with petitioner, as exhibited by her persistent
challenge to the petition for nullity. In fact, the appellate court placed undue emphasis on
respondents avowed commitment to remain in the marriage. Yet the Court decides
these cases on legal reasons and not vapid sentimentality. Marriage, in legal
contemplation, is more than the legitimatization of a desire of people in love to live
together.
WHEREFORE, the petition is GRANTED. The decision of the RTC dated 10 August
1995, declaring the marriage between petitioner and respondent NULL and VOID under
Article 36 of the Family Code, is REINSTATED. No costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairman
ANTONIO T. CARPIO
Associate Justice
CONCHITA CARPIO MORALES
Asscociate Justice
A T T E S T A T I O N
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 Courts Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairman, Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Attestation by the
Divisions Chairman, 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 Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice
DIGEST
FACTS:

Leonilo Antonio, 26 years of age, and Marie Ivonne Reyes, 36 years of age met in 1989.
Barely a year after their first meeting, they got married at Manila City Hall and then a
subsequent church wedding at Pasig in December 1990. A child was born but died 5
months later. Reyes persistently lied about herself, the people around her, her
occupation, income, educational attainment and other events or things. She even did
not conceal bearing an illegitimate child, which she represented to her husband as
adopted child of their family. They were separated in August 1991 and after attempt for
reconciliation, he finally left her for good in November 1991. Petitioner then filed in 1993
a petition to have his marriage with Reyes declared null and void anchored in Article 36
of the Family Code.

ISSUE: Whether Antonio can impose Article 36 of the Family Code as basis for declaring
their marriage null and void.

HELD:

Psychological incapacity pertains to the inability to understand the obligations of
marriage as opposed to a mere inability to comply with them. The petitioner, aside from
his own testimony presented a psychiatrist and clinical psychologist who attested that
constant lying and extreme jealousy of Reyes is abnormal and pathological and
corroborated his allegations on his wifes behavior, which amounts to psychological
incapacity. Respondents fantastic ability to invent, fabricate stories and letters of
fictitious characters enabled her to live in a world of make-believe that made her
psychologically incapacitated as it rendered her incapable of giving meaning and
significance to her marriage. The root causes of Reyes psychological incapacity have
been medically or clinically identified that was sufficiently proven by experts. The gravity
of respondents psychological incapacity was considered so grave that a restrictive
clause was appended to the sentence of nullity prohibited by the National Appellate
Matrimonial Tribunal from contracting marriage without their consent. It would be difficult
for an inveterate pathological liar to commit the basic tenets of relationship between
spouses based on love, trust and respect. Furthermore, Reyes case is incurable
considering that petitioner tried to reconcile with her but her behavior remain
unchanged.

Hence, the court conclude that petitioner has established his cause of action for
declaration of nullity under Article 36 of the Family Code.

Chi Ming Tsoi vs. CA (G.R. No. 119190, 16 January 1997)
CHI MING TSOI, petitioner,
vs.
COURT OF APPEALS and GINA LAO-TSOI, respondents.

TORRES, JR., J .:
Man has not invented a reliable compass by which to steer a marriage in its journey over
troubled waters. Laws are seemingly inadequate. Over time, much reliance has been
placed in the works of the unseen hand of Him who created all things.
Who is to blame when a marriage fails?
This case was originally commenced by a distraught wife against her uncaring husband
in the Regional Trial Court of Quezon City (Branch 89) which decreed the annulment of
the marriage on the ground of psychological incapacity. Petitioner appealed the decision
of the trial court to respondent Court of Appeals (CA-G.R. CV No. 42758) which affirmed
the Trial Court's decision November 29, 1994 and correspondingly denied the motion for
reconsideration in a resolution dated February 14, 1995.
The statement of the case and of the facts made by the trial court and reproduced by the
Court of Appeals
1
its decision are as follows:
From the evidence adduced, the following acts were preponderantly established:
Sometime on May 22, 1988, the plaintiff married the defendant at the Manila
Cathedral, . . . Intramuros Manila, as evidenced by their Marriage Contract. (Exh.
"A")
After the celebration of their marriage and wedding reception at the South Villa,
Makati, they went and proceeded to the house of defendant's mother.
There, they slept together on the same bed in the same room for the first night of
their married life.
It is the version of the plaintiff, that contrary to her expectations, that as
newlyweds they were supposed to enjoy making love, or having sexual
intercourse, with each other, the defendant just went to bed, slept on one side
thereof, then turned his back and went to sleep . There was no sexual
intercourse between them during the first night. The same thing happened on the
second, third and fourth nights.
In an effort to have their honeymoon in a private place where they can enjoy
together during their first week as husband and wife, they went to Baguio City.
But, they did so together with her mother, an uncle, his mother and his nephew.
They were all invited by the defendant to join them. [T]hey stayed in Baguio City
for four (4) days. But, during this period, there was no sexual intercourse
between them, since the defendant avoided her by taking a long walk during
siesta time or by just sleeping on a rocking chair located at the living room. They
slept together in the same room and on the same bed since May 22, 1988 until
March 15, 1989. But during this period, there was no attempt of sexual
intercourse between them. [S]he claims, that she did not: even see her
husband's private parts nor did he see hers.
Because of this, they submitted themselves for medical examinations to Dr.
Eufemio Macalalag, a urologist at the Chinese General Hospital, on January 20,
1989.
The results of their physical examinations were that she is healthy, normal and
still a virgin, while that of her husband's examination was kept confidential up to
this time. While no medicine was prescribed for her, the doctor prescribed
medications for her husband which was also kept confidential. No treatment was
given to her. For her husband, he was asked by the doctor to return but he never
did.
The plaintiff claims, that the defendant is impotent, a closet homosexual as he
did not show his penis. She said, that she had observed the defendant using an
eyebrow pencil and sometimes the cleansing cream of his mother. And that,
according to her, the defendant married her, a Filipino citizen, to acquire or
maintain his residency status here in the country and to publicly maintain the
appearance of a normal man.
The plaintiff is not willing to reconcile with her husband.
On the other hand, it is the claim of the defendant that if their marriage shall be
annulled by reason of psychological incapacity, the fault lies with his wife.
But, he said that he does not want his marriage with his wife annulled for several
reasons, viz: (1) that he loves her very much; (2) that he has no defect on his
part and he is physically and psychologically capable; and, (3) since the
relationship is still very young and if there is any differences between the two of
them, it can still be reconciled and that, according to him, if either one of them
has some incapabilities, there is no certainty that this will not be cured. He further
claims, that if there is any defect, it can be cured by the intervention of medical
technology or science.
The defendant admitted that since their marriage on May 22, 1988, until their
separation on March 15, 1989, there was no sexual contact between them. But,
the reason for this, according to the defendant, was that everytime he wants to
have sexual intercourse with his wife, she always avoided him and whenever he
caresses her private parts, she always removed his hands. The defendant
claims, that he forced his wife to have sex with him only once but he did not
continue because she was shaking and she did not like it. So he stopped.
There are two (2) reasons, according to the defendant , why the plaintiff filed this
case against him, and these are: (1) that she is afraid that she will be forced to
return the pieces of jewelry of his mother, and, (2) that her husband, the
defendant, will consummate their marriage.
The defendant insisted that their marriage will remain valid because they are still
very young and there is still a chance to overcome their differences.
The defendant submitted himself to a physical examination. His penis was
examined by Dr. Sergio Alteza, Jr., for the purpose of finding out whether he is
impotent . As a result thereof, Dr. Alteza submitted his Doctor's Medical Report.
(Exh. "2"). It is stated there, that there is no evidence of impotency (Exh. "2-B"),
and he is capable of erection. (Exh. "2-C")
The doctor said, that he asked the defendant to masturbate to find out whether or
not he has an erection and he found out that from the original size of two (2)
inches, or five (5) centimeters, the penis of the defendant lengthened by one (1)
inch and one centimeter. Dr. Alteza said, that the defendant had only a soft
erection which is why his penis is not in its full length. But, still is capable of
further erection, in that with his soft erection, the defendant is capable of having
sexual intercourse with a woman.
In open Court, the Trial Prosecutor manifested that there is no collusion between
the parties and that the evidence is not fabricated."
2

After trial, the court rendered judgment, the dispositive portion of which reads:
ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage
entered into by the plaintiff with the defendant on May 22, 1988 at the Manila
Cathedral, Basilica of the Immaculate Conception, Intramuros, Manila, before the
Rt. Rev. Msgr. Melencio de Vera. Without costs. Let a copy of this decision be
furnished the Local Civil Registrar of Quezon City. Let another copy be furnished
the Local Civil Registrar of Manila.
SO ORDERED.
On appeal, the Court of Appeals affirmed the trial court's decision.
Hence, the instant petition.
Petitioner alleges that the respondent Court of Appeals erred:
I
in affirming the conclusions of the lower court that there was no sexual
intercourse between the parties without making any findings of fact.
II
in holding that the refusal of private respondent to have sexual communion with
petitioner is a psychological incapacity inasmuch as proof thereof is totally
absent.
III
in holding that the alleged refusal of both the petitioner and the private
respondent to have sex with each other constitutes psychological incapacity of
both.
IV
in affirming the annulment of the marriage between the parties decreed by the
lower court without fully satisfying itself that there was no collusion between
them.
We find the petition to be bereft of merit.
Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private
respondent has the burden of proving the allegations in her complaint; that since there
was no independent evidence to prove the alleged non-coitus between the parties, there
remains no other basis for the court's conclusion except the admission of petitioner; that
public policy should aid acts intended to validate marriage and should retard acts
intended to invalidate them; that the conclusion drawn by the trial court on the
admissions and confessions of the parties in their pleadings and in the course of the trial
is misplaced since it could have been a product of collusion; and that in actions for
annulment of marriage, the material facts alleged in the complaint shall always be
proved.
3

Section 1, Rule 19 of the Rules of Court reads:
Section 1. Judgment on the pleadings. Where an answer fails to tender an
issue, or otherwise admits the material allegations of the adverse party's
pleading, the court may, on motion of that party, direct judgment on such
pleading. But in actions for annulment of marriage or for legal separation the
material facts alleged in the complaint shall always be proved.
The foregoing provision pertains to a judgment on the pleadings. What said provision
seeks to prevent is annulment of marriage without trial. The assailed decision was not
based on such a judgment on the pleadings. When private respondent testified under
oath before the trial court and was cross-examined by oath before the trial court and was
cross-examined by the adverse party, she thereby presented evidence in form of a
testimony. After such evidence was presented, it be came incumbent upon petitioner to
present his side. He admitted that since their marriage on May 22, 1988, until their
separation on March 15, 1989, there was no sexual intercourse between them.
To prevent collusion between the parties is the reason why, as stated by the petitioner,
the Civil Code provides that no judgment annulling a marriage shall be promulgated
upon a stipulation of facts or by confession of judgment (Arts. 88 and 101[par. 2]) and
the Rules of Court prohibit such annulment without trial (Sec. 1, Rule 19).
The case has reached this Court because petitioner does not want their marriage to be
annulled. This only shows that there is no collusion between the parties. When petitioner
admitted that he and his wife (private respondent) have never had sexual contact with
each other, he must have been only telling the truth. We are reproducing the relevant
portion of the challenged resolution denying petitioner's Motion for Reconsideration,
penned with magisterial lucidity by Associate Justice Minerva Gonzaga-Reyes, viz:
The judgment of the trial court which was affirmed by this Court is not based on a
stipulation of facts. The issue of whether or not the appellant is psychologically
incapacitated to discharge a basic marital obligation was resolved upon a review
of both the documentary and testimonial evidence on record. Appellant admitted
that he did not have sexual relations with his wife after almost ten months of
cohabitation, and it appears that he is not suffering from any physical disability.
Such abnormal reluctance or unwillingness to consummate his marriage is
strongly indicative of a serious personality disorder which to the mind of this
Court clearly demonstrates an 'utter insensitivity or inability to give meaning and
significance to the marriage' within the meaning of Article 36 of the Family Code
(See Santos vs. Court of Appeals, G.R. No. 112019, January 4, 1995).
4

Petitioner further contends that respondent court erred in holding that the alleged refusal
of both the petitioner and the private respondent to have sex with each other constitutes
psychological incapacity of both. He points out as error the failure of the trial court to
make "a categorical finding about the alleged psychological incapacity and an in-depth
analysis of the reasons for such refusal which may not be necessarily due to
physchological disorders" because there might have been other reasons, i.e.,
physical disorders, such as aches, pains or other discomforts, why private respondent
would not want to have sexual intercourse from May 22, 1988 to March 15, 1989, in a
short span of 10 months.
First, it must be stated that neither the trial court nor the respondent court made a finding
on who between petitioner and private respondent refuses to have sexual contact with
the other. The fact remains, however, that there has never been coitus between them. At
any rate, since the action to declare the marriage void may be filed by either party, i.e.,
even the psychologically incapacitated, the question of who refuses to have sex with the
other becomes immaterial.
Petitioner claims that there is no independent evidence on record to show that any of the
parties is suffering from phychological incapacity. Petitioner also claims that he wanted
to have sex with private respondent; that the reason for private respondent's refusal may
not be psychological but physical disorder as stated above.
We do not agree. Assuming it to be so, petitioner could have discussed with private
respondent or asked her what is ailing her, and why she balks and avoids him everytime
he wanted to have sexual intercourse with her. He never did. At least, there is nothing in
the record to show that he had tried to find out or discover what the problem with his wife
could be. What he presented in evidence is his doctor's Medical Report that there is no
evidence of his impotency and he is capable of erection.
5
Since it is petitioner's claim
that the reason is not psychological but perhaps physical disorder on the part of private
respondent, it became incumbent upon him to prove such a claim.
If a spouse, although physically capable but simply refuses to perform his or her
essential marriage obligations, and the refusal is senseless and constant,
Catholic marriage tribunals attribute the causes to psychological incapacity than
to stubborn refusal. Senseless and protracted refusal is equivalent to
psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual
intercourse with his or her spouse is considered a sign of psychological
incapacity.
6

Evidently, one of the essential marital obligations under the Family Code is "To
procreate children based on the universal principle that procreation of children through
sexual cooperation is the basic end of marriage." Constant non- fulfillment of this
obligation will finally destroy the integrity or wholeness of the marriage. In the case at
bar, the senseless and protracted refusal of one of the parties to fulfill the above marital
obligation is equivalent to psychological incapacity.
As aptly stated by the respondent court,
An examination of the evidence convinces Us that the husband's plea that the
wife did not want carnal intercourse with him does not inspire belief. Since he
was not physically impotent, but he refrained from sexual intercourse during the
entire time (from May 22, 1988 to March 15, 1989) that he occupied the same
bed with his wife, purely out of symphaty for her feelings, he deserves to be
doubted for not having asserted his right seven though she balked (Tompkins vs.
Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330). Besides, if it were
true that it is the wife was suffering from incapacity, the fact that defendant did
not go to court and seek the declaration of nullity weakens his claim. This case
was instituted by the wife whose normal expectations of her marriage were
frustrated by her husband's inadequacy. Considering the innate modesty of the
Filipino woman, it is hard to believe that she would expose her private life to
public scrutiny and fabricate testimony against her husband if it were not
necessary to put her life in order and put to rest her marital status.
We are not impressed by defendant's claim that what the evidence proved is the
unwillingness or lack of intention to perform the sexual act, which is not
phychological incapacity, and which can be achieved "through proper
motivation." After almost ten months of cohabitation, the admission that the
husband is reluctant or unwilling to perform the sexual act with his wife whom he
professes to love very dearly, and who has not posed any insurmountable
resistance to his alleged approaches, is indicative of a hopeless situation, and of
a serious personality disorder that constitutes psychological incapacity to
discharge the basic marital covenants within the contemplation of the Family
Code.
7

While the law provides that the husband and the wife are obliged to live together,
observe mutual love, respect and fidelity (Art. 68, Family Code), the sanction therefor is
actually the "spontaneous, mutual affection between husband and wife and not any legal
mandate or court order" (Cuaderno vs. Cuaderno 120 Phil. 1298). Love is useless
unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner
in marriage is to say "I could not have cared less." This is so because an ungiven self is
an unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual
intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift and a
participation in the mystery of creation. It is a function which enlivens the hope of
procreation and ensures the continuation of family relations.
It appears that there is absence of empathy between petitioner and private respondent.
That is a shared feeling which between husband and wife must be experienced not
only by having spontaneous sexual intimacy but a deep sense of spiritual communion.
Marital union is a two-way process. An expressive interest in each other's feelings at a
time it is needed by the other can go a long way in deepening the marital relationship.
Marriage is definitely not for children but for two consenting adults who view the
relationship with love amor gignit amorem, respect, sacrifice and a continuing
commitment to compromise, conscious of its value as a sublime social institution.
This Court, finding the gravity of the failed relationship in which the parties found
themselves trapped in its mire of unfulfilled vows and unconsummated marital
obligations, can do no less but sustain the studied judgment of respondent appellate
court.
IN VIEW OF THE FOREGOING PREMISES , the assailed decision of the Court of
Appeals dated November 29, 1994 is hereby AFFIRMED in all respects and the petition
is hereby DENIED for lack of merit.
SO ORDERED.
Regalado, Romero, Puno and Mendoza, JJ., concur.
DIGEST
FACTS:

Chi Ming Tsoi and Gina Lao Tsoi was married in 1988. After the celebration of their
wedding, they proceed to the house of defendants mother. There was no sexual
intercourse between them during their first night and same thing happened until their
fourth night. In an effort to have their honeymoon in a private place, they went to Baguio
but Ginas relatives went with them. Again, there was no sexual intercourse since the
defendant avoided by taking a long walk during siesta or sleeping on a rocking chair at
the living room. Since May 1988 until March 1989 they slept together in the same bed
but no attempt of sexual intercourse between them. Because of this, they submitted
themselves for medical examination to a urologist in Chinese General Hospital in 1989.
The result of the physical examination of Gina was disclosed, while that of the husband
was kept confidential even the medicine prescribed. There were allegations that the
reason why Chi Ming Tsoi married her is to maintain his residency status here in the
country. Gina does not want to reconcile with Chi Ming Tsoi and want their marriage
declared void on the ground of psychological incapacity. On the other hand, the latter
does not want to have their marriage annulled because he loves her very much, he has
no defect on his part and is physically and psychologically capable and since their
relationship is still young, they can still overcome their differences. Chi Ming Tsoi
submitted himself to another physical examination and the result was there is not
evidence of impotency and he is capable of erection.



ISSUE: Whether Chi Ming Tsois refusal to have sexual intercourse with his wife
constitutes psychological incapacity.



HELD:

The abnormal reluctance or unwillingness to consummate his marriage is strongly
indicative of a serious personality disorder which to the mind of the Supreme Court
clearly demonstrates an utter insensitivity or inability to give meaning and significance tot
the marriage within the meaning of Article 36 of the Family Code.

If a spouse, although physically capable but simply refuses to perform his or her
essential marital obligations and the refusal is senseless and constant, Catholic
marriage tribunals attribute the causes to psychological incapacity than to stubborn
refusal. Furthermore, one of the essential marital obligations under the Family Code is
to procreate children thus constant non-fulfillment of this obligation will finally destroy the
integrity and wholeness of the marriage.

Te vs. Te (G.R. No.161793, 13 February 2009)
THIRD DIVISION

EDWARD KENNETH NGO TE,
Petitioner,


- versus -


ROWENA ONG GUTIERREZ YU-TE,
Respondent,

REPUBLIC OF THEPHILIPPINES,
Oppositor.

G.R. No. 161793

Present:

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
PERALTA, JJ.

Promulgated:

February 13, 2009

x------------------------------------------------------------------------------------x





D E C I S I O N

NACHURA, J .:



Far from novel is the issue involved in this petition. Psychological incapacity,
since its incorporation in our laws, has become a clichd subject of discussion in our
jurisprudence. The Court treats this case, however, with much ado, it having realized
that current jurisprudential doctrine has unnecessarily imposed a perspective by which
psychological incapacity should be viewed, totally inconsistent with the way the concept
was formulatedfree in form and devoid of any definition.

For the resolution of the Court is a petition for review on certiorari under Rule 45 of
the Rules of Court assailing the August 5, 2003 Decision
[1]
of the Court of Appeals (CA)
in CA-G.R. CV No. 71867. The petition further assails the January 19, 2004
Resolution
[2]
denying the motion for the reconsideration of the challenged decision.

The relevant facts and proceedings follow.

Petitioner Edward Kenneth Ngo Te first got a glimpse of respondent Rowena
Ong Gutierrez Yu-Te in a gathering organized by the Filipino-Chinese association in
their college. Edward was then initially attracted to Rowenas close friend; but, as the
latter already had a boyfriend, the young man decided to court Rowena. That was in
January 1996, when petitioner was a sophomore student and respondent, a freshman.
[3]


Sharing similar angst towards their families, the two understood one another and
developed a certain degree of closeness towards each other. In March 1996, or around
three months after their first meeting, Rowena asked Edward that they elope. At first, he
refused, bickering that he was young and jobless. Her persistence, however, made him
relent. Thus, they left Manila and sailed to Cebu that month; he, providing their travel
money and she, purchasing the boat ticket.
[4]


However, Edwards P80,000.00 lasted for only a month. Their pension house
accommodation and daily sustenance fast depleted it. And they could not find a job. In
April 1996, they decided to go back to Manila. Rowena proceeded to her uncles house
and Edward to his parents home. As his family was abroad, and Rowena kept on
telephoning him, threatening him that she would commit suicide, Edward agreed to stay
with Rowena at her uncles place.
[5]


On April 23, 1996, Rowenas uncle brought the two to a court to get married. He
was then 25 years old, and she, 20.
[6]
The two then continued to stay at her uncles
place where Edward was treated like a prisonerhe was not allowed to go out
unaccompanied. Her uncle also showed Edward his guns and warned the latter not to
leave Rowena.
[7]
At one point, Edward was able to call home and talk to his brother who
suggested that they should stay at their parents home and live with them. Edward
relayed this to Rowena who, however, suggested that he should get his inheritance so
that they could live on their own. Edward talked to his father about this, but the patriarch
got mad, told Edward that he would be disinherited, and insisted that Edward must go
home.
[8]


After a month, Edward escaped from the house of Rowenas uncle, and stayed
with his parents. His family then hid him from Rowena and her family whenever they
telephoned to ask for him.
[9]


In June 1996, Edward was able to talk to Rowena. Unmoved by his persistence
that they should live with his parents, she said that it was better for them to live separate
lives. They then parted ways.
[10]


After almost four years, or on January 18, 2000, Edward filed a petition before
the Regional Trial Court (RTC) of Quezon City, Branch 106, for the annulment of his
marriage to Rowena on the basis of the latters psychological incapacity. This was
docketed as Civil Case No. Q-00-39720.
[11]


As Rowena did not file an answer, the trial court, on July 11, 2000, ordered the
Office of the City Prosecutor (OCP) of Quezon City to investigate whether there was
collusion between the parties.
[12]
In the meantime, on July 27, 2000, the Office of the
Solicitor General (OSG) entered its appearance and deputized the OCP to appear on its
behalf and assist it in the scheduled hearings.
[13]


On August 23, 2000, the OCP submitted an investigation report stating that it
could not determine if there was collusion between the parties; thus, it recommended
trial on the merits.
[14]


The clinical psychologist who examined petitioner found both parties
psychologically incapacitated, and made the following findings and conclusions:

BACKGROUND DATA & BRIEF MARITAL HISTORY:

EDWARD KENNETH NGO TE is a [29-year-old] Filipino male
adult born and baptized Born Again Christian at Manila. He finished two
years in college at AMA Computer College last 1994 and is currently
unemployed. He is married to and separated from ROWENA
GUTIERREZ YU-TE. He presented himself at my office for a
psychological evaluation in relation to his petition for Nullification of
Marriage against the latter by the grounds of psychological
incapacity. He is now residing at 181 P. Tuazon Street, Quezon City.

Petitioner got himself three siblings who are now in business and
one deceased sister. Both his parents are also in the business world by
whom he [considers] as generous, hospitable, and patient. This said
virtues are said to be handed to each of the family member. He generally
considers himself to be quiet and simple. He clearly remembers himself
to be afraid of meeting people. After 1994, he tried his luck in being a
Sales Executive of Mansfield International Incorporated. And because of
job incompetence, as well as being quiet and loner, he did not stay long in
the job until 1996. His interest lie[s] on becoming a full servant of God by
being a priest or a pastor. He [is] said to isolate himself from his friends
even during his childhood days as he only loves to read the Bible and
hear its message.

Respondent is said to come from a fine family despite having a
lazy father and a disobedient wife. She is said to have not finish[ed] her
collegiate degree and shared intimate sexual moments with her boyfriend
prior to that with petitioner.

In January of 1996, respondent showed her kindness to petitioner
and this became the foundation of their intimate relationship. After a
month of dating, petitioner mentioned to respondent that he is having
problems with his family. Respondent surprisingly retorted that she also
hates her family and that she actually wanted to get out of their
lives. From that [time on], respondent had insisted to petitioner that they
should elope and live together. Petitioner hesitated because he is not
prepared as they are both young and inexperienced, but she insisted that
they would somehow manage because petitioner is rich. In the last week
of March 1996, respondent seriously brought the idea of eloping and she
already bought tickets for the boat going to Cebu. Petitioner reluctantly
agreed to the idea and so they eloped toCebu. The parties are supposed
to stay at the house of a friend of respondent, but they were not able to
locate her, so petitioner was compelled to rent an apartment. The parties
tried to look for a job but could not find any so it was suggested by
respondent that they should go back and seek help from petitioners
parents. When the parties arrived at the house of petitioner, all of his
whole family was all out of the country so respondent decided to go back
to her home for the meantime while petitioner stayed behind at their
home. After a few days of separation, respondent called petitioner by
phone and said she wanted to talk to him. Petitioner responded
immediately and when he arrived at their house, respondent confronted
petitioner as to why he appeared to be cold, respondent acted irrationally
and even threatened to commit suicide. Petitioner got scared so he went
home again. Respondent would call by phone every now and then and
became angry as petitioner does not know what to do. Respondent went
to the extent of threatening to file a case against petitioner and scandalize
his family in the newspaper. Petitioner asked her how he would be able
to make amends and at this point in time[,] respondent brought the idea of
marriage. Petitioner[,] out of frustration in life[,] agreed to her to pacify
her. And so on April 23, 1996, respondents uncle brought the parties to
Valenzuela[,] and on that very same day[,] petitioner was made to sign
the Marriage Contract before the Judge. Petitioner actually never applied
for any Marriage License.

Respondent decided that they should stay first at their house until
after arrival of the parents of petitioner. But when the parents of petitioner
arrived, respondent refused to allow petitioner to go home. Petitioner was
threatened in so many ways with her uncle showing to him many
guns. Respondent even threatened that if he should persist in going
home, they will commission their military friends to harm his
family. Respondent even made petitioner sign a declaration that if he
should perish, the authorities should look for him at his parents[] and
relatives[] houses. Sometime in June of 1996, petitioner was able to
escape and he went home. He told his parents about his predicament
and they forgave him and supported him by giving him military
escort. Petitioner, however, did not inform them that he signed a
marriage contract with respondent. When they knew about it[,] petitioner
was referred for counseling. Petitioner[,] after the counseling[,] tried to
contact respondent. Petitioner offered her to live instead to[sic] the home
of petitioners parents while they are still studying. Respondent refused
the idea and claimed that she would only live with him if they will have a
separate home of their own and be away from his parents. She also
intimated to petitioner that he should already get his share of whatever he
would inherit from his parents so they can start a new life. Respondent
demanded these not knowing [that] the petitioner already settled his
differences with his own family. When respondent refused to live with
petitioner where he chose for them to stay, petitioner decided to tell her
to stop harassing the home of his parents. He told her already that he
was disinherited and since he also does not have a job, he would not be
able to support her. After knowing that petitioner does not have any
money anymore, respondent stopped tormenting petitioner and informed
petitioner that they should live separate lives.

The said relationship between Edward and Rowena is said to be
undoubtedly in the wreck and weakly-founded. The break-up was caused
by both parties[] unreadiness to commitment and their young age. He
was still in the state of finding his fate and fighting boredom, while she
was still egocentrically involved with herself.

TESTS ADMINISTERED:

Revised Beta Examination
Bender Visual Motor Gestalt Test
Draw A Person Test
Rorschach Psychodiagnostic Test
Sachs Sentence Completion Test
M M P I

TEST RESULTS & EVALUATION:

Both petitioner and respondent are dubbed to be emotionally
immature and recklessly impulsive upon swearing to their marital vows as
each of them was motivated by different notions on marriage.

Edward Kenneth Ngo Te, the petitioner in this case[,] is said to be
still unsure and unready so as to commit himself to marriage. He is still
founded to be on the search of what he wants in life. He is absconded as
an introvert as he is not really sociable and displays a lack of interest in
social interactions and mingling with other individuals. He is seen too
akin to this kind of lifestyle that he finds it boring and uninteresting to
commit himself to a relationship especially to that of respondent, as
aggravated by her dangerously aggressive moves. As he is more of the
reserved and timid type of person, as he prefer to be religiously attached
and spend a solemn time alone.

ROWENA GUTIERREZ YU-TE, the respondent, is said to be of
the aggressive-rebellious type of woman. She is seen to be somewhat
exploitative in her [plight] for a life of wealth and glamour. She is seen to
take move on marriage as she thought that her marriage with petitioner
will bring her good fortune because he is part of a rich family. In order to
have her dreams realized, she used force and threats knowing that [her]
husband is somehow weak-willed. Upon the realization that there is
really no chance for wealth, she gladly finds her way out of the
relationship.

REMARKS:

Before going to marriage, one should really get to know himself
and marry himself before submitting to marital vows. Marriage should not
be taken out of intuition as it is profoundly a serious institution solemnized
by religious and law. In the case presented by petitioner and
respondent[,] (sic) it is evidently clear that both parties have impulsively
taken marriage for granted as they are still unaware of their own selves.
He is extremely introvert to the point of weakening their relationship by his
weak behavioral disposition. She, on the other hand[,] is extremely
exploitative and aggressive so as to be unlawful, insincere and
undoubtedly uncaring in her strides toward convenience. It is apparent
that she is suffering the grave, severe, and incurable presence of
Narcissistic and Antisocial Personality Disorder that started since
childhood and only manifested during marriage. Both parties display
psychological incapacities that made marriage a big mistake for them to
take.
[15]



The trial court, on July 30, 2001, rendered its Decision
[16]
declaring the marriage
of the parties null and void on the ground that both parties were psychologically
incapacitated to comply with the essential marital obligations.
[17]
The Republic,
represented by the OSG, timely filed its notice of appeal.
[18]


On review, the appellate court, in the assailed August 5, 2003 Decision
[19]
in CA-
G.R. CV No. 71867, reversed and set aside the trial courts ruling.
[20]
It ruled that
petitioner failed to prove the psychological incapacity of respondent. The clinical
psychologist did not personally examine respondent, and relied only on the information
provided by petitioner. Further, the psychological incapacity was not shown to be
attended by gravity, juridical antecedence and incurability. In sum, the evidence adduced
fell short of the requirements stated in Republic v. Court of Appeals and
Molina
[21]
needed for the declaration of nullity of the marriage under Article 36 of the
Family Code.
[22]
The CA faulted the lower court for rendering the decision without the
required certification of the OSG briefly stating therein the OSGs reasons for its
agreement with or opposition to, as the case may be, the petition.
[23]
The CA later denied
petitioners motion for reconsideration in the likewise assailed January 19, 2004
Resolution.
[24]


Dissatisfied, petitioner filed before this Court the instant petition for review
on certiorari. On June 15, 2005, the Court gave due course to the petition and required
the parties to submit their respective memoranda.
[25]


In his memorandum,
[26]
petitioner argues that the CA erred in substituting its own
judgment for that of the trial court. He posits that the RTC declared the marriage void,
not only because of respondents psychological incapacity, but rather due to both
parties psychological incapacity. Petitioner also points out that there is no requirement
for the psychologist to personally examine respondent. Further, he avers that the OSG
is bound by the actions of the OCP because the latter represented it during the trial; and
it had been furnished copies of all the pleadings, the trial court orders and notices.
[27]


For its part, the OSG contends in its memorandum,
[28]
that the annulment petition
filed before the RTC contains no statement of the essential marital obligations that the
parties failed to comply with. The root cause of the psychological incapacity was
likewise not alleged in the petition; neither was it medically or clinically identified. The
purported incapacity of both parties was not shown to be medically or clinically
permanent or incurable. And the clinical psychologist did not personally examine the
respondent. Thus, the OSG concludes that the requirements in Molina
[29]
were not
satisfied.
[30]


The Court now resolves the singular issue of whether, based on Article 36 of the
Family Code, the marriage between the parties is null and void.
[31]

I.

We begin by examining the provision, tracing its origin and charting the
development of jurisprudence interpreting it.

Article 36 of the Family Code
[32]
provides:

Article 36. A marriage contracted by any party who, at the time of
the celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization.


As borne out by the deliberations of the Civil Code Revision Committee that
drafted the Family Code, Article 36 was based on grounds available in the Canon Law.
Thus, Justice Flerida Ruth P. Romero elucidated in her separate opinion in Santos v.
Court of Appeals:
[33]


However, as a member of both the Family Law Revision
Committee of the Integrated Bar of the Philippines and the Civil Code
Revision Commission of the UP Law Center, I wish to add some
observations. The letter dated April 15, 1985 of then Judge Alicia V.
Sempio-Diy written in behalf of the Family Law and Civil Code Revision
Committee to then Assemblywoman Mercedes Cojuangco-Teodoro
traced the background of the inclusion of the present Article 36 in the
Family Code.

During its early meetings, the Family Law
Committee had thought of including a chapter on absolute
divorce in the draft of a new Family Code (Book I of the
Civil Code) that it had been tasked by the IBP and the
UP Law Center to prepare. In fact, some members of the
Committee were in favor of a no-fault divorce between the
spouses after a number of years of separation, legal or de
facto. Justice J.B.L. Reyes was then requested to prepare
a proposal for an action for dissolution of marriage and the
effects thereof based on two grounds: (a) five continuous
years of separation between the spouses, with or without a
judicial decree of legal separation, and (b) whenever a
married person would have obtained a decree of absolute
divorce in another country. Actually, such a proposal is one
for absolute divorce but called by another name. Later,
even the Civil Code Revision Committee took time to
discuss the proposal of Justice Reyes on this matter.

Subsequently, however, when the Civil Code
Revision Committee and Family Law Committee started
holding joint meetings on the preparation of the draft of the
New Family Code, they agreed and formulated the
definition of marriage as

a special contract of permanent
partnership between a man and a woman
entered into in accordance with law for the
establishment of conjugal and family life. It
is an inviolable social institution whose
nature, consequences, and incidents are
governed by law and not subject to
stipulation, except that marriage settlements
may fix the property relations during the
marriage within the limits provided by law.

With the above definition, and considering the
Christian traditional concept of marriage of the Filipino
people as a permanent, inviolable, indissoluble social
institution upon which the family and society are founded,
and also realizing the strong opposition that any provision
on absolute divorce would encounter from the Catholic
Church and the Catholic sector of our citizenry to whom
the great majority of our people belong, the two
Committees in their joint meetings did not pursue the idea
of absolute divorce and, instead, opted for an action for
judicial declaration of invalidity of marriage based on
grounds available in the Canon Law. It was thought that
such an action would not only be an acceptable alternative
to divorce but would also solve the nagging problem of
church annulments of marriages on grounds not
recognized by the civil law of the State. Justice Reyes was,
thus, requested to again prepare a draft of provisions on
such action for celebration of invalidity of marriage. Still
later, to avoid the overlapping of provisions on void
marriages as found in the present Civil Code and those
proposed by Justice Reyes on judicial declaration of
invalidity of marriage on grounds similar to the Canon Law,
the two Committees now working as a Joint Committee in
the preparation of a New Family Code decided to
consolidate the present provisions on void marriages with
the proposals of Justice Reyes. The result was the
inclusion of an additional kind of void marriage in the
enumeration of void marriages in the present Civil Code, to
wit:

(7) those marriages contracted by
any party who, at the time of the
celebration, was wanting in the sufficient
use of reason or judgment to understand
the essential nature of marriage or was
psychologically or mentally incapacitated to
discharge the essential marital obligations,
even if such lack or incapacity is made
manifest after the celebration.

as well as the following implementing provisions:

Art. 32. The absolute nullity of a
marriage may be invoked or pleaded only
on the basis of a final judgment declaring
the marriage void, without prejudice to the
provision of Article 34.

Art. 33. The action or defense for
the declaration of the absolute nullity of a
marriage shall not prescribe.

x x x x x x x x x

It is believed that many hopelessly broken marriages in our country today
may already be dissolved or annulled on the grounds proposed by the
Joint Committee on declaration of nullity as well as annulment of
marriages, thus rendering an absolute divorce law unnecessary. In fact,
during a conference with Father Gerald Healy of the Ateneo University, as
well as another meeting with Archbishop Oscar Cruz of the Archdiocese
of Pampanga, the Joint Committee was informed that since Vatican II, the
Catholic Church has been declaring marriages null and void on the
ground of lack of due discretion for causes that, in other jurisdictions,
would be clear grounds for divorce, like teen-age or premature marriages;
marriage to a man who, because of some personality disorder or
disturbance, cannot support a family; the foolish or ridiculous choice of a
spouse by an otherwise perfectly normal person; marriage to a woman
who refuses to cohabit with her husband or who refuses to have children.
Bishop Cruz also informed the Committee that they have found out in
tribunal work that a lot of machismo among husbands are manifestations
of their sociopathic personality anomaly, like inflicting physical violence
upon their wives, constitutional indolence or laziness, drug dependence
or addiction, and psychosexual anomaly.
[34]



In her separate opinion in Molina,
[35]
she expounded:

At the Committee meeting of July 26, 1986, the draft provision
read:

(7) Those marriages contracted by any party who, at the time
of the celebration, was wanting in the sufficient use of reason or judgment
to understand the essential nature of marriage or was psychologically or
mentally incapacitated to discharge the essential marital obligations, even
if such lack of incapacity is made manifest after the celebration.

The twists and turns which the ensuing discussion took finally
produced the following revised provision even before the session was
over:

(7) That contracted by any party who, at the time of the
celebration, was psychologically incapacitated to discharge the essential
marital obligations, even if such lack or incapacity becomes manifest after
the celebration.

Noticeably, the immediately preceding formulation above has
dropped any reference to wanting in the sufficient use of reason or
judgment to understand the essential nature of marriage and to mentally
incapacitated. It was explained that these phrases refer to defects in the
mental faculties vitiating consent, which is not the idea . . . but lack of
appreciation of one's marital obligation. There being a defect in consent,
it is clear that it should be a ground for voidable marriage because there
is the appearance of consent and it is capable of convalidation for the
simple reason that there are lucid intervals and there are cases when the
insanity is curable . . . Psychological incapacity does not refer to mental
faculties and has nothing to do with consent; it refers to obligations
attendant to marriage.

My own position as a member of the Committee then was that
psychological incapacity is, in a sense, insanity of a lesser degree.

As to the proposal of Justice Caguioa to use the term
psychological or mental impotence, Archbishop Oscar Cruz opined in
the earlier February 9, 1984 session that this term is an invention of
some churchmen who are moralists but not canonists, that is why it is
considered a weak phrase. He said that the Code of Canon Law would
rather express it as psychological or mental incapacity to discharge . . .
Justice Ricardo C. Puno opined that sometimes a person may be
psychologically impotent with one but not with another.

One of the guidelines enumerated in the majority opinion for the
interpretation and application of Art. 36 is: Such incapacity must also be
shown to be medically or clinically permanent or incurable. Such
incurability may be absolute or even relative only in regard to the other
spouse, not necessarily absolutely against everyone of the same sex.

The Committee, through Prof. Araceli T. Barrera, considered the
inclusion of the phrase and is incurable but Prof. Esteban B. Bautista
commented that this would give rise to the question of how they will
determine curability and Justice Caguioa agreed that it would be more
problematic. Yet, the possibility that one may be cured after the
psychological incapacity becomes manifest after the marriage was not
ruled out by Justice Puno and Justice Alice Sempio-Diy. Justice Caguioa
suggested that the remedy was to allow the afflicted spouse to remarry.

For clarity, the Committee classified the bases for determining
void marriages, viz.:

1. lack of one or more of the essential requisites of marriage
as contract;
2. reasons of public policy;
3. special cases and special situations.

The ground of psychological incapacity was subsumed under special
cases and special situations, hence, its special treatment in Art. 36 in the
Family Code as finally enacted.

Nowhere in the Civil Code provisions on Marriage is there a
ground for avoiding or annulling marriages that even comes close to
being psychological in nature.

Where consent is vitiated due to circumstances existing at the
time of the marriage, such marriage which stands valid until annulled is
capable of ratification or convalidation.

On the other hand, for reasons of public policy or lack of essential
requisites, some marriages are void from the beginning.

With the revision of Book I of the Civil Code, particularly the
provisions on Marriage, the drafters, now open to fresh winds of change
in keeping with the more permissive mores and practices of the time, took
a leaf from the relatively liberal provisions of Canon Law.

Canon 1095 which states, inter alia, that the following persons are
incapable of contracting marriage: 3. (those) who, because of causes of
a psychological nature, are unable to assume the essential obligations of
marriage provided the model for what is now Art. 36 of the Family Code:
A marriage contracted by any party who, at the time of the celebration,
was psychologically incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization.

It bears stressing that unlike in Civil Law, Canon Law recognizes
only two types of marriages with respect to their validity: valid and void.
Civil Law, however, recognizes an intermediate state, the voidable or
annullable marriages. When the Ecclesiastical Tribunal annuls a
marriage, it actually declares the marriage null and void, i.e., it never
really existed in the first place, for a valid sacramental marriage can never
be dissolved. Hence, a properly performed and consummated marriage
between two living Roman Catholics can only be nullified by the formal
annulment process which entails a full tribunal procedure with a Court
selection and a formal hearing.

Such so-called church annulments are not recognized by Civil
Law as severing the marriage ties as to capacitate the parties to enter
lawfully into another marriage. The grounds for nullifying civil marriage,
not being congruent with those laid down by Canon Law, the former being
more strict, quite a number of married couples have found themselves in
limbofreed from the marriage bonds in the eyes of the Catholic Church
but yet unable to contract a valid civil marriage under state laws.
Heedless of civil law sanctions, some persons contract new marriages or
enter into live-in relationships.

It was precisely to provide a satisfactory solution to such
anomalous situations that the Civil Law Revision Committee decided to
engraft the Canon Law concept of psychological incapacity into the
Family Codeand classified the same as a ground for declaring
marriages void ab initio or totally inexistent from the beginning.

A brief historical note on the Old Canon Law (1917). This Old
Code, while it did not provide directly for psychological incapacity, in
effect, recognized the same indirectly from a combination of three old
canons: Canon #1081 required persons to be capable according to law
in order to give valid consent; Canon #1082 required that persons be at
least not ignorant of the major elements required in marriage; and Canon
#1087 (the force and fear category) required that internal and external
freedom be present in order for consent to be valid. This line of
interpretation produced two distinct but related grounds for annulment
called lack of due discretion and lack of due competence. Lack of due
discretion means that the person did not have the ability to give valid
consent at the time of the wedding and, therefore, the union is invalid.
Lack of due competence means that the person was incapable of carrying
out the obligations of the promise he or she made during the wedding
ceremony.

Favorable annulment decisions by the Roman Rota in the 1950s
and 1960s involving sexual disorders such as homosexuality and
nymphomania laid the foundation for a broader approach to the kind of
proof necessary for psychological grounds for annulment. The Rota had
reasoned for the first time in several cases that the capacity to give valid
consent at the time of marriage was probably not present in persons who
had displayed such problems shortly after the marriage. The nature of this
change was nothing short of revolutionary. Once the Rota itself had
demonstrated a cautious willingness to use this kind of hindsight, the way
was paved for what came after 1970. Diocesan Tribunals began to accept
proof of serious psychological problems that manifested themselves
shortly after the ceremony as proof of an inability to give valid consent at
the time of the ceremony.
[36]



Interestingly, the Committee did not give any examples of psychological
incapacity for fear that by so doing, it might limit the applicability of the provision under
the principle of ejusdem generis. The Committee desired that the courts should interpret
the provision on a case-to-case basis; guided by experience, the findings of experts and
researchers in psychological disciplines, and by decisions of church tribunals which,
although not binding on the civil courts, may be given persuasive effect since the
provision itself was taken from the Canon Law.
[37]
The law is then so designed as to
allow some resiliency in its application.
[38]


Yet, as held in Santos,
[39]
the phrase psychological incapacity is not meant to
comprehend all possible cases of psychoses. It refers to no less than a mental (not
physical) incapacity that causes a party to be truly noncognitive of the basic marital
covenants that concomitantly must be assumed and discharged by the parties to the
marriage which, as expressed by Article 68
[40]
of the Family Code, include their mutual
obligations to live together, observe love, respect and fidelity; and render help and
support. The intendment of the law has been to confine it to the most serious of cases
of personality disorders clearly demonstrative of an utter insensitivity or inability to give
meaning and significance to the marriage.
[41]
This interpretation is, in fact, consistent with
that in Canon Law, thus:

3.5.3.1. The Meaning of Incapacity to Assume. A sharp conceptual
distinction must be made between the second and third paragraphs of
C.1095, namely between the grave lack of discretionary judgment and the
incapacity to assume the essential obligation. Mario Pompedda, a rotal
judge, explains the difference by an ordinary, if somewhat banal,
example. Jose wishes to sell a house to Carmela, and on the assumption
that they are capable according to positive law to enter such contract,
there remains the object of the contract, viz, the house. The house is
located in a different locality, and prior to the conclusion of the contract,
the house was gutted down by fire unbeknown to both of them. This is
the hypothesis contemplated by the third paragraph of the canon. The
third paragraph does not deal with the psychological process of giving
consent because it has been established a priori that both have such a
capacity to give consent, and they both know well the object of their
consent [the house and its particulars]. Rather, C.1095.3 deals with the
object of the consent/contract which does not exist. The contract is
invalid because it lacks its formal object. The consent as a psychological
act is both valid and sufficient. The psychological act, however, is
directed towards an object which is not available. Urbano Navarrete
summarizes this distinction: the third paragraph deals not with the
positing of consent but with positing the object of consent. The person
may be capable of positing a free act of consent, but he is not capable of
fulfilling the responsibilities he assumes as a result of the consent he
elicits.

Since the address of Pius XII to the auditors of the Roman Rota in 1941
regarding psychic incapacity with respect to marriage arising from
pathological conditions, there has been an increasing trend to understand
as ground of nullity different from others, the incapacity to assume the
essential obligations of marriage, especially the incapacity which arises
from sexual anomalies. Nymphomania is a sample which ecclesiastical
jurisprudence has studied under this rubric.

The problem as treated can be summarized, thus: do sexual anomalies
always and in every case imply a grave psychopathological condition
which affects the higher faculties of intellect, discernment, and freedom;
or are there sexual anomalies that are purely so that is to say, they
arise from certain physiological dysfunction of the hormonal system, and
they affect the sexual condition, leaving intact the higher faculties
however, so that these persons are still capable of free human acts. The
evidence from the empirical sciences is abundant that there are certain
anomalies of a sexual nature which may impel a person towards sexual
activities which are not normal, either with respect to its frequency
[nymphomania, satyriasis] or to the nature of the activity itself [sadism,
masochism, homosexuality]. However, these anomalies notwithstanding,
it is altogether possible that the higher faculties remain intact such that a
person so afflicted continues to have an adequate understanding of what
marriage is and of the gravity of its responsibilities. In fact, he can
choose marriage freely. The question though is whether such a person
can assume those responsibilities which he cannot fulfill, although he may
be able to understand them. In this latter hypothesis, the incapacity to
assume the essential obligations of marriage issues from the incapacity to
posit the object of consent, rather than the incapacity to posit consent
itself.

Ecclesiastical jurisprudence has been hesitant, if not actually confused, in
this regard. The initial steps taken by church courts were not too clear
whether this incapacity is incapacity to posit consent or incapacity to posit
the object of consent. A case c. Pinna, for example, arrives at the
conclusion that the intellect, under such an irresistible impulse, is
prevented from properly deliberating and its judgment lacks
freedom. This line of reasoning supposes that the intellect, at the
moment of consent, is under the influence of this irresistible compulsion,
with the inevitable conclusion that such a decision, made as it was under
these circumstances, lacks the necessary freedom. It would be
incontrovertible that a decision made under duress, such as this
irresistible impulse, would not be a free act. But this is precisely the
question: is it, as a matter of fact, true that the intellect is always and
continuously under such an irresistible compulsion? It would seem
entirely possible, and certainly more reasonable, to think that there are
certain cases in which one who is sexually hyperaesthetic can understand
perfectly and evaluate quite maturely what marriage is and what it
implies; his consent would be juridically ineffective for this one reason that
he cannot posit the object of consent, the exclusive jus in corpus to be
exercised in a normal way and with usually regularity. It would seem
more correct to say that the consent may indeed be free, but is juridically
ineffective because the party is consenting to an object that he cannot
deliver. The house he is selling was gutted down by fire.

3.5.3.2. Incapacity as an Autonomous Ground. Sabattani seems to
have seen his way more clearly through this tangled mess, proposing as
he did a clear conceptual distinction between the inability to give consent
on the one hand, and the inability to fulfill the object of consent, on the
other. It is his opinion that nymphomaniacs usually understand the
meaning of marriage, and they are usually able to evaluate its
implications. They would have no difficulty with positing a free and
intelligent consent. However, such persons, capable as they are of
eliciting an intelligent and free consent, experience difficulty in another
sphere: delivering the object of the consent. Anne, another rotal judge,
had likewise treated the difference between the act of consenting and the
act of positing the object of consent from the point of view of a person
afflicted with nymphomania. According to him, such an affliction usually
leaves the process of knowing and understanding and evaluating
intact. What it affects is the object of consent: the delivering of the goods.

3.5.3.3 Incapacity as Incapacity to Posit the Object of
Consent. From the selected rotal jurisprudence cited, supra, it is
possible to see a certain progress towards a consensus doctrine that the
incapacity to assume the essential obligations of marriage (that is to say,
the formal object of consent) can coexist in the same person with the
ability to make a free decision, an intelligent judgment, and a mature
evaluation and weighing of things. The decision coram
Sabattani concerning a nymphomaniac affirmed that such a spouse can
have difficulty not only with regard to the moment of consent but also, and
especially, with regard to the matrimonium in facto esse. The decision
concludes that a person in such a condition is incapable of assuming the
conjugal obligation of fidelity, although she may have no difficulty in
understanding what the obligations of marriage are, nor in the weighing
and evaluating of those same obligations.

Prior to the promulgation of the Code of Canon Law in 1983, it was not
unusual to refer to this ground as moral impotence or psychic impotence,
or similar expressions to express a specific incapacity rooted in some
anomalies and disorders in the personality. These anomalies leave intact
the faculties of the will and the intellect. It is qualified as moral or psychic,
obviously to distinguish it from the impotence that constitutes the
impediment dealt with by C.1084. Nonetheless, the anomalies render the
subject incapable of binding himself in a valid matrimonial pact, to the
extent that the anomaly renders that person incapable of fulfilling the
essential obligations. According to the principle affirmed by the long
tradition of moral theology: nemo ad impossibile tenetur.

x x x x

3.5.3.5 Indications of Incapacity. There is incapacity when either or
both of the contractants are not capable of initiating or maintaining this
consortium. One immediately thinks of those cases where one of the
parties is so self-centered [e.g., a narcissistic personality] that he does
not even know how to begin a union with the other, let alone how to
maintain and sustain such a relationship. A second incapacity could be
due to the fact that the spouses are incapable of beginning or maintaining
a heterosexual consortium, which goes to the very substance of
matrimony. Another incapacity could arise when a spouse is unable to
concretize the good of himself or of the other party. The canon speaks,
not of the bonum partium, but of the bonum conjugum. A spouse who is
capable only of realizing or contributing to the good of the other party qua
persona rather than qua conjunx would be deemed incapable of
contracting marriage. Such would be the case of a person who may be
quite capable of procuring the economic good and the financial security of
the other, but not capable of realizing the bonum conjugale of the
other. These are general strokes and this is not the place for detained
and individual description.

A rotal decision c. Pinto resolved a petition where the concrete
circumstances of the case concerns a person diagnosed to be suffering
from serious sociopathy. He concluded that while the respondent may
have understood, on the level of the intellect, the essential obligations of
marriage, he was not capable of assuming them because of his
constitutional immorality.

Stankiewicz clarifies that the maturity and capacity of the person as
regards the fulfillment of responsibilities is determined not only at the
moment of decision but also and especially during the moment of
execution of decision. And when this is applied to constitution of the
marital consent, it means that the actual fulfillment of the essential
obligations of marriage is a pertinent consideration that must be factored
into the question of whether a person was in a position to assume the
obligations of marriage in the first place. When one speaks of the inability
of the party to assume and fulfill the obligations, one is not looking
at matrimonium in fieri, but also and especially at matrimonium in facto
esse. In [the] decision of 19 Dec. 1985, Stankiewicz collocated the
incapacity of the respondent to assume the essential obligations of
marriage in the psychic constitution of the person, precisely on the basis
of his irresponsibility as regards money and his apathy as regards the
rights of others that he had violated. Interpersonal relationships are
invariably disturbed in the presence of this personality disorder. A lack of
empathy (inability to recognize and experience how others feel) is
common. A sense of entitlement, unreasonable expectation, especially
favorable treatment, is usually present. Likewise common is
interpersonal exploitativeness, in which others are taken advantage of in
order to achieve ones ends.

Authors have made listings of obligations considered as essential
matrimonial obligations. One of them is the right to the communio
vitae. This and their corresponding obligations are basically centered
around the good of the spouses and of the children. Serious psychic
anomalies, which do not have to be necessarily incurable, may give rise
to the incapacity to assume any, or several, or even all of these
rights. There are some cases in which interpersonal relationship is
impossible. Some characteristic features of inability for interpersonal
relationships in marriage include affective immaturity, narcissism, and
antisocial traits.

Marriage and Homosexuality. Until 1967, it was not very clear under what
rubric homosexuality was understood to be invalidating of marriage that
is to say, is homosexuality invalidating because of the inability to evaluate
the responsibilities of marriage, or because of the inability to fulfill its
obligations. Progressively, however, rotal jurisprudence began to
understand it as incapacity to assume the obligations of marriage so that
by 1978, Parisella was able to consider, with charity, homosexuality as an
autonomous ground of nullity. This is to say that a person so afflicted is
said to be unable to assume the essential obligations of marriage. In this
same rotal decision, the object of matrimonial consent is understood to
refer not only to the jus in corpus but also the consortium totius
vitae. The third paragraph of C.1095 [incapacity to assume the essential
obligations of marriage] certainly seems to be the more adequate juridical
structure to account for the complex phenomenon that homosexuality
is. The homosexual is not necessarily impotent because, except in very
few exceptional cases, such a person is usually capable of full sexual
relations with the spouse. Neither is it a mental infirmity, and a person so
afflicted does not necessarily suffer from a grave lack of due discretion
because this sexual anomaly does not by itself affect the critical, volitive,
and intellectual faculties. Rather, the homosexual person is unable to
assume the responsibilities of marriage because he is unable to fulfill this
object of the matrimonial contract. In other words, the invalidity lies, not
so much in the defect of consent, as in the defect of the object of consent.

3.5.3.6 Causes of Incapacity. A last point that needs to be addressed
is the source of incapacity specified by the canon: causes of a
psychological nature. Pompedda proffers the opinion that the clause is a
reference to the personality of the contractant. In other words, there must
be a reference to the psychic part of the person. It is only when there is
something in the psyche or in the psychic constitution of the person which
impedes his capacity that one can then affirm that the person is incapable
according to the hypothesis contemplated by C.1095.3. A person is
judged incapable in this juridical sense only to the extent that he is found
to have something rooted in his psychic constitution which impedes the
assumption of these obligations. A bad habit deeply engrained in ones
consciousness would not seem to qualify to be a source of this
invalidating incapacity. The difference being that there seems to be some
freedom, however remote, in the development of the habit, while one
accepts as given ones psychic constitution. It would seem then that the
law insists that the source of the incapacity must be one which is not the
fruit of some degree of freedom.
[42]



Conscious of the laws intention that it is the courts, on a case-to-case basis, that
should determine whether a party to a marriage is psychologically incapacitated, the
Court, in sustaining the lower courts judgment of annulment in Tuason v. Court of
Appeals,
[43]
ruled that the findings of the trial court are final and binding on the appellate
courts.
[44]


Again, upholding the trial courts findings and declaring that its decision was not a
judgment on the pleadings, the Court, in Tsoi v. Court of Appeals,
[45]
explained that when
private respondent testified under oath before the lower court and was cross-examined
by the adverse party, she thereby presented evidence in the form of
testimony. Importantly, the Court, aware of parallel decisions of Catholic marriage
tribunals, ruled that the senseless and protracted refusal of one of the parties to fulfill the
marital obligation of procreating children is equivalent to psychological incapacity.

The resiliency with which the concept should be applied and the case-to-case
basis by which the provision should be interpreted, as so intended by its framers, had,
somehow, been rendered ineffectual by the imposition of a set of strict standards
in Molina,
[46]
thus:

From their submissions and the Court's own deliberations, the
following guidelines in the interpretation and application of Art. 36 of the
Family Code are hereby handed down for the guidance of the bench and
the bar:

(1) The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in favor of the
existence and continuation of the marriage and against its dissolution
and nullity. This is rooted in the fact that both our Constitution and our
laws cherish the validity of marriage and unity of the family. Thus, our
Constitution devotes an entire Article on the Family, recognizing it as
the foundation of the nation. It decrees marriage as legally inviolable,
thereby protecting it from dissolution at the whim of the parties. Both the
family and marriage are to be protected by the state.

The Family Code echoes this constitutional edict on marriage and
the family and emphasizes their permanence, inviolability and solidarity.

(2) The root cause of the psychological incapacity must be (a)
medically or clinically identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly explained in the decision.
Article 36 of the Family Code requires that the incapacity must be
psychologicalnot physical, although its manifestations and/or symptoms
may be physical. The evidence must convince the court that the parties,
or one of them, was mentally or psychically ill to such an extent that the
person could not have known the obligations he was assuming, or
knowing them, could not have given valid assumption thereof. Although
no example of such incapacity need be given here so as not to limit the
application of the provision under the principle of ejusdem generis,
nevertheless such root cause must be identified as a psychological illness
and its incapacitating nature fully explained. Expert evidence may be
given by qualified psychiatrists and clinical psychologists.

(3) The incapacity must be proven to be existing at the time
of the celebration of the marriage. The evidence must show that the
illness was existing when the parties exchanged their I do's. The
manifestation of the illness need not be perceivable at such time, but the
illness itself must have attached at such moment, or prior thereto.

(4) Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be absolute or
even relative only in regard to the other spouse, not necessarily
absolutely against everyone of the same sex. Furthermore, such
incapacity must be relevant to the assumption of marriage obligations, not
necessarily to those not related to marriage, like the exercise of a
profession or employment in a job. Hence, a pediatrician may be effective
in diagnosing illnesses of children and prescribing medicine to cure them
but may not be psychologically capacitated to procreate, bear and raise
his/her own children as an essential obligation of marriage.

(5) Such illness must be grave enough to bring about the
disability of the party to assume the essential obligations of marriage.
Thus, mild characterological peculiarities, mood changes, occasional
emotional outbursts cannot be accepted as root causes. The illness must
be shown as downright incapacity or inability, not a refusal, neglect or
difficulty, much less ill will. In other words, there is a natal or supervening
disabling factor in the person, an adverse integral element in the
personality structure that effectively incapacitates the person from really
accepting and thereby complying with the obligations essential to
marriage.

(6) The essential marital obligations must be those embraced
by Articles 68 up to 71 of the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of the same Code in regard to
parents and their children. Such non-complied marital obligation(s) must
also be stated in the petition, proven by evidence and included in the text
of the decision.

(7) Interpretations given by the National Appellate Matrimonial
Tribunal of the Catholic Church in the Philippines, while not controlling or
decisive, should be given great respect by our courts. It is clear that
Article 36 was taken by the Family Code Revision Committee from Canon
1095 of the New Code of Canon Law, which became effective in 1983
and which provides:

The following are incapable of contracting marriage: Those who
are unable to assume the essential obligations of marriage due to causes
of psychological nature.

Since the purpose of including such provision in our Family Code
is to harmonize our civil laws with the religious faith of our people, it
stands to reason that to achieve such harmonization, great persuasive
weight should be given to decisions of such appellate tribunal. Ideally
subject to our law on evidencewhat is decreed as canonically invalid
should also be decreed civilly void.

This is one instance where, in view of the evident source and
purpose of the Family Code provision, contemporaneous religious
interpretation is to be given persuasive effect. Here, the State and the
Churchwhile remaining independent, separate and apart from each
othershall walk together in synodal cadence towards the same goal of
protecting and cherishing marriage and the family as the inviolable base
of the nation.

(8) The trial court must order the prosecuting attorney or fiscal
and the Solicitor General to appear as counsel for the state. No decision
shall be handed down unless the Solicitor General issues a certification,
which will be quoted in the decision, briefly stating therein his reasons for
his agreement or opposition, as the case may be, to the petition. The
Solicitor General, along with the prosecuting attorney, shall submit to the
court such certification within fifteen (15) days from the date the case is
deemed submitted for resolution of the court. The Solicitor General shall
discharge the equivalent function of the defensor vinculi contemplated
under Canon 1095.
[47]



Noteworthy is that in Molina, while the majority of the Courts membership
concurred in the ponencia of then Associate Justice (later Chief Justice) Artemio V.
Panganiban, three justices concurred in the result and another threeincluding, as
aforesaid, Justice Romerotook pains to compose their individual separate opinions.
Then Justice Teodoro R. Padilla even emphasized that each case must be judged, not
on the basis of a priori assumptions, predelictions or generalizations, but according to its
own facts. In the field of psychological incapacity as a ground for annulment of marriage,
it is trite to say that no case is on all fours with another case. The trial judge must take
pains in examining the factual milieu and the appellate court must, as much as possible,
avoid substituting its own judgment for that of the trial court.
[48]


Predictably, however, in resolving subsequent cases,
[49]
the Court has applied
the aforesaid standards, without too much regard for the laws clear intention that each
case is to be treated differently, as courts should interpret the provision on a case-to-
case basis; guided by experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals.

In hindsight, it may have been inappropriate for the Court to impose a rigid set of
rules, as the one in Molina, in resolving all cases of psychological
incapacity. Understandably, the Court was then alarmed by the deluge of petitions for
the dissolution of marital bonds, and was sensitive to the OSGs exaggeration of Article
36 as the most liberal divorce procedure in the world.
[50]
The unintended consequences
of Molina, however, has taken its toll on people who have to live with deviant behavior,
moral insanity and sociopathic personality anomaly, which, like termites, consume little
by little the very foundation of their families, our basic social institutions. Far from what
was intended by the Court, Molinahas become a strait-jacket, forcing all sizes to fit into
and be bound by it. Wittingly or unwittingly, the Court, in conveniently applying Molina,
has allowed diagnosed sociopaths, schizophrenics, nymphomaniacs, narcissists and the
like, to continuously debase and pervert the sanctity of marriage. Ironically, the Roman
Rota has annulled marriages on account of the personality disorders of the said
individuals.
[51]


The Court need not worry about the possible abuse of the remedy provided by
Article 36, for there are ample safeguards against this contingency, among which is the
intervention by the State, through the public prosecutor, to guard against collusion
between the parties and/or fabrication of evidence.
[52]
The Court should rather be
alarmed by the rising number of cases involving marital abuse, child abuse, domestic
violence and incestuous rape.

In dissolving marital bonds on account of either partys psychological incapacity,
the Court is not demolishing the foundation of families, but it is actually protecting the
sanctity of marriage, because it refuses to allow a person afflicted with a psychological
disorder, who cannot comply with or assume the essential marital obligations, from
remaining in that sacred bond. It may be stressed that the infliction of physical violence,
constitutional indolence or laziness, drug dependence or addiction, and psychosexual
anomaly are manifestations of a sociopathic personality anomaly.
[53]
Let it be noted that
in Article 36, there is no marriage to speak of in the first place, as the same is void from
the very beginning.
[54]
To indulge in imagery, the declaration of nullity under Article 36
will simply provide a decent burial to a stillborn marriage.

The prospect of a possible remarriage by the freed spouses should not pose too
much of a concern for the Court. First and foremost, because it is none of its
business. And second, because the judicial declaration of psychological incapacity
operates as a warning or a lesson learned. On one hand, the normal spouse would
have become vigilant, and never again marry a person with a personality disorder. On
the other hand, a would-be spouse of the psychologically incapacitated runs the risk of
the latters disorder recurring in their marriage.

Lest it be misunderstood, we are not suggesting the abandonment of Molina in
this case. We simply declare that, as aptly stated by Justice Dante O. Tinga in Antonio
v. Reyes,
[55]
there is need to emphasize other perspectives as well which should govern
the disposition of petitions for declaration of nullity under Article 36. At the risk of being
redundant, we reiterate once more the principle that each case must be judged, not on
the basis of a priori assumptions, predilections or generalizations but according to its
own facts. And, to repeat for emphasis, courts should interpret the provision on a case-
to-case basis; guided by experience, the findings of experts and researchers in
psychological disciplines, and by decisions of church tribunals.

II.

We now examine the instant case.

The parties whirlwind relationship lasted more or less six (6) months. They met
in January 1996, eloped in March, exchanged marital vows in May, and parted ways in
June. The psychologist who provided expert testimony found both parties
psychologically incapacitated. Petitioners behavioral pattern falls under the classification
of dependent personality disorder, and respondents, that of the narcissistic and
antisocial personality disorder.
[56]


By the very nature of Article 36, courts, despite having the primary task and
burden of decision-making, must not discount but, instead, must consider as
decisive evidence the expert opinion on the psychological and mental
temperaments of the parties.
[57]


Justice Romero explained this in Molina, as follows:

Furthermore, and equally significant, the professional opinion of a
psychological expert became increasingly important in such cases. Data
about the person's entire life, both before and after the ceremony, were
presented to these experts and they were asked to give professional
opinions about a party's mental capacity at the time of the wedding.
These opinions were rarely challenged and tended to be accepted as
decisive evidence of lack of valid consent.

The Church took pains to point out that its new openness in this
area did not amount to the addition of new grounds for annulment, but
rather was an accommodation by the Church to the advances made in
psychology during the past decades. There was now the expertise to
provide the all-important connecting link between a marriage breakdown
and premarital causes.

During the 1970s, the Church broadened its whole idea of
marriage from that of a legal contract to that of a covenant. The result of
this was that it could no longer be assumed in annulment cases that a
person who could intellectually understand the concept of marriage could
necessarily give valid consent to marry. The ability to both grasp and
assume the real obligations of a mature, lifelong commitmentare now
considered a necessary prerequisite to valid matrimonial consent.

Rotal decisions continued applying the concept of incipient
psychological incapacity, not only to sexual anomalies but to all kinds of
personality disorders that incapacitate a spouse or both spouses from
assuming or carrying out the essential obligations of marriage. For
marriage . . . is not merely cohabitation or the right of the spouses to each
other's body for heterosexual acts, but is, in its totality the right to the
community of the whole of life; i.e., the right to a developing lifelong
relationship. Rotal decisions since 1973 have refined the meaning of
psychological or psychic capacity for marriage as presupposing the
development of an adult personality; as meaning the capacity of the
spouses to give themselves to each other and to accept the other as a
distinct person; that the spouses must be other oriented since the
obligations of marriage are rooted in a self-giving love; and that the
spouses must have the capacity for interpersonal relationship because
marriage is more than just a physical reality but involves a true
intertwining of personalities. The fulfillment of the obligations of marriage
depends, according to Church decisions, on the strength of this
interpersonal relationship. A serious incapacity for interpersonal sharing
and support is held to impair the relationship and consequently, the ability
to fulfill the essential marital obligations. The marital capacity of one
spouse is not considered in isolation but in reference to the fundamental
relationship to the other spouse.

Fr. Green, in an article in Catholic Mind, lists six elements
necessary to the mature marital relationship:

The courts consider the following elements crucial
to the marital commitment: (1) a permanent and faithful
commitment to the marriage partner; (2) openness to
children and partner; (3) stability; (4) emotional maturity;
(5) financial responsibility; (6) an ability to cope with the
ordinary stresses and strains of marriage, etc.

Fr. Green goes on to speak about some of the psychological conditions
that might lead to the failure of a marriage:

At stake is a type of constitutional impairment precluding
conjugal communion even with the best intentions of the
parties. Among the psychic factors possibly giving rise to
his or her inability to fulfill marital obligations are the
following: (1) antisocial personality with its fundamental
lack of loyalty to persons or sense of moral values; (2)
hyperesthesia, where the individual has no real freedom of
sexual choice; (3) the inadequate personality where
personal responses consistently fall short of reasonable
expectations.

x x x x

The psychological grounds are the best approach
for anyone who doubts whether he or she has a case for
an annulment on any other terms. A situation that does not
fit into any of the more traditional categories often fits very
easily into the psychological category.

As new as the psychological grounds are, experts
are already detecting a shift in their use. Whereas
originally the emphasis was on the parties' inability to
exercise proper judgment at the time of the marriage (lack
of due discretion), recent cases seem to be
concentrating on the parties' incapacity to assume or carry
out their responsibilities and obligations as promised (lack
of due competence). An advantage to using the ground of
lack of due competence is that at the time the marriage
was entered into civil divorce and breakup of the family
almost always is proof of someone's failure to carry out
marital responsibilities as promised at the time the
marriage was entered into.
[58]



Hernandez v. Court of Appeals
[59]
emphasizes the importance of presenting
expert testimony to establish the precise cause of a partys psychological incapacity, and
to show that it existed at the inception of the marriage. And as Marcos v.
Marcos
[60]
asserts, there is no requirement that the person to be declared psychologically
incapacitated be personally examined by a physician, if the totality of evidence
presented is enough to sustain a finding of psychological incapacity.
[61]
Verily, the
evidence must show a link, medical or the like, between the acts that manifest
psychological incapacity and the psychological disorder itself.

This is not to mention, but we mention nevertheless for emphasis, that the
presentation of expert proof presupposes a thorough and in-depth assessment of the
parties by the psychologist or expert, for a conclusive diagnosis of a grave, severe and
incurable presence of psychological incapacity.
[62]
Parenthetically, the Court, at this
point, finds it fitting to suggest the inclusion in the Rule on Declaration of Absolute Nullity
of Void Marriages and Annulment of Voidable Marriages,
[63]
an option for the trial judge
to refer the case to a court-appointed psychologist/expert for an independent
assessment and evaluation of the psychological state of the parties. This will assist the
courts, who are no experts in the field of psychology, to arrive at an intelligent and
judicious determination of the case. The rule, however, does not dispense with the
parties prerogative to present their own expert witnesses.

Going back, in the case at bench, the psychological assessment, which we
consider as adequate, produced the findings that both parties are afflicted with
personality disordersto repeat, dependent personality disorder for petitioner, and
narcissistic and antisocial personality disorder for respondent. We note that The
Encyclopedia of Mental Health discusses personality disorders as follows

A group of disorders involving behaviors or traits that are characteristic of
a persons recent and long-term functioning. Patterns of perceiving and
thinking are not usually limited to isolated episodes but are deeply
ingrained, inflexible, maladaptive and severe enough to cause the
individual mental stress or anxieties or to interfere with interpersonal
relationships and normal functioning. Personality disorders are often
recognizable by adolescence or earlier, continue through adulthood and
become less obvious in middle or old age. An individual may have more
than one personality disorder at a time.

The common factor among individuals who have personality
disorders, despite a variety of character traits, is the way in which the
disorder leads to pervasive problems in social and occupational
adjustment. Some individuals with personality disorders are perceived by
others as overdramatic, paranoid, obnoxious or even criminal, without an
awareness of their behaviors. Such qualities may lead to trouble getting
along with other people, as well as difficulties in other areas of life and
often a tendency to blame others for their problems. Other individuals
with personality disorders are not unpleasant or difficult to work with but
tend to be lonely, isolated or dependent. Such traits can lead to
interpersonal difficulties, reduced self-esteem and dissatisfaction with life.

Causes of Personality Disorders Different mental health
viewpoints propose a variety of causes of personality disorders. These
include Freudian, genetic factors, neurobiologic theories and brain wave
activity.

Freudian Sigmund Freud believed that fixation at certain stages
of development led to certain personality types. Thus, some disorders as
described in the Diagnostic and Statistical Manual of Mental
Disorders (3d ed., rev.) are derived from his oral, anal and phallic
character types. Demanding and dependent behavior (dependent and
passive-aggressive) was thought to derive from fixation at the oral
stage. Characteristics of obsessionality, rigidity and emotional aloofness
were thought to derive from fixation at the anal stage; fixation at the
phallic stage was thought to lead to shallowness and an inability to
engage in intimate relationships. However, later researchers have found
little evidence that early childhood events or fixation at certain stages of
development lead to specific personality patterns.

Genetic Factors Researchers have found that there may be a
genetic factor involved in the etiology of antisocial and borderline
personality disorders; there is less evidence of inheritance of other
personality disorders. Some family, adoption and twin studies suggest
that schizotypal personality may be related to genetic factors.

Neurobiologic Theories In individuals who have borderline
personality, researchers have found that low cerebrospinal fluid 5-
hydroxyindoleacetic acid (5-HIAA) negatively correlated with measures of
aggression and a past history of suicide attempts. Schizotypal
personality has been associated with low platelet monoamine oxidase
(MAO) activity and impaired smooth pursuit eye movement.

Brain Wave Activity Abnormalities in electroencephalograph
(EEG) have been reported in antisocial personality for many years; slow
wave is the most widely reported abnormality. A study of borderline
patients reported that 38 percent had at least marginal EEG
abnormalities, compared with 19 percent in a control group.

Types of Disorders According to the American Psychiatric
Associations Diagnostic and Statistical Manual of Mental Disorders (3d
ed., rev., 1987), or DSM-III-R, personality disorders are categorized into
three major clusters:

Cluster A: Paranoid, schizoid and schizotypal personality
disorders. Individuals who have these disorders often appear to have odd
or eccentric habits and traits.

Cluster B: Antisocial, borderline, histrionic and narcissistic
personality disorders. Individuals who have these disorders often appear
overly emotional, erratic and dramatic.

Cluster C: Avoidant, dependent, obsessive-compulsive and
passive-aggressive personality disorders. Individuals who have these
disorders often appear anxious or fearful.

The DSM-III-R also lists another category, personality disorder
not otherwise specified, that can be used for other specific personality
disorders or for mixed conditions that do not qualify as any of the specific
personality disorders.

Individuals with diagnosable personality disorders usually have
long-term concerns, and thus therapy may be long-term.
[64]



Dependent personality disorder is characterized in the following manner


A personality disorder characterized by a pattern of dependent and
submissive behavior. Such individuals usually lack self-esteem and
frequently belittle their capabilities; they fear criticism and are easily hurt
by others comments. At times they actually bring about dominance by
others through a quest for overprotection.

Dependent personality disorder usually begins in early
adulthood. Individuals who have this disorder may be unable to make
everyday decisions without advice or reassurance from others, may allow
others to make most of their important decisions (such as where to live),
tend to agree with people even when they believe they are wrong, have
difficulty starting projects or doing things on their own, volunteer to do
things that are demeaning in order to get approval from other people, feel
uncomfortable or helpless when alone and are often preoccupied with
fears of being abandoned.
[65]



and antisocial personality disorder described, as follows


Characteristics include a consistent pattern of behavior that is intolerant
of the conventional behavioral limitations imposed by a society, an
inability to sustain a job over a period of years, disregard for the rights of
others (either through exploitiveness or criminal behavior), frequent
physical fights and, quite commonly, child or spouse abuse without
remorse and a tendency to blame others. There is often a faade of
charm and even sophistication that masks disregard, lack of remorse for
mistreatment of others and the need to control others.

Although characteristics of this disorder describe criminals, they
also may befit some individuals who are prominent in business or politics
whose habits of self-centeredness and disregard for the rights of others
may be hidden prior to a public scandal.

During the 19
th
century, this type of personality disorder was
referred to as moral insanity. The term described immoral, guiltless
behavior that was not accompanied by impairments in reasoning.

According to the classification system used in the Diagnostic and
Statistical Manual of Mental Disorders (3d ed., rev. 1987), anti-social
personality disorder is one of the four dramatic personality disorders, the
others being borderline, histrionic and narcissistic.
[66]



The seriousness of the diagnosis and the gravity of the disorders considered, the
Court, in this case, finds as decisive the psychological evaluation made by the expert
witness; and, thus, rules that the marriage of the parties is null and void on ground of
both parties psychological incapacity. We further consider that the trial court, which had
a first-hand view of the witnesses deportment, arrived at the same conclusion.

Indeed, petitioner, who is afflicted with dependent personality disorder, cannot
assume the essential marital obligations of living together, observing love, respect and
fidelity and rendering help and support, for he is unable to make everyday decisions
without advice from others, allows others to make most of his important decisions (such
as where to live), tends to agree with people even when he believes they are wrong, has
difficulty doing things on his own, volunteers to do things that are demeaning in order to
get approval from other people, feels uncomfortable or helpless when alone and is often
preoccupied with fears of being abandoned.
[67]
As clearly shown in this case, petitioner
followed everything dictated to him by the persons around him. He is insecure, weak and
gullible, has no sense of his identity as a person, has no cohesive self to speak of, and
has no goals and clear direction in life.

Although on a different plane, the same may also be said of the respondent. Her
being afflicted with antisocial personality disorder makes her unable to assume the
essential marital obligations. This finding takes into account her disregard for the rights
of others, her abuse, mistreatment and control of others without remorse, her tendency
to blame others, and her intolerance of the conventional behavioral limitations imposed
by society.
[68]
Moreover, as shown in this case, respondent is impulsive and
domineering; she had no qualms in manipulating petitioner with her threats of blackmail
and of committing suicide.

Both parties being afflicted with grave, severe and incurable psychological
incapacity, the precipitous marriage which they contracted on April 23, 1996 is thus,
declared null and void.

WHEREFORE, premises considered, the petition for review
on certiorari is GRANTED. The August 5, 2003 Decision and the January 19, 2004
Resolution of the Court of Appeals in CA-G.R. CV No. 71867 are REVERSED and SET
ASIDE, and the Decision, dated July 30, 2001, REINSTATED.

SO ORDERED.


ANTONIO EDUARDO B. NACHURA
Associate Justice



WE CONCUR:



CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson




MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice



DIOSDADO M. PERALTA
Associate Justice


A T T E S T A T I O N

I attest that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.



CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division


C E R T I F I C A T I O N

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



REYNATO S. PUNO
Chief Justice
DIGEST
FACTS:

Petitioner Edward Te first met respondent Rowena Te in a gathering organized by the
Filipino-Chinese association in their college. Initially, he was attracted to Rowenas
close friend but, as the latter already had a boyfriend, the young man decided to court
Rowena, which happened in January 1996. It was Rowena who asked that they elope
but Edward refused bickering that he was young and jobless. Her persistence, however,
made him relent. They left Manila and sailed to Cebu that month; he, providing their
travel money of P80,000 and she, purchasing the boat ticket.

They decided to go back to Manila in April 1996. Rowena proceeded to her uncles
house and Edward to his parents home. Eventually they got married but without a
marriage license. Edward was prohibited from getting out of the house unaccompanied
and was threatened by Rowena and her uncle. After a month, Edward escaped from the
house, and stayed with his parents. Edwards parents wanted them to stay at their
house but Rowena refused and demanded that they have a separate abode. In June
1996, she said that it was better for them to live separate lives and they then parted
ways.

After four years in January 2000, Edward filed a petition for the annulment of his
marriage to Rowena on the basis of the latters psychological incapacity.

ISSUE: Whether the marriage contracted is void on the ground of psychological
incapacity.

HELD:

The parties whirlwind relationship lasted more or less six months. They met in January
1996, eloped in March, exchanged marital vows in May, and parted ways in June. The
psychologist who provided expert testimony found both parties psychologically
incapacitated. Petitioners behavioral pattern falls under the classification of dependent
personality disorder, and respondents, that of the narcissistic and antisocial personality
disorder

There is no requirement that the person to be declared psychologically incapacitated be
personally examined by a physician, if the totality of evidence presented is enough to
sustain a finding of psychological incapacity. Verily, the evidence must show a link,
medical or the like, between the acts that manifest psychological incapacity and the
psychological disorder itself.

The presentation of expert proof presupposes a thorough and in-depth assessment of
the parties by the psychologist or expert, for a conclusive diagnosis of a grave, severe
and incurable presence of psychological incapacity.

Indeed, petitioner, afflicted with dependent personality disorder, cannot assume the
essential marital obligations of living together, observing love, respect and fidelity and
rendering help and support, for he is unable to make everyday decisions without advice
from others, and allows others to make most of his important decisions (such as where
to live). As clearly shown in this case, petitioner followed everything dictated to him by
the persons around him. He is insecure, weak and gullible, has no sense of his identity
as a person, has no cohesive self to speak of, and has no goals and clear direction in
life.

As for the respondent, her being afflicted with antisocial personality disorder makes her
unable to assume the essential marital obligations on account for her disregard in the
rights of others, her abuse, mistreatment and control of others without remorse, and her
tendency to blame others. Moreover, as shown in this case, respondent is impulsive
and domineering; she had no qualms in manipulating petitioner with her threats of
blackmail and of committing suicide.

Both parties being afflicted with grave, severe and incurable psychological incapacity,
the precipitous marriage that they contracted on April 23, 1996 is thus, declared null and
void.


Article 40
Morigo vs. People (G.R. No. 145226, 6 February 2004)
G.R. No. 145226 February 06, 2004
LUCIO MORIGO y CACHO, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.


D E C I S I O N


QUISUMBING, J .:
This petition for review on certiorari seeks to reverse the decision
1
dated October 21,
1999 of the Court of Appeals in CA-G.R. CR No. 20700, which affirmed the
judgment
2
dated August 5, 1996 of the Regional Trial Court (RTC) of Bohol, Branch 4, in
Criminal Case No. 8688. The trial court found herein petitioner Lucio Morigo y Cacho
guilty beyond reasonable doubt of bigamy and sentenced him to a prison term of seven
(7) months ofprision correccional as minimum to six (6) years and one (1) day of prision
mayor as maximum. Also assailed in this petition is the resolution
3
of the appellate court,
dated September 25, 2000, denying Morigos motion for reconsideration.
The facts of this case, as found by the court a quo, are as follows:
Appellant Lucio Morigo and Lucia Barrete were boardmates at the house of
Catalina Tortor at Tagbilaran City, Province of Bohol, for a period of four (4)
years (from 1974-1978).
After school year 1977-78, Lucio Morigo and Lucia Barrete lost contact with each
other.
In 1984, Lucio Morigo was surprised to receive a card from Lucia Barrete from
Singapore. The former replied and after an exchange of letters, they became
sweethearts.
In 1986, Lucia returned to the Philippines but left again for Canada to work there.
While in Canada, they maintained constant communication.
In 1990, Lucia came back to the Philippines and proposed to petition appellant to
join her in Canada. Both agreed to get married, thus they were married on
August 30, 1990 at the Iglesia de Filipina Nacional at Catagdaan, Pilar, Bohol.
On September 8, 1990, Lucia reported back to her work in Canada leaving
appellant Lucio behind.
On August 19, 1991, Lucia filed with the Ontario Court (General Division) a
petition for divorce against appellant which was granted by the court on January
17, 1992 and to take effect on February 17, 1992.
On October 4, 1992, appellant Lucio Morigo married Maria Jececha Lumbago
4
at
the Virgen sa Barangay Parish, Tagbilaran City, Bohol.
On September 21, 1993, accused filed a complaint for judicial declaration of
nullity of marriage in the Regional Trial Court of Bohol, docketed as Civil Case
No. 6020. The complaint seek (sic) among others, the declaration of nullity of
accuseds marriage with Lucia, on the ground that no marriage ceremony
actually took place.
On October 19, 1993, appellant was charged with Bigamy in an Information
5
filed
by the City Prosecutor of Tagbilaran [City], with the Regional Trial Court of
Bohol.
6

The petitioner moved for suspension of the arraignment on the ground that the civil case
for judicial nullification of his marriage with Lucia posed a prejudicial question in the
bigamy case. His motion was granted, but subsequently denied upon motion for
reconsideration by the prosecution. When arraigned in the bigamy case, which was
docketed as Criminal Case No. 8688, herein petitioner pleaded not guilty to the charge.
Trial thereafter ensued.
On August 5, 1996, the RTC of Bohol handed down its judgment in Criminal Case No.
8688, as follows:
WHEREFORE, foregoing premises considered, the Court finds accused Lucio
Morigo y Cacho guilty beyond reasonable doubt of the crime of Bigamy and
sentences him to suffer the penalty of imprisonment ranging from Seven (7)
Months of Prision Correccional as minimum to Six (6) Years and One (1) Day
ofPrision Mayor as maximum.
SO ORDERED.
7

In convicting herein petitioner, the trial court discounted petitioners claim that his first
marriage to Lucia was null and void ab initio. Following Domingo v. Court of
Appeals,
8
the trial court ruled that want of a valid marriage ceremony is not a defense in
a charge of bigamy. The parties to a marriage should not be allowed to assume that their
marriage is void even if such be the fact but must first secure a judicial declaration of the
nullity of their marriage before they can be allowed to marry again.
Anent the Canadian divorce obtained by Lucia, the trial court cited Ramirez v.
Gmur,
9
which held that the court of a country in which neither of the spouses is domiciled
and in which one or both spouses may resort merely for the purpose of obtaining a
divorce, has no jurisdiction to determine the matrimonial status of the parties. As such, a
divorce granted by said court is not entitled to recognition anywhere. Debunking Lucios
defense of good faith in contracting the second marriage, the trial court stressed that
following People v. Bitdu,
10
everyone is presumed to know the law, and the fact that one
does not know that his act constitutes a violation of the law does not exempt him from
the consequences thereof.
Seasonably, petitioner filed an appeal with the Court of Appeals, docketed as CA-G.R.
CR No. 20700.
Meanwhile, on October 23, 1997, or while CA-G.R. CR No. 20700 was pending before
the appellate court, the trial court rendered a decision in Civil Case No. 6020 declaring
the marriage between Lucio and Lucia void ab initio since no marriage ceremony
actually took place. No appeal was taken from this decision, which then became final
and executory.
On October 21, 1999, the appellate court decided CA-G.R. CR No. 20700 as follows:
WHEREFORE, finding no error in the appealed decision, the same is hereby
AFFIRMED in toto.
SO ORDERED.
11

In affirming the assailed judgment of conviction, the appellate court stressed that the
subsequent declaration of nullity of Lucios marriage to Lucia in Civil Case No. 6020
could not acquit Lucio. The reason is that what is sought to be punished by Article
349
12
of the Revised Penal Code is the act of contracting a second marriage before the
first marriage had been dissolved. Hence, the CA held, the fact that the first marriage
was void from the beginning is not a valid defense in a bigamy case.
The Court of Appeals also pointed out that the divorce decree obtained by Lucia from
the Canadian court could not be accorded validity in the Philippines, pursuant to Article
15
13
of the Civil Code and given the fact that it is contrary to public policy in this
jurisdiction. Under Article 17
14
of the Civil Code, a declaration of public policy cannot be
rendered ineffectual by a judgment promulgated in a foreign jurisdiction.
Petitioner moved for reconsideration of the appellate courts decision, contending that
the doctrine in Mendiola v. People,
15
allows mistake upon a difficult question of law (such
as the effect of a foreign divorce decree) to be a basis for good faith.
On September 25, 2000, the appellate court denied the motion for lack of
merit.
16
However, the denial was by a split vote. The ponente of the appellate courts
original decision in CA-G.R. CR No. 20700, Justice Eugenio S. Labitoria, joined in the
opinion prepared by Justice Bernardo P. Abesamis. The dissent observed that as the
first marriage was validly declared void ab initio, then there was no first marriage to
speak of. Since the date of the nullity retroacts to the date of the first marriage and since
herein petitioner was, in the eyes of the law, never married, he cannot be convicted
beyond reasonable doubt of bigamy.
The present petition raises the following issues for our resolution:
A.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO
APPLY THE RULE THAT IN CRIMES PENALIZED UNDER THE REVISED
PENAL CODE, CRIMINAL INTENT IS AN INDISPENSABLE REQUISITE.
COROLLARILY, WHETHER OR NOT THE COURT OF APPEALS ERRED IN
FAILING TO APPRECIATE [THE] PETITIONERS LACK OF CRIMINAL INTENT
WHEN HE CONTRACTED THE SECOND MARRIAGE.
B.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN HOLDING THAT
THE RULING IN PEOPLE VS. BITDU (58 PHIL. 817) IS APPLICABLE TO THE
CASE AT BAR.
C.
WHETHER OR NOT THE COURT OF APPEALS ERRED IN FAILING TO
APPLY THE RULE THAT EACH AND EVERY CIRCUMSTANCE FAVORING
THE INNOCENCE OF THE ACCUSED MUST BE TAKEN INTO ACCOUNT.
17

To our mind, the primordial issue should be whether or not petitioner committed bigamy
and if so, whether his defense of good faith is valid.
The petitioner submits that he should not be faulted for relying in good faith upon the
divorce decree of the Ontario court. He highlights the fact that he contracted the second
marriage openly and publicly, which a person intent upon bigamy would not be doing.
The petitioner further argues that his lack of criminal intent is material to a conviction or
acquittal in the instant case. The crime of bigamy, just like other felonies punished under
the Revised Penal Code, is mala in se, and hence, good faith and lack of criminal intent
are allowed as a complete defense. He stresses that there is a difference between the
intent to commit the crime and the intent to perpetrate the act. Hence, it does not
necessarily follow that his intention to contract a second marriage is tantamount to an
intent to commit bigamy.
For the respondent, the Office of the Solicitor General (OSG) submits that good faith in
the instant case is a convenient but flimsy excuse. The Solicitor General relies upon our
ruling in Marbella-Bobis v. Bobis,
18
which held that bigamy can be successfully
prosecuted provided all the elements concur, stressing that under Article 40
19
of the
Family Code, a judicial declaration of nullity is a must before a party may re-marry.
Whether or not the petitioner was aware of said Article 40 is of no account as everyone
is presumed to know the law. The OSG counters that petitioners contention that he was
in good faith because he relied on the divorce decree of the Ontario court is negated by
his act of filing Civil Case No. 6020, seeking a judicial declaration of nullity of his
marriage to Lucia.
Before we delve into petitioners defense of good faith and lack of criminal intent, we
must first determine whether all the elements of bigamy are present in this case.
In Marbella-Bobis v. Bobis,
20
we laid down the elements of bigamy thus:
(1) the offender has been legally married;
(2) the first marriage has not been legally dissolved, or in case his or her spouse
is absent, the absent spouse has not been judicially declared presumptively
dead;
(3) he contracts a subsequent marriage; and
(4) the subsequent marriage would have been valid had it not been for the
existence of the first.
Applying the foregoing test to the instant case, we note that during the pendency of CA-
G.R. CR No. 20700, the RTC of Bohol Branch 1, handed down the following decision in
Civil Case No. 6020, to wit:
WHEREFORE, premises considered, judgment is hereby rendered decreeing the
annulment of the marriage entered into by petitioner Lucio Morigo and Lucia
Barrete on August 23, 1990 in Pilar, Bohol and further directing the Local Civil
Registrar of Pilar, Bohol to effect the cancellation of the marriage contract.
SO ORDERED.
21

The trial court found that there was no actual marriage ceremony performed between
Lucio and Lucia by a solemnizing officer. Instead, what transpired was a mere signing of
the marriage contract by the two, without the presence of a solemnizing officer. The trial
court thus held that the marriage is void ab initio, in accordance with Articles 3
22
and
4
23
of the Family Code. As the dissenting opinion in CA-G.R. CR No. 20700, correctly
puts it, "This simply means that there was no marriage to begin with; and that such
declaration of nullity retroacts to the date of the first marriage. In other words, for all
intents and purposes, reckoned from the date of the declaration of the first marriage as
void ab initio to the date of the celebration of the first marriage, the accused was, under
the eyes of the law, never married."
24
The records show that no appeal was taken from
the decision of the trial court in Civil Case No. 6020, hence, the decision had long
become final and executory.
The first element of bigamy as a crime requires that the accused must have been legally
married. But in this case, legally speaking, the petitioner was never married to Lucia
Barrete. Thus, there is no first marriage to speak of. Under the principle of retroactivity of
a marriage being declared void ab initio, the two were never married "from the
beginning." The contract of marriage is null; it bears no legal effect. Taking this argument
to its logical conclusion, for legal purposes, petitioner was not married to Lucia at the
time he contracted the marriage with Maria Jececha. The existence and the validity of
the first marriage being an essential element of the crime of bigamy, it is but logical that
a conviction for said offense cannot be sustained where there is no first marriage to
speak of. The petitioner, must, perforce be acquitted of the instant charge.
The present case is analogous to, but must be distinguished from Mercado v. Tan.
25
In
the latter case, the judicial declaration of nullity of the first marriage was likewise
obtained after the second marriage was already celebrated. We held therein that:
A judicial declaration of nullity of a previous marriage is necessary before a
subsequent one can be legally contracted. One who enters into a subsequent
marriage without first obtaining such judicial declaration is guilty of bigamy. This
principle applies even if the earlier union is characterized by statutes as "void."
26

It bears stressing though that in Mercado, the first marriage was actually solemnized not
just once, but twice: first before a judge where a marriage certificate was duly issued and
then again six months later before a priest in religious rites. Ostensibly, at least, the first
marriage appeared to have transpired, although later declared void ab initio.
In the instant case, however, no marriage ceremony at all was performed by a duly
authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage
contract on their own. The mere private act of signing a marriage contract bears no
semblance to a valid marriage and thus, needs no judicial declaration of nullity. Such act
alone, without more, cannot be deemed to constitute an ostensibly valid marriage for
which petitioner might be held liable for bigamy unless he first secures a judicial
declaration of nullity before he contracts a subsequent marriage.
The law abhors an injustice and the Court is mandated to liberally construe a penal
statute in favor of an accused and weigh every circumstance in favor of the presumption
of innocence to ensure that justice is done. Under the circumstances of the present
case, we held that petitioner has not committed bigamy. Further, we also find that we
need not tarry on the issue of the validity of his defense of good faith or lack of criminal
intent, which is now moot and academic.
WHEREFORE, the instant petition is GRANTED. The assailed decision, dated October
21, 1999 of the Court of Appeals in CA-G.R. CR No. 20700, as well as the resolution of
the appellate court dated September 25, 2000, denying herein petitioners motion for
reconsideration, is REVERSED and SET ASIDE. The petitioner Lucio Morigo y Cacho is
ACQUITTED from the charge of BIGAMY on the ground that his guilt has not been
proven with moral certainty.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.
DIGEST
FACTS:

Lucio Morigo and Lucia Barrete were boardmates in Bohol. They lost contacts for a
while but after receiving a card from Barrete and various exchanges of letters, they
became sweethearts. They got married in 1990. Barrete went back to Canada for work
and in 1991 she filed petition for divorce in Ontario Canada, which was granted. In
1992, Morigo married Lumbago. He subsequently filed a complaint for judicial
declaration of nullity on the ground that there was no marriage ceremony. Morigo was
then charged with bigamy and moved for a suspension of arraignment since the civil
case pending posed a prejudicial question in the bigamy case. Morigo pleaded not guilty
claiming that his marriage with Barrete was void ab initio. Petitioner contented he
contracted second marriage in good faith.

ISSUE: Whether Morigo must have filed declaration for the nullity of his marriage with
Barrete before his second marriage in order to be free from the bigamy case.

HELD:

Morigos marriage with Barrete is void ab initio considering that there was no actual
marriage ceremony performed between them by a solemnizing officer instead they just
merely signed a marriage contract. The petitioner does not need to file declaration of
the nullity of his marriage when he contracted his second marriage with Lumbago.
Hence, he did not commit bigamy and is acquitted in the case filed.


Weigel vs. Sempio-Dy (143 SCRA 449)
G.R. No. L-53703 August 19, 1986
LILIA OLIVA WIEGEL, petitioner,
vs.
THE HONORABLE ALICIA V. SEMPIO-DIY (as presiding judge of the Juvenile and
Domestic Relations Court of Caloocan City) and KARL HEINZ
WIEGEL, respondents.
Dapucanta, Dulay & Associates for petitioner.
Siguion Reyna, Montecillo and Ongsiako Law Office for private respondent.

PARAS, J .:
In an action (Family Case No. 483) filed before the erstwhile Juvenile and Domestic
Relations Court of Caloocan City, herein respondent Karl Heinz Wiegel (plaintiff therein)
asked for the declaration of Nullity of his marriage (celebrated on July, 1978 at the Holy
Catholic Apostolic Christian Church Branch in Makati, Metro Manila) with herein
petitioner Lilia Oliva Wiegel (Lilia, for short, and defendant therein) on the ground of
Lilia's previous existing marriage to one Eduardo A. Maxion, the ceremony having been
performed on June 25, 1972 at our Lady of Lourdes Church in Quezon City. Lilia, while
admitting the existence of said prior subsisting marriage claimed that said marriage was
null and void, she and the first husband Eduardo A. Maxion having been allegedly forced
to enter said marital union. In the pre-trial that ensued, the issue agreed upon by both
parties was the status of the first marriage (assuming the presence of force exerted
against both parties): was said prior marriage void or was it merely voidable? Contesting
the validity of the pre-trial order, Lilia asked the respondent court for an opportunity to
present evidence-
(1) that the first marriage was vitiated by force exercised upon both her and the first
husband; and
(2) that the first husband was at the time of the marriage in 1972 already married
to someone else.
Respondent judge ruled against the presentation of evidence because the existence of
force exerted on both parties of the first marriage had already been agreed upon. Hence,
the present petition for certiorari assailing the following Orders of therespondent Judge-
(1) the Order dated March 17, 1980 in which the parties were compelled to submit the
case for resolution based on "agreed facts;" and
(2) the Order dated April 14, 1980, denying petitioner's motion to allow her to present
evidence in her favor.
We find the petition devoid of merit.
There is no need for petitioner to prove that her first marriage was vitiated by force
committed against both parties because assuming this to be so, the marriage will not be
void but merely viodable (Art. 85, Civil Code), and therefore valid until annulled. Since no
annulment has yet been made, it is clear that when she married respondent she was still
validly married to her first husband, consequently, her marriage to respondent is VOID
(Art. 80, Civil Code).
There is likewise no need of introducing evidence about the existing prior marriage of
her first husband at the time they married each other, for then such a marriage though
void still needs according to this Court a judicial declaration
1
of such fact and for all legal
intents and purposes she would still be regarded as a married woman at the time she
contracted her marriage with respondent Karl Heinz Wiegel); accordingly, the marriage
of petitioner and respondent would be regarded VOID under the law.
WHEREFORE, this petition is hereby DISMISSED, for lack of merit, and the Orders
complained of are hereby AFFIRMED. Costs against petitioner.
SO ORDERED.
Feria (Chairman), Fernan Alampay and Gutierrez, Jr., JJ., concur.

DIGEST
FACTS:

Karl Wiegel was married to Lilia Wiegel on July 1978. Lilia was married with a certain
Eduardo Maxion in 1972. Karl then filed a petition in the Juvenile and Domestic
Relations Court for the declaration of nullity of his marriage with Lilia on the ground of
latters former marriage. Having been allegedly force to enter into a marital union, she
contents that the first marriage is null and void. Lilia likewise alleged that Karl was
married to another woman before their marriage.

ISSUE: Whether Karls marriage with Lilia is void.

HELD:

It was not necessary for Lilia to prove that her first marriage was vitiated with force
because it will not be void but merely voidable. Such marriage is valid until annulled.
Since no annulment has yet been made, it is clear that when she married Karl, she is still
validly married to her first husband. Consequently, her marriage to Karl is void.
Likewise, there is no need of introducing evidence on the prior marriage of Karl for then
such marriage though void still needs a judicial declaration before he can remarry.
Accordingly, Karl and Lilias marriage are regarded void under the law.

Terre vs. Terre (211 SCRA 6)
A.M. No. 2349 July 3, 1992
DOROTHY B. TERRE, complainant,
vs.
ATTY. JORDAN TERRE, respondent.

PER CURIAM:
In a sworn complaint filed with this Court on 24 December 1981, complainant Dorothy B.
Terre charged respondent Jordan Terre, a member of the Philippine Bar with "grossly
immoral conduct," consisting of contracting a second marriage and living with another
woman other than complainant, while his prior marriage with complainant remained
subsisting.
The Court resolved to require respondent to answer the complaint.
1
Respondent
successfully evaded five (5) attempts to serve a copy of the Court's Resolution and of
the complaint by moving from one place to another, such that he could not be found nor
reached in his alleged place of employment or residence.
2
On 24 April 1985, that is after
three (3) years and a half, with still no answer from the respondent, the Court noted
respondent's success in evading service of the complaint and the Court's Resolution and
thereupon resolved to "suspend respondent Atty. Jordan Terre from the practice of law
until after he appears and/or files his answer to the complaint against him" in the instant
case.
3

On 28 September 1985, respondent finally filed an Answer with a Motion to Set Aside
and/or Lift Suspension Order. In his Answer, Atty. Terre averred that he had contracted
marriage with complainant Dorothy Terre on 14 June 1977 upon her representation that
she was single; that he subsequently learned that Dorothy was married to a certain
Merlito A. Bercenilla sometime in 1968; that when he confronted Dorothy about her prior
marriage, Dorothy drove him out of their conjugal residence; that Dorothy had mockingly
told him of her private meetings with Merlito A. Bercenilla and that the child she was then
carrying (i.e., Jason Terre) was the son of Bercenilla; that believing in good faith that his
marriage to complainant was null and void ab initio, he contracted marriage with Helina
Malicdem at Dasol, Pangasinan.
4

In her Reply, complainant Dorothy denied that Jason Terre was the child of Merlito A.
Bercenilla and insisted that Jason was the child of respondent Jordan Terre, as
evidenced by Jason's Birth Certificate and physical resemblance to respondent. Dorothy
further explained that while she had given birth to Jason Terre at the PAFGH registered
as a dependent of Merlito Bercenilla, she had done so out of extreme necessity and to
avoid risk of death or injury to the fetus which happened to be in a difficult breech
position. According to Dorothy, she had then already been abandoned by respondent
Jordan Terre, leaving her penniless and without means to pay for the medical and
hospital bills arising by reason of her pregnancy.
The Court denied respondent's Motion to Set Aside or Lift the Suspension Order and
instead referred; by a Resolution dated 6 January 1986, the complaint to the Office of
the Solicitor General for investigation, report and recommendation.
5

Then Solicitor Pio C. Guerrero was appointed investigator by the Office of the Solicitor
General. He set the case for hearing on 7 July 1986 with notice to both parties. On 7
July 1986, complainant Dorothy appeared and presented her evidence ex parte, since
respondent did not so appear.
6
The Investigating Solicitor scheduled and held another
hearing on 19 August 1986, where he put clarificatory questions to the complainant;
respondent once again did not appear despite notice to do so. Complainant finally
offered her evidence and rested her case. The Solicitor set still another hearing for 2
October 1986, notifying respondent to present his evidence with a warning that should
he fail once more to appear, the case would be deemed submitted for resolution.
Respondent did not appear on 2 October 1986. The Investigating Solicitor accordingly
considered respondent to have waived his right to present evidence and declared the
case submitted for resolution. The parties were given time to submit their respective
memoranda. Complainant Dorothy did so on 8 December 1986. Respondent Terre did
not file his memorandum.
On 26 February 1990, the Office of the Solicitor General submitted its "Report and
Recommendation" to this Court. The Report summarized the testimony of the
complainant in the following manner:
Complainant Dorothy Terre took the witness stand and testified
substantially as follows: she and respondent met for the first time in 1979
as fourth year high school classmates in Cadiz City High School (tsn, July
7, 1986, p. 9); she was then married to Merlito Bercenilla, while
respondent was single (id.); respondent was aware of her marital status
(ibid, p. 14); it was then that respondent started courting her but nothing
happened of the courtship (ibid, p. 10); they [complainant and
respondent] moved to Manila were they respectively pursued their
education, respondent as a law student at the Lyceum University (tsn,
July 7, 1986, p. 12, 15-16); respondent continued courting her, this time
with more persistence (ibid, p. 11); she decided nothing would come of it
since she was married but he [respondent] explained to her that their
marriage was void ab initio since she and her first husband were first
cousins (ibid, p. 12); convinced by his explanation and having secured
favorable advice from her mother and
ex-in-laws, she agreed to marry him [respondent] (ibid, 12-13, 16); in their
marriage license, despite her [complainant's] objection, he [respondent]
wrote "single" as her status explaining that since her marriage was
void ab initio, there was no need to go to court to declare it as such (ibid,
14-15); they were married before Judge Priscilla Mijares of the City Court
of Manila on June 14, 1977 (Exhibit A; tsn, July 7, 1986, pp. 16-17);
Jason Terre was born of their union on June 25, 1981 (Exhibit B, tsn, July
7, 1986, p. 18); all through their married state up to the time he
[respondent] disappeared in 1981, complainant supported respondent, in
addition to the allowance the latter was getting from his parents (ibid, pp.
19-20); she was unaware of the reason for his disappearance until she
found out later that respondent married a certain Vilma [sic] Malicdem
(Exhibit C, tsn, July 7, 1986, pp. 21-22); she then filed a case for
abandonment of minor with the City Fiscal of Pasay City (ibid, p. 23)
which was subsequently filed before Branch II of the City Court of Pasay
City as Criminal Case No. 816159 (Exhibit D; tsn, July 7, 1986, p. 24);
she likewise filed a case for bigamy against respondent and Helina
Malicdem with the office of the Provincial Fiscal of Pangasinan, where
a prima facie case was found to exist (Exhibit E; tsn, July 7, pp. 25-26);
additionally, complainant filed an administrative case against respondent
with the Commission on Audit where he was employed, which case
however was considered closed for being moot and academic when
respondent was considered automatically separated from the service for
having gone on absence without official leave (Exhibit F; tsn, July 7,
1986, pp. 28-29).
7

There is no dispute over the fact that complainant Dorothy Terre and respondent Jordan
Terre contracted marriage on 14 July 1977 before Judge Priscilla Mijares. There is
further no dispute over the fact that on 3 May 1981, respondent Jordan Terre married
Helina Malicdem in Dasol, Pangasinan. When the second marriage was entered into,
respondent's prior marriage with complainant was subsisting, no judicial action having
been initiated or any judicial declaration obtained as to the nullity of such prior marriage
of respondent with complainant.
Respondent Jordan Terre sought to defend himself by claiming that he had believed in
good faith that his prior marriage with complainant Dorothy Terre was null and void ab
initio and that no action for a judicial declaration of nullity was necessary.
The Court considers this claim on the part of respondent Jordan Terre as a spurious
defense. In the first place, respondent has not rebutted complainant's evidence as to the
basic facts which underscores the bad faith of respondent Terre. In the second place,
that pretended defense is the same argument by which he had inveigled complainant
into believing that her prior marriage to Merlito A. Bercenilla being incestuous and
void ab initio (Dorothy and Merlito being allegedly first cousins to each other), she was
free to contract a second marriage with the respondent. Respondent Jordan Terre, being
a lawyer, knew or should have known that such an argument ran counter to the
prevailing case law of this Court which holds that for purposes of determining whether a
person is legally free to contract a second marriage, a judicial declaration that the first
marriage was null and void ab initio is essential. 8 Even if we were to
assume, arguendo merely, that Jordan Terre held that mistaken belief in good faith, the
same result will follow. For if we are to hold Jordan Terre to his own argument, his first
marriage to complainant Dorothy Terre must be deemed valid, with the result that his
second marriage to Helina Malicdem must be regarded as bigamous and criminal in
character.
That the moral character of respondent Jordan Terre was deeply flawed is shown by
other circumstances. As noted, he convinced the complainant that her prior marriage to
Bercenilla was null and void ab initio, that she was still legally single and free to marry
him. When complainant and respondent had contracted their marriage, respondent went
through law school while being supported by complainant, with some assistance from
respondent's parents. After respondent had finished his law course and gotten
complainant pregnant, respondent abandoned the complainant without support and
without the wherewithal for delivering his own child safely in a hospital.
Thus, we agree with the Solicitor General that respondent Jordan Terre, by his actions,
"eloquently displayed, not only his unfitness to remain as a member of the Bar, but
likewise his inadequacy to uphold the purpose and responsibility of his gender" because
marriage is a basic social institution.
9

In Pomperada v. Jochico,
10
the Court, in rejecting a petition to be allowed to take the
oath as a member of the Bar and to sign the Roll of Attorneys, said through Mme.
Justice Melencio-Herrera:
It is evident that respondent fails to meet the standard of moral fitness for
membership in the legal profession. Whether the marriage was a joke as
respondent claims, or a trick played on her as claimed by complainant, it
does not speak well of respondent's moral values. Respondent had made
a mockery of marriage, a basic social institution which public policy
cherishes and protects (Article 216, Civil Code).
11

In Bolivar v. Simbol,
12
the Court found the respondent there guilty of "grossly immoral
conduct" because he made a dupe of complainant, living on her bounty and allowing her
to spend for his schooling and other personal necessities while dangling before her the
mirage of a marriage, marrying another girl as soon as he had finished his studies,
keeping his marriage a secret while continuing to demand money from complainant. . . .
." The Court held such acts "indicative of a character not worthy of a member of the
Bar."
13

We believe and so hold that the conduct of respondent Jordan Terre in inveigling
complainant Dorothy Terre to contract a second marriage with him; in abandoning
complainant Dorothy Terre after she had cared for him and supported him through law
school, leaving her without means for the safe delivery of his own child; in contracting a
second marriage with Helina Malicdem while his first marriage with complainant Dorothy
Terre was subsisting, constituted "grossly immoral conduct" under Section 27 of Rule
138 of the Rules of Court, affording more than sufficient basis for disbarment of
respondent Jordan Terre. He was unworthy of admission to the Bar in the first place.
The Court will correct this error forthwith.
WHEREFORE, the Court Resolved to DISBAR respondent Jordan Terre and to STRIKE
OUT his name from the Roll of Attorneys. A copy of this decision shall be spread on the
personal record of respondent Jordan Terre in the Bar Confidant's Office. A copy of this
resolution shall also be furnished to the Integrated Bar of the Philippines and shall be
circularized to all the courts of the land.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Grio-Aquino,
Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.
DIGEST
FACTS:

Dorothy Terre was then married to a certain Merlito Bercenillo, her first cousin. Atty.
Jordan Terre successfully convinced Dorothy that her marriage was void ab initio for the
reason of public policy and that they are free to contract marriage. They got married in
1977 where he wrote single under Dorothys status. After getting Dorothy pregnant,
Atty. Terre abandoned them and subsequently contracted another marriage to Helina
Malicdem in 1986. Atty. Terre was charged with abandonment of minor and bigamy.

ISSUE: Whether or not Atty. Terres marriage with Dorothy is null and void.

HELD:

Dorothys first marriage is indeed void ab initio considering that Merlito is her first cousin
thereby against public policy. However, she did not file any declaration for the nullity of
their marriage before she contracted her marriage with Atty. Terre thus, her second
marriage is void. Article 40 states that the absolute nullity of a former marriage may be
invoked for the purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void.

Valdes vs. RTC (260 SCRA 221)
ANTONIO A. S. VALDEZ, petitioner,
vs.
REGIONAL TRIAL COURT, BRANCH 102, QUEZON CITY, and CONSUELO M.
GOMEZ-VALDEZ, respondents.

VITUG, J .:p
The petition for new bewails, purely on the question of law, an alleged error committed
by the Regional Trial Court in Civil Case No. Q-92-12539. Petitioner avers that the
court a quo has failed to apply the correct law that should govern the disposition of a
family dwelling in a situation where a marriage is declared void ab initio because of
psychological incapacity on the part of either or both parties in the contract.
The pertinent facts giving rise to this incident are, by large, not in dispute.
Antonio Valdez and Consuelo Gomez were married on 05 January 1971. Begotten
during the marriage were five children. In a petition, dated 22 June 1992, Valdez sought
the declaration of nullity of the marriage pursuant to Article 36 of the Family code
(docketed Civil Case No. Q-92-12539, Regional Trial Court of Quezon City, Branch 102).
After the hearing the parties following the joinder of issues, the trial court,
1
in its decision
of 29 July 1994, granted the petition, viz:
WHEREFORE, judgment is hereby rendered as follows:
(1) The marriage of petitioner Antonio Valdez and respondent Consuelo Gomez-
Valdez is hereby declared null and void under Article 36 of the Family Code on
the ground of their mutual psychological incapacity to comply with their essential
marital obligations;
(2) The three older children, Carlos Enrique III, Antonio Quintin and Angela
Rosario shall choose which parent they would want to stay with.
Stella Eloisa and Joaquin Pedro shall be placed in the custody of their mother,
herein respondent Consuelo Gomez-Valdes.
The petitioner and respondent shall have visitation rights over the children who
are in the custody of the other.
(3) The petitioner and the respondent are directed to start proceedings on the
liquidation of their common properties as defined by Article 147 of the Family
Code, and to comply with the provisions of Articles 50, 51, and 52 of the same
code, within thirty (30) days from notice of this decision.
Let a copy of this decision be furnished the Local Civil Registrar of Mandaluyong,
Metro Manila, for proper recording in the registry of marriages.
2
(Emphasis ours.)
Consuelo Gomez sought a clarification of that portion of the decision directing
compliance with Articles 50, 51 and 52 of the Family Code. She asserted that the Family
Code contained no provisions on the procedure for the liquidation of common property in
"unions without marriage." Parenthetically, during the hearing of the motion, the children
filed a joint affidavit expressing their desire to remain with their father, Antonio Valdez,
herein petitioner.
In an order, dated 05 May 1995, the trial court made the following clarification:
Consequently, considering that Article 147 of the Family Code explicitly provides
that the property acquired by both parties during their union, in the absence of
proof to the contrary, are presumed to have been obtained through the joint
efforts of the parties and will be owned by them in equal shares, plaintiff and
defendant will own their "family home" and all their properties for that matter in
equal shares.
In the liquidation and partition of properties owned in common by the plaintiff and
defendant, the provisions on ownership found in the Civil Code shall
apply.
3
(Emphasis supplied.)
In addressing specifically the issue regarding the disposition of the family dwelling, the
trial court said:
Considering that this Court has already declared the marriage between petitioner
and respondent as null and void ab initio, pursuant to Art. 147, the property
regime of petitioner and respondent shall be governed by the rules on ownership.
The provisions of Articles 102 and 129 of the Family Code finds no application
since Article 102 refers to the procedure for the liquidation of the conjugal
partnership property and Article 129 refers to the procedure for the liquidation of
the absolute community of property.
4

Petitioner moved for a reconsideration of the order. The motion was denied on 30
October 1995.
In his recourse to this Court, petitioner submits that Articles 50, 51 and 52 of the Family
Code should be held controlling: he argues that:
I
Article 147 of the Family Code does not apply to cases where the parties are
psychologically incapacitated.
II
Articles 50, 51 and 52 in relation to Articles 102 and 129 of the Family Code
govern the disposition of the family dwelling in cases where a marriage is
declared void ab initio, including a marriage declared void by reason of the
psychological incapacity of the spouses.
III
Assuming arguendo that Article 147 applies to marriages declared void ab
initio on the ground of the psychological incapacity of a spouse, the same may be
read consistently with Article 129.
IV
It is necessary to determine the parent with whom majority of the children wish to
stay.
5

The trial court correctly applied the law. In a void marriage, regardless of the cause
thereof, the property relations of the parties during the period of cohabitation is governed
by the provisions of Article 147 or Article 148, such as the case may be, of the Family
Code. Article 147 is a remake of Article 144 of the Civil Code as interpreted and so
applied in previous cases;
6
it provides:
Art. 147. When a man and a woman who are capacitated to marry each other,
live exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage, their wages and salaries shall be owned by
them in equal shares and the property acquired by both of them through their
work or industry shall be governed by the rules on co-ownership.
In the absence of proof to the contrary, properties acquired while they lived
together shall be presumed to have been obtained by their joint efforts, work or
industry, and shall be owned by them in equal shares. For purposes of this
Article, a party who did not participate in the acquisition by the other party of any
property shall be deemed to have contributed jointly in the acquisition thereof in
the former's efforts consisted in the care and maintenance of the family and of
the household.
Neither party can encumber or dispose by acts inter vivos of his or her share in
the property acquired during cohabitation and owned in common, without the
consent of the other, until after the termination of their cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the
party in bad faith in the ownership shall be forfeited in favor of their common
children. In case of default of or waiver by any or all of the common children or
their descendants, each vacant share shall belong to the innocent party. In all
cases, the forfeiture shall take place upon the termination of the cohabitation.
This particular kind of co-ownership applies when a man and a woman, suffering no
illegal impediment to marry each other, so exclusively live together as husband and wife
under a void marriage or without the benefit of marriage. The term "capacitated" in the
provision (in the first paragraph of the law) refers to the legal capacity of a party to
contract marriage, i.e., any "male or female of the age of eighteen years or upwards not
under any of the impediments mentioned in Articles 37 and 38"
7
of the Code.
Under this property regime, property acquired by both spouses through their work and
industry shall be governed by the rules on equal co-ownership. Any property acquired
during the union is prima facie presumed to have been obtained through their joint
efforts. A party who did not participate in the acquisition of the property shall be
considered as having contributed thereto jointly if said party's "efforts consisted in the
care and maintenance of the family household."
8
Unlike the conjugal partnership of
gains, the fruits of the couple's separate property are not included in the co-ownership.
Article 147 of the Family Code, in the substance and to the above extent, has clarified
Article 144 of the Civil Code; in addition, the law now expressly provides that
(a) Neither party can dispose or encumber by act intervivos his or her share in co-
ownership property, without consent of the other, during the period of cohabitation; and
(b) In the case of a void marriage, any party in bad faith shall forfeit his or her share in
the co-ownership in favor of their common children; in default thereof or waiver by any or
all of the common children, each vacant share shall belong to the respective surviving
descendants, or still in default thereof, to the innocent party. The forfeiture shall take
place upon the termination of the cohabitation
9
or declaration of nullity of the
marriage.
10

When the common-law spouses suffer from a legal impediment to marry or when they
do not live exclusively with each other (as husband and wife), only the property acquired
by both of them through their actual joint contribution of money, property or industry shall
be owned in common and in proportion to their respective contributions. Such
contributions and corresponding shares, however, are prima facie presumed to be equal.
The share of any party who is married to another shall accrue to the absolute community
or conjugal partnership, as the case may be, if so existing under a valid marriage. If the
party who has acted in bad faith is not validly married to another, his or her share shall
be forfeited in the manner already heretofore expressed.
11

In deciding to take further cognizance of the issue on the settlement of the parties'
common property, the trial court acted neither imprudently nor precipitately; a court
which has jurisdiction to declare the marriage a nullity must be deemed likewise clothed
in authority to resolve incidental and consequential matters. Nor did it commit a
reversible error in ruling that petitioner and private respondent own the "family home"
and all their common property in equal shares, as well as in concluding that, in the
liquidation and partition of the property owned in common by them, the provisions on co-
ownership under the Civil Code, not Articles 50, 51 and 52, in relation to Articles 102 and
129,
12
of the Family Code, should aptly prevail. The rules set up to govern the
liquidation of either the absolute community or the conjugal partnership of gains, the
property regimes recognized for valid and voidable marriages (in the latter case until the
contract is annulled), are irrelevant to the liquidation of the co-ownership that exists
between common-law spouses. The first paragraph of Articles 50 of the Family Code,
applying paragraphs (2), (3), (4) and 95) of Article 43,
13
relates only, by its explicit
terms, to voidable marriages and, exceptionally, to void marriages under Article 40
14
of
the Code, i.e., the declaration of nullity of a subsequent marriage contracted by a spouse
of a prior void marriage before the latter is judicially declared void. The latter is a special
rule that somehow recognizes the philosophy and an old doctrine that void marriages
are inexistent from the very beginning and no judicial decree is necessary to establish
their nullity. In now requiring for purposes of remarriage, the declaration of nullity by final
judgment of the previously contracted void marriage, the present law aims to do away
with any continuing uncertainty on the status of the second marriage. It is not then
illogical for the provisions of Article 43, in relation to Articles 41
15
and 42,
16
of the Family
Code, on the effects of the termination of a subsequent marriage contracted during the
subsistence of a previous marriage to be made applicablepro hac vice. In all other
cases, it is not to be assumed that the law has also meant to have coincident property
relations, on the one hand, between spouses in valid and voidable marriages (before
annulment) and, on the other, between common-law spouses or spouses of void
marriages, leaving to ordain, on the latter case, the ordinary rules on co-ownership
subject to the provisions of the Family Code on the "family home," i.e., the provisions
found in Title V, Chapter 2, of the Family Code, remain in force and effect regardless of
the property regime of the spouses.
WHEREFORE, the questioned orders, dated 05 May 1995 and 30 October 1995, of the
trial court are AFFIRMED. No costs.
Padilla, Kapunan and Hermosisima, Jr., JJ., concur.
Bellosillo, J., is on leave.
Footnotes
1 Hon. Perlita Tria Tirona, presiding.
2 Rollo, p. 22.
3 Rollo, p. 42.
4 Rollo, pp. 38-39.
5 Rollo, pp. 24-25.
6 See Margaret Maxey vs Court of Appeals, 129 SCRA 187; Aznar, et al.vs.
Garcia, et al., 102 Phil. 1055.
7 Art. 5. Any male or female of the age of eighteen years or upwards not under
any of the impediments mentioned in Articles 37 and 38, may contract marriage.
Art. 37. Marriages between the following are Incestuous and void from the
beginning, whether the relationship between the parties be legitimate or
illegitimate:
(1) Between ascendants and descendants of any degree; and
(2) Between brothers and sisters, whether of the full-or half-blood.
Art. 38. The following marriages shall be void from the beginning for
reasons of public policy:
(1) Between collateral blood relatives; whether legitimate or
illegitimate, up to the fourth civil degree;
(2) Between step-parents and stepchildren;
(3) Between parents-in-law and children-in-law;
(4) Between adopting parent and the adopted child;
(5) Between the surviving spouse of the adopting parent and the
adopted child;
(6) Between the surviving spouse of the adopted child and the
adopter;
(7) Between an adopted child and a legitimate child of the adopter;
(8) Between adopted children of the same adopter; and
(9) Between parties where one, with the intention to marry the
other, killed that other person's spouse or his or her own spouse.
8 Article 147, Family Code.
9 Article 147, Family Code.
10 Articles 43, 50 and 51, Family Code.
11 Article 148, Family Code.
12 Art. 50. The effects provided for in paragraphs (2), (3), (4) and (5) of
Article 43 and in Article 44 shall also apply in proper cases to marriages
which are declared void ab initio or annulled by final judgment under
Articles 40 and 45.
The final judgment in such cases shall provide for the liquidation, partition
and distribution of the propitious of the spouses, the custody and support
of the common children. and the delivery of their presumptive legitimes,
unless such matters had been adjudicated in the previous judicial
proceedings.
All creditors of the spouses as well as of the absolute community or the
conjugal partnership shall be notified of the proceedings for liquidation.
In the partition, the conjugal dwelling and the lot on which it is situated,
shall be adjudicated in accordance with the provisions of Articles 102 and
129.
Art 51. In said partition, the value of the presumptive legitimes of all
common children, computed as of the date of the final judgment of the
trial court, shall be delivered In cash, property or sound securities, unless
the parties, by mutual agreement judicially approved, had already
provided for such matters.
The children of their guardian, or the trustee of their property, may ask for the
enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed shall in no way
prejudice the ultimate successional rights of the children accruing upon the death
of either or both of the parents; but the value of the properties already received
under the decree of annulment or absolute nullity shall be considered as
advances on their legitime.
Art. 52. The judgment of annulment or of absolute nullity of the marriage, the
partition and distribution of the properties of the spouses, and the delivery of the
children's presumptive legitimes shall be recorded in the appropriate civil registry
and registries of property; otherwise, the same shall not affect the third persons.
Art. 102. Upon dissolution of the absolute community regime, the following
procedure shall apply:
(1) An inventory shall be prepared; listing separately all the
properties of the absolute community and the exclusive properties
of each spouse.
(2) The debts and obligations of the absolute community shall be
paid out of its assets. In case of insufficiency of the said assets,
the spouses shall be solidarily liable for the unpaid balance with
their separate properties in accordance with the provisions of the
second paragraph of Article 94.
(3) Whatever remains of the exclusive properties of the spouses
shall be thereafter be delivered to each of them.
(4) The net remainder of the properties of the absolute community
shall constitute its net assets, which shall be divided equally
between husband and wife, unless a different proportion or
division was agreed upon in the marriage settlements, or unless
there has been a voluntary waiver of such shares provided in this
Code. For purposes of computing the net profits subject to
forfeiture in accordance with Articles 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.
(5) The Presumptive legitimes of the common children shall be
delivered upon partition, in accordance with Article 51.
(6) Unless otherwise agreed upon the parties, in the partition of
the properties, the conjugal dwelling and the lot on which it is
situated shall be adjudicated the the spouse with whom the
majority of the common children choose to remain. Children below
the age of seven years are deemed to have chosen the mother,
unless the court has decided otherwise. In case there is no such
majority, the court shall decide, taking into consideration the best
interests of the said children.
Art. 129. Upon the dissolution of the conjugal partnership regime, the following
procedure shall apply:
(1) An inventory shall be prepared, listing separately all the
properties of the conjugal partnership and the exclusive properties
of each spouse.
(2) Amounts advanced by the conjugal partnership in payment of
personal debts and obligations of either spouse shall be credited
to the conjugal partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use of his or her
exclusive funds in the acquisition of property or for the value of his
or her exclusive property, the ownership of which has been vested
by law in the conjugal partnership.
(4) The debts and obligations of the conjugal partnership shall be
paid out of the conjugal assets. In the case of insufficiency of the
said assets, the spouses shall be solidarily liable for the unpaid
balance with their separate properties , in accordance with the
provisions of paragraph (2) of Article 121.
(5) Whatever remains of the exclusive properties of the spouses
shall thereafter be delivered to each of them.
(6) Unless the owner has been indemnified from whatever source,
the loss or deterioration of movables used for the benefit of the
family, belonging to either spouse, even due to fortuitous event,
shall be paid to said spouse from the conjugal funds, if any.
(7) The net remainder of the conjugal partnership properties shall
constitute the profits, which shall be divided equally between
husband and wife, unless a different proportion or division was
agreed upon in the marriage settlements or unless there has been
a voluntary waiver or forfeiture of such share as provided in this
Code.
(8) The presumptive legitimes of the common children shall be
delivered upon partition in accordance with Article 51.
(9) In the partition of the properties, the conjugal dwelling and the
lot on which it is situated shall, unless otherwise agreed upon by
the parties, be adjudicated to the spouse with whom the majority
of the common children choose to remain. Children below the age
of seven years are deemed to have chosen the mother, unless the
court has decided otherwise. In case there is no such majority, the
court shall decide, taking into consideration the best interests of
the said children.
13 Art 43. The termination of the subsequent marriage referred to in the
preceding Article shall produce the following effects:
(1) The children of subsequent marriage concieved prior to its
termination shall be considered legitimate, and their custody and
support in case of dispute shall be decided by the court in a
proper proceeding;
(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
incorrect spouse.
(3) Donations by reasons of marriage shall remain valid, except
that if the donee contracted the marriage in bad faith, such
donations made to said donee are revoked by operation of law;
(4) The innocent spouse my revoke the designation of the other
spouse who acted as a beneficiary in any insurance policy, even if
such designation be stipulated as irrevocable; and
(5) The spouse who contracted the subsequent marriage in bad
faith shall be disqualified in inherit from the innocent spouse by
testate and intestate succession.
14 Art. 40. The absolute nullity of a previous marriage may be invoked for
purposes of remarriage on the basis solely of a final judgment declaring such
previous marriage void.
15 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-rounded 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 Article 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 or reappearance of the absent spouse.
16 Art. 42. The subsequent marriage referred to in the preceding Article shall be
automatically terminated by the recording of the affidavit of reappearance of the
absent spouse, unless there is 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 the due notice to the
spouses of the subsequent marriage and without prejudice to the fact of
reappearance being judicially determined in such case such fact is disputed.
DIGEST
FACTS:

Antonio Valdez and Consuelo Gomez were married in 1971 and begotten 5 children.
Valdez filed a petition in 1992 for a declaration of nullity of their marriage pursuant to
Article 36 of the Family Code, which was granted hence, marriage is null and void on the
ground of their mutual psychological incapacity. Stella and Joaquin are placed under the
custody of their mother while the other 3 siblings are free to choose which they prefer.

Gomez sought a clarification of that portion in the decision regarding the procedure for
the liquidation of common property in unions without marriage. During the hearing on
the motion, the children filed a joint affidavit expressing desire to stay with their father.

ISSUE: Whether or not the property regime should be based on co-ownership.

HELD:

The Supreme Court ruled that in a void marriage, regardless of the cause thereof, the
property relations of the parties are governed by the rules on co-ownership. Any
property acquired during the union is prima facie presumed to have been obtained
through their joint efforts. A party who did not participate in the acquisition of the
property shall be considered as having contributed thereto jointly if said partys efforts
consisted in the care and maintenance of the family.

People vs. Aragon (100 Phil 1033)
Republic of the Philippines
SUPREME COURT
Manila

EN BANC

February 28, 1957

G.R. No. L-10016
THE PEOPLE OF THE PHILIPPINES, plaintiff-appelle,
vs.
PROCESO S. ARAGON, defendant-appellant.

Office of the Solicitor General Ambrosio Padilla and Solicitor Adolfo Brillantes for
appellee.
Prospero V. Manuel, Fernando Moncada and Antonio Abad Tornis for defendant and
appellant.

LABRADOR, J.:

Appeal from a judgment of the Court of First Instance of Cebu finding appellant guilty of
bigamy. The facts are not disputed and, as found by the trial court, are as follows:

On September 28, 1925, the accused, under the name of Proceso Rosima, contracted
marriage with a certain Maria Gorrea in the Philippine Independent Church in Cebu
(Exhibits "1" and "1-A"). While his marriage with Maria Gorrea was subsisting, the
accused under the name of Proceso Aragon, contracted a canonical marriage with Maria
Faicol on August 27, 1934, in the Santa Teresita Church in Iloilo City.

The sponsors of the accused and Maria Faicol were Eulogio Giroy, who was then an
employee of the Office of the Municipal Treasurer of Iloilo, and a certain Emilio Tomesa,
a clerk in the said office (Exhibit "A" and testimonies of Eulogio Giroy and complainant
Maria Faicol). After the said marriage, the accused and Maria Faicol established
residence in Iloilo. As the accused was then a traveling salesman, he commuted
between Iloilo where he maintained Maria Faicol, and Cebu where he maintained his
first wife, Maria Gorrea died in Cebu City on August 5, 1939 (Exhibit "2"). After Maria
Gorrea's death, and seeing that the coast was dear in Cebu, the accused brought Maria
Faicol to Cebu City in 1940, where she worked as a teacher-nurse.

It would seem that the accused and Maria Faicol did not live a happy marital life in Cebu,
for it appears that in 1949 and 1950, Maria Faicol suffered injuries to her eyes because
of physical maltreatment in the hands of the accused. On January 22, 1953, the accused
sent Maria Faicol to Iloilo, allegedly for the purpose of undergoing treatment of her
eyesight. During her absence, the accused contracted a third marriage with a certain
Jesusa C. Maglasang on October 3, 1953, in Sibonga, Cebu. (See Exhibits "C", "D", "E"
and "F")

The accused admitted having contracted marriage with Jesusa C. Maglasangin Sibonga,
Cebu, on October 3, 1953, Although the accused made an attempt to deny his previous
marriage with Maria Faicol, the Court, however, believes that the attempt is futile for the
fact of the said second marriage was fully established not only by the certificate of the
said marriage, but also by the testimony of Maria Faicol and of Eulogio Giroy, one of the
sponsors of the wedding, and the identification of the accused made by Maria Faicol.
(See Exhibits "A" and "B"; t.s.n. pp. 32-33, 40, 41, hearing of April 27, 1954).

The Court of First Instance of Cebu held that even in the absence of an express
provision in Act No. 3613 authorizing the filing of an action for judicial declaration of
nullity of a marriage void ab initio, defendant could not legally contract marriage with
Jesusa C. Maglasang without the dissolution of his marriage to Maria Faicol, either by
the death of the latter or by the judicial declaration of the nullity of such marriage, at the
instance of the latter. Authorities given for this ruling are 5 Viada, 5th edition, 651; 35
American Jurisprudence, Marriage, Sec. 46, p. 212; Bickford vs. Bickford, 74 N. H. 466,
69 A. 579.

Appellant in this Court relies on the case of People vs. Mendoza, (95 Phil., 845; 50 Off.
Gaz., [10] 4767). In this case the majority of this Court declared:

The statutory provision (section 29 of the Marriage Law or Act No. 3613) plainly makes a
subsequent marriage contracted by any person during the lifetime of his first spouse
illegal and void from its performance, and no judicial decree is necessary to establish its
invalidity, as distinguished from mere annullable marriages. There is here no pretense
that appellant's second marriage with Olga Lema was contracted in the belief that the
first spouse, Jovita de Asis, had been absent for seven consecutive years or generally
considered as dead, so as to render said marriage valid until declared null and void by a
subsequent court.

We are of the very weighty reasons by Justice Alex Reyes in the dissent in the case
above-quoted But this weighty reasons notwithstanding, the very fundamental principle
of strict construction of penal laws in favor of the accused, which principle we may not
ignore, seems to justify our stand in the above-cited case of People vs. Mendoza. Our
Revised Penal Code is of recent enactment and had the rule enunciated in Spain and in
America requiring judicial declaration of nullity of ab initio void marriages been within the
contemplation of the legislature, an express provision to that effect would or should have
been inserted in the law. In its absence, we are bound by said rule of strict interpretation
already adverted to.

It is to be noted that the action was instituted upon complaint of the second wife, whose
marriage with the appellant was not renewed after the death of the first wife and before
the third marriage was entered into. Hence, the last marriage was a valid one and
appellant's prosecution for contracting this marriage can not prosper.

For the foregoing considerations, the judgment appealed from is hereby reversed and
the defendant-appellant acquitted, with costs de oficio, without prejudice to his
prosecution for having contracted the second bigamous marriage. So ordered.

Paras, C. J., Bengzon, Bautista Angelo, Reyes, J. B. L., Endencia, and Felix, JJ.,
concur.

Separate Opinions

REYES, A.J., dissenting:

I dissent.

Dissenting in the case of People vs. Mendoza, replied on by the majority, I there said:

Article 349 of the Revised Penal Code punishes with prision mayor "any person who
shall contract a second or subsequent marriage before the former marriage has been
legally dissolved."

Though the logician may say that there were the former marriage was void there would
be nothing to dissolve, still it is not for the spouses to judge whether that marriage was
void or not. That judgment is reserved to the courts. As Viada says, 'La satidad e
importancia del matrimonio no permite que los casados juzguen por si mosmos de su
nulidad; esta ha de someterse [precisamente al juicio del Tribunalcompetente, y cuando
este declare la nulidad del matrimonio, y solo entonces, se tendra por nulo; mientras no
exista esta declaracion, la presuncion esta siempre a favor de la validez del matrimonio,
yde consiguiente, el que contrae otro segundo antes de dicha declaracio de nulidad, no
puede menos de incurrir la pena de este articulo. (3 Viada, Codigo Penal, p. 275.)

"This is a sound opinion," says Mr. Justice Tuason in the case of People vs. Jose Cotas,
(CA), 40 Off. Gaz. 3145, "and is in line with the well-known rule established in cases of
adultery, that "until by competent authority in a final judgment the marriage contract is
set aside, the offense to the vows taken and the attack on the family exists."

I may add that the construction placed by the majority upon the law penalizing bigamy
would frustrate the legislative intent rather than give effect thereto.

Padilla and Montemayor, JJ., concur.
DIGEST
FACTS:

Proceso Rosima contracted marriage with Gorrea. While his marriage with the latter
subsist, he contracted a canonical marriage with Faicol. Gorrea is staying in Cebu while
Faicol is in Iloilo. He was a traveling salesman thus, he commuted between Iloilo and
Cebu. When Gorrea died, he brought Faicol to Cebu where the latter worked as
teacher-nurse. She later on suffered injuries in her eyes caused by physical
maltreatment of Rosima and was sent to Iloilo to undergo treatment. While she was in
Iloilo, Rosima contracted a third marriage with Maglasang. CFI-Cebu found him guilty of
bigamy.

ISSUE: Whether or not the third marriage is null and void.

HELD:

The action was instituted upon the complaint of the second wife whose marriage with
Rosima was not renewed after the death of the first wife and before the third marriage
was entered into. Hence, the last marriage was a valid one and prosecution against
Rosima for contracting marriage cannot prosper.

Mercado vs. Mercado (337 SCRA 122) note: see Vitug dissent
VINCENT PAUL G. MERCADO a.k.a. VINCENT G. MERCADO, petitioner, vs.
CONSUELO TAN, respondent.
D E C I S I O N
PANGANIBAN, J .:
A judicial declaration of nullity of a previous marriage is necessary before a
subsequent one can be legally contracted. One who enters into a subsequent marriage
without first obtaining such judicial declaration is guilty of bigamy. This principle applies
even if the earlier union is characterized by statute as void.
The Case
Before us is a Petition for Review on Certiorari assailing the July 14, 1998 Decision
of the Court of Appeals (CA)
[1]
in CA-GR CR No. 19830 and its January 4, 1999
Resolution denying reconsideration. The assailed Decision affirmed the ruling of the
Regional Trial Court (RTC) of Bacolod City in Criminal Case No. 13848, which convicted
herein petitioner of bigamy as follows:
WHEREFORE, finding the guilt of accused Dr. Vincent Paul G. Mercado a.k.a. Dr.
Vincent G. Mercado of the crime of Bigamy punishable under Article 349 of the Revised
Penal Code to have been proven beyond reasonable doubt, [the court hereby renders]
judgment imposing upon him a prison term of three (3) years, four (4) months and fifteen
(15) days of prision correccional, as minimum of his indeterminate sentence, to eight (8)
years and twenty-one (21) days of prision mayor, as maximum, plus accessory penalties
provided by law.
Costs against accused.
[2]

The Facts
The facts are quoted by Court of Appeals (CA) from the trial courts judgment, as
follows: From the evidence adduced by the parties, there is no dispute that accused Dr.
Vincent Mercado and complainant Ma. Consuelo Tan got married on June 27, 1991
before MTCC-Bacolod City Br. 7 Judge Gorgonio J. Ibaez [by reason of] which a
Marriage Contract was duly executed and signed by the parties. As entered in said
document, the status of accused was single. There is no dispute either that at the time
of the celebration of the wedding with complainant, accused was actually a married man,
having been in lawful wedlock with Ma. Thelma Oliva in a marriage ceremony
solemnized on April 10, 1976 by Judge Leonardo B. Caares, CFI-Br. XIV, Cebu City
per Marriage Certificate issued in connection therewith, which matrimony was further
blessed by Rev. Father Arthur Baur on October 10, 1976 in religious rites at the Sacred
Heart Church, Cebu City. In the same manner, the civil marriage between accused and
complainant was confirmed in a church ceremony on June 29, 1991 officiated by Msgr.
Victorino A. Rivas, Judicial Vicar, Diocese of Bacolod City. Both marriages were
consummated when out of the first consortium, Ma. Thelma Oliva bore accused two
children, while a child, Vincent Paul, Jr. was sired by accused with complainant Ma.
Consuelo Tan.
On October 5, 1992, a letter-complaint for bigamy was filed by complainant through
counsel with the City Prosecutor of Bacolod City, which eventually resulted [in] the
institution of the present case before this Court against said accused, Dr. Vincent G.
Mercado, on March 1, 1993 in an Information dated January 22, 1993.
On November 13, 1992, or more than a month after the bigamy case was lodged in the
Prosecutors Office, accused filed an action for Declaration of Nullity of Marriage against
Ma. Thelma V. Oliva in RTC-Br. 22, Cebu City, and in a Decision dated May 6, 1993 the
marriage between Vincent G. Mercado and Ma. Thelma V. Oliva was declared null and
void.
Accused is charged [with] bigamy under Article 349 of the Revised Penal Code for
having contracted a second marriage with herein complainant Ma. Consuelo Tan on
June 27, 1991 when at that time he was previously united in lawful marriage with Ma.
Thelma V. Oliva on April 10, 1976 at Cebu City, without said first marriage having been
legally dissolved. As shown by the evidence and admitted by accused, all the essential
elements of the crime are present, namely: (a) that the offender has been previously
legally married; (2) that the first marriage has not been legally dissolved or in case the
spouse is absent, the absent spouse could not yet be presumed dead according to the
Civil Code; (3) that he contract[ed] a second or subsequent marriage; and (4) that the
second or subsequent marriage ha[d] all the essential requisites for validity. x x x
While acknowledging the existence of the two marriage[s], accused posited the
defense that his previous marriage ha[d] been judicially declared null and void and that
the private complainant had knowledge of the first marriage of accused.
It is an admitted fact that when the second marriage was entered into with Ma.
Consuelo Tan on June 27, 1991, accuseds prior marriage with Ma. Thelma V. Oliva was
subsisting, no judicial action having yet been initiated or any judicial declaration obtained
as to the nullity of such prior marriage with Ma. Thelma V. Oliva. Since no declaration of
the nullity of his first marriage ha[d] yet been made at the time of his second marriage, it
is clear that accused was a married man when he contracted such second marriage with
complainant on June 27, 1991. He was still at the time validly married to his first wife.
[3]

Ruling of the Court of Appeals
Agreeing with the lower court, the Court of Appeals stated:
Under Article 40 of the Family Code, the absolute nullity of a previous marriage may
be invoked for purposes of remarriage on the basis solely of a final judgment declaring
such previous marriage void. But here, the final judgment declaring null and void
accuseds previous marriage came not before the celebration of the second marriage,
but after, when the case for bigamy against accused was already tried in court. And
what constitutes the crime of bigamy is the act of any person who shall contract a
second subsequent marriage before the former marriage has been legally dissolved.
[4]

Hence, this Petition.
[5]

The Issues
In his Memorandum, petitioner raises the following issues:
A
Whether or not the element of previous legal marriage is present in order to convict
petitioner.
B
Whether or not a liberal interpretation in favor of petitioner of Article 349 of the Revised
Penal Code punishing bigamy, in relation to Articles 36 and 40 of the Family Code,
negates the guilt of petitioner.
C
Whether or not petitioner is entitled to an acquittal on the basis of reasonable doubt.
[6]

The Courts Ruling
The Petition is not meritorious.
Main Issue:Effect of Nullity of Previous Marriage
Petitioner was convicted of bigamy under Article 349 of the Revised Penal Code,
which provides:
The penalty of prision mayor shall be imposed upon any person who shall contract a
second or subsequent marriage before the former marriage has been legally dissolved,
or before the absent spouse has been declared presumptively dead by means of a
judgment rendered in the proper proceedings.
The elements of this crime are as follows:
1. That the offender has been legally married;
2. That the marriage has not been legally dissolved or, in case his or her spouse is
absent, the absent spouse could not yet be presumed dead according to the Civil Code;
3. That he contracts a second or subsequent marriage;
4. That the second or subsequent marriage has all the essential requisites for validity.
[7]

When the Information was filed on January 22, 1993, all the elements of bigamy
were present. It is undisputed that petitioner married Thelma G. Oliva on April 10, 1976
in Cebu City. While that marriage was still subsisting, he contracted a second marriage,
this time with Respondent Ma. Consuelo Tan who subsequently filed the Complaint for
bigamy.
Petitioner contends, however, that he obtained a judicial declaration of nullity of his
first marriage under Article 36 of the Family Code, thereby rendering it void ab
initio. Unlike voidable marriages which are considered valid until set aside by a
competent court, he argues that a void marriage is deemed never to have taken place at
all.
[8]
Thus, he concludes that there is no first marriage to speak of. Petitioner also
quotes the commentaries
[9]
of former Justice Luis Reyes that it is now settled that if the
first marriage is void from the beginning, it is a defense in a bigamy charge. But if the
first marriage is voidable, it is not a defense.
Respondent, on the other hand, admits that the first marriage was declared null and
void under Article 36 of the Family Code, but she points out that that declaration came
only after the Information had been filed. Hence, by then, the crime had already been
consummated. She argues that a judicial declaration of nullity of a void previous
marriage must be obtained before a person can marry for a subsequent time.
We agree with the respondent.
To be sure, jurisprudence regarding the need for a judicial declaration of nullity of
the previous marriage has been characterized as conflicting.
[10]
In People v.
Mendoza,
[11]
a bigamy case involving an accused who married three times, the Court
ruled that there was no need for such declaration. In that case, the accused contracted
a second marriage during the subsistence of the first. When the first wife died, he
married for the third time. The second wife then charged him with bigamy. Acquitting
him, the Court held that the second marriage was void ab initio because it had been
contracted while the first marriage was still in effect. Since the second marriage was
obviously void and illegal, the Court ruled that there was no need for a judicial
declaration of its nullity. Hence, the accused did not commit bigamy when he married for
the third time. This ruling was affirmed by the Court in People v. Aragon,
[12]
which
involved substantially the same facts.
But in subsequent cases, the Court impressed the need for a judicial declaration of
nullity. In Vda de Consuegra v. GSIS,
[13]
Jose Consuegra married for the second time
while the first marriage was still subsisting. Upon his death, the Court awarded one half
of the proceeds of his retirement benefits to the first wife and the other half to the second
wife and her children, notwithstanding the manifest nullity of the second marriage. It
held: And with respect to the right of the second wife, this Court observes that although
the second marriage can be presumed to be void ab initio as it was celebrated while the
first marriage was still subsisting, still there is need for judicial declaration of such
nullity.
In Tolentino v. Paras,
[14]
however, the Court again held that judicial declaration of
nullity of a void marriage was not necessary. In that case, a man married twice. In his
Death Certificate, his second wife was named as his surviving spouse. The first wife
then filed a Petition to correct the said entry in the Death Certificate. The Court ruled in
favor of the first wife, holding that the second marriage that he contracted with private
respondent during the lifetime of the first spouse is null and void from the beginning and
of no force and effect. No judicial decree is necessary to establish the invalidity of a void
marriage.
In Wiegel v. Sempio-Diy,
[15]
the Court stressed the need for such declaration. In that
case, Karl Heinz Wiegel filed an action for the declaration of nullity of his marriage to
Lilia Olivia Wiegel on the ground that the latter had a prior existing marriage. After
pretrial, Lilia asked that she be allowed to present evidence to prove, among others, that
her first husband had previously been married to another woman. In holding that there
was no need for such evidence, the Court ruled: x x x There is likewise no need of
introducing evidence about the existing prior marriage of her first husband at the time
they married each other, for then such a marriage though void still needs, according to
this Court, a judicial declaration of such fact and for all legal intents and purposes she
would still be regarded as a married woman at the time she contracted her marriage with
respondent Karl Heinz Wiegel; x x x.
Subsequently, in Yap v. CA,
[16]
the Court reverted to the ruling in People v.
Mendoza, holding that there was no need for such declaration of nullity.
In Domingo v. CA,
[17]
the issue raised was whether a judicial declaration of nullity
was still necessary for the recovery and the separation of properties of erstwhile
spouses. Ruling in the affirmative, the Court declared: The Family Code has settled
once and for all the conflicting jurisprudence on the matter. A declaration of the absolute
nullity of a marriage is now explicitly required either as a cause of action or a ground for
defense; in fact, the requirement for a declaration of absolute nullity of a marriage is also
for the protection of the spouse who, believing that his or her marriage is illegal and void,
marries again. With the judicial declaration of the nullity of his or her first marriage, the
person who marries again cannot be charged with bigamy.
[18]

Unlike Mendoza and Aragon, Domingo as well as the other cases herein cited was
not a criminal prosecution for bigamy. Nonetheless, Domingo underscored the need for
a judicial declaration of nullity of a void marriage on the basis of a new provision of the
Family Code, which came into effect several years after the promulgation
of Mendoza and Aragon.
In Mendoza and Aragon, the Court relied on Section 29 of Act No. 3613 (Marriage
Law), which provided:
Illegal marriages. Any marriage subsequently contracted by any person during the
lifetime of the first spouse shall be illegal and void from its performance, unless:
(a) The first marriage was annulled or dissolved;
(b) The first spouse had been absent for seven consecutive years at the time of
the second marriage without the spouse present having news of the
absentee being alive, or the absentee being generally considered as dead
and believed to be so by the spouse present at the time of contracting such
subsequent marriage, the marriage as contracted being valid in either case
until declared null and void by a competent court."
The Court held in those two cases that the said provision plainly makes a
subsequent marriage contracted by any person during the lifetime of his first spouse
illegal and void from its performance, and no judicial decree is necessary to establish its
invalidity, as distinguished from mere annulable marriages.
[19]

The provision appeared in substantially the same form under Article 83 of the 1950
Civil Code and Article 41 of the Family Code. However, Article 40 of the Family Code, a
new provision, expressly requires a judicial declaration of nullity of the previous
marriage, as follows:
ART. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such marriage void.
In view of this provision, Domingo stressed that a final judgment declaring such
marriage void was necessary. Verily, the Family Code and Domingo affirm the earlier
ruling in Wiegel. Thus, a Civil Law authority and member of the Civil Code Revision
Commitee has observed:
[Article 40] is also in line with the recent decisions of the Supreme Court that the
marriage of a person may be null and void but there is need of a judicial declaration of
such fact before that person can marry again; otherwise, the second marriage will also
be void (Wiegel v. Sempio-Diy, Aug. 19/86, 143 SCRA 499, Vda. De Consuegra v.
GSIS, 37 SCRA 315). This provision changes the old rule that where a marriage is
illegal and void from its performance, no judicial decree is necessary to establish its
validity (People v. Mendoza, 95 Phil. 843; People v. Aragon, 100 Phil. 1033).
[20]

In this light, the statutory mooring of the ruling in Mendoza and Aragon that there
is no need for a judicial declaration of nullity of a void marriage -- has been cast aside
by Article 40 of the Family Code. Such declaration is now necessary before one can
contract a second marriage. Absent that declaration, we hold that one may be charged
with and convicted of bigamy.
The present ruling is consistent with our pronouncement in Terre v. Terre,
[21]
which
involved an administrative Complaint against a lawyer for marrying twice. In rejecting
the lawyers argument that he was free to enter into a second marriage because the first
one was void ab initio, the Court ruled: for purposes of determining whether a person is
legally free to contract a second marriage, a judicial declaration that the first marriage
was null and void ab initio is essential. The Court further noted that the said rule was
cast into statutory form by Article 40 of the Family Code. Significantly, it observed that
the second marriage, contracted without a judicial declaration that the first marriage was
void, was bigamous and criminal in character.
Moreover, Justice Reyes, an authority in Criminal Law whose earlier work was cited
by petitioner, changed his view on the subject in view of Article 40 of the Family Code
and wrote in 1993 that a person must first obtain a judicial declaration of the nullity of a
void marriage before contracting a subsequent marriage:
[22]

It is now settled that the fact that the first marriage is void from the beginning is not a
defense in a bigamy charge. As with a voidable marriage, there must be a judicial
declaration of the nullity of a marriage before contracting the second marriage. Article
40 of the Family Code states that x x x. The Code Commission believes that the parties
to a marriage should not be allowed to assume that their marriage is void, even if such is
the fact, but must first secure a judicial declaration of nullity of their marriage before they
should be allowed to marry again. x x x.
In the instant case, petitioner contracted a second marriage although there was yet
no judicial declaration of nullity of his first marriage. In fact, he instituted the Petition to
have the first marriage declared void only after complainant had filed a letter-complaint
charging him with bigamy. By contracting a second marriage while the first was still
subsisting, he committed the acts punishable under Article 349 of the Revised Penal
Code.
That he subsequently obtained a judicial declaration of the nullity of the first
marriage was immaterial. To repeat, the crime had already been consummated by then.
Moreover, his view effectively encourages delay in the prosecution of bigamy cases; an
accused could simply file a petition to declare his previous marriage void and invoke the
pendency of that action as a prejudicial question in the criminal case. We cannot allow
that.
Under the circumstances of the present case, he is guilty of the charge against him.
Damages
In her Memorandum, respondent prays that the Court set aside the ruling of the
Court of Appeals insofar as it denied her claim of damages and attorneys fees.
[23]

Her prayer has no merit. She did not appeal the ruling of the CA against her; hence,
she cannot obtain affirmative relief from this Court.
[24]
In any event, we find no reason to
reverse or set aside the pertinent ruling of the CA on this point, which we quote
hereunder:
We are convinced from the totality of the evidence presented in this case that Consuelo
Tan is not the innocent victim that she claims to be; she was well aware of the existence
of the previous marriage when she contracted matrimony with Dr. Mercado. The
testimonies of the defense witnesses prove this, and we find no reason to doubt said
testimonies.
x x x x x x x x x
Indeed, the claim of Consuelo Tan that she was not aware of his previous marriage
does not inspire belief, especially as she had seen that Dr. Mercado had two (2) children
with him. We are convinced that she took the plunge anyway, relying on the fact that the
first wife would no longer return to Dr. Mercado, she being by then already living with
another man.
Consuelo Tan can therefore not claim damages in this case where she was fully
conscious of the consequences of her act. She should have known that she would
suffer humiliation in the event the truth [would] come out, as it did in this case, ironically
because of her personal instigation. If there are indeed damages caused to her
reputation, they are of her own willful making.
[25]

WHEREFORE, the Petition is DENIED and the assailed
Decision AFFIRMED. Costs against petitioner.
SO ORDERED.
Melo, (Chairman), Purisima, and Gonzaga-Reyes, JJ., concur.
Vitug, J., see concurring and dissenting opinion.
CONCURRING AND DISSENTING OPINION
VITUG, J .:
At the pith of the controversy is the defense of the absolute nullity of a previous
marriage in an indictment for bigamy. The majority opinion, penned by my esteemed
brother, Mr. Justice Artemio V. Panganiban, enunciates that it is only a judicially decreed
prior void marriage which can constitute a defense against the criminal charge.
The civil law rule stated in Article 40 of the Family Code is a given but I have strong
reservations on its application beyond what appears to be its expressed context. The
subject of the instant petition is a criminal prosecution, not a civil case, and
the ponencia affirms the conviction of petitioner Vincent Paul G. Mercado for bigamy.
Article 40 of the Family code reads:
ART. 40. The absolute nullity of a previous marriage may be invoked for purposes
of remarriage on the basis solely of a final judgment declaring such previous marriage
void.
The phrase for purposes of remarriage is not at all insignificant. Void marriages,
like void contracts, are inexistent from the very beginning. It is only by way of exception
that the Family code requires a judicial declaration of nullity of the previous marriage
before a subsequent marriage is contracted; without such declaration, the validity and
the full legal consequence of the subsequent marriage would itself be in similar jeopardy
under Article 53, in relation to Article 52, of the Family Code. Parenthetically, I would
daresay that the necessity of a judicial declaration of nullity of a void marriage for the
purpose of remarriage should be held to refer merely to cases where it can be said that
a marriage, at least ostensibly, had taken place. No such judicial declaration of nullity, in
my view, should still be deemed essential when the marriage, for instance, is between
persons of the same sex or when either or both parties had not at all given consent to
the marriage. Indeed, it is likely that Article 40 of the Family Code has been meant and
intended to refer only to marriages declared void under the provisions of Articles 35, 36,
37, 38 and 53 thereof.
In fine, the Family Code, I respectfully submit, did not have the effect of overturning
the rule in criminal law and related jurisprudence. The Revised Penal Code expresses:
Art. 349. Bigamy.---The penalty of prision mayor shall be imposed upon any person
who shall contract a second or subsequent marriage before the former marriage has
been legally dissolved, or before the absent spouse has been declared presumptively
dead by means of a judgment rendered in the proper proceedings.
Surely, the foregoing provision contemplated an existing, not void, prior
marriage. Covered by article 349 would thus be, for instance, a voidable marriage, it
obviously being valid and subsisting until set aside by a competent court. As early as
People vs. Aragon,
1
this Court has underscored:
xxx Our Revised Penal Code is of recent enactment and had the rule enunciated in
Spain and in America requiring judicial declaration of nullity of ab initio void
marriages been within the contemplation of the legislature, an express provision
to that effect would or should have been inserted in the law. In its absence, we
are bound by said rule of strict interpretation.
Unlike a voidable marriage which legally exists until judicially annulled (and
therefore not a defense in bigamy if the second marriage were contracted prior to the
decree of annulment), the complete nullity, however, of a previously contracted
marriage, being a total nullity and inexistent, should be capable of being independently
raised by way of a defense in a criminal case for bigamy. I see no incongruence
between this rule in criminal law and that of the Family Code, and each may be applied
within the respective spheres of governance.
Accordingly, I vote to grant the petition.



DIGEST
FACTS:

Dr. Vicent Mercado was previously married with Thelma Oliva in 1976 before he
contracted marriage with Consuelo Tan in 1991 which the latter claims she did not know.
Tan filed bigamy against Mercado and after a month the latter filed an action for
declaration of nullity of marriage against Oliva. The decision in 1993 declared marriage
between Mercado and Oliva null and void.

ISSUE: Whether Mercado committed bigamy in spite of filing the declaration of nullity of
the former marriage.

HELD:

A judicial declaration of nullity of a previous marriage is necessary before a subsequent
one can be legally contracted. One who enters into a subsequent marriage without first
obtaining such judicial declaration is guilty of bigamy. This principle applies even if the
earlier union is characterized by statute as void.

In the case at bar, Mercado only filed the declaration of nullity of his marriage with Oliva
right after Tan filed bigamy case. Hence, by then, the crime had already been
consummated. He contracted second marriage without the judicial declaration of the
nullity. The fact that the first marriage is void from the beginning is not a defense in a
bigamy charge.

Article 41-42
Republic vs Nolasco (220 SCRA 20)
G.R. No. 94053 March 17, 1993
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.
The Solicitor General for plaintiff-appellee.
Warloo G. Cardenal for respondent.
R E S O L U T I O N

FELICIANO, J .:
On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of
Antique, Branch 10, a petition for the declaration of presumptive death of his wife Janet
Monica Parker, invoking Article 41 of the Family Code. The petition prayed that
respondent's wife be declared presumptively dead or, in the alternative, that the
marriage be declared null and void.
1

The Republic of the Philippines opposed the petition through the Provincial Prosecutor of
Antique who had been deputized to assist the Solicitor-General in the instant case. The
Republic argued, first, that Nolasco did not possess a "well-founded belief that the
absent spouse was already dead,"
2
and second, Nolasco's attempt to have his marriage
annulled in the same proceeding was a "cunning attempt" to circumvent the law on
marriage.
3

During trial, respondent Nolasco testified that he was a seaman and that he had first met
Janet Monica Parker, a British subject, in a bar in England during one of his ship's port
calls. From that chance meeting onwards, Janet Monica Parker lived with respondent
Nolasco on his ship for six (6) months until they returned to respondent's hometown of
San Jose, Antique on 19 November 1980 after his seaman's contract expired. On 15
January 1982, respondent married Janet Monica Parker in San Jose, Antique, in
Catholic rites officiated by Fr. Henry van Tilborg in the Cathedral of San Jose.
Respondent Nolasco further testified that after the marriage celebration, he obtained
another employment contract as a seaman and left his wife with his parents in San Jose,
Antique. Sometime in January 1983, while working overseas, respondent received a
letter from his mother informing him that Janet Monica had given birth to his son. The
same letter informed him that Janet Monica had left Antique. Respondent claimed he
then immediately asked permission to leave his ship to return home. He arrived in
Antique in November 1983.
Respondent further testified that his efforts to look for her himself whenever his ship
docked in England proved fruitless. He also stated that all the letters he had sent to his
missing spouse at No. 38 Ravena Road, Allerton, Liverpool, England, the address of the
bar where he and Janet Monica first met, were all returned to him. He also claimed that
he inquired from among friends but they too had no news of Janet Monica.
On cross-examination, respondent stated that he had lived with and later married Janet
Monica Parker despite his lack of knowledge as to her family background. He insisted
that his wife continued to refuse to give him such information even after they were
married. He also testified that he did not report the matter of Janet Monica's
disappearance to the Philippine government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified
that her daughter-in-law Janet Monica had expressed a desire to return to England even
before she had given birth to Gerry Nolasco on 7 December 1982. When asked why her
daughter-in-law might have wished to leave Antique, respondent's mother replied that
Janet Monica never got used to the rural way of life in San Jose, Antique. Alicia Nolasco
also said that she had tried to dissuade Janet Monica from leaving as she had given
birth to her son just fifteen days before, but when she (Alicia) failed to do so, she gave
Janet Monica P22,000.00 for her expenses before she left on 22 December 1982 for
England. She further claimed that she had no information as to the missing person's
present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the
dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the Family Code of the
Philippines (Executive Order No. 209, July 6, 1987, as amended by
Executive Order No. 227, July 17, 1987) this Court hereby declares as
presumptively dead Janet Monica Parker Nolasco, without prejudice to
her reappearance.
4

The Republic appealed to the Court of Appeals contending that the trial court erred in
declaring Janet Monica Parker presumptively dead because respondent Nolasco had
failed to show that there existed a well founded belief for such declaration.
The Court of Appeals affirmed the trial court's decision, holding that respondent had
sufficiently established a basis to form a belief that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this Court on a Petition for
Review where the following allegations are made:
1. The Court of Appeals erred in affirming the trial court's finding that
there existed a well-founded belief on the part of Nolasco that Janet
Monica Parker was already dead; and
2. The Court of Appeals erred in affirming the trial Court's declaration that
the petition was a proper case of the declaration of presumptive death
under Article 41, Family Code.
5

The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has
a well-founded belief that his wife is already dead."
6

The present case was filed before the trial court pursuant to Article 41 of the Family
Code which provides that:
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 provision
of Article 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. (Emphasis supplied).
When Article 41 is compared with the old provision of the Civil Code, which it
superseded,
7
the following crucial differences emerge. Under Article 41, the time
required for the presumption to arise has been shortened to four (4) years; however,
there is need for a judicial declaration of presumptive death to enable the spouse
present to remarry.
8
Also, Article 41 of the Family Code imposes a stricter standard than
the Civil Code: Article 83 of the Civil Code merely requires either that there be no news
that such absentee is still alive; or the absentee is generally considered to be
dead andbelieved to be so by the spouse present, or is presumed dead under Article
390 and 391 of the Civil Code.
9
The Family Code, upon the other hand, prescribes
as "well founded belief" that the absentee is already dead before a petition for
declaration of presumptive death can be granted.
As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of
presumptive death under Article 41 of the Family Code:
1. That the absent spouse has been missing for four consecutive years,
or two consecutive years if the disappearance occurred where there is
danger of death under the circumstances laid down in Article 391, Civil
Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is
dead; and
4. That the present spouse files a summary proceeding for the declaration
of presumptive death of the absentee.
10

Respondent naturally asserts that he had complied with all these requirements.
11

Petitioner's argument, upon the other hand, boils down to this: that respondent failed to
prove that he had complied with the third requirement, i.e., the existence of a "well-
founded belief" that the absent spouse is already dead.
The Court believes that respondent Nolasco failed to conduct a search for his missing
wife with such diligence as to give rise to a "well-founded belief" that she is dead.
United States v. Biasbas,
12
is instructive as to degree of diligence required in searching
for a missing spouse. In that case, defendant Macario Biasbas was charged with the
crime of bigamy. He set-up the defense of a good faith belief that his first wife had
already died. The Court held that defendant had not exercised due diligence to ascertain
the whereabouts of his first wife, noting that:
While the defendant testified that he had made inquiries concerning the
whereabouts of his wife, he fails to state of whom he made such inquiries.
He did not even write to the parents of his first wife, who lived in the
Province of Pampanga, for the purpose of securing information
concerning her whereabouts. He admits that he had a suspicion only that
his first wife was dead. He admits that the only basis of his suspicion was
the fact that she had been absent. . . .
13

In the case at bar, the Court considers that the investigation allegedly conducted by
respondent in his attempt to ascertain Janet Monica Parker's whereabouts is too sketchy
to form the basis of a reasonable or well-founded belief that she was already dead.
When he arrived in San Jose, Antique after learning of Janet Monica's departure, instead
of seeking the help of local authorities or of the British Embassy,
14
he secured another
seaman's contract and went to London, a vast city of many millions of inhabitants, to
look for her there.
Q After arriving here in San Jose, Antique, did you exert
efforts to inquire the whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?
A I secured another contract with the ship and we had a
trip to London and I went to London to look for her I could
not find her (sic).
15
(Emphasis supplied)
Respondent's testimony, however, showed that he confused London for Liverpool and
this casts doubt on his supposed efforts to locate his wife in England. The Court of
Appeal's justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily know the geographical
difference between London and Liverpool, for a humble seaman like
Gregorio the two places could mean one place in England, the port
where his ship docked and where he found Janet. Our own provincial
folks, every time they leave home to visit relatives in Pasay City,
Kalookan City, or Paraaque, would announce to friends and relatives,
"We're going to Manila." This apparent error in naming of places of
destination does not appear to be fatal.
16

is not well taken. There is no analogy between Manila and its neighboring cities, on one
hand, and London and Liverpool, on the other, which, as pointed out by the Solicitor-
General, are around three hundred fifty (350) kilometers apart. We do not consider that
walking into a major city like Liverpool or London with a simple hope of somehow
bumping into one particular person there which is in effect what Nolasco says he did
can be regarded as a reasonably diligent search.
The Court also views respondent's claim that Janet Monica declined to give any
information as to her personal background even after she had married respondent
17
too
convenient an excuse to justify his failure to locate her. The same can be said of the loss
of the alleged letters respondent had sent to his wife which respondent claims were all
returned to him. Respondent said he had lost these returned letters, under unspecified
circumstances.
Neither can this Court give much credence to respondent's bare assertion that he had
inquired from their friends of her whereabouts, considering that respondent did not
identify those friends in his testimony. The Court of Appeals ruled that since the
prosecutor failed to rebut this evidence during trial, it is good evidence. But this kind of
evidence cannot, by its nature, be rebutted. In any case, admissibility is not synonymous
with credibility.
18
As noted before, there are serious doubts to respondent's credibility.
Moreover, even if admitted as evidence, said testimony merely tended to show that the
missing spouse had chosen not to communicate with their common acquaintances, and
not that she was dead.
Respondent testified that immediately after receiving his mother's letter sometime in
January 1983, he cut short his employment contract to return to San Jose, Antique.
However, he did not explain the delay of nine (9) months from January 1983, when he
allegedly asked leave from his captain, to November 1983 when be finally reached San
Jose. Respondent, moreover, claimed he married Janet Monica Parker without inquiring
about her parents and their place of residence.
19
Also, respondent failed to explain why
he did not even try to get the help of the police or other authorities in London and
Liverpool in his effort to find his wife. The circumstances of Janet Monica's departure
and respondent's subsequent behavior make it very difficult to regard the claimed belief
that Janet Monica was dead a well-founded one.
In Goitia v. Campos-Rueda,
20
the Court stressed that:
. . . Marriage is an institution, the maintenance of which in its purity the
public is deeply interested. It is a relationship for life and the parties
cannot terminate it at any shorter period by virtue of any contract they
make. . . . .
21
(Emphasis supplied)
By the same token, the spouses should not be allowed, by the simple expedient of
agreeing that one of them leave the conjugal abode and never to return again, to
circumvent the policy of the laws on marriage. The Court notes that respondent even
tried to have his marriage annulled before the trial court in the same proceeding.
In In Re Szatraw,
22
the Court warned against such collusion between the parties when
they find it impossible to dissolve the marital bonds through existing legal means.
While the Court understands the need of respondent's young son, Gerry Nolasco, for
maternal care, still the requirements of the law must prevail. Since respondent failed to
satisfy the clear requirements of the law, his petition for a judicial declaration of
presumptive death must be denied. The law does not view marriage like an ordinary
contract. Article 1 of the Family Code emphasizes that.
. . . Marriage is a special contract of permanent union between a man and
a woman entered into in accordance with law for the establishment of
conjugal and family life. It is the foundation of the familyand an inviolable
social institution whose nature, consequences, and incidents are
governed by law and not subject to stipulation, except that marriage
settlements may fix the property relations during the marriage within the
limits provided by this Code. (Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals,
23
the Court stressed strongly the need to protect.
. . . the basic social institutions of marriage and the family in the
preservation of which the State bas the strongest interest; the public
policy here involved is of the most fundamental kind. In Article II, Section
12 of the Constitution there is set forth the following basic state policy:
The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous
social institution. . . .
The same sentiment bas been expressed in the Family Code of the
Philippines in Article 149:
The family, being the foundation of the nation, is a basic
social institution which public policy cherishes and
protects. Consequently, family relations are governed by
law and no custom, practice or agreement destructive of
the family shall be recognized or given effect.
24

In fine, respondent failed to establish that he had the well-founded belief required by law
that his absent wife was already dead that would sustain the issuance of a court order
declaring Janet Monica Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming
the trial court's decision declaring Janet Monica Parker presumptively dead is hereby
REVERSED and both Decisions are hereby NULLIFIED and SET ASIDE. Costs against
respondent.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
Gutierrez, Jr. J., is on leave.

DIGEST
FACTS:

Gregorio Nolasco is a seaman. He met Janet Parker, a British, in bar in England. After
that, Janet started living with Nolasco in his ship for six months. It lasted until the
contract of Nolasco expired then he brought her to his hometown in Antique. They got
married in January 1982. Due to another contract, Nolasco left the province. In 1983,
Nolasco received a letter from his mother informing him that his son had been born but
15 days after, Janet left. Nolasco went home and cut short his contract to find Janets
whereabouts. He did so by securing another seamans contract going to London. He
wrote several letters to the bar where they first met but it was all returned. Gregorio
petitioned in 1988 for a declaration of presumptive death of Janet.

ISSUE: Whether or not Nolasco had a well-founded belief that his wife, Janet, is already
dead?

HELD:

The Supreme Court ruled that Nolascos efforts to locate Janet were not persistent to
show that he has a well-founded belief that his wife was already dead because instead
of seeking assistance of local authorities and the British Embassy, he even secured
another contract. More so, while he was in London, he did not even try to solicit help of
the authorities to find his wife.

Lukban vs. Republic (L-8492, 29 February 1956)
FIRST DIVISION
[G.R. No. L-8492. February 29, 1956.]
In the Matter of the Declaration of the Civil Status of: LOURDES G.
LUKBAN, Petitioner-Appellant, vs. REPUBLIC OF THE PHILIPPINES, Oppositor-
Appellee.

D E C I S I O N
BAUTISTA ANGELO, J .:
This is a petition filed in the Court of First Instance of Rizal for a declaration
that Petitioner is a widow of her husband Francisco Chuidian who is presumed to be
dead and has no legal impediment to contract a subsequent marriage.
The Solicitor General opposed the petition on the ground that the same is not authorized
by law. After Petitioner had presented her evidence, the court sustained the opposition
and dismissed the petition. Hence this appeal.
Lourdes G. Lukban, Petitioner herein, contracted marriage with Francisco Chuidian on
December 10, 1933 at the Paco Catholic Church, Manila. On December 27, of the same
year, Francisco left Lourdes after a violent quarrel and since then he has not been heard
from despite diligent search made by her. She also inquired about him from his parents
and friends but no one was able to indicate his whereabouts. She has no knowledge if
he is still alive, his last known address being Calle Merced, Paco, Manila. She believes
that he is already dead because he had been absent for more than twenty years, and
because she intends to marry again, she desires that her civil status be defined in order
that she may be relieved of any liability under the law.
We believe that the petition at bar comes within the purview of our decision in the case
of Nicolai Szartraw, 46 Off. Gaz., 1st Sup., 243, wherein it was held that a petition for
judicial declaration that Petitioners husband is presumed to be dead cannot be
entertained because it is not authorized by law, and if such declaration cannot be made
in a special proceeding similar to the present, much less can the court determine the
status of Petitioner as a widow since this matter must of necessity depend upon the fact
of death of the husband. This the court can declare upon proper evidence, but not to
decree that he is merely presumed to be dead. (Nicolai Szartraw, 46 Off. Gaz., 1st sup.
243).
The philosophy behind the ruling that such judicial pronouncement cannot be made in a
proceeding of this nature is well expressed in the case above-cited. Thus, we there said
that A judicial pronouncement to that effect, even if final and executory, would still be a
prima facie presumption only. It is still disputable. It is for that reason that it cannot be
the subject of a judicial pronouncement or declaration, if it is the only question or matter
involved in a case, or upon which a competent court has to pass cralaw. It is, therefore,
clear that a judicial declaration that a person is presumptively dead, because he had
been unheard from in seven years, being a presumption juris tantum only, subject to
contrary proof, cannot reach the stage of finality or become final.
Appellant claims that the remedy she is seeking for can be granted in the present
proceedings because in the case of Hagans vs. Wislizenus, 42 Phil., 880, it was
declared that a special proceeding is an application or proceeding to establish the
status or right of a party, or a particular fact; chan roblesvirtualawlibrarybut, as already
said, that remedy can be invoked if the purpose is to seek the declaration of death of the
husband, and not, as in the present case, to establish a presumption of death. If it can
be satisfactorily proven that the husband is dead, the court would not certainly deny a
declaration to that effect as has been intimated in the case of Nicolas Szartraw, supra.
Appellant also claims that the present petition can be entertained because article 349 of
the Revised Penal Code, in defining bigamy, provides that a person commits that crime
if he contracts a second marriage before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the proper proceedings and, it
is claimed, the present petition comes within the purview of this legal provision. The
argument is untenable for the words proper proceedings used in said article can only
refer to those authorized by law such as those which refer to the administration or
settlement of the estate of a deceased person (Articles 390 and 391, new Civil Code).
That such is the correct interpretation of the provision in question finds support in the
case of Jones vs. Hortiguela, 64 Phil., 179, wherein this Court made the following
comment:chanroblesvirtuallawlibrary
For the purposes of the civil marriage law, it is not necessary to have the former spouse
judicially declared an absentee. The declaration of absence made in accordance with
the provisions of the Civil Code has for its sole purpose to enable the taking of the
necessary precautions for the administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only requires that the former spouse has
been absent for seven consecutive years at the time of the second marriage, that the
spouse present does not know his or her former spouse to be living, that each former
spouse is generally reputed to be dead and the spouse present so believes at the time
of the celebration of the marriage (section III, paragraph 2, General Orders, No. 68).
The decision appealed from is affirmed, without pronouncement as to costs.
Paras, C.J ., Padilla, Montemayor, Reyes, A., Jugo, Labrador, Concepcion, Reyes,
J. B. L. and Endencia, J J ., concur.
DIGEST
FACTS:

Lourdes Lukban and Francisco Chuidian got married in 1933 and after a violent quarrel
he left Lukban and has not been heard of since then. She diligently looked for him
asking the parents and friends but no one knew his whereabouts. She believes that
husband is already dead since he was absent for more than 20 years and because she
intends to marry again, she desires to have her civil status put in order to be relieved on
any liability under the law.

ISSUE: Whether Lukban needs to secure declaration of presumptive death before she
can remarry.

HELD:

The court ruled that Lukban does not need to secure declaration of presumptive death of
her husband because Civil Code prevails during their marriage in 1933. It provides that
for the purposes of the civil marriage law, it is not necessary to have the former spouse
judicially declared an absentee. The declaration of absence made in accordance with
the provisions of the Civil Code has for its sole purpose to enable the taking of the
necessary precautions for the administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only requires that the former spouse has
been absent for seven consecutive years at the time of the second marriage, that the
spouse present does not know his or her former spouse to be living, that each former
spouse is generally reputed to be dead and the spouse present so believes at the time
of the celebration of the marriage.

Armas vs. Calisterio (G.R. No. 136467, 6 April 2000)
G.R. No. 136467 April 6, 2000
ANTONIA ARMAS Y CALISTERIO, petitioner,
vs.
MARIETTA CALISTERIO, respondent.

VITUG, J .:
On 24 April 1992, Teodorico Calisterio died intestate, leaving several parcels of land with
an estimated value of P604,750.00. Teodorico was survived by his wife, herein
respondent Marietta Calisterio.
Teodorico was the second husband of Marietta who had previously been married to
James William Bounds on 13 January 1946 at Caloocan City. James Bounds
disappeared without a trace on 11 February 1947. Teodorico and Marietta were married
eleven years later, or on 08 May 1958, without Marietta having priorly secured a court
declaration that James was presumptively dead.
On 09 October 1992, herein petitioner Antonia Armas y Calisterio, a surviving sister of
Teodorico, filed with the Regional Trial Court ("RTC") of Quezon City, Branch 104, a
petition entitled, "In the Matter of Intestate Estate of the Deceased Teodorico Calisterio y
Cacabelos, Antonia Armas, Petitioner," claiming to be inter alia, the sole surviving heir of
Teodorico Calisterio, the marriage between the latter and respondent Marietta Espinosa
Calisterio being allegedly bigamous and thereby null and void. She prayed that her son
Sinfroniano C. Armas, Jr., be appointed administrator, without bond, of the estate of the
deceased and that the inheritance be adjudicated to her after all the obligations of the
estate would have been settled.
Respondent Marietta opposed the petition. Marietta stated that her first marriage with
James Bounds had been dissolved due to the latter's absence, his whereabouts being
unknown, for more than eleven years before she contracted her second marriage with
Teodorico. Contending to be the surviving spouse of Teodorico, she sought priority in
the administration of the estate of the decedent.
On 05 February 1993, the trial court issued an order appointing jointly Sinfroniano C.
Armas, Jr., and respondent Marietta administrator and administratrix, respectively, of the
intestate estate of Teodorico.
On 17 January 1996, the lower court handed down its decision in favor of petitioner
Antonia; it adjudged:
WHEREFORE, judgment is hereby rendered finding for the petitioner and against
the oppositor whereby herein petitioner, Antonia Armas y Calisterio, is declared
as the sole heir of the estate of Teodorico Calisterio y Cacabelos.
1

Respondent Marietta appealed the decision of the trial court to the Court of Appeals,
formulating that
1. The trial court erred in applying the provisions of the Family Code in the instant
case despite the fact that the controversy arose when the New Civil Code was
the law in force.
2. The trial court erred in holding that the marriage between oppositor-appellant
and the deceased Teodorico Calisterio is bigamous for failure of the former to
secure a decree of the presumptive death of her first spouse.
3. The trial court erred in not holding that the property situated at No. 32
Batangas Street, San Francisco del Monte, Quezon City, is the conjugal property
of the oppositor-appellant and the deceased Teodorico Calisterio.
4. The trial court erred in holding that oppositor-appellant is not a legal heir of
deceased Teodorico Calisterio.
5. The trial court erred in not holding that letters of administration should be
granted solely in favor of oppositor-appellant.
2

On 31 August 1998, the appellate court, through Mr. Justice Conrado M. Vasquez, Jr.,
promulgated its now assailed decision, thus:
IN VIEW OF ALL THE FOREGOING, the Decision appealed from is REVERSED
AND SET ASIDE, and a new one entered declaring as follows:
(a) Marietta Calisterio's marriage to Teodorico remains valid;
(b) The house and lot situated at #32 Batangas Street, San Francisco del
Monte, Quezon City, belong to the conjugal partnership property with the
concomitant obligation of the partnership to pay the value of the land to
Teodorico's estate as of the time of the taking;
(c) Marietta Calisterio, being Teodorico's compulsory heir, is entitled to
one half of her husband's estate, and Teodorico's sister, herein petitioner
Antonia Armas and her children, to the other half;
(d) The trial court is ordered to determine the competence of Marietta E.
Calisterio to act as administrator of Teodorico's estate, and if so found
competent and willing, that she be appointed as such; otherwise, to
determine who among the deceased's next of kin is competent and willing
to become the administrator of the estate.
3

On 23 November 1998, the Court of Appeals denied petitioner's motion for
reconsideration, prompting her to interpose the present appeal. Petitioner
asseverates:
It is respectfully submitted that the decision of the Court of Appeals reversing and
setting aside the decision of the trial court is not in accord with the law or with the
applicable decisions of this Honorable Court.
4

It is evident that the basic issue focuses on the validity of the marriage between the
deceased Teodorico and respondent Marietta, that, in turn, would be determinative of
her right as a surviving spouse.
The marriage between the deceased Teodorico and respondent Marietta was
solemnized on 08 May 1958. The law in force at that time was the Civil Code, not the
Family Code which took effect only on 03 August 1988. Article 256 of the Family
Code
5
itself limited its retroactive governance only to cases where it thereby would not
prejudice or impair vested or acquired rights in accordance with the Civil Code or other
laws.
Verily, the applicable specific provision in the instant controversy is Article 83 of the New
Civil Code which provides:
Art. 83. Any marriage subsequently contracted by any person during the lifetime
of the first spouse of such person with any person other than such first spouse
shall be illegal and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of
the second marriage without the spouse present having news of the absentee
being alive, or if the absentee, though he has been absent for less than seven
years, is generally considered as dead and believed to be so by the spouse
present at the time of contracting such subsequent marriage, or if the absentee is
presumed dead according to articles 390 and 391. The marriage so contracted
shall be valid in any of the three cases until declared null and void by a
competent court.
Under the foregoing provisions, a subsequent marriage contracted during the lifetime of
the first spouse is illegal and void ab initio unless the prior marriage is first annulled or
dissolved. Paragraph (2) of the law gives exceptions from the above rule. For the
subsequent marriage referred to in the three exceptional cases therein provided, to be
held valid, the spouse present (not the absentee spouse) so contracting the later
marriage must have done so in good faith.
6
Bad faith imports a dishonest purpose or
some moral obliquity and conscious doing of wrong it partakes of the nature of fraud,
a breach of a known duty through some motive of interest or ill will.
7
The Court does not
find these circumstances to be here extant.
A judicial declaration of absence of the absentee spouse is not necessary
8
as long as
the prescribed period of absence is met. It is equally noteworthy that the marriage in
these exceptional cases are, by the explicit mandate of Article 83, to be deemed valid
"until declared null and void by a competent court." It follows that the burden of proof
would be, in these cases, on the party assailing the second marriage.
In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage
may exceptionally be considered valid, the following conditions must concur; viz.: (a)
The prior spouse of the contracting party must have been absent for four consecutive
years, or two years where there is danger of death under the circumstances stated in
Article 391 of the Civil Code at the time of disappearance; (b) the spouse present has a
well-founded belief that the absent spouse is already dead; and (c) there is, unlike the
old rule, a judicial declaration of presumptive death of the absentee for which purpose
the spouse present can institute a summary proceeding in court to ask for that
declaration. The last condition is consistent and in consonance with the requirement of
judicial intervention in subsequent marriages as so provided in Article 41
9
, in relation to
Article 40,
10
of the Family Code.
In the case at bar, it remained undisputed that respondent Marietta's first husband,
James William Bounds, had been absent or had disappeared for more than eleven years
before she entered into a second marriage in 1958 with the deceased Teodorico
Calisterio. This second marriage, having been contracted during the regime of the Civil
Code, should thus be deemed valid notwithstanding the absence of a judicial declaration
of presumptive death of James Bounds.
The conjugal property of Teodorico and Marietta, no evidence having been adduced to
indicate another property regime between the spouses, pertains to them in common.
Upon its dissolution with the death of Teodorico, the property should rightly be divided in
two equal portions one portion going to the surviving spouse and the other portion to
the estate of the deceased spouse. The successional right in intestacy of a surviving
spouse over the net estate
11
of the deceased, concurring with legitimate brothers and
sisters or nephews and nieces (the latter by right of representation), is one-half of the
inheritance, the brothers and sisters or nephews and nieces, being entitled to the other
half. Nephews and nieces, however, can only succeed by right of representation in the
presence of uncles and aunts; alone, upon the other hand, nephews and nieces can
succeed in their own right which is to say that brothers or sisters exclude nephews and
nieces except only in representation by the latter of their parents who predecease or are
incapacitated to succeed. The appellate court has thus erred in granting, in paragraph
(c) of the dispositive portion of its judgment, successional rights, to petitioner's children,
along with their own mother Antonia who herself is invoking successional rights over the
estate of her deceased brother.1wphi1
WHEREFORE, the assailed judgment of the Court of Appeals in CA G.R. CV No. 51574
is AFFIRMED except insofar only as it decreed in paragraph (c) of the dispositive portion
thereof that the children of petitioner are likewise entitled, along with her, to the other
half of the inheritance, in lieu of which, it is hereby DECLARED that said one-half share
of the decedent's estate pertains solely to petitioner to the exclusion of her own children.
No costs.
SO ORDERED.1wphi1.nt
Melo, Panganiban, Purisima and Gonzaga-Reyes, JJ., concur.
DIGEST
FACTS:

Teodorico Calisterio, husband of Marietta Calisterio, the respondent, died intestate in
April 1992 leaving several parcel of land estimated value of P604,750.00. He was the
second husband of Marietta who was previously married with William Bounds in January
1946. The latter disappeared without a trace in February 1947. 11 years later from the
disappearance of Bounds, Marietta and Teodorico were married in May 1958 without
Marietta securing a court declaration of Bounds presumptive death.

Antonia Armas y Calisterio, surviving sister of Teodorico filed a petition claiming to be
the sole surviving heir of the latter and that marriage between Marietta and his brother
being allegedly bigamous is thereby null and void. She prayed that her son Sinfroniano
be appointed as administrator, without bond, of the estate of the deceased and
inheritance be adjudicated to her after all the obligations of the estate would have been
settled.

ISSUE: Whether Marrieta and Teodoricos marriage was void due to the absence of the
declaration of presumptive death.

HELD:

The marriage between the respondent and the deceased was solemnized in May 1958
where the law in force at that time was the Civil Code and not the Family Code which
only took effect in August 1988. Article 256 of the Family Code itself limit its retroactive
governance only to cases where it thereby would not prejudice or impair vested or
acquired rights in accordance with the Civil Code or other laws. Since Civil Code
provides that declaration of presumptive death is not essential before contracting
marriage where at least 7 consecutive years of absence of the spouse is enough to
remarry then Marrietas marriage with Teodorico is valid and therefore she has a right
can claim portion of the estate.

Republic vs. Alegro (G.R. No. 159614, 9 December 2005)

SECOND DIVISION


REPUBLIC OF THE PHILIPPINES, G.R. No. 159614
Petitioner,
Present:

- versus - PUNO, J., Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
THE HONORABLE COURT OF TINGA, and
APPEALS (TENTH DIVISION) CHICO-NAZARIO, JJ.
and ALAN B. ALEGRO,
Respondents.
Promulgated:

December 9, 2005
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
x


DECISION


CALLEJO, SR., J .:


On March 29, 2001, Alan B. Alegro filed a petition in the Regional Trial Court
(RTC) of Catbalogan, Samar, Branch 27, for the declaration of presumptive death of his
wife, Rosalia (Lea) A. Julaton.

In an Order
[1]
dated April 16, 2001, the court set the petition for hearing on May
30, 2001 at 8:30 a.m. and directed that a copy of the said order be published once a
week for three (3) consecutive weeks in the Samar Reporter, a newspaper of general
circulation in the Province of Samar, and
that a copy be posted in the courts bulletin board for at least three weeks before the
next scheduled hearing. The court also directed that copies of the order be served on
the Solicitor General, the Provincial Prosecutor of Samar, and Alan, through counsel,
and that copies be sent to Lea by registered mail. Alan complied with all the foregoing
jurisdictional requirements.
[2]


On May 28, 2001, the Republic of the Philippines, through the Office of the
Solicitor General (OSG), filed a Motion to Dismiss
[3]
the petition, which was, however,
denied by the court for failure to comply with Rule 15 of the Rules of Court.
[4]


At the hearing, Alan adduced evidence that he and Lea were married on January
20, 1995 in Catbalogan, Samar.
[5]
He testified that, on February 6, 1995, Lea arrived
home late in the evening and he berated her for being always out of their house. He told
her that if she enjoyed the life of a single person, it would be better for her to go back to
her parents.
[6]
Lea did not reply. Alan narrated that, when he reported for work the
following day, Lea was still in the house, but when he arrived home later in the day, Lea
was nowhere to be found.
[7]
Alan thought that Lea merely went to her parents house in
Bliss, Sto. Nio, Catbalogan, Samar.
[8]
However, Lea did not return to their house
anymore.

Alan further testified that, on February 14, 1995, after his work, he went to the
house of Leas parents to see if she was there, but he was told that she was not there.
He also went to the house of Leas friend, Janeth Bautista, at Barangay Canlapwas, but
he was informed by Janettes brother-in-law, Nelson Abaenza, that Janeth had left for
Manila.
[9]
When Alan went back to the house of his parents-in-law, he learned from his
father-in-law that Lea had been to their house but that she left without notice.
[10]
Alan
sought the help ofBarangay Captain Juan Magat, who promised to help him locate his
wife. He also inquired from his friends of Leas whereabouts but to no avail.
[11]


Sometime in June 1995, he decided to go to Manila to look for Lea, but his
mother asked him to leave after the town fiesta of Catbalogan, hoping that Lea may
come home for the fiesta. Alan agreed.
[12]
However, Lea did not show up. Alan then left
for Manila on August 27, 1995. He went to a house in Navotas where Janeth, Leas
friend, was staying. When asked where Lea was, Janeth told him that she had not seen
her.
[13]
He failed to find out Leas whereabouts despite his repeated talks with Janeth.
Alan decided to work as a part-time taxi driver. On his free time, he would look for Lea
in the malls but still to no avail. He returned to Catbalogan in 1997 and again looked for
his wife but failed.
[14]


On June 20, 2001, Alan reported Leas disappearance to the local police
station.
[15]
The police authorities issued an Alarm Notice on July 4, 2001.
[16]
Alan also
reported Leas disappearance to the National Bureau of Investigation (NBI) on July 9,
2001.
[17]


Barangay Captain Juan Magat corroborated the testimony of Alan. He declared
that on February 14, 1995, at 2:00 p.m., Alan inquired from him if Lea passed by his
house and he told Alan that she did not. Alan also told him that Lea had disappeared.
He had not seen Lea in the barangay ever since.
[18]
Leas father, who was
his compadre and the owner of Radio DYMS, told him that he did not know where Lea
was.
[19]


After Alan rested his case, neither the Office of the Provincial Prosecutor nor the
Solicitor General adduced evidence in opposition to the petition.

On January 8, 2002, the court rendered judgment granting the petition.
The fallo of the decision reads:

WHEREFORE, and in view of all the foregoing, petitioners absent
spouse ROSALIA JULATON is hereby declared PRESUMPTIVELY
DEAD for the purpose of the petitioners subsequent marriage under
Article 41 of the Family Code of the Philippines, without prejudice to the
effect of reappearance of the said absent spouse.

SO ORDERED.
[20]


The OSG appealed the decision to the Court of Appeals (CA) which rendered
judgment on August 4, 2003, affirming the decision of the RTC.
[21]
The CA cited the
ruling of this Court in Republic v. Nolasco.
[22]


The OSG filed a petition for review on certiorari of the CAs decision alleging that
respondent Alan B. Alegro failed to prove that he had a well-founded belief that Lea was
already dead.
[23]
It averred that the respondent failed to exercise reasonable and diligent
efforts to locate his wife. The respondent even admitted that Leas father told him on
February 14, 1995 that Lea had been to their house but left without notice. The OSG
pointed out that the respondent reported his wifes disappearance to the local police and
also to the NBI only after the petitioner filed a motion to dismiss the petition. The
petitioner avers that, as gleaned from the evidence, the respondent did not really want to
find and locate Lea. Finally, the petitioner averred:
In view of the summary nature of proceedings under Article 41 of
the Family Code for the declaration of presumptive death of ones
spouse, the degree of due diligence set by this Honorable Court in the
above-mentioned cases in locating the whereabouts of a missing spouse
must be strictly complied with. There have been times when Article 41 of
the Family Code had been resorted to by parties wishing to remarry
knowing fully well that their alleged missing spouses are alive and well. It
is even possible that those who cannot have their marriages x x x
declared null and void under Article 36 of the Family Code resort to Article
41 of the Family Code for relief because of the x x x summary nature of
its proceedings.

It is the policy of the State to protect and strengthen the family as
a basic social institution. Marriage is the foundation of the family. Since
marriage is an inviolable social institution that the 1987 Constitution seeks
to protect from dissolution at the whim of the parties. For respondents
failure to prove that he had a well-founded belief that his wife is already
dead and that he exerted the required amount of diligence in searching
for his missing wife, the petition for declaration of presumptive death
should have been denied by the trial court and the Honorable Court of
Appeals.
[24]


The petition is meritorious.

Article 41 of the Family Code of the Philippines 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 under the circumstances set forth in
the provisions of Article 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.
[25]



The spouse present is, thus, burdened to prove that his spouse has been absent
and that he has a well-founded belief that the absent spouse is already dead before the
present spouse may contract a subsequent marriage. The law does not define what is
meant by a well-grounded belief. Cuello Callon writes that es menester que su creencia
sea firme se funde en motivos racionales.
[26]


Belief is a state of the mind or condition prompting the doing of an overt act. It
may be proved by direct evidence or circumstantial evidence which may tend, even in a
slight degree, to elucidate the inquiry or assist to a determination probably founded in
truth. Any fact or circumstance relating to the character, habits, conditions, attachments,
prosperity and objects of life which usually control the conduct of men, and are the
motives of their actions, was, so far as it tends to explain or characterize their
disappearance or throw light on their intentions,
[27]
competence evidence on the ultimate
question of his death.

The belief of the present spouse must be the result of proper and honest to
goodness inquiries and efforts to ascertain the whereabouts of the absent spouse and
whether the absent spouse is still alive or is already dead. Whether or not the spouse
present acted on a well-founded belief of death of the absent spouse depends upon the
inquiries to be drawn from a great many circumstances occurring before and after the
disappearance of the absent spouse and the nature and extent of the inquiries made by
present spouse.
[28]


Although testimonial evidence may suffice to prove the well-founded belief of the
present spouse that the absent spouse is already dead, in Republic v. Nolasco,
[29]
the
Court warned against collusion between the parties when they find it impossible to
dissolve the marital bonds through existing legal means. It is also the maxim that men
readily believe what they wish to be true.

In this case, the respondent failed to present a witness other
than Barangay Captain Juan Magat. The respondent even failed to present Janeth
Bautista or Nelson Abaenza or any other person from whom he allegedly made inquiries
about Lea to corroborate his testimony. On the other hand, the respondent admitted that
when he returned to the house of his parents-in-law on February 14, 1995, his father-in-
law told him that Lea had just been there but that she left without notice.
The respondent declared that Lea left their abode on February 7, 1995 after he
chided her for coming home late and for being always out of their house, and told her
that it would be better for her to go home to her parents if she enjoyed the life of a single
person. Lea, thus, left their conjugal abode and never returned. Neither did she
communicate with the respondent after leaving the conjugal abode because of her
resentment to the chastisement she received from him barely a month after their
marriage. What is so worrisome is that, the respondent failed to make inquiries from his
parents-in-law regarding Leas whereabouts before filing his petition in the RTC. It could
have enhanced the credibility of the respondent had he made inquiries from his parents-
in-law about Leas whereabouts considering that Leas father was the owner of Radio
DYMS.

The respondent did report and seek the help of the local police authorities and the
NBI to locate Lea, but it was only an afterthought. He did so only after the OSG filed its
notice to dismiss his petition in the RTC.

In sum, the Court finds and so holds that the respondent failed to prove that he
had a well-founded belief, before he filed his petition in the RTC, that his spouse Rosalia
(Lea) Julaton was already dead.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of
the Court of Appeals in CA-G.R. CV No. 73749 is REVERSED and SET
ASIDE. Consequently, the Regional Trial Court of Catbalogan, Samar, Branch 27,
is ORDERED to DISMISS the respondents petition.

SO ORDERED.

ROMEO J. CALLEJO, SR.
Associate Justice


WE CONCUR:


REYNATO S. PUNO
Associate Justice
Chairman



MA. ALICIA AUSTRIA-MARTINEZ DANTE O. TINGA
Associate Justice Associate Justice



MINITA V. CHICO-NAZARIO
Associate Justice



ATTESTATION

I attest that the conclusions in the above decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.


REYNATO S. PUNO
Associate Justice
Chairman, Second Division


C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairmans Attestation, it is hereby certified that the conclusions in the above decision
were reached in consultation before the case was assigned to the writer of the opinion of
the Courts Division.



HILARIO G. DAVIDE, JR.
Chief Justice

DIGEST
FACTS:


Alan Alegro, the petitioner, was married with Lea in January 1995. Lea arrived home late
in February 1995 and Alan told her that if she enjoys life of a single person, it will be
better for her to go back to her parents. Lea left after that fight. Allan checked if she went
to her parents house but was not there and even inquired to her friends. He went back
to the parents-in-laws house and learned that Lea had been to their house but left
without notice. He then sought help from the Barangay Captain. For sometime, Alan
decided to work as part-time taxi driver and during his free time he would look for Lea in
the malls. In June 2001, Alan reported Leas disappearance to the local police station
and an alarm notice was issued. He also reported the disappearance in NBI on July
2001. Alan filed a petition in March 2001 for the declaration of presumptive death of his
wife.


ISSUE: Whether Alan has a well-founded belief that his wife is already dead.


HELD:


The court ruled that Alan failed to prove that he has a well-founded belief, before he filed
his petition with RTC, that his spouse was dead. He failed to present a witness other
than the Barangay Captain. He even failed to present those friends of Lea which he
inquired to corroborate his testimony. He also failed to make inquiries from his parents-
in-law regarding Leas whereabouts before filing his petition in the RTC. It could have
enhanced his credibility had he made inquiries from his parents-in-law about Lea's
whereabouts considering that Lea's father was the owner of Radio DYMS. He did report
and seek help of the local police authorities and NBI to locate Lea but he did so only
after the OSG filed its notice to dismiss his petition in RTC.

Valdez. Vs. Republic (G.R. No. 180863, 8 Septemeber 2009)
THIRD DIVISION

ANGELITA VALDEZ,
Petitioner,




- versus -





REPUBLIC OF THE PHILIPPINES,
Respondent.

G.R. No. 180863

Present:

YNARES-SANTIAGO, J.,
Chairperson,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA, and
PERALTA, JJ.

Promulgated:

September 8, 2009

x------------------------------------------------------------------------------------x


DECISION

NACHURA, J .:





Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules
of Court assailing the Decision of the Regional Trial Court (RTC) of Camiling, Tarlac
dated November 12, 2007 dismissing petitioner Angelita Valdezs petition for the
declaration of presumptive death of her husband, Sofio Polborosa (Sofio).

The facts of the case are as follows:

Petitioner married Sofio on January 11, 1971 in Pateros, Rizal. On December 13,
1971, petitioner gave birth to the spouses only child, Nancy. According to petitioner, she
and Sofio argued constantly because the latter was unemployed and did not bring home
any money. In March 1972, Sofio left their conjugal dwelling. Petitioner and their child
waited for him to return but, finally, in May 1972, petitioner decided to go back to her
parents home in Bancay 1
st
, Camiling, Tarlac. Three years passed without any word
from Sofio. In October 1975, Sofio showed up at Bancay 1
st
. He and petitioner talked for
several hours and they agreed to separate. They executed a document to that
effect.
[1]
That was the last time petitioner saw him. After that, petitioner didnt hear any
news of Sofio, his whereabouts or even if he was alive or not.
[2]


Believing that Sofio was already dead, petitioner married Virgilio Reyes on June
20, 1985.
[3]
Subsequently, however, Virgilios application for naturalization filed with the
United States Department of Homeland Security was denied because petitioners
marriage to Sofio was subsisting.
[4]
Hence, on March 29, 2007, petitioner filed a Petition
before the RTC of Camiling, Tarlac seeking the declaration of presumptive death of
Sofio.

The RTC rendered its Decision
[5]
on November 12, 2007, dismissing the Petition
for lack of merit. The RTC held that Angelita was not able to prove the well-grounded
belief that her husband Sofio Polborosa was already dead. It said that under Article 41
of the Family Code, the present spouse is burdened to prove that her spouse has been
absent and that she has a well-founded belief that the absent spouse is already dead
before the present spouse may contract a subsequent marriage. This belief, the RTC
said, must be the result of proper and honest-to-goodness inquiries and efforts to
ascertain the whereabouts of the absent spouse.

The RTC found that, by petitioners own admission, she did not try to find her
husband anymore in light of their mutual agreement to live separately. Likewise,
petitioners daughter testified that her mother prevented her from looking for her father.
The RTC also said there is a strong possibility that Sofio is still alive, considering that he
would have been only 61 years old by then, and people who have reached their 60s
have not become increasingly low in health and spirits, and, even assuming as true
petitioners testimony that Sofio was a chain smoker and a drunkard, there is no
evidence that he continues to drink and smoke until now.

Petitioner filed a motion for reconsideration.
[6]
She argued that it is the Civil Code
that applies in this case and not the Family Code since petitioners marriage to Sofio was
celebrated on January 11, 1971, long before the Family Code took effect. Petitioner
further argued that she had acquired a vested right under the provisions of the Civil
Code and the stricter provisions of the Family Code should not be applied against her
because Title XIV of the Civil Code, where Articles 384 and 390 on declaration of
absence and presumption of death, respectively, can be found, was not expressly
repealed by the Family Code. To apply the stricter provisions of the Family Code will
impair the rights petitioner had acquired under the Civil Code.

The RTC denied the Motion for Reconsideration in a Resolution dated December
10, 2007.
[7]


Petitioner now comes before this Court seeking the reversal of the RTC Decision
and Motion for Reconsideration.

In its Manifestation and Motion,
[8]
the Office of the Solicitor General (OSG)
recommended that the Court set aside the assailed RTC Decision and grant the Petition
to declare Sofio presumptively dead. The OSG argues that the requirement of well-
founded belief under Article 41 of the Family Code is not applicable to the instant case.
It said that petitioner could not be expected to comply with this requirement because it
was not yet in existence during her marriage to Virgilio Reyes in 1985. The OSG further
argues that before the effectivity of the Family Code, petitioner already acquired a
vested right as to the validity of her marriage to Virgilio Reyes based on the presumed
death of Sofio under the Civil Code. This vested right and the presumption of Sofios
death, the OSG posits, could not be affected by the obligations created under the Family
Code.
[9]


Next, the OSG contends that Article 390 of the Civil Code was not repealed by
Article 41 of the Family Code.
[10]
Title XIV of the Civil Code, the OSG said, was not one
of those expressly repealed by the Family Code. Moreover, Article 256 of the Family
Code provides that its provisions shall not be retroactively applied if they will prejudice or
impair vested or acquired rights.
[11]


The RTC Decision, insofar as it dismissed the Petition, is affirmed. However, we
must state that we are denying the Petition on grounds different from those cited in the
RTC Decision.

Initially, we discuss a procedural issue. Under the Rules of Court, a party may
directly appeal to this Court from a decision of the trial court only on pure questions of
law. A question of law lies, on one hand, when the doubt or difference arises as to what
the law is on a certain set of facts; on the other hand, a question of fact exists when the
doubt or difference arises as to the truth or falsehood of the alleged facts. Here, the facts
are not disputed; the controversy merely relates to the correct application of the law or
jurisprudence to the undisputed facts.
[12]


The RTC erred in applying the provisions of the Family Code and holding that
petitioner needed to prove a well-founded belief that Sofio was already dead. The RTC
applied Article 41 of the Family Code, to wit:

Art. 41. A marriage contracted by any person during 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 has a well-
founded belief that the absent spouse was already dead. In case of
disappearance where there is danger under the circumstances set forth in
the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

For the purpose of contracting a 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.


It is readily apparent, however, that the marriages of petitioner to Sofio and
Virgilio on January 11, 1971 and June 20, 1985, respectively, were both celebrated
under the auspices of the Civil Code.

The pertinent provision of the Civil Code is Article 83:

Art. 83. Any marriage subsequently contracted by any person
during the lifetime of the first spouse of such person with any person
other than such first spouse shall be illegal and void from its performance,
unless:

(1) The first marriage was annulled or dissolved; or

(2) The first spouse had been absent for seven consecutive years
at the time of the second marriage without the spouse present having
news of the absentee being alive, of if the absentee, though he has been
absent for less than seven years, is generally considered as dead and
believed to be so by the spouse present at the time of contracting such
subsequent marriage, or if the absentee is presumed dead according to
Articles 390 and 391. The marriage so contracted shall be valid in any of
the three cases until declared null and void by a competent court.


Article 390 of the Civil Code states:

Art. 390. After an absence of seven years, it being unknown
whether or not the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of
opening his succession till after an absence of ten years. If he
disappeared after the age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may be opened.


The Court, on several occasions, had interpreted the above-quoted provision in
this wise:

For the purposes of the civil marriage law, it is not necessary to have the
former spouse judicially declared an absentee. The declaration of
absence made in accordance with the provisions of the Civil Code has for
its sole purpose to enable the taking of the necessary precautions for the
administration of the estate of the absentee. For the celebration of civil
marriage, however, the law only requires that the former spouse has been
absent for seven consecutive years at the time of the second marriage,
that the spouse present does not know his or her former spouse to be
living, that such former spouse is generally reputed to be dead and the
spouse present so believes at the time of the celebration of the
marriage.
[13]



Further, the Court explained that presumption of death cannot be the subject of court
proceedings independent of the settlement of the absentees estate.

In re Szatraw
[14]
is instructive. In that case, petitioner contracted marriage with a
Polish national in 1937. They lived together as husband and wife for three years.
Sometime in 1940, the husband, on the pretext of visiting some friends, left the conjugal
abode with their child and never returned. After inquiring from friends, petitioner found
that her husband went to Shanghai, China. However, friends who came
from Shanghai told her that the husband was not seen there. In 1948, petitioner filed a
petition for the declaration of presumptive death of her husband arguing that since the
latter had been absent for more than seven years and she had not heard any news from
him and about her child, she believes that he is dead. In deciding the case, the Court
said:

The petition is not for the settlement of the estate of Nicolai
Szatraw, because it does not appear that he possessed property brought
to the marriage and because he had acquired no property during his
married life with the petitioner. The rule invoked by the latter is merely
one of evidence which permits the court to presume that a person is dead
after the fact that such person had been unheard from in seven years had
been established. This presumption may arise and be invoked and made
in a case, either in an action or in a special proceeding, which is tried or
heard by, and submitted for decision to, a competent
court. Independently of such an action or special proceeding, the
presumption of death cannot be invoked, nor can it be made the
subject of an action or special proceeding. In this case, there is no
right to be enforced nor is there a remedy prayed for by the petitioner
against her absent husband. Neither is there a prayer for the final
determination of his right or status or for the ascertainment of a particular
fact (Hagans v. Wislizenus, 42 Phil. 880), for the petition does not pray for
a declaration that the petitioner's husband is dead, but merely asks for a
declaration that he be presumed dead because he had been unheard
from in seven years. If there is any pretense at securing a declaration that
the petitioner's husband is dead, such a pretension cannot be granted
because it is unauthorized. The petition is for a declaration that the
petitioner's husband is presumptively dead. But this declaration, even if
judicially made, would not improve the petitioner's situation, because such
a presumption is already established by law. A judicial pronouncement
to that effect, even if final and executory, would still be a prima facie
presumption only. It is still disputable. It is for that reason that it
cannot be the subject of a judicial pronouncement or declaration, if
it is the only question or matter involved in a case, or upon which a
competent court has to pass. The latter must decide finally the
controversy between the parties, or determine finally the right or status of
a party or establish finally a particular fact, out of which certain rights and
obligations arise or may arise; and once such controversy is decided by a
final judgment, or such right or status determined, or such particular fact
established, by a final decree, then the judgment on the subject of the
controversy, or the decree upon the right or status of a party or upon the
existence of a particular fact, becomes res judicata, subject to no
collateral attack, except in a few rare instances especially provided by
law. It is, therefore, clear that a judicial declaration that a person is
presumptively dead, because he had been unheard from in seven
years, being a presumption juris tantum only, subject to contrary
proof, cannot reach the stage of finality or become final. Proof of
actual death of the person presumed dead because he had been unheard
from in seven years, would have to be made in another proceeding to
have such particular fact finally determined. If a judicial decree declaring
a person presumptively dead, because he had not been heard from in
seven years, cannot become final and executory even after the lapse of
the reglementary period within which an appeal may be taken, for such
presumption is still disputable and remains subject to contrary proof, then
a petition for such a declaration is useless, unnecessary, superfluous and
of no benefit to the petitioner.
[15]



In Lukban v. Republic,
[16]
petitioner Lourdes G. Lukban contracted marriage with
Francisco Chuidian on December 10, 1933. A few days later, on December 27,
Francisco leftLourdes after a violent quarrel. She did not hear from him after that
day. Her diligent search, inquiries from his parents and friends, and search in his last
known address, proved futile. Believing her husband was already dead since he had
been absent for more than twenty years, petitioner filed a petition in 1956 for a
declaration that she is a widow of her husband who is presumed to be dead and has no
legal impediment to contract a subsequent marriage. On the other hand, the
antecedents in Gue v. Republic
[17]
are similar to Szatraw. On January 5, 1946, Angelina
Gues husband left Manila where they were residing and went to Shanghai, China. From
that day on, he had not been heard of, had not written to her, nor in anyway
communicated with her as to his whereabouts. Despite her efforts and diligence, she
failed to locate him. After 11 years, she asked the court for a declaration of the
presumption of death of Willian Gue, pursuant to the provisions of Article 390 of the Civil
Code of the Philippines.

In both cases, the Court reiterated its ruling in Szatraw. It held that a petition for
judicial declaration that petitioner's husband is presumed to be dead cannot be
entertained because it is not authorized by law.
[18]


From the foregoing, it can be gleaned that, under the Civil Code, the presumption
of death is established by law
[19]
and no court declaration is needed for the presumption
to arise. Since death is presumed to have taken place by the seventh year of
absence,
[20]
Sofio is to be presumed dead starting October 1982.

Consequently, at the time of petitioners marriage to Virgilio, there existed no
impediment to petitioners capacity to marry, and the marriage is valid under paragraph 2
of Article 83 of the Civil Code.

Further, considering that it is the Civil Code that applies, proof of well-founded
belief is not required. Petitioner could not have been expected to comply with this
requirement since the Family Code was not yet in effect at the time of her marriage to
Virgilio. The enactment of the Family Code in 1988 does not change this conclusion. The
Family Code itself states:

Art. 256. This Code shall have retroactive effect insofar as it does
not prejudice or impair vested or acquired rights in accordance with the
Civil Code or other laws.


To retroactively apply the provisions of the Family Code requiring petitioner to
exhibit well-founded belief will, ultimately, result in the invalidation of her second
marriage, which was valid at the time it was celebrated. Such a situation would be
untenable and would go against the objectives that the Family Code wishes to achieve.

In sum, we hold that the Petition must be dismissed since no decree on the
presumption of Sofios death can be granted under the Civil Code, the same
presumption having arisen by operation of law. However, we declare that petitioner was
capacitated to marry Virgilio at the time their marriage was celebrated in 1985 and,
therefore, the said marriage is legal and valid.

WHEREFORE, the foregoing premises considered, the Petition is DENIED.

SO ORDERED.


ANTONIO EDUARDO B. NACHURA
Associate Justice


WE CONCUR:



CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson





MINITA V. CHICO-NAZARIO
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice



DIOSDADO M. PERALTA
Associate Justice


A T T E S T A T I O N

I attest that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.



CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division


C E R T I F I C A T I O N

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 in consultation before the case was assigned to the writer of the opinion of the
Courts Division.



REYNATO S. PUNO
Chief Justice

DIGEST
FACTS:

Angelita Valdez was married with Sofio in January 1971. She gave birth to a baby girl
named Nancy. They argued constantly because Sofio was unemployed and did not
bring home any money. In March 1972, the latter left their house. Angelita and her child
waited until in May 1972, they decided to go back to her parents home. 3 years have
passed without any word from Sofio until in October 1975 when he showed up and they
agreed to separate and executed a document to that effect. It was the last time they
saw each other and had never heard of ever since. Believing that Sofio was already
dead, petitioner married Virgilio Reyes in June 1985. Virgilios application for
naturalization in US was denied because petitioners marriage with Sofio was subsisting.
Hence, in March 2007, petitioner filed a petition seeking declaration of presumptive
death of Sofio.

ISSUE: Whether or not petitioners marriage with Virgilio is valid despite lack of
declaration of presumptive death of Sofio.

HELD:

The court ruled that no decree on the presumption of Sofios death is necessary
because Civil Code governs during 1971 and not Family Code where at least 7
consecutive years of absence is only needed. Thus, petitioner was capacitated to marry
Virgilio and their marriage is legal and valid.

Article 45-46
Anaya vs. Palaroan (36 SCRA 97)
G.R. No. L-27930 November 26, 1970
AURORA A. ANAYA, plaintiff-appellant,
vs.
FERNANDO O. PALAROAN, defendant-appellee.
Isabelo V. Castro for plaintiff-appellant.
Arturo A. Romero for defendant-appellee.

REYES, J.B.L., J .:
Appeal from an order of dismissal, issued motu proprio by the Juvenile & Domestic
Relations Court, Manila, of a complaint for annulment of marriage, docketed therein as
Civil Case No. E-00431, entitled "Aurora A. Anaya, plaintiff vs. Fernando O. Palaroan,
defendant."
The complaint in said Civil Case No. E-00431 alleged, inter alia, that plaintiff Aurora and
defendant Fernando were married on 4 December 1953; that defendant Fernando filed
an action for annulment of the marriage on 7 January 1954 on the ground that his
consent was obtained through force and intimidation, which action was docketed in the
Court of First Instance of Manila as Civil Case No. 21589; that judgment was rendered
therein on 23 September 1959 dismissing the complaint of Fernando, upholding the
validity of the marriage and granting Aurora's counterclaim; that (per paragraph IV) while
the amount of the counterclaim was being negotiated "to settle the judgment," Fernando
had divulged to Aurora that several months prior to their marriage he had pre-marital
relationship with a close relative of his; and that "the non-divulgement to her of the
aforementioned pre-marital secret on the part of defendant that definitely wrecked their
marriage, which apparently doomed to fail even before it had hardly commenced ... frank
disclosure of which, certitude precisely precluded her, the Plaintiff herein from going thru
the marriage that was solemnized between them constituted 'FRAUD', in obtaining her
consent, within the contemplation of No. 4 of Article 85 of the Civil Code" (sic) (Record
on Appeal, page 3). She prayed for the annulment of the marriage and for moral
damages.
Defendant Fernando, in his answer, denied the allegation in paragraph IV of the
complaint and denied having had pre-marital relationship with a close relative; he
averred that under no circumstance would he live with Aurora, as he had escaped from
her and from her relatives the day following their marriage on 4 December 1953; that he
denied having committed any fraud against her. He set up the defenses of lack of cause
of action and estoppel, for her having prayed in Civil Case No. 21589 for the validity of
the marriage and her having enjoyed the support that had been granted her. He
counterclaimed for damages for the malicious filing of the suit. Defendant Fernando did
not pray for the dismissal of the complaint but for its dismissal "with respect to the
alleged moral damages."
Plaintiff Aurora filed a reply with answer to the counterclaim, wherein she alleged:
(1) that prior to their marriage on 4 December 1953, he paid court to her,
and pretended to shower her with love and affection not because he
really felt so but because she merely happened to be the first girl
available to marry so he could evade marrying the close relative of his
whose immediate members of her family were threatening him to force
him to marry her (the close relative);
(2) that since he contracted the marriage for the reason intimated by him,
and not because he loved her, he secretly intended from the very
beginning not to perform the marital duties and obligations appurtenant
thereto, and furthermore, he covertly made up his mind not to live with
her;
(3) that the foregoing clandestine intentions intimated by him were
prematurely concretized for him, when in order to placate and appease
the immediate members of the family of the first girl (referent being the
close relative) and to convince them of his intention not to live with
plaintiff, carried on a courtship with a third girl with whom, after gaining
the latter's love cohabited and had several children during the whole
range of nine years that Civil Case No. 21589, had been litigated between
them (parties); (Record on Appeal, pages 10-11)
Failing in its attempt to have the parties reconciled, the court set the case for trial on 26
August 1966 but it was postponed. Thereafter, while reviewing the expendiente, the
court realized that Aurora's allegation of the fraud was legally insufficient to invalidate
her marriage, and, on the authority of Brown vs. Yambao, 102 Phil. 168, holding:
It is true that the wife has not interposed prescription as a defense.
Nevertheless, the courts can take cognizance thereof, because actions
seeking a decree of legal separation, or annulment of marriage, involve
public interest, and it is the policy of our law that no such decree be
issued if any legal obstacles thereto appear upon the record.
the court a quo required plaintiff to show cause why her complaint should
not be dismissed. Plaintiff Aurora submitted a memorandum in
compliance therewith, but the court found it inadequate and thereby
issued an order, dated 7 October 1966, for the dismissal of the complaint;
it also denied reconsideration.
The main issue is whether or not the non-disclosure to a wife by her husband of his pre-
marital relationship with another woman is a ground for annulment of marriage.
We must agree with the lower court that it is not. For fraud as a vice of consent in
marriage, which may be a cause for its annulment, comes under Article 85, No. 4, of the
Civil Code, which provides:
ART. 85. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:
xxx xxx xxx
(4) That the consent of either party was obtained by fraud, unless such
party afterwards, with full knowledge of the facts constituting the fraud,
freely cohabited with the other as her husband or his wife, as the case
may be;
This fraud, as vice of consent, is limited exclusively by law to those kinds
or species of fraud enumerated in Article 86, as follows:
ART. 86. Any of the following circumstances shall constitute fraud
referred to in number 4 of the preceding article:
(1) Misrepresentation as to the identity of one of the
contracting parties;
(2) Non-disclosure of the previous conviction of the other
party of a crime involving moral turpitude, and the penalty
imposed was imprisonment for two years or more;
(3) Concealment by the wife of the fact that at the time of
the marriage, she was pregnant by a man other than her
husband.
No other misrepresentation or deceit as to character, rank, fortune or
chastity shall constitute such fraud as will give grounds for action for the
annulment of marriage.
The intention of Congress to confine the circumstances that can constitute fraud as
ground for annulment of marriage to the foregoing three cases may be deduced from the
fact that, of all the causes of nullity enumerated in Article 85, fraud is the only one given
special treatment in a subsequent article within the chapter on void and voidable
marriages. If its intention were otherwise, Congress would have stopped at Article 85,
for, anyway, fraud in general is already mentioned therein as a cause for annulment. But
Article 86 was also enacted, expressly and specifically dealing with "fraud referred to in
number 4 of the preceding article," and proceeds by enumerating the specific frauds
(misrepresentation as to identity, non-disclosure of a previous conviction, and
concealment of pregnancy), making it clear that Congress intended to exclude all other
frauds or deceits. To stress further such intention, the enumeration of the specific frauds
was followed by the interdiction: "No other misrepresentation or deceit as to character,
rank, fortune or chastity shall constitute such fraud as will give grounds for action for the
annulment of marriage."
Non-disclosure of a husband's pre-marital relationship with another woman is not one of
the enumerated circumstances that would constitute a ground for annulment; and it is
further excluded by the last paragraph of the article, providing that "no other
misrepresentation or deceit as to ... chastity" shall give ground for an action to annul a
marriage. While a woman may detest such non-disclosure of premarital lewdness or feel
having been thereby cheated into giving her consent to the marriage, nevertheless the
law does not assuage her grief after her consent was solemnly given, for upon marriage
she entered into an institution in which society, and not herself alone, is interested. The
lawmaker's intent being plain, the Court's duty is to give effect to the same, whether it
agrees with the rule or not.
But plaintiff-appellant Anaya emphasizes that not only has she alleged "non-
divulgement" (the word chosen by her) of the pre-marital relationship of her husband
with another woman as her cause of action, but that she has, likewise, alleged in her
reply that defendant Fernando paid court to her without any intention of complying with
his marital duties and obligations and covertly made up his mind not to live with her.
Plaintiff-appellant contends that the lower court erred in ignoring these allegations in her
reply.
This second set of averments which were made in the reply (pretended love and
absence of intention to perform duties of consortium) is an entirely new and additional
"cause of action." According to the plaintiff herself, the second set of allegations is
"apart, distinct and separate from that earlier averred in the Complaint ..." (Record on
Appeal, page 76). Said allegations were, therefore, improperly alleged in the reply,
because if in a reply a party-plaintiff is not permitted to amend or change the cause of
action as set forth in his complaint (Calo vs. Roldan, 76 Phil. 445), there is more reason
not to allow such party to allege a new and additional cause of action in the reply.
Otherwise, the series of pleadings of the parties could become interminable.
On the merits of this second fraud charge, it is enough to point out that any secret
intention on the husband's part not to perform his marital duties must have been
discovered by the wife soon after the marriage: hence her action for annulment based on
that fraud should have been brought within four years after the marriage. Since
appellant's wedding was celebrated in December of 1953, and this ground was only
pleaded in 1966, it must be declared already barred.
FOR THE FOREGOING REASONS, the appealed order is hereby affirmed. No costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and
Villamor, JJ., concur.
Dizon and Makasiar, JJ., are on leave.
DIGEST
FACTS:

Aurora Anaya and Fernando Palaroan were married in 1953. Palaroan filed an action
for annulment of the marriage in 1954 on the ground that his consent was obtained
through force and intimidation. The complaint was dismissed and upheld the validity of
the marriage and granting Auroras counterclaim. While the amount of counterclaim was
being negotiated, Fernando divulged to her that several months prior to their marriage,
he had pre-marital relationship with a close relative of his. According to her, the non-
divulgement to her of such pre-marital secret constituted fraud in obtaining her consent.
She prayed for the annulment of her marriage with Fernando on such ground.

ISSUE: Whether or not the concealment to a wife by her husband of his pre-marital
relationship with another woman is a ground for annulment of marriage.

HELD:
The concealment of a husbands pre-marital relationship with another woman was not
one of those enumerated that would constitute fraud as ground for annulment and it is
further excluded by the last paragraph providing that no other misrepresentation or
deceit as to.. chastity shall give ground for an action to annul a marriage. Hence, the
case at bar does not constitute fraud and therefore would not warrant an annulment of
marriage.

Buccat vs. Buccat (72 Phil. 19)
G.R. No. 47101 April 25, 1941
GODOFREDO BUCCAT, demandante-apelante,
vs.
LUIDA MANGONON DE BUCCAT, demandada-apelada.
D. Feliciano Leviste, D. Tomas P. Panganiban y Doa Sotera N. Megia en
representacion del apelante.
Doa Luida Mangonon de Buccat en su propia representacion.
HORRILLENO, J .:
Este asunto se ha elevado a esta Superioridad por el Juzgado de Primera Instancia de
Baguio, ya que solo suscita una cuestion puramente de derecho.
El 20 de marzo de 1939 el demandante inico la presento causa, en la que no
comparecio la demandada, no obstante haber sido debidamente emplazada. Por lo que,
permitido el demandante a presentar sus pruebas, el Juzgado inferior fallo el asunto a
favor de la demandada. De ahi esta apelacion.
El demandante pide la anulacion de su matrimonio habido con la demandada Luida
Mangonon de Buccat el 26 de noviembre de 1938, en la Ciudad de Baguio, fundandose
en que, al consentir en dicho matrimonio, lo hizo porque la demandada le habia
asegurado que ella era virgen.
De la decision del Juzgado inferior se desprenden los siguientes hechos:
El demandante conocio a la demandada el mes de marzo de 1938. Despues de varias
entrevistas, ambos quedaron comprometidos el 19 de septiembre del mismo ao. El 26
de noviembre de igual ao, el demandante contrajo matrimonio con la demandada en la
catedrla catolica de la Ciudad de Baguio. Desoues de convivir maritalmente por espacio
de ochenta y nueve dias, la demandada dio a luz un nio de nueve meses, el 23 de
febrero de 1939. De resultas de este acontecimiento, el demandante abandono a la
demandada y no volvio a hacer vida marital con ella.
No vemos razon alguna para revocar la sentencia apelada. En efecto, es inverosimil la
alegacion del demandante y apelante que el ni siguiera habia sospechado el estado
gravido de la demandada, estando esta, como queda probado, en condicion preada
muy avanzada. Por lo que no ha lugar a estimar el fraude de que habla el apelante. Lo
alegado por este en el sentido de que no ses raro hallar a personas de abdomen
desarrollado, nos parece pueril para merecer nuestra consideracion, tanto mas cuanto
que el demandante era estudiante de primer ao de derecho.
El matrimonio es una institucion sacratisima: es el cimiento en que descansa la
sociedad. Para anularlo, son menester pruebas claras y fehacientes. En este asunto no
existen tales pruebas.
Hallando la sentencia apelada ajustada a derecho, debe ser confirmada, como por la
presente la confirmamos, en todas sus partes, con las costas al apelante. Asi se ordena.
Avancea, Pres., Imperial, Diaz y Laurel, MM., estan conformes.
DIGEST
Buccat v Buccat de Mangonon GR No. 47101 April 25, 1941

GODOFREDO BUCCAT
, plaintiff-appellant,vs.
LUIDA MANGONON DE BUCCAT,
defendant-respondent.
HORRILLENO,
J.:
FACTS:1.It was established before the trial court:a. The Plaintiff met the defendant in
March 1938b.After several interviews, both were committed on September 19 of that
yearc.On November 26 the same year, the plaintiff married the defendant in aCatholic
Cathedral in Baguiod.They, then, cohabited for about eighty-nine dayse.Defendant gave
birth to a child of nine months on February 23, 1939f.Following this event, Plaintiff and
Defendant separated.2.On March 20, 1939 the plaintiff filed an action for annulment of
marriage before theCFI of Baguio City. The plaintiff claimed that he consented to the
marriage becausethe defendant assured him that she was virgin.3.The trial court
dismissed the complaint. Hence, this appeal.BASICALLY: Godofredo Buccat (Plaintiff)
and Luida Mangonon (Defendant) got married onNovember 26, 1938. Luida gave birth
after 89 days and on March 20, 1939 Godofredo filedfor annulment of marriage before
the CFI because he was led to believe by Luida that shewas a virgin. The trial court
dismissed the complaint, so Godofredo appealed.ISSUE: Whether or not there was
fraud in obtaining the consent of Plaintiff to the marriage?DECISION: There is no fraud
because: The Supreme Court states that: We see no reason to overturn the ruling
appealed. It isunlikely that the plaintiff, Godofredo, had not suspected that the
defendant, Luida, waspregnant. (As she gave birth less than 3 months after they got
married, she must havelooked very pregnant even before they were married.) Since
Godofredo must have knownthat she was not a virgin, the marriage cannot be annulled.
The Sacred Marriage is an institution: it is the foundation on which society rests. To
cancel it,reliable evidence is necessary.*Consent freely given: ARTICLE 4 and 45 FC.

Aquino vs. Delizo (109 Phil. 21
G.R. No. L-15853 July 27, 1960
FERNANDO AQUINO, petitioner,
vs.
CONCHITA DELIZO, respondent.
GUTIERREZ DAVID, J .:
This is a petition for certiorari to review a decision of the Court of Appeals affirming that
of the Court of First Instance of Rizal which dismissed petitioner's complaint for
annulment of his marriage with respondent Conchita Delizo.
The dismissed complaint, which was filed on September 6, 1955, was based on the
ground of fraud, it being alleged, among other things, that defendant Conchita Delizo,
herein respondent, at the date of her marriage to plaintiff, herein petitioner Fernando
Aquino, on December 27, 1954, concealed from the latter that fact that she was
pregnant by another man, and sometime in April, 1955, or about four months after their
marriage, gave birth to a child. In her answer, defendant claimed that the child was
conceived out of lawful wedlock between her and the plaintiff.
At the trial, the attorney's for both parties appeared and the court a quo ordered
Assistant Provincial Fiscal Jose Goco to represent the State in the proceedings to
prevent collusion. Only the plaintiff however, testified and the only documentary
evidence presented was the marriage contract between the parties. Defendant neither
appeared nor presented any evidence despite the reservation made by her counsel that
he would present evidence on a later date.
On June 16, 1956, the trial court noting that no birth certificate was presented to show
that the child was born within 180 days after the marriage between the parties, and
holding that concealment of pregnancy as alleged by the plaintiff does not constitute
such fraud sa would annul a marriage dismissed the complaint. Through a verified
"petition to reopen for reception of additional evidence", plaintiff tried to present the
certificates of birth and delivery of the child born of the defendant on April 26, 1955,
which documents, according to him, he had failed to secure earlier and produce before
the trial court thru excusable negligence. The petition, however, was denied.
On appeal to the Court of Appeals, that court held that there has been excusable neglect
in plaintiff's inability to present the proof of the child's birth, through her birth certificate,
and for that reason the court a quo erred in denying the motion for reception of additional
evidence. On the theory, however, that it was not impossible for plaintiff and defendant
to have had sexual intercourse during their engagement so that the child could be their
own, and finding unbelievable plaintiff's claim that he did not notice or even suspect that
defendant was pregnant when he married her, the appellate court, nevertheless,
affirmed the dismissal of the complaint.
On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered, or,
if such reconsideration be denied, that the case be remanded to the lower court for new
trial. In support of the motion, plaintiff attached as annexes thereof the following
documents:
1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and plaintiff's
brother, with whom defendant was living at the time plaintiff met, courted and
married her, and with whom defendant has begotten two more children, aside
from her first born, in common-law relationship) admitting that he is the father of
defendant's first born, Catherine Bess Aquino, and that he and defendant hid her
pregnancy from plaintiff at the time of plaintiff's marriage to defendant;
2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her pregnancy by
Cesar Aquino, her brother-in-law and plaintiff's own brother, at the time of her
marriage to plaintiff and her having hidden this fact from plaintiff before and up to
the time of their marriage;
3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino and
defendant lived together as husband and wife before December 27, 1954, the
date of plaintiff's marriage to defendant;
4. Birth Certificate of defendant's first born, Catherine Bess Aquino showing her
date of birth to be April 26, 1955;
5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of
defendant with Cesar Aquino, her brother-in-law;
6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of Cesar
Aquino and defendant; and
7. Pictures of defendant showing her natural plumpness as early as 1952 to as
late as November, 1954, the November, 1954 photo itself does not show
defendant's pregnancy which must have been almost four months old at the time
the picture was taken.
Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and
Assistant Provincial Fiscal of Rizal, who was representing the Government, to answer
the motion for reconsideration, and deferred action on the prayer for new trial until after
the case is disposed of. As both the defendant and the fiscal failed to file an answer, and
stating that it "does not believe the veracity of the contents of the motion and its
annexes", the Court of Appeals, on August 6, 1959, denied the motion. From that order,
the plaintiff brought the case to this Court thru the present petition for certiorari.
After going over the record of the case, we find that the dismissal of plaintiff's complaint
cannot be sustained.
Under the new Civil Code, concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband constitutes fraud and is
ground for annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3). In the
case of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be reviewed,
which was also an action for the annulment of marriage on the ground of fraud, plaintiff's
claim that he did not even suspect the pregnancy of the defendant was held to be
unbelievable, it having been proven that the latter was already in an advanced stage of
pregnancy (7th month) at the time of their marriage. That pronouncement, however,
cannot apply to the case at bar. Here the defendant wife was alleged to be only more
than four months pregnant at the time of her marriage to plaintiff. At that stage, we are
not prepared to say that her pregnancy was readily apparent, especially since she was
"naturally plump" or fat as alleged by plaintiff. According to medical authorities, even on
the 5th month of pregnancy, the enlargement of a woman's abdomen is still below the
umbilicus, that is to say, the enlargement is limited to the lower part of the abdomen so
that it is hardly noticeable and may, if noticed, be attributed only to fat formation on the
lower part of the abdomen. It is only on the 6th month of pregnancy that the enlargement
of the woman's abdomen reaches a height above the umbilicus, making the roundness
of the abdomen more general and apparent. (See Lull, Clinical Obstetrics, p. 122) If, as
claimed by plaintiff, defendant is "naturally plump", he could hardly be expected to know,
merely by looking, whether or not she was pregnant at the time of their marriage more
so because she must have attempted to conceal the true state of affairs. Even
physicians and surgeons, with the aid of the woman herself who shows and gives her
subjective and objective symptoms, can only claim positive diagnosis of pregnancy in
33% at five months. and 50% at six months. (XI Cyclopedia of Medicine, Surgery, etc.
Pregnancy, p. 10).
The appellate court also said that it was not impossible for plaintiff and defendant to
have had sexual intercourse before they got married and therefore the child could be
their own. This statement, however, is purely conjectural and finds no support or
justification in the record.
Upon the other hand, the evidence sought to be introduced at the new trial, taken
together with what has already been adduced would, in our opinion, be sufficient to
sustain the fraud alleged by plaintiff. The Court of Appeals should, therefore, not have
denied the motion praying for new trial simply because defendant failed to file her
answer thereto. Such failure of the defendant cannot be taken as evidence of collusion,
especially since a provincial fiscal has been ordered of represent the Government
precisely to prevent such collusion. As to the veracity of the contents of the motion and
its annexes, the same can best be determined only after hearing evidence. In the
circumstance, we think that justice would be better served if a new trial were ordered.
Wherefore, the decision complained of is set aside and the case remanded to the court a
quo for new trial. Without costs.
Paras, C.J., Bengzon, Montemayor, Labrador, Concepcion, and Reyes, J.B.L.,
JJ., concur.
Barrera, J., concurs in the result.

DIGEST
FACTS:

Fernando Aquino filed a complaint in September 1955 on the ground of fraud against
Conchita Delizo that at the date of her marriage with the former on December 1954,
concealed the fact that she was pregnant by another man and sometime in April 1955 or
about 4 months after their marriage, gave birth to a child. During the trial, Provincial
Fiscal Jose Goco represent the state in the proceedings to prevent collusion. Only
Aquino testified and the only documentary evidence presented was the marriage
contract between the parties. Delizo did not appear nor presented any evidence.

CFI-Rizal dismissed petitioners complaint for annulment of marriage, which was
affirmed by CA thus a petition for certiorari to review the decisions.

ISSUE: Whether or not concealment of pregnancy as alleged by Aquino does not
constitute such fraud as would annul a marriage.

HELD:

The concealment by the wife of the fact that at the time of the marriage, she was
pregnant by a man other than her husband constitutes fraud and is a ground for
annulment of marriage. Delizo was allegedly to be only more than four months pregnant
at the time of her marriage. At this stage, it is hard to say that her pregnancy was readily
apparent especially since she was naturally plump or fat. It is only on the 6th month of
pregnancy that the enlargement of the womans abdomen reaches a height above the
umbilicus, making the roundness of the abdomen more general and apparent.

In the following circumstances, the court remanded the case for new trial and decision
complained is set aside.

Jimenez vs. Canizares (L-12790, 31 August 1960)
G.R. No. L-12790 August 31, 1960
JOEL JIMENEZ, plaintiff-appellee,
vs.
REMEDIOS CAIZARES, defendant.
Republic of the Philippines, intervenor-appellant.
Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for
appellant.
Climaco, Ascarraga and Silang for appellee.
PADILLA, J .:
In a complaint filed on 7 June 1955 in the Court of First Instance of Zamboanga the
plaintiff Joel Jimenez prays for a decree annulling his marriage to the defendant
Remedios Caizares contracted on 3 August 1950 before a judge of the municipal court
of Zamboanga City, upon the ground that the office of her genitals or vagina was to
small to allow the penetration of a male organ or penis for copulation; that the condition
of her genitals as described above existed at the time of marriage and continues to exist;
and that for that reason he left the conjugal home two nights and one day after they had
been married. On 14 June 1955 the wife was summoned and served a copy of the
complaint. She did not file an answer. On 29 September 1956, pursuant to the
provisions of article 88 of the Civil Code, the Court directed the city attorney of
Zamboanga to inquire whether there was a collusion, to intervene for the State to see
that the evidence for the plaintiff is not a frame-up, concocted or fabricated. On 17
December 1956 the Court entered an order requiring the defendant to submit to a
physical examination by a competent lady physician to determine her physical capacity
for copulation and to submit, within ten days from receipt of the order, a medical
certificate on the result thereof. On 14 March 1957 the defendant was granted additional
five days from notice to comply with the order of 17 December 1956 with warning that
her failure to undergo medical examination and submit the required doctor's certificate
would be deemed lack of interest on her part in the case and that judgment upon the
evidence presented by her husband would be rendered.
After hearing, at which the defendant was not present, on 11 April 1957 the Court
entered a decree annulling the marriage between the plaintiff and the defendant. On 26
April 1957 the city attorney filed a motion for reconsideration of the decree thus entered,
upon the ground, among others, that the defendant's impotency has not been
satisfactorily established as required by law; that she had not been physically examined
because she had refused to be examined; that instead of annulling the marriage the
Court should have punished her for contempt of court and compelled her to undergo a
physical examination and submit a medical certificate; and that the decree sought to be
reconsidered would open the door to married couples, who want to end their marriage to
collude or connive with each other by just alleging impotency of one of them. He prayed
that the complaint be dismissed or that the wife be subjected to a physical examination.
Pending resolution of his motion, the city attorney timely appealed from the decree. On
13 May 1957 the motion for reconsideration was denied.
The question to determine is whether the marriage in question may be annulled on the
strength only of the lone testimony of the husband who claimed and testified that his wife
was and is impotent. The latter did not answer the complaint, was absent during the
hearing, and refused to submit to a medical examination.
Marriage in this country is an institution in which the community is deeply interested. The
state has surrounded it with safeguards to maintain its purity, continuity and
permanence. The security and stability of the state are largely dependent upon it. It is
the interest of each and every member of the community to prevent the bringing about of
a condition that would shake its foundation and ultimately lead to its destruction. The
incidents of the status are governed by law, not by will of the parties. The law specifically
enumerates the legal grounds, that must be proved to exist by indubitable evidence, to
annul a marriage. In the case at bar, the annulment of the marriage in question was
decreed upon the sole testimony of the husband who was expected to give testimony
tending or aiming at securing the annulment of his marriage he sought and seeks.
Whether the wife is really impotent cannot be deemed to have been satisfactorily
established, becase from the commencement of the proceedings until the entry of the
decree she had abstained from taking part therein. Although her refusal to be examined
or failure to appear in court show indifference on her part, yet from such attitude the
presumption arising out of the suppression of evidence could not arise or be inferred
because women of this country are by nature coy, bashful and shy and would not submit
to a physical examination unless compelled to by competent authority. This the Court
may do without doing violence to and infringing in this case is not self-incrimination. She
is not charged with any offense. She is not being compelled to be a witness against
herself.
1
"Impotency being an abnormal condition should not be presumed. The
presumption is in favor of potency."
2
The lone testimony of the husband that his wife is
physically incapable of sexual intercourse is insufficient to tear asunder the ties that
have bound them together as husband and wife.
The decree appealed from is set aside and the case remanded to the lower court for
further proceedings in accordance with this decision, without pronouncement as to costs.
Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera,
Gutierrez David, and Dizon, JJ. concur.

DIGEST
FACTS:

Joel Jimenez, the petitioner, filed a petition for the annulment of his marriage with
Remedios Canizares on the ground that the orifice of her genitals or vagina was too
small to allow the penetration of a male organ for copulation. It has existed at the time of
the marriage and continues to exist that led him to leave the conjugal home two nights
and one day after the marriage. The court summoned and gave a copy to the wife but
the latter did not file any answer. The wife was ordered to submit herself to physical
examination and to file a medical certificate within 10 days. She was given another 5
days to comply or else it will be deemed lack of interest on her part and therefore
rendering judgment in favor of the petitioner.

ISSUE: Whether or not the marriage can be annulled with only the testimony of the
husband.

HELD:

The wife who was claimed to be impotent by her husband did not avail of the opportunity
to defend herself and as such, claim cannot be convincingly be concluded. It is a well-
known fact that women in this country are shy and bashful and would not readily and
unhesitatingly submit to a physical examination unless compelled by competent
authority. Such physical examination in this case is not self-incriminating. She is not
charged with any offense and likewise is not compelled to be a witness against herself.
Impotence being an abnormal condition should not be presumed. The case was
remanded to trial court.

Article 48-49
Sin vs. Sin (G.R. No. 137590, 26 March 2001)
G.R. No. 137590 March 26, 2001
FLORENCE MALCAMPO-SIN, petitioner,
vs.
PHILIPP T. SIN, respondent.
PARDO, J .:
The Family Code emphasizes the permanent nature of marriage, hailing it as the
foundation of the family.
1
It is this inviolability which is central to our traditional and
religious concepts of morality and provides the very bedrock on which our society finds
stability.
2
Marriage is immutable and when both spouses give their consent to enter it,
their consent becomes irrevocable, unchanged even by their independent wills.
However, this inviolability depends on whether the marriage exists and is valid. If it is
void ab initio, the "permanence" of the union becomes irrelevant, and the Court can step
in to declare it so. Article 36 of the Family Code is the justification.
3
Where it applies and
is duly proven, a judicial declaration can free the parties from the rights, obligations,
burdens and consequences stemming from their marriage.
A declaration of nullity of marriage under Article 36 of the Family Code requires the
application of procedural and substantive guidelines. While compliance with these
requirements mostly devolves upon petitioner, the State is likewise mandated to actively
intervene in the procedure. Should there be non-compliance by the State with its
statutory duty, there is a need to remand the case to the lower court for proper trial.
The Case
What is before the Court
4
is an appeal from a decision of the Court of Appeals
5
which
affirmed the decision of the Regional Trial Court, Branch 158, Pasig City
6
dismissing
petitioner Florence Malcampo-Sin's (hereafter "Florence") petition for declaration of
nullity of marriage due to psychological incapacity for insufficiency of evidence.
The Facts
On January 4, 1987, after a two-year courtship and engagement, Florence and
respondent Philipp T. Sin (hereafter "Philipp"), a Portugese citizen, were married at St.
Jude Catholic Parish in San Miguel, Manila.
7

On September 20, 1994, Florence filed with the Regional Trial Court, Branch 158, Pasig
City, a complaint for "declaration of nullity of marriage" against Philipp.
8
Trial ensued and
the parties presented their respective documentary and testimonial evidence.
On June 16, 1995, the trial court dismissed Florence's petition.
9

On December 19, 1995, Florence filed with the trial court a notice of appeal to the Court
of Appeals.
10

After due proceedings, on April 30, 1998, the Court of Appeals promulgated its decision,
the dispositive portion of which reads:
"IN THE LIGHT OF ALL THE FOREGOING, the Appeal is DISMISSED. The
Decision appealed from is AFFIRMED. Cost against the Appellant."
11

On June 23, 1998, petitioner filed with the Court of Appeals a motion for reconsideration
of the aforequoted decision.
12

On January 19, 1999, the Court of Appeals denied petitioner's motion for
reconsideration.
13

Hence, this appeal.
14

The Court's Ruling
We note that throughout the trial in the lower court, the State did not participate in the
proceedings. While Fiscal Jose Danilo C. Jabson
15
filed with the trial court a
manifestation dated November 16, 1994, stating that he found no collusion between the
parties,
16
he did not actively participate therein. Other than entering his appearance at
certain hearings of the case, nothing more was heard from him. Neither did the presiding
Judge take any step to encourage the fiscal to contribute to the proceedings.
The Family Code mandates:
"ARTICLE 48. In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall orderthe prosecuting attorney or fiscal assigned to it to
appear on behalf of the State to take steps to prevent collusion between the
parties and to take care that evidence is not fabricated or suppressed (italics
ours).
"In the cases referred to in the preceding paragraph, no judgment shall be based
upon a stipulation of facts or confession of judgment."
It can be argued that since the lower court dismissed the petition, the evil sought to be
prevented (i.e., dissolution of the marriage) did not come about, hence, the lack of
participation of the State was cured. Not so. The task of protecting marriage as an
inviolable social institution requires vigilant and zealous participation and not mere pro-
forma compliance. The protection of marriage as a sacred institution requires not just the
defense of a true and genuine union but the exposure of an invalid one as well. This is
made clear by the following pronouncement:
"(8) The trial court must order the prosecuting attorney or fiscal and the Solicitor
General to appear as counsel for the state. No decision shall be handed down
unless the Solicitor General issues a certification, which will be quoted in the
decision,
17
briefly stating therein his reasons for his agreement or opposition as
the case may be, to the petition. The Solicitor-General shall discharge the
equivalent function of the defensor vinculi contemplated under Canon 1095
(italics ours)."
18

The records are bereft of any evidence that the State participated in the prosecution of
the case not just at the trial level but on appeal with the Court of Appeals as well. Other
than the "manifestation" filed with the trial court on November 16, 1994, the State did not
file any pleading, motion or position paper, at any stage of the proceedings.
In Republic of the Philippines v. Erlinda Matias Dagdag,
19
while we upheld the validity of
the marriage, we nevertheless characterized the decision of the trial court as
"prematurely rendered" since the investigating prosecutor was not given an opportunity
to present controverting evidence before the judgment was rendered. This stresses the
importance of the participation of the State.
Having so ruled, we decline to rule on the factual disputes of the case, this being within
the province of the trial court upon proper re-trial.
Obiter Dictum
For purposes of re-trial, we guide the parties thus: In Republic vs. Court of
Appeals,
20
the guidelines in the interpretation and application of Article 36 of the Family
Code are as follows (omitting guideline [8] in the enumeration as it was already earlier
quoted):
"(1) The burden of proof to show the nullity of the marriage belongs to the
plaintiff. Any doubt should be resolved in favor of the existence and continuation
of the marriage and against its dissolution and nullity. This is rooted in the fact
that both our Constitution and our laws cherish the validity of marriage and unity
of the family. Thus, our Constitution devotes an entire Article on the Family,
recognizing it "as the foundation of the nation." It decrees marriage as legally
"inviolable," thereby protecting it from dissolution at the whim of the parties. Both
the family and marriage are to be "protected" by the state. The Family Code
echoes this constitutional edict on marriage and the family and emphasizes their
permanence, inviolability and solidarity.
"(2) The root cause of the psychological incapacity must be: a) medically or
clinically identified, b) alleged in the complaint, c) sufficiently proven by experts
and d) clearly explained in the decision. Article 36 of the Family Code requires
that the incapacity must be psychological not physical, although its
manifestations and/or symptoms may be physical. The evidence must convince
the court that the parties, or one of them, was mentally or psychically (sic) ill to
such an extent that the person could not have known the obligations he was
assuming, or knowing them, could not have given valid assumption thereof.
Although no example of such incapacity need be given here so as not to limit the
application of the provision under the principle ofejusdem generis, nevertheless
such root cause must be identified as a psychological illness and its
incapacitating nature fully explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists.
"(3) The incapacity must be proven to be existing at "the time of the celebration"
of the marriage. The evidence must show that the illness was existing when the
parties exchanged their "I do's." The manifestation of the illness need not be
perceivable at such time, but the illness itself must have attached at such
moment, or prior thereto.
"(4) Such incapacity must also be shown to be medically or clinically permanent
or incurable. Such incurability may be absolute or even relative only in regard to
the other spouse, not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the assumption of marriage
obligations, not necessarily to those not related to marriage, like the exercise of a
profession or employment in a job. Hence, a pediatrician may be effective in
diagnosing illnesses of children and prescribing medicine to cure them but may
not be psychologically capacitated to procreate, bear and raise his/her own
children as an essential obligation of marriage.
"(5) Such illness must be grave enough to bring about the disability of the party to
assume the essential obligations of marriage. Thus, "mild characteriological
peculiarities, mood changes, occasional emotional outbursts" cannot be
accepted as root causes. The illness must be shown as downright incapacity or
inability, not refusal, neglect or difficulty, much less ill will. In other words, there is
a natal or supervening disabling factor in the person, an adverse integral element
in the personality structure that effectively incapacitates the person from really
accepting and thereby complying with the obligations essential to marriage.
"(6) The essential marital obligations must be those embraced by Articles 68 up
to 71 of the Family Code as regards the husband and wife as well as Articles
220, 221 and 225 of the same Code in regard to parents and their children. Such
non-complied marital obligation(s) must also be stated in the petition, proven by
evidence and included in the text of the decision.
"(7) Interpretations given by the National Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not controlling or decisive, should be
given great respect by our courts."
The Fallo
WHEREFORE, the Court REVERSES and SETS ASIDE the appealed decision of the
Court of Appeals in CA-G.R. CV No. 51304, promulgated on April 30, 1998 and the
decision of the Regional Trial Court, Branch 158, Pasig City in Civil Case No. 3190,
dated June 16, 1995.
Let the case be REMANDED to the trial court for proper trial.
No costs.
SO ORDERED.
Davide, Jr., C .J ., Puno, Kapunan and Ynares-Santiago, JJ ., concur.
DIGEST
FACTS:

Florence, the petitioner, was married with Philipp, a Portuguese citizen in January 1987.
Florence filed in September 1994, a complaint for the declaration of nullity of their
marriage. Trial ensued and the parties presented their respective documentary and
testimonial evidence. In June 1995, trial court dismissed Florences petition and
throughout its trial, the State did not participate in the proceedings. While Fiscal Jabson
filed with the trial court a manifestation dated November 1994 stating that he found no
collusion between the parties, he did not actively participated therein. Other than having
appearance at certain hearings, nothing more was heard of him.

ISSUE: Whether the declaration of nullity may be declared even with the absence of the
participation of the State in the proceedings.

HELD:

Article 48 of the Family Code states that in all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order the prosecuting attorney or fiscal
assigned to it to appear on behalf of the state to take steps to prevent collusion between
the parties and to take care that evidence is not fabricated or suppressed. The trial court
should have ordered the prosecuting attorney or fiscal and the Solicitor-General to
appear as counsel for the state. No decision shall be handed down unless the Solicitor
General issues a certification briefly stating his reasons for his agreement or opposition
as the case may be, to the petition. The records are bereft of an evidence that the State
participated in the prosecution of the case thus, the case is remanded for proper trial.

Ocampo vs. Florenciano (107 Phil 35)
G.R. No. L-13553 February 23, 1960
JOSE DE OCAMPO, petitioner,
vs.
SERAFINA FLORENCIANO, respondent.
Joselito J. Coloma for petitioner.
BENGZON, J .:
Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground
of adultery. The court of first instance of Nueva Ecija dismissed it. The Court of Appeals
affirmed, holding there was confession of judgment, plus condonation or consent to the
adultery and prescription.
We granted certiorari to consider the application of articles 100 and 101 of the New Civil
Code, which for convenience are quoted herewith:
ART. 100.The legal separation may be claimed only by the innocent spouse,
provided there has been no condonation of or consent to the adultery or
concubinage. Where both spouses are offenders, a legal separation cannot be
claimed by either of them. Collusion between the parties to obtain legal
separation shall cause the dismissal of the petition.
ART. 101.No decree of legal separation shall be promulgated upon a
stipulation of facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting
attorney to inquire whether or not a collusion between the parties exists. If there
is no collusion, the prosecuting attorney shall intervene for the State in order to
take care that the evidence for the plaintiff is not fabricated.
The record shows that on July 5, 1955, the complaint for legal separation was filed. As
amended, it described their marriage performed in 1938, and the commission of adultery
by Serafina, in March 1951 with Jose Arcalas, and in June 1955 with Nelson Orzame.
Because the defendant made no answer, the court defaulted her, and pursuant to Art.
101 above, directed the provincial fiscal to investigate whether or not collusion existed
between the parties. The fiscal examined the defendant under oath, and then reported to
the Court that there was no collusion. The plaintiff presented his evidence consisting of
the testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo,
Jose de Ocampo and Capt. Serafin Gubat.
According to the Court of Appeals, the evidence thus presented shows that "plaintiff and
defendant were married in April 5, 1938 by a religious ceremony in Guimba, Nueva
Ecija, and had lived thereafter as husband and wife. They begot several children who
are now living with plaintiff. In March, 1951, plaintiff discovered on several occasions that
his wife was betraying his trust by maintaining illicit relations with one Jose Arcalas.
Having found the defendant carrying marital relations with another man plaintiff sent her
to Manila in June 1951 to study beauty culture, where she stayed for one year. Again,
plaintiff discovered that while in the said city defendant was going out with several other
men, aside from Jose Arcalas. Towards the end of June, 1952, when defendant had
finished studying her course, she left plaintiff and since then they had lived separately.
"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with
another man by the name of Nelson Orzame. Plaintiff signified his intention of filing a
petition for legal separation, to which defendant manifested her conformity provided she
is not charged with adultery in a criminal action. Accordingly, plaintiff filed on July 5,
1955, a petition for legal separation."
The Court of Appeals held that the husband's right to legal separation on account of the
defendant's adultery with Jose Arcalas had prescribed, because his action was not filed
within one year from March 1951 when plaintiff discovered her infidelity. (Art. 102, New
Civil Code) We must agree with the Court of Appeals on this point.
1

As to the adultery with Nelson Orzame, the appellate court found that in the night of
June 18, 1955, the husband upon discovering the illicit connection, expressed his wish
to file a petition for legal separation and defendant readily agreed to such filing. And
when she was questioned by the Fiscal upon orders of the court, she reiterated her
conformity to the legal separation even as she admitted having had sexual relations with
Nelson Orzame. Interpreting these facts virtually to mean a confession of judgment the
Appellate Court declared that under Art. 101, legal separation could not be decreed.
As we understand the article, it does not exclude, as evidence, any admission or
confession made by the defendant outside of the court. It merely prohibits a decree of
separation upon a confession of judgment. Confession of judgment usually happens
when the defendant appears in court and confesses the right of plaintiff to judgment or
files a pleading expressly agreeing to the plaintiff's demand.
2
This is not occur.
Yet, even supposing that the above statement of defendant constituted practically a
confession of judgment, inasmuch as there is evidence of the adultery independently of
such statement, the decree may and should be granted, since it would not be based on
her confession, but upon evidence presented by the plaintiff. What the law prohibits is a
judgment based exclusively or mainly on defendant's confession. If a confession defeats
the action ipso facto, any defendant who opposes the separation will immediately
confess judgment, purposely to prevent it.
The mere circumstance that defendants told the Fiscal that she "like also" to be legally
separated from her husband, is no obstacle to the successful prosecution of the action.
When she refused to answer the complaint, she indicated her willingness to be
separated. Yet, the law does not order the dismissal. Allowing the proceeding to
continue, it takes precautions against collusion, which implies more than consent or lack
of opposition to the agreement.
Needless to say, when the court is informed that defendant equally desires the
separation and admitted the commission of the offense, it should be doubly careful lest a
collusion exists. (The Court of Appeals did not find collusion.)
Collusion in divorce or legal separation means the agreement.
. . . between husband and wife for one of them to commit, or to appear to
commit, or to be represented in court as having committed, a matrimonial
offense, or to suppress evidence of a valid defense, for the purpose of enabling
the other to obtain a divorce. This agreement, if not express, may be implied from
the acts of the parties. It is a ground for denying the divorce. (Griffiths vs.
Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214
Pas. 590.).
In this case, there would be collusion if the parties had arranged to make it appear that a
matrimonial offense had been committed although it was not, or if the parties had
connived to bring about a legal separation even in the absence of grounds therefor.
Here, the offense of adultery had really taking place, according to the evidence. The
defendant could not havefalsely told the adulterous acts to the Fiscal, because her story
might send her to jail the moment her husband requests the Fiscal to prosecute. She
could not have practiced deception at such a personal risk.
In this connection, it has been held that collusion may not be inferred from the mere fact
that the guilty party confesses to the offense and thus enables the other party to procure
evidence necessary to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017;
Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d]
688.).
And proof that the defendant desires the divorce and makes no defense, is not by itself
collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.).
We do not think plaintiff's failure actively to search for defendant and take her home
(after the latter had left him in 1952) constituted condonation or consent to her
adulterous relations with Orzame. It will be remembered that she "left" him after having
sinned with Arcalas and after he had discovered her dates with other men.
Consequently, it was not his duty to search for her to bring her home. Hers was the
obligation to return.
Two decisions
3
are cited wherein from apparently similar circumstances, this Court
inferred the husband's consent to or condonation of his wife's misconduct. However,
upon careful examination, a vital difference will be found: in both instances, the husband
had abandoned his wife; here it was the wife who "left" her husband.
Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse
the appealed decision and decree a legal separation between these spouse, all the
consequent effects. Costs of all instances against Serafina Florenciano. So ordered.
Paras, C. J., Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia,
Barrera, and Gutierrez David, JJ., concur.
DIGEST
FACTS:

Jose de Ocampo and Serafina Florenciano were married in 1938. They begot several
children who are not living with plaintiff. In March 1951, latter discovered on several
occasions that his wife was betraying his trust by maintaining illicit relations with Jose
Arcalas. Having found out, he sent the wife to Manila in June 1951 to study beauty
culture where she stayed for one year. Again plaintiff discovered that the wife was going
out with several other man other than Arcalas. In 1952, when the wife finished her
studies, she left plaintiff and since then they had lived separately. In June 1955, plaintiff
surprised his wife in the act of having illicit relations with Nelson Orzame. He signified
his intention of filing a petition for legal separation to which defendant manifested
conformity provided she is not charged with adultery in a criminal action. Accordingly,
Ocampo filed a petition for legal separation in 1955.

ISSUE: Whether the confession made by Florenciano constitutes the confession of
judgment disallowed by the Family Code.

HELD:

Florencianos admission to the investigating fiscal that she committed adultery, in the
existence of evidence of adultery other than such confession, is not the confession of
judgment disallowed by Article 48 of the Family Code. What is prohibited is a confession
of judgment, a confession done in court or through a pleading. Where there is evidence
of the adultery independent of the defendants statement agreeing to the legal
separation, the decree of separation should be granted since it would not be based on
the confession but upon the evidence presented by the plaintiff. What the law prohibits
is a judgment based exclusively on defendants confession. The petition should be
granted based on the second adultery, which has not yet prescribed.


Legal Separation (Article 55-67) 6 Hours

Article 55-56
Lapuz-Sy vs. Eufemio (43 SCRA 177)
G.R. No. L-30977 January 31, 1972
CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-
appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.

REYES J.B.L., J .:p
Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an
order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila, in its
Civil Case No. 20387, dismissing said case for legal separation on the ground that the
death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency
of the case, abated the cause of action as well as the action itself. The dismissal order
was issued over the objection of Macario Lapuz, the heir of the deceased plaintiff (and
petitioner herein) who sought to substitute the deceased and to have the case
prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against
Eufemio S. Eufemio, alleging, in the main, that they were married civilly on 21
September 1934 and canonically on 30 September 1934; that they had lived together as
husband and wife continuously until 1943 when her husband abandoned her; that they
had no child; that they acquired properties during their marriage; and that she
discovered her husband cohabiting with a Chinese woman named Go Hiok at 1319 Sisa
Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal
separation, which, among others, would order that the defendant Eufemio S. Eufemio
should be deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S. Eufemio
alleged affirmative and special defenses, and, along with several other claims involving
money and other properties, counter-claimed for the declaration of nullity ab initio of his
marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage,
celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective
evidence. But before the trial could be completed (the respondent was already
scheduled to present surrebuttal evidence on 9 and 18 June 1969), petitioner Carmen O.
Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for petitioner duly
notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal
separation"
1
on two (2) grounds, namely: that the petition for legal separation was filed
beyond the one-year period provided for in Article 102 of the Civil Code; and that the
death of Carmen abated the action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased
Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the case.
2
In the
body of the order, the court stated that the motion to dismiss and the motion for
substitution had to be resolved on the question of whether or not the plaintiff's cause of
action has survived, which the court resolved in the negative. Petitioner's moved to
reconsider but the motion was denied on 15 September 1969.
After first securing an extension of time to file a petition for review of the order of
dismissal issued by the juvenile and domestic relations court, the petitioner filed the
present petition on 14 October 1969. The same was given due course and answer
thereto was filed by respondent, who prayed for the affirmance of the said order.
3

Although the defendant below, the herein respondent Eufemio S. Eufemio, filed
counterclaims, he did not pursue them after the court below dismissed the case. He
acquiesced in the dismissal of said counterclaims by praying for the affirmance of the
order that dismissed not only the petition for legal separation but also his counterclaim to
declare the Eufemio-Lapuz marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower
court did not act on the motion for substitution) stated the principal issue to be as
follows:
When an action for legal separation is converted by the counterclaim into
one for a declaration of nullity of a marriage, does the death of a party
abate the proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a legal
separation suit to one for declaration of nullity of a marriage, which is without basis, for
even petitioner asserted that "the respondent has acquiesced to the dismissal of his
counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal separation
and the counterclaim to declare the nullity of the self same marriage can stand
independent and separate adjudication. They are not inseparable nor was the action for
legal separation converted into one for a declaration of nullity by the counterclaim, for
legal separation pre-supposes a valid marriage, while the petition for nullity has a
voidable marriage as a pre-condition.
The first real issue in this case is: Does the death of the plaintiff before final decree, in
an action for legal separation, abate the action? If it does, will abatement also apply if
the action involves property rights? .
An action for legal separation which involves nothing more than the bed-and-board
separation of the spouses (there being no absolute divorce in this jurisdiction) is purely
personal. The Civil Code of the Philippines recognizes this in its Article 100, by allowing
only the innocent spouse (and no one else) to claim legal separation; and in its Article
108, by providing that the spouses can, by their reconciliation, stop or abate the
proceedings and even rescind a decree of legal separation already rendered. Being
personal in character, it follows that the death of one party to the action causes the
death of the action itself actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce,
because the marriage is dissolved. The heirs cannot even continue the
suit, if the death of the spouse takes place during the course of the suit
(Article 244, Section 3). The action is absolutely dead (Cass., July 27,
1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933, 332.")
4
.
Marriage is a personal relation or status, created under the sanction of
law, and an action for divorce is a proceeding brought for the purpose of
effecting a dissolution of that relation. The action is one of a personal
nature. In the absence of a statute to the contrary, the death of one of the
parties to such action abates the action, for the reason that death has
settled the question of separation beyond all controversy and deprived
the court of jurisdiction, both over the persons of the parties to the action
and of the subject-matter of the action itself. For this reason the courts
are almost unanimous in holding that the death of either party to a divorce
proceeding, before final decree, abates the action. 1 Corpus Juris, 208;
Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of
Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas.
874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v.
Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185,
45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A.
141.
5

The same rule is true of causes of action and suits for separation and maintenance
(Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows that they
are solely the effect of the decree of legal separation; hence, they can not survive the
death of the plaintiff if it occurs prior to the decree. On the point, Article 106 of the Civil
Code provides: .
Art. 106. 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 conjugal partnership of gains or the absolute conjugal community
of property shall be dissolved and liquidated, but the offending spouse
shall have no right to any share of the profits earned by the partnership or
community, without prejudice to the provisions of article 176;
(3) The custody of the minor children shall be awarded to the innocent
spouse, unless otherwise directed by the court in the interest of said
minors, for whom said court may appoint a guardian;
(4) 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 one shall be
revoked by operation of law.
From this article it is apparent that the right to the dissolution of the conjugal partnership
of gains (or of the absolute community of property), the loss of right by the offending
spouse to any share of the profits earned by the partnership or community, or his
disqualification to inherit by intestacy from the innocent spouse as well as the revocation
of testamentary provisions in favor of the offending spouse made by the innocent one,
are all rights and disabilities that, by the very terms of the Civil Code article, are vested
exclusively in the persons of the spouses; and by their nature and intent, such claims
and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to
said rights is not a claim that "is not thereby extinguished" after a party dies, under
Section 17, Rule 3, of the Rules of Court, to warrant continuation of the action through a
substitute of the deceased party.
Sec. 17. Death of party. After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal
representative of the deceased to appear and to be substituted for the
deceased, within a period of thirty (30) days, or within such time as may
be granted...
The same result flows from a consideration of the enumeration of the actions that
survive for or against administrators in Section 1, Rule 87, of the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought against
executor or administrator. No action upon a claim for the recovery of
money or debt or interest thereon shall be commenced against the
executor or administrator; but actions to recover real or personal property,
or an interest therein, from the estate, or to enforce a lien thereon, and
actions to recover damages for an injury to person or property, real or
personal, may be commenced against him.
Neither actions for legal separation or for annulment of marriage can be deemed fairly
included in the enumeration..
A further reason why an action for legal separation is abated by the death of the plaintiff,
even if property rights are involved, is that these rights are mere effects of decree of
separation, their source being the decree itself; without the decree such rights do not
come into existence, so that before the finality of a decree, these claims are merely
rights in expectation. If death supervenes during the pendency of the action, no decree
can be forthcoming, death producing a more radical and definitive separation; and the
expected consequential rights and claims would necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of
his marriage to Carmen Lapuz, it is apparent that such action became moot and
academic upon the death of the latter, and there could be no further interest in
continuing the same after her demise, that automatically dissolved the questioned union.
Any property rights acquired by either party as a result of Article 144 of the Civil Code of
the Philippines 6 could be resolved and determined in a proper action for partition by
either the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but only voidable
under Article 83, paragraph 2, of the Civil Code, because the second marriage had been
contracted with the first wife having been an absentee for seven consecutive years, or
when she had been generally believed dead, still the action for annulment became
extinguished as soon as one of the three persons involved had died, as provided in
Article 87, paragraph 2, of the Code, requiring that the action for annulment should be
brought during the lifetime of any one of the parties involved. And furthermore, the
liquidation of any conjugal partnership that might have resulted from such voidable
marriage must be carried out "in the testate or intestate proceedings of the deceased
spouse", as expressly provided in Section 2 of the Revised Rule 73, and not in the
annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic
Relations is hereby affirmed. No special pronouncement as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor
and Makasiar, JJ., concur.

DIGEST
FACTS:

Carmen Lapuz-Sy filed a petition for legal separation against Eufemio Eufemio on
August 1953. They were married civilly on September 21, 1934 and canonically after
nine days. They had lived together as husband and wife continuously without any
children until 1943 when her husband abandoned her. They acquired properties during
their marriage. Petitioner then discovered that her husband cohabited with a Chinese
woman named Go Hiok on or about 1949. She prayed for the issuance of a decree of
legal separation, which among others, would order that the defendant Eufemio should be
deprived of his share of the conjugal partnership profits.

Eufemio counterclaimed for the declaration of nullity of his marriage with Lapuz-Sy on
the ground of his prior and subsisting marriage with Go Hiok. Trial proceeded and the
parties adduced their respective evidence. However, before the trial could be
completed, respondent already scheduled to present surrebuttal evidence, petitioner
died in a vehicular accident on May 1969. Her counsel duly notified the court of her
death. Eufemio moved to dismiss the petition for legal separation on June 1969 on the
grounds that the said petition was filed beyond the one-year period provided in Article
102 of the Civil Code and that the death of Carmen abated the action for legal
separation. Petitioners counsel moved to substitute the deceased Carmen by her
father, Macario Lapuz.

ISSUE: Whether the death of the plaintiff, before final decree in an action for legal
separation, abate the action and will it also apply if the action involved property rights.

HELD:

An action for legal separation is abated by the death of the plaintiff, even if property
rights are involved. These rights are mere effects of decree of separation, their source
being the decree itself; without the decree such rights do not come into existence, so
that before the finality of a decree, these claims are merely rights in expectation. If death
supervenes during the pendency of the action, no decree can be forthcoming, death
producing a more radical and definitive separation; and the expected consequential
rights and claims would necessarily remain unborn.
The petition of Eufemio for declaration of nullity is moot and academic and there could
be no further interest in continuing the same after her demise, that automatically
dissolved the questioned union. Any property rights acquired by either party as a result
of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in
a proper action for partition by either the appellee or by the heirs of the appellant.

Gandionco vs. Penaranda (G.R. No. L-72984, 27 November 1987)
G.R. No. 79284 November 27, 1987
FROILAN C. GANDIONCO, petitioner,
vs.
HON. SENEN C. PEARANDA, 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.
DIGEST
FACTS:

Private respondent, Teresita Gandionco, filed a complaint against herein petitioner,
Froilan Gandionco for legal separation on the ground of concubinage as a civil case.
Teresita also filed a criminal complaint of concubinage against her husband. She
likewise filed an application for the provisional remedy of support pendent elite which
was approved and ordered by the respondent judge. Petitioner moved to suspend the
action for legal separation and the incidents consequent thereto such as the support for
pendent elite, in view of the criminal case for concubinage filed against him. He
contends that the civil action for legal separation is inextricably tied with the criminal
action thus, all proceedings related to legal separation will have to be suspended and
await the conviction or acquittal of the criminal case.

ISSUE: Whether or not a civil case for legal separation can proceed pending the
resolution of the criminal case for concubinage.

HELD:

Supreme Court ruled that the contentions of the petitioner were incorrect. A civil action
for legal separation on the ground of 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 including the
dissolution of the conjugal partnership of gains, custody of the children, support and
disqualifications from inheriting from the innocent spouse. Decree of legal separation
may be issued upon proof by preponderance of evidence, where no criminal proceeding
or conviction is necessary.

Furthermore, the support pendente lite, as a remedy, can be availed of in an action for
legal separation, and granted at the discretion of the judge. If in case, the petitioner
finds the amount of support pendente lite ordered as too onerous, he can always file a
motion to modify or reduce the same.

Bugayong vs. Ginez (G.R. No. L-10033, 28 December 1956)
G.R. No. L-10033 December 28, 1956
BENJAMIN BUGAYONG, plaintiff-appellant,
vs.
LEONILA GINEZ, defendant-appellee.
Florencio Dumapias for appellant.
Numeriano Tanopo, Jr. for appellee.

FELIX, J .:
This is a case for legal separation filed in the Court of First Instance of Pangasinan
wherein on motion of the defendant, the case was dismissed. The order of dismissal was
appealed to the Court of Appeals, but said Tribunal certified the case to the Court on the
ground that there is absolutely no question of fact involved, the motion being predicated
on the assumption as true of the very facts testified to by plaintiff-husband.
The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a
serviceman in the United States Navy, was married to defendant Leonila Ginez on
August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately after
their marriage, the couple lived with their sisters who later moved to Sampaloc, Manila.
After some time, or about July, 1951, Leonila Ginez left the dwelling of her sister-in-law
and informed her husband by letter that she had gone to reside with her mother in
Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a
local college there.
As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana
Polangco (plaintiff's sister-in-law) and some from anonymous writers(which were not
produced at the hearing) informing him of alleged acts of infidelity of his wife which he
did not even care to mention. On cross-examination, plaintiff admitted that his wife also
informed him by letter, which she claims to have destroyed, that a certain "Eliong" kissed
her. All these communications prompted him in October, 1951 to seek the advice of the
Navy Chaplain as to the propriety of a legal separation between him and his wife on
account of the latter's alleged acts of infidelity, and he was directed to consult instead
the navy legal department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he
met in the house of one Mrs. Malalang, defendant's godmother. She came along with
him and both proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-
husband, where they stayed and lived for 2 nights and 1 day as husband and wife. Then
they repaired to the plaintiff's house and again passed the night therein as husband and
wife. On the second day, Benjamin Bugayong tried to verify from his wife the truth of the
information he received that she had committed adultery but Leonila, instead of
answering his query, merely packed up and left, which he took as a confirmation of the
acts of infidelity imputed on her. After that and despite such belief, plaintiff exerted
efforts to locate her and failing to find her, he went to Bacarra, Ilocos Norte, "to soothe
his wounded feelings".
On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of
Pangasinan a complaint for legal separation against his wife, Leonila Ginez, who timely
filed an answer vehemently denying the averments of the complaint and setting up
affirmative defenses. After the issues were joined and convinced that a reconciliation
was not possible, the court set the case for hearing on June 9, 1953. Plaintiff's counsel
announced that he was to present 6 witnesses but after plaintiff-husband finished
testifying in his favor, counsel for the defendant orally moved for the dismissal of the
complaint, but the Court ordered him to file a written motion to that effect and gave
plaintiff 10 days to answer the same.
The motion to dismiss was predicted on the following grounds: (1)
Assuming arguendo the truth of the allegations of the commission of "acts of rank
infidelity amounting to adultery", the cause of action, if any, is barred by the statute of
limitations; (2) That under the same assumption, the act charged have been
condoned by the plaintiff-husband; and (3) That the complaint failed to state a cause of
action sufficient for this court to render a valid judgment.
The motion to dismiss was answered by plaintiff and the Court, considering only the
second ground of the motion to dismiss i. e., condonation, ordered the dismissal of the
action. After the motion for reconsideration filed by plaintiff was denied, the case was
taken up for review to the Court of Appeals, appellant's counsel maintaining that the
lower court erred:
(a) In so prematurely dismissing the case;
(b) In finding that there were condonation on the part of plaintiff-appellant; and
(c) In entertaining condonation as a ground for dismissal inasmuch as same was
not raised in the answer or in a motion to dismiss.
As the questions raised in the brief were merely questions of law, the Court of Appeals
certified the case to Superiority.
The Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for the part of the
husband as defined on the Penal Code; or
(2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the innocent
spouse, provided there has been no condonation of or consent to the adultery or
concubinage. Where both spouses are offenders, a legal separation cannot by
either of them. Collusion between the parties to obtain legal separation shall
cause the dismissal of the petition.
ART. 102. An action for legal separation cannot be filed except within one year
from and after the date on which the plaintiff became cognizant of the cause and
within five years from and after the date when such cause occurred.
As the only reason of the lower Court for dismissing the action was the alleged
condonation of the charges of adultery that the plaintiff-husband had preferred in the
complaint against his wife, We will disregard the other 2 grounds of the motion to
dismiss, as anyway they have not been raised in appellant's assignment of errors.
Condonation is the forgiveness of a marital offense constituting a ground for legal
separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the
"conditional forgiveness or remission, by a husband or wife of a matrimonial
offense which the latter has committed". It is to be noted, however, that in defendant's
answer she vehemently and vigorously denies having committed any act of infidelity
against her husband, and even if We were to give full weight to the testimony of the
plaintiff, who was the only one that had the chance of testifying in Court and link such
evidence with the averments of the complaint, We would have to conclude that the facts
appearing on the record are far from sufficient to establish the charge of adultery, or, as
the complaint states, of "acts of rank infidelity amounting to adultery" preferred against
the defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-
law Valeriana Polangco, which must have been too vague and indefinite as to
defendant's infidelity to deserve its production in evidence; nor the anonymous letters
which plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his
wife addressed to him admitting that she had been kissed by one Eliong, whose identity
was not established and which admission defendant had no opportunity to deny because
the motion to dismiss was filed soon after plaintiff finished his testimony in Court, do not
amount to anything that can be relied upon.
But this is not a question at issue. In this appeal, We have to consider plaintiff's line of
conduct under the assumption that he really believed his wife guilty of adultery. What did
he do in such state of mind. In August, 1952, he went to Pangasinan and looked for his
wife and after finding her they lived together as husband and wife for 2 nights and 1 day,
after which he says that he tried to verify from her the truth of the news he had about her
infidelity, but failed to attain his purpose because his wife, instead of answering his query
on the matter, preferred to desert him, probably enraged for being subjected to such
humiliation. And yet he tried to locate her, though in vain. Now, do the husband's attitude
of sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to
him, amount to a condonation of her previous and supposed adulterous acts? In the
order appealed from, the Court a quo had the following to say on this point:
In the hearing of the case, the plaintiff further testified as follows:
Q. Now Mr. Bugayong, you have filed this action for legal separation from your
wife. Please tell this Hon. Court why you want to separate from your wife? A. I
came to know that my wife is committing adultery, I consulted the chaplain and
he told me to consult the legal adviser. (p. 11, t.s.n.)
Q. Did you finally locate her?--A. Four days later or on the fifth day since my
arrival she went to the house of our god-mother, and as a husband I went to her
to come along with me in our house but she refused. (p. 12, t.s.n.)lawphil.net
Q. What happened next? A. I persuaded her to come along with me. She
consented but I did not bring her home but brought her to the house of my cousin
Pedro Bugayong. (p. 12, t.s.n.)
Q. How long did you remain in the house of your cousin Pedro Bugayong? A.
One day and one night. (p. 12. t.s.n.)
Q. That night when you stayed in the house of your cousin Pedro Bugayong as
husband and wife, did you slept together? A. Yes, sir. (p. 19, t.s.n.)
Q. On the next night, when you slept in your own house, did you sleep together
also as husband and wife? A. Yes, sir. (p. 19. t.s.n.)
Q. When was that? A. That was in August, 1952. (p. 19 t.s.n.)
Q. How many nights did you sleep together as husband and wife? A. Only two
nights. (p. 19, t.s.n.)
The New Civil Code of the Philippines, in its Art. 97, says:
A petition for legal separation may be filed:
(1) For adultery on the part of the wife and concubinage on the part of the
husband as defined on the Penal Code.
and in its Art. 100 it says:lawphil.net
The legal separation may be claimed only by the innocent spouse, provided there
has been no condonation of or consent to the adultery or concubinage. Where
both spouses are offenders, legal separation cannot be claimed by either of
them. Collusion between the parties to obtain legal separation shall cause the
dismissal of the petition.
A detailed examination of the testimony of the plaintiff-husband, especially those
portions quoted above, clearly shows that there was a condonation on the part of
the husband for the supposed "acts of rank infidelity amounting to adultery"
committed by defendant-wife. Admitting for the sake of argument that the
infidelities amounting to adultery were committed by the defendant, a
reconciliation was effected between her and the plaintiff. The act of the latter in
persuading her to come along with him, and the fact that she went with him and
consented to be brought to the house of his cousin Pedro Bugayong and
together they slept there as husband and wife for one day and one night, and the
further fact that in the second night they again slept together in their house
likewise as husband and wife all these facts have no other meaning in the
opinion of this court than that a reconciliation between them was effected and
that there was a condonation of the wife by the husband. The reconciliation
occurred almost ten months after he came to know of the acts of infidelity
amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that
"condonation is implied from sexual intercourse after knowledge of the other
infidelity. such acts necessary implied forgiveness. It is entirely consonant with
reason and justice that if the wife freely consents to sexual intercourse after she
has full knowledge of the husband's guilt, her consent should operate as a
pardon of his wrong."
In Tiffany's Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense constituting a ground
for divorce and bars the right to a divorce. But it is on the condition,
implied by the law when not express, that the wrongdoer shall not again
commit the offense; and also that he shall thereafter treat the other
spouse with conjugal kindness. A breach of the condition will revive the
original offense as a ground for divorce. Condonation may be express or
implied.
It has been held in a long line of decisions of the various supreme courts of the
different states of the U. S. that 'a single voluntary act of sexual intercourse by
the innocent spouse after discovery of the offense is ordinarily sufficient to
constitute condonation, especially as against the husband'. (27 Corpus Juris
Secundum, section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal provisions
above quoted, and of the various decisions above-cited, the inevitable conclusion
is that the present action is untenable.
Although no acts of infidelity might have been committed by the wife, We agree with the
trial judge that the conduct of the plaintiff-husband above narrated despite his belief that
his wife was unfaithful, deprives him, as alleged the offended spouse, of any action for
legal separation against the offending wife, because his said conduct comes within the
restriction of Article 100 of the Civil Code.
The only general rule in American jurisprudence is that any cohabitation with the guilty
party, after the commission of the offense, and with the knowledge or belief on the part
of the injured party of its commission, will amount to conclusive evidence of condonation;
but this presumption may be rebutted by evidence (60 L. J. Prob. 73).
If there had been cohabitation, to what extent must it be to constitute condonation?
Single voluntary act of marital intercourse between the parties ordinarily is
sufficient to constitute condonation, and where the parties live in the same
house, it is presumed that they live on terms of matrimonial cohabitation (27 C. J.
S., section 6-d).
A divorce suit will not be granted for adultery where the parties continue to live
together after it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac.
974) or there is sexual intercourse after knowledge of adultery
(Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single
night (Toulson vs. Toulson, 50 Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185,
154 Ga. 199; Collins vs. Collins, 193 So. 702), and many others. The resumption
of marital cohabitation as a basis of condonation will generally be inferred,
nothing appearing to the contrary, from the fact of the living together as husband
and wife, especially as against the husband (Marsh vs. Marsh, 14 N. J. Eq. 315).
There is no ruling on this matter in our jurisprudence but we have no reason to depart
from the doctrines laid down in the decisions of the various supreme courts of the United
States above quoted.
There is no merit in the contention of appellant that the lower court erred in entertaining
condonation as a ground for dismissal inasmuch as same was not raised in the answer
or in a motion to dismiss, because in the second ground of the motion to dismiss. It is
true that it was filed after the answer and after the hearing had been commenced, yet
that motion serves to supplement the averments of defendant's answer and to adjust the
issues to the testimony of plaintiff himself (section 4, Rule 17 of the Rules of Court).
Wherefore, and on the strength of the foregoing, the order appealed from is hereby
affirmed, with costs against appellant. It is so ordered.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L.
and Endencia, JJ., concur.

DIGEST
Facts:Benjamin Bugayong, serviceman in the US Navy was married todefendant Leonila
Ginez in Pangasinan, while on furlough leave. Aftermarriage, the couples live with the
sisters of the husband, before the latterleft to report back to duty, the couple came to an
agreement that Leonilawould stay with Benjamins sisters.Leonila left the dwelling of her
sisters-in-law which she informedher husband by letter that she had gone to reside with
her mother inPangasinan. Early in July 1951, Benjamin receive letters from his
sisterValeriana Polangco that her wife informing him of alleged acts of infidelity.


Benjamin went to Pangasinan and sought for his wife whom he met in thehouse of
Leonilas godmother. They lived again as husband and wife andstayed in the house of
Pedro Bugayong, cousin of the plaintiff-husband. Onthe second day, he tried to verify
from his wife the truth of the informationhe received but instead of answering, Leonila
packed up and left him whichBenjamin concluded as a confirmation of the acts of
infidelity. After hetried to locate her and upon failing he went to Ilocos Norte. Benjamin
filedin CIF of Pangasinan a complaint for legal separation against Leonila, whotimely
filed an answer vehemently denying the averments of thecomplaint.Issue:Whether or not
the acts charged in line with the truth of allegationsof the commission of acts of infidelity
amounting to adultery have beencondoned by the plaintiff-husband.Ruling:Granting that
infidelities amounting to adultery were commited bythe wife, the act of the husband in
persuading her to come along with himand the fact that she went with him and together
they slept as husbandand wife deprives him as the alleged offended spouse of any
action forlegal separation against the offending wife because his said conduct
comeswithin the restriction of Article 100 of Civil Code.

Article 58
Pacete vs. Cariaga (231 SCRA 321)
G.R. No. L-53880 March 17, 1994
ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C. PACETE,
EVELINA C. PACETE and EDUARDO C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA) ALANIS
PACETE, respondents.
Juan G. Sibug and Rodolfo B. Quiachon for petitioners.
Julio F. Andres, Jr. for private respondent.

VITUG, J .:
The issue in this petition for certiorari is whether or not the Court of First Instance (now
Regional Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its
discretion in denying petitioners' motion for extension of time to file their answer in Civil
Case No. 2518, in declaring petitioners in default and in rendering its decision of 17
March 1980 which, among other things, decreed the legal separation of petitioner Enrico
L. Pacete and private respondent Concepcion Alanis and held to be null and void ab
initio the marriage of Enrico L. Pacete to Clarita de la Concepcion.
On 29 October 1979, Concepcion Alanis filed with the court below a complaint for the
declaration of nullity of the marriage between her erstwhile husband Enrico L. Pacete
and one Clarita de la Concepcion, as well as for legal separation (between Alanis and
Pacete), accounting and separation of property. In her complaint, she averred that she
was married to Pacete on 30 April 1938 before the Justice of the Peace of Cotabato,
Cotabato; that they had a child named Consuelo who was born on 11 March 1943; that
Pacete subsequently contracted (in 1948) a second marriage with Clarita de la
Concepcion in Kidapawan, North Cotabato; that she learned of such marriage only on 01
August 1979; that during her marriage to Pacete, the latter acquired vast property
consisting of large tracts of land, fishponds and several motor vehicles; that he
fraudulently placed the several pieces of property either in his name and Clarita or in the
names of his children with Clarita and other "dummies;" that Pacete ignored overtures
for an amicable settlement; and that reconciliation between her and Pacete was
impossible since he evidently preferred to continue living with Clarita.
The defendants were each served with summons on 15 November 1979. They filed a
motion for an extension of twenty (20) days from 30 November 1979 within which to file
an answer. The court granted the motion. On 18 December 1979, appearing through a
new counsel, the defendants filed a second motion for an extension of another thirty (30)
days from 20 December 1979. On 07 January 1980, the lower court granted the motion
but only for twenty (20) days to be counted from 20 December 1979 or until 09 January
1980. The Order of the court was mailed to defendants' counsel on 11 January 1980.
Likely still unaware of the court order, the defendants, on 05 February 1980, again filed
another motion (dated 18 January 1980) for an extension of "fifteen (15) days counted
from the expiration of the 30-day period previously sought" within which to file an
answer. The following day, or on 06 February 1980, the court denied this last motion on
the ground that it was "filed after the original period given . . . as first extension had
expired."
1

The plaintiff thereupon filed a motion to declare the defendants in default, which the
court forthwith granted. The plaintiff was then directed to present her evidence.
2
The
court received plaintiff's evidence during the hearings held on 15, 20, 21 and 22
February 1980.
On 17 March 1980, the court
3
promulgated the herein questioned decision, disposing of
the case, thus
WHEREFORE, order is hereby issued ordering:
1. The issuance of a Decree of Legal Separation of the marriage
between, the plaintiff, Concepcion (Conchita) Alanis Pacete and the
herein defendants, Enrico L. Pacete, in accordance with the Philippine
laws and with consequences, as provided for by our laws;
2. That the following properties are hereby declared as the conjugal
properties of the partnership of the plaintiff, Concepcion (Conchita) Alanis
Pacete and the defendant, Enrico L. Pacete, half and half, to wit:
1. The parcel of land covered by TCT No. V-815 which is a parcel of land
situated in the barrio of Langcong, Municipality of Matanog (previously of
Parang), province of Maguindanao (previously of Cotabato province) with
an area of 45,265 square meters registered in the name of Enrico Pacete,
Filipino, of legal age, married to Conchita Alanis as shown in Exhibits "B"
and "B-1" for the plaintiff.
2. A parcel of land covered by Transfer Certificate of Title No. T-20442,
with an area of 538 square meters and covered by Tax Declaration No.
2650 (74) in the name of Enrico Pacete, situated in the Poblacion of
Kidapawan, North Cotabato, together with all its improvements, which
parcel of land, as shown by Exhibits "K-1" was acquired by way of
absolute deed of sale executed by Amrosio Mondog on January 14, 1965.
3. A parcel of land covered by Transfer Certificate of Title No. T-20424
and covered by Tax Declaration No. 803 (74), with an area of 5.1670
hectares, more or less, as shown by Exhibit "R", the same was registered
in the name of Enrico Pacete and the same was acquired by Enrico
Pacete last February 17, 1967 from Ambag Ampoy, as shown by Exhibit
"R-1", situated at Musan, Kidapawan, North Cotabato.
4. A parcel of land situated at Lanao, Kidapawan, North Cotabato, with an
area of 5.0567 hectares, covered by Tax Declaration No. 4332 (74), as
shown by Exhibit "S", and registered in the name of Enrico Pacete.
5. A parcel of land covered by Transfer Certificate of Title No. T-9750,
situated at Lika, Mlang, North Cotabato, with an area of 4.9841 hectares
and the same is covered by Tax Declaration No. 803 (74) and registered
in the name of Enrico Pacete and which land was acquired by Enrico
Pacete from Salvador Pacete on September 24, 1962, as shown by
Exhibit "Q-1".
6. A parcel of land covered by Transfer Certificate of Title No. T-9944,
with an area of 9.9566 and also covered by Tax Declaration No. 8608
(74) and registered in the name of the defendant Enrico L. Pacete which
Enrico L. Pacete acquired from Sancho Balingcos last October 22, 1962,
as shown by Exhibit "L-1" and which parcel of land is situated at (Kialab),
Kiab, Matalam, North Cotabato.
7. A parcel of land covered by Transfer Certificate of Title No. T-9227,
situated at Kiab, Matalam, North Cotabato, with an area of 12.04339
hectares, more or less, and also covered by Tax Declaration No. 8607
(74) both in the name of the defendant Enrico L. Pacete which he
acquired last October 15, 1962 from Minda Bernardino, as shown by
Exhibit "M-1".
8. A parcel of land covered by Transfer Certificate of Title No. T-9228,
situated at Kiab, Matalam, North Cotabato, with an area of 10.8908
hectares, registered in the name of Enrico Pacete and also covered by
Tax Declaration No. 5781 (74) in the name of Enrico Pacete and which
parcel of land he acquired last September 25, 1962 from Conchita dela
Torre, as shown by Exhibit "P-1".
9. A parcel of land covered by Transfer Certificate of Title No. T-10301,
situated at Linao, Matalam, North Cotabato, with an area of 7.2547
hectares, registered in the name of Enrico Pacete and also covered by
Tax Declaration No. 8716 (74) also in the name of Enrico Pacete which
Enrico Pacete acquired from Agustin Bijo last July 16, 1963, as shown by
Exhibit "N-1".
10. A parcel of land covered by Transfer Certificate of Title No. 12728 in
the name of the defendant, Enrico L. Pacete, with an area of 10.9006
hectares, situated at Linao, Matalam, North Cotabato and is also covered
by Tax Declaration No. 5745 (74) in the name of Enrico Pacete, as shown
on Exhibit "O" and which Enrico Pacete acquired last December 31, 1963
from Eliseo Pugni, as shown on Exhibit "0-1".
3. Ordering the Cancellation of Original Certificate of Title No. P-34243
covering Lot No. 1066, issued in the name of Evelina Pacete, situated at
Kiab, Matalam, North Cotabato, and ordering the registration of the same
in the joint name of Concepcion (Conchita) Alanis Pacete and Enrico L.
Pacete as their conjugal property, with address on the part of Concepcion
(Conchita) Alanis Pacete at Parang, Maguindanao and on the part of
Enrico L. Pacete at Kidapawan, North Cotabato.
4. Ordering likewise the cancellation of Original Certificate of Title No. V-
20101, covering Lot No. 77, in the name of Eduardo C. Pacete, situated
at New Lawaan, Mlang, North Cotabato, and the issuance of a new
Transfer Certificate of Title in the joint name of (half and half) Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete.
5. Ordering likewise the cancellation of Original Certificate of Title No. P-
29890, covering Lot 1068, situated at Kiab, Matalam, North Cotabato,
with an area of 12.1031 hectares, in the name of Emelda C. Pacete and
the issuance of a new Transfer Certificate of Title in the joint name (half
and half) of Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete;
and declaring that the fishpond situated at Barrio Tumanan, Bislig,
Surigao Del Sur, with an area of 48 hectares and covered by Fishpond
Lease Agreement of Emelda C. Pacete, dated July 29, 1977 be cancelled
and in lieu thereof, the joint name of Concepcion (Conchita) Alanis
Pacete and her husband, Enrico L. Pacete, be registered as their joint
property, including the 50 hectares fishpond situated in the same place,
Barrio Timanan, Bislig, Surigao del Sur.
6. Ordering the following motor vehicles to be the joint properties of the
conjugal partnership of Concepcion (Conchita) Alanis Pacete and Enrico
L. Pacete, viz:
a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No. T137-
20561; Chassis No. 83920393, and Type, Mcarrier;
b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No. T214-
229547; Chassis No. 10D-1302-C; and Type, Mcarrier;
c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No. GRW-
116188; Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;
d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No.
F70MU5-11111; Chassis No. HOCC-GPW-1161188-G; Type, Stake;
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No.
ED300-45758; Chassis No. KB222-22044; Type, Stake; and
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No. LTC-
780-Dv; Chassis No. 10F-13582-K; Type, Stake.
7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the sum of
P46,950.00 which is the share of the plaintiff in the unaccounted income
of the ricemill and corn sheller for three years from 1971 to 1973.
8. Ordering the defendant, Enrico L. Pacete, to reimburse the plaintiff the
monetary equipment of 30% of whether the plaintiff has recovered as
attorney's fees;
9. Declaring the subsequent marriage between defendant Enrico L.
Pacete and Clarita de la Concepcion to be void ab initio; and
10. Ordering the defendants to pay the costs of this suit.
4

Hence, the instant special civil action of certiorari.
Under ordinary circumstances, the petition would have outrightly been dismissed, for, as
also pointed out by private respondents, the proper remedy of petitioners should have
instead been either to appeal from the judgment by default or to file a petition for relief
from judgment.
5
This rule, however, is not inflexible; a petition forcertiorari is allowed
when the default order is improperly declared, or even when it is properly declared,
where grave abuse of discretion attended such declaration.
6
In these exceptional
instances, the special civil action of certiorari to declare the nullity of a judgment by
default is available.
7
In the case at bench, the default order unquestionably is not legally
sanctioned. The Civil Code provides:
Art. 101. No decree of legal separation shall be promulgated upon a
stipulation of facts or by confession of judgment.
In case of non-appearance of the defendant, the court shall order the
prosecuting attorney to inquire whether or not a collusion between the
parties exists. If there is no collusion, the prosecuting attorney shall
intervene for the State in order to take care that the evidence for the
plaintiff is not fabricated.
The provision has been taken from Article 30 of the California Civil Code,
8
and it is, in
substance, reproduced in Article 60 of the Family Code.
9

Article 101 reflects the public policy on marriages, and it should easily explain the
mandatory tenor of the law. InBrown v. Yambao,
10
the Court has observed:
The policy of Article 101 of the new Civil Code, calling for the intervention
of the state attorneys in case of uncontested proceedings for legal
separation (and of annulment of marriages, under Article 88), is to
emphasize that marriage is more than a mere contract; that it is a social
institution in which the state is vitally interested, so that its continuation or
interruption can not be made to depend upon the parties themselves
(Civil Code, Article 52; Adong vs. Cheong Gee, 43 Phil. 43; Ramirez v.
Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil. 252). It is consonant with
this policy that the inquiry by the Fiscal should be allowed to focus upon
any relevant matter that may indicate whether the proceedings for
separation or annulment are fully justified or not.
Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that
an action for legal separation must "in no case be tried before six months shall have
elapsed since the filing of the petition," obviously in order to provide the parties a
"cooling-off" period. In this interim, the court should take steps toward getting the parties
to reconcile.
The significance of the above substantive provisions of the law is further underscored by
the inclusion of the following provision in Rule 18 of the Rules of Court:
Sec. 6. No defaults in actions for annulments of marriage or for legal
separation. If the defendant in an action for annulment of marriage or
for legal separation fails to answer, the court shall order the prosecuting
attorney to investigate whether or not a collusion between the parties
exists, and if there is no collusion, to intervene for the State in order to
see to it that the evidence submitted is not fabricated.
The special prescriptions on actions that can put the integrity of marriage to possible
jeopardy are impelled by no less than the State's interest in the marriage relation and its
avowed intention not to leave the matter within the exclusive domain and the vagaries of
the parties to alone dictate.
It is clear that the petitioner did, in fact, specifically pray for legal separation.
11
That
other remedies, whether principal or incidental, have likewise been sought in the same
action cannot dispense, nor excuse compliance, with any of the statutory requirements
aforequoted.
WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings
below, including the Decision of 17 March 1980 appealed from, are NULLIFIED and SET
ASIDE. No costs.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
DIGEST
FACTS:

Concepcion Alanis filed a complaint on October 1979, for the Declaration of Nullity of
Marriage between her erstwhile husband Enrico Pacete and one Clarita de la
Concepcion, as well as for legal separation between her and Pacete, accounting and
separation of property. She averred in her complaint that she was married to Pacete on
April 1938 and they had a child named Consuelo; that Pacete subsequently contracted a
second marriage with Clarita de la Concepcion and that she learned of such marriage
only on August 1979. Reconciliation between her and Pacete was impossible since he
evidently preferred to continue living with Clarita.

The defendants were each served with summons. They filed an extension within which
to file an answer, which the court partly granted. Due to unwanted misunderstanding,
particularly in communication, the defendants failed to file an answer on the date set by
the court. Thereafter, the plaintiff filed a motion to declare the defendants in default,
which the court forthwith granted. The court received plaintiffs evidence during the
hearings held on February 15, 20, 21, and 22, 1980. After trial, the court rendered a
decision in favor of the plaintiff on March 17,1980.

ISSUE: Whether or not the RTC gravely abused its discretion in denying petitioners
motion for extension of time to file their answer, in declaring petitioners in default and in
rendering its decision on March 17, 1980 which decreed the legal separation of Pacete
and Alanis and held to be null and void the marriage of Pacete to Clarita.

HELD:

The Civil Code provides that no decree of legal separation shall be promulgated upon a
stipulation of facts or by confession of judgment. In case of non-appearance of the
defendant, the court shall order the prosecuting attorney to inquire whether or not
collusion between parties exists. If there is no collusion, the prosecuting attorney shall
intervene for the State in order to take care that the evidence for the plaintiff is not
fabricated.

The above stated provision calling for the intervention of the state attorneys in case of
uncontested proceedings for legal separation (and of annulment of marriages, under
Article 88) is to emphasize that marriage is more than a mere contract.

Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that
an action for legal separation must in no case be tried before six months shall have
elapsed since the filing of the petition, obviously in order to provide the parties a
cooling-off period. In this interim, the court should take steps toward getting the parties
to reconcile.

The significance of the above substantive provisions of the law is further or underscored
by the inclusion of a provision in Rule 18 of the Rules of Court which provides that no
defaults in actions for annulments of marriage or for legal separation. Therefore, if the
defendant in an action for annulment of marriage or for legal separation fails to answer,
the court shall order the prosecuting attorney to investigate whether or not a collusion
between the parties exists, and if there is no collusion, to intervene for the State in order
to see to it that the evidence submitted is not fabricated.


Article 63
Macadandang vs. CA (108 SCRA 314)
G.R. No. L-49542 September 12, 1980
ANTONIO MACADANGDANG, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and ELIZABETH MEJIAS, respondents.

MAKASIAR, J .:
This petition for review seeks to set aside the decision of the Court of Appeals in CA-
G.R. No. 54618-R which reversed the decision of the Court of First Instance of Davao,
Branch IX dismissing the action for recognition and support filed by respondent Elizabeth
Mejias against petitioner Antonio Macadangdang, and which found minor Rolando to be
the illegitimate son of petitioner who was ordered to give a monthly support of P350.00
until his alleged son reaches the age of majority (p. 47, rec.; p. 10, ROA).
The records show that respondent Elizabeth Mejias is a married woman, her husband
being Crispin Anahaw (pp. 61-62, t.s.n., Sept. 21, 1972; pp. 10-11, Brief for Respondent
[P. 198, rec.]) She allegedly had intercourse with petitioner Antonio Macadangdang
sometime in March, 1967 (p. 38, t.s.n., June 7, 1972 in CC No. 109). She also alleges
that due to the affair, she and her husband separated in 1967 (p. 63, t.s.n., Sept. 21,
1972). On October 30, 1967 (7 months or 210 days following the illicit encounter), she
gave birth to a baby boy who was named Rolando Macadangdang in baptismal rites
held on December 24,1967 (Annex "A", List of Exhibits).
The records also disclose that on April 25, 1972, respondent (then plaintiff) filed a
complaint for recognition and support against petitioner (then defendant) with the Court
of First Instance of Davao, Branch IX. This case was docketed as Civil Case No. 263 (p.
1, ROA).
Defendant (now petitioner) Macadangdang filed his answer on June 30, 1972, opposing
plaintiff's claim and praying for its dismissal (p. 3, ROA).
On August 9, 1972, the lower court in a pre-trial conference, issued a Pre-trial Order
formalizing certain stipulations, admissions and factual issues on which both parties
agreed (pp. 4, 5, and 6, ROA). Correspondingly, upon agreement of the parties, an
amended complaint was filed by plaintiff on October 17, 1972 (pp. 7,8 and 9, ROA).
In its decision rendered on February 27, 1973, the lower court dismissed the complaint,.
The decision invoked positive provisions of the Civil Code and Rules of Court and
authorities (pp. 10-18, ROA).
On April 18, 1973, plaintiff appealed the CFI decision to the Court of Appeals (p. 59, In
her appeal, appellant assigned these errors:
1. The Honorable Trial Court erred in applying in the instant case the
provisions of Arts. 255 and 256 of the Civil Code and Secs. 4[a], 4[b] and
4[c], Rule 131, of the Revised Rules of Court (p. 18, rec.);
2. The Honorable Trial Court erred in holding that plaintiff-appellant
cannot validly question the legitimacy of her son, Rolando
Macadangdang, by a collateral attack without joining her legal husband
as a party in the instant case (p. 18, rec.).
In its decision handed down on June 2, 1978, the Court of Appeals reversed the lower
court's decision (p. 47, and thus declared minor Rolando to be an illegitimate son of
Antonio Macadangdang (p. 52, rec.).
On November 6, 1978, the Court of Appeals denied appellant's motions for
reconsideration for lack of merit. (p. 56, rec.).
Hence, petitioner filed this petition on January 12, 1979.
The issues boil down to:
1. Whether or not the child Rolando is conclusively presumed the
legitimate issue of the spouses Elizabeth Mejias and Crispin Anahaw; and
2. Whether or not the wife may institute an action that would bastardize
her child without giving her husband, the legally presumed father, an
opportunity to be heard.
The crucial point that should be emphasized and should be straightened out from the
very beginning is the fact that respondent's initial illicit affair with petitioner occurred
sometime in March, 1967 and that by reason thereof, she and her husband separated.
This fact surfaced from the testimony of respondent herself in the hearing of September
21, 1972 when this case was still in the lower court. The pertinent portions of her
testimony are thus quoted:
By Atty. Fernandez:
Q What did you feel as a result of the incident where Antonio
Macadangdang used pill and took advantage of your
womanhood?
A I felt worried, mentally shocked and humiliated.
Q If these feelings: worries, mental shock and humiliation, if
estimated in monetary figures, how much win be the amount?
A Ten thousand pesos, sir.
Q And because of the incidental what happened to your
with Crispin Anahaw.
xxx xxx xxx
WITNESS:
A We separate, sir. (pp. 61-63, T.s.n., Civil Case No. 263, Sept.
21, 1972; emphasis supplied).
From the foregoing line of questions and answers, it can be gleaned that respondent's
answers were given with spontaneity and with a clear understanding of the questions
posed. There cannot be any other meaning or interpretation of the word "incident" other
than that of the initial contact between petitioner and respondent. Even a layman would
understand the clear sense of the question posed before respondent and her categorical
and spontaneous answer which does not leave any room for interpretation. It must be
noted that the very question of her counsel conveys the assumption of an existing
between respondent and her husband.
The finding of the Court of Appeals that respondent and her husband were separated in
1965 cannot therefore be considered conclusive and binding on this Court. It is based
solely on the testimony of respondent which is self-serving. Nothing in the records shows
that her statement was confirmed or corroborated by another witness and the same
cannot be treated as borne out by the record or that which is based on substantial
evidence. It is not even confirmed by her own husband, who was not impleaded.
In the case of Tolentino vs. De Jesus (L-32797, 56 SCRA 167 [1974], this Court restated
that the findings of facts of the Court of Appeals are conclusive on the parties and on the
Supreme Court, unless (1) the conclusion is a finding grounded entirely on speculation,
surmise, and conjectures; (2) the inference made is manifestly mistaken; (3) there is
grave abuse of discretion; (4) the judgment is based on misapprehension of facts; (5) the
Court of Appeals went beyond the issues of the case and its findings are contrary to the
admission of both appellant and appellee; (6) the findings of facts of the Court of
Appeals are contrary to those of the trial court; (7) said findings of facts are conclusions
without citation of specific evidence on which they are based; (8) the facts set forth in the
petition as well as in the petitioner's main and reply briefs are not disputed by the
respondent; and (9) when the finding of facts of the Court of Appeals is premised on the
absence of evidence and is contradicted by evidence on record [Pioneer Insurance and
Surety Corporation vs. Yap, L-36232, December 19, 1974; Roque vs. Buan, L-22459, 21
SCRA 642 (1967); Ramos vs. Pepsi-cola Bottling Company of the Philippines, L-225533,
19 SCRA 289 (1967); emphasis supplied].
Again, in Roque vs. Buan, supra, this Court reiterated the aforestated doctrine adding
four more exceptions to the general rule. This case invoked the same ruling in the
previous case of Ramos vs. Pepsi-Cola Bottling Company, etc., supra.
In the recent case of Francisca Alsua-Betts, et al. vs. Court of Appeals, et al. (L-46430-
31, July 30, 1979), which petitioner aptly invokes, this Court thus emphasized:
... But what should not be ignored by lawyers and litigants alike is the
more basic principle that the "findings of fact" described as "final" or
"conclusive" are those borne out by the record or those which are based
upon substantial evidence. The general rule laid down by the Supreme
Court does not declare the absolute correctness of all the findings of fact
made by the Court of Appeals. There are exceptions to the general rule,
where we have reviewed the findings of fact of the Court of Appeals ...
(emphasis supplied).
The following provisions of the Civil Code and the Rules of Court should be borne in
mind:
Art. 255. Children born after one hundred and eighty days following the
celebration of the marriage, and before three hundred days following its
dissolution or the separation of the spouses shall be presumed to be
legitimate.
Against this presumption, no evidence shall be admitted other than that of
the physical impossibility of the husband's having access to his wife within
the first one hundred and twenty days of the three hundred which
preceded the birth of the child.
This physical impossibility may be caused:
(1) By the impotence of the husband;
(2) By the fact that the husband and wife were separately, in such a way
that access was not possible;
(3) By the serious illness of the husband.
Art. 256. The child shall be presumed legitimate, although the mother
may have declared against its legitimacy or may have been sentenced as
an adulteress.
Art. 257. Should the wife commit adultery at or about the time of the
conception of the child, but there was no physical impossibility of access
between her and her husband as set forth in article 255, the child is prima
facie presumed to be illegitimate if it appears highly improbable, for ethnic
reasons, that the child is that of the husband. For the purposes of this
article, the wife's adultery need not be proved in a criminal case.
xxx xxx xxx
Sec. 4. Quasi-conclusive presumptions of legitimacy
(a) Children born after one hundred eighty days following the celebration
of the marriage, and before three hundred days following its dissolution or
the separation of the spouses shall be presumed legitimate.
Against presumption no evidence be admitted other than that of the
physical impossibility of the husband's having access to his wife within the
first one hundred and twenty days of the three hundred which preceded
the birth of the child.
This physical impossibility may be caused:
[1] By the impotence of the husband
[2] By the fact that the husband and the wife were living separately, in
such a way that access was not possible;
[3] By the serious illness of the husband;
(b) The child shall be presumed legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an
adulteress.
(c) Should the wife commit adultery at or about the time of the conception
of the child, but there was no physical impossibility of access between her
and her husband as set forth above, the child is presumed legitimate,
unless it appears highly improbable, for ethnic reasons, that the child is
that of the husband. For the purpose of the rule, the wife's adultery need
not be proved in a criminal case. ... (Rule 131, Rules of Court).
Whether or not respondent and her husband were separated would be immaterial to the
resolution of the status of the child Rolando. What should really matter is the fact that
during the initial one hundred twenty days of the three hundred which preceded the birth
of the renamed child, no concrete or even substantial proof was presented to establish
physical impossibility of access between respondent and her spouse. From her very
revealing testimony, respondent declared that she was bringing two sacks of rice to
Samal for her children; that her four children by her husband in her mother's house in the
said town; that her alleged estranged husband also lived in her mother's place (p. 73, pp.
21 & 22, 64 & 65, t.s.n., Sept. 21, 1972). It should also be noted that even during her
affair with petitioner and right after her delivery, respondent went to her mother's house
in Samal for treatment. Thus, in the direct examination of Patrocinia Avila (the boy's
yaya), the following came out:
Q Why were you taking care of the child Rolando,
where was Elizabeth Mejias?
A Because Elizabeth went to her parents in Same Davao del
Norte for treatment because she had a relapse (p. 13, t.s.n., of
Sept. 21, 1972).
From the foregoing and since respondent and her husband continued to live in the same
province, the fact remains that there was always the possibility of access to each other.
As has already been pointed out, respondent's self-serving statements were never
corroborated nor confirmed by any other evidence, more particularly that of her husband.
The baby boy subject of this controversy was born on October 30, 1967, only seven (7)
months after March, 1967 when the "incident" or first illicit intercourse between
respondent and petitioner took place, and also, seven months from their separation (if
there really was a separation). It must be noted that as of March, 1967, respondent and
Crispin Anahaw had already four children; hence, they had been married years before
such date (t.s.n., pp. 21-22, Sept. 21, 1972). The birth of Rolando came more than one
hundred eighty 180 days following the celebration of the said marriage and before 300
days following the alleged separation between aforenamed spouses.
Under the aforequoted Article 255 of the Civil Code, the child Rolando is conclusively
presumed to be the legitimate son of respondent and her husband.
The fact that the child was born a mere seven (7) months after the initial sexual contact
between petitioner and respondent is another proof that the said child was not of
petitioner since, from indications, he came out as a normal full-term baby.
It must be stressed that the child under question has no birth certificate of Baptism
(attached in the List of Exhibits) which was prepared in the absence of the alleged father
[petitioner]. Note again that he was born on October 30, 1967. Between March, 1967
and October 30, 1967, the time difference is clearly 7 months. The baby Rolando could
have been born prematurely. But such is not the case. Respondent underwent a normal
nine-month pregnancy. Respondent herself and the yaya, Patrocinia Avila, declared that
the baby was born in the rented house at Carpenter Street, which birth was obvisouly
normal; that he was such a healthy baby that barely 5 days after his birth, he was
already cared for by said yaya when respondent became sick (pp. 28, 29 & 43, t.s.n.,
Sept. 21, 1972); and that when he was between 15 days and 2 months of age,
respondent left him to the care of the yaya when the former left for Samal for treatment
and returned only in February, 1968 (pp. 30-32, t.s.n., Sept. 21, 1972). From the
aforestated facts, it can be indubitably said that the child was a full-term baby at birth,
normally delivered, and raised normally by the yaya. If it were otherwise or if he were
born prematurely, he would have needed special care like being placed in an incubator
in a clinic or hospital and attended to by a physician, not just a mere yaya. These all
point to the fact that the baby who was born on October 30, 1967 or 7 months from the
first sexual encounter between petitioner and respondent was conceived as early as
January, 1967. How then could he be the child of petitioner?
In Our jurisprudence, this Court has been more definite in its pronouncements on the
value of baptismal certificates. It thus ruled that while baptismal and marriage certificates
may be considered public documents, they are evidence only to prove the administration
of the sacraments on the dates therein specified but not the veracity of the states or
declarations made therein with respect to his kinsfolk and/or citizenship (Paa vs. Chan,
L-25945, Oct. 31, 1967). Again, in the case of Fortus vs. Novero (L-22378, 23 SCRA
1331 [1968]), this Court held that a baptismal administered, in conformity with the rites of
the Catholic Church by the priest who baptized the child, but it does not prove the
veracity of the declarations and statements contained in the certificate that concern the
relationship of the person baptized. Such declarations and statements, in order that their
truth may be admitted, must indispensably be shown by proof recognized by law.
The child Rolando is presumed to be the legitimate son of respondent and her spouse.
This presumption becomes conclusive in the absence of proof that there was physical
impossibility of access between the spouses in the first 120 days of the 300 which
preceded the birth of the child. This presumption is actually quasi-conclusive and may be
rebutted or refuted by only one evidence the physical impossibility of access between
husband and wife within the first 120 days of the 300 which preceded the birth of the
child. This physical impossibility of access may be caused by any of these:
1. Impotence of the husband;
2. Living separately in such a way that access was impossible and
3. Serious illness of the husband.
This presumption of legitimacy is based on the assumption that there is sexual union in
marriage, particularly during the period of conception. Hence, proof of the physical
impossibility of such sexual union prevents the application of the presumption (Tolentino,
Commentaries & Jurisprudence on the Civil Code, Vol. 1, p. 513 citing Bevilaqua,
Familia p. 311).
The modern rule is that, in order to overthrow the presumption of legitimacy, it must be
shown beyond reasonable doubt that there was no access as could have enabled the
husband to be the father of the child. Sexual intercourse is to be presumed where
personal access is not disproved, unless such presumption is rebutted by evidence to
the contrary; where sexual intercourse is presumed or proved, the husband must be
taken to be the father of the child (Tolentino, citing Madden, Persons and Domestic
Relations, pp. 340-341).
To defeat the presumption of legitimacy, therefore, there must be physical impossibility
of access by the husband to the wife during the period of conception. The law expressly
refers to physical impossibility. Hence, a circumstance which makes sexual relations
improbable, cannot defeat the presumption of legitimacy; but it may be proved as a
circumstance to corroborate proof of physical impossibility of access (Tolentino, citing
Bonet 352; 4 Valverde 408).
Impotence refers to the inability of the male organ to copulation, to perform its proper
function (Bouvier's Law Dictionary 514). As defined in the celebrated case of Menciano
vs. San Jose (89 Phil. 63), impotency is the physical inability to have sexual intercourse.
It is not synonymous with sterility. Sterility refers to the inability to procreate, whereas,
impotence refers to the physical inability to perform the act of sexual intercourse. In
respect of the impotency of the husband of the mother of a child, to overcome the
presumption of legitimacy on conception or birth in wedlock or to show illegitimacy, it has
been held or recognized that the evidence or proof must be clear or satisfactory: clear,
satisfactory and convincing, irresistible or positive (S.C. Tarleton vs. Thompson, 118
S.E. 421, 125 SC 182, cited in 10 C.J.S. 50).
The separation between the spouses must be such as to make sexual access
impossible. This may take place when they reside in different countries or provinces, and
they have never been together during the period of conception (Estate of Benito
Marcelo, 60 Phil. 442). Or, the husband may be in prison during the period of
conception, unless it appears that sexual union took place through corrupt violation of or
allowed by prison regulations (1 Manresa 492-500).
The illness of the husband must be of such a nature as to exclude the possibility of his
having sexual intercourse with his wife; such as, when because of a injury, he was
placed in a plaster cast, and it was inconceivable to have sexual intercourse without the
most severe pain (Tolentino, citing Commissioner vs. Hotel 256 App. Div. 352, 9 N.Y.
Supp. p. 515); or the illness produced temporary or permanent impotence, making
copulation impossible (Tolentino, citing Q. Bonet 352).
Thus, in the case of Andal vs. Macaraig (89 Phil. 165), this Court ruled that just because
tuberculosis is advanced in a man does not necessarily mean that he is incapable of
sexual intercourse. There are cases where persons suffering from tuberculosis can do
the carnal act even in the most crucial stage of health because then they seemed to be
more inclined to sexual intercourse. The fact that the wife had illicit intercourse with a
man other than her husband during the initial period, does not preclude cohabitation
between said husband and wife.
Significantly American courts have made definite pronouncements or rulings on the
issues under consideration. The policy of the law is to confer legitimacy upon children
born in wedlock when access of the husband at the time of conception was not
impossible (N.Y. Milone vs. Milone, 290 N.Y. S. 863, 160 Misc. 830) and there is the
presumption that a child so born is the child of the husband and is legitimate even
though the wife was guilty of infidelity during the possible period of conception (N.Y.
Dieterich vs. Dieterich, 278 N.Y. S. 645, Misc. 714; both cited in 10 C.J.S., pp. 18,19 &
20).
So firm was this presumption originally that it cannot be rebutted unless the husband
was incapable of procreation or was absent beyond the four seas, that is, absent from
the realm, during the whole period of the wife's pregnancy (10 C.J.S. p. 20).
The presumption of legitimacy of children born during wedlock obtains, notwithstanding
the husband and wife voluntarily separate and live apart, unless the contrary is shown
(Ala. Franks vs. State, 161 So. 549, 26 . App. 430) and this includes children born after
the separation [10 C.J.S. pp. 23 & 24; emphasis supplied].
It must be stressed that Article 256 of the Civil Code which provides that the child is
presumed legitimate although the mother may have declared against its legitimacy or
may have been sentenced as an adulteress has been adopted for two solid reasons.
First, in a fit of anger, or to arouse jealousy in the husband, the wife may have made this
declaration (Power vs. State, 95 N.E., 660). Second, the article is established as a
guaranty in favor of the children whose condition should not be under the mercy of the
passions of their parents. The husband whose honor if offended, that is, being aware of
his wife's adultery, may obtain from the guilty spouse by means of coercion, a
confession against the legitimacy of the child which may really be only a confession of
her guilt. Or the wife, out of vengeance and spite, may declare the as not her husband's
although the statement be false. But there is another reason which is more powerful,
demanding the exclusion of proof of confession or adultery, and it is, that at the moment
of conception, it cannot be determined when a woman cohabits during the same period
with two men, by whom the child was begotten, it being possible that it be the husband
himself (Manresa, Vol. I, pp. 503-504).
Hence, in general, good morals and public policy require that a mother should not be
permitted to assert the illegitimacy of a child born in wedlock in order to obtain some
benefit for herself (N.Y. Flint vs. Pierce, 136 N.Y. S. 1056, cited in 10 C.J.S. 77).
The law is not willing that the child be declared illegitimate to suit the whims and
purposes of either parent, nor Merely upon evidence that no actual act of sexual
intercourse occurred between husband and wife at or about the time the wife became
pregnant. Thus, where the husband denies having any intercourse with his wife, the
child was still presumed legitimate (Lynn vs. State, 47 Ohio App. 158,191 N.E. 100).
With respect to Article 257 aforequoted, it must be emphasized that adultery on the part
of the wife, in itself, cannot destroy the presumption of legitimacy of her child, because it
is still possible that the child is that of the husband (Tolentino, citing 1 Vera 170; 4 Borja
23-24).
It has, therefore, been held that the admission of the wife's testimony on the point would
be unseemly and scandalous, not only because it reveals immoral conduct on her part,
but also because of the effect it may have on the child, who is in no fault, but who
nevertheless must be the chief sufferer thereby (7 Am. Jur. Sec. 21, pp. 641-642).
In the case of a child born or conceived in wedlock, evidence of the infidelity or adultery
of the wife and mother is not admissible to show illegitimacy, if there is no proof of the
husband's impotency or non-access to his wife (Iowa Craven vs. Selway, 246 N.W.
821, cited in 10 C.J.S. 36).
At this juncture, it must be pointed out that only the husband can contest the legitimacy
of a child born to his wife. He is the one directly confronted with the scandal and ridicule
which the infidelity of his wife produces; and he should decide whether to conceal that
infidelity or expose it, in view of the moral or economic interest involved (Tolentino, citing
Bevilaqua, Familia, p. 314).
The right to repudiate or contest the legitimacy of a child born in wedlock belongs only to
the alleged father, who is the husband of the mother and can be exercised only by him
or his heirs, within a fixed time, and in certain cases, and only in a direct suit brought for
the purpose (La Ducasse vs. Ducasse, 45 So. 565, 120 La. 731; Saloy's Succ. 10 So.
872, 44 La. Ann., cited in 10 C.J.S. 77; emphasis supplied).
Thus the mother has no right to disavow a child because maternity is never uncertain;
she can only contest the Identity of the child (La Eloi vs. Mader, 1 Rollo. 581, 38 Am.
D. 192).
Formerly, declarations of a wife that her husband was not the father of a child in wedlock
were held to be admissible in evidence; but the general rule now is that they are
inadmissible to bastardize the child, regardless of statutory provisions obviating
incompetency on the ground of interest, or the fact that the conception was antenuptial.
The rule is said to be founded in decency, morality and public policy (Wallace vs.
Wallace 137 Iowa 37,114 N.W. 527,14 L.R.A. [N.S.] 544,126 Am. St. Rep. 253,15 Ann.
Cas. 761, Am. Jur. 26).
From the foregoing, particularly the testimony of respondent and her witnesses, this
Court has every reason to believe that Crispin Anahaw was not actually separated from
Elizabeth Mejias; that he was a very potent man, having had four children with his wife;
that even if he and were even separately (which the latter failed to prove anyway) and
assuming, for argument's sake, that they were really separated, there was the possibility
of physical access to each other considering their proximity to each other and
considering further that respondent still visited and recuperated in her mother's house in
Samal where her spouse resided with her children. Moreover, Crispin Anahaw did not
have any serious illness or any illness whatsoever which would have rendered him
incapable of having sexual act with his wife. No substantial evidence whatsoever was
brought out to negate the aforestated facts.
Crispin Anahaw served as a refuge after respondent's reckless and immoral pursuits or
a "buffer" after her flings. And she deliberately did not include nor present her husband
in this case because she could not risk her scheme. She had to be certain that such
scheme to bastardize her own son for her selfish motives would not be thwarted.
This Court finds no other recourse except to deny respondent's claim to declare her son
Rolando the illegitimate child of petitioner. From all indications, respondent has paraded
herself as a woman of highly questionable character. A married woman who, on first
meeting, rides with a total stranger who is married towards nightfall, sleeps in his house
in the presence of his children, then lives with him after their initial sexual contact the
atmosphere for which she herself provided is patently immoral and hedonistic.
Although her husband was a very potent man, she readily indulged in an instant illicit
relationship with a married man she had never known before.
Respondent had shown total lack of or genuine concern for her child (Rolando) for, even
after birth, she left him in the care of a yaya for several months. This is not the normal
instinct and behavior of a mother who has the safety and welfare of her child foremost in
her mind. The filing of this case itself shows how she is capable of sacrificing the
psycho-social future (reputation) of the child in exchange for some monetary
consideration. This is blatant shamelessness.
It also appears that her claim against petitioner is a disguised attempt to evade the
responsibility and consequence of her reckless behavior at the expense of her husband,
her illicit lover and above all her own son. For this Court to allow, much less consent
to, the bastardization of respondent's son would give rise to serious and far-reaching
consequences on society. This Court will not tolerate scheming married women who
would indulge in illicit affairs with married men and then exploit the children born during
such immoral relations by using them to collect from such moneyed paramours. This
would be the form of wrecking the stability of two families. This would be a severe
assault on morality.
And as between the paternity by the husband and the paternity by the paramour, all the
circumstances being equal, the law is inclined to follow the former; hence, the child is
thus given the benefit of legitimacy.
Finally, Article 220 of the Civil Code reinforces the aforesaid principle when it provides
thus:
Art. 220. In case of doubt, an presumptions favor the solidarity of the
family. Thus, every of law or facts leans toward the validity of marriage,
the indissolubility of the marriage bonds, the legitimacy of children the
community of property during marriage, the authority of parents over their
children, and the validity of defense for any member of the family in case
of unlawful aggression.
WHEREFORE, THE DECISION OF THE COURT OF APPEALS DATED JUNE 2, 1978,
AND ITS RESOLUTION DATED NOVEMBER 6, 1978 ARE HEREBY REVERSED AND
SET ASIDE. COSTS AGAINST PRIVATE RESPONDENT.
SO ORDERED.
Teehankee (Chairman), Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ.,
concur.
DIGEST
FACTS:

Respondent Filomena Gaviana Macadangdang and petitioner Antonio Macadangdang
were married in 1946 after having lived together for two years and had 6 children. They
started a buy and sell business and sari-sari store in Davao City. Through hard work
and good fortune, their business grew and expanded into merchandising, trucking,
transportation, rice and corn mill business, abaca stripping, real estate etc. Their
relationship became complicated and both indulged in extramarital relations. Married life
became intolerable so they separated in 1965 when private respondent left for Cebu for
good. When she returned in Davao in 1971, she learned of the illicit affairs of her
estranged husband. She then decided to take the initial action. In April 1971, she
instituted a complaint for legal separation.

ISSUE: Whether or not the death of a spouse after a final decree of legal separation has
effect on the legal separation.

HELD:

The death of a spouse after a final decree of legal separation has no effect on the legal
separation. When the decree itself is issued, the finality of the separation is complete
after the lapse of the period to appeal the decision to a higher court even if the effects,
such as the liquidation of the property, have not yet been commenced nor terminated.

The law clearly spells out the effect of a final decree of legal separation on the conjugal
property. Therefore, upon the liquidation and distribution conformably with the effects of
such final decree, the law on intestate succession should take over the disposition of
whatever remaining properties have been allocated to the deceased spouse.

Such dissolution and liquidation are necessary consequences of the final decree. Article
106 of the Civil Code, now Article 63 of the Family Code provides the effects of the
decree of legal separation. These legal effects ipso facto or automatically follows, as an
inevitable incident of the judgment decreeing legal separation, for the purpose of
determining the share of each spouse in the conjugal assets.


Rights and Obligations Between Husbands and Wives (Articles 68-73) 2 Hours

Article 68
Potenciano vs. CA (G.R. No. 139789, 139808, 19 July 2001)
[G.R. No. 139789. July 19, 2001]
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF POTENCIANO
ILUSORIO, ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA K. ILUSORIO-
BILDNER SYLVIA K. ILUSORIO-YAP, JOHN DOES and JANE
DOES, respondents.
[G.R. No. 139808. July 19, 2001]
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER and SYLVIA K.
ILUSORIO, petitioners, vs. HON. COURT OF APPEALS and ERLINDA K.
ILUSORIO,respondents.
R E S O L U T I O N
PARDO, J .:
Once again we see the sad tale of a prominent family shattered by conflicts on
expectancy in fabled fortune.
On March 11, 1999, Erlinda K. Ilusorio, the matriarch who was so lovingly
inseparable from her husband some years ago, filed a petition with the Court of
Appeals
[1]
for habeas corpus to have custody of her husband in consortium.
On April 5, 1999, the Court of Appeals promulgated its decision dismissing the
petition for lack of unlawful restraint or detention of the subject, Potenciano Ilusorio.
Thus, on October 11, 1999, Erlinda K. Ilusorio filed with the Supreme Court an
appeal via certiorari pursuing her desire to have custody of her husband Potenciano
Ilusorio.
[2]
This case was consolidated with another case
[3]
filed by Potenciano Ilusorio
and his children, Erlinda I. Bildner and Sylvia K. Ilusorio appealing from the order giving
visitation rights to his wife, asserting that he never refused to see her.
On May 12, 2000, we dismissed the petition for habeas corpus
[4]
for lack of merit,
and granted the petition
[5]
to nullify the Court of Appeals' ruling
[6]
giving visitation rights to
Erlinda K. Ilusorio.
[7]

What is now before the Court is Erlinda' s motion to reconsider the decision.
[8]

On September 20, 2000, we set the case for preliminary conference on October 11,
2000, at 10:00 a. m., without requiring the mandatory presence of the parties.
In that conference, the Court laid down the issues to be resolved, to wit:
(a) To determine the propriety of a physical and medical examination of petitioner
Potenciano Ilusorio;
(b) Whether the same is relevant; and
(c) If relevant, how the Court will conduct the same.
[9]

The parties extensively discussed the issues. The Court, in its resolution, enjoined
the parties and their lawyers to initiate steps towards an amicable settlement of the case
through mediation and other means.
On November 29, 2000, the Court noted the manifestation and compliance of the
parties with the resolution of October 11, 2000.
[10]

On January 31, 2001, the Court denied Erlinda Ilusorio's manifestation and motion
praying that Potenciano Ilusorio be produced before the Court and be medically
examined by a team of medical experts appointed by the Court.
[11]

On March 27, 2001, we denied with finality Erlinda' s motion to reconsider the
Court's order of January 31, 2001.
[12]

The issues raised by Erlinda K. Ilusorio in her motion for reconsideration are mere
reiterations of her arguments that have been resolved in the decision.
Nevertheless, for emphasis, we shall discuss the issues thus:
First. Erlinda K. Ilusorio claimed that she was not compelling Potenciano to live
with her in consortium and that Potenciano' s mental state was not an issue. However,
the very root cause of the entire petition is her desire to have her
husband's custody.
[13]
Clearly, Erlinda cannot now deny that she wanted Potenciano
Ilusorio to live with her.
Second. One reason why Erlinda K. Ilusorio sought custody of her husband was
that respondents Lin and Sylvia were illegally restraining Potenciano Ilusorio to
fraudulently deprive her of property rights out of pure greed.
[14]
She claimed that her two
children were using their sick and frail father to sign away Potenciano and Erlinda' s
property to companies controlled by Lin and Sylvia. She also argued that since
Potenciano retired as director and officer of Baguio Country Club and Philippine
Oversees Telecommunications, she would logically assume his position and
control. Yet, Lin and Sylvia were the ones controlling the corporations.
[15]

The fact of illegal restraint has not been proved during the hearing at the Court of
Appeals on March 23, 1999.
[16]
Potenciano himself declared that he was not prevented
by his children from seeing anybody and that he had no objection to seeing his wife and
other children whom he loved.
Erlinda highlighted that her husband suffered from various ailments. Thus,
Potenciano Ilusorio did not have the mental capacity to decide for himself. Hence,
Erlinda argued that Potenciano be brought before the Supreme Court so that we could
determine his mental state.
We were not convinced that Potenciano Ilusorio was mentally incapacitated to
choose whether to see his wife or not. Again, this is a question of fact that has been
decided in the Court of Appeals.
As to whether the children were in fact taking control of the corporations, these are
matters that may be threshed out in a separate proceeding, irrelevant in habeas corpus.
Third. Petitioner failed to sufficiently convince the Court why we should not rely on
the facts found by the Court of Appeals. Erlinda claimed that the facts mentioned in the
decision were erroneous and incomplete. We see no reason why the High Court of the
land need go to such length. The hornbook doctrine states that findings of fact of the
lower courts are conclusive on the Supreme Court.
[17]
We emphasize, it is not for the
Court to weigh evidence all over again.
[18]
Although there are exceptions to the
rule,
[19]
Erlinda failed to show that this is an exceptional instance.
Fourth. Erlinda states that Article XII of the 1987 Constitution and Articles 68 and
69 of the Family Code support her position that as spouses, they (Potenciano and
Erlinda) are duty bound to live together and care for each other. We agree.
The law provides that the husband and the wife are obliged to live together, observe
mutual love, respect and fidelity.
[20]
The sanction therefor is the "spontaneous, mutual
affection between husband and wife and not any legal mandate or court order" to
enforce consortium.
[21]

Obviously, there was absence of empathy between spouses Erlinda and
Potenciano, having separated from bed and board since 1972. We defined empathy as
a shared feeling between husband and wife experienced not only by having
spontaneous sexual intimacy but a deep sense of spiritual communion. Marital union is
a two-way process.
Marriage is definitely for two loving adults who view the relationship with "amor
gignit amorem respect, sacrifice and a continuing commitment to togetherness,
conscious of its value as a sublime social institution.
[22]

On June 28, 2001, Potenciano Ilusorio gave his soul to the Almighty, his Creator
and Supreme Judge. Let his soul rest in peace and his survivors continue the much
prolonged fracas ex aequo et bono.
IN VIEW WHEREOF, we DENY Erlinda's motion for reconsideration. At any rate,
the case has been rendered moot by the death of subject.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.

DIGEST
FACTS:

In March 1999, Erlinda Illusorio, the wife of herein petitioner, Potenciano, petitioned for
habeas corpus which was dismissed on May 2000 for lack of merit and granted the
petition to nullify the CA ruling giving visitation rights to Erlinda. This case before SC is
Erlindas motion to reconsider the decision made. A conference was set on September
2000 to determine the propriety and relevance of a physical and medical examination of
Potenciano and how it will be conducted. Erlindas motion to have Potenciano be
medically examined by a team of medical experts appointed by the Court was denied
with finality in March 2001.

ISSUE: Whether a court can validly issue an order compelling the husband to live
together and observe mutual love, respect and fidelity.

HELD:

Erlinda claimed that she was not compelling Potenciano to live with her in consortium
but clearly she wanted the latter to live with her and is the root cause of her petition.
What the law provides is that husband and wife are obliged to live together, observe
mutual love, respect and fidelity. The sanction thereof is the spontaneous, mutual
affection between husband and wife and not any legal mandate or court order to enforce
consortium.

Evidently, there was absence of empathy between Erlinda and Potenciano having
separated from bed and board since 1972. Empathy as defined by SC is a shared
feeling between husband and wife experienced not only by having spontaneous sexual
intimacy but a deep sense of spiritual communion. Marital union is a two-way process.
It is for two loving adults who view the relationship with respect, sacrifice and a
continuing commitment to togetherness, conscious of its value as a sublime social
institution.

Goitia vs. Campo-Rueda
ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,
vs.
JOSE CAMPOS RUEDA, defendant-appellee.
Eduardo Gutierrez Repide and Felix Socias for appellant.
Sanz, Opisso and Luzuriaga for appellee.

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



Separate Opinions


MORELAND, J ., concurring:
I based my vote in this case upon the ground that a husband cannot, by his own
wrongful acts, relieve himself from the duty to support his wife imposed by law; and
where a husband, by wrongful, illegal, and unbearable conduct, drives his wife from the
domicile fixed by him, he cannot take advantage of her departure to abrogate the law
applicable to the marital relation and repudiate his duties thereunder. In law and for all
purposes within its purview, the wife still remains an inmate of the conjugal domicile; for I
regard it as a principle of law universally recognized that where a person by his wrongful
and illegal acts creates a condition which under ordinary circumstances would produce
the loss of rights or status pertaining to another, the law will, whenever necessary to
protect fully the rights or status of the person affected by such acts, regard the condition
by such acts created as not existing and will recur to and act upon the original situation
of the parties to determine their relative rights or the status of the person adversely
affected.
I do not believe, therefore, that the case is properly conceived by defendant, when the
consideration thereof proceeds solely on the theory that the wife is outside the domicile
fixed by the husband. Under the facts alleged in the complainant the wife is legally still
within the conjugal domicile.

DIGEST

FACTS:

Luisa Goitia y de la Camara, petitioner, and Jose Campos y Rueda, respondent, were
married on January 7, 1915 and had a residence at 115 Calle San Marcelino Manila.
They stayed together for a month before petitioner returned to her parents home. Goitia
filed a complaint against respondent for support outside the conjugal home. It was
alleged that respondent demanded her to perform unchaste and lascivious acts on his
genital organs. Petitioner refused to perform such acts and demanded her husband
other than the legal and valid cohabitation. Since Goitia kept on refusing, respondent
maltreated her by word and deed, inflicting injuries upon her lops, face and different
body parts. The trial court ruled in favor of respondent and stated that Goitia could not
compel her husband to support her except in the conjugal home unless it is by virtue of a
judicial decree granting her separation or divorce from respondent. Goitia filed motion
for review.

ISSUE: Whether or not Goitia can compel her husband to support her outside the
conjugal home.

HELD:

The obligation on the part of the husband to support his wife is created merely in the act
of marriage. The law provides that the husband, who is obliged to support the wife, may
fulfill the obligation either by paying her a fixed pension or by maintaining her in his own
home at his option. However, this option given by law is not absolute. The law will not
permit the husband to evade or terminate his obligation to support his wife if the wife is
driven away from the conjugal home because of his wrongful acts. In the case at bar,
the wife was forced to leave the conjugal abode because of the lewd designs and
physical assault of the husband, she can therefore claim support from the husband for
separate maintenance even outside the conjugal home.


Ty vs. CA (G.R. No. 127406, 27 November 2000)
[G.R. No. 127406. November 27, 2000]
OFELIA P. TY, petitioner, vs. THE COURT OF APPEALS, and EDGARDO M.
REYES, respondents.
D E C I S I O N
QUISUMBING, J .:
This appeal seeks the reversal of the decision dated July 24, 1996, of the Court of
Appeals in C.A. G.R. CV 37897, which affirmed the decision of the Regional Trial
Court of Pasig, Branch 160, declaring the marriage contract between private respondent
Edgardo M. Reyes and petitioner Ofelia P. Ty null and void ab initio. It also ordered
private respondent to pay P15,000.00 as monthly support for their children Faye Eloise
Reyes and Rachel Anne Reyes.
As shown in the records of the case, private respondent married Anna Maria Regina
Villanueva in a civil ceremony on March 29, 1977, in Manila. Then they had a church
wedding on August 27, 1977. However, on August 4, 1980, the Juvenile and Domestic
Relations Court of Quezon City declared their marriage null and void ab initio for lack of
a valid marriage license. The church wedding on August 27, 1977, was also declared
null and void ab initio for lack of consent of the parties.
Even before the decree was issued nullifying his marriage to Anna Maria, private
respondent wed Ofelia P. Ty, herein petitioner, on April 4, 1979, in ceremonies officiated
by the judge of the City Court of Pasay. On April 4, 1982, they also had a church
wedding in Makati, Metro Manila.
On January 3, 1991, private respondent filed a Civil Case 1853-J with the RTC of
Pasig, Branch 160, praying that his marriage to petitioner be declared null and void. He
alleged that they had no marriage license when they got married. He also averred that
at the time he married petitioner, he was still married to Anna Maria. He stated that at
the time he married petitioner the decree of nullity of his marriage to Anna Maria had not
been issued. The decree of nullity of his marriage to Anna Maria was rendered only on
August 4, 1980, while his civil marriage to petitioner took place on April 4, 1979.
Petitioner, in defending her marriage to private respondent, pointed out that his
claim that their marriage was contracted without a valid license is untrue. She submitted
their Marriage License No. 5739990 issued at Rosario, Cavite on April 3, 1979, as Exh.
11, 12 and 12-A. He did not question this document when it was submitted in
evidence. Petitioner also submitted the decision of the Juvenile and Domestic Relations
Court of Quezon City dated August 4, 1980, which declared null and void his civil
marriage to Anna Maria Regina Villanueva celebrated on March 29, 1977, and his
church marriage to said Anna Maria on August 27, 1977. These documents were
submitted as evidence during trial and, according to petitioner, are therefore deemed
sufficient proof of the facts therein. The fact that the civil marriage of private respondent
and petitioner took place on April 4, 1979, before the judgment declaring his prior
marriage as null and void is undisputed. It also appears indisputable that private
respondent and petitioner had a church wedding ceremony on April 4, 1982.
[1]

The Pasig RTC sustained private respondents civil suit and declared his marriage
to herein petitioner null and void ab initio in its decision dated November 4, 1991. Both
parties appealed to respondent Court of Appeals. On July 24, 1996, the appellate court
affirmed the trial courts decision. It ruled that a judicial declaration of nullity of the first
marriage (to Anna Maria) must first be secured before a subsequent marriage could be
validly contracted. Said the appellate court:
We can accept, without difficulty, the doctrine cited by defendants counsel that no
judicial decree is necessary to establish the invalidity of void marriages. It does not say,
however, that a second marriage may proceed even without a judicial decree. While it is
true that if a marriage is null and void, ab initio, there is in fact no subsisting marriage,
we are unwilling to rule that the matter of whether a marriage is valid or not is for each
married spouse to determine for himself for this would be the consequence of allowing
a spouse to proceed to a second marriage even before a competent court issues a
judicial decree of nullity of his first marriage. The results would be disquieting, to say the
least, and could not have been the intendment of even the now-repealed provisions of
the Civil Code on marriage.
x x x
WHEREFORE, upon the foregoing ratiocination, We modify the appealed Decision in
this wise:
1. The marriage contracted by plaintiff-appellant [herein private respondent]
Eduardo M. Reyes and defendant-appellant [herein petitioner] Ofelia P. Ty is
declared null and void ab initio;
2. Plaintiff-appellant Eduardo M. Reyes is ordered to give monthly support in
the amount of P15,000.00 to his children Faye Eloise Reyes and Rachel
Anne Reyes from November 4, 1991; and
3. Cost against plaintiff-appellant Eduardo M. Reyes.
SO ORDERED.
[2]

Petitioners motion for reconsideration was denied. Hence, this instant petition
asserting that the Court of Appeals erred:
I.
BOTH IN THE DECISION AND THE RESOLUTION, IN REQUIRING FOR THE
VALIDITY OF PETITIONERS MARRIAGE TO RESPONDENT, A JUDICIAL DECREE
NOT REQUIRED BY LAW.
II
IN THE RESOLUTION, IN APPLYING THE RULING IN DOMINGO VS. COURT OF
APPEALS.
III
IN BOTH THE DECISION AND RESOLUTION IN NOT CONSIDERING THE CIVIL
EFFECTS OF THE RELIGIOUS RATIFICATION WHICH USED THE SAME MARRIAGE
LICENSE.
IV
IN THE DECISION NOT GRANTING MORAL AND EXEMPLARY DAMAGES TO THE
DEFENDANT-APPELLANT.
The principal issue in this case is whether the decree of nullity of the first marriage is
required before a subsequent marriage can be entered into validly? To resolve this
question, we shall go over applicable laws and pertinent cases to shed light on the
assigned errors, particularly the first and the second which we shall discuss jointly.
In sustaining the trial court, the Court of Appeals declared the marriage of petitioner
to private respondent null and void for lack of a prior judicial decree of nullity of the
marriage between private respondent and Villanueva. The appellate court rejected
petitioners claim that People v. Mendoza
[3]
and People v. Aragon
[4]
are applicable in this
case. For these cases held that where a marriage isvoid from its performance, no
judicial decree is necessary to establish its invalidity. But the appellate court said these
cases, decided before the enactment of the Family Code (E.O. No. 209 as amended by
E.O No. 227), no longer control. A binding decree is now needed and must be read into
the provisions of law previously obtaining.
[5]

In refusing to consider petitioners appeal favorably, the appellate court also said:
Terre v. Attorney Terre, Adm. Case No. 2349, 3 July 1992 is mandatory precedent for
this case. Although decided by the High Court in 1992, the facts situate it within the
regime of the now-repealed provisions of the Civil Code, as in the instant case.
x x x
For purposes of determining whether a person is legally free to contract a second
marriage, a judicial declaration that the first marriage was null and void ab initio is
essential. . . .
[6]

At the outset, we must note that private respondents first and second marriages
contracted in 1977 and 1979, respectively, are governed by the provisions of the Civil
Code. The present case differs significantly from the recent cases of Bobis v.
Bobis
[7]
and Mercado v. Tan,
[8]
both involving a criminal case for bigamy where the
bigamous marriage was contracted during the effectivity of the Family Code,
[9]
under
which a judicial declaration of nullity of marriage is clearly required.
Pertinent to the present controversy, Article 83 of the Civil Code provides that:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the
first spouse of such person with any person other than such first spouse shall be illegal
and void from its performance, unless:
(1) The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee being alive, or
if the absentee, though he has been absent for less than seven years, is generally
considered as dead and before any person believed to be so by the spouse present at
the time of contracting such subsequent marriage, or if the absentee is presumed dead
according to articles 390 and 391. The marriage so contracted shall be valid in any of
the three cases until declared null and void by a competent court.
As to whether a judicial declaration of nullity of a void marriage is necessary, the
Civil Code contains no express provision to that effect. Jurisprudence on the matter,
however, appears to be conflicting.
Originally, in People v. Mendoza,
[10]
and People v. Aragon,
[11]
this Court held that no
judicial decree is necessary to establish the nullity of a void marriage. Both cases
involved the same factual milieu. Accused contracted a second marriage during the
subsistence of his first marriage. After the death of his first wife, accused contracted a
third marriage during the subsistence of the second marriage. The second wife initiated
a complaint for bigamy. The Court acquitted accused on the ground that the second
marriage is void, having been contracted during the existence of the first
marriage. There is no need for a judicial declaration that said second marriage is
void. Since the second marriage is void, and the first one terminated by the death of his
wife, there are no two subsisting valid marriages. Hence, there can be no
bigamy. Justice Alex Reyes dissented in both cases, saying that it is not for the spouses
but the court to judge whether a marriage is void or not.
In Gomez v. Lipana,
[12]
and Consuegra v. Consuegra,
[13]
however, we recognized
the right of the second wife who entered into the marriage in good faith, to share in their
acquired estate and in proceeds of the retirement insurance of the husband. The Court
observed that although the second marriage can be presumed to be void ab initio as it
was celebrated while the first marriage was still subsisting, still there was a need for
judicial declaration of such nullity (of the second marriage). And since the death of the
husband supervened before such declaration, we upheld the right of the second wife to
share in the estate they acquired, on grounds of justice and equity.
[14]

But in Odayat v. Amante (1977),
[15]
the Court adverted to Aragon and Mendoza as
precedents. We exonerated a clerk of court of the charge of immorality on the ground
that his marriage to Filomena Abella in October of 1948 was void, since she was already
previously married to one Eliseo Portales in February of the same year. The Court held
that no judicial decree is necessary to establish the invalidity of void marriages. This
ruling was affirmed in Tolentino v. Paras.
[16]

Yet again in Wiegel v. Sempio-Diy (1986),
[17]
the Court held that there is a need for a
judicial declaration of nullity of a void marriage. In Wiegel, Lilia married Maxion in
1972. In 1978, she married another man, Wiegel. Wiegel filed a petition with the
Juvenile Domestic Relations Court to declare his marriage to Lilia as void on the ground
of her previous valid marriage. The Court, expressly relying on Consuegra, concluded
that:
[18]

There is likewise no need of introducing evidence about the existing prior marriage
of her first husband at the time they married each other, for then such a marriage though
void still needs according to this Court a judicial declaration (citing Consuegra) of such
fact and for all legal intents and purposes she would still be regarded as a married
woman at the time she contracted her marriage with respondent Karl Heinz Wiegel;
accordingly, the marriage of petitioner and respondent would be regarded VOID under
the law. (Emphasis supplied).
In Yap v. Court of Appeals,
[19]
however, the Court found the second marriage void
without need of judicial declaration, thus reverting to the Odayat,
Mendoza and Aragon rulings.
At any rate, the confusion under the Civil Code was put to rest under the Family
Code. Our rulings in Gomez, Consuegra, and Wiegel were eventually embodied in
Article 40 of the Family Code.
[20]
Article 40 of said Code expressly required a judicial
declaration of nullity of marriage
Art. 40. The absolute nullity of a previous marriage may be invoked for purposes of
remarriage on the basis solely of a final judgment declaring such previous marriage void.
In Terre v. Terre (1992)
[21]
the Court, applying Gomez,
Consuegra and Wiegel, categorically stated that a judicial declaration of nullity of a void
marriage is necessary. Thus, we disbarred a lawyer for contracting a bigamous
marriage during the subsistence of his first marriage. He claimed that his first marriage
in 1977 was void since his first wife was already married in 1968. We held that Atty.
Terre should have known that the prevailing case law is that for purposes of
determining whether a person is legally free to contract a second marriage, a judicial
declaration that the first marriage was null and void ab initio is essential.
The Court applied this ruling in subsequent cases. In Domingo v. Court of
Appeals (1993),
[22]
the Court held:
Came the Family Code which settled once and for all the conflicting jurisprudence on the
matter. A declaration of absolute nullity of marriage is now explicitly required either as a
cause of action or a ground for defense. (Art. 39 of the Family Code). Where the
absolute nullity of a previous marriage is sought to be invoked for purposes of
contracting a second marriage, the sole basis acceptable in law for said projected
marriage to be free from legal infirmity is a final judgment declaring the previous
marriage void. (Family Code, Art. 40; See also arts. 11, 13, 42, 44, 48, 50, 52, 54, 86,
99, 147, 148).
[23]

However, a recent case applied the old rule because of the peculiar circumstances
of the case. In Apiag v. Cantero, (1997)
[24]
the first wife charged a municipal trial judge
of immorality for entering into a second marriage. The judge claimed that his first
marriage was void since he was merely forced into marrying his first wife whom he got
pregnant. On the issue of nullity of the first marriage, we
applied Odayat, Mendoza and Aragon. We held that since the second marriage took
place and all the children thereunder were born before the promulgation of Wiegel and
the effectivity of the Family Code, there is no need for a judicial declaration of nullity of
the first marriage pursuant to prevailing jurisprudence at that time.
Similarly, in the present case, the second marriage of private respondent was
entered into in 1979, before Wiegel. At that time, the prevailing rule was found
in Odayat, Mendoza and Aragon. The first marriage of private respondent being void for
lack of license and consent, there was no need for judicial declaration of its nullity before
he could contract a second marriage. In this case, therefore, we conclude that private
respondents second marriage to petitioner is valid.
Moreover, we find that the provisions of the Family Code cannot be retroactively
applied to the present case, for to do so would prejudice the vested rights of petitioner
and of her children. As held in Jison v. Court of Appeals,
[25]
the Family Code has
retroactive effect unless there be impairment of vested rights. In the present case, that
impairment of vested rights of petitioner and the children is patent. Additionally, we are
not quite prepared to give assent to the appellate courts finding that despite private
respondents deceit and perfidy in contracting marriage with petitioner, he could benefit
from her silence on the issue. Thus, coming now to the civil effects of the church
ceremony wherein petitioner married private respondent using the marriage license used
three years earlier in the civil ceremony, we find that petitioner now has raised this
matter properly. Earlier petitioner claimed as untruthful private respondents allegation
that he wed petitioner but they lacked a marriage license. Indeed we find there was a
marriage license, though it was the same license issued on April 3, 1979 and used in
both the civil and the church rites. Obviously, the church ceremony was confirmatory of
their civil marriage. As petitioner contends, the appellate court erred when it refused to
recognize the validity and salutary effects of said canonical marriage on a technicality,
i.e. that petitioner had failed to raise this matter as affirmative defense during trial. She
argues that such failure does not prevent the appellate court
from giving her defense due consideration and weight. She adds that the interest of
the State in protecting the inviolability of marriage, as a legal and social institution,
outweighs such technicality. In our view, petitioner and private respondent had complied
with all the essential and formal requisites for a valid marriage, including the requirement
of a valid license in the first of the two ceremonies. That this license was used legally in
the celebration of the civil ceremony does not detract from the ceremonial use thereof in
the church wedding of the same parties to the marriage, for we hold that the latter rites
served not only to ratify but also to fortify the first. The appellate court might have its
reasons for brushing aside this possible defense of the defendant below which
undoubtedly could have tendered a valid issue, but which was not timely interposed by
her before the trial court. But we are now persuaded we cannot play blind to the
absurdity, if not inequity, of letting the wrongdoer profit from what the CA calls his own
deceit and perfidy.
On the matter of petitioners counterclaim for damages and attorneys
fees. Although the appellate court admitted that they found private respondent acted
duplicitously and craftily in marrying petitioner, it did not award moral damages
because the latter did not adduce evidence to support her claim.
[26]

Like the lower courts, we are also of the view that no damages should be awarded
in the present case, but for another reason. Petitioner wants her marriage to private
respondent held valid and subsisting. She is suing to maintain her status as legitimate
wife. In the same breath, she asks for damages from her husband for filing a baseless
complaint for annulment of their marriage which caused her mental anguish, anxiety,
besmirched reputation, social humiliation and alienation from her parents. Should we
grant her prayer, we would have a situation where the husband pays the wife damages
from conjugal or common funds. To do so, would make the application of the law
absurd. Logic, if not common sense, militates against such incongruity. Moreover, our
laws do not comprehend an action for damages between husband and wife merely
because of breach of a marital obligation.
[27]
There are other remedies.
[28]

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of
Appeals dated July 24, 1996 and its Resolution dated November 7, 1996, are reversed
partially, so that the marriage of petitioner Ofelia P. Ty and private respondent Edgardo
M. Reyes is hereby DECLARED VALID AND SUBSISTING; and the award of the
amount of P15,000.00 is RATIFIED and MAINTAINED as monthly support to their two
children, Faye Eloise Reyes and Rachel Anne Reyes, for as long as they are of minor
age or otherwise legally entitled thereto. Costs against private respondent.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.


DIGEST
FACTS:

Private respondent, Edgardo Reyes, was married with Anna Villanueva in a civil
ceremony in March 1977 in Manila and subsequently had a church wedding in August
1977. Both weddings were declared null and void ab initio for lack of marriage license
and consent of the parties. Even before the decree nullifying the marriage was issued,
Reyes wed Ofelia Ty herein petitioner on April 1979 and had their church wedding in
Makati on April 1982. The decree was only issued in August 1980. In January 1991,
Reyes filed with RTC a complaint to have his marriage with petitioner be declared null
and void. AC ruled that a judicial declaration of nullity of the prior marriage with Anna
must first be secured before a subsequent marriage could be validly contracted.
However, SC found that the provisions of the Family Code cannot be retroactively
applied to the present case for doing so would prejudice the vested rights of the
petitioner and of her children.

ISSUE: Whether or not damages should be awarded to Ofelia Ty.


HELD:

SC is in the opinion of the lower courts that no damages should be awarded to the wife
who sought damages against the husband for filing a baseless complaint causing her
mental anguish, anxiety, besmirched reputation, social humiliation and alienation from
her parents. Aside from the fact, that petitioner wants her marriage to private
respondent held valid and subsisting. She is likewise suing to maintain her status as
legitimate wife. To grant her petition for damages would result to a situation where the
husband pays the wife damages from conjugal or common funds. To do so, would make
the application of the law absurd. Moreover, Philippine laws do not comprehend an
action for damages between husband and wife merely because of breach of a marital
obligation.
Hence, the petition was granted. Marriage between Ty and Reyes is declared valid and
subsisting and the award of the amount of P15,000 is ratified and maintained as monthly
support to their 2 children for as long as they are of minor age or otherwise legally
entitled thereto.


Article 266-C, Revised Penal Code
Ilusorio vs. Bildner (G.R. 139789, 12 May 2000)
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. Mesm
[G.R. No. 139808. May 12, 2000]
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA
ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K.
ILUSORIO, respondents.
D E C I S I O N
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]
Slx
"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: Scslx
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 Potencianos 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, Potencianos 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 latters 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. Slxsc
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 petitioners 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 petitioners
manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia Ilusorio-
Yap, the administrator of Cleveland Condominium or anywhere in its
place, his guards and Potenciano Ilusorios staff especially Ms. Aurora
Montemayor to allow visitation rights to Potenciano Ilusorios 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]
Jksm
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 Ilusorios 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 Ilusorios 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. Es m
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 subjects 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 womans 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. 5/31/00 10:02 AM
DIGEST
FACTS:

Potenciano Ilusorio, a lawyer, 86 year old of age, possessed extensive property valued
at millions of pesos. For many year, he was the Chairman of the Board and President of
Baguio Country Club. He was married with Erlinda Ilusorio, herein petitioner, for 30
years and begotten 6 children namely Ramon, Lin Illusorio-Bildner (defendant), Maximo,
Sylvia, Marietta and Shereen. They separated from bed and board in 1972. Potenciano
lived at Makati every time he was in Manila and at Illusorio Penthouse, Baguio Country
Club when he was in Baguio City. On the other hand, the petitioner lived in Antipolo
City.

In 1997, upon Potencianos arrival from US, he stayed with her wife for about 5 months
in Antipolo city. The children, Sylvia and Lin, alleged that during this time their mother
overdose Potenciano which caused the latters health to deteriorate. In February 1998,
Erlinda filed with RTC petition for guardianship over the person and property of
Potenciano due to the latters advanced age, frail health, poor eyesight and impaired
judgment. In May 1998, after attending a corporate meeting in Baguio, Potenciano did
not return to Antipolo instead lived at Cleveland Condominium in Makati. In March 1999,
petitioner filed with CA petition for habeas corpus to have the custody of his husband
alleging that the respondents refused her demands to see and visit her husband and
prohibited Potenciano from returning to Antipolo.

ISSUE: Whether or not the petitioned writ of habeas corpus should be issued.

HELD:

A writ of habeas corpus extends to all cases of illegal confinement or detention, or by
which the rightful custody of a person is withheld from the one entitled thereto. To justify
the grant for such petition, the restraint of liberty must an illegal and involuntary
deprivation of freedom of action. The illegal restraint of liberty must be actual and
effective not merely nominal or moral.

Evidence showed that there was no actual and effective detention or deprivation of
Potencianos liberty that would justify issuance of the writ. The fact that the latter was 86
years of age and under medication does not necessarily render him mentally
incapacitated. He still has the capacity to discern his actions. With his full mental
capacity having the right of choice, he may not be the subject of visitation rights against
his free choice. Otherwise, he will be deprived of his right to privacy.

The case at bar does not involve the right of a parent to visit a minor child but the right of
a wife to visit a husband. In any event, that the husband refuses to see his wife for
private reasons, he is at liberty to do so without threat or any penalty attached to the
exercise of his right. Coverture, is a matter beyond judicial authority and cannot be
enforced by compulsion of a writ of habeas corpus carried out by the sheriffs or by any
other process.


Article 69
Romualdez-Marcos vs. COMELEC
G.R. No. 119976 September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J .:
A constitutional provision should be construed as to give it effective operation and
suppress the mischief at which it is aimed.
1
The 1987 Constitution mandates that an
aspirant for election to the House of Representatives be "a registered voter in the district
in which he shall be elected, and a resident thereof for a period of not less than one year
immediately preceding the election."
2
The mischief which this provision reproduced
verbatim from the 1973 Constitution seeks to prevent is the possibility of a "stranger
or newcomer unacquainted with the conditions and needs of a community and not
identified with the latter, from an elective office to serve that community."
3

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of
Representative of the First District of Leyte with the Provincial Election Supervisor on
March 8, 1995, providing the following information in item no. 8:
4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE
ELECTED IMMEDIATELY PRECEDING THE ELECTION: __________
Years and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent
Representative of the First District of Leyte and a candidate for the same position, filed a
"Petition for Cancellation and Disqualification"
5
with the Commission on Elections
alleging that petitioner did not meet the constitutional requirement for residency. In his
petition, private respondent contended that Mrs. Marcos lacked the Constitution's one
year residency requirement for candidates for the House of Representatives on the
evidence of declarations made by her in Voter Registration Record 94-No. 3349772
6
and
in her Certificate of Candidacy. He prayed that "an order be issued declaring (petitioner)
disqualified and canceling the certificate of candidacy."
7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy,
changing the entry "seven" months to "since childhood" in item no. 8 of the amended
certificate.
8
On the same day, the Provincial Election Supervisor of Leyte informed
petitioner that:
[T]his office cannot receive or accept the aforementioned Certificate of
Candidacy on the ground that it is filed out of time, the deadline for the
filing of the same having already lapsed on March 20, 1995. The
Corrected/Amended Certificate of Candidacy should have been filed on or
before the March 20, 1995 deadline.
9

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the
COMELEC's Head Office in Intramuros, Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was
likewise filed with the head office on the same day. In said Answer, petitioner averred
that the entry of the word "seven" in her original Certificate of Candidacy was the result
of an "honest misinterpretation"
10
which she sought to rectify by adding the words "since
childhood" in her Amended/Corrected Certificate of Candidacy and that "she has always
maintained Tacloban City as her domicile or residence.
11
Impugning respondent's
motive in filing the petition seeking her disqualification, she noted that:
When respondent (petitioner herein) announced that she was intending to
register as a voter in Tacloban City and run for Congress in the First
District of Leyte, petitioner immediately opposed her intended registration
by writing a letter stating that "she is not a resident of said city but of
Barangay Olot, Tolosa, Leyte. After respondent had registered as a voter
in Tolosa following completion of her six month actual residence therein,
petitioner filed a petition with the COMELEC to transfer the town of
Tolosa from the First District to the Second District and pursued such a
move up to the Supreme Court, his purpose being to remove respondent
as petitioner's opponent in the congressional election in the First District.
He also filed a bill, along with other Leyte Congressmen, seeking the
creation of another legislative district to remove the town of Tolosa out of
the First District, to achieve his purpose. However, such bill did not pass
the Senate. Having failed on such moves, petitioner now filed the instant
petition for the same objective, as it is obvious that he is afraid to submit
along with respondent for the judgment and verdict of the electorate of the
First District of Leyte in an honest, orderly, peaceful, free and clean
elections on May 8, 1995.
12

On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by
a vote of 2 to 1,
13
came up with a Resolution 1) finding private respondent's Petition for
Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's Corrected/Amended
Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate of
Candidacy.
14
Dealing with two primary issues, namely, the validity of amending the
original Certificate of Candidacy after the lapse of the deadline for filing certificates of
candidacy, and petitioner's compliance with the one year residency requirement, the
Second Division held:
Respondent raised the affirmative defense in her Answer that the printed
word "Seven" (months) was a result of an "honest misinterpretation or
honest mistake" on her part and, therefore, an amendment should
subsequently be allowed. She averred that she thought that what was
asked was her "actual and physical" presence in Tolosa and not
residence of origin or domicile in the First Legislative District, to which she
could have responded "since childhood." In an accompanying affidavit,
she stated that her domicile is Tacloban City, a component of the First
District, to which she always intended to return whenever absent and
which she has never abandoned. Furthermore, in her memorandum, she
tried to discredit petitioner's theory of disqualification by alleging that she
has been a resident of the First Legislative District of Leyte since
childhood, although she only became a resident of the Municipality of
Tolosa for seven months. She asserts that she has always been a
resident of Tacloban City, a component of the First District, before coming
to the Municipality of Tolosa.
Along this point, it is interesting to note that prior to her registration in
Tolosa, respondent announced that she would be registering in Tacloban
City so that she can be a candidate for the District. However, this
intention was rebuffed when petitioner wrote the Election Officer of
Tacloban not to allow respondent since she is a resident of Tolosa and
not Tacloban. She never disputed this claim and instead implicitly
acceded to it by registering in Tolosa.
This incident belies respondent's claim of "honest misinterpretation or
honest mistake." Besides, the Certificate of Candidacy only asks for
RESIDENCE. Since on the basis of her Answer, she was quite aware of
"residence of origin" which she interprets to be Tacloban City, it is curious
why she did not cite Tacloban City in her Certificate of Candidacy. Her
explanation that she thought what was asked was her actual and physical
presence in Tolosa is not easy to believe because there is none in the
question that insinuates about Tolosa. In fact, item no. 8 in the Certificate
of Candidacy speaks clearly of "Residency in the
CONSTITUENCY where I seek to be elected immediately preceding the
election." Thus, the explanation of respondent fails to be persuasive.
From the foregoing, respondent's defense of an honest mistake or
misinterpretation, therefore, is devoid of merit.
To further buttress respondent's contention that an amendment may be
made, she cited the case ofAlialy v. COMELEC (2 SCRA 957). The
reliance of respondent on the case of Alialy is misplaced. The case only
applies to the "inconsequential deviations which cannot affect the result of
the election, or deviations from provisions intended primarily to secure
timely and orderly conduct of elections." The Supreme Court in that case
considered the amendment only as a matter of form. But in the instant
case, the amendment cannot be considered as a matter of form or an
inconsequential deviation. The change in the number of years of
residence in the place where respondent seeks to be elected is a
substantial matter which determines her qualification as a candidacy,
specially those intended to suppress, accurate material representation in
the original certificate which adversely affects the filer. To admit the
amended certificate is to condone the evils brought by the shifting minds
of manipulating candidate, of the detriment of the integrity of the election.
Moreover, to allow respondent to change the seven (7) month period of
her residency in order to prolong it by claiming it was "since childhood" is
to allow an untruthfulness to be committed before this Commission. The
arithmetical accuracy of the 7 months residency the respondent indicated
in her certificate of candidacy can be gleaned from her entry in her Voter's
Registration Record accomplished on January 28, 1995 which reflects
that she is a resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time
of the said registration (Annex A, Petition). Said accuracy is further
buttressed by her letter to the election officer of San Juan, Metro Manila,
dated August 24, 1994, requesting for the cancellation of her registration
in the Permanent List of Voters thereat so that she can be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte. The dates of these three (3)
different documents show the respondent's consistent conviction that she
has transferred her residence to Olot, Tolosa, Leyte from Metro Manila
only for such limited period of time, starting in the last week of August
1994 which on March 8, 1995 will only sum up to 7 months. The
Commission, therefore, cannot be persuaded to believe in the
respondent's contention that it was an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected Certificate of Candidacy
cannot be admitted by this Commission.
xxx xxx xxx
Anent the second issue, and based on the foregoing discussion, it is clear
that respondent has not complied with the one year residency
requirement of the Constitution.
In election cases, the term "residence" has always been considered as
synonymous with "domicile" which imports not only the intention to reside
in a fixed place but also personal presence in-that place, coupled with
conduct indicative of such intention. Domicile denotes a fixed permanent
residence to which when absent for business or pleasure, or for like
reasons, one intends to return. (Perfecto Faypon vs. Eliseo Quirino, 96
Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In respondent's
case, when she returned to the Philippines in 1991, the residence she
chose was not Tacloban but San Juan, Metro Manila. Thus, her animus
revertendi is pointed to Metro Manila and not Tacloban.
This Division is aware that her claim that she has been a resident of the
First District since childhood is nothing more than to give her a color of
qualification where she is otherwise constitutionally disqualified. It cannot
hold ground in the face of the facts admitted by the respondent in her
affidavit. Except for the time that she studied and worked for some years
after graduation in Tacloban City, she continuously lived in Manila. In
1959, after her husband was elected Senator, she lived and resided in
San Juan, Metro Manila where she was a registered voter. In 1965, she
lived in San Miguel, Manila where she was again a registered voter. In
1978, she served as member of the Batasang Pambansa as the
representative of the City of Manila and later on served as the Governor
of Metro Manila. She could not have served these positions if she had not
been a resident of the City of Manila. Furthermore, when she filed her
certificate of candidacy for the office of the President in 1992, she claimed
to be a resident of San Juan, Metro Manila. As a matter of fact on August
24, 1994, respondent wrote a letter with the election officer of San Juan,
Metro Manila requesting for the cancellation of her registration in the
permanent list of voters that she may be re-registered or transferred to
Barangay Olot, Tolosa, Leyte. These facts manifest that she could not
have been a resident of Tacloban City since childhood up to the time she
filed her certificate of candidacy because she became a resident of many
places, including Metro Manila. This debunks her claim that prior to her
residence in Tolosa, Leyte, she was a resident of the First Legislative
District of Leyte since childhood.
In this case, respondent's conduct reveals her lack of intention to make
Tacloban her domicile. She registered as a voter in different places and
on several occasions declared that she was a resident of Manila.
Although she spent her school days in Tacloban, she is considered to
have abandoned such place when she chose to stay and reside in other
different places. In the case of Romualdez vs. RTC(226 SCRA 408) the
Court explained how one acquires a new domicile by choice. There must
concur: (1) residence or bodily presence in the new locality; (2) intention
to remain there; and (3) intention to abandon the old domicile. In other
words there must basically be animus manendi withanimus non
revertendi. When respondent chose to stay in Ilocos and later on in
Manila, coupled with her intention to stay there by registering as a voter
there and expressly declaring that she is a resident of that place, she is
deemed to have abandoned Tacloban City, where she spent her
childhood and school days, as her place of domicile.
Pure intention to reside in that place is not sufficient, there must likewise
be conduct indicative of such intention. Respondent's statements to the
effect that she has always intended to return to Tacloban, without the
accompanying conduct to prove that intention, is not conclusive of her
choice of residence. Respondent has not presented any evidence to
show that her conduct, one year prior the election, showed intention to
reside in Tacloban. Worse, what was evident was that prior to her
residence in Tolosa, she had been a resident of Manila.
It is evident from these circumstances that she was not a resident of the
First District of Leyte "since childhood."
To further support the assertion that she could have not been a resident
of the First District of Leyte for more than one year, petitioner correctly
pointed out that on January 28, 1995 respondent registered as a voter at
precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her
Voter Registration Record that she resided in the municipality of Tolosa
for a period of six months. This may be inconsequential as argued by the
respondent since it refers only to her residence in Tolosa, Leyte. But her
failure to prove that she was a resident of the First District of Leyte prior
to her residence in Tolosa leaves nothing but a convincing proof that she
had been a resident of the district for six months only.
15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en
banc denied petitioner's Motion for Reconsideration
16
of the April 24, 1995 Resolution
declaring her not qualified to run for the position of Member of the House of
Representatives for the First Legislative District of Leyte.
17
The Resolution tersely
stated:
After deliberating on the Motion for Reconsideration, the Commission
RESOLVED to DENY it, no new substantial matters having been raised
therein to warrant re-examination of the resolution granting the petition for
disqualification.
18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation
should the results of the canvass show that she obtained the highest number of votes in
the congressional elections in the First District of Leyte. On the same day, however, the
COMELEC reversed itself and issued a second Resolution directing that the
proclamation of petitioner be suspended in the event that she obtains the highest
number of votes.
19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the
overwhelming winner of the elections for the congressional seat in the First District of
Leyte held May 8, 1995 based on the canvass completed by the Provincial Board of
Canvassers on May 14, 1995. Petitioner alleged that the canvass showed that she
obtained a total of 70,471 votes compared to the 36,833 votes received by Respondent
Montejo. A copy of said Certificate of Canvass was annexed to the Supplemental
Petition.
On account of the Resolutions disqualifying petitioner from running for the congressional
seat of the First District of Leyte and the public respondent's Resolution suspending her
proclamation, petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental Petitions. The principal
issues may be classified into two general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for election purposes, of the
First District of Leyte for a period of one year at the time of the May 9,
1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised its jurisdiction in
disqualifying petitioner outside the period mandated by the Omnibus
Election Code for disqualification cases under Article 78 of the said Code.
b) After the Elections
Whether or not the House of Representatives Electoral Tribunal assumed
exclusive jurisdiction over the question of petitioner's qualifications after
the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division reveals a startling
confusion in the application of settled concepts of "Domicile" and "Residence" in election
law. While the COMELEC seems to be in agreement with the general proposition that for
the purposes of election law, residence is synonymous with domicile, the Resolution
reveals a tendency to substitute or mistake the concept of domicile for actual residence,
a conception not intended for the purpose of determining a candidate's qualifications for
election to the House of Representatives as required by the 1987 Constitution. As it
were, residence, for the purpose of meeting the qualification for an elective position, has
a settled meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the
fulfillment of civil obligations, the domicile of natural persons is their place of habitual
residence." In Ong vs. Republic
20
this court took the concept of domicile to mean an
individual's "permanent home", "a place to which, whenever absent for business or for
pleasure, one intends to return, and depends on facts and circumstances in the sense
that they disclose intent."
21
Based on the foregoing, domicile includes the twin elements
of "the fact of residing or physical presence in a fixed place" and animus manendi, or the
intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of an individual to a
certain place. It is the physical presence of a person in a given area, community or
country. The essential distinction between residence and domicile in law is that
residence involves the intent to leave when the purpose for which the resident has taken
up his abode ends. One may seek a place for purposes such as pleasure, business, or
health. If a person's intent be to remain, it becomes his domicile; if his intent is to leave
as soon as his purpose is established it is residence.
22
It is thus, quite perfectly normal
for an individual to have different residences in various places. However, a person can
only have a single domicile, unless, for various reasons, he successfully abandons his
domicile in favor of another domicile of choice. In Uytengsu vs. Republic,
23
we laid this
distinction quite clearly:
There is a difference between domicile and residence. "Residence" is
used to indicate a place of abode, whether permanent or temporary;
"domicile" denotes a fixed permanent residence to which, when absent,
one has the intention of returning. A man may have a residence in one
place and a domicile in another. Residence is not domicile, but domicile is
residence coupled with the intention to remain for an unlimited time. A
man can have but one domicile for the same purpose at any time, but he
may have numerous places of residence. His place of residence is
generally his place of domicile, but it is not by any means necessarily so
since no length of residence without intention of remaining will constitute
domicile.
For political purposes the concepts of residence and domicile are dictated by the
peculiar criteria of political laws. As these concepts have evolved in our election law,
what has clearly and unequivocally emerged is the fact that residence for election
purposes is used synonymously with domicile.
In Nuval vs. Guray,
24
the Court held that "the term residence. . . is synonymous with
domicile which imports not only intention to reside in a fixed place, but also personal
presence in that place, coupled with conduct indicative of such intention."
25
Larena
vs. Teves
26
reiterated the same doctrine in a case involving the qualifications of the
respondent therein to the post of Municipal President of Dumaguete, Negros
Oriental. Faypon vs. Quirino,
27
held that the absence from residence to pursue studies
or practice a profession or registration as a voter other than in the place where one is
elected does not constitute loss of residence.
28
So settled is the concept (of domicile) in
our election law that in these and other election law cases, this Court has stated that the
mere absence of an individual from his permanent residence without the intention to
abandon it does not result in a loss or change of domicile.
The deliberations of the 1987 Constitution on the residence qualification for certain
elective positions have placed beyond doubt the principle that when the Constitution
speaks of "residence" in election law, it actually means only "domicile" to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971
Constitutional Convention, there was an attempt to require residence in
the place not less than one year immediately preceding the day of the
elections. So my question is: What is the Committee's concept of
residence of a candidate for the legislature? Is it actual residence or is it
the concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of the
National Assembly are concerned, the proposed section merely provides,
among others, "and a resident thereof", that is, in the district for a period
of not less than one year preceding the day of the election. This was in
effect lifted from the 1973 Constitution, the interpretation given to it was
domicile.
29

xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2. I think
Commissioner Nolledo has raised the same point that "resident" has been
interpreted at times as a matter of intention rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper
time to go back to actual residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially
considering that a provision in the Constitution in the Article on Suffrage
says that Filipinos living abroad may vote as enacted by law. So, we have
to stick to the original concept that it should be by domicile and not
physical residence.
30

In Co vs. Electoral Tribunal of the House of Representatives,
31
this Court concluded that
the framers of the 1987 Constitution obviously adhered to the definition given to the term
residence in election law, regarding it as having the same meaning as domicile.
32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos
satisfied the residency requirement mandated by Article VI, Sec. 6 of the 1987
Constitution? Of what significance is the questioned entry in petitioner's Certificate of
Candidacy stating her residence in the First Legislative District of Leyte as seven (7)
months?
It is the fact of residence, not a statement in a certificate of candidacy which ought to be
decisive in determining whether or not and individual has satisfied the constitution's
residency qualification requirement. The said statement becomes material only when
there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which
would otherwise render a candidate ineligible. It would be plainly ridiculous for a
candidate to deliberately and knowingly make a statement in a certificate of candidacy
which would lead to his or her disqualification.
It stands to reason therefore, that petitioner merely committed an honest mistake in
jotting the word "seven" in the space provided for the residency qualification
requirement. The circumstances leading to her filing the questioned entry obviously
resulted in the subsequent confusion which prompted petitioner to write down the period
of her actual stay in Tolosa, Leyte instead of her period of residence in the First district,
which was "since childhood" in the space provided. These circumstances and events are
amply detailed in the COMELEC's Second Division's questioned resolution, albeit with a
different interpretation. For instance, when herein petitioner announced that she would
be registering in Tacloban City to make her eligible to run in the First District, private
respondent Montejo opposed the same, claiming that petitioner was a resident of
Tolosa, not Tacloban City. Petitioner then registered in her place of actual residence in
the First District, which is Tolosa, Leyte, a fact which she subsequently noted down in
her Certificate of Candidacy. A close look at said certificate would reveal the possible
source of the confusion: the entry for residence (Item No. 7) is followed immediately by
the entry for residence in the constituency where a candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte
POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot,
Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO
BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________
Years and Seven Months.
Having been forced by private respondent to register in her place of actual residence in
Leyte instead of petitioner's claimed domicile, it appears that petitioner had jotted down
her period of stay in her legal residence or domicile. The juxtaposition of entries in Item 7
and Item 8 the first requiring actual residence and the second requiring domicile
coupled with the circumstances surrounding petitioner's registration as a voter in Tolosa
obviously led to her writing down an unintended entry for which she could be
disqualified. This honest mistake should not, however, be allowed to negate the fact of
residence in the First District if such fact were established by means more convincing
than a mere entry on a piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not possibly be in the First
District of Leyte, the Second Division of the COMELEC, in its assailed Resolution of April
24,1995 maintains that "except for the time when (petitioner) studied and worked for
some years after graduation in Tacloban City, she continuously lived in Manila." The
Resolution additionally cites certain facts as indicative of the fact that petitioner's
domicile ought to be any place where she lived in the last few decades except Tacloban,
Leyte. First, according to the Resolution, petitioner, in 1959, resided in San Juan, Metro
Manila where she was also registered voter. Then, in 1965, following the election of her
husband to the Philippine presidency, she lived in San Miguel, Manila where she as a
voter. In 1978 and thereafter, she served as a member of the Batasang Pambansa and
Governor of Metro Manila. "She could not, have served these positions if she had not
been a resident of Metro Manila," the COMELEC stressed. Here is where the confusion
lies.
We have stated, many times in the past, that an individual does not lose his domicile
even if he has lived and maintained residences in different places. Residence, it bears
repeating, implies a factual relationship to a given place for various purposes. The
absence from legal residence or domicile to pursue a profession, to study or to do other
things of a temporary or semi-permanent nature does not constitute loss of residence.
Thus, the assertion by the COMELEC that "she could not have been a resident of
Tacloban City since childhood up to the time she filed her certificate of candidacy
because she became a resident of many places" flies in the face of settled jurisprudence
in which this Court carefully made distinctions between (actual) residence and domicile
for election law purposes. In Larena vs. Teves,
33
supra, we stressed:
[T]his court is of the opinion and so holds that a person who has his own
house wherein he lives with his family in a municipality without having
ever had the intention of abandoning it, and without having lived either
alone or with his family in another municipality, has his residence in the
former municipality, notwithstanding his having registered as an elector in
the other municipality in question and having been a candidate for various
insular and provincial positions, stating every time that he is a resident of
the latter municipality.
More significantly, in Faypon vs. Quirino,
34
We explained that:
A citizen may leave the place of his birth to look for "greener pastures," as
the saying goes, to improve his lot, and that, of course includes study in
other places, practice of his avocation, or engaging in business. When an
election is to be held, the citizen who left his birthplace to improve his lot
may desire to return to his native town to cast his ballot but for
professional or business reasons, or for any other reason, he may not
absent himself from his professional or business activities; so there he
registers himself as voter as he has the qualifications to be one and is not
willing to give up or lose the opportunity to choose the officials who are to
run the government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile or
residence of origin has not forsaken him. This may be the explanation
why the registration of a voter in a place other than his residence of origin
has not been deemed sufficient to constitute abandonment or loss of such
residence. It finds justification in the natural desire and longing of every
person to return to his place of birth. This strong feeling of attachment to
the place of one's birth must be overcome by positive proof of
abandonment for another.
From the foregoing, it can be concluded that in its above-cited statements supporting its
proposition that petitioner was ineligible to run for the position of Representative of the
First District of Leyte, the COMELEC was obviously referring to petitioner's various
places of (actual) residence, not her domicile. In doing so, it not only ignored settled
jurisprudence on residence in election law and the deliberations of the constitutional
commission but also the provisions of the Omnibus Election Code (B.P. 881).
35

What is undeniable, however, are the following set of facts which establish the fact of
petitioner's domicile, which we lift verbatim from the COMELEC's Second Division's
assailed Resolution:
36

In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She studied
in the Holy Infant Academy in Tacloban from 1938 to 1949 when she
graduated from high school. She pursued her college studies in St. Paul's
College, now Divine Word University in Tacloban, where she earned her
degree in Education. Thereafter, she taught in the Leyte Chinese School,
still in Tacloban City. In 1952 she went to Manila to work with her cousin,
the late speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-President Ferdinand E. Marcos
when he was still a congressman of Ilocos Norte and registered there as
a voter. When her husband was elected Senator of the Republic in 1959,
she and her husband lived together in San Juan, Rizal where she
registered as a voter. In 1965, when her husband was elected President
of the Republic of the Philippines, she lived with him in Malacanang
Palace and registered as a voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her family were abducted
and kidnapped to Honolulu, Hawaii. In November 1991, she came home
to Manila. In 1992, respondent ran for election as President of the
Philippines and filed her Certificate of Candidacy wherein she indicated
that she is a resident and registered voter of San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC, what is inescapable
is that petitioner held various residences for different purposes during the last four
decades. None of these purposes unequivocally point to an intention to abandon her
domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a
minor she naturally followed the domicile of her parents. She grew up in Tacloban,
reached her adulthood there and eventually established residence in different parts of
the country for various reasons. Even during her husband's presidency, at the height of
the Marcos Regime's powers, petitioner kept her close ties to her domicile of origin by
establishing residences in Tacloban, celebrating her birthdays and other important
personal milestones in her home province, instituting well-publicized projects for the
benefit of her province and hometown, and establishing a political power base where her
siblings and close relatives held positions of power either through the ballot or by
appointment, always with either her influence or consent. These well-publicized ties to
her domicile of origin are part of the history and lore of the quarter century of Marcos
power in our country. Either they were entirely ignored in the COMELEC'S Resolutions,
or the majority of the COMELEC did not know what the rest of the country always knew:
the fact of petitioner's domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was not petitioner's
domicile of origin because she did not live there until she was eight years old. He avers
that after leaving the place in 1952, she "abandoned her residency (sic) therein for many
years and . . . (could not) re-establish her domicile in said place by merely expressing
her intention to live there again." We do not agree.
First, minor follows the domicile of his parents. As domicile, once acquired is retained
until a new one is gained, it follows that in spite of the fact of petitioner's being born in
Manila, Tacloban, Leyte was her domicile of origin by operation of law. This domicile
was not established only when her father brought his family back to Leyte contrary to
private respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect a change of domicile,
one must demonstrate:
37

1. An actual removal or an actual change of domicile;
2. A bona fide intention of abandoning the former place of residence and
establishing a new one; and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these criteria, the residence of origin
should be deemed to continue. Only with evidence showing concurrence of all three
requirements can the presumption of continuity or residence be rebutted, for a change of
residence requires an actual and deliberate abandonment, and one cannot have two
legal residences at the same time.
38
In the case at bench, the evidence adduced by
private respondent plainly lacks the degree of persuasiveness required to convince this
court that an abandonment of domicile of origin in favor of a domicile of choice indeed
occurred. To effect an abandonment requires the voluntary act of relinquishing
petitioner's former domicile with an intent to supplant the former domicile with one of her
own choosing (domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner lost her domicile of origin
by operation of law as a result of her marriage to the late President Ferdinand E. Marcos
in 1952. For there is a clearly established distinction between the Civil Code concepts of
"domicile" and "residence."
39
The presumption that the wife automatically gains the
husband's domicile by operation of law upon marriage cannot be inferred from the use of
the term "residence" in Article 110 of the Civil Code because the Civil Code is one area
where the two concepts are well delineated. Dr. Arturo Tolentino, writing on this specific
area explains:
In the Civil Code, there is an obvious difference between domicile and
residence. Both terms imply relations between a person and a place; but
in residence, the relation is one of fact while in domicile it is legal or
juridical, independent of the necessity of physical presence.
40

Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the residence of the family. But the
court may exempt the wife from living with the husband if he should live
abroad unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts of domicile or
residence as they affect the female spouse upon marriage yields nothing which would
suggest that the female spouse automatically loses her domicile of origin in favor of the
husband's choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which
states:
La mujer esta obligada a seguir a su marido donde quiera que fije su
residencia. Los Tribunales, sin embargo, podran con justa causa eximirla
de esta obligacion cuando el marido transende su residencia a ultramar o'
a pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted
article, which means wherever (the husband) wishes to establish residence. This part of
the article clearly contemplates only actual residence because it refers to a positive act
of fixing a family home or residence. Moreover, this interpretation is further strengthened
by the phrase "cuando el marido translade su residencia" in the same provision which
means, "when the husband shall transfer his residence," referring to another positive act
of relocating the family to another home or place of actual residence. The article
obviously cannot be understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one
place to another not only once, but as often as the husband may deem fit to move his
family, a circumstance more consistent with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony with the intention of the
law to strengthen and unify the family, recognizing the fact that the husband and the wife
bring into the marriage different domiciles (of origin). This difference could, for the sake
of family unity, be reconciled only by allowing the husband to fix a single place of actual
residence.
Very significantly, Article 110 of the Civil Code is found under Title V under the heading:
RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE. Immediately
preceding Article 110 is Article 109 which obliges the husband and wife to live together,
thus:
Art. 109. The husband and wife are obligated to live together, observe
mutual respect and fidelity and render mutual help and support.
The duty to live together can only be fulfilled if the husband and wife are physically
together. This takes into account the situations where the couple has many residences
(as in the case of the petitioner). If the husband has to stay in or transfer to any one of
their residences, the wife should necessarily be with him in order that they may "live
together." Hence, it is illogical to conclude that Art. 110 refers to "domicile" and not to
"residence." Otherwise, we shall be faced with a situation where the wife is left in the
domicile while the husband, for professional or other reasons, stays in one of their
(various) residences. As Dr. Tolentino further explains:
Residence and Domicile Whether the word "residence" as used with
reference to particular matters is synonymous with "domicile" is a
question of some difficulty, and the ultimate decision must be made from
a consideration of the purpose and intent with which the word is used.
Sometimes they are used synonymously, at other times they are
distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring to the physical
presence of a person in a place. A person can have two or more
residences, such as a country residence and a city residence. Residence
is acquired by living in place; on the other hand, domicile can exist
without actually living in the place. The important thing for domicile is that,
once residence has been established in one place, there be an intention
to stay there permanently, even if residence is also established in some
other
place.
41

In fact, even the matter of a common residence between the husband and the wife
during the marriage is not an iron-clad principle; In cases applying the Civil Code on the
question of a common matrimonial residence, our jurisprudence has recognized certain
situations
42
where the spouses could not be compelled to live with each other such that
the wife is either allowed to maintain a residence different from that of her husband or,
for obviously practical reasons, revert to her original domicile (apart from being allowed
to opt for a new one). In De la Vina vs. Villareal
43
this Court held that "[a] married
woman may acquire a residence or domicile separate from that of her husband during
the existence of the marriage where the husband has given cause for divorce."
44
Note
that the Court allowed the wife either to obtain new residence or to choose a new
domicile in such an event. In instances where the wife actually opts, .under the Civil
Code, to live separately from her husband either by taking new residence or reverting to
her domicile of origin, the Court has held that the wife could not be compelled to live with
her husband on pain of contempt. In Arroyo vs. Vasques de Arroyo
45
the Court held that:
Upon examination of the authorities, we are convinced that it is not within
the province of the courts of this country to attempt to compel one of the
spouses to cohabit with, and render conjugal rights to, the other. Of
course where the property rights of one of the pair are invaded, an action
for restitution of such rights can be maintained. But we are disinclined to
sanction the doctrine that an order, enforcible (sic) by process of
contempt, may be entered to compel the restitution of the purely personal
right of consortium. At best such an order can be effective for no other
purpose than to compel the spouses to live under the same roof; and he
experience of those countries where the courts of justice have assumed
to compel the cohabitation of married people shows that the policy of the
practice is extremely questionable. Thus in England, formerly the
Ecclesiastical Court entertained suits for the restitution of conjugal rights
at the instance of either husband or wife; and if the facts were found to
warrant it, that court would make a mandatory decree, enforceable by
process of contempt in case of disobedience, requiring the delinquent
party to live with the other and render conjugal rights. Yet this practice
was sometimes criticized even by the judges who felt bound to enforce
such orders, and in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir
James Hannen, President in the Probate, Divorce and Admiralty Division
of the High Court of Justice, expressed his regret that the English law on
the subject was not the same as that which prevailed in Scotland, where
a decree of adherence, equivalent to the decree for the restitution of
conjugal rights in England, could be obtained by the injured spouse, but
could not be enforced by imprisonment. Accordingly, in obedience to the
growing sentiment against the practice, the Matrimonial Causes Act
(1884) abolished the remedy of imprisonment; though a decree for the
restitution of conjugal rights can still be procured, and in case of
disobedience may serve in appropriate cases as the basis of an order for
the periodical payment of a stipend in the character of alimony.
In the voluminous jurisprudence of the United States, only one court, so
far as we can discover, has ever attempted to make a preemptory order
requiring one of the spouses to live with the other; and that was in a case
where a wife was ordered to follow and live with her husband, who had
changed his domicile to the City of New Orleans. The decision referred to
(Bahn v. Darby, 36 La. Ann., 70) was based on a provision of the Civil
Code of Louisiana similar to article 56 of the Spanish Civil Code. It was
decided many years ago, and the doctrine evidently has not been fruitful
even in the State of Louisiana. In other states of the American Union the
idea of enforcing cohabitation by process of contempt is rejected. (21
Cyc., 1148).
In a decision of January 2, 1909, the Supreme Court of Spain appears to
have affirmed an order of the Audiencia Territorial de Valladolid requiring
a wife to return to the marital domicile, and in the alternative, upon her
failure to do so, to make a particular disposition of certain money and
effects then in her possession and to deliver to her husband, as
administrator of the ganancial property, all income, rents, and interest
which might accrue to her from the property which she had brought to the
marriage. (113 Jur. Civ., pp. 1, 11) But it does not appear that this order
for the return of the wife to the marital domicile was sanctioned by any
other penalty than the consequences that would be visited upon her in
respect to the use and control of her property; and it does not appear that
her disobedience to that order would necessarily have been followed by
imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman Marcos, in 1954,
petitioner was obliged by virtue of Article 110 of the Civil Code to follow her
husband's actual place of residence fixed by him. The problem here is that at that time,
Mr. Marcos had several places of residence, among which were San Juan, Rizal and
Batac, Ilocos Norte. There is no showing which of these places Mr. Marcos did fix as his
family's residence. But assuming that Mr. Marcos had fixed any of these places as the
conjugal residence, what petitioner gained upon marriage was actual residence. She did
not lose her domicile of origin.
On the other hand, the common law concept of "matrimonial domicile" appears to have
been incorporated, as a result of our jurisprudential experiences after the drafting of the
Civil Code of 1950, into the New Family Code. To underscore the difference between the
intentions of the Civil Code and the Family Code drafters, the term residence has been
supplanted by the term domicile in an entirely new provision (Art. 69) distinctly different
in meaning and spirit from that found in Article 110. The provision recognizes
revolutionary changes in the concept of women's rights in the intervening years by
making the choice of domicile a product of mutual agreement between the spouses.
46

Without as much belaboring the point, the term residence may mean one thing in civil
law (or under the Civil Code) and quite another thing in political law. What stands clear is
that insofar as the Civil Code is concerned-affecting the rights and obligations of
husband and wife the term residence should only be interpreted to mean "actual
residence." The inescapable conclusion derived from this unambiguous civil law
delineation therefore, is that when petitioner married the former President in 1954, she
kept her domicile of origin and merely gained a new home, not a domicilium
necessarium.
Even assuming for the sake of argument that petitioner gained a new "domicile" after her
marriage and only acquired a right to choose a new one after her husband died,
petitioner's acts following her return to the country clearly indicate that she not only
impliedly but expressly chose her domicile of origin (assuming this was lost by operation
of law) as her domicile. This "choice" was unequivocally expressed in her letters to the
Chairman of the PCGG when petitioner sought the PCGG's permission to "rehabilitate
(our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them livable for
the Marcos family to have a home in our homeland."
47
Furthermore, petitioner obtained
her residence certificate in 1992 in Tacloban, Leyte, while living in her brother's house,
an act which supports the domiciliary intention clearly manifested in her letters to the
PCGG Chairman. She could not have gone straight to her home in San Juan, as it was
in a state of disrepair, having been previously looted by vandals. Her "homes" and
"residences" following her arrival in various parts of Metro Manila merely qualified as
temporary or "actual residences," not domicile. Moreover, and proceeding from our
discussion pointing out specific situations where the female spouse either reverts to her
domicile of origin or chooses a new one during the subsistence of the marriage, it would
be highly illogical for us to assume that she cannot regain her original domicile upon the
death of her husband absent a positive act of selecting a new one where situations exist
within the subsistence of the marriage itself where the wife gains a domicile different
from her husband.
In the light of all the principles relating to residence and domicile enunciated by this court
up to this point, we are persuaded that the facts established by the parties weigh heavily
in favor of a conclusion supporting petitioner's claim of legal residence or domicile in the
First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering
that the assailed resolutions were rendered on April 24, 1995, fourteen (14) days before
the election in violation of Section 78 of the Omnibus Election Code.
48
Moreover,
petitioner contends that it is the House of Representatives Electoral Tribunal and not the
COMELEC which has jurisdiction over the election of members of the House of
Representatives in accordance with Article VI Sec. 17 of the Constitution. This is
untenable.
It is a settled doctrine that a statute requiring rendition of judgment within a specified
time is generally construed to be merely directory,
49
"so that non-compliance with them
does not invalidate the judgment on the theory that if the statute had intended such
result it would have clearly indicated it."
50
The difference between a mandatory and a
directory provision is often made on grounds of necessity. Adopting the same view held
by several American authorities, this court inMarcelino vs. Cruz held that:
51

The difference between a mandatory and directory provision is often
determined on grounds of expediency, the reason being that less injury
results to the general public by disregarding than enforcing the letter of
the law.
In Trapp v. Mc Cormick, a case calling for the interpretation of a statute
containing a limitation of thirty (30) days within which a decree may be
entered without the consent of counsel, it was held that "the statutory
provisions which may be thus departed from with impunity, without
affecting the validity of statutory proceedings, are usually those which
relate to the mode or time of doing that which is essential to effect the aim
and purpose of the Legislature or some incident of the essential act."
Thus, in said case, the statute under examination was construed merely
to be directory.
The mischief in petitioner's contending that the COMELEC should have abstained from
rendering a decision after the period stated in the Omnibus Election Code because it
lacked jurisdiction, lies in the fact that our courts and other quasi-judicial bodies would
then refuse to render judgments merely on the ground of having failed to reach a
decision within a given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section
78 of B.P. 881,
52
it is evident that the respondent Commission does not lose jurisdiction
to hear and decide a pending disqualification case under Section 78 of B.P. 881 even
after the elections.
As to the House of Representatives Electoral Tribunal's supposed assumption of
jurisdiction over the issue of petitioner's qualifications after the May 8, 1995 elections,
suffice it to say that HRET's jurisdiction as the sole judge of all contests relating to the
elections, returns and qualifications of members of Congress begins only after a
candidate has become a member of the House of Representatives.
53
Petitioner not
being a member of the House of Representatives, it is obvious that the HRET at this
point has no jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us
to either to ignore or deliberately make distinctions in law solely on the basis of the
personality of a petitioner in a case. Obviously a distinction was made on such a ground
here. Surely, many established principles of law, even of election laws were flouted for
the sake perpetuating power during the pre-EDSA regime. We renege on these sacred
ideals, including the meaning and spirit of EDSA ourselves bending established
principles of principles of law to deny an individual what he or she justly deserves in law.
Moreover, in doing so, we condemn ourselves to repeat the mistakes of the past.
WHEREFORE, having determined that petitioner possesses the necessary residence
qualifications to run for a seat in the House of Representatives in the First District of
Leyte, the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and May
25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the
Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative
of the First District of Leyte.
SO ORDERED.
Feliciano, J., is on leave.



Separate Opinions

PUNO, J ., concurring:
It was Aristotle who taught mankind that things that are alike should be treated alike,
while things that are unalike should be treated unalike in proportion to their
unalikeness.
1
Like other candidates, petitioner has clearly met the residence
requirement provided by Section 6, Article VI of the Constitution.
2
We cannot disqualify
her and treat her unalike, for the Constitution guarantees equal protection of the law. I
proceed from the following factual and legal propositions:
First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her
parents were domiciled in Tacloban. Their ancestral house is in Tacloban. They have
vast real estate in the place. Petitioner went to school and thereafter worked there. I
consider Tacloban as her initial domicile, both her domicile of origin and her domicile of
choice. Her domicile of origin as it was the domicile of her parents when she was a
minor; and her domicile of choice, as she continued living there even after reaching the
age of majority.
Second. There is also no question that in May, 1954, petitioner married the late
President Ferdinand E. Marcos. By contracting marriage, her domicile became subject to
change by law, and the right to change it was given by Article 110 of the Civil Code
provides:
Art. 110. The husband shall fix the residence of the family. But the court
may exempt the wife from living with the husband if he should live abroad
unless in the service of the Republic.
3
(Emphasis supplied)
In De la Via v. Villareal and Geopano,
4
this Court explained why the domicile of
the wife ought to follow that of the husband. We held: "The reason is founded
upon the theoretic identity of person and interest between the husband and the
wife, and the presumption that, from the nature of the relation, the home of one is
the home of the other. It is intended to promote, strengthen, and secure their
interests in this relation, as it ordinarily exists, where union and harmony
prevail."
5
In accord with this objective, Article 109 of the Civil Code also obligated
the husband and wife "to live together."
Third. The difficult issues start as we determine whether petitioner's marriage to former
President Marcos ipso facto resulted in the loss of her Tacloban domicile. I respectfully
submit that her marriage by itself alone did not cause her to lose her Tacloban domicile.
Article 110 of the Civil Code merely gave the husband the right to fix the domicile of the
family. In the exercise of the right, the husband may explicitly choose the prior domicile
of his wife, in which case, the wife's domicile remains unchanged. The husband can
also implicitly acquiesce to his wife's prior domicile even if it is different. So we held in de
la Via,
6

. . . . When married women as well as children subject to parental
authority live, with the acquiescence of their husbands or fathers, in a
place distinct from where the latter live, they have their
own independent domicile. . . .
It is not, therefore, the mere fact of marriage but the deliberate choice of a
different domicile by the husband that will change the domicile of a wife from
what it was prior to their marriage. The domiciliary decision made by the husband
in the exercise of the right conferred by Article 110 of the Civil Code binds the
wife. Any and all acts of a wife during her coverture contrary to the domiciliary
choice of the husband cannot change in any way the domicile legally fixed by the
husband. These acts are void not only because the wife lacks the capacity to
choose her domicile but also because they are contrary to law and public policy.
In the case at bench, it is not disputed that former President Marcos exercised his right
to fix the family domicile and established it in Batac, Ilocos Norte, where he was then the
congressman. At that particular point of time and throughout their married life, petitioner
lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has been fixed by
operation of law, it was not affected in 1959 when her husband was elected as Senator,
when they lived in San Juan, Rizal and where she registered as a voter. It was not also
affected in 1965 when her husband was elected President, when they lived in
Malacaang Palace, and when she registered as a voter in San Miguel, Manila. Nor was
it affected when she served as a member of the Batasang Pambansa, Minister of
Human Settlements and Governor of Metro Manila during the incumbency of her
husband as President of the nation. Under Article 110 of the Civil Code, it was only her
husband who could change the family domicile in Batac and the evidence shows he did
not effect any such change. To a large degree, this follows the common law that "a
woman on her marriage loses her own domicile and by operation of law, acquires that of
her husband, no matter where the wife actually lives or what she believes or intends."
7

Fourth. The more difficult task is how to interpret the effect of the death on September
28, 1989 of former President Marcos on petitioner's Batac domicile. The issue is of first
impression in our jurisdiction and two (2) schools of thought contend for acceptance.
One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily relying
on American authorities.
8
He echoes the theory that after the husband's death, the wife
retains the last domicile of her husband until she makes an actual change.
I do not subscribe to this submission. The American case law that the wife still retains
her dead husband's domicile is based on ancient common law which we can no longer
apply in the Philippine setting today. The common law identified the domicile of a wife as
that of the husband and denied to her the power of acquiring a domicile of her own
separate and apart from him.
9
Legal scholars agree that two (2) reasons support this
common law doctrine. The first reason as pinpointed by the legendary Blackstone is
derived from the view that "the very being or legal existence of the woman is suspended
during
the marriage, or at least is incorporated and consolidated into that of the
husband."
10
The second reason lies in "the desirability of having the interests of each
member of the family unit governed by the same law."
11
The presumption that the wife
retains the domicile of her deceased husband is an extension of this common law
concept. The concept and its extension have provided some of the most iniquitous
jurisprudence against women. It was under common law that the 1873 American case
of Bradwell v. Illinois
12
was decided where women were denied the right to practice law.
It was unblushingly ruled that "the natural and proper timidity and delicacy which belongs
to the female sex evidently unfits it for many of the occupations of civil life . . . This is the
law of the Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS
13
and
AM JUR 2d
14
are American state court decisions handed down between the years
1917
15
and 1938,
16
or before the time when women were accorded equality of rights
with men. Undeniably, the women's liberation movement resulted in far-ranging state
legislations in the United States to eliminate gender inequality.
17
Starting in the decade
of the seventies, the courts likewise liberalized their rulings as they started invalidating
laws infected with gender-bias. It was in 1971 when the US Supreme Court in Reed
v. Reed,
18
struck a big blow for women equality when it declared as unconstitutional an
Idaho law that required probate courts to choose male family members over females as
estate administrators. It held that mere administrative inconvenience cannot justify a
sex-based distinction. These significant changes both in law and in case law on the
status of women virtually obliterated the iniquitous common law surrendering the rights
of married women to their husbands based on the dubious theory of the parties' theoretic
oneness. The Corpus Juris Secundum editors did not miss the relevance of this
revolution on women's right as they observed: "However, it has been declared that
under modern statutes changing the status of married women and departing from the
common law theory of marriage, there is no reason why a wife may not acquire a
separate domicile for every purpose known to the law."
19
In publishing in 1969
theRestatement of the Law, Second (Conflict of Laws 2d), the reputable American Law
Institute also categorically stated that the view of Blackstone ". . . is no longer held. As
the result of statutes and court decisions, a wife now possesses practically the same
rights and powers as her unmarried sister."
20

In the case at bench, we have to decide whether we should continue clinging to
the anachronistic common lawthat demeans women, especially married women. I submit
that the Court has no choice except to break away from this common law rule, the root of
the many degradations of Filipino women. Before 1988, our laws particularly the Civil
Code, were full of gender discriminations against women. Our esteemed colleague,
Madam Justice Flerida Ruth Romero, cited a few of them as follows:
21

xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under the Civil Code, wives suffer
under certain restrictions or disabilities. For instance, the wife cannot
accept gifts from others, regardless of the sex of the giver or the value of
the gift, other than from her very close relatives, without her husband's
consent. She may accept only from, say, her parents, parents-in-law,
brothers, sisters and the relatives within the so-called fourth civil degree.
She may not exercise her profession or occupation or engage in business
if her husband objects on serious grounds or if his income is sufficient to
support their family in accordance with their social standing. As to what
constitutes "serious grounds" for objecting, this is within the discretion of
the husband.
xxx xxx xxx
Because of the present inequitable situation, the amendments to the Civil
Law being proposed by the University of the Philippines Law Center
would allow absolute divorce which severes the matrimonial ties, such
that the divorced spouses are free to get married a year after the divorce
is decreed by the courts. However, in order to place the husband and wife
on an equal footing insofar as the bases for divorce are concerned, the
following are specified as the grounds for absolute divorce: (1) adultery or
having a paramour committed by the respondent in any of the ways
specified in the Revised Penal Code or (2) an attempt by the respondent
against the life of the petitioner which amounts to attempted parricide
under the Revised Penal Code; (3) abandonment of the petitioner by the
respondent without just cause for a period of three consecutive years; or
(4) habitual maltreatment.
With respect to property relations, the husband is automatically the
administrator of the conjugal property owned in common by the married
couple even if the wife may be the more astute or enterprising partner.
The law does not leave it to the spouses to decide who shall act as such
administrator. Consequently, the husband is authorized to engage in acts
and enter into transactions beneficial to the conjugal partnership. The
wife, however, cannot similarly bind the partnership without the husband's
consent.
And while both exercise joint parental authority over their children, it is the
father whom the law designates as the legal administrator of the property
pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally through
legislations, to eliminate inequality between men and women in our land. The
watershed came on August 3, 1988 when our Family Code took effect which,
among others, terminated the unequal treatment of husband and wife as to their
rights and responsibilities.
22

The Family Code attained this elusive objective by giving new rights to married women
and by abolishing sex-based privileges of husbands. Among others, married women are
now given the joint right to administer the family property, whether in the absolute
community system or in the system of conjugal partnership;
23
joint parental authority
over their minor children, both over their persons as well as their properties;
24
joint
responsibility for the support of the family;
25
the right to jointly manage the
household;
26
and, the right to object to their husband's exercise of profession,
occupation, business or activity.
27
Of particular relevance to the case at bench is Article
69 of the Family Code which took away the exclusive right of the husband to fix the
family domicile and gave it jointly to the husband and the wife, thus:
Art. 69. The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter
should live abroad or there are other valid and compelling reasons for the
exemption. However, such exemption shall not apply if the same is not
compatible with the solidarity of the family. (Emphasis supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the
husband and wife to live together, former Madam Justice Alice Sempio-Diy of the
Court of Appeals specified the instances when a wife may now refuse to live with
her husband, thus:
28

(2) The wife has the duty to live with her husband, but she may refuse to
do so in certain cases like:
(a) If the place chosen by the husband as family residence
is dangerous to her Life;
(b) If the husband subjects her to maltreatment or abusive
conduct or insults, making common life impossible;
(c) If the husband compels her to live with his parents, but
she cannot get along with her mother-in-law and they have
constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG
6122);
(d) Where the husband has continuously carried illicit
relations for 10 years with different women and treated his
wife roughly and without consideration. (Dadivas v.
Villanueva, 54 Phil. 92);
(e) Where the husband spent his time in gambling, giving
no money to his family for food and necessities, and at the
same time insulting his wife and laying hands on her.
(Panuncio v. Sula, CA, 34 OG 129);
(f) If the husband has no fixed residence and lives a
vagabond life as a tramp (1 Manresa 329);
(g) If the husband is carrying on a shameful business at
home (Gahn v. Darby, 38 La. Ann. 70).
The inescapable conclusion is that our Family Code has completely emancipated
the wife from the control of the husband, thus abandoning the parties' theoretic
identity of interest. No less than the late revered Mr. Justice J.B.L. Reyes who
chaired the Civil Code Revision Committee of the UP Law Center gave this
insightful view in one of his rare lectures after retirement:
29

xxx xxx xxx
The Family Code is primarily intended to reform the family law so as to
emancipate the wife from the exclusive control of the husband and to
place her at parity with him insofar as the family is concerned. The wife
and the husband are now placed on equal standing by the Code. They
are now joint administrators of the family properties and exercise joint
authority over the persons and properties of their children. This means a
dual authority in the family. The husband will no longer prevail over the
wife but she has to agree on all matters concerning the family. (Emphasis
supplied)
In light of the Family Code which abrogated the inequality between husband and
wife as started and perpetuated by the common law, there is no reason in
espousing the anomalous rule that the wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which provides the statutory support for
this stance has been repealed by Article 69 of the Family Code. By its repeal, it
becomes a dead-letter law, and we are not free to resurrect it by giving it further
effect in any way or manner such as by ruling that the petitioner is still bound by
the domiciliary determination of her dead husband.
Aside from reckoning with the Family Code, we have to consider our Constitution and its
firm guarantees of due process and equal protection of
law.
30
It can hardly be doubted that the common law imposition on a married woman of
her dead husband's domicile even beyond his grave is patently discriminatory to women.
It is a gender-based discrimination and is not rationally related to the objective of
promoting family solidarity. It cannot survive a constitutional challenge. Indeed,
compared with our previous fundamental laws, the 1987 Constitution is more concerned
with equality between sexes as it explicitly commands that the State ". . . shall ensure
fundamental equality before the law of women and men." To be exact, section 14, Article
II provides: "The State recognizes the role of women in nation building, and shall ensure
fundamental equality before the law of women and men. We shall be transgressing the
sense and essence of this constitutional mandate if we insist on giving our women the
caveman's treatment.
Prescinding from these premises, I respectfully submit that the better stance is to rule
that petitioner reacquired her Tacloban domicile upon the death of her husband in 1989.
This is the necessary consequence of the view that petitioner's Batac dictated domicile
did not continue after her husband's death; otherwise, she would have no domicile and
that will violate the universal rule that no person can be without a domicile at any point of
time. This stance also restores the right of petitioner to choose her domicile before it was
taken away by Article 110 of the Civil Code, a right now recognized by the Family Code
and protected by the Constitution. Likewise, I cannot see the fairness of the common law
requiring petitioner to choose again her Tacloban domicile before she could be released
from her Batac domicile. She lost her Tacloban domicile not through her act but through
the act of her deceased husband when he fixed their domicile in Batac. Her husband is
dead and he cannot rule her beyond the grave. The law disabling her to choose her own
domicile has been repealed. Considering all these, common law should not put the
burden on petitioner to prove she has abandoned her dead husband's domicile. There is
neither rhyme nor reason for this gender-based burden.
But even assuming arguendo that there is need for convincing proof that petitioner
chose to reacquire her Tacloban domicile, still, the records reveal ample evidence to this
effect. In her affidavit submitted to the respondent COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to our beloved country, after
several requests for my return were denied by President Corazon C.
Aquino, and after I filed suits for our Government to issue me my
passport.
37. But I came home without the mortal remains of my beloved husband,
President Ferdinand E. Marcos, which the Government considered a
threat to the national security and welfare.
38. Upon my return to the country, I wanted to immediately live and reside
in Tacloban City or in Olot, Tolosa, Leyte, even if my residences there
were not livable as they had been destroyed and cannibalized. The
PCGG, however, did not permit and allow me.
39. As a consequence, I had to live at various times in the Westin
Philippine Plaza in Pasay City, a friend's apartment on Ayala Avenue, a
house in South Forbes Park which my daughter rented, and Pacific Plaza,
all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the
residence of my brother in San Jose, Tacloban City, and pursued my
negotiations with PCGG to recover my sequestered residences in
Tacloban City and Barangay Olot, Tolosa, Leyte.
40.1 In preparation for my observance of All Saints' Day
and All Souls' Day that year, I renovated my parents' burial
grounds and entombed their bones which had been
excalvated, unearthed and scattered.
41. On November 29, 1993, I formally wrote PCGG Chairman
Magtanggol Gunigundo for permissions to
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and
farmhouse in Olot, Leyte . . . to make them livable for us
the Marcos family to have a home in our own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman
Gunigundo, in his letter to Col. Simeon Kempis, Jr., PCGG Region 8
Representative, allowed me to repair and renovate my Leyte residences. I
quote part of his letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this
Commission, that she intends to visit our sequestered
properties in Leyte, please allow her access thereto. She
may also cause repairs and renovation of the sequestered
properties, in which event, it shall be understood that her
undertaking said repairs is not authorization for her to take
over said properties, and that all expenses shall be for her
account and not reimbursable. Please extend the
necessary courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Nio Shrine
residence in Tacloban City where I wanted to stay and reside, after
repairs and renovations were completed. In August 1994, I transferred
from San Jose, Tacloban City, to my residence in Barangay Olot, Tolosa,
Leyte, when PCGG permitted me to stay and live there.
It is then clear that in 1992 petitioner reestablished her domicile in the First
District of Leyte. It is not disputed that in 1992, she first lived at the house of her
brother in San Jose, Tacloban City and later, in August 1994, she transferred her
residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the
municipality of Olot are within the First District of Leyte. Since petitioner
reestablished her old domicile in 1992 in the First District of Leyte, she more than
complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the
election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to negate the Tacloban domicile of
petitioner is nil. He presented petitioner's Voter's Registration Record filed with the
Board of Election Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein
she stated that her period of residence in said barangay was six (6) months as of the
date of her filing of said Voter's Registration Record on January 28, 1995.
31
This
statement in petitioner's Voter's Registration Record is a non-prejudicial admission. The
Constitution requires at least one (1) year residence in thedistrict in which the candidate
shall be elected. In the case at bench, the reference is the First District of Leyte.
Petitioner's statement proved that she resided in Olot six (6) months before January 28,
1995 but did not disprove that she has also resided in Tacloban City starting 1992. As
aforestated, Olot and Tacloban City are both within the First District of Leyte, hence, her
six (6) months residence in Olot should be counted not against, but in her favor. Private
respondent also presented petitioner's Certificate of Candidacy filed on March 8,
1995
32
where she placed seven (7) months after Item No. 8 which called for information
regarding "residence in the constituency where I seek to be elected immediately
preceding the election." Again, this original certificate of candidacy has no evidentiary
value because an March 1, 1995 it was corrected by petitioner. In her
Amended/Corrected Certificate of Candidacy,
33
petitioner wrote "since childhood" after
Item No. 8. The amendment of a certificate of candidacy to correct a bona fide mistake
has been allowed by this Court as a matter of course and as a matter of right. As we
held in Alialy v. COMELEC,
34
viz.:
xxx xxx xxx
The absence of the signature of the Secretary of the local chapter N.P in
the original certificate of candidacy presented before the deadline
September 11, 1959, did not render the certificate invalid.The amendment
of the certificate, although at a date after the deadline, but before the
election, was substantial compliance with the law, and the defect was
cured.
It goes without saying that petitioner's erroneous Certificate of Candidacy filed on
March 8, 1995 cannot be used as evidence against her. Private respondent's
petition for the disqualification of petitioner rested alone on these two (2) brittle
pieces of documentary evidence petitioner's Voter's Registration Record and
her original Certificate of Candidacy. Ranged against the evidence of the
petitioner showing her ceaseless contacts with Tacloban, private respondent's
two (2) pieces of evidence are too insufficient to disqualify petitioner, more so, to
deny her the right to represent the people of the First District of Leyte who have
overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for
any public office shall be free from any form of harassment and discrimination."
35
A
detached reading of the records of the case at bench will show that all forms of legal and
extra-legal obstacles have been thrown against petitioner to prevent her from running as
the people's representative in the First District of Leyte. In petitioner's Answer to the
petition to disqualify her, she averred:
36

xxx xxx xxx
10. Petitioner's (herein private respondent Montejo) motive in filing the
instant petition is devious. When respondent (petitioner herein)
announced that she was intending to register as a voter in Tacloban City
and run for Congress in the First District of Leyte, petitioner (Montejo)
immediately opposed her intended registration by writing a letter stating
that "she is not a resident of said city but of Barangay Olot, Tolosa,
Leyte." (Annex "2" of respondent's affidavit, Annex "2"). After respondent
(petitioner herein) had registered as a voter in Tolosa following
completion of her six-month actual residence therein, petitioner (Montejo)
filed a petition with the COMELEC to transfer the town of Tolosa from the
First District to the Second District and pursued such move up to the
Supreme Court in G.R. No. 118702, his purpose being to remove
respondent (petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along with
other Leyte Congressmen, seeking to create another legislative district, to
remove the town of Tolosa out of the First District and to make it a part of
the new district, to achieve his purpose. However, such bill did not pass
the Senate. Having, failed on such moves, petitioner now filed the instant
petition, for the same objective, as it is obvious that he is afraid to submit
himself along with respondent (petitioner herein) for the judgment and
verdict of the electorate of the First District of Leyte in an honest, orderly,
peaceful, free and clean elections on May 8, 1995.
These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting
Opinion,
37
held:
xxx xxx xxx
Prior to the registration date January 28, 1995 the petitioner (herein
private respondent Montejo) wrote the Election Officer of Tacloban City
not to allow respondent (petitioner herein) to register thereat since she is
a resident of Tolosa and not Tacloban City. The purpose of this move of
the petitioner (Montejo) is not lost to (sic) the Commission. In UND No.
95-001 (In the matter of the Legislative Districts of the Provinces of Leyte,
Iloilo, and South Cotabato, Out of Which the New Provinces of Biliran,
Guimaras and Saranggani Were Respectively Created), . . . Hon. Cirilo
Roy G. Montejo, Representative, First District of Leyte, wanted the
Municipality of Tolosa, in the First District of Leyte, transferred to the
Second District of Leyte. The Hon. Sergio A.F. Apostol, Representative of
the Second District of Leyte, opposed the move of the petitioner
(Montejo). Under Comelec Resolution No. 2736 (December 29, 1994),
the Commission on Elections refused to make the proposed transfer.
Petitioner (Montejo) filed "Motion for Reconsideration of Resolution
No. 2736" which the Commission denied in a Resolution promulgated on
February 1, 1995. Petitioner (Montejo) filed a petition for certiorari before
the Honorable Supreme Court (Cirilo Roy G. Montejo vs. Commission on
Elections, G.R. No. 118702) questioning the resolution of the
Commission. Believing that he could get a favorable ruling from the
Supreme Court, petitioner (Montejo) tried to make sure that the
respondent (petitioner herein) will register as a voter in Tolosa so that she
will be forced to run as Representative not in the First but in the Second
District.
It did not happen. On March 16, 1995, the Honorable Supreme Court
unanimously promulgated a "Decision," penned by Associate Justice
Reynato S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736
insofar as it transferred the municipality of Capoocan of the
Second District and the municipality of Palompon of the
Fourth District to the Third District of the province of Leyte,
is annulled and set aside. We also deny the Petition
praying for the transfer of the municipality of Tolosa from
the First District to the Second District of the province of
Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent (petitioner
herein) was constrained to register in the Municipality of Tolosa where her
house is instead of Tacloban City, her domicile. In any case, both
Tacloban City and Tolosa are in the First Legislative District.
All these attempts to misuse our laws and legal processes are forms of rank
harassments and invidious discriminations against petitioner to deny her equal
access to a public office. We cannot commit any hermeneutic violence to the
Constitution by torturing the meaning of equality, the end result of which will allow
the harassment and discrimination of petitioner who has lived a controversial life,
a past of alternating light and shadow. There is but one Constitution for all
Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and the
worst way to interpret the Constitution is to inject in its interpretation, bile and
bitterness.
Sixth. In Gallego v. Vera,
38
we explained that the reason for this residence requirement
is "to exclude a stranger or newcomer, unacquainted, with the conditions and needs of a
community and not identified with the latter, from an elective office to serve that
community . . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be
contested. Nobody can claim that she is not acquainted with its problems because she is
a stranger to the place. None can argue she cannot satisfy the intent of the Constitution.
Seventh. In resolving election cases, a dominant consideration is the need to effectuate
the will of the electorate. The election results show that petitioner received Seventy
Thousand Four Hundred Seventy-one (70,471) votes, while private respondent got only
Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is clearly the
overwhelming choice of the electorate of the First District of Leyte and this is not a
sleight of statistics. We cannot frustrate this sovereign will on highly arguable technical
considerations. In case of doubt, we should lean towards a rule that will give life to the
people's political judgment.
A final point. The case at bench provides the Court with the rare opportunity to rectify the
inequality of status between women and men by rejecting the iniquitous common law
precedents on the domicile of married women and by redefining domicile in accord with
our own culture, law, and Constitution. To rule that a married woman is eternally
tethered to the domicile dictated by her dead husband is to preserve the anachronistic
and anomalous balance of advantage of a husband over his wife. We should not allow
the dead to govern the living even if the glories of yesteryears seduce us to shout long
live the dead! The Family Code buried this gender-based discrimination against married
women and we should not excavate what has been entombed. More importantly, the
Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J ., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position
of Representative of the First Congressional District of Leyte. I wish, however, to
express a few comments on the issue of petitioner's domicile.
Domicile has been defined as that place in which a person's habitation is fixed, without
any present intention of removing therefrom, and that place is properly the domicile of a
person in which he has voluntarily fixed his abode, or habitation, not for a mere special
or temporary purpose, but with a present intention of making it his permanent home (28
C.J.S. 1). It denotes a fixed permanent residence to which when absent for business,
or pleasure, or for like reasons one intends to return, and depends on facts and
circumstances, in the sense that they disclose intent. (Ong Huan Tin v. Republic, 19
SCRA 966, 969)
Domicile is classified into domicile of origin and domicile of choice. The law attributes to
every individual a domicile of origin, which is the domicile of his parents, or of the head
of his family, or of the person on whom he is legally dependent at the time of his birth.
While the domicile of origin is generally the place where one is born or reared, it maybe
elsewhere (28 C.J.S. 5). Domicile of choice, on the other hand, is the place which the
person has elected and chosen for himself to displace his previous domicile; it has for its
true basis or foundation the intention of the person (28 C.J.S. 6). In order to hold that a
person has abandoned his domicile and acquired a new one called domicile of choice,
the following requisites must concur, namely, (a) residence or bodily presence in the
new locality, (b) intention to remain there or animus manendi, and (c) an intention to
abandon the old domicile oranimus non revertendi (Romualdez v. RTC, Br. 7, Tacloban
City, 226 SCRA 408, 415). A third classification is domicile by operation of law which
attributes to a person a domicile independent of his own intention or actual residence,
ordinarily resulting from legal domestic relations, as that of the wife arising from
marriage, or the relation of a parent and a child (28 C.J.S. 7).
In election law, when our Constitution speaks of residence for election purposes it
means domicile (Co v. Electoral Tribunal of the House of Representatives, 199 SCRA
692, 713; Nuval v. Guray, 52 Phil. 645, 651). To my mind, public respondent
Commission on Elections misapplied this concept, of domicile which led to petitioner's
disqualification by ruling that petitioner failed to comply with the constitutionally
mandated one-year residence requirement. Apparently, public respondent Commission
deemed as conclusive petitioner's stay and registration as voter in many places as
conduct disclosing her intent to abandon her established domicile of origin in Tacloban,
Leyte. In several decisions, though, the Court has laid down the rule that registration of a
voter in a place other than his place of origin is not sufficient to constitute abandonment
or loss of such residence (Faypon v. Quirino, 96 Phil. 294, 300). Respondent
Commission offered no cogent reason to depart from this rule except to surmise
petitioner's intent of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was supplanted by a new
domicile due to her marriage, a domicile by operation of law. The proposition is that
upon the death of her husband in 1989 she retains her husband's domicile, i.e., Batac,
Ilocos Norte, until she makes an actual change thereof. I find this proposition quite
untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with
another, i.e., Batac, Ilocos Norte, upon her marriage in 1954 with then Congressman
Marcos. By legal fiction she followed the domicile of her husband. In my view, the reason
for the law is for the spouses to fully and effectively perform their marital duties and
obligations to one another.
1
The question of domicile, however, is not affected by the
fact that it was the legal or moral duty of the individual to reside in a given place (28
C.J.S. 11). Thus, while the wife retains her marital domicile so long as the marriage
subsists, she automatically loses it upon the latter's termination, for the reason behind
the law then ceases. Otherwise, petitioner, after her marriage was ended by the death of
her husband, would be placed in a quite absurd and unfair situation of having been freed
from all wifely obligations yet made to hold on to one which no longer serves any
meaningful purpose.
It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte
upon her husband's death without even signifying her intention to that effect. It is for the
private respondent to prove, not for petitioner to disprove, that petitioner has effectively
abandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear
rule is that it is the party (herein private respondent) claiming that a person has
abandoned or lost his residence of origin who must show and prove preponderantly such
abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16), because the
presumption is strongly in favor of an original or former domicile, as against an acquired
one (28 C.J.S. 16). Private respondent unfortunately failed to discharge this burden as
the record is devoid of convincing proof that petitioner has acquired whether voluntarily
or involuntarily, a new domicile to replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has complied with the
constitutional one-year residence requirement. After her exile abroad, she returned to
the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the Presidential Commission
on Good Government which sequestered her residential house and other properties
forbade her necessitating her transient stay in various places in Manila (Affidavit p.6,
attached as Annex I of the Petition). In 1992, she ran for the position of president writing
in her certificate of candidacy her residence as San Juan, Metro Manila. After her loss
therein, she went back to Tacloban City, acquired her residence certificate
2
and resided
with her brother in San Jose. She resided in San Jose, Tacloban City until August of
1994 when she was allowed by the PCGG to move and reside in her sequestered
residential house in Olot, Tolosa, Leyte (Annex I, p. 6).
3
It was in the same month of
August when she applied for the cancellation of her previous registration in San Juan,
Metro Manila in order to register anew as voter of Olot, Tolosa, Leyte, which she did on
January 28, 1995. From this sequence of events, I find it quite improper to use as the
reckoning period of the one-year residence requirement the date when she applied for
the cancellation of her previous registration in San Juan, Metro Manila. The fact which
private respondent never bothered to disprove is that petitioner transferred her residence
after the 1992 presidential election from San Juan, Metro Manila to San Jose, Tacloban
City, and resided therein until August of 1994. She later transferred to Olot, Tolosa,
Leyte (Annex I, p. 7). It appearing that both Tacloban City and Tolosa, Leyte are within
the First Congressional District of Leyte, it indubitably stands that she had more than a
year of residence in the constituency she sought to be elected. Petitioner, therefore, has
satisfactorily complied with the one-year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J ., separate opinion:
Petitioner has appealed to this Court for relief after the COMELEC ruled that she was
disqualified from running for Representative of her District and that, in the event that she
should, nevertheless, muster a majority vote, her proclamation should be suspended.
Not by a straightforward ruling did the COMELEC pronounce its decision as has been its
unvarying practice in the past, but by a startling succession of "reverse somersaults."
Indicative of its shifting stance vis-a-vis petitioner's certificate of candidacy were first, the
action of its Second Division disqualifying her and canceling her original Certificate of
Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the COMELEC en
banc of her Motion for Reconsideration on May 7, 1995, a day before the election; then
because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that
the results of the canvass should show that she obtained the highest number of votes
(obviously noting that petitioner had won overwhelmingly over her opponent), but almost
simultaneously reversing itself by directing that even if she wins, her proclamation
should nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by the case at bench is
the interpretation to be given to the one-year residency requirement imposed by the
Constitution on aspirants for a Congressional seat.
1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile"
for election purposes, it is important to determine whether petitioner's domicile was in the
First District of Leyte and if so, whether she had resided there for at least a period of one
year. Undisputed is her domicile of origin, Tacloban, where her parents lived at the time
of her birth. Depending on what theory one adopts, the same may have been changed
when she married Ferdinand E. Marcos, then domiciled in Batac, by operation of law.
Assuming it did, his death certainly released her from the obligation to live with him at
the residence fixed by him during his lifetime. What may confuse the layman at this point
is the fact that the term "domicile" may refer to "domicile of origin," "domicile of choice,"
or "domicile by operation of law," which subject we shall not belabor since it has been
amply discussed by the ponente and in the other separate opinions.
In any case, what assumes relevance is the divergence of legal opinion as to the effect
of the husband's death on the domicile of the widow. Some scholars opine that the
widow's domicile remains unchanged; that the deceased husband's wishes perforce still
bind the wife he has left behind. Given this interpretation, the widow cannot possibly go
far enough to sever the domiciliary tie imposed by her husband.
It is bad enough to interpret the law as empowering the husband unilaterally to fix the
residence or domicile of the family, as laid down in the Civil Code,
2
but to continue
giving obeisance to his wishes even after the rationale underlying the mutual duty of the
spouses to live together has ceased, is to close one's eyes to the stark realities of the
present.
At the other extreme is the position that the widow automatically reverts to her domicile
of origin upon the demise of her husband. Does the law so abhor a vacuum that the
widow has to be endowed somehow with a domicile? To answer this question which is
far from rhetorical, one will have to keep in mind the basic principles of domicile.
Everyone must have a domicile. Then one must have only a single domicile for the same
purpose at any given time. Once established, a domicile remains until a new one is
acquired, for no person lives who has no domicile, as defined by the law be is subject to.
At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction,
rendered more murky by the conflicting opinions of foreign legal authorities. This being
the state of things, it is imperative as it is opportune to illumine the darkness with the
beacon light of truth, as dictated by experience and the necessity of according petitioner
her right to choose her domicile in keeping with the enlightened global trend to recognize
and protect the human rights of women, no less than men.
Admittedly, the notion of placing women at par with men, insofar as civil, political and
social rights are concerned, is a relatively recent phenomenon that took seed only in the
middle of this century. It is a historical fact that for over three centuries, the Philippines
had been colonized by Spain, a conservative, Catholic country which transplanted to our
shores the Old World cultures, mores and attitudes and values. Through the imposition
on our government of the Spanish Civil Code in 1889, the people, both men and women,
had no choice but to accept such concepts as the husband's being the head of the
family and the wife's subordination to his authority. In such role, his was the right to
make vital decisions for the family. Many instances come to mind, foremost being what
is related to the issue before us, namely, that "the husband shall fix the residence of the
family."
3
Because he is made responsible for the support of the wife and the rest of the
family,
4
he is also empowered to be the administrator of the conjugal property, with a
few exceptions
5
and may, therefore, dispose of the conjugal partnership property for the
purposes specified under the law;
6
whereas, as a general rule, the wife cannot bind the
conjugal partnership without the husband's consent.
7
As regards the property pertaining
to the children under parental authority, the father is the legal administrator and only in
his absence may the mother assume his powers.
8
Demeaning to the wife's dignity are
certain strictures on her personal freedoms, practically relegating her to the position of
minors and disabled persons. To illustrate a few: The wife cannot, without the husband's
consent, acquire any gratuitous title, except from her ascendants, descendants, parents-
in-law, and collateral relatives within the fourth degree.
9
With respect to her
employment, the husband wields a veto power in the case the wife exercises her
profession or occupation or engages in business, provided his income is sufficient for the
family, according to its social standing and his opposition is founded on serious and valid
grounds.
10
Most offensive, if not repulsive, to the liberal-minded is the effective
prohibition upon a widow to get married till after three hundred days following the death
of her husband, unless in the meantime, she has given birth to a child.
11
The mother
who contracts a subsequent marriage loses the parental authority over her children,
unless the deceased husband, father of the latter, has expressly provided in his will that
his widow might marry again, and has ordered that in such case she should keep and
exercise parental authority over their children.
12
Again, an instance of a husband's
overarching influence from beyond the grave.
All these indignities and disabilities suffered by Filipino wives for hundreds of years
evoked no protest from them until the concept of human rights and equality between and
among nations and individuals found hospitable lodgment in the United Nations Charter
of which the Philippines was one of the original signatories. By then, the Spanish
"conquistadores" had been overthrown by the American forces at the turn of the century.
The bedrock of the U.N. Charter was firmly anchored on this credo: "to reaffirm faith in
the fundamental human rights, in the dignity and worth of the human person, in the equal
rights of men and women." (Emphasis supplied)
It took over thirty years before these egalitarian doctrines bore fruit, owing largely
to the burgeoning of the feminist movement. What may be regarded as the
international bill of rights for women was implanted in the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by
the U.N. General Assembly which entered into force as an international treaty on
September 3, 1981. In ratifying the instrument, the Philippines bound itself to
implement its liberating spirit and letter, for its Constitution, no less, declared that
"The Philippines. . . adopts the generally accepted principles of international law
as part of the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations."
13
One such principle
embodied in the CEDAW is granting to men and women "the same rights with
regard to the law relating to the movement of persons and the freedom to choose
their residence and domicile."
14
(Emphasis supplied).
CEDAW's pro-women orientation which was not lost on Filipino women was reflected in
the 1987 Constitution of the Philippines and later, in the Family Code,
15
both of which
were speedily approved by the first lady President of the country, Corazon C. Aquino.
Notable for its emphasis on the human rights of all individuals and its bias for equality
between the sexes are the following provisions: "The State values the dignity of every
human person and guarantees full respect for human rights"
16
and "The State
recognizes the role of women in nation-building, and shall ensure the fundamental
equality before the law of women and men."
17

A major accomplishment of women in their quest for equality with men and the
elimination of discriminatory provisions of law was the deletion in the Family Code of
almost all of the unreasonable strictures on wives and the grant to them of personal
rights equal to that of their husbands. Specifically, the husband and wife are now
giventhe right jointly to fix the family domicile;
18
concomitant to the spouses' being jointly
responsible for the support of the family is the right and duty of both spouses to manage
the household;
19
the administration and the enjoyment of the community property shall
belong to both spouses jointly;
20
the father and mother shall now jointly exercise legal
guardianship over the property of their unemancipated common child
21
and several
others.
Aware of the hiatus and continuing gaps in the law, insofar as women's rights are
concerned, Congress passed a law popularly known as "Women in Development and
Nation Building Act"
22
Among the rights given to married women evidencing their
capacity to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans and execute security and
credit arrangements under the same conditions as men;
(2) Women shall have equal access to all government and private sector programs
granting agricultural credit, loans and non material resources and shall enjoy equal
treatment in agrarian reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into insurance
contracts; and
(4) Married women shall have rights equal to those of married men in applying for
passports, secure visas and other travel documents, without need to secure the consent
of their spouses.
As the world draws the curtain on the Fourth World Conference of Women in Beijing, let
this Court now be the first to respond to its clarion call that "Women's Rights are Human
Rights" and that "All obstacles to women's full participation in decision-making at all
levels, including the family" should be removed. Having been herself a Member of the
Philippine Delegation to the International Women's Year Conference in Mexico in 1975,
this writer is only too keenly aware of the unremitting struggle being waged by women
the world over, Filipino women not excluded, to be accepted as equals of men and to
tear down the walls of discrimination that hold them back from their proper places under
the sun.
In light of the inexorable sweep of events, local and global, legislative, executive and
judicial, according more rights to women hitherto denied them and eliminating whatever
pockets of discrimination still exist in their civil, political and social life, can it still be
insisted that widows are not at liberty to choose their domicile upon the death of their
husbands but must retain the same, regardless?
I submit that a widow, like the petitioner and others similarly situated, can no longer be
bound by the domicile of the departed husband, if at all she was before. Neither does
she automatically revert to her domicile of origin, but exercising free will, she may opt to
reestablish her domicile of origin. In returning to Tacloban and subsequently, to
Barangay Olot, Tolosa, both of which are located in the First District of Leyte, petitioner
amply demonstrated by overt acts, her election of a domicile of choice, in this case, a
reversion to her domicile of origin. Added together, the time when she set up her
domicile in the two places sufficed to meet the one-year requirement to run as
Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the petition.
VITUG, J ., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets
up ideals and directions and render steady our strides hence. It only looks back so as to
ensure that mistakes in the past are not repeated. A compliant transience of a
constitution belittles its basic function and weakens its goals. A constitution may well
become outdated by the realities of time. When it does, it must be changed but while it
remains, we owe it respect and allegiance. Anarchy, open or subtle, has never been, nor
must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or
the Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in character unless, either by
express statement or by necessary implication, a different intention is manifest (see
Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of
the fundamental law. These provisions read:
Sec. 6. No person shall be a Member of the House of Representatives
unless he is a natural-born citizen of the Philippines and, on the day of
the election, is at least twenty-five years of age, able to read and write,
and, except the party-list representatives, a registered voter in the district
in which he shall be elected, and a resident thereof for a period of not less
than one year immediately preceding the day of the election.
Sec. 17. The Senate and the House of Representatives shall each have
an Electoral Tribunal which shall be the sole judge of all contests relating
to the election, returns, and qualifications of their respective Members.
Each Electoral Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be designated by the
Chief Justice, and the remaining six shall be Members of the Senate or
the House of Representatives, as the case may be, who shall be chosen
on the basis of proportional representation from the political parties and
the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal shall be
its Chairman.
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and
administer "all laws and regulations relative to the conduct of election . . ." (Art. IX, C,
Sec. 2, Constitution) that, there being nothing said to the contrary, should include its
authority to pass upon the qualification and disqualification prescribed by law
ofcandidates to an elective office. Indeed, pre-proclamation controversies are expressly
placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3,
Constitution).
The matter before us specifically calls for the observance of the constitutional one-year
residency requirement. The issue (whether or not there is here such compliance), to my
mind, is basically a question of fact or at least inextricably linked to such determination.
The findings and judgment of the COMELEC, in accordance with the long established
rule and subject only to a number of exceptions under the basic heading of "grave abuse
of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be a plain
matter. Generally, the term "residence" has a broader connotation that may
mean permanent (domicile), official (place where one's official duties may require him to
stay) or temporary (the place where he sojourns during a considerable length of time).
For civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of
civil obligations, the domicile of a natural person is the place of his habitual residence
(see Article 50, Civil Code). In election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City
(226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous
terms, thus: "(t)he term "residence" as used in the election law is
synonymous with "domicile," which imports not only an intention to reside
in a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention." "Domicile" denotes a fixed
permanent residence to which when absent for business or pleasure, or
for like reasons, one intends to return. . . . . Residence thus acquired,
however, may be lost by adopting another choice of domicile. In order, in
turn, to acquire a new domicile by choice, there must concur (1)
residence or bodily presence in the new locality, (2) an intention to remain
there, and (3) an intention to abandon the old domicile. In other words,
there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be
for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile
must be actual.
Using the above tests, I am not convinced that we can charge the COMELEC
with having committed grave abuse of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends when the
jurisdiction of the Electoral Tribunal concerned begins. It signifies that the protestee must
have theretofore been duly proclaimed and has since become a "member" of the Senate
or the House of Representatives. The question can be asked on whether or not the
proclamation of a candidate is just a ministerial function of the Commission on Elections
dictated solely on the number of votes cast in an election exercise. I believe, it is not. A
ministerial duty is an obligation the performance of which, being adequately defined,
does not allow the use of further judgment or discretion. The COMELEC, in its particular
case, is tasked with the full responsibility of ascertaining all the facts and conditions such
as may be required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any undue encroachment
on the ultimate exercise of authority by the Electoral Tribunals on matters which, by no
less than a constitutional fiat, are explicitly within their exclusive domain. The nagging
question, if it were otherwise, would be the effect of the Court's peremptory
pronouncement on the ability of the Electoral Tribunal to later come up with its own
judgment in a contest "relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the applicability to
this case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas
Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is
strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. The Commission
and the courts shall give priority to cases of disqualification by reason of
violation of this Act to the end that a final decision shall be rendered not
later than seven days before the election in which the disqualification is
sought.
Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted.
Nevertheless, if for any reason, a candidate is not declared by final,
judgment before an election to be disqualified, and he is voted for and
receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation
and assumption to office.
I realize that in considering the significance of the law, it may be preferable to look for
not so much the specific instances they ostensibly would cover as the principle they
clearly convey. Thus, I will not scoff at the argument that it should be sound to say that
votes cast in favor of the disqualified candidate, whenever ultimately declared as such,
should not be counted in his or her favor and must accordingly be considered to be stray
votes. The argument, nevertheless, is far outweighed by the rationale of the now
prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil. 238
[1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]),
and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim
case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1
(1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most
recently, Benito (235 SCRA 436 [1994]) rulings. Benito vs.Comelec was a unanimous
decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa,
Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy
reference, let me quote from the first Labo decision:
Finally, there is the question of whether or not the private respondent,
who filed the quo warrantopetition, can replace the petitioner as mayor.
He cannot. The simple reason is that as he obtained only the second
highest number of votes in the election, he was obviously not the choice
of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on
Elections, (137 SCRA 740) decided in 1985. In that case, the candidate
who placed second was proclaimed elected after the votes for his winning
rival, who was disqualified as a turncoat and considered a non-candidate,
were all disregard as stray. In effect, the second placer won by default.
That decision was supported by eight members of the Court then,
(Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De
la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting
(Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and
another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was
on official leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should
be reversed in favor of the earlier case of Geronimo v. Ramos, (136
SCRA 435) which represents the more logical and democratic rule. That
case, which reiterated the doctrine first announced in 1912 in Topacio
v.Paredes, (23 Phil. 238) was supported by ten members of the Court,
(Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-
Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ.,
concurring) without any dissent, although one reserved his vote,
(Makasiar, J.) another took no part, (Aquino, J.) and two others were on
leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of
the constitutionally guaranteed right to suffrage if a
candidate who has not acquired the majority or plurality of
votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which
have positively declared through their ballots that they do
not choose him.
Sound policy dictates that public elective offices are filled
by those who have received the highest number of votes
cast in the election for that office, and it is a fundamental
idea in all republican forms of government that no one can
be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the
legal votes cast in the election. (20 Corpus Juris 2nd, S
243, p. 676.)
The fact that the candidate who obtained the highest number of votes is
later declared to be disqualified or not eligible for the office to which he
was elected does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of the elective
office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there. However,
in the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere belief
that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J ., separate opinion:
In my view the issue in this case is whether the Commission on Elections has the power
to disqualify candidates on the ground that they lack eligibility for the office to which they
seek to be elected. I think that it has none and that the qualifications of candidates may
be questioned only in the event they are elected, by filing a petition forquo warranto or
an election protest in the appropriate forum, not necessarily in the COMELEC but, as in
this case, in the House of Representatives Electoral Tribunal. That the parties in this
case took part in the proceedings in the COMELEC is of no moment. Such proceedings
were unauthorized and were not rendered valid by their agreement to submit their
dispute to that body.
The various election laws will be searched in vain for authorized proceedings for
determining a candidate's qualifications for an office before his election. There are none
in the Omnibus Election Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987
(R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166).
There are, in other words, no provisions for pre-proclamation contests but only election
protests or quo warranto proceedings against winning candidates.
To be sure, there are provisions denominated for "disqualification," but they are not
concerned with a declaration of the ineligibility of a candidate. These provisions are
concerned with the incapacity (due to insanity, incompetence or conviction of an offense)
of a person either to be a candidate or to continue as a candidate for public office. There
is also a provision for the denial or cancellation of certificates of candidacy, but it applies
only to cases involving false representations as to certain matters required by law to be
stated in the certificates.
These provisions are found in the following parts of the Omnibus Election Code:
12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense for
which he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he
again becomes disqualified. (Emphasis added)
68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court
guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, sub-paragraph 6, shall be disqualifiedfrom continuing as a
candidate, or if he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a foreign country shall
not be qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for
in the election laws. (Emphasis added)
78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to cancel
a certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and; upon motion for the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is
strong. (Emphasis added).
7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy.
The procedure hereinabove provided shall apply to petitions to deny
due course to or cancel a certificate of candidacy as provided in Section
78 of Batas Pambansa Blg. 881.
and the Local Government Code of 1991 (R.A. No. 7160):
40. Disqualifications. The following persons are disqualified from
running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance
to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired
the right to reside abroad and continue to avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while
entitled "For Cancellation and Disqualification," contained no allegation that private
respondent Imelda Romualdez-Marcos made material representations in her certificate
of candidacy which were false, it sought her disqualification on the ground that "on the
basis of her Voter Registration Record and Certificate of Candidacy, [she] is disqualified
from running for the position of Representative, considering that on election day, May 8,
1995, [she] would have resided less than ten (10) months in the district where she is
seeking to be elected." For its part, the COMELEC's Second Division, in its resolution of
April 24, 1995, cancelled her certificate of candidacy and corrected certificate of
candidacy on the basis of its finding that petitioner is "not qualified to run for the position
of Member of the House of Representatives for the First Legislative District of Leyte" and
not because of any finding that she had made false representations as to material
matters in her certificate of candidacy.
Montejo's petition before the COMELEC was therefore not a petition for cancellation of
certificate of candidacy under 78 of the Omnibus Election Code, but essentially a
petition to declare private respondent ineligible. It is important to note this, because, as
will presently be explained, proceedings under 78 have for their purpose to disqualify a
person from being a candidate, whereas quo warranto proceedings have for their
purpose to disqualify a person from holding public office. Jurisdiction over quo
warranto proceedings involving members of the House of Representatives is vested in
the Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for the cancellation of
certificates of candidacy, the allegations were that the respondent candidates had
made false representations in their certificates of candidacy with regard to
their citizenship,
1
age,
2
or residence.
3
But in the generality of cases in which this Court
passed upon the qualifications of respondents for office, this Court did so in the context
of election protests
4
or quo warranto proceedings
5
filed after the proclamation of the
respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized proceeding for
determining before electionthe qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no
necessity for determining his eligibility for the office. In contrast, whether an individual
should be disqualified as a candidate for acts constituting election offenses (e.g., vote
buying, over spending, commission of prohibited acts) is a prejudicial question which
should be determined lest he wins because of the very acts for which his disqualification
is being sought. That is why it is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has been voted for, the votes in his
favor will not be counted; and if for some reason he has been voted for and he has won,
either he will not be proclaimed or his proclamation will be set aside.
6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship
or, as in this case, his domicile, may take a long time to make, extending beyond the
beginning of the term of the office. This is amply demonstrated in the companion case
(G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's
residence was still pending in the COMELEC even after the elections of May 8, 1995.
This is contrary to the summary character of proceedings relating to certificates of
candidacy. That is why the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers.
7
The law is satisfied if candidates state
in their certificates of candidacy that they are eligible for the position which they seek to
fill, leaving the determination of their qualifications to be made after the election and only
in the event they are elected. Only in cases involving charges of false representations
made in certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections
for President, Vice President, Senators and members of the House of Representatives.
(R.A. No. 7166, 15) The purpose is to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the
Constitution of the election, returns and qualifications of members of Congress or of the
President and Vice President, as the case may be.
By providing in 253 for the remedy of quo warranto for determining an elected official's
qualifications after the results of elections are proclaimed, while being conspicuously
silent about a pre-proclamation remedy based on the same ground, the Omnibus
Election Code, or OEC, by its silence underscores the policy of not authorizing any
inquiry into the qualifications of candidates unless they have been elected.
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of
candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in
Rule 25, 1 the following:
Grounds for disqualification. Any candidate who does not possess all
the qualifications of a candidate as provided for by the Constitution or by
existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be
supplied by a mere rule. Such an act is equivalent to the creation of a cause of action
which is a substantive matter which the COMELEC, in the exercise of its rulemaking
power under Art. IX, A, 6 of the Constitution, cannot do. It is noteworthy that the
Constitution withholds from the COMELEC even the power to decide cases involving the
right to vote, which essentially involves an inquiry into qualifications based on age,
residence and citizenship of voters. (Art. IX, C, 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into
grounds for disqualification is contrary to the evident intention of the law. For not only in
their grounds but also in their consequences are proceedings for "disqualification"
different from those for a declaration of "ineligibility." "Disqualification" proceedings, as
already stated, are based on grounds specified in 12 and 68 of the Omnibus Election
Code and in 40 of the Local Government Code and are for the purpose of barring an
individual from becoming a candidate or from continuing as a candidate for public office.
In a word, their purpose is to eliminate a candidate from the race either from the start or
during its progress. "Ineligibility," on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for holding public office and
the purpose of the proceedings for declaration of ineligibility is to remove the incumbent
from office.
Consequently, that an individual possesses the qualifications for a public office does not
imply that he is not disqualified from becoming a candidate or continuing as a candidate
for a public office and vice versa. We have this sort of dichotomy in our Naturalization
Law. (C.A. No. 473) That an alien has the qualifications prescribed in 2 of the law does
not imply that he does not suffer from any of disqualifications provided in 4.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of
prohibited election practices or offenses, like other pre-proclamation remedies, are
aimed at the detestable practice of "grabbing the proclamation and prolonging the
election protest,"
8
through the use of "manufactured" election returns or resort to other
trickery for the purpose of altering the results of the election. This rationale does not
apply to cases for determining a candidate's qualifications for office before the election.
To the contrary, it is the candidate against whom a proceeding for disqualification is
brought who could be prejudiced because he could be prevented from assuming office
even though in end he prevails.
To summarize, the declaration of ineligibility of a candidate may only be sought in an
election protest or action forquo warranto filed pursuant to 253 of the Omnibus Election
Code within 10 days after his proclamation. With respect to elective local officials (e.g.,
Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.) such
petition must be filed either with the COMELEC, the Regional Trial Courts, or Municipal
Trial Courts, as provided in Art. IX, C, 2(2) of the Constitution. In the case of the
President and Vice President, the petition must be filed with the Presidential Electoral
Tribunal (Art. VII, 4, last paragraph), and in the case of the Senators, with the Senate
Electoral Tribunal, and in the case of Congressmen, with the House of Representatives
Electoral Tribunal. (Art. VI, 17) There is greater reason for not allowing before the
election the filing of disqualification proceedings based on alleged ineligibility in the case
of candidates for President, Vice President, Senators and members of the House of
Representatives, because of the same policy prohibiting the filing of pre-proclamation
cases against such candidates.
For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA
No. 95-009; that its proceedings in that case, including its questioned orders, are void;
and that the eligibility of petitioner Imelda Romualdez-Marcos for the office of
Representative of the First District of Leyte may only be inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the proceedings of the Commission
on Elections in SPA No. 95-009, including its questioned orders doted April 24, 1995,
May 7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner Imelda Romualdez-
Marcos ineligible and ordering her proclamation as Representative of the First District of
Leyte suspended. To the extent that Rule 25 of the COMELEC Rules of Procedure
authorizes proceedings for the disqualification of candidates on the ground of ineligibility
for the office, it should considered void.
The provincial board of canvassers should now proceed with the proclamation of
petitioner.
Narvasa, C.J., concurs.
PADILLA, J ., dissenting:
I regret that I cannot join the majority opinion as expressed in the well-written ponencia
of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the inquiry must begin
and end with the provision itself. The controversy should not be blurred by what, to me,
are academic disquisitions. In this particular controversy, the Constitutional provision on
point states that "no person shall be a member of the House of Representatives
unless he is a natural-born citizen of the Philippines, and on the day of the election, is at
least twenty-five (25) years of age, able to read and write, and except the party list
representatives, a registered voter in the district in which he shall be elected, and
a resident thereof for a period of not less than one year immediately preceding the day
of the election." (Article VI, section 6)
It has been argued that for purposes of our election laws, the term residence has been
understood as synonymous with domicile. This argument has been validated by no less
than the Court in numerous cases
1
where significantly the factual circumstances clearly
and convincingly proved that a person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with his personal presence in the
place, coupled with conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to conceive of different modalities
within which the phrase "a resident thereof (meaning, the legislative district) for a period
of not less than one year" would fit.
The first instance is where a person's residence and domicile coincide in which case a
person only has to prove that he has been domiciled in a permanent location for not less
than a year before the election.
A second situation is where a person maintains a residence apart from his domicile in
which case he would have the luxury of district shopping, provided of course, he satisfies
the one-year residence period in the district as the minimum period for eligibility to the
position of congressional representative for the district.
In either case, one would not be constitutionally disqualified for abandoning his
residence in order to return to his domicile of origin, or better still, domicile of choice;
neither would one be disqualified for abandoning altogether his domicile in favor of his
residence in the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a person maintains
several residences in different districts. Since his domicile of origin continues as an
option as long as there is no effective abandonment (animus non revertendi), he can
practically choose the district most advantageous for him.
All these theoretical scenarios, however, are tempered by the unambiguous limitation
that "for a period of not less than one year immediately preceding the day of the
election", he must be a resident in the district where he desires to be elected.
To my mind, the one year residence period is crucial regardless of whether or not the
term "residence" is to be synonymous with "domicile." In other words, the candidate's
intent and actual presence in one district must in allsituations satisfy the length of time
prescribed by the fundamental law. And this, because of a definite Constitutional
purpose. He must be familiar with the environment and problems of a district he intends
to represent in Congress and the one-year residence in said district would be the
minimum period to acquire such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the
now assailed decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by
the Comelec en banc)
In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She studied
in the Holy Infant Academy in Tacloban from 1938 to 1948 when she
graduated from high school. She pursued her college studies in St. Paul's
College, now Divine Word University of Tacloban, where she earned her
degree in Education. Thereafter, she taught in the Leyte Chinese High
School, still in Tacloban City. In 1952 she went to Manila to work with her
cousin, the late Speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-president Ferdinand Marcos
when he was still a congressman of Ilocos Norte. She lived with him in
Batac, Ilocos Norte and registered there as a voter. When her husband
was elected Senator of the Republic in 1959, she and her husband lived
together in San Juan, Rizal where she registered as a voter. In 1965
when her husband was elected President of the Republic of the
Philippines, she lived with him in Malacanang Palace and registered as a
voter in San Miguel, Manila.
During the Marcos presidency, respondent served as a Member of the
Batasang Pambansa, Minister of Human Settlements and Governor of
Metro Manila. She claimed that in February 1986, she and her family
were abducted and kidnapped to Honolulu, Hawaii. In November 1991,
she came home to Manila. In 1992 respondent ran for election as
President of the Philippines and filed her Certificate of Candidacy wherein
she indicated that she is a resident and registered voter of San Juan,
Metro Manila. On August 24, 1994, respondent filed a letter with the
election officer of San Juan, Metro Manila, requesting for cancellation of
her registration in the Permanent List of Voters in Precinct No. 157 of San
Juan, Metro Manila, in order that she may be re-registered or transferred
to Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On August 31, 1994,
respondent filed her Sworn Application for Cancellation of Voter's
Previous Registration (Annex 2-C, Answer) stating that she is a duly
registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she
intends to register at Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent registered as a voter at Precinct No. 18-
A of Olot, Tolosa, Leyte. She filed with the Board of Election Inspectors
CE Form No. 1, Voter Registration Record No. 94-3349772, wherein she
alleged that she has resided in the municipality of Tolosa for a period of 6
months (Annex A, Petition).
On March 8, 1995, respondent filed with the Office of the Provincial
Election Supervisor, Leyte, a Certificate of Candidacy for the position of
Representative of the First District of Leyte wherein she also alleged that
she has been a resident in the constituency where she seeks to be
elected for a period of 7 months. The pertinent entries therein are as
follows:
7. PROFESSION OR OCCUPATION:
House-wife/ Teacher/ Social Worker
8. RESIDENCE (complete address): Brgy.
Olot, Tolosa, Leyte
Post Office Address for election purposes:
Brgy. Olot, Tolosa, Leyte
9. RESIDENCE IN THE CONSTITUENCY
WHEREIN I SEEK TO BE ELECTED
IMMEDIATELY PRECEDING ELECTION:
________ Years SevenMonths
10. I AM NOT A PERMANENT RESIDENT
OF, OR IMMIGRANT TO, A FOREIGN
COUNTRY.
THAT I AM ELIGIBLE for said office; That I will support and defend the
Constitution of the Republic of the Philippines and will maintain true faith
and allegiance thereto; That I will obey the laws, legal orders and decrees
promulgated by the duly-constituted authorities; That the obligation
imposed by my oath is assumed voluntarily, without mental reservation or
purpose of evasion; and That the facts stated herein are true to the best
of my knowledge.
(Sgd.) Imelda
Romualdez-
Marcos
(Signature of
Candidate)
2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the
decisive component or seed of her disqualification. It is contained in her answer under
oath of "seven months" to the query of "residence in the constituency wherein I seek to
be elected immediately preceding the election."
It follows from all the above that the Comelec committed no grave abuse of discretion in
holding that petitioner is disqualified from the position of representative for the 1st
congressional district of Leyte in the elections of
8 May 1995, for failure to meet the "not less than one-year residence in the constituency
(1st district, Leyte) immediately preceding the day of election
(8 May 1995)."
Having arrived at petitioner's disqualification to be a representative of the first district of
Leyte, the next important issue to resolve is whether or not the Comelec can order the
Board of Canvassers to determine and proclaim the winner out of the remaining
qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this Court in the case of Labo
vs. Comelec, G.R. 86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laid
down in the early 1912 case of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election for
that office, and it is a fundamental idea in all republican forms of
government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal
votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676)
The fact that the candidate who obtained the highest number of votes is
later declared to be disqualified or not eligible for the office to which he
was elected does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of the elective
office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there.
However, in the absence of a statute which clearly asserts a contrary
political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they
should not be treated as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System
and for other purposes) (84 O.G. 905, 22 February 1988) it is provided that:
. . . Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry or protest and,
upon motion of the complainant or any intervenor, may, during the
pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the plain and unambiguous
meaning of the provision quoted above. As the law now stands, the legislative policy
does not limit its concern with the effect of a final judgement of disqualification
only before the election, but even during or after the election. The law is clear that in all
situations, the votes cast for a disqualified candidate SHALL NOT BE COUNTED. The
law has also validated the jurisdiction of the Court or Commission on Election to
continue hearing the petition for disqualification in case a candidate is voted for and
receives the highest number of votes, if for any reason, he is not declared by final
judgment before an election to be disqualified.
Since the present case is an after election scenario, the power to suspend proclamation
(when evidence of his guilt is strong) is also explicit under the law. What happens then
when after the elections are over, one is declared disqualified? Then, votes cast for him
"shall not be counted" and in legal contemplation, he no longer received the highest
number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the
winner simply because a "winning candidate is disqualified," but that the law considers
him as the candidate who had obtained the highest number of votes as a result of the
votes cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason
why this Court should not re-examine and consequently abandon the doctrine in the Jun
Labo case. It has been stated that "the qualifications prescribed for elective office cannot
be erased by the electorate alone. The will of the people as expressed through the ballot
cannot cure the vice of ineligibility" most especially when it is mandated by no less than
the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of
Canvassers of Leyte to proclaim the candidate receiving the highest number of votes,
from among the qualified candidates, as the duly elected representative of the 1st district
of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J ., dissenting:
While I agree with same of the factual bases of the majority opinion, I cannot arrive
conjointly at the same conclusion drawn therefrom Hence, this dissent which assuredly
is not formulated "on the basis of the personality of a petitioner in a case."
I go along with the majority in their narration of antecedent facts, insofar as the same are
pertinent to this case, and which I have simplified as follows:
1. Petitioner, although born in Manila, resided during her childhood in the
present Tacloban City, she being a legitimate daughter of parents who
appear to have taken up permanent residence therein. She also went to
school there and, for a time, taught in one of the schools in that city.
2. When she married then Rep. Ferdinand E. Marcos who was then
domiciled in Batac, Ilocos Norte, by operation of law she acquired a new
domicile in that place in 1954.
3. In the successive years and during the events that happened
thereafter, her husband having been elected as a Senator and then as
President, she lived with him and their family in San Juan, Rizal and then
in Malacanang Palace in San Miguel, Manila.
4. Over those years, she registered as a voter and actually voted in
Batac, Ilocos Norte, then in San Juan, Rizal, and also in San Miguel,
Manila, all these merely in the exercise of the right of suffrage.
5. It does not appear that her husband, even after he had assumed those
lofty positions successively, ever abandoned his domicile of origin in
Batac, Ilocos Norte where he maintained his residence and invariably
voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and the
sojourn of the Marcos family in Honolulu, Hawaii, U.S.A., she eventually
returned to the Philippines in 1991 and resided in different places which
she claimed to have been merely temporary residences.
7. In 1992, petitioner ran for election as President of the Philippines and
in her certificate of candidacy she indicated that she was then a
registered voter and resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for the cancellation of her
registration in the Permanent List of Voters in Precinct No. 157 of San
Juan, Metro Manila in order that she may "be re-registered or transferred
to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed this up
with her Sworn Application for Cancellation of Voter's Previous
Registration wherein she stated that she was a registered voter in
Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that
she intended to register in Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner registered as a voter at Precinct No.
18-A of Olot, Tolosa, Leyte, for which purpose she filed with the therein
Board of Election Inspectors a voter's registration record form alleging
that she had resided in that municipality for six months.
10. On March 8, 1995, petitioner filed her certificate of candidacy for the
position of Representative of the First District of Leyte wherein she
alleged that she had been a resident for "Seven Months" of the
constituency where she sought to be elected.
11. On March 29, 1995, she filed an "Amended/Corrected Certificate of
Candidacy" wherein her answer in the original certificate of candidacy to
item "8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK, TO BE
ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed
or replaced with a new entry reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of her candidacy, petitioner had
complied with the residency requirement of one year as mandated by no less than
Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a dissertation on the
difference between residence and domicile. We have had enough of that and I
understand that for purposes of political law and, for that matter of international law,
residence is understood to be synonymous with domicile. That is so understood in our
jurisprudence and in American Law, in contradistinction to the concept of residence for
purposes of civil, commercial and procedural laws whenever an issue thereon is relevant
or controlling.
Consequently, since in the present case the question of petitioner's residence is
integrated in and inseparable from her domicile, I am addressing the issue from the
standpoint of the concept of the latter term, specifically its permutations into the domicile
of origin, domicile of choice and domicile by operation of law, as understood in American
law from which for this case we have taken our jurisprudential bearings.
My readings inform me that the domicile of the parents at the time of birth, or what is
termed the "domicile of origin," constitutes the domicile of an infant until abandoned, or
until the acquisition of a new domicile in a different place.
1
In the instant case, we may
grant that petitioner's domicile of origin,
2
at least as of 1938, was what is now Tacloban
City.
Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by
birth, domicile by choice, and domicile by operation of law. The first is the common case
of the place of birth or domicilium originis, the second is that which is voluntarily acquired
by a party or domicilium propio motu; the last which is consequential, as that of a wife
arising from marriage,
3
is sometimes called domicilium necesarium. There is no debate
that the domicile of origin can be lost or replaced by a domicile of choice or a domicile by
operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law,
not only international or American but of our own enactment,
4
she acquired her
husband's domicile of origin in Batac, Ilocos Norte and correspondingly lost her own
domicile of origin in Tacloban City.
Her subsequent changes of residence to San Juan, Rizal, then to San Miguel, Manila,
thereafter to Honolulu, Hawaii, and back to now San Juan, Metro Manila do not
appear to have resulted in her thereby acquiring new domiciles of choice. In fact, it
appears that her having resided in those places was by reason of the fortunes or
misfortunes of her husband and his peregrinations in the assumption of new official
positions or the loss of them. Her residence in Honolulu and, of course, those after her
return to the Philippines were, as she claimed, against her will or only for transient
purposes which could not have invested them with the status of domiciles of choice.
5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over
her requisite residency in Tacloban City or Olot, Tolosa, Leyte, there is no showing that
she ever attempted to acquire any other domicile of choice which could have resulted in
the abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we note the
majority's own submission
6
that, to successfully effect a change of domicile, one must
demonstrate (a) an actual removal or an actual change of domicile, (b) a bona
fide intention of abandoning the former place of residence and establishing a new one,
and (c) acts which correspond with the purpose.
We consequently have to also note that these requirements for the acquisition of a
domicile of choice apply whether what is sought to be changed or substituted is a
domicile of origin (domicilium originis) or a domicile by operation of law (domicilium
necesarium). Since petitioner had lost her domicilium originis which had been replaced
by her domicilium necesarium, it is therefore her continuing domicile in Batac, Ilocos
Norte which, if at all, can be the object of legal change under the contingencies of the
case at bar.
To get out of this quandary, the majority decision echoes the dissenting opinion of
Commissioner Regalado E. Maambong in SPA 95-009 of the Commission on
Elections,
7
and advances this novel proposition.
It may be said that petitioner lost her domicile of origin by operation of law
as a result of her marriage to the late President Ferdinand E. Marcos in
1952 (sic, 1954). By operation of law (domicilium necesarium), her legal
domicile at the time of her marriage became Batac, Ilocos Norte although
there were no indications of an intention on her part to abandon her
domicile of origin. Because of her husband's subsequent death and
through the operation of the provisions of the New Family Code already in
force at the time, however, her legal domicile automatically reverted to
her domicile of origin. . . . (Emphasis supplied).
Firstly, I am puzzled why although it is conceded that petitioner had acquired
a domicilium necesarium in Batac, Ilocos Norte, the majority insists on making a
qualification that she did not intend to abandon her domicile of origin. I find this
bewildering since, in this situation, it is the law that declares where petitioner's domicile
is at any given time, and not her self-serving or putative intent to hold on to her former
domicile. Otherwise, contrary to their own admission that one cannot have more than
one domicile at a time,
8
the majority would be suggesting that petitioner retained
Tacloban City as (for lack of a term in law since it does not exist therein) the equivalent
of what is fancied as a reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be recovered likewise in
accordance with law. However, we are here being titillated with the possibility of an
automatic reversion to or reacquisition of a domicile of origin after the termination of the
cause for its loss by operation of law. The majority agrees that since petitioner lost her
domicile of origin by her marriage, the termination of the marriage also terminates that
effect thereof. I am impressed by the ingeniousness of this theory which proves that,
indeed, necessity is the mother of inventions. Regretfully, I find some difficulty in
accepting either the logic or the validity of this argument.
If a party loses his domicile of origin by obtaining a new domicile of choice, he
thereby voluntarily abandons the former in favor of the latter. If, thereafter, he abandons
that chosen domicile, he does not per se recover his original domicile unless, by
subsequent acts legally indicative thereof, he evinces his intent and desire to establish
the same as his new domicile, which is precisely what petitioner belatedly and, evidently
just for purposes of her candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of choice cannot automatically restore
his domicile of origin, not only because there is no legal authority therefor but because it
would be absurd Pursued to its logical consequence, that theory of ipso jure reversion
would rule out the fact that said party could already very well have obtained another
domicile, either of choice or by operation of law, other than his domicile of origin.
Significantly and obviously for this reason, the Family Code, which the majority
inexplicably invokes, advisedly does not regulate this contingency since it would impinge
on one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice
(unless we assume that she entered into the marital state against her will) but, on top of
that, such abandonment was further affirmed through her acquisition of a new domicile
by operation of law. In fact, this is even a case of both voluntary andlegal abandonment
of a domicile of origin. With much more reason, therefore, should we reject the
proposition that with the termination of her marriage in 1989, petitioner had
supposedly per se and ipso facto reacquired her domicile of origin which she lost in
1954. Otherwise, this would be tantamount to saying that during the period of marital
coverture, she was simultaneously in possession and enjoyment of a domicile of origin
which was only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the husband's death the
wife has the right to elect her own domicile,
9
she nevertheless retains the last domicile
of her deceased husband until she makes an actual change.
10
In the absence of
affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal
residence follows that of her husband and will continue after his death.
11

I cannot appreciate the premises advanced in support of the majority's theory based on
Articles 68 and 69 of the Family Code. All that is of any relevance therein is that under
this new code, the right and power to fix the family domicile is now shared by the
spouses. I cannot perceive how that joint right, which in the first place was never
exercised by the spouses, could affect the domicile fixed by the law for petitioner in 1954
and, for her husband, long prior thereto. It is true that a wife now has the coordinate
power to determine the conjugal or family domicile, but that has no bearing on this case.
With the death of her husband, and each of her children having gotten married and
established their own respective domiciles, the exercise of that joint power was and is no
longer called for or material in the present factual setting of this controversy. Instead,
what is of concern in petitioner's case was the matter of her having acquired or not her
own domicile of choice.
I agree with the majority's discourse on the virtues of the growing and expanded
participation of women in the affairs of the nation, with equal rights and recognition by
Constitution and statutory conferment. However, I have searched in vain for a specific
law or judicial pronouncement which either expressly or by necessary implication
supports the majority's desired theory of automatic reacquisition of or reversion to
the domicilium originis of petitioner. Definitely, as between the settled and desirable legal
norms that should govern this issue, there is a world of difference; and, unquestionably,
this should be resolved by legislative articulation but not by the eloquence of the well-
turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not
having automatically reacquired any domicile therein, she cannot legally claim that her
residency in the political constituency of which it is a part continued since her birth up to
the present. Respondent commission was, therefore, correct in rejecting her pretension
to that effect in her amended/corrected certificate of candidacy, and in holding her to her
admission in the original certificate that she had actually resided in that constituency for
only seven months prior to the election. These considerations render it unnecessary to
further pass upon the procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.
DAVIDE, JR., J ., dissenting:
I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M.
Kapunan, more particularly on the issue of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or
rulings of the COMELEC may be brought to this Court only by the special civil action
for certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251
[1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without
or in excess of jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of
Court). Since the COMELEC has, undoubtedly, jurisdiction over the private respondent's
petition, the only issue left is whether it acted with grave abuse of discretion in
disqualifying the petitioner.
My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the
COMELEC Second Division and the En Banc resolution of 7 May 1995 discloses total
absence of abuse of discretion, much less grave abuse thereof. The resolution of the
Second Division dispassionately and objectively discussed in minute details the facts
which established beyond cavil that herein petitioner was disqualified as a candidate on
the ground of lack of residence in the First Congressional District of Leyte. It has not
misapplied, miscomprehended, or misunderstood facts or circumstances of substance
pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELEC's findings of fact for lack of
proof that the petitioner has abandoned Tolosa as her domicile of origin, which is
allegedly within the First Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC, either by
admission or by documentary evidence, overwhelming proof of the loss or abandonment
of her domicile of origin, which is Tacloban City and not Tolosa, Leyte. Assuming that
she decided to live again in her domicile of origin, that became her second domicile of
choice, where her stay, unfortunately, was for only seven months before the day of the
election. She was then disqualified to be a candidate for the position of Representative
of the First Congressional District of Leyte. A holding to the contrary would be arbitrary.
It may indeed be conceded that the petitioner's domicile of choice was either Tacloban
City or Tolosa, Leyte. Nevertheless, she lost it by operation of law sometime in May
1954 upon her marriage to the then Congressman (later, President) Ferdinand E.
Marcos. A domicile by operation of law is that domicile which the law attributes to a
person, independently of his own intention or actual residence, as results from legal
domestic relations as that of the wife arising from marriage (28 C.J.S. Domicile 7, 11).
Under the governing law then, Article 110 of the Civil Code, her new domicile or her
domicile of choice was the domicile of her husband, which was Batac, Ilocos Norte. Said
Article reads as follows:
Art. 110. The husband shall fix the residence of the family. But the court
may exempt the wife from living with the husband if he should live abroad
unless in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino states:
Although the duty of the spouses to live together is mutual, the husband
has a predominant right because he is empowered by law to fix the family
residence. This right even predominates over some rights recognized by
law in the wife. For instance, under article 117 the wife may engage in
business or practice a profession or occupation. But because of the
power of the husband to fix the family domicile he may fix it at such a
place as would make it impossible for the wife to continue in business or
in her profession. For justifiable reasons, however, the wife may be
exempted from living in the residence chosen by the husband. The
husband cannot validly allege desertion by the wife who refuses to follow
him to a new place of residence, when it appears that they have lived for
years in a suitable home belonging to the wife, and that his choice of a
different home is not made in good faith. (Commentaries and
Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses her own domicile and, by
operation of law, acquires that of her husband, no matter where the wife actually lives or
what she believes or intends. Her domicile is fixed in the sense that it is declared to be
the same as his, and subject to certain limitations, he can change her domicile by
changing his own (25 Am Jur 2d Domicile 48, 37).
It must, however, be pointed out that under Article 69 of the Family Code, the fixing of
the family domicile is no longer the sole prerogative of the husband, but is now a joint
decision of the spouses, and in case of disagreement the court shall decide. The said
article uses the term "family domicile," and not family residence, as "the spouses may
have multiple residences, and the wife may elect to remain in one of such residences,
which may destroy the duty of the spouses to live together and its corresponding
benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines,
[1988], 102).
The theory of automatic restoration of a woman's domicile of origin upon the death of her
husband, which the majority opinion adopts to overcome the legal effect of the
petitioner's marriage on her domicile, is unsupported by law and by jurisprudence. The
settled doctrine is that after the husband's death the wife has a right to elect her own
domicile, but she retains the last domicile of her husband until she makes an actual
change (28 C.J.S. Domicile 12, 27). Or, on the death of the husband, the power of the
wife to acquire her own domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his death (25 Am Jur 2d Domicile
62, 45). Note that what is revived is not her domicile of origin but her power to acquire
her own domicile.
Clearly, even after the death of her husband, the petitioner's domicile was that of her
husband at the time of his death which was Batac, Ilocos Norte, since their
residences in San Juan, Metro Manila, and San Miguel, Manila, were their residences for
convenience to enable her husband to effectively perform his official duties. Their
residence in San Juan was a conjugal home, and it was there to which she returned in
1991 when she was already a widow. In her sworn certificate of candidacy for the Office
of the President in the synchronized elections of May 1992, she indicated therein that
she was a resident of San Juan, Metro Manila. She also voted in the said elections in
that place.
On the basis of her evidence, it was only on 24 August 1994 when she exercised her
right as a widow to acquire her own domicile in Tolosa, Leyte, through her sworn
statement requesting the Election Officer of San Juan, Metro Manila, to cancel her
registration in the permanent list of voters in Precinct 157 thereat and praying that she
be "re-registered or transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and
permanent residence" (photocopy of Exhibit "B," attached as Annex "2" of private
respondent Montejo's Comment). Notably, she contradicted this sworn statement
regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March 1992
(photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record
sworn to on 28 January 1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and
her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of Exhibit "A,"
attached as Annex "1," Id.), she solemnly declared that she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa,
Leyte? In the affidavit attached to her Answer to the petition for disqualification (Annex
"I" of Petition), she declared under oath that her "domicile or residence is Tacloban City."
If she did intend to return to such domicile or residence of origin why did she inform the
Election Officer of San Juan that she would transfer to Olot, Tolosa, Leyte, and indicate
in her Voter's Registration Record and in her certificate of candidacy that her residence
is Olot, Tolosa, Leyte? While this uncertainty is not important insofar as residence in the
congressional district is concerned, it nevertheless proves that forty-one years had
already lapsed since she had lost or abandoned her domicile of origin by virtue of
marriage and that such length of time diminished her power of recollection or blurred her
memory.
I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil.
294 [1954]), and the subsequent cases which established the principle that absence
from original residence or domicile of origin to pursue studies, practice one's profession,
or engage in business in other states does not constitute loss of such residence or
domicile. So is the reliance on Section 117 of the Omnibus Election Code which
provides that transfer of residence to any other place by reason of one's "occupation;
profession; employment in private and public service; educational activities; work in
military or naval reservations; service in the army, navy or air force, the constabulary or
national police force; or confinement or detention in government institutions in
accordance with law" is not deemed as loss of original residence. Those cases and legal
provision do not include marriage of a woman. The reason for the exclusion is, of
course, Article 110 of the Civil Code. If it were the intention of this Court or of the
legislature to consider the marriage of a woman as a circumstance which would not
operate as an abandonment of domicile (of origin or of choice), then such cases and
legal provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the petitioner in her
affidavit (Annex "A" of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition)
that her "domicile or residence of origin is Tacloban City," and that she "never intended
to abandon this domicile or residence of origin to which [she] always intended to return
whenever absent." Such a claim of intention cannot prevail over the effect of Article 110
of the Civil Code. Besides, the facts and circumstances or the vicissitudes of the
petitioner's life after her marriage in 1954 conclusively establish that she had indeed
abandoned her domicile of origin and had acquired a new oneanimo et facto (KOSSUTH
KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the petitioner's claim that she "merely
committed an honest mistake" in writing down the word "seven" in the space provided for
the residency qualification requirement in the certificate of candidacy. Such a claim is
self-serving and, in the light of the foregoing disquisitions, would be all sound and fury
signifying nothing. To me, she did not commit any mistake, honest or otherwise; what
she stated was the truth.
The majority opinion also disregards a basic rule in evidence that he who asserts a fact
or the affirmative of an issue has the burden of proving it (Imperial Victory Shipping
Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221
SCRA 19 [1993]). Having admitted marriage to the then Congressman Marcos, the
petitioner could not deny the legal consequence thereof on the change of her domicile to
that of her husband. The majority opinion rules or at least concludes that "[b]y operation
of law (domicilium necesarium), her legal domicile at the time of her marriage
automatically became Batac, Ilocos Norte." That conclusion is consistent with Article 110
of the Civil Code. Since she is presumed to retain her deceased husband's domicile until
she exercises her revived power to acquire her own domicile, the burden is upon her to
prove that she has exercised her right to acquire her own domicile. She miserably failed
to discharge that burden.
I vote to deny the petition.
Separate Opinions
PUNO, J ., concurring:
It was Aristotle who taught mankind that things that are alike should be treated alike,
while things that are unalike should be treated unalike in proportion to their
unalikeness.
1
Like other candidates, petitioner has clearly met the residence
requirement provided by Section 6, Article VI of the Constitution.
2
We cannot disqualify
her and treat her unalike, for the Constitution guarantees equal protection of the law. I
proceed from the following factual and legal propositions:
First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her
parents were domiciled in Tacloban. Their ancestral house is in Tacloban. They have
vast real estate in the place. Petitioner went to school and thereafter worked there. I
consider Tacloban as her initial domicile, both her domicile of origin and her domicile of
choice. Her domicile of origin as it was the domicile of her parents when she was a
minor; and her domicile of choice, as she continued living there even after reaching the
age of majority.
Second. There is also no question that in May, 1954, petitioner married the late
President Ferdinand E. Marcos. By contracting marriage, her domicile became subject to
change by law, and the right to change it was given by Article 110 of the Civil Code
provides:
Art. 110. The husband shall fix the residence of the family. But the court
may exempt the wife from living with the husband if he should live abroad
unless in the service of the Republic.
3
(Emphasis supplied)
In De la Via v. Villareal and Geopano,
4
this Court explained why the domicile of
the wife ought to follow that of the husband. We held: "The reason is founded
upon the theoretic identity of person and interest between the husband and the
wife, and the presumption that, from the nature of the relation, the home of one is
the home of the other. It is intended to promote, strengthen, and secure their
interests in this relation, as it ordinarily exists, where union and harmony
prevail."
5
In accord with this objective, Article 109 of the Civil Code also obligated
the husband and wife "to live together."
Third. The difficult issues start as we determine whether petitioner's marriage to former
President Marcos ipso facto resulted in the loss of her Tacloban domicile. I respectfully
submit that her marriage by itself alone did not cause her to lose her Tacloban domicile.
Article 110 of the Civil Code merely gave the husband the right to fix the domicile of the
family. In the exercise of the right, the husband may explicitly choose the prior domicile
of his wife, in which case, the wife's domicile remains unchanged. The husband can
also implicitly acquiesce to his wife's prior domicile even if it is different. So we held in de
la Via,
6

. . . . When married women as well as children subject to parental
authority live, with the acquiescence of their husbands or fathers, in a
place distinct from where the latter live, they have their
own independent domicile. . . .
It is not, therefore, the mere fact of marriage but the deliberate choice of a
different domicile by the husband that will change the domicile of a wife from
what it was prior to their marriage. The domiciliary decision made by the husband
in the exercise of the right conferred by Article 110 of the Civil Code binds the
wife. Any and all acts of a wife during her coverture contrary to the domiciliary
choice of the husband cannot change in any way the domicile legally fixed by the
husband. These acts are void not only because the wife lacks the capacity to
choose her domicile but also because they are contrary to law and public policy.
In the case at bench, it is not disputed that former President Marcos exercised his right
to fix the family domicile and established it in Batac, Ilocos Norte, where he was then the
congressman. At that particular point of time and throughout their married life, petitioner
lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has been fixed by
operation of law, it was not affected in 1959 when her husband was elected as Senator,
when they lived in San Juan, Rizal and where she registered as a voter. It was not also
affected in 1965 when her husband was elected President, when they lived in
Malacaang Palace, and when she registered as a voter in San Miguel, Manila. Nor was
it affected when she served as a member of the Batasang Pambansa, Minister of
Human Settlements and Governor of Metro Manila during the incumbency of her
husband as President of the nation. Under Article 110 of the Civil Code, it was only her
husband who could change the family domicile in Batac and the evidence shows he did
not effect any such change. To a large degree, this follows the common law that "a
woman on her marriage loses her own domicile and by operation of law, acquires that of
her husband, no matter where the wife actually lives or what she believes or intends."
7

Fourth. The more difficult task is how to interpret the effect of the death on September
28, 1989 of former President Marcos on petitioner's Batac domicile. The issue is of first
impression in our jurisdiction and two (2) schools of thought contend for acceptance.
One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily relying
on American authorities.
8
He echoes the theory that after the husband's death, the wife
retains the last domicile of her husband until she makes an actual change.
I do not subscribe to this submission. The American case law that the wife still retains
her dead husband's domicile is based on ancient common law which we can no longer
apply in the Philippine setting today. The common law identified the domicile of a wife as
that of the husband and denied to her the power of acquiring a domicile of her own
separate and apart from him.
9
Legal scholars agree that two (2) reasons support this
common law doctrine. The first reason as pinpointed by the legendary Blackstone is
derived from the view that "the very being or legal existence of the woman is suspended
during
the marriage, or at least is incorporated and consolidated into that of the
husband."
10
The second reason lies in "the desirability of having the interests of each
member of the family unit governed by the same law."
11
The presumption that the wife
retains the domicile of her deceased husband is an extension of this common law
concept. The concept and its extension have provided some of the most iniquitous
jurisprudence against women. It was under common law that the 1873 American case
of Bradwell v. Illinois
12
was decided where women were denied the right to practice law.
It was unblushingly ruled that "the natural and proper timidity and delicacy which belongs
to the female sex evidently unfits it for many of the occupations of civil life . . . This is the
law of the Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS
13
and
AM JUR 2d
14
are American state court decisions handed down between the years
1917
15
and 1938,
16
or before the time when women were accorded equality of rights
with men. Undeniably, the women's liberation movement resulted in far-ranging state
legislations in the United States to eliminate gender inequality.
17
Starting in the decade
of the seventies, the courts likewise liberalized their rulings as they started invalidating
laws infected with gender-bias. It was in 1971 when the US Supreme Court in Reed
v. Reed,
18
struck a big blow for women equality when it declared as unconstitutional an
Idaho law that required probate courts to choose male family members over females as
estate administrators. It held that mere administrative inconvenience cannot justify a
sex-based distinction. These significant changes both in law and in case law on the
status of women virtually obliterated the iniquitous common law surrendering the rights
of married women to their husbands based on the dubious theory of the parties' theoretic
oneness. The Corpus Juris Secundum editors did not miss the relevance of this
revolution on women's right as they observed: "However, it has been declared that
under modern statutes changing the status of married women and departing from the
common law theory of marriage, there is no reason why a wife may not acquire a
separate domicile for every purpose known to the law."
19
In publishing in 1969
theRestatement of the Law, Second (Conflict of Laws 2d), the reputable American Law
Institute also categorically stated that the view of Blackstone ". . . is no longer held. As
the result of statutes and court decisions, a wife now possesses practically the same
rights and powers as her unmarried sister."
20

In the case at bench, we have to decide whether we should continue clinging to
the anachronistic common lawthat demeans women, especially married women. I submit
that the Court has no choice except to break away from this common law rule, the root of
the many degradations of Filipino women. Before 1988, our laws particularly the Civil
Code, were full of gender discriminations against women. Our esteemed colleague,
Madam Justice Flerida Ruth Romero, cited a few of them as follows:
21

xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under the Civil Code, wives suffer
under certain restrictions or disabilities. For instance, the wife cannot
accept gifts from others, regardless of the sex of the giver or the value of
the gift, other than from her very close relatives, without her husband's
consent. She may accept only from, say, her parents, parents-in-law,
brothers, sisters and the relatives within the so-called fourth civil degree.
She may not exercise her profession or occupation or engage in business
if her husband objects on serious grounds or if his income is sufficient to
support their family in accordance with their social standing. As to what
constitutes "serious grounds" for objecting, this is within the discretion of
the husband.
xxx xxx xxx
Because of the present inequitable situation, the amendments to the Civil
Law being proposed by the University of the Philippines Law Center
would allow absolute divorce which severes the matrimonial ties, such
that the divorced spouses are free to get married a year after the divorce
is decreed by the courts. However, in order to place the husband and wife
on an equal footing insofar as the bases for divorce are concerned, the
following are specified as the grounds for absolute divorce: (1) adultery or
having a paramour committed by the respondent in any of the ways
specified in the Revised Penal Code or (2) an attempt by the respondent
against the life of the petitioner which amounts to attempted parricide
under the Revised Penal Code; (3) abandonment of the petitioner by the
respondent without just cause for a period of three consecutive years; or
(4) habitual maltreatment.
With respect to property relations, the husband is automatically the
administrator of the conjugal property owned in common by the married
couple even if the wife may be the more astute or enterprising partner.
The law does not leave it to the spouses to decide who shall act as such
administrator. Consequently, the husband is authorized to engage in acts
and enter into transactions beneficial to the conjugal partnership. The
wife, however, cannot similarly bind the partnership without the husband's
consent.
And while both exercise joint parental authority over their children, it is the
father whom the law designates as the legal administrator of the property
pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally through
legislations, to eliminate inequality between men and women in our land. The
watershed came on August 3, 1988 when our Family Code took effect which,
among others, terminated the unequal treatment of husband and wife as to their
rights and responsibilities.
22

The Family Code attained this elusive objective by giving new rights to married women
and by abolishing sex-based privileges of husbands. Among others, married women are
now given the joint right to administer the family property, whether in the absolute
community system or in the system of conjugal partnership;
23
joint parental authority
over their minor children, both over their persons as well as their properties;
24
joint
responsibility for the support of the family;
25
the right to jointly manage the
household;
26
and, the right to object to their husband's exercise of profession,
occupation, business or activity.
27
Of particular relevance to the case at bench is Article
69 of the Family Code which took away the exclusive right of the husband to fix the
family domicile and gave it jointly to the husband and the wife, thus:
Art. 69. The husband and wife shall fix the family domicile. In case of
disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the latter
should live abroad or there are other valid and compelling reasons for the
exemption. However, such exemption shall not apply if the same is not
compatible with the solidarity of the family. (Emphasis supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the
husband and wife to live together, former Madam Justice Alice Sempio-Diy of the
Court of Appeals specified the instances when a wife may now refuse to live with
her husband, thus:
28

(2) The wife has the duty to live with her husband, but she may refuse to
do so in certain cases like:
(a) If the place chosen by the husband as family residence
is dangerous to her Life;
(b) If the husband subjects her to maltreatment or abusive
conduct or insults, making common life impossible;
(c) If the husband compels her to live with his parents, but
she cannot get along with her mother-in-law and they have
constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG
6122);
(d) Where the husband has continuously carried illicit
relations for 10 years with different women and treated his
wife roughly and without consideration. (Dadivas v.
Villanueva, 54 Phil. 92);
(e) Where the husband spent his time in gambling, giving
no money to his family for food and necessities, and at the
same time insulting his wife and laying hands on her.
(Panuncio v. Sula, CA, 34 OG 129);
(f) If the husband has no fixed residence and lives a
vagabond life as a tramp (1 Manresa 329);
(g) If the husband is carrying on a shameful business at
home (Gahn v. Darby, 38 La. Ann. 70).
The inescapable conclusion is that our Family Code has completely emancipated
the wife from the control of the husband, thus abandoning the parties' theoretic
identity of interest. No less than the late revered Mr. Justice J.B.L. Reyes who
chaired the Civil Code Revision Committee of the UP Law Center gave this
insightful view in one of his rare lectures after retirement:
29

xxx xxx xxx
The Family Code is primarily intended to reform the family law so as to
emancipate the wife from the exclusive control of the husband and to
place her at parity with him insofar as the family is concerned. The wife
and the husband are now placed on equal standing by the Code. They
are now joint administrators of the family properties and exercise joint
authority over the persons and properties of their children. This means a
dual authority in the family. The husband will no longer prevail over the
wife but she has to agree on all matters concerning the family. (Emphasis
supplied)
In light of the Family Code which abrogated the inequality between husband and
wife as started and perpetuated by the common law, there is no reason in
espousing the anomalous rule that the wife still retains the domicile of her dead
husband. Article 110 of the Civil Code which provides the statutory support for
this stance has been repealed by Article 69 of the Family Code. By its repeal, it
becomes a dead-letter law, and we are not free to resurrect it by giving it further
effect in any way or manner such as by ruling that the petitioner is still bound by
the domiciliary determination of her dead husband.
Aside from reckoning with the Family Code, we have to consider our Constitution and its
firm guarantees of due process and equal protection of
law.
30
It can hardly be doubted that the common law imposition on a married woman of
her dead husband's domicile even beyond his grave is patently discriminatory to women.
It is a gender-based discrimination and is not rationally related to the objective of
promoting family solidarity. It cannot survive a constitutional challenge. Indeed,
compared with our previous fundamental laws, the 1987 Constitution is more concerned
with equality between sexes as it explicitly commands that the State ". . . shall ensure
fundamental equality before the law of women and men." To be exact, section 14, Article
II provides: "The State recognizes the role of women in nation building, and shall ensure
fundamental equality before the law of women and men. We shall be transgressing the
sense and essence of this constitutional mandate if we insist on giving our women the
caveman's treatment.
Prescinding from these premises, I respectfully submit that the better stance is to rule
that petitioner reacquired her Tacloban domicile upon the death of her husband in 1989.
This is the necessary consequence of the view that petitioner's Batac dictated domicile
did not continue after her husband's death; otherwise, she would have no domicile and
that will violate the universal rule that no person can be without a domicile at any point of
time. This stance also restores the right of petitioner to choose her domicile before it was
taken away by Article 110 of the Civil Code, a right now recognized by the Family Code
and protected by the Constitution. Likewise, I cannot see the fairness of the common law
requiring petitioner to choose again her Tacloban domicile before she could be released
from her Batac domicile. She lost her Tacloban domicile not through her act but through
the act of her deceased husband when he fixed their domicile in Batac. Her husband is
dead and he cannot rule her beyond the grave. The law disabling her to choose her own
domicile has been repealed. Considering all these, common law should not put the
burden on petitioner to prove she has abandoned her dead husband's domicile. There is
neither rhyme nor reason for this gender-based burden.
But even assuming arguendo that there is need for convincing proof that petitioner
chose to reacquire her Tacloban domicile, still, the records reveal ample evidence to this
effect. In her affidavit submitted to the respondent COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to our beloved country, after
several requests for my return were denied by President Corazon C.
Aquino, and after I filed suits for our Government to issue me my
passport.
37. But I came home without the mortal remains of my beloved husband,
President Ferdinand E. Marcos, which the Government considered a
threat to the national security and welfare.
38. Upon my return to the country, I wanted to immediately live and reside
in Tacloban City or in Olot, Tolosa, Leyte, even if my residences there
were not livable as they had been destroyed and cannibalized. The
PCGG, however, did not permit and allow me.
39. As a consequence, I had to live at various times in the Westin
Philippine Plaza in Pasay City, a friend's apartment on Ayala Avenue, a
house in South Forbes Park which my daughter rented, and Pacific Plaza,
all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the
residence of my brother in San Jose, Tacloban City, and pursued my
negotiations with PCGG to recover my sequestered residences in
Tacloban City and Barangay Olot, Tolosa, Leyte.
40.1 In preparation for my observance of All Saints' Day
and All Souls' Day that year, I renovated my parents' burial
grounds and entombed their bones which had been
excalvated, unearthed and scattered.
41. On November 29, 1993, I formally wrote PCGG Chairman
Magtanggol Gunigundo for permissions to
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and
farmhouse in Olot, Leyte . . . to make them livable for us
the Marcos family to have a home in our own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman
Gunigundo, in his letter to Col. Simeon Kempis, Jr., PCGG Region 8
Representative, allowed me to repair and renovate my Leyte residences. I
quote part of his letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this
Commission, that she intends to visit our sequestered
properties in Leyte, please allow her access thereto. She
may also cause repairs and renovation of the sequestered
properties, in which event, it shall be understood that her
undertaking said repairs is not authorization for her to take
over said properties, and that all expenses shall be for her
account and not reimbursable. Please extend the
necessary courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Nio Shrine
residence in Tacloban City where I wanted to stay and reside, after
repairs and renovations were completed. In August 1994, I transferred
from San Jose, Tacloban City, to my residence in Barangay Olot, Tolosa,
Leyte, when PCGG permitted me to stay and live there.
It is then clear that in 1992 petitioner reestablished her domicile in the First
District of Leyte. It is not disputed that in 1992, she first lived at the house of her
brother in San Jose, Tacloban City and later, in August 1994, she transferred her
residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the
municipality of Olot are within the First District of Leyte. Since petitioner
reestablished her old domicile in 1992 in the First District of Leyte, she more than
complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the
election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to negate the Tacloban domicile of
petitioner is nil. He presented petitioner's Voter's Registration Record filed with the
Board of Election Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein
she stated that her period of residence in said barangay was six (6) months as of the
date of her filing of said Voter's Registration Record on January 28, 1995.
31
This
statement in petitioner's Voter's Registration Record is a non-prejudicial admission. The
Constitution requires at least one (1) year residence in thedistrict in which the candidate
shall be elected. In the case at bench, the reference is the First District of Leyte.
Petitioner's statement proved that she resided in Olot six (6) months before January 28,
1995 but did not disprove that she has also resided in Tacloban City starting 1992. As
aforestated, Olot and Tacloban City are both within the First District of Leyte, hence, her
six (6) months residence in Olot should be counted not against, but in her favor. Private
respondent also presented petitioner's Certificate of Candidacy filed on March 8,
1995
32
where she placed seven (7) months after Item No. 8 which called for information
regarding "residence in the constituency where I seek to be elected immediately
preceding the election." Again, this original certificate of candidacy has no evidentiary
value because an March 1, 1995 it was corrected by petitioner. In her
Amended/Corrected Certificate of Candidacy,
33
petitioner wrote "since childhood" after
Item No. 8. The amendment of a certificate of candidacy to correct a bona fide mistake
has been allowed by this Court as a matter of course and as a matter of right. As we
held in Alialy v. COMELEC,
34
viz.:
xxx xxx xxx
The absence of the signature of the Secretary of the local chapter N.P in
the original certificate of candidacy presented before the deadline
September 11, 1959, did not render the certificate invalid.The amendment
of the certificate, although at a date after the deadline, but before the
election, was substantial compliance with the law, and the defect was
cured.
It goes without saying that petitioner's erroneous Certificate of Candidacy filed on
March 8, 1995 cannot be used as evidence against her. Private respondent's
petition for the disqualification of petitioner rested alone on these two (2) brittle
pieces of documentary evidence petitioner's Voter's Registration Record and
her original Certificate of Candidacy. Ranged against the evidence of the
petitioner showing her ceaseless contacts with Tacloban, private respondent's
two (2) pieces of evidence are too insufficient to disqualify petitioner, more so, to
deny her the right to represent the people of the First District of Leyte who have
overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for
any public office shall be free from any form of harassment and discrimination."
35
A
detached reading of the records of the case at bench will show that all forms of legal and
extra-legal obstacles have been thrown against petitioner to prevent her from running as
the people's representative in the First District of Leyte. In petitioner's Answer to the
petition to disqualify her, she averred:
36

xxx xxx xxx
10. Petitioner's (herein private respondent Montejo) motive in filing the
instant petition is devious. When respondent (petitioner herein)
announced that she was intending to register as a voter in Tacloban City
and run for Congress in the First District of Leyte, petitioner (Montejo)
immediately opposed her intended registration by writing a letter stating
that "she is not a resident of said city but of Barangay Olot, Tolosa,
Leyte." (Annex "2" of respondent's affidavit, Annex "2"). After respondent
(petitioner herein) had registered as a voter in Tolosa following
completion of her six-month actual residence therein, petitioner (Montejo)
filed a petition with the COMELEC to transfer the town of Tolosa from the
First District to the Second District and pursued such move up to the
Supreme Court in G.R. No. 118702, his purpose being to remove
respondent (petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along with
other Leyte Congressmen, seeking to create another legislative district, to
remove the town of Tolosa out of the First District and to make it a part of
the new district, to achieve his purpose. However, such bill did not pass
the Senate. Having, failed on such moves, petitioner now filed the instant
petition, for the same objective, as it is obvious that he is afraid to submit
himself along with respondent (petitioner herein) for the judgment and
verdict of the electorate of the First District of Leyte in an honest, orderly,
peaceful, free and clean elections on May 8, 1995.
These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting
Opinion,
37
held:
xxx xxx xxx
Prior to the registration date January 28, 1995 the petitioner (herein
private respondent Montejo) wrote the Election Officer of Tacloban City
not to allow respondent (petitioner herein) to register thereat since she is
a resident of Tolosa and not Tacloban City. The purpose of this move of
the petitioner (Montejo) is not lost to (sic) the Commission. In UND No.
95-001 (In the matter of the Legislative Districts of the Provinces of Leyte,
Iloilo, and South Cotabato, Out of Which the New Provinces of Biliran,
Guimaras and Saranggani Were Respectively Created), . . . Hon. Cirilo
Roy G. Montejo, Representative, First District of Leyte, wanted the
Municipality of Tolosa, in the First District of Leyte, transferred to the
Second District of Leyte. The Hon. Sergio A.F. Apostol, Representative of
the Second District of Leyte, opposed the move of the petitioner
(Montejo). Under Comelec Resolution No. 2736 (December 29, 1994),
the Commission on Elections refused to make the proposed transfer.
Petitioner (Montejo) filed "Motion for Reconsideration of Resolution
No. 2736" which the Commission denied in a Resolution promulgated on
February 1, 1995. Petitioner (Montejo) filed a petition for certiorari before
the Honorable Supreme Court (Cirilo Roy G. Montejo vs. Commission on
Elections, G.R. No. 118702) questioning the resolution of the
Commission. Believing that he could get a favorable ruling from the
Supreme Court, petitioner (Montejo) tried to make sure that the
respondent (petitioner herein) will register as a voter in Tolosa so that she
will be forced to run as Representative not in the First but in the Second
District.
It did not happen. On March 16, 1995, the Honorable Supreme Court
unanimously promulgated a "Decision," penned by Associate Justice
Reynato S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736
insofar as it transferred the municipality of Capoocan of the
Second District and the municipality of Palompon of the
Fourth District to the Third District of the province of Leyte,
is annulled and set aside. We also deny the Petition
praying for the transfer of the municipality of Tolosa from
the First District to the Second District of the province of
Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent (petitioner
herein) was constrained to register in the Municipality of Tolosa where her
house is instead of Tacloban City, her domicile. In any case, both
Tacloban City and Tolosa are in the First Legislative District.
All these attempts to misuse our laws and legal processes are forms of rank
harassments and invidious discriminations against petitioner to deny her equal
access to a public office. We cannot commit any hermeneutic violence to the
Constitution by torturing the meaning of equality, the end result of which will allow
the harassment and discrimination of petitioner who has lived a controversial life,
a past of alternating light and shadow. There is but one Constitution for all
Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and the
worst way to interpret the Constitution is to inject in its interpretation, bile and
bitterness.
Sixth. In Gallego v. Vera,
38
we explained that the reason for this residence requirement
is "to exclude a stranger or newcomer, unacquainted, with the conditions and needs of a
community and not identified with the latter, from an elective office to serve that
community . . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be
contested. Nobody can claim that she is not acquainted with its problems because she is
a stranger to the place. None can argue she cannot satisfy the intent of the Constitution.
Seventh. In resolving election cases, a dominant consideration is the need to effectuate
the will of the electorate. The election results show that petitioner received Seventy
Thousand Four Hundred Seventy-one (70,471) votes, while private respondent got only
Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is clearly the
overwhelming choice of the electorate of the First District of Leyte and this is not a
sleight of statistics. We cannot frustrate this sovereign will on highly arguable technical
considerations. In case of doubt, we should lean towards a rule that will give life to the
people's political judgment.
A final point. The case at bench provides the Court with the rare opportunity to rectify the
inequality of status between women and men by rejecting the iniquitous common law
precedents on the domicile of married women and by redefining domicile in accord with
our own culture, law, and Constitution. To rule that a married woman is eternally
tethered to the domicile dictated by her dead husband is to preserve the anachronistic
and anomalous balance of advantage of a husband over his wife. We should not allow
the dead to govern the living even if the glories of yesteryears seduce us to shout long
live the dead! The Family Code buried this gender-based discrimination against married
women and we should not excavate what has been entombed. More importantly, the
Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J ., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position
of Representative of the First Congressional District of Leyte. I wish, however, to
express a few comments on the issue of petitioner's domicile.
Domicile has been defined as that place in which a person's habitation is fixed, without
any present intention of removing therefrom, and that place is properly the domicile of a
person in which he has voluntarily fixed his abode, or habitation, not for a mere special
or temporary purpose, but with a present intention of making it his permanent home (28
C.J.S. 1). It denotes a fixed permanent residence to which when absent for business,
or pleasure, or for like reasons one intends to return, and depends on facts and
circumstances, in the sense that they disclose intent. (Ong Huan Tin v. Republic, 19
SCRA 966, 969)
Domicile is classified into domicile of origin and domicile of choice. The law attributes to
every individual a domicile of origin, which is the domicile of his parents, or of the head
of his family, or of the person on whom he is legally dependent at the time of his birth.
While the domicile of origin is generally the place where one is born or reared, it maybe
elsewhere (28 C.J.S. 5). Domicile of choice, on the other hand, is the place which the
person has elected and chosen for himself to displace his previous domicile; it has for its
true basis or foundation the intention of the person (28 C.J.S. 6). In order to hold that a
person has abandoned his domicile and acquired a new one called domicile of choice,
the following requisites must concur, namely, (a) residence or bodily presence in the
new locality, (b) intention to remain there or animus manendi, and (c) an intention to
abandon the old domicile oranimus non revertendi (Romualdez v. RTC, Br. 7, Tacloban
City, 226 SCRA 408, 415). A third classification is domicile by operation of law which
attributes to a person a domicile independent of his own intention or actual residence,
ordinarily resulting from legal domestic relations, as that of the wife arising from
marriage, or the relation of a parent and a child (28 C.J.S. 7).
In election law, when our Constitution speaks of residence for election purposes it
means domicile (Co v. Electoral Tribunal of the House of Representatives, 199 SCRA
692, 713; Nuval v. Guray, 52 Phil. 645, 651). To my mind, public respondent
Commission on Elections misapplied this concept, of domicile which led to petitioner's
disqualification by ruling that petitioner failed to comply with the constitutionally
mandated one-year residence requirement. Apparently, public respondent Commission
deemed as conclusive petitioner's stay and registration as voter in many places as
conduct disclosing her intent to abandon her established domicile of origin in Tacloban,
Leyte. In several decisions, though, the Court has laid down the rule that registration of a
voter in a place other than his place of origin is not sufficient to constitute abandonment
or loss of such residence (Faypon v. Quirino, 96 Phil. 294, 300). Respondent
Commission offered no cogent reason to depart from this rule except to surmise
petitioner's intent of abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was supplanted by a new
domicile due to her marriage, a domicile by operation of law. The proposition is that
upon the death of her husband in 1989 she retains her husband's domicile, i.e., Batac,
Ilocos Norte, until she makes an actual change thereof. I find this proposition quite
untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with
another, i.e., Batac, Ilocos Norte, upon her marriage in 1954 with then Congressman
Marcos. By legal fiction she followed the domicile of her husband. In my view, the reason
for the law is for the spouses to fully and effectively perform their marital duties and
obligations to one another.
1
The question of domicile, however, is not affected by the
fact that it was the legal or moral duty of the individual to reside in a given place (28
C.J.S. 11). Thus, while the wife retains her marital domicile so long as the marriage
subsists, she automatically loses it upon the latter's termination, for the reason behind
the law then ceases. Otherwise, petitioner, after her marriage was ended by the death of
her husband, would be placed in a quite absurd and unfair situation of having been freed
from all wifely obligations yet made to hold on to one which no longer serves any
meaningful purpose.
It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte
upon her husband's death without even signifying her intention to that effect. It is for the
private respondent to prove, not for petitioner to disprove, that petitioner has effectively
abandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear
rule is that it is the party (herein private respondent) claiming that a person has
abandoned or lost his residence of origin who must show and prove preponderantly such
abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16), because the
presumption is strongly in favor of an original or former domicile, as against an acquired
one (28 C.J.S. 16). Private respondent unfortunately failed to discharge this burden as
the record is devoid of convincing proof that petitioner has acquired whether voluntarily
or involuntarily, a new domicile to replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has complied with the
constitutional one-year residence requirement. After her exile abroad, she returned to
the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the Presidential Commission
on Good Government which sequestered her residential house and other properties
forbade her necessitating her transient stay in various places in Manila (Affidavit p.6,
attached as Annex I of the Petition). In 1992, she ran for the position of president writing
in her certificate of candidacy her residence as San Juan, Metro Manila. After her loss
therein, she went back to Tacloban City, acquired her residence certificate
2
and resided
with her brother in San Jose. She resided in San Jose, Tacloban City until August of
1994 when she was allowed by the PCGG to move and reside in her sequestered
residential house in Olot, Tolosa, Leyte (Annex I, p. 6).
3
It was in the same month of
August when she applied for the cancellation of her previous registration in San Juan,
Metro Manila in order to register anew as voter of Olot, Tolosa, Leyte, which she did on
January 28, 1995. From this sequence of events, I find it quite improper to use as the
reckoning period of the one-year residence requirement the date when she applied for
the cancellation of her previous registration in San Juan, Metro Manila. The fact which
private respondent never bothered to disprove is that petitioner transferred her residence
after the 1992 presidential election from San Juan, Metro Manila to San Jose, Tacloban
City, and resided therein until August of 1994. She later transferred to Olot, Tolosa,
Leyte (Annex I, p. 7). It appearing that both Tacloban City and Tolosa, Leyte are within
the First Congressional District of Leyte, it indubitably stands that she had more than a
year of residence in the constituency she sought to be elected. Petitioner, therefore, has
satisfactorily complied with the one-year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J ., separate opinion:
Petitioner has appealed to this Court for relief after the COMELEC ruled that she was
disqualified from running for Representative of her District and that, in the event that she
should, nevertheless, muster a majority vote, her proclamation should be suspended.
Not by a straightforward ruling did the COMELEC pronounce its decision as has been its
unvarying practice in the past, but by a startling succession of "reverse somersaults."
Indicative of its shifting stance vis-a-vis petitioner's certificate of candidacy were first, the
action of its Second Division disqualifying her and canceling her original Certificate of
Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the COMELEC en
banc of her Motion for Reconsideration on May 7, 1995, a day before the election; then
because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that
the results of the canvass should show that she obtained the highest number of votes
(obviously noting that petitioner had won overwhelmingly over her opponent), but almost
simultaneously reversing itself by directing that even if she wins, her proclamation
should nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by the case at bench is
the interpretation to be given to the one-year residency requirement imposed by the
Constitution on aspirants for a Congressional seat.
1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile"
for election purposes, it is important to determine whether petitioner's domicile was in the
First District of Leyte and if so, whether she had resided there for at least a period of one
year. Undisputed is her domicile of origin, Tacloban, where her parents lived at the time
of her birth. Depending on what theory one adopts, the same may have been changed
when she married Ferdinand E. Marcos, then domiciled in Batac, by operation of law.
Assuming it did, his death certainly released her from the obligation to live with him at
the residence fixed by him during his lifetime. What may confuse the layman at this point
is the fact that the term "domicile" may refer to "domicile of origin," "domicile of choice,"
or "domicile by operation of law," which subject we shall not belabor since it has been
amply discussed by the ponente and in the other separate opinions.
In any case, what assumes relevance is the divergence of legal opinion as to the effect
of the husband's death on the domicile of the widow. Some scholars opine that the
widow's domicile remains unchanged; that the deceased husband's wishes perforce still
bind the wife he has left behind. Given this interpretation, the widow cannot possibly go
far enough to sever the domiciliary tie imposed by her husband.
It is bad enough to interpret the law as empowering the husband unilaterally to fix the
residence or domicile of the family, as laid down in the Civil Code,
2
but to continue
giving obeisance to his wishes even after the rationale underlying the mutual duty of the
spouses to live together has ceased, is to close one's eyes to the stark realities of the
present.
At the other extreme is the position that the widow automatically reverts to her domicile
of origin upon the demise of her husband. Does the law so abhor a vacuum that the
widow has to be endowed somehow with a domicile? To answer this question which is
far from rhetorical, one will have to keep in mind the basic principles of domicile.
Everyone must have a domicile. Then one must have only a single domicile for the same
purpose at any given time. Once established, a domicile remains until a new one is
acquired, for no person lives who has no domicile, as defined by the law be is subject to.
At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction,
rendered more murky by the conflicting opinions of foreign legal authorities. This being
the state of things, it is imperative as it is opportune to illumine the darkness with the
beacon light of truth, as dictated by experience and the necessity of according petitioner
her right to choose her domicile in keeping with the enlightened global trend to recognize
and protect the human rights of women, no less than men.
Admittedly, the notion of placing women at par with men, insofar as civil, political and
social rights are concerned, is a relatively recent phenomenon that took seed only in the
middle of this century. It is a historical fact that for over three centuries, the Philippines
had been colonized by Spain, a conservative, Catholic country which transplanted to our
shores the Old World cultures, mores and attitudes and values. Through the imposition
on our government of the Spanish Civil Code in 1889, the people, both men and women,
had no choice but to accept such concepts as the husband's being the head of the
family and the wife's subordination to his authority. In such role, his was the right to
make vital decisions for the family. Many instances come to mind, foremost being what
is related to the issue before us, namely, that "the husband shall fix the residence of the
family."
3
Because he is made responsible for the support of the wife and the rest of the
family,
4
he is also empowered to be the administrator of the conjugal property, with a
few exceptions
5
and may, therefore, dispose of the conjugal partnership property for the
purposes specified under the law;
6
whereas, as a general rule, the wife cannot bind the
conjugal partnership without the husband's consent.
7
As regards the property pertaining
to the children under parental authority, the father is the legal administrator and only in
his absence may the mother assume his powers.
8
Demeaning to the wife's dignity are
certain strictures on her personal freedoms, practically relegating her to the position of
minors and disabled persons. To illustrate a few: The wife cannot, without the husband's
consent, acquire any gratuitous title, except from her ascendants, descendants, parents-
in-law, and collateral relatives within the fourth degree.
9
With respect to her
employment, the husband wields a veto power in the case the wife exercises her
profession or occupation or engages in business, provided his income is sufficient for the
family, according to its social standing and his opposition is founded on serious and valid
grounds.
10
Most offensive, if not repulsive, to the liberal-minded is the effective
prohibition upon a widow to get married till after three hundred days following the death
of her husband, unless in the meantime, she has given birth to a child.
11
The mother
who contracts a subsequent marriage loses the parental authority over her children,
unless the deceased husband, father of the latter, has expressly provided in his will that
his widow might marry again, and has ordered that in such case she should keep and
exercise parental authority over their children.
12
Again, an instance of a husband's
overarching influence from beyond the grave.
All these indignities and disabilities suffered by Filipino wives for hundreds of years
evoked no protest from them until the concept of human rights and equality between and
among nations and individuals found hospitable lodgment in the United Nations Charter
of which the Philippines was one of the original signatories. By then, the Spanish
"conquistadores" had been overthrown by the American forces at the turn of the century.
The bedrock of the U.N. Charter was firmly anchored on this credo: "to reaffirm faith in
the fundamental human rights, in the dignity and worth of the human person, in the equal
rights of men and women." (Emphasis supplied)
It took over thirty years before these egalitarian doctrines bore fruit, owing largely
to the burgeoning of the feminist movement. What may be regarded as the
international bill of rights for women was implanted in the Convention on the
Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by
the U.N. General Assembly which entered into force as an international treaty on
September 3, 1981. In ratifying the instrument, the Philippines bound itself to
implement its liberating spirit and letter, for its Constitution, no less, declared that
"The Philippines. . . adopts the generally accepted principles of international law
as part of the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations."
13
One such principle
embodied in the CEDAW is granting to men and women "the same rights with
regard to the law relating to the movement of persons and the freedom to choose
their residence and domicile."
14
(Emphasis supplied).
CEDAW's pro-women orientation which was not lost on Filipino women was reflected in
the 1987 Constitution of the Philippines and later, in the Family Code,
15
both of which
were speedily approved by the first lady President of the country, Corazon C. Aquino.
Notable for its emphasis on the human rights of all individuals and its bias for equality
between the sexes are the following provisions: "The State values the dignity of every
human person and guarantees full respect for human rights"
16
and "The State
recognizes the role of women in nation-building, and shall ensure the fundamental
equality before the law of women and men."
17

A major accomplishment of women in their quest for equality with men and the
elimination of discriminatory provisions of law was the deletion in the Family Code of
almost all of the unreasonable strictures on wives and the grant to them of personal
rights equal to that of their husbands. Specifically, the husband and wife are now
giventhe right jointly to fix the family domicile;
18
concomitant to the spouses' being jointly
responsible for the support of the family is the right and duty of both spouses to manage
the household;
19
the administration and the enjoyment of the community property shall
belong to both spouses jointly;
20
the father and mother shall now jointly exercise legal
guardianship over the property of their unemancipated common child
21
and several
others.
Aware of the hiatus and continuing gaps in the law, insofar as women's rights are
concerned, Congress passed a law popularly known as "Women in Development and
Nation Building Act"
22
Among the rights given to married women evidencing their
capacity to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans and execute security and
credit arrangements under the same conditions as men;
(2) Women shall have equal access to all government and private sector programs
granting agricultural credit, loans and non material resources and shall enjoy equal
treatment in agrarian reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into insurance
contracts; and
(4) Married women shall have rights equal to those of married men in applying for
passports, secure visas and other travel documents, without need to secure the consent
of their spouses.
As the world draws the curtain on the Fourth World Conference of Women in Beijing, let
this Court now be the first to respond to its clarion call that "Women's Rights are Human
Rights" and that "All obstacles to women's full participation in decision-making at all
levels, including the family" should be removed. Having been herself a Member of the
Philippine Delegation to the International Women's Year Conference in Mexico in 1975,
this writer is only too keenly aware of the unremitting struggle being waged by women
the world over, Filipino women not excluded, to be accepted as equals of men and to
tear down the walls of discrimination that hold them back from their proper places under
the sun.
In light of the inexorable sweep of events, local and global, legislative, executive and
judicial, according more rights to women hitherto denied them and eliminating whatever
pockets of discrimination still exist in their civil, political and social life, can it still be
insisted that widows are not at liberty to choose their domicile upon the death of their
husbands but must retain the same, regardless?
I submit that a widow, like the petitioner and others similarly situated, can no longer be
bound by the domicile of the departed husband, if at all she was before. Neither does
she automatically revert to her domicile of origin, but exercising free will, she may opt to
reestablish her domicile of origin. In returning to Tacloban and subsequently, to
Barangay Olot, Tolosa, both of which are located in the First District of Leyte, petitioner
amply demonstrated by overt acts, her election of a domicile of choice, in this case, a
reversion to her domicile of origin. Added together, the time when she set up her
domicile in the two places sufficed to meet the one-year requirement to run as
Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the petition.
VITUG, J ., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets
up ideals and directions and render steady our strides hence. It only looks back so as to
ensure that mistakes in the past are not repeated. A compliant transience of a
constitution belittles its basic function and weakens its goals. A constitution may well
become outdated by the realities of time. When it does, it must be changed but while it
remains, we owe it respect and allegiance. Anarchy, open or subtle, has never been, nor
must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or
the Constitution might lose its very essence.
Constitutional provisions must be taken to be mandatory in character unless, either by
express statement or by necessary implication, a different intention is manifest (see
Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of
the fundamental law. These provisions read:
Sec. 6. No person shall be a Member of the House of Representatives
unless he is a natural-born citizen of the Philippines and, on the day of
the election, is at least twenty-five years of age, able to read and write,
and, except the party-list representatives, a registered voter in the district
in which he shall be elected, and a resident thereof for a period of not less
than one year immediately preceding the day of the election.
Sec. 17. The Senate and the House of Representatives shall each have
an Electoral Tribunal which shall be the sole judge of all contests relating
to the election, returns, and qualifications of their respective Members.
Each Electoral Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be designated by the
Chief Justice, and the remaining six shall be Members of the Senate or
the House of Representatives, as the case may be, who shall be chosen
on the basis of proportional representation from the political parties and
the parties or organizations registered under the party-list system
represented therein. The senior Justice in the Electoral Tribunal shall be
its Chairman.
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and
administer "all laws and regulations relative to the conduct of election . . ." (Art. IX, C,
Sec. 2, Constitution) that, there being nothing said to the contrary, should include its
authority to pass upon the qualification and disqualification prescribed by law
ofcandidates to an elective office. Indeed, pre-proclamation controversies are expressly
placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3,
Constitution).
The matter before us specifically calls for the observance of the constitutional one-year
residency requirement. The issue (whether or not there is here such compliance), to my
mind, is basically a question of fact or at least inextricably linked to such determination.
The findings and judgment of the COMELEC, in accordance with the long established
rule and subject only to a number of exceptions under the basic heading of "grave abuse
of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be a plain
matter. Generally, the term "residence" has a broader connotation that may
mean permanent (domicile), official (place where one's official duties may require him to
stay) or temporary (the place where he sojourns during a considerable length of time).
For civil law purposes, i.e., as regards the exercise of civil rights and the fulfillment of
civil obligations, the domicile of a natural person is the place of his habitual residence
(see Article 50, Civil Code). In election cases, the controlling rule is that heretofore
announced by this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban City
(226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous
terms, thus: "(t)he term "residence" as used in the election law is
synonymous with "domicile," which imports not only an intention to reside
in a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention." "Domicile" denotes a fixed
permanent residence to which when absent for business or pleasure, or
for like reasons, one intends to return. . . . . Residence thus acquired,
however, may be lost by adopting another choice of domicile. In order, in
turn, to acquire a new domicile by choice, there must concur (1)
residence or bodily presence in the new locality, (2) an intention to remain
there, and (3) an intention to abandon the old domicile. In other words,
there must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be
for an indefinite period of time; the change of residence must be
voluntary; and the residence at the place chosen for the new domicile
must be actual.
Using the above tests, I am not convinced that we can charge the COMELEC
with having committed grave abuse of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends when the
jurisdiction of the Electoral Tribunal concerned begins. It signifies that the protestee must
have theretofore been duly proclaimed and has since become a "member" of the Senate
or the House of Representatives. The question can be asked on whether or not the
proclamation of a candidate is just a ministerial function of the Commission on Elections
dictated solely on the number of votes cast in an election exercise. I believe, it is not. A
ministerial duty is an obligation the performance of which, being adequately defined,
does not allow the use of further judgment or discretion. The COMELEC, in its particular
case, is tasked with the full responsibility of ascertaining all the facts and conditions such
as may be required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any undue encroachment
on the ultimate exercise of authority by the Electoral Tribunals on matters which, by no
less than a constitutional fiat, are explicitly within their exclusive domain. The nagging
question, if it were otherwise, would be the effect of the Court's peremptory
pronouncement on the ability of the Electoral Tribunal to later come up with its own
judgment in a contest "relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the applicability to
this case of Section 6 of Republic Act No. 6646, in relation to Section 72 of Batas
Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is
strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. The Commission
and the courts shall give priority to cases of disqualification by reason of
violation of this Act to the end that a final decision shall be rendered not
later than seven days before the election in which the disqualification is
sought.
Any candidate who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be counted.
Nevertheless, if for any reason, a candidate is not declared by final,
judgment before an election to be disqualified, and he is voted for and
receives the winning number of votes in such election, his violation of the
provisions of the preceding sections shall not prevent his proclamation
and assumption to office.
I realize that in considering the significance of the law, it may be preferable to look for
not so much the specific instances they ostensibly would cover as the principle they
clearly convey. Thus, I will not scoff at the argument that it should be sound to say that
votes cast in favor of the disqualified candidate, whenever ultimately declared as such,
should not be counted in his or her favor and must accordingly be considered to be stray
votes. The argument, nevertheless, is far outweighed by the rationale of the now
prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil. 238
[1912]) which, although later abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]),
and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the interim
case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1
(1989]), Abella (201 SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most
recently, Benito (235 SCRA 436 [1994]) rulings. Benito vs.Comelec was a unanimous
decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa,
Justices Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were on official leave). For easy
reference, let me quote from the first Labo decision:
Finally, there is the question of whether or not the private respondent,
who filed the quo warrantopetition, can replace the petitioner as mayor.
He cannot. The simple reason is that as he obtained only the second
highest number of votes in the election, he was obviously not the choice
of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on
Elections, (137 SCRA 740) decided in 1985. In that case, the candidate
who placed second was proclaimed elected after the votes for his winning
rival, who was disqualified as a turncoat and considered a non-candidate,
were all disregard as stray. In effect, the second placer won by default.
That decision was supported by eight members of the Court then,
(Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De
la Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting
(Teehankee, Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and
another two reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was
on official leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should
be reversed in favor of the earlier case of Geronimo v. Ramos, (136
SCRA 435) which represents the more logical and democratic rule. That
case, which reiterated the doctrine first announced in 1912 in Topacio
v.Paredes, (23 Phil. 238) was supported by ten members of the Court,
(Gutierrez, Jr., ponente, with Teehankee, Abad Santos, Melencio-
Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ.,
concurring) without any dissent, although one reserved his vote,
(Makasiar, J.) another took no part, (Aquino, J.) and two others were on
leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of
the constitutionally guaranteed right to suffrage if a
candidate who has not acquired the majority or plurality of
votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which
have positively declared through their ballots that they do
not choose him.
Sound policy dictates that public elective offices are filled
by those who have received the highest number of votes
cast in the election for that office, and it is a fundamental
idea in all republican forms of government that no one can
be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the
legal votes cast in the election. (20 Corpus Juris 2nd, S
243, p. 676.)
The fact that the candidate who obtained the highest number of votes is
later declared to be disqualified or not eligible for the office to which he
was elected does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of the elective
office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there. However,
in the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere belief
that the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J ., separate opinion:
In my view the issue in this case is whether the Commission on Elections has the power
to disqualify candidates on the ground that they lack eligibility for the office to which they
seek to be elected. I think that it has none and that the qualifications of candidates may
be questioned only in the event they are elected, by filing a petition forquo warranto or
an election protest in the appropriate forum, not necessarily in the COMELEC but, as in
this case, in the House of Representatives Electoral Tribunal. That the parties in this
case took part in the proceedings in the COMELEC is of no moment. Such proceedings
were unauthorized and were not rendered valid by their agreement to submit their
dispute to that body.
The various election laws will be searched in vain for authorized proceedings for
determining a candidate's qualifications for an office before his election. There are none
in the Omnibus Election Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987
(R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166).
There are, in other words, no provisions for pre-proclamation contests but only election
protests or quo warranto proceedings against winning candidates.
To be sure, there are provisions denominated for "disqualification," but they are not
concerned with a declaration of the ineligibility of a candidate. These provisions are
concerned with the incapacity (due to insanity, incompetence or conviction of an offense)
of a person either to be a candidate or to continue as a candidate for public office. There
is also a provision for the denial or cancellation of certificates of candidacy, but it applies
only to cases involving false representations as to certain matters required by law to be
stated in the certificates.
These provisions are found in the following parts of the Omnibus Election Code:
12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense for
which he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary
pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity or
incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he
again becomes disqualified. (Emphasis added)
68. Disqualifications. Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court
guilty of, or found by the Commission of having (a) given money or other
material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v,
and cc, sub-paragraph 6, shall be disqualifiedfrom continuing as a
candidate, or if he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a foreign country shall
not be qualified to run for any elective office under this Code, unless said
person has waived his status as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for
in the election laws. (Emphasis added)
78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to cancel
a certificate of candidacy may be filed by any person exclusively on the
ground that any material representation contained therein as required
under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and
the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and; upon motion for the complainant or any
intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is
strong. (Emphasis added).
7. Petition to Deny Due Course to or Cancel a Certificate of Candidacy.
The procedure hereinabove provided shall apply to petitions to deny
due course to or cancel a certificate of candidacy as provided in Section
78 of Batas Pambansa Blg. 881.
and the Local Government Code of 1991 (R.A. No. 7160):
40. Disqualifications. The following persons are disqualified from
running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance
to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired
the right to reside abroad and continue to avail of the same right after the
effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while
entitled "For Cancellation and Disqualification," contained no allegation that private
respondent Imelda Romualdez-Marcos made material representations in her certificate
of candidacy which were false, it sought her disqualification on the ground that "on the
basis of her Voter Registration Record and Certificate of Candidacy, [she] is disqualified
from running for the position of Representative, considering that on election day, May 8,
1995, [she] would have resided less than ten (10) months in the district where she is
seeking to be elected." For its part, the COMELEC's Second Division, in its resolution of
April 24, 1995, cancelled her certificate of candidacy and corrected certificate of
candidacy on the basis of its finding that petitioner is "not qualified to run for the position
of Member of the House of Representatives for the First Legislative District of Leyte" and
not because of any finding that she had made false representations as to material
matters in her certificate of candidacy.
Montejo's petition before the COMELEC was therefore not a petition for cancellation of
certificate of candidacy under 78 of the Omnibus Election Code, but essentially a
petition to declare private respondent ineligible. It is important to note this, because, as
will presently be explained, proceedings under 78 have for their purpose to disqualify a
person from being a candidate, whereas quo warranto proceedings have for their
purpose to disqualify a person from holding public office. Jurisdiction over quo
warranto proceedings involving members of the House of Representatives is vested in
the Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for the cancellation of
certificates of candidacy, the allegations were that the respondent candidates had
made false representations in their certificates of candidacy with regard to
their citizenship,
1
age,
2
or residence.
3
But in the generality of cases in which this Court
passed upon the qualifications of respondents for office, this Court did so in the context
of election protests
4
or quo warranto proceedings
5
filed after the proclamation of the
respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized proceeding for
determining before electionthe qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no
necessity for determining his eligibility for the office. In contrast, whether an individual
should be disqualified as a candidate for acts constituting election offenses (e.g., vote
buying, over spending, commission of prohibited acts) is a prejudicial question which
should be determined lest he wins because of the very acts for which his disqualification
is being sought. That is why it is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has been voted for, the votes in his
favor will not be counted; and if for some reason he has been voted for and he has won,
either he will not be proclaimed or his proclamation will be set aside.
6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship
or, as in this case, his domicile, may take a long time to make, extending beyond the
beginning of the term of the office. This is amply demonstrated in the companion case
(G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's
residence was still pending in the COMELEC even after the elections of May 8, 1995.
This is contrary to the summary character of proceedings relating to certificates of
candidacy. That is why the law makes the receipt of certificates of candidacy a
ministerial duty of the COMELEC and its officers.
7
The law is satisfied if candidates state
in their certificates of candidacy that they are eligible for the position which they seek to
fill, leaving the determination of their qualifications to be made after the election and only
in the event they are elected. Only in cases involving charges of false representations
made in certificates of candidacy is the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections
for President, Vice President, Senators and members of the House of Representatives.
(R.A. No. 7166, 15) The purpose is to preserve the prerogatives of the House of
Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the
Constitution of the election, returns and qualifications of members of Congress or of the
President and Vice President, as the case may be.
By providing in 253 for the remedy of quo warranto for determining an elected official's
qualifications after the results of elections are proclaimed, while being conspicuously
silent about a pre-proclamation remedy based on the same ground, the Omnibus
Election Code, or OEC, by its silence underscores the policy of not authorizing any
inquiry into the qualifications of candidates unless they have been elected.
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of
candidates, the COMELEC amended its rules on February 15, 1993 so as to provide in
Rule 25, 1 the following:
Grounds for disqualification. Any candidate who does not possess all
the qualifications of a candidate as provided for by the Constitution or by
existing law or who commits any act declared by law to be grounds for
disqualification may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be
supplied by a mere rule. Such an act is equivalent to the creation of a cause of action
which is a substantive matter which the COMELEC, in the exercise of its rulemaking
power under Art. IX, A, 6 of the Constitution, cannot do. It is noteworthy that the
Constitution withholds from the COMELEC even the power to decide cases involving the
right to vote, which essentially involves an inquiry into qualifications based on age,
residence and citizenship of voters. (Art. IX, C, 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into
grounds for disqualification is contrary to the evident intention of the law. For not only in
their grounds but also in their consequences are proceedings for "disqualification"
different from those for a declaration of "ineligibility." "Disqualification" proceedings, as
already stated, are based on grounds specified in 12 and 68 of the Omnibus Election
Code and in 40 of the Local Government Code and are for the purpose of barring an
individual from becoming a candidate or from continuing as a candidate for public office.
In a word, their purpose is to eliminate a candidate from the race either from the start or
during its progress. "Ineligibility," on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for holding public office and
the purpose of the proceedings for declaration of ineligibility is to remove the incumbent
from office.
Consequently, that an individual possesses the qualifications for a public office does not
imply that he is not disqualified from becoming a candidate or continuing as a candidate
for a public office and vice versa. We have this sort of dichotomy in our Naturalization
Law. (C.A. No. 473) That an alien has the qualifications prescribed in 2 of the law does
not imply that he does not suffer from any of disqualifications provided in 4.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of
prohibited election practices or offenses, like other pre-proclamation remedies, are
aimed at the detestable practice of "grabbing the proclamation and prolonging the
election protest,"
8
through the use of "manufactured" election returns or resort to other
trickery for the purpose of altering the results of the election. This rationale does not
apply to cases for determining a candidate's qualifications for office before the election.
To the contrary, it is the candidate against whom a proceeding for disqualification is
brought who could be prejudiced because he could be prevented from assuming office
even though in end he prevails.
To summarize, the declaration of ineligibility of a candidate may only be sought in an
election protest or action forquo warranto filed pursuant to 253 of the Omnibus Election
Code within 10 days after his proclamation. With respect to elective local officials (e.g.,
Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.) such
petition must be filed either with the COMELEC, the Regional Trial Courts, or Municipal
Trial Courts, as provided in Art. IX, C, 2(2) of the Constitution. In the case of the
President and Vice President, the petition must be filed with the Presidential Electoral
Tribunal (Art. VII, 4, last paragraph), and in the case of the Senators, with the Senate
Electoral Tribunal, and in the case of Congressmen, with the House of Representatives
Electoral Tribunal. (Art. VI, 17) There is greater reason for not allowing before the
election the filing of disqualification proceedings based on alleged ineligibility in the case
of candidates for President, Vice President, Senators and members of the House of
Representatives, because of the same policy prohibiting the filing of pre-proclamation
cases against such candidates.
For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA
No. 95-009; that its proceedings in that case, including its questioned orders, are void;
and that the eligibility of petitioner Imelda Romualdez-Marcos for the office of
Representative of the First District of Leyte may only be inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the proceedings of the Commission
on Elections in SPA No. 95-009, including its questioned orders doted April 24, 1995,
May 7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner Imelda Romualdez-
Marcos ineligible and ordering her proclamation as Representative of the First District of
Leyte suspended. To the extent that Rule 25 of the COMELEC Rules of Procedure
authorizes proceedings for the disqualification of candidates on the ground of ineligibility
for the office, it should considered void.
The provincial board of canvassers should now proceed with the proclamation of
petitioner.
Narvasa, C.J., concurs.
PADILLA, J ., dissenting:
I regret that I cannot join the majority opinion as expressed in the well-written ponencia
of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the inquiry must begin
and end with the provision itself. The controversy should not be blurred by what, to me,
are academic disquisitions. In this particular controversy, the Constitutional provision on
point states that "no person shall be a member of the House of Representatives
unless he is a natural-born citizen of the Philippines, and on the day of the election, is at
least twenty-five (25) years of age, able to read and write, and except the party list
representatives, a registered voter in the district in which he shall be elected, and
a resident thereof for a period of not less than one year immediately preceding the day
of the election." (Article VI, section 6)
It has been argued that for purposes of our election laws, the term residence has been
understood as synonymous with domicile. This argument has been validated by no less
than the Court in numerous cases
1
where significantly the factual circumstances clearly
and convincingly proved that a person does not effectively lose his domicile of origin if
the intention to reside therein is manifest with his personal presence in the
place, coupled with conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to conceive of different modalities
within which the phrase "a resident thereof (meaning, the legislative district) for a period
of not less than one year" would fit.
The first instance is where a person's residence and domicile coincide in which case a
person only has to prove that he has been domiciled in a permanent location for not less
than a year before the election.
A second situation is where a person maintains a residence apart from his domicile in
which case he would have the luxury of district shopping, provided of course, he satisfies
the one-year residence period in the district as the minimum period for eligibility to the
position of congressional representative for the district.
In either case, one would not be constitutionally disqualified for abandoning his
residence in order to return to his domicile of origin, or better still, domicile of choice;
neither would one be disqualified for abandoning altogether his domicile in favor of his
residence in the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a person maintains
several residences in different districts. Since his domicile of origin continues as an
option as long as there is no effective abandonment (animus non revertendi), he can
practically choose the district most advantageous for him.
All these theoretical scenarios, however, are tempered by the unambiguous limitation
that "for a period of not less than one year immediately preceding the day of the
election", he must be a resident in the district where he desires to be elected.
To my mind, the one year residence period is crucial regardless of whether or not the
term "residence" is to be synonymous with "domicile." In other words, the candidate's
intent and actual presence in one district must in allsituations satisfy the length of time
prescribed by the fundamental law. And this, because of a definite Constitutional
purpose. He must be familiar with the environment and problems of a district he intends
to represent in Congress and the one-year residence in said district would be the
minimum period to acquire such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the
now assailed decision of the Comelec 2nd Division dated 24 April 1995 (as affirmed by
the Comelec en banc)
In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She studied
in the Holy Infant Academy in Tacloban from 1938 to 1948 when she
graduated from high school. She pursued her college studies in St. Paul's
College, now Divine Word University of Tacloban, where she earned her
degree in Education. Thereafter, she taught in the Leyte Chinese High
School, still in Tacloban City. In 1952 she went to Manila to work with her
cousin, the late Speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-president Ferdinand Marcos
when he was still a congressman of Ilocos Norte. She lived with him in
Batac, Ilocos Norte and registered there as a voter. When her husband
was elected Senator of the Republic in 1959, she and her husband lived
together in San Juan, Rizal where she registered as a voter. In 1965
when her husband was elected President of the Republic of the
Philippines, she lived with him in Malacanang Palace and registered as a
voter in San Miguel, Manila.
During the Marcos presidency, respondent served as a Member of the
Batasang Pambansa, Minister of Human Settlements and Governor of
Metro Manila. She claimed that in February 1986, she and her family
were abducted and kidnapped to Honolulu, Hawaii. In November 1991,
she came home to Manila. In 1992 respondent ran for election as
President of the Philippines and filed her Certificate of Candidacy wherein
she indicated that she is a resident and registered voter of San Juan,
Metro Manila. On August 24, 1994, respondent filed a letter with the
election officer of San Juan, Metro Manila, requesting for cancellation of
her registration in the Permanent List of Voters in Precinct No. 157 of San
Juan, Metro Manila, in order that she may be re-registered or transferred
to Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On August 31, 1994,
respondent filed her Sworn Application for Cancellation of Voter's
Previous Registration (Annex 2-C, Answer) stating that she is a duly
registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she
intends to register at Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent registered as a voter at Precinct No. 18-
A of Olot, Tolosa, Leyte. She filed with the Board of Election Inspectors
CE Form No. 1, Voter Registration Record No. 94-3349772, wherein she
alleged that she has resided in the municipality of Tolosa for a period of 6
months (Annex A, Petition).
On March 8, 1995, respondent filed with the Office of the Provincial
Election Supervisor, Leyte, a Certificate of Candidacy for the position of
Representative of the First District of Leyte wherein she also alleged that
she has been a resident in the constituency where she seeks to be
elected for a period of 7 months. The pertinent entries therein are as
follows:
7. PROFESSION OR OCCUPATION:
House-wife/ Teacher/ Social Worker
8. RESIDENCE (complete address): Brgy.
Olot, Tolosa, Leyte
Post Office Address for election purposes:
Brgy. Olot, Tolosa, Leyte
9. RESIDENCE IN THE CONSTITUENCY
WHEREIN I SEEK TO BE ELECTED
IMMEDIATELY PRECEDING ELECTION:
________ Years SevenMonths
10. I AM NOT A PERMANENT RESIDENT
OF, OR IMMIGRANT TO, A FOREIGN
COUNTRY.
THAT I AM ELIGIBLE for said office; That I will support and defend the
Constitution of the Republic of the Philippines and will maintain true faith
and allegiance thereto; That I will obey the laws, legal orders and decrees
promulgated by the duly-constituted authorities; That the obligation
imposed by my oath is assumed voluntarily, without mental reservation or
purpose of evasion; and That the facts stated herein are true to the best
of my knowledge.
(Sgd.) Imelda
Romualdez-
Marcos
(Signature of
Candidate)
2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the
decisive component or seed of her disqualification. It is contained in her answer under
oath of "seven months" to the query of "residence in the constituency wherein I seek to
be elected immediately preceding the election."
It follows from all the above that the Comelec committed no grave abuse of discretion in
holding that petitioner is disqualified from the position of representative for the 1st
congressional district of Leyte in the elections of 8 May 1995, for failure to meet the "not
less than one-year residence in the constituency (1st district, Leyte) immediately
preceding the day of election (8 May 1995)."
Having arrived at petitioner's disqualification to be a representative of the first district of
Leyte, the next important issue to resolve is whether or not the Comelec can order the
Board of Canvassers to determine and proclaim the winner out of the remaining
qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this Court in the case of Labo
vs. Comelec, G.R. 86564, August 1, 1989, 176 SCRA 1 which gave the rationale as laid
down in the early 1912 case of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election for
that office, and it is a fundamental idea in all republican forms of
government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal
votes cast in the election. (20 Corpus Juris 2nd, S 243, p. 676)
The fact that the candidate who obtained the highest number of votes is
later declared to be disqualified or not eligible for the office to which he
was elected does not necessarily entitle the candidate who obtained the
second highest number of votes to be declared the winner of the elective
office. The votes cast for a dead, disqualified, or non-eligible person may
not be valid to vote the winner into office or maintain him there.
However, in the absence of a statute which clearly asserts a contrary
political and legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was alive, qualified, or eligible, they
should not be treated as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System
and for other purposes) (84 O.G. 905, 22 February 1988) it is provided that:
. . . Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry or protest and,
upon motion of the complainant or any intervenor, may, during the
pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the plain and unambiguous
meaning of the provision quoted above. As the law now stands, the legislative policy
does not limit its concern with the effect of a final judgement of disqualification
only before the election, but even during or after the election. The law is clear that in all
situations, the votes cast for a disqualified candidate SHALL NOT BE COUNTED. The
law has also validated the jurisdiction of the Court or Commission on Election to
continue hearing the petition for disqualification in case a candidate is voted for and
receives the highest number of votes, if for any reason, he is not declared by final
judgment before an election to be disqualified.
Since the present case is an after election scenario, the power to suspend proclamation
(when evidence of his guilt is strong) is also explicit under the law. What happens then
when after the elections are over, one is declared disqualified? Then, votes cast for him
"shall not be counted" and in legal contemplation, he no longer received the highest
number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the
winner simply because a "winning candidate is disqualified," but that the law considers
him as the candidate who had obtained the highest number of votes as a result of the
votes cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason
why this Court should not re-examine and consequently abandon the doctrine in the Jun
Labo case. It has been stated that "the qualifications prescribed for elective office cannot
be erased by the electorate alone. The will of the people as expressed through the ballot
cannot cure the vice of ineligibility" most especially when it is mandated by no less than
the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of
Canvassers of Leyte to proclaim the candidate receiving the highest number of votes,
from among the qualified candidates, as the duly elected representative of the 1st district
of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J ., dissenting:
While I agree with same of the factual bases of the majority opinion, I cannot arrive
conjointly at the same conclusion drawn therefrom Hence, this dissent which assuredly
is not formulated "on the basis of the personality of a petitioner in a case."
I go along with the majority in their narration of antecedent facts, insofar as the same are
pertinent to this case, and which I have simplified as follows:
1. Petitioner, although born in Manila, resided during her childhood in the
present Tacloban City, she being a legitimate daughter of parents who
appear to have taken up permanent residence therein. She also went to
school there and, for a time, taught in one of the schools in that city.
2. When she married then Rep. Ferdinand E. Marcos who was then
domiciled in Batac, Ilocos Norte, by operation of law she acquired a new
domicile in that place in 1954.
3. In the successive years and during the events that happened
thereafter, her husband having been elected as a Senator and then as
President, she lived with him and their family in San Juan, Rizal and then
in Malacanang Palace in San Miguel, Manila.
4. Over those years, she registered as a voter and actually voted in
Batac, Ilocos Norte, then in San Juan, Rizal, and also in San Miguel,
Manila, all these merely in the exercise of the right of suffrage.
5. It does not appear that her husband, even after he had assumed those
lofty positions successively, ever abandoned his domicile of origin in
Batac, Ilocos Norte where he maintained his residence and invariably
voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and the
sojourn of the Marcos family in Honolulu, Hawaii, U.S.A., she eventually
returned to the Philippines in 1991 and resided in different places which
she claimed to have been merely temporary residences.
7. In 1992, petitioner ran for election as President of the Philippines and
in her certificate of candidacy she indicated that she was then a
registered voter and resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for the cancellation of her
registration in the Permanent List of Voters in Precinct No. 157 of San
Juan, Metro Manila in order that she may "be re-registered or transferred
to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed this up
with her Sworn Application for Cancellation of Voter's Previous
Registration wherein she stated that she was a registered voter in
Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that
she intended to register in Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner registered as a voter at Precinct No.
18-A of Olot, Tolosa, Leyte, for which purpose she filed with the therein
Board of Election Inspectors a voter's registration record form alleging
that she had resided in that municipality for six months.
10. On March 8, 1995, petitioner filed her certificate of candidacy for the
position of Representative of the First District of Leyte wherein she
alleged that she had been a resident for "Seven Months" of the
constituency where she sought to be elected.
11. On March 29, 1995, she filed an "Amended/Corrected Certificate of
Candidacy" wherein her answer in the original certificate of candidacy to
item "8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK, TO BE
ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed
or replaced with a new entry reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of her candidacy, petitioner had
complied with the residency requirement of one year as mandated by no less than
Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a dissertation on the
difference between residence and domicile. We have had enough of that and I
understand that for purposes of political law and, for that matter of international law,
residence is understood to be synonymous with domicile. That is so understood in our
jurisprudence and in American Law, in contradistinction to the concept of residence for
purposes of civil, commercial and procedural laws whenever an issue thereon is relevant
or controlling.
Consequently, since in the present case the question of petitioner's residence is
integrated in and inseparable from her domicile, I am addressing the issue from the
standpoint of the concept of the latter term, specifically its permutations into the domicile
of origin, domicile of choice and domicile by operation of law, as understood in American
law from which for this case we have taken our jurisprudential bearings.
My readings inform me that the domicile of the parents at the time of birth, or what is
termed the "domicile of origin," constitutes the domicile of an infant until abandoned, or
until the acquisition of a new domicile in a different place.
1
In the instant case, we may
grant that petitioner's domicile of origin,
2
at least as of 1938, was what is now Tacloban
City.
Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by
birth, domicile by choice, and domicile by operation of law. The first is the common case
of the place of birth or domicilium originis, the second is that which is voluntarily acquired
by a party or domicilium propio motu; the last which is consequential, as that of a wife
arising from marriage,
3
is sometimes called domicilium necesarium. There is no debate
that the domicile of origin can be lost or replaced by a domicile of choice or a domicile by
operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law,
not only international or American but of our own enactment,
4
she acquired her
husband's domicile of origin in Batac, Ilocos Norte and correspondingly lost her own
domicile of origin in Tacloban City.
Her subsequent changes of residence to San Juan, Rizal, then to San Miguel, Manila,
thereafter to Honolulu, Hawaii, and back to now San Juan, Metro Manila do not
appear to have resulted in her thereby acquiring new domiciles of choice. In fact, it
appears that her having resided in those places was by reason of the fortunes or
misfortunes of her husband and his peregrinations in the assumption of new official
positions or the loss of them. Her residence in Honolulu and, of course, those after her
return to the Philippines were, as she claimed, against her will or only for transient
purposes which could not have invested them with the status of domiciles of choice.
5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over
her requisite residency in Tacloban City or Olot, Tolosa, Leyte, there is no showing that
she ever attempted to acquire any other domicile of choice which could have resulted in
the abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we note the
majority's own submission
6
that, to successfully effect a change of domicile, one must
demonstrate (a) an actual removal or an actual change of domicile, (b) a bona
fide intention of abandoning the former place of residence and establishing a new one,
and (c) acts which correspond with the purpose.
We consequently have to also note that these requirements for the acquisition of a
domicile of choice apply whether what is sought to be changed or substituted is a
domicile of origin (domicilium originis) or a domicile by operation of law (domicilium
necesarium). Since petitioner had lost her domicilium originis which had been replaced
by her domicilium necesarium, it is therefore her continuing domicile in Batac, Ilocos
Norte which, if at all, can be the object of legal change under the contingencies of the
case at bar.
To get out of this quandary, the majority decision echoes the dissenting opinion of
Commissioner Regalado E. Maambong in SPA 95-009 of the Commission on
Elections,
7
and advances this novel proposition.
It may be said that petitioner lost her domicile of origin by operation of law
as a result of her marriage to the late President Ferdinand E. Marcos in
1952 (sic, 1954). By operation of law (domicilium necesarium), her legal
domicile at the time of her marriage became Batac, Ilocos Norte although
there were no indications of an intention on her part to abandon her
domicile of origin. Because of her husband's subsequent death and
through the operation of the provisions of the New Family Code already in
force at the time, however, her legal domicile automatically reverted to
her domicile of origin. . . . (Emphasis supplied).
Firstly, I am puzzled why although it is conceded that petitioner had acquired
a domicilium necesarium in Batac, Ilocos Norte, the majority insists on making a
qualification that she did not intend to abandon her domicile of origin. I find this
bewildering since, in this situation, it is the law that declares where petitioner's domicile
is at any given time, and not her self-serving or putative intent to hold on to her former
domicile. Otherwise, contrary to their own admission that one cannot have more than
one domicile at a time,
8
the majority would be suggesting that petitioner retained
Tacloban City as (for lack of a term in law since it does not exist therein) the equivalent
of what is fancied as a reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be recovered likewise in
accordance with law. However, we are here being titillated with the possibility of an
automatic reversion to or reacquisition of a domicile of origin after the termination of the
cause for its loss by operation of law. The majority agrees that since petitioner lost her
domicile of origin by her marriage, the termination of the marriage also terminates that
effect thereof. I am impressed by the ingeniousness of this theory which proves that,
indeed, necessity is the mother of inventions. Regretfully, I find some difficulty in
accepting either the logic or the validity of this argument.
If a party loses his domicile of origin by obtaining a new domicile of choice, he
thereby voluntarily abandons the former in favor of the latter. If, thereafter, he abandons
that chosen domicile, he does not per se recover his original domicile unless, by
subsequent acts legally indicative thereof, he evinces his intent and desire to establish
the same as his new domicile, which is precisely what petitioner belatedly and, evidently
just for purposes of her candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of choice cannot automatically restore
his domicile of origin, not only because there is no legal authority therefor but because it
would be absurd Pursued to its logical consequence, that theory of ipso jure reversion
would rule out the fact that said party could already very well have obtained another
domicile, either of choice or by operation of law, other than his domicile of origin.
Significantly and obviously for this reason, the Family Code, which the majority
inexplicably invokes, advisedly does not regulate this contingency since it would impinge
on one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice
(unless we assume that she entered into the marital state against her will) but, on top of
that, such abandonment was further affirmed through her acquisition of a new domicile
by operation of law. In fact, this is even a case of both voluntary andlegal abandonment
of a domicile of origin. With much more reason, therefore, should we reject the
proposition that with the termination of her marriage in 1989, petitioner had
supposedly per se and ipso facto reacquired her domicile of origin which she lost in
1954. Otherwise, this would be tantamount to saying that during the period of marital
coverture, she was simultaneously in possession and enjoyment of a domicile of origin
which was only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the husband's death the
wife has the right to elect her own domicile,
9
she nevertheless retains the last domicile
of her deceased husband until she makes an actual change.
10
In the absence of
affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal
residence follows that of her husband and will continue after his death.
11

I cannot appreciate the premises advanced in support of the majority's theory based on
Articles 68 and 69 of the Family Code. All that is of any relevance therein is that under
this new code, the right and power to fix the family domicile is now shared by the
spouses. I cannot perceive how that joint right, which in the first place was never
exercised by the spouses, could affect the domicile fixed by the law for petitioner in 1954
and, for her husband, long prior thereto. It is true that a wife now has the coordinate
power to determine the conjugal or family domicile, but that has no bearing on this case.
With the death of her husband, and each of her children having gotten married and
established their own respective domiciles, the exercise of that joint power was and is no
longer called for or material in the present factual setting of this controversy. Instead,
what is of concern in petitioner's case was the matter of her having acquired or not her
own domicile of choice.
I agree with the majority's discourse on the virtues of the growing and expanded
participation of women in the affairs of the nation, with equal rights and recognition by
Constitution and statutory conferment. However, I have searched in vain for a specific
law or judicial pronouncement which either expressly or by necessary implication
supports the majority's desired theory of automatic reacquisition of or reversion to
the domicilium originis of petitioner. Definitely, as between the settled and desirable legal
norms that should govern this issue, there is a world of difference; and, unquestionably,
this should be resolved by legislative articulation but not by the eloquence of the well-
turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not
having automatically reacquired any domicile therein, she cannot legally claim that her
residency in the political constituency of which it is a part continued since her birth up to
the present. Respondent commission was, therefore, correct in rejecting her pretension
to that effect in her amended/corrected certificate of candidacy, and in holding her to her
admission in the original certificate that she had actually resided in that constituency for
only seven months prior to the election. These considerations render it unnecessary to
further pass upon the procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.
DAVIDE, JR., J ., dissenting:
I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M.
Kapunan, more particularly on the issue of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or
rulings of the COMELEC may be brought to this Court only by the special civil action
for certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251
[1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without
or in excess of jurisdiction or with grave abuse of discretion (Section 1, Rule 65, Rules of
Court). Since the COMELEC has, undoubtedly, jurisdiction over the private respondent's
petition, the only issue left is whether it acted with grave abuse of discretion in
disqualifying the petitioner.
My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the
COMELEC Second Division and the En Banc resolution of 7 May 1995 discloses total
absence of abuse of discretion, much less grave abuse thereof. The resolution of the
Second Division dispassionately and objectively discussed in minute details the facts
which established beyond cavil that herein petitioner was disqualified as a candidate on
the ground of lack of residence in the First Congressional District of Leyte. It has not
misapplied, miscomprehended, or misunderstood facts or circumstances of substance
pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELEC's findings of fact for lack of
proof that the petitioner has abandoned Tolosa as her domicile of origin, which is
allegedly within the First Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC, either by
admission or by documentary evidence, overwhelming proof of the loss or abandonment
of her domicile of origin, which is Tacloban City and not Tolosa, Leyte. Assuming that
she decided to live again in her domicile of origin, that became her second domicile of
choice, where her stay, unfortunately, was for only seven months before the day of the
election. She was then disqualified to be a candidate for the position of Representative
of the First Congressional District of Leyte. A holding to the contrary would be arbitrary.
It may indeed be conceded that the petitioner's domicile of choice was either Tacloban
City or Tolosa, Leyte. Nevertheless, she lost it by operation of law sometime in May
1954 upon her marriage to the then Congressman (later, President) Ferdinand E.
Marcos. A domicile by operation of law is that domicile which the law attributes to a
person, independently of his own intention or actual residence, as results from legal
domestic relations as that of the wife arising from marriage (28 C.J.S. Domicile 7, 11).
Under the governing law then, Article 110 of the Civil Code, her new domicile or her
domicile of choice was the domicile of her husband, which was Batac, Ilocos Norte. Said
Article reads as follows:
Art. 110. The husband shall fix the residence of the family. But the court
may exempt the wife from living with the husband if he should live abroad
unless in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino states:
Although the duty of the spouses to live together is mutual, the husband
has a predominant right because he is empowered by law to fix the family
residence. This right even predominates over some rights recognized by
law in the wife. For instance, under article 117 the wife may engage in
business or practice a profession or occupation. But because of the
power of the husband to fix the family domicile he may fix it at such a
place as would make it impossible for the wife to continue in business or
in her profession. For justifiable reasons, however, the wife may be
exempted from living in the residence chosen by the husband. The
husband cannot validly allege desertion by the wife who refuses to follow
him to a new place of residence, when it appears that they have lived for
years in a suitable home belonging to the wife, and that his choice of a
different home is not made in good faith. (Commentaries and
Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses her own domicile and, by
operation of law, acquires that of her husband, no matter where the wife actually lives or
what she believes or intends. Her domicile is fixed in the sense that it is declared to be
the same as his, and subject to certain limitations, he can change her domicile by
changing his own (25 Am Jur 2d Domicile 48, 37).
It must, however, be pointed out that under Article 69 of the Family Code, the fixing of
the family domicile is no longer the sole prerogative of the husband, but is now a joint
decision of the spouses, and in case of disagreement the court shall decide. The said
article uses the term "family domicile," and not family residence, as "the spouses may
have multiple residences, and the wife may elect to remain in one of such residences,
which may destroy the duty of the spouses to live together and its corresponding
benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines,
[1988], 102).
The theory of automatic restoration of a woman's domicile of origin upon the death of her
husband, which the majority opinion adopts to overcome the legal effect of the
petitioner's marriage on her domicile, is unsupported by law and by jurisprudence. The
settled doctrine is that after the husband's death the wife has a right to elect her own
domicile, but she retains the last domicile of her husband until she makes an actual
change (28 C.J.S. Domicile 12, 27). Or, on the death of the husband, the power of the
wife to acquire her own domicile is revived, but until she exercises the power her
domicile remains that of the husband at the time of his death (25 Am Jur 2d Domicile
62, 45). Note that what is revived is not her domicile of origin but her power to acquire
her own domicile.
Clearly, even after the death of her husband, the petitioner's domicile was that of her
husband at the time of his death which was Batac, Ilocos Norte, since their
residences in San Juan, Metro Manila, and San Miguel, Manila, were their residences for
convenience to enable her husband to effectively perform his official duties. Their
residence in San Juan was a conjugal home, and it was there to which she returned in
1991 when she was already a widow. In her sworn certificate of candidacy for the Office
of the President in the synchronized elections of May 1992, she indicated therein that
she was a resident of San Juan, Metro Manila. She also voted in the said elections in
that place.
On the basis of her evidence, it was only on 24 August 1994 when she exercised her
right as a widow to acquire her own domicile in Tolosa, Leyte, through her sworn
statement requesting the Election Officer of San Juan, Metro Manila, to cancel her
registration in the permanent list of voters in Precinct 157 thereat and praying that she
be "re-registered or transferred to Brgy. Olot, Tolosa, Leyte, the place of [her] birth and
permanent residence" (photocopy of Exhibit "B," attached as Annex "2" of private
respondent Montejo's Comment). Notably, she contradicted this sworn statement
regarding her place of birth when, in her Voter's Affidavit sworn to on 15 March 1992
(photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record
sworn to on 28 January 1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and
her Certificate of Candidacy sworn to on 8 March 1995 (photocopy of Exhibit "A,"
attached as Annex "1," Id.), she solemnly declared that she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa,
Leyte? In the affidavit attached to her Answer to the petition for disqualification (Annex
"I" of Petition), she declared under oath that her "domicile or residence is Tacloban City."
If she did intend to return to such domicile or residence of origin why did she inform the
Election Officer of San Juan that she would transfer to Olot, Tolosa, Leyte, and indicate
in her Voter's Registration Record and in her certificate of candidacy that her residence
is Olot, Tolosa, Leyte? While this uncertainty is not important insofar as residence in the
congressional district is concerned, it nevertheless proves that forty-one years had
already lapsed since she had lost or abandoned her domicile of origin by virtue of
marriage and that such length of time diminished her power of recollection or blurred her
memory.
I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil.
294 [1954]), and the subsequent cases which established the principle that absence
from original residence or domicile of origin to pursue studies, practice one's profession,
or engage in business in other states does not constitute loss of such residence or
domicile. So is the reliance on Section 117 of the Omnibus Election Code which
provides that transfer of residence to any other place by reason of one's "occupation;
profession; employment in private and public service; educational activities; work in
military or naval reservations; service in the army, navy or air force, the constabulary or
national police force; or confinement or detention in government institutions in
accordance with law" is not deemed as loss of original residence. Those cases and legal
provision do not include marriage of a woman. The reason for the exclusion is, of
course, Article 110 of the Civil Code. If it were the intention of this Court or of the
legislature to consider the marriage of a woman as a circumstance which would not
operate as an abandonment of domicile (of origin or of choice), then such cases and
legal provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the petitioner in her
affidavit (Annex "A" of her Answer in COMELEC SPA No. 95-009; Annex "I" of Petition)
that her "domicile or residence of origin is Tacloban City," and that she "never intended
to abandon this domicile or residence of origin to which [she] always intended to return
whenever absent." Such a claim of intention cannot prevail over the effect of Article 110
of the Civil Code. Besides, the facts and circumstances or the vicissitudes of the
petitioner's life after her marriage in 1954 conclusively establish that she had indeed
abandoned her domicile of origin and had acquired a new oneanimo et facto (KOSSUTH
KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the petitioner's claim that she "merely
committed an honest mistake" in writing down the word "seven" in the space provided for
the residency qualification requirement in the certificate of candidacy. Such a claim is
self-serving and, in the light of the foregoing disquisitions, would be all sound and fury
signifying nothing. To me, she did not commit any mistake, honest or otherwise; what
she stated was the truth.
The majority opinion also disregards a basic rule in evidence that he who asserts a fact
or the affirmative of an issue has the burden of proving it (Imperial Victory Shipping
Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221
SCRA 19 [1993]). Having admitted marriage to the then Congressman Marcos, the
petitioner could not deny the legal consequence thereof on the change of her domicile to
that of her husband. The majority opinion rules or at least concludes that "[b]y operation
of law (domicilium necesarium), her legal domicile at the time of her marriage
automatically became Batac, Ilocos Norte." That conclusion is consistent with Article 110
of the Civil Code. Since she is presumed to retain her deceased husband's domicile until
she exercises her revived power to acquire her own domicile, the burden is upon her to
prove that she has exercised her right to acquire her own domicile. She miserably failed
to discharge that burden.
I vote to deny the petition.
DIGEST
FACTS:

Imelda, a little over 8 years old, in or about 1938, established her domicile in Tacloban,
Leyte where she studied and graduated high school in the Holy Infant Academy from
1938 to 1949. She then pursued her college degree, education, in St. Pauls College
now Divine Word University also in Tacloban. Subsequently, she taught in Leyte
Chinese School still in Tacloban. She went to manila during 1952 to work with her
cousin, the late speaker Daniel Romualdez in his office in the House of Representatives.
In 1954, she married late President Ferdinand Marcos when he was still a Congressman
of Ilocos Norte and was registered there as a voter. When Pres. Marcos was elected as
Senator in 1959, they lived together in San Juan, Rizal where she registered as a voter.
In 1965, when Marcos won presidency, they lived in Malacanang Palace and registered
as a voter in San Miguel Manila. She served as member of the Batasang Pambansa
and Governor of Metro Manila during 1978.

Imelda Romualdez-Marcos was running for the position of Representative of the First
District of Leyte for the 1995 Elections. Cirilo Roy Montejo, the incumbent
Representative of the First District of Leyte and also a candidate for the same position,
filed a Petition for Cancellation and Disqualification" with the Commission on Elections
alleging that petitioner did not meet the constitutional requirement for residency. The
petitioner, in an honest misrepresentation, wrote seven months under residency, which
she sought to rectify by adding the words "since childhood" in her Amended/Corrected
Certificate of Candidacy filed on March 29, 1995 and that "she has always maintained
Tacloban City as her domicile or residence. She arrived at the seven months residency
due to the fact that she became a resident of the Municipality of Tolosa in said months.

ISSUE: Whether petitioner has satisfied the 1year residency requirement to be eligible in
running as representative of the First District of Leyte.

HELD:

Residence is used synonymously with domicile for election purposes. The court are in
favor of a conclusion supporting petitoners claim of legal residence or domicile in the
First District of Leyte despite her own declaration of 7 months residency in the district for
the following reasons:

1. A minor follows domicile of her parents. Tacloban became Imeldas domicile of origin
by operation of law when her father brought them to Leyte;

2. Domicile of origin is only lost when there is actual removal or change of domicile, a
bona fide intention of abandoning the former residence and establishing a new one, and
acts which correspond with the purpose. In the absence and concurrence of all these,
domicile of origin should be deemed to continue.

3. A wife does not automatically gain the husbands domicile because the term
residence in Civil Law does not mean the same thing in Political Law. When Imelda
married late President Marcos in 1954, she kept her domicile of origin and merely gained
a new home and not domicilium necessarium.

4. Assuming that Imelda gained a new domicile after her marriage and acquired right to
choose a new one only after the death of Pres. Marcos, her actions upon returning to the
country clearly indicated that she chose Tacloban, her domicile of origin, as her domicile
of choice. To add, petitioner even obtained her residence certificate in 1992 in
Tacloban, Leyte while living in her brothers house, an act, which supports the
domiciliary intention clearly manifested. She even kept close ties by establishing
residences in Tacloban, celebrating her birthdays and other important milestones.

WHEREFORE, having determined that petitioner possesses the necessary residence
qualifications to run for a seat in the House of Representatives in the First District of
Leyte, the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and May
25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the
Provincial Board of Canvassers to proclaim petitioner as the duly elected Representative
of the First District of Leyte.

Article 73
Ayala Investments vs. CA (G.R. No. 118305, 12 February 1998)
SECOND DIVISION
[G.R. No. 118305. February 12, 1998]
AYALA INVESTMENT & DEVELOPMENT CORP. and ABELARDO
MAGSAJO, petitioners, vs. COURT OF APPEALS and SPOUSES ALFREDO
& ENCARNACION CHING, respondents.
D E C I S I O N
MARTINEZ, J .:
Under Article 161 of the Civil Code, what debts and obligations contracted by the
husband alone are considered for the benefit of the conjugal partnership which are
chargeable against the conjugal partnership? Is a surety agreement or an
accommodation contract entered into by the husband in favor of his employer within the
contemplation of the said provision?
These are the issues which we will resolve in this petition for review.
The petitioner assails the decision dated April 14, 1994 of the respondent Court of
Appeals in Spouses Alfredo and Encarnacion Ching vs. Ayala Investment and
Development Corporation, et. al., docketed as CA-G.R. CV No. 29632,
[1]
upholding the
decision of the Regional Trial Court of Pasig, Branch 168, which ruled that the conjugal
partnership of gains of respondents-spouses Alfredo and Encarnacion Ching is not
liable for the payment of the debts secured by respondent-husband Alfredo Ching.
A chronology of the essential antecedent facts is necessary for a clear
understanding of the case at bar.
Philippine Blooming Mills (hereinafter referred to as PBM) obtained
a P50,300,000.00 loan from petitioner Ayala Investment and Development Corporation
(hereinafter referred to as AIDC). As added security for the credit line extended to PBM,
respondent Alfredo Ching, Executive Vice President of PBM, executed security
agreements on December 10, 1980 and on March 20, 1981 making himself jointly and
severally answerable with PBMs indebtedness to AIDC.
PBM failed to pay the loan. Thus, on July 30, 1981, AIDC filed a case for sum of
money against PBM and respondent-husband Alfredo Ching with the then Court of First
Instance of Rizal (Pasig), Branch VIII, entitled Ayala Investment and Development
Corporation vs. Philippine Blooming Mills and Alfredo Ching, docketed as Civil Case
No. 42228.
After trial, the court rendered judgment ordering PBM and respondent-husband
Alfredo Ching to jointly and severally pay AIDC the principal amount of P50,300,000.00
with interests.
Pending appeal of the judgment in Civil Case No. 42228, upon motion of AIDC, the
lower court issued a writ of execution pending appeal. Upon AIDCs putting up of
an P8,000,000.00 bond, a writ of execution dated May 12, 1982 was issued. Thereafter,
petitioner Abelardo Magsajo, Sr., Deputy Sheriff of Rizal and appointed sheriff in Civil
Case No. 42228, caused the issuance and service upon respondents-spouses of a
notice of sheriff sale dated May 20, 1982 on three (3) of their conjugal
properties. Petitioner Magsajo then scheduled the auction sale of the properties levied.
On June 9, 1982, private respondents filed a case of injunction against petitioners
with the then Court of First Instance of Rizal (Pasig), Branch XIII, to enjoin the auction
sale alleging that petitioners cannot enforce the judgment against the conjugal
partnership levied on the ground that, among others, the subject loan did not redound to
the benefit of the said conjugal partnership.
[2]
Upon application of private respondents,
the lower court issued a temporary restraining order to prevent petitioner Magsajo from
proceeding with the enforcement of the writ of execution and with the sale of the said
properties at public auction.
AIDC filed a petition for certiorari before the Court of Appeals,
[3]
questioning the
order of the lower court enjoining the sale. Respondent Court of Appeals issued a
Temporary Restraining Order on June 25, 1982, enjoining the lower court
[4]
from
enforcing its Order of June 14, 1982, thus paving the way for the scheduled auction sale
of respondents-spouses conjugal properties.
On June 25, 1982, the auction sale took place. AIDC being the only bidder, was
issued a Certificate of Sale by petitioner Magsajo, which was registered on July 2, 1982.
Upon expiration of the redemption period, petitioner sheriff issued the final deed of sale
on August 4, 1982 which was registered on August 9, 1983.
In the meantime, the respondent court, on August 4, 1982, decided CA-G.R. SP No.
14404, in this manner:
WHEREFORE, the petition for certiorari in this case is granted and the
challenged order of the respondent Judge dated June 14, 1982 in Civil Case
No. 46309 is hereby set aside and nullified. The same petition insofar as it
seeks to enjoin the respondent Judge from proceeding with Civil Case No.
46309 is, however, denied. No pronouncement is here made as to costs. x x
x x.
[5]

On September 3, 1983, AIDC filed a motion to dismiss the petition for injunction filed
before Branch XIII of the CFI of Rizal (Pasig) on the ground that the same had become
moot and academic with the consummation of the sale. Respondents filed their
opposition to the motion arguing, among others, that where a third party who claims
ownership of the property attached or levied upon, a different legal situation is
presented; and that in this case, two (2) of the real properties are actually in the name of
Encarnacion Ching, a non-party to Civil Case No. 42228.
The lower court denied the motion to dismiss. Hence, trial on the merits
proceeded. Private respondents presented several witnesses. On the other hand,
petitioners did not present any evidence.
On September 18, 1991, the trial court promulgated its decision declaring the sale
on execution null and void. Petitioners appealed to the respondent court, which was
docketed as CA-G.R. CV No. 29632.
On April 14, 1994, the respondent court promulgated the assailed decision, affirming
the decision of the regional trial court. It held that:
The loan procured from respondent-appellant AIDC was for the advancement
and benefit of Philippine Blooming Mills and not for the benefit of the conjugal
partnership of petitioners-appellees.
x x x x x x x x x
As to the applicable law, whether it is Article 161 of the New Civil Code or
Article 1211 of the Family Code-suffice it to say that the two provisions are
substantially the same. Nevertheless, We agree with the trial court that the
Family Code is the applicable law on the matter x x x x x x.
Article 121 of the Family Code provides that The conjugal partnership shall
be liable for: x x x (2) All debts and obligations contracted during the marriage
by the designated Administrator-Spouse for the benefit of the conjugal
partnership of gains x x x. The burden of proof that the debt was contracted
for the benefit of the conjugal partnership of gains, lies with the creditor-party
litigant claiming as such. In the case at bar, respondent-appellant AIDC failed
to prove that the debt was contracted by appellee-husband, for the benefit of
the conjugal partnership of gains.
The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered
DISMISSING the appeal. The decision of the Regional Trial Court is
AFFIRMED in toto.
[6]

Petitioner filed a Motion for Reconsideration which was denied by the respondent
court in a Resolution dated November 28, 1994.
[7]

Hence, this petition for review. Petitioner contends that the respondent court erred
in ruling that the conjugal partnership of private respondents is not liable for the
obligation by the respondent-husband.
Specifically, the errors allegedly committed by the respondent court are as follows:
I. RESPONDENT COURT ERRED IN RULING THAT THE OBLIGATION
INCURRED BY RESPONDENT HUSBAND DID NOT REDOUND TO THE
BENEFIT OF THE CONJUGAL PARTNERSHIP OF THE PRIVATE
RESPONDENT.
II RESPONDENT COURT ERRED IN RULING THAT THE ACT OF
RESPONDENT HUSBAND IN SECURING THE SUBJECT LOAN IS NOT
PART OF HIS INDUSTRY, BUSINESS OR CAREER FROM WHICH HE
SUPPORTS HIS FAMILY.
Petitioners in their appeal point out that there is no need to prove that actual benefit
redounded to the benefit of the partnership; all that is necessary, they say, is that the
transaction was entered into for the benefit of the conjugal partnership. Thus, petitioners
aver that:
The wordings of Article 161 of the Civil Code is very clear: for the
partnership to be held liable, the husband must have contracted the debt for
the benefit of the partnership, thus:
Art. 161. The conjugal partnership shall be liable for:
1) all debts and obligations contracted by the husband
for the benefit of the conjugal partnership x x x.
There is a difference between the phrases: redounded to the benefit of or
benefited from (on the one hand) and for the benefit of (on the other). The
former require that actual benefit must have been realized; the latter requires
only that the transaction should be one which normally would produce benefit
to the partnership, regardless of whether or not actual benefit accrued.
[8]

We do not agree with petitioners that there is a difference between the terms
redounded to the benefit of or benefited from on the one hand; and for the benefit of
on the other. They mean one and the same thing. Article 161 (1) of the Civil Code and
Article 121 (2) of the Family Code are similarly worded, i.e., both use the term for the
benefit of. On the other hand, Article 122 of the Family Code provides that The
payment of personal debts by the husband or the wife before or during the marriage
shall not be charged to the conjugal partnership except insofar as they redounded to the
benefit of the family. As can be seen, the terms are used interchangeably.
Petitioners further contend that the ruling of the respondent court runs counter to the
pronouncement of this Court in the case of Cobb-Perez vs. Lantin,
[9]
that the husband as
head of the family and as administrator of the conjugal partnership is presumed to have
contracted obligations for the benefit of the family or the conjugal partnership.
Contrary to the contention of the petitioners, the case of Cobb-Perez is not
applicable in the case at bar. This Court has, on several instances, interpreted the term
for the benefit of the conjugal partnership.
In the cases of Javier vs. Osmea,
[10]
Abella de Diaz vs. Erlanger & Galinger,
Inc.,
[11]
Cobb-Perez vs. Lantin
[12]
and G-Tractors, Inc. vs. Court of Appeals,
[13]
cited by
the petitioners, we held that:
The debts contracted by the husband during the marriage relation, for and in
the exercise of the industry or profession by which he contributes toward the
support of his family, are not his personal and private debts, and the products
or income from the wifes own property, which, like those of her husbands,
are liable for the payment of the marriage expenses, cannot be excepted from
the payment of such debts. (Javier)
The husband, as the manager of the partnership (Article 1412, Civil Code),
has a right to embark the partnership in an ordinary commercial enterprise for
gain, and the fact that the wife may not approve of a venture does not make it
a private and personal one of the husband. (Abella de Diaz)
Debts contracted by the husband for and in the exercise of the industry or
profession by which he contributes to the support of the family, cannot be
deemed to be his exclusive and private debts. (Cobb-Perez)
x x x if he incurs an indebtedness in the legitimate pursuit of his career or
profession or suffers losses in a legitimate business, the conjugal partnership
must equally bear the indebtedness and the losses, unless he deliberately
acted to the prejudice of his family. (G-Tractors)
However, in the cases of Ansaldo vs. Sheriff of Manila, Fidelity Insurance & Luzon
Insurance Co.,
[14]
Liberty Insurance Corporation vs. Banuelos,
[15]
and Luzon Surety
Inc. vs. De Garcia,
[16]
cited by the respondents, we ruled that:
The fruits of the paraphernal property which form part of the assets of the
conjugal partnership, are subject to the payment of the debts and expenses of
the spouses, but not to the payment of the personal obligations (guaranty
agreements) of the husband, unless it be proved that such obligations were
productive of some benefit to the family. (Ansaldo; parenthetical phrase
ours.)
When there is no showing that the execution of an indemnity agreement by
the husband redounded to the benefit of his family, the undertaking is not a
conjugal debt but an obligation personal to him. (Liberty Insurance)
In the most categorical language, a conjugal partnership under Article 161 of
the new Civil Code is liable only for such debts and obligations contracted by
the husband for the benefit of the conjugal partnership. There must be the
requisite showing then of some advantage which clearly accrued to the
welfare of the spouses. Certainly, to make a conjugal partnership respond for
a liability that should appertain to the husband alone is to defeat and frustrate
the avowed objective of the new Civil Code to show the utmost concern for
the solidarity and well-being of the family as a unit. The husband, therefore,
is denied the power to assume unnecessary and unwarranted risks to the
financial stability of the conjugal partnership. (Luzon Surety, Inc.)
From the foregoing jurisprudential rulings of this Court, we can derive the following
conclusions:
(A) If the husband himself is the principal obligor in the contract, i.e., he directly received
the money and services to be used in or for his own business or his own profession, that
contract falls within the term x x x x obligations for the benefit of the conjugal
partnership. Here, no actual benefit may be proved. It is enough that the benefit to the
family is apparent at the time of the signing of the contract. From the very nature of the
contract of loan or services, the family stands to benefit from the loan facility or services
to be rendered to the business or profession of the husband. It is immaterial, if in the
end, his business or profession fails or does not succeed. Simply stated, where the
husband contracts obligations on behalf of the family business, the law presumes, and
rightly so, that such obligation will redound to the benefit of the conjugal partnership.
(B) On the other hand, if the money or services are given to another person or entity,
and the husband acted only as a surety or guarantor, that contract cannot, by itself,
alone be categorized as falling within the context of obligations for the benefit of the
conjugal partnership. The contract of loan or services is clearly for the benefit of the
principal debtor and not for the surety or his family. No presumption can be inferred that,
when a husband enters into a contract of surety or accommodation agreement, it is for
the benefit of the conjugal partnership. Proof must be presented to establish benefit
redounding to the conjugal partnership.
Thus, the distinction between the Cobb-Perez case, and we add, that of the three
other companion cases, on the one hand, and that of Ansaldo, Liberty Insurance and
Luzon Surety, is that in the former, the husband contracted the obligation for his own
business; while in the latter, the husband merely acted as a surety for the loan
contracted by another for the latters business.
The evidence of petitioner indubitably show that co-respondent Alfredo Ching
signed as surety for the P50M loan contracted on behalf of PBM. Petitioner should have
adduced evidence to prove that Alfredo Chings acting as surety redounded to the
benefit of the conjugal partnership. The reason for this is as lucidly explained by the
respondent court:
The loan procured from respondent-appellant AIDC was for the
advancement and benefit of Philippine Blooming Mills and not for the benefit
of the conjugal partnership of petitioners-appellees. Philippine Blooming
Mills has a personality distinct and separate from the family of petitioners-
appellees - this despite the fact that the members of the said family
happened to be stockholders of said corporate entity.
x x x x x x x x x
x x x. The burden of proof that the debt was contracted for the benefit of the
conjugal partnership of gains, lies with the creditor-party litigant claiming as
such. In the case at bar, respondent-appellant AIDC failed to prove that the
debt was contracted by appellee-husband, for the benefit of the conjugal
partnership of gains. What is apparent from the facts of the case is that the
judgment debt was contracted by or in the name of the Corporation Philippine
Blooming Mills and appellee-husband only signed as surety thereof. The debt
is clearly a corporate debt and respondent-appellants right of recourse
against appellee-husband as surety is only to the extent of his corporate
stockholdings. It does not extend to the conjugal partnership of gains of the
family of petitioners-appellees. x x x x x x.
[17]

Petitioners contend that no actual benefit need accrue to the conjugal
partnership. To support this contention, they cite Justice J.B.L. Reyes authoritative
opinion in the Luzon Surety Company case:
I concur in the result, but would like to make of record that, in my opinion, the
words all debts and obligations contracted by the husband for the benefit of
the conjugal partnership used in Article 161 of the Civil Code of the
Philippines in describing the charges and obligations for which the conjugal
partnership is liable do not require that actual profit or benefit must accrue to
the conjugal partnership from the husbands transaction; but it suffices that
the transaction should be one that normally would produce such benefit for
the partnership. This is the ratio behind our ruling in Javier vs. Osmea, 34
Phil. 336, that obligations incurred by the husband in the practice of his
profession are collectible from the conjugal partnership.
The aforequoted concurring opinion agreed with the majority decision that the
conjugal partnership should not be made liable for the surety agreement which was
clearly for the benefit of a third party. Such opinion merely registered an exception to
what may be construed as a sweeping statement that in all cases actual profit or benefit
must accrue to the conjugal partnership. The opinion merely made it clear that no actual
benefits to the family need be proved in some cases such as in the Javier case. There,
the husband was the principal obligor himself. Thus, said transaction was found to be
one that would normally produce x x x benefit for the partnership. In the later case of
G-Tractors, Inc., the husband was also the principal obligor - not merely the surety. This
latter case, therefore, did not create any precedent. It did not also supersede the Luzon
Surety Company case, nor any of the previous accommodation contract cases, where
this Court ruled that they were for the benefit of third parties.
But it could be argued, as the petitioner suggests, that even in such kind of contract
of accommodation, a benefit for the family may also result, when the guarantee is in
favor of the husbands employer.
In the case at bar, petitioner claims that the benefits the respondent family would
reasonably anticipate were the following:
(a) The employment of co-respondent Alfredo Ching would be prolonged
and he would be entitled to his monthly salary of P20,000.00 for an extended
length of time because of the loan he guaranteed;
(b) The shares of stock of the members of his family would appreciate if
the PBM could be rehabilitated through the loan obtained;
(c) His prestige in the corporation would be enhanced and his career
would be boosted should PBM survive because of the loan.
However, these are not the benefits contemplated by Article 161 of the Civil
Code. The benefits must be one directly resulting from the loan. It cannot merely be a
by-product or a spin-off of the loan itself.
In all our decisions involving accommodation contracts of the husband,
[18]
we
underscored the requirement that: there must be the requisite showing x x x of some
advantage which clearly accrued to the welfare of the spouses or benefits to his family
or that such obligations are productive of some benefit to the family. Unfortunately, the
petition did not present any proof to show: (a) Whether or not the corporate existence of
PBM was prolonged and for how many months or years; and/or (b) Whether or not the
PBM was saved by the loan and its shares of stock appreciated, if so, how much and
how substantial was the holdings of the Ching family.
Such benefits (prospects of longer employment and probable increase in the value
of stocks) might have been already apparent or could be anticipated at the time the
accommodation agreement was entered into. But would those benefits qualify the
transaction as one of the obligations x x x for the benefit of the conjugal partnership?
Are indirect and remote probable benefits, the ones referred to in Article 161 of the Civil
Code? The Court of Appeals in denying the motion for reconsideration, disposed of
these questions in the following manner:
No matter how one looks at it, the debt/credit extended by respondents-
appellants is purely a corporate debt granted to PBM, with petitioner-appellee-
husband merely signing as surety. While such petitioner-appellee-husband,
as such surety, is solidarily liable with the principal debtor AIDC, such liability
under the Civil Code provisions is specifically restricted by Article 122 (par. 1)
of the Family Code, so that debts for which the husband is liable may not be
charged against conjugal partnership properties. Article 122 of the Family
Code is explicit The payment of personal debts contracted by the husband
or the wife before or during the marriage shall not be charged to the conjugal
partnership except insofar as they redounded to the benefit of the family.
Respondents-appellants insist that the corporate debt in question falls under
the exception laid down in said Article 122 (par. one). We do not agree. The
loan procured from respondent-appellant AIDC was for the sole advancement
and benefit of Philippine Blooming Mills and not for the benefit of the conjugal
partnership of petitioners-appellees.
x x x appellee-husband derives salaries, dividends benefits from Philippine
Blooming Mills (the debtor corporation), only because said husband is an
employee of said PBM. These salaries and benefits, are not the benefits
contemplated by Articles 121 and 122 of the Family Code. The benefits
contemplated by the exception in Article 122 (Family Code) is that benefit
derived directly from the use of the loan. In the case at bar, the loan is a
corporate loan extended to PBM and used by PBM itself, not by petitioner-
appellee-husband or his family. The alleged benefit, if any, continuously
harped by respondents-appellants, are not only incidental but also
speculative.
[19]

We agree with the respondent court. Indeed, considering the odds involved in
guaranteeing a large amount (P50,000,000.00) of loan, the probable prolongation of
employment in PBM and increase in value of its stocks, would be too small to qualify the
transaction as one for the benefit of the suretys family. Verily, no one could say, with a
degree of certainty, that the said contract is even productive of some benefits to the
conjugal partnership.
We likewise agree with the respondent court (and this view is not contested by the
petitioners) that the provisions of the Family Code is applicable in this case. These
provisions highlight the underlying concern of the law for the conservation of the
conjugal partnership; for the husbands duty to protect and safeguard, if not augment,
not to dissipate it.
This is the underlying reason why the Family Code clarifies that the obligations
entered into by one of the spouses must be those that redounded to the benefit of the
family and that the measure of the partnerships liability is to the extent that the family is
benefited.
[20]

These are all in keeping with the spirit and intent of the other provisions of the Civil
Code which prohibits any of the spouses to donate or convey gratuitously any part of the
conjugal property.
[21]
Thus, when co-respondent Alfredo Ching entered into a surety
agreement he, from then on, definitely put in peril the conjugal property (in this case,
including the family home) and placed it in danger of being taken gratuitously as in cases
of donation.
In the second assignment of error, the petitioner advances the view that acting as
surety is part of the business or profession of the respondent-husband.
This theory is new as it is novel.
The respondent court correctly observed that:
Signing as a surety is certainly not an exercise of an industry or profession,
hence the cited cases of Cobb-Perez vs. Lantin; Abella de Diaz vs. Erlanger
& Galinger; G-Tractors, Inc. vs. CA do not apply in the instant case. Signing
as a surety is not embarking in a business.
[22]

We are likewise of the view that no matter how often an executive acted or was
persuaded to act, as a surety for his own employer, this should not be taken to mean
that he had thereby embarked in the business of suretyship or guaranty.
This is not to say, however, that we are unaware that executives are often asked to
stand as surety for their companys loan obligations. This is especially true if the
corporate officials have sufficient property of their own; otherwise, their spouses
signatures are required in order to bind the conjugal partnerships.
The fact that on several occasions the lending institutions did not require the
signature of the wife and the husband signed alone does not mean that being a surety
became part of his profession. Neither could he be presumed to have acted for the
conjugal partnership.
Article 121, paragraph 3, of the Family Code is emphatic that the payment of
personal debts contracted by the husband or the wife before or during the marriage shall
not be charged to the conjugal partnership except to the extent that they redounded to
the benefit of the family.
Here, the property in dispute also involves the family home. The loan is a corporate
loan not a personal one. Signing as a surety is certainly not an exercise of an industry
or profession nor an act of administration for the benefit of the family.
On the basis of the facts, the rules, the law and equity, the assailed decision should
be upheld as we now uphold it. This is, of course, without prejudice to petitioners right
to enforce the obligation in its favor against the PBM receiver in accordance with the
rehabilitation program and payment schedule approved or to be approved by the
Securities & Exchange Commission.
WHEREFORE, the petition for review should be, as it is hereby, DENIED for lack of
merit.
SO ORDERED.
Regalado, (Chairman), Melo, Puno, and Mendoza, JJ., concur.

DIGEST
FACTS:

Philippine Blooming Mills (PBM) obtained P50,300,000.00 loan from petitioner Ayala
Investment and Development Corporation (AIDC). Respondent Alfredo Ching, EVP of
PBM, executed security agreements on December 1980 and March 1981 making him
jointly and severally answerable with PBMs indebtedness to AIDC. PBM failed to pay
the loan hence filing of complaint against PBM and Ching. The RTC rendered judgment
ordering PBM and Ching to jointly and severally pay AIDC the principal amount with
interests. Pending the appeal of the judgment, RTC issued writ of execution.
Thereafter, Magsajo, appointed deputy sheriff, caused the issuance and service upon
respondent spouses of the notice of sheriff sale on 3 of their conjugal properties on May
1982. Respondent spouses filed injunction against petitioners on the ground that
subject loan did not redound to the benefit of the said conjugal partnership. CA issued a
TRP enjoining lower court from enforcing its order paving way for the scheduled auction
sale of respondent spouses conjugal properties. A certificate of sale was issued to
AIDC, being the only bidder and was registered on July 1982.

ISSUE: Whether or not the debts and obligations contracted by the husband alone is
considered for the benefit of the conjugal partnership and is it chargeable.

HELD:

The loan procured from AIDC was for the advancement and benefit of PBM and not for
the benefit of the conjugal partnership of Ching. Furthermore, AIDC failed to prove that
Ching contracted the debt for the benefit of the conjugal partnership of gains. PBM has
a personality distinct and separate from the family of Ching despite the fact that they
happened to be stockholders of said corporate entity. Clearly, the debt was a corporate
debt and right of recourse to Ching as surety is only to the extent of his corporate
stockholdings.

Based from the foregoing jurisprudential rulings of the court, if the money or services
are given to another person or entity, and the husband acted only as a surety or
guarantor, that contract cannot, by itself, alone be categorized as falling within the
context of obligations for the benefit of the conjugal partnership. The contract of loan or
services is clearly for the benefit of the principal debtor and not for the surety or his
family. Ching only signed as a surety for the loan contracted with AIDC in behalf of
PBM. Signing as a surety is certainly not an exercise of an industry or profession, it is
not embarking in a business. Hence, the conjugal partnership should not be made liable
for the surety agreement which was clearly for the benefit of PBM.

The court did not support the contention of the petitioner that a benefit for the family may
have resulted when the guarantee was in favor of Chings employment (prolonged
tenure, appreciation of shares of stocks, prestige enhanced) since the benefits
contemplated in Art. 161 of the Civil Code must be one directly resulting from the loan. It
must not be a mere by product or a spin off of the loan itself.


Property Relations Between Husbands and Wives

General Provisions (Article 74-81) 2 Hour

Donations by Reason of Marriage (Articles 82-87) 1 Hour

Article 87
Agapay vs. Palang (276 SCRA 341)
SECOND DIVISION
[G.R. No. 116668. July 28, 1997]
ERLINDA A. AGAPAY, petitioner, vs. CARLINA (CORNELIA) V. PALANG and
HERMINIA P. DELA CRUZ, respondents.
D E C I S I O N
ROMERO, J .:
Before us is a petition for review of the decision of the Court of Appeals in CA-G.R.
CV No. 24199 entitled Erlinda Agapay v. Carlina (Cornelia) Palang and Herminia P.
Dela Cruz dated June 22, 1994 involving the ownership of two parcels of land acquired
during the cohabitation of petitioner and private respondents legitimate spouse.
Miguel Palang contracted his first marriage on July 16, 1949 when he took private
respondent Carlina (or Cornelia) Vallesterol as a wife at the Pozorrubio Roman Catholic
Church in Pangasinan. A few months after the wedding, in October 1949, he left to work
in Hawaii. Miguel and Carlinas only child, Herminia Palang, was born on May 12, 1950.
Miguel returned in 1954 for a year. His next visit to the Philippines was in 1964 and
during the entire duration of his year-long sojourn he stayed in Zambales with his
brother, not in Pangasinan with his wife and child. The trial court found evidence that as
early as 1957, Miguel had attempted to divorce Carlina in Hawaii.
[1]
When he returned
for good in 1972, he refused to live with private respondents, but stayed alone in a
house in Pozorrubio, Pangasinan.
On July 15, 1973, the then sixty-three-year-old Miguel contracted his second
marriage with nineteen-year-old Erlinda Agapay, herein petitioner.
[2]
Two months earlier,
on May 17, 1973, Miguel and Erlinda, as evidenced by the Deed of Sale, jointly
purchased a parcel of agricultural land located at San Felipe, Binalonan, Pangasinan
with an area of 10,080 square meters. Consequently, Transfer Certificate of Title No.
101736 covering said rice land was issued in their names.
A house and lot in Binalonan, Pangasinan was likewise purchased on September
23, 1975, allegedly by Erlinda as the sole vendee. TCT No. 143120 covering said
property was later issued in her name.
On October 30, 1975, Miguel and Cornelia Palang executed a Deed of Donation as
a form of compromise agreement to settle and end a case filed by the latter.
[3]
The
parties therein agreed to donate their conjugal property consisting of six parcels of land
to their only child, Herminia Palang.
[4]

Miguel and Erlindas cohabitation produced a son, Kristopher A. Palang, born on
December 6, 1977. In 1979, Miguel and Erlinda were convicted of Concubinage upon
Carlinas complaint.
[5]
Two years later, on February 15, 1981, Miguel died.
On July 11, 1981, Carlina Palang and her daughter Herminia Palang de la Cruz,
herein private respondents, instituted the case at bar, an action for recovery of
ownership and possession with damages against petitioner before the Regional Trial
Court in Urdaneta, Pangasinan (Civil Case No. U-4265). Private respondents sought to
get back the riceland and the house and lot both located at Binalonan, Pangasinan
allegedly purchased by Miguel during his cohabitation with petitioner.
Petitioner, as defendant below, contended that while the riceland covered by TCT
No. 101736 is registered in their names (Miguel and Erlinda), she had already given her
half of the property to their son Kristopher Palang. She added that the house and lot
covered by TCT No. 143120 is her sole property, having bought the same with her own
money. Erlinda added that Carlina is precluded from claiming aforesaid properties since
the latter had already donated their conjugal estate to Herminia.
After trial on the merits, the lower court rendered its decision on June 30, 1989
dismissing the complaint after declaring that there was little evidence to prove that the
subject properties pertained to the conjugal property of Carlina and Miguel Palang. The
lower court went on to provide for the intestate shares of the parties, particularly of
Kristopher Palang, Miguels illegitimate son. The dispositive portion of the decision
reads:
WHEREFORE, premises considered, judgment is hereby rendered-
1) Dismissing the complaint, with costs against plaintiffs;
2) Confirming the ownership of defendant Erlinda Agapay of the residential lot
located at Poblacion, Binalonan, Pangasinan, as evidenced by TCT No. 143120, Lot
290-B including the old house standing therein;
3) Confirming the ownership of one-half (1/2) portion of that piece of agricultural
land situated at Balisa, San Felipe, Binalonan, Pangasinan, consisting of 10,080 square
meters and as evidenced by TCT No. 101736, Lot 1123-A to Erlinda Agapay;
4) Adjudicating to Kristopher Palang as his inheritance from his deceased father,
Miguel Palang, the one-half (1/2) of the agricultural land situated at Balisa, San Felipe,
Binalonan, Pangasinan, under TCT No. 101736 in the name of Miguel Palang, provided
that the former (Kristopher) executes, within 15 days after this decision becomes final
and executory, a quit-claim forever renouncing any claims to annul/reduce the donation
to Herminia Palang de la Cruz of all conjugal properties of her parents, Miguel Palang
and Carlina Vallesterol Palang, dated October 30, 1975, otherwise, the estate of
deceased Miguel Palang will have to be settled in another separate action;
5) No pronouncement as to damages and attorneys fees.
SO ORDERED.
[6]

On appeal, respondent court reversed the trial courts decision. The Court of
Appeals rendered its decision on July 22, 1994 with the following dispositive portion:
WHEREFORE, PREMISES CONSIDERED, the appealed decision is hereby
REVERSED and another one entered:
1. Declaring plaintiffs-appellants the owners of the properties in question;
2. Ordering defendant-appellee to vacate and deliver the properties in question
to herein plaintiffs-appellants;
3. Ordering the Register of Deeds of Pangasinan to cancel Transfer Certificate of
Title Nos. 143120 and 101736 and to issue in lieu thereof another certificate of title in the
name of plaintiffs-appellants.
No pronouncement as to costs.
[7]

Hence, this petition.
Petitioner claims that the Court of Appeals erred in not sustaining the validity of two
deeds of absolute sale covering the riceland and the house and lot, the first in favor of
Miguel Palang and Erlinda Agapay and the second, in favor of Erlinda Agapay alone.
Second, petitioner contends that respondent appellate court erred in not declaring
Kristopher A. Palang as Miguel Palangs illegitimate son and thus entitled to inherit from
Miguels estate. Third, respondent court erred, according to petitioner, in not finding
that there is sufficient pleading and evidence that Kristoffer A. Palang or Christopher A.
Palang should be considered as party-defendant in Civil Case No. U-4625 before the
trial court and in CA-G.R. No. 24199.
[8]

After studying the merits of the instant case, as well as the pertinent provisions of
law and jurisprudence, the Court denies the petition and affirms the questioned decision
of the Court of Appeals.
The first and principal issue is the ownership of the two pieces of property subject of
this action. Petitioner assails the validity of the deeds of conveyance over the same
parcels of land. There is no dispute that the transfers of ownership from the original
owners of the riceland and the house and lot, Corazon Ilomin and the spouses
Cespedes, respectively, were valid.
The sale of the riceland on May 17, 1973, was made in favor of Miguel and
Erlinda. The provision of law applicable here is Article 148 of the Family Code providing
for cases of cohabitation when a man and a woman who are not capacitated to marry
each other live exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage. While Miguel and Erlinda contracted marriage on
July 15, 1973, said union was patently void because the earlier marriage of Miguel and
Carlina was still susbsisting and unaffected by the latters de facto separation.
Under Article 148, only the properties acquired by both of the parties through
their actual joint contribution of money, property or industry shall be owned by them
in common in proportion to their respective contributions. It must be stressed that actual
contribution is required by this provision, in contrast to Article 147 which states that
efforts in the care and maintenance of the family and household, are regarded as
contributions to the acquisition of common property by one who has no salary or income
or work or industry. If the actual contribution of the party is not proved, there will be no
co-ownership and no presumption of equal shares.
[9]

In the case at bar, Erlinda tried to establish by her testimony that she is engaged in
the business of buy and sell and had a sari-sari store
[10]
but failed to persuade us that
she actually contributed money to buy the subject riceland. Worth noting is the fact that
on the date of conveyance, May 17, 1973, petitioner was only around twenty years of
age and Miguel Palang was already sixty-four and a pensioner of the U.S.
Government. Considering her youthfulness, it is unrealistic to conclude that in 1973 she
contributed P3,750.00 as her share in the purchase price of subject property,
[11]
there
being no proof of the same.
Petitioner now claims that the riceland was bought two months before Miguel and
Erlinda actually cohabited. In the nature of an afterthought, said added assertion was
intended to exclude their case from the operation of Article 148 of the Family
Code. Proof of the precise date when they commenced their adulterous cohabitation not
having been adduced, we cannot state definitively that the riceland was purchased even
before they started living together. In any case, even assuming that the subject property
was bought before cohabitation, the rules of co-ownership would still apply and proof of
actual contribution would still be essential.
Since petitioner failed to prove that she contributed money to the purchase price of
the riceland in Binalonan, Pangasinan, we find no basis to justify her co-ownership with
Miguel over the same. Consequently, the riceland should, as correctly held by the Court
of Appeals, revert to the conjugal partnership property of the deceased Miguel and
private respondent Carlina Palang.
Furthermore, it is immaterial that Miguel and Carlina previously agreed to donate
their conjugal property in favor of their daughter Herminia in 1975. The trial court erred
in holding that the decision adopting their compromise agreement in effect partakes the
nature of judicial confirmation of the separation of property between spouses and the
termination of the conjugal partnership.
[12]
Separation of property between spouses
during the marriage shall not take place except by judicial order or without judicial
conferment when there is an express stipulation in the marriage settlements.
[13]
The
judgment which resulted from the parties compromise was not specifically and expressly
for separation of property and should not be so inferred.
With respect to the house and lot, Erlinda allegedly bought the same for P20,000.00
on September 23, 1975 when she was only 22 years old. The testimony of the notary
public who prepared the deed of conveyance for the property reveals the falsehood of
this claim. Atty. Constantino Sagun testified that Miguel Palang provided the money for
the purchase price and directed that Erlindas name alone be placed as the vendee.
[14]

The transaction was properly a donation made by Miguel to Erlinda, but one which
was clearly void and inexistent by express provision of law because it was made
between persons guilty of adultery or concubinage at the time of the donation, under
Article 739 of the Civil Code. Moreover, Article 87 of the Family Code expressly
provides that the prohibition against donations between spouses now applies to
donations between persons living together as husband and wife without a valid
marriage,
[15]
for otherwise, the condition of those who incurred guilt would turn out to be
better than those in legal union.
[16]

The second issue concerning Kristopher Palangs status and claim as an illegitimate
son and heir to Miguels estate is here resolved in favor of respondent courts correct
assessment that the trial court erred in making pronouncements regarding Kristophers
heirship and filiation inasmuch as questions as to who are the heirs of the decedent,
proof of filiation of illegitimate children and the determination of the estate of the latter
and claims thereto should be ventilated in the proper probate court or in a special
proceeding instituted for the purpose and cannot be adjudicated in the instant ordinary
civil action which is for recovery of ownership and possession.
[17]

As regards the third issue, petitioner contends that Kristopher Palang should be
considered as party-defendant in the case at bar following the trial courts decision which
expressly found that Kristopher had not been impleaded as party defendant but
theorized that he had submitted to the courts jurisdiction through his mother/guardian ad
litem.
[18]
The trial court erred gravely. Kristopher, not having been impleaded, was,
therefore, not a party to the case at bar. His mother, Erlinda, cannot be called his
guardian ad litem for he was not involved in the case at bar. Petitioner adds that there is
no need for Kristopher to file another action to prove that he is the illegitimate son of
Miguel, in order to avoid multiplicity of suits.
[19]
Petitioners grave error has been
discussed in the preceeding paragraph where the need for probate proceedings to
resolve the settlement of Miguels estate and Kristophers successional rights has been
pointed out.
WHEREFORE, the instant petition is hereby DENIED. The questioned decision of
the Court of Appeals is AFFIRMED. Costs against petitioner.
SO ORDERED.
Regalado, (Chairman), Puno, and Mendoza, JJ., concur.
Torres, Jr., J., on leave.

DIGEST
FACTS:

Miguel Palang contracted marriage with Carlina in Pangasinan on 1949. He left to work
in Hawaii a few months after the wedding. Their only child Herminia was born in May
1950. The trial court found evident that as early as 1957, Miguel attempted to Divorce
Carlina in Hawaii. When he returned for good in 1972, he refused to lived with Carlina
and stayed alone in a house in Pozzorubio Pangasinan.

The 63 year old Miguel contracted a subsequent marriage with 19 year old Erlinda
Agapay, herein petitioner. 2 months earlier, they jointly purchased a parcel of
agricultural land located at Binalonan Pangasinan. A house and lot in the same place
was likewise purchased. On the other hand, Miguel and Carlina executed a Deed of
Donation as a form of compromise agreement and agreed to donate their conjugal
property consisting of 6 parcels of land to their child Herminia.

Miguel and Erlindas cohabitation produced a son named Kristopher. In 1979, they were
convicted of concubinage upon Carlinas complaint. 2 years later, Miguel died. Carlina
and her daughter instituted this case for recovery of ownership and possession with
damages against petitioner. They sought to get back the land and the house and lot
located at Binalonan allegedly purchase by Miguel during his cohabitation with petitioner.
The lower court dismissed the complaint but CA reversed the decision.

ISSUE: Whether the agricultural land and the house and lot should be awarded in favor
of Erlinda Agapay.


HELD:

The sale of the riceland on May 17, 1973, was made in favor of Miguel and Erlinda.
However, their marriage is void because of the subsisting marriage with Carlina. Only
the properties acquired by both parties through their actual joint contribution shall be
owned by them in proportion to their respective contributions. It is required that there be
an actual contribution. If actual contribution is not proved, there will be no co-ownership
and no presumption of equal shares.

Erlinda established in her testimony that she was engaged in the business of buy and
sell and had a sari-sari store. However, she failed to persuade the court that she
actually contributed money to but the subjected riceland. When the land was acquired,
she was only around 20 years old compared to Miguel who was already 64 years old
and a pensioner of the US Government. Considering his youthfulness, its unrealistic
how she could have contributed the P3,750 as her share. Thus, the court finds no basis
to justify the co-ownership with Miguel over the same. Hence, the Riceland should, as
correctly held by CA, revert to the conjugal partnership property of the deceased and
Carlina.

It is immaterial that Miguel and Carlina previously agreed to donate their conjugal
property in favor of Herminia. Separation of property between spouses during the
marriage shall not take place except by judicial order or without judicial conferment when
there is an express stipulation in the marriage settlements. The judgment resulted from
the compromise was not specifically for separation of property and should not be so
inferred.

With respect to the house and lot, Atty Sagun, notary public who prepared the deed of
conveyance for the property revealed the falshood of Erlindas claim that she bought
such property for P20,000 when she was 22 years old. The lawyer testified that Miguel
provided the money for the purchase price and directed Erlindas name alone be placed
as the vendee.

The transaction made by Miguel to Erlinda was properly a donation and which was
clearly void and inexistent by express provision of the law because it was made between
persons guilty of adultery or concubinage at the time of the donation. Moreover, Article
87 of the Family Code, expressly provides that the prohibition against donation between
spouses now applies to donations between persons living together as husband and wife
without a valid marriage, for otherwise, the condition of those who incurred guilt would
turn out to be better than those in legal union.

Arcaba vs. Tabancura Vda. De Batocael (G.R. No. 146683, 22 November 2001)
SECOND DIVISION
[G.R. No. 146683. November 22, 2001]
CIRILA ARCABA, petitioner, vs. ERLINDA TABANCURA VDA. DE BATOCAEL,
SEIGFREDO C. TABANCURA, DORIS C. TABANCURA, LUZELLI C.
TABANCURA, BELEN C. TABANCURA, RAUL A. COMILLE, BERNADETTE
A. COMILLE, and ABNER A. COMILLE, respondents.
D E C I S I O N
MENDOZA, J .:
Petitioner Cirila Arcaba seeks review on certiorari of the decision
[1]
of the Court of
Appeals, which affirmed with modification the decision
[2]
of the Regional Trial Court,
Branch 10, Dipolog City, Zamboanga del Norte in Civil Case No. 4593, declaring as void
a deed of donation inter vivos executed by the late Francisco T. Comille in her favor and
its subsequent resolution
[3]
denying reconsideration.
The facts are as follows:
On January 16, 1956, Francisco Comille and his wife Zosima Montallana became
the registered owners of Lot No. 437-A located at the corner of Calle Santa Rosa (now
Balintawak Street) and Calle Rosario (now Rizal Avenue) in Dipolog City, Zamboanga
del Norte. The total area of the lot was 418 square meters.
[4]
After the death of Zosima
on October 3, 1980, Francisco and his mother-in-law, Juliana Bustalino Montallana,
executed a deed of extrajudicial partition with waiver of rights, in which the latter waived
her share consisting of one-fourth (
1
/
4
) of the property to Francisco.
[5]
On June 27, 1916,
Francisco registered the lot in his name with the Registry of Deeds.
[6]

Having no children to take care of him after his retirement, Francisco asked his
niece Leticia Bellosillo,
[7]
the latters cousin, Luzviminda Paghacian,
[8]
and petitioner
Cirila Arcaba, then a widow, to take care of his house, as well as the store inside.
[9]

Conflicting testimonies were offered as to the nature of the relationship between
Cirila and Francisco. Leticia Bellosillo said Francisco and Cirila were lovers since they
slept in the same room,
[10]
while Erlinda Tabancura,
[11]
another niece of Francisco,
claimed that the latter had told her that Cirila was his mistress.
[12]
On the other hand,
Cirila said she was a mere helper who could enter the masters bedroom only when the
old man asked her to and that Francisco in any case was too old for her. She denied
they ever had sexual intercourse.
[13]

It appears that when Leticia and Luzviminda were married, only Cirila was left to
take care of Francisco.
[14]
Cirila testified that she was a 34-year old widow while
Francisco was a 75-year old widower when she began working for the latter; that he
could still walk with her assistance at that time;
[15]
and that his health eventually
deteriorated and he became bedridden.
[16]
Erlinda Tabancura testified that Franciscos
sole source of income consisted of rentals from his lot near the public streets.
[17]
He did
not pay Cirila a regular cash wage as a househelper, though he provided her family with
food and lodging.
[18]

On January 24, 1991, a few months before his death, Francisco executed an
instrument denominated Deed of Donation Inter Vivos, in which he ceded a portion of
Lot 437-A, consisting of 150 square meters, together with his house, to Cirila, who
accepted the donation in the same instrument. Francisco left the larger portion of 268
square meters in his name. The deed stated that the donation was being made in
consideration of the faithful services [Cirila Arcaba] had rendered over the past ten (10)
years. The deed was notarized by Atty. Vic T. Lacaya, Sr.
[19]
and later registered by
Cirila as its absolute owner.
[20]

On October 4, 1991, Francisco died without any children. In 1993, the lot which
Cirila received from Francisco had a market value of P57,105.00 and an assessed value
of P28,550.00.
[21]

On February 18, 1993, respondents filed a complaint against petitioner for
declaration of nullity of a deed of donation inter vivos, recovery of possession, and
damages. Respondents, who are the decedents nephews and nieces and his heirs by
intestate succession, alleged that Cirila was the common-law wife of Francisco and the
donation inter vivos made by Francisco in her favor is void under Article 87 of the Family
Code, which provides:
Every donation or grant of gratuitous advantage, direct or indirect, between the spouses
during the marriage shall be void, except moderate gifts which the spouses may give
each other on the occasion of any family rejoicing. The prohibition shall also apply to
persons living together as husband and wife without a valid marriage.
On February 25, 1999, the trial court rendered judgment in favor of respondents,
holding the donation void under this provision of the Family Code. The trial court
reached this conclusion based on the testimony of Erlinda Tabancura and certain
documents bearing the signature of one Cirila Comille. The documents were (1) an
application for a business permit to operate as real estate lessor, dated January 8, 1991,
with a carbon copy of the signature Cirila Comille;
[22]
(2) a sanitary permit to operate as
real estate lessor with a health certificate showing the signature Cirila Comille in black
ink;
[23]
and (3) the death certificate of the decedent with the signature Cirila A. Comille
written in black ink.
[24]
The dispositive portion of the trial courts decision states:
WHEREFORE, in view of the foregoing, judgment is rendered:
1. Declaring the Deed of Donation Inter Vivos executed by the late Francisco Comille
recorded as Doc. No. 7; Page No. 3; Book No. V; Series of 1991 in the Notarial Register
of Notary Public Vic T. Lacaya (Annex A to the Complaint) null and void;
2. Ordering the defendant to deliver possession of the house and lot subject of the deed
unto the plaintiffs within thirty (30) days after finality of this decision; and finally
3. Ordering the defendant to pay attorneys fees in the sum of P10,000.00.
SO ORDERED.
[25]

Petitioner appealed to the Court of Appeals, which rendered on June 19, 2000 the
decision subject of this appeal. As already stated, the appeals court denied
reconsideration. Its conclusion was based on (1) the testimonies of Leticia, Erlinda, and
Cirila; (2) the copies of documents purportedly showing Cirilas use of Franciscos
surname; (3) a pleading in another civil case mentioning payment of rentals to Cirila as
Franciscos common-law wife; and (4) the fact that Cirila did not receive a regular cash
wage.
Petitioner assigns the following errors as having been committed by the Court of
Appeals:
(a) The judgment of the Court of Appeals that petitioner was the common-law wife of the
late Francisco Comille is not correct and is a reversible error because it is based on a
misapprehension of facts, and unduly breaks the chain of circumstances detailed by the
totality of the evidence, its findings being predicated on totally incompetent or hearsay
evidence, and grounded on mere speculation, conjecture or possibility. (Salazar v.
Gutierrez, 33 SCRA 243 and other cases; cited in Quiason, Philippine Courts and their
Jurisdictions, 1993 ed., p. 604)
(b) The Court of Appeals erred in shifting the burden of evidence from the plaintiff to
defendant. (Bunyi v. Reyes, 39 SCRA 504; Quiason, id.)
(c) The Court of Appeals decided the case in a way probably not in accord with law or
with the applicable jurisprudence in Rodriguez v. Rodriguez, 20 SCRA 908, and Liguez
v. CA, 102 Phil. 577, 584.
[26]

The issue in this case is whether the Court of Appeals correctly applied Art. 87 of
the Family Code to the circumstances of this case. After a review of the records, we rule
in the affirmative.
The general rule is that only questions of law may be raised in a petition for review
under Rule 45 of the Rules of Court, subject only to certain exceptions: (a) when the
conclusion is a finding grounded entirely on speculations, surmises, or conjectures; (b)
when the inference made is manifestly mistaken, absurd, or impossible; (c) where there
is grave abuse of discretion; (d) when the judgment is based on a misapprehension of
facts; (e) when the findings of fact are conflicting; (f) when the Court of Appeals, in
making its findings, went beyond the issues of the case and the same are contrary to the
admissions of both appellant and appellee; (g) when the findings of the Court of Appeals
are contrary to those of the trial court; (h) when the findings of fact are conclusions
without citation of specific evidence on which they are based; (i) when the finding of fact
of the Court of Appeals is premised on the supposed absence of evidence but is
contradicted by the evidence on record; and (j) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties and which, if properly
considered, would justify a different conclusion.
[27]
It appearing that the Court of Appeals
based its findings on evidence presented by both parties, the general rule should apply.
In Bitangcor v. Tan,
[28]
we held that the term cohabitation or living together as
husband and wife means not only residing under one roof, but also having repeated
sexual intercourse. Cohabitation, of course, means more than sexual intercourse,
especially when one of the parties is already old and may no longer be interested in
sex. At the very least, cohabitation is the public assumption by a man and a woman of
the marital relation, and dwelling together as man and wife, thereby holding themselves
out to the public as such. Secret meetings or nights clandestinely spent together, even if
often repeated, do not constitute such kind of cohabitation; they are merely
meretricious.
[29]
In this jurisdiction, this Court has considered as sufficient proof of
common-law relationship the stipulations between the parties,
[30]
a conviction of
concubinage,
[31]
or the existence of illegitimate children.
[32]

Was Cirila Franciscos employee or his common-law wife? Cirila admitted that she
and Francisco resided under one roof for a long time. It is very possible that the two
consummated their relationship, since Cirila gave Francisco therapeutic massage and
Leticia said they slept in the same bedroom. At the very least, their public conduct
indicated that theirs was not just a relationship of caregiver and patient, but that of
exclusive partners akin to husband and wife.
Aside from Erlinda Tabancuras testimony that her uncle told her that Cirila was his
mistress, there are other indications that Cirila and Francisco were common-law
spouses. Seigfredo Tabancura presented documents apparently signed by Cirila using
the surname Comille. As previously stated, these are an application for a business
permit to operate as a real estate lessor,
[33]
a sanitary permit to operate as real estate
lessor with a health certificate,
[34]
and the death certificate of Francisco.
[35]
These
documents show that Cirila saw herself as Franciscos common-law wife, otherwise, she
would not have used his last name. Similarly, in the answer filed by Franciscos lessees
in Erlinda Tabancura, et al. vs. Gracia Adriatico Sy and Antonio Sy, RTC Civil Case
No. 4719 (for collection of rentals), these lessees referred to Cirila as the common-law
spouse of Francisco. Finally, the fact that Cirila did not demand from Francisco a
regular cash wage is an indication that she was not simply a caregiver-employee, but
Franciscos common law spouse. She was, after all, entitled to a regular cash wage
under the law.
[36]
It is difficult to believe that she stayed with Francisco and served him
out of pure beneficence. Human reason would thus lead to the conclusion that she was
Franciscos common-law spouse.
Respondents having proven by a preponderance of evidence that Cirila and
Francisco lived together as husband and wife without a valid marriage, the inescapable
conclusion is that the donation made by Francisco in favor of Cirila is void under Art. 87
of the Family Code.
WHEREFORE, the decision of the Court of Appeals affirming the decision of the trial
court is hereby AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

DIGEST
FACTS:

Francisco Comille and his wife Zosima Montallana became the registered owners of Lot
No. 437-A located at Balintawak St. and Rizal Avenue in Dipolog City, Zamboanga del
Norte in January 1956. Zosima died in 1980 hence Francisco and his mother in law
executed a deed of extrajudicial partition with waiver of rights, where the latter waived
her share consisting of of the property in favor of Francisco. Since Francisco do not
have any children to take care of him after his retirement, he asked Leticia, his niece,
Leticias cousin, Luzviminda and Cirila Arcaba, the petitioner, who was then a widow and
took care of Franciscos house as well as the store inside.

According to Leticia, Francisco and Cirila were lovers since they slept in the same room.
On the other hand, Erlinda Tabancura, another niece of Francisco claimed that the latter
told her that Cirila was his mistress. However, Cirila defensed herself that she was a
mere helper who could enter the masters bedroom when Francisco asked her to and
that Francisco was too old for her. She denied having sexual intercourse with Francisco.
When the nieces got married, Cirila who was then 34 year-old widow started working for
Francisco who was 75 year old widower. The latter did not pay him any wages as
househelper though her family was provided with food and lodging. Franciscos health
deteriorated and became bedridden. Tabancura testified that Franciscos only source of
income was the rentals from his lot near the public streets.

In January 1991, few months before Francisco died, he executed a Deed of Donation
Inter Vivos where he ceded a portion of Lot 437-A composed of 150 sq m., together
with his house to Cirila who accepted the same. The larger portion of 268 sq m. was left
under his name. This was made in consideration of the 10 year of faithful services of the
petitioner. Atty Lacaya notarized the deed and was later registered by Cirila as its
absolute owner.

In Octoer 1991, Francisco died and in 1993, the lot received by Cirila had a market value
of P57,105 and assessed value of P28,550. The decedents nephews and nieces and
his heirs by intestate succession alleged that Cirila was the common-law wife of
Francisco.

ISSUE: Whether or not the deed of donation inter vivos executed by Francisco in
Arcabas favor was valid.


HELD:

The court in this case considered a sufficient proof of common law relationship wherein
donation is not valid. The conclusion was based on the testimony of Tabancura and
certain documents bearing the signature of Cirila Comille such as application for
business permit, sanitary permit and the death certificate of Francisco. Also, the fact
that Cirila did not demand her wages is an indication that she was not simply a caregiver
employee.

Cohabitation means more than sexual intercourse, especially when one of the parties is
already old and may no longer be interested in sex at the very least, cohabitation is a
public assumption of men and women holding themselves out to the public as such.
Hence, the deed of donation by Francisco in favor of Cirila is void under Art. 87 of the
Family Code.



System of Absolute Community (Articles 88-104) 5 Hours

Article 94-96
Uy vs CA (G.R. No. 109557, 29 November 2000)
FIRST DIVISION
[G.R. No. 109557. November 29, 2000]
JOSE UY and his Spouse GLENDA J. UY and GILDA L. JARDELEZA, petitioners,
vs. COURT OF APPEALS and TEODORO L. JARDELEZA, respondents.
D E C I S I O N
PARDO, J .:
The case is an appeal via certiorari from the decision
[1]
of the Court of Appeals and
its resolution denying reconsideration
[2]
reversing that of the Regional Trial Court, Iloilo,
Branch 32
[3]
and declaring void the special proceedings instituted therein by petitioners
to authorize petitioner Gilda L. Jardeleza, in view of the comatose condition of her
husband, Ernesto Jardeleza, Sr., with the approval of the court, to dispose of their
conjugal property in favor of co-petitioners, their daughter and son in law, for the
ostensible purpose of financial need in the personal, business and medical expenses of
her incapacitated husband.
The facts, as found by the Court of Appeals, are as follows:
This case is a dispute between Teodoro L. Jardeleza (herein respondent) on the one
hand, against his mother Gilda L. Jardeleza, and sister and brother-in-law, the spouses
Jose Uy and Glenda Jardeleza (herein petitioners) on the other hand. The controversy
came about as a result of Dr. Ernesto Jardeleza, Sr.s suffering of a stroke on March 25,
1991, which left him comatose and bereft of any motor or mental faculties. Said Ernesto
Jardeleza, Sr. is the father of herein respondent Teodoro Jardeleza and husband of
herein private respondent Gilda Jardeleza.
Upon learning that one piece of real property belonging to the senior Jardeleza spouses
was about to be sold, petitioner Teodoro Jardeleza, on June 6, 1991, filed a petition
(Annex A) before the R.T.C. of Iloilo City, Branch 25, where it was docketed as Special
Proceeding No. 4689, in the matter of the guardianship of Dr. Ernesto Jardeleza,
Sr. The petitioner averred therein that the present physical and mental incapacity of Dr.
Ernesto Jardeleza, Sr. prevent him from competently administering his properties, and in
order to prevent the loss and dissipation of the Jardelezas real and personal assets,
there was a need for a court-appointed guardian to administer said properties. It was
prayed therein that Letters of Guardianship be issued in favor of herein private
respondent Gilda Ledesma Jardeleza, wife of Dr. Ernesto Jardeleza, Sr. It was further
prayed that in the meantime, no property of Dr. Ernesto Jardeleza, Sr. be negotiated,
mortgaged or otherwise alienated to third persons, particularly Lot No. 4291 and all the
improvements thereon, located along Bonifacio Drive, Iloilo City, and covered by T.C.T.
No. 47337.
A few days later, or on June 13, 1991, respondent Gilda L. Jardeleza herself filed a
petition docketed as Special Proceeding NO. 4691, before Branch 32 of the R.T.C. of
Iloilo City, regarding the declaration of incapacity of Ernesto Jardeleza, Sr., assumption
of sole powers of administration of conjugal properties, and authorization to sell the
same (Annex B). Therein, the petitioner Gilda L. Jardeleza averred the physical and
mental incapacity of her husband, who was then confined for intensive medical care and
treatment at the Iloilo Doctors Hospital. She signified to the court her desire to assume
sole powers of administration of their conjugal properties. She also alleged that her
husbands medical treatment and hospitalization expenses were piling up, accumulating
to several hundred thousands of pesos already. For this, she urgently needed to sell
one piece of real property, specifically Lot No. 4291 and its improvements. Thus, she
prayed for authorization from the court to sell said property.
The following day, June 14, 1991, Branch 32 of the R.T.C. of Iloilo City issued an Order
(Annex C) finding the petition in Spec. Proc. No. 4691 to be sufficient in form and
substance, and setting the hearing thereof for June 20, 1991. The scheduled hearing of
the petition proceeded, attended by therein petitioner Gilda Jardeleza, her counsel, her
two children, namely Ernesto Jardeleza, Jr., and Glenda Jardeleza Uy, and Dr. Rolando
Padilla, one of Ernesto Jardeleza, Sr.s attending physicians.
On that same day, June 20, 1991, Branch 32 of the RTC of Iloilo City rendered its
Decision (Annex D), finding that it was convinced that Ernesto Jardeleza, Sr. was truly
incapacitated to participate in the administration of the conjugal properties, and that the
sale of Lot No. 4291 and the improvements thereon was necessary to defray the
mounting expenses for treatment and Hospitalization. The said court also made the
pronouncement that the petition filed by Gilda L. Jardeleza was pursuant to Article 124
of the Family Code, and that the proceedings thereon are governed by the rules on
summary proceedings sanctioned under Article 253 of the same Code x x x.
The said court then disposed as follows:
WHEREFORE, there being factual and legal bases to the petition dated June 13, 1991,
the Court hereby renders judgment as follows:
1) declaring Ernesto Jardeleza, Sr., petitioners husband, to be incapacitated and
unable to participate in the administration of conjugal properties;
2) authorizing petitioner Gilda L. Jardeleza to assume sole powers of administration of
their conjugal properties; and
3) authorizing aforesaid petitioner to sell Lot No. 4291 of the Cadastral Survey of Iloilo,
situated in Iloilo City and covered by TCT No. 47337 issued in the names of Ernesto
Jardeleza, Sr. and Gilda L. Jardeleza and the buildings standing thereof.
SO ORDERED.
On June 24, 1991, herein petitioner Teodoro Jardeleza filed his Opposition to the
proceedings before Branch 32 in Spec. Proc. Case No. 4691, said petitioner being
unaware and not knowing that a decision has already been rendered on the case by
public respondent.
On July 3, 1991, herein petitioner Teodoro Jardeleza filed a motion for reconsideration
of the judgment in Spec. Proc. No. 4691 and a motion for consolidation of the two cases
(Annex F). He propounded the argument that the petition for declaration of incapacity,
assumption of sole powers of administration, and authority to sell the conjugal properties
was essentially a petition for guardianship of the person and properties of Ernesto
Jardeleza, Sr. As such, it cannot be prosecuted in accordance with the provisions on
summary proceedings set out in Article 253 of the Family Code. It should follow the
rules governing special proceedings in the Revised Rules of Court which require
procedural due process, particularly the need for notice and a hearing on the merits. On
the other hand, even if Gilda Jardelezas petition can be prosecuted by summary
proceedings, there was still a failure to comply with the basic requirements thereof,
making the decision in Spec. Proc. No. 4691 a defective one. He further alleged that
under the New Civil Code, Ernesto Jardeleza, Sr. had acquired vested rights as a
conjugal partner, and that these rights cannot be impaired or prejudiced without his
consent. Neither can he be deprived of his share in the conjugal properties through
mere summary proceedings. He then restated his position that Spec. Proc. No. 4691
should be consolidated with Spec. Proc. No. 4689 which was filed earlier and pending
before Branch 25.
Teodoro Jardeleza also questioned the propriety of the sale of Lot No. 4291 and the
improvements thereon supposedly to pay the accumulated financial obligations arising
from Ernesto Jardeleza, Sr.s hospitalization. He alleged that the market value of the
property would be around Twelve to Fifteen Million Pesos, but that he had been
informed that it would be sold for much less. He also pointed out that the building
thereon which houses the Jardeleza Clinic is a monument to Ernesto Jardeleza Sr.s
industry, labor and service to his fellowmen. Hence, the said property has a lot of
sentimental value to his family. Besides, argued Teodoro Jardeleza, then conjugal
partnership had other liquid assets to pay off all financial obligations. He mentioned that
apart from sufficient cash, Jardeleza, Sr. owned stocks of Iloilo Doctors Hospital which
can be off-set against the cost of medical and hospital bills. Furthermore, Ernesto
Jardeleza, Sr. enjoys certain privileges at the said hospital which allows him to pay on
installment basis. Moreover, two of Ernesto Jardeleza Sr.s attending physicians are his
own sons who do not charge anything for their professional services.
On July 4, 1991, Teodoro Jardeleza filed in Spec. Proc. No. 4691 a supplement to his
motion for reconsideration (Annex G). He reiterated his contention that summary
proceedings was irregularly applied. He also noted that the provisions on summary
proceedings found in Chapter 2 of the Family Code comes under the heading on
Separation in Fact Between Husband and Wife which contemplates of a situation
where both spouses are of disposing mind. Thus, he argued that were one spouse is
comatose without motor and mental faculties, the said provisions cannot be made to
apply.
While the motion for reconsideration was pending, Gilda Jardeleza disposed by
absolute sale Lot No. 4291 and all its improvements to her daughter, Ma. Glenda
Jardeleza Uy, for Eight Million Pesos (P8,000,000.00), as evidenced by a Deed Absolute
Sale dated July 8, 1991 executed between them (p. 111, Rollo). Under date of July 23,
1991, Gilda Jardeleza filed an urgent ex-parte motion for approval of the deed of
absolute sale.
On August 12, 1991 Teodoro Jardeleza filed his Opposition to the motion for approval
of the deed of sale on the grounds that: (1) the motion was prematurely filed and should
be held in abeyance until the final resolution of the petition; (2) the motion does not
allege nor prove the justifications for the sale; and (3) the motion does not allege that
had Ernesto Jardeleza, Sr. been competent, he would have given his consent to the
sale.
Judge Amelita K. del Rosario-Benedicto of Branch 32 of the respondent Court, who had
penned the decision in Spec. Proc. No. 4691 had in the meantime formally inhibited
herself from further acting in this case (Annex I). The case was then reraffled to
Branch 28 of the said court.
On December 19, 1991, the said court issued an Order (Annex M) denying herein
petitioners motion for reconsideration and approving respondent Jardelezas motion for
approval of the deed of absolute sale. The said court ruled that:
After a careful and thorough perusal of the decision, dated June 20, 1991, the Motion
for Reconsideration, as well as its supplements filed by oppositor, Teodoro L.
Jardeleza, through counsel, and the opposition to the Motion for Reconsideration,
including its supplements, filed by petitioner, through counsel, this Court is of the opinion
and so holds, that her Honor, Amelita K. del Rosario-Benedicto, Presiding Judge of
Branch 32, of this Court, has properly observed the procedure embodied under Article
253, in relation to Article 124, of the Family Code, in rendering her decision dated June
20, 1991.
Also, as correctly stated by petitioner, through counsel, that oppositor Teodor L.
Jardeleza does not have the personality to oppose the instant petition considering that
the property or properties, subject of the petition, belongs to the conjugal partnership of
the spouses Ernesto and Gilda Jardeleza, who are both still alive.
In view thereof, the Motion for Reconsideration of oppositor Teodoro L. Jardeleza, is
hereby denied for lack of merit.
Considering the validity of the decision dated June 20, 1991, which among others,
authorized Gilda L. Jardeleza to sell Lot No. 4291 of the Cadastral Survey of Iloilo,
covered by Transfer Certificate of Title No. 47337 issued in the names of Ernesto
Jardeleza, Sr., and Gilda L. Jardeleza and the building standing thereon, the Urgent Ex-
Parte Motion for Approval of Deed of Absolute Sale dated July 23, 1991, filed by
petitioner, through counsel, is hereby granted and the deed of absolute sale, executed
and notarized on July 8, 1991, by and between Gilda L. Jardeleza, as vendor, and Ma.
Glenda Jardeleza, as vendee, is hereby approved, and the Register of Deeds of Iloilo
City, is directed to register the sale and issue the corresponding transfer certificate of
title to the vendee.
SO ORDERED.
[4]

On December 9, 1992, the Court of Appeals promulgated its decision reversing the
appealed decision and ordering the trial court to dismiss the special proceedings to
approve the deed of sale, which was also declared void.
[5]

On December 29, 1992, petitioners filed a motion for reconsideration,
[6]
however, on
March 29, 1993, the Court of Appeals denied the motion, finding no cogent and
compelling reason to disturb the decision.
[7]

Hence, this appeal.
[8]

The issue raised is whether petitioner Gilda L. Jardeleza as the wife of Ernesto
Jardeleza, Sr. who suffered a stroke, a cerebrovascular accident, rendering him
comatose, without motor and mental faculties, and could not manage their conjugal
partnership property may assume sole powers of administration of the conjugal property
under Article 124 of the Family Code and dispose of a parcel of land with its
improvements, worth more than twelve million pesos, with the approval of the court in a
summary proceedings, to her co-petitioners, her own daughter and son-in-law, for the
amount of eight million pesos.
The Court of Appeals ruled that in the condition of Dr. Ernesto Jardeleza, Sr., the
procedural rules on summary proceedings in relation to Article 124 of the Family Code
are not applicable. Because Dr. Jardeleza, Sr. was unable to take care of himself and
manage the conjugal property due to illness that had rendered him comatose, the proper
remedy was the appointment of a judicial guardian of the person or estate or both of
such incompetent, under Rule 93, Section 1, 1964 Revised Rules of Court. Indeed,
petitioner earlier had filed such a petition for judicial guardianship.
Article 124 of the Family Code provides as follows:
ART. 124. The administration and enjoyment of the conjugal partnership property shall
belong to both spouses jointly. In case of disagreement, the husbands decision shall
prevail, subject to recourse to the court by the wife for a proper remedy which must be
availed of within five years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the 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. (165a).
In regular manner, the rules on summary judicial proceedings under the Family
Code govern the proceedings under Article 124 of the Family Code. The situation
contemplated is one where the spouse is absent, or separated in fact or has abandoned
the other or consent is withheld or cannot be obtained. Such rules do not apply to cases
where the non-consenting spouse is incapacitated or incompetent to give consent. In
this case, the trial court found that the subject spouse "is an incompetent" who was in
comatose or semi-comatose condition, a victim of stroke, cerebrovascular accident,
without motor and mental faculties, and with a diagnosis of brain stem infarct.
[9]
In such
case, the proper remedy is a judicial guardianship proceedings under Rule 93 of the
1964 Revised Rules of Court.
Even assuming that the rules of summary judicial proceedings under the Family
Code may apply to the wife's administration of the conjugal property, the law provides
that the wife who assumes sole powers of administration has the same powers and
duties as a guardian under the Rules of Court.
[10]

Consequently, a spouse who desires to sell real property as such administrator of
the conjugal property must observe the procedure for the sale of the wards estate
required of judicial guardians under Rule 95, 1964 Revised Rules of Court, not the
summary judicial proceedings under the Family Code.
In the case at bar, the trial court did not comply with the procedure under the
Revised Rules of Court. Indeed, the trial court did not even observe the requirements of
the summary judicial proceedings under the Family Code. Thus, the trial court did not
serve notice of the petition to the incapacitated spouse; it did not require him to show
cause why the petition should not be granted.
Hence, we agree with the Court of Appeals that absent an opportunity to be heard,
the decision rendered by the trial court is void for lack of due process. The doctrine
consistently adhered to by this Court is that a denial of due process suffices to cast on
the official act taken by whatever branch of the government the impress of nullity.
[11]
A
decision rendered without due process is void ab initioand may be attacked directly or
collaterally.
[12]
A decision is void for lack of due process if, as a result, a party is
deprived of the opportunity of being heard.
[13]
A void decision may be assailed or
impugned at any time either directly or collaterally, by means of a separate action, or by
resisting such decision in any action or proceeding where it is invoked.
[14]

WHEREFORE, the Court AFFIRMS the decision of the Court of Appeals in CA-G.
R. SP No. 26936, in toto.
Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.


DIGEST
FACTS:

Dr. Ernesto Jardelaza suffered stroke that rendered him comatose. Gilda, wife of the
latter, filed a petition in RTC Iloilo to be allowed as sole administrator of their conjugal
property and be authorized to sell the same as her husband is physically incapacitated
to discharge his functions. She further contest that such illness of the husband
necessitated expenses that would require her to sell their property in Lot 4291 and its
improvement to meet such necessities. RTC ruled in favor of Gilda contending that such
decision is pursuant to Article 124 of FC and that the proceedings thereon are governed
by the rules on summary proceedings.

The son of the spouses, Teodoro, filed a motion for reconsideration contending that the
petition made by her mother was essentially a petition for guardianship of the person
and properties of his father. As such it cannot be prosecuted in accordance with the
provisions on summary proceedings instead it should follows the ruled governing special
proceedings in the Revised Rules of Court requiring procedural due process particularly
the need for notice and a hearing on the merits. He further reiterated that Chapter 2 of
the FC comes under the heading on Separation in Fact Between Husband and Wife
contemplating a situation where both spouses are of disposing mind. Hence, he argued
that this should not be applied in their case.

During the pendency of the motion, Gilda sold the property to her daughter and son in
law. Upon the appeal by Teodoro, CA reversed the decision of the lower court.

ISSUE: WON Gilda as the wife of a husband who suffered stroke, a cerebrovascular
accident rendering him comatose, without motor and mental faculties, may assume sole
powers of administration of the conjugal property and dispose a parcel of land with
improvements.

HELD:

SC ruled in favor of Teodoro. The rule on summary proceedings does not apply to
cases where the non-consenting spouse is incapacitated or incompetent to give consent.
In this case, trial court found that subject spouse was incompetent who was in a
comatose condition and with a diagnosis of brain stem infract. Hence, the proper
remedy is a judicial guardianship proceeding under the Revised Rules of Court. The law
provides that wife who assumes sole powers of administration has the same powers and
duties as a guardian. Consequently, a spouse who desires to sell real property as
administrator of the conjugal property, must observe the procedure for the sale of the
wards estate required of judicial guardians, and not the summary judicial proceedings
under FC. SC further held that such incapacity of the trial court to provide for an
opportunity to be heard is null and void on the ground of lack of due process.


Article 101
Dela Cruz vs. Dela Cruz (130 Phil. 324)
G.R. No. L-19565 January 30, 1968
ESTRELLA DE LA CRUZ, plaintiff-appellee,
vs.
SEVERINO DE LA CRUZ, defendant-appellant.
Estacion and Paltriguera for plaintiff-appellee.
Manuel O. Soriano and Pio G. Villoso for defendant-appellant.
CASTRO, J .:
The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of First
Instance of Negros Occidental, alleging in essence that her husband, the defendant
Severino de la Cruz, had not only abandoned her but as well was mismanaging their
conjugal partnership properties, and praying for (1) separation of property, (2) monthly
support of P2,500 during the pendency of the action, and (3) payment of P20,000 as
attorney's fees, and costs.
The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as
alimony pendente lite, which however, upon defendant's motion, was reduced to P2,000.
On June 1, 1961 the trial court rendered judgment ordering separation and division of
the conjugal assets, and directing the defendant to pay to the plaintiff the sum of
P20,000 as attorney's fees, with legal interest from the date of the original complaint,
that is, from July 22, 1958, until fully paid, plus costs. From this judgment the defendant
appealed to the Court of Appeals, which certified the case to us, "it appearing that the
total value of the conjugal assets is over P500,000".
The basic facts are not controverted. The plaintiff and the defendant were married in
Bacolod City on February 1, 1938. Six children were born to them, namely, Zenia (1939),
Ronnie (1942), Victoria (1944), Jessie 1945), Bella (1946), and Felipe (1948). During
their coverture they acquired seven parcels of land of the Bacolod Cadastre, all
assessed at P45,429, and three parcels of the Silay Cadastre, all assessed at P43,580.
All these parcels are registered in their names. The hacienda in Silay yielded for the year
1957 a net profit of P3,390.49.
They are also engaged in varied business ventures with fixed assets valued as of
December 31, 1956 at P496,006.92, from which they obtained for that year a net profit of
P75,655.78. The net gain of the Philippine Texboard Factory, the principal business of
the spouses, was P90,454.48 for the year 1957. As of December 31, 1959, the total
assets of the various enterprises of the conjugal partnership were valued at
P1,021,407.68, not including those of the Top Service Inc., of which firm the defendant
has been the president since its organization in 1959 in Manila with a paid-up capital of
P50,000, P10,000 of which was contributed by him. This corporation was the Beverly
Hills Subdivision in Antipolo, Rizal, the Golden Acres Subdivision and the Green Valley
Subdivision in Las Pias, Rizal, and a lot and building located at M. H. del Pilar, Manila
purchased for P285,000, an amount borrowed from the Manufacturer's Bank and Trust
Company.
The spouses are indebted to the Philippine National Bank and the Development Bank of
the Philippines for loans obtained, to secure which they mortgaged the Philippine
Texboard Factory, the Silay hacienda, their conjugal house, and all their parcels of land
located in Bacolod City.
The essential issues of fact may be gleaned from the nine errors the defendant imputes
to the court a quo, namely,
1. In finding that the only visit, from May 15, 1955 to the rendition of the decision,
made by the defendant to the conjugal abode to see his wife was on June 15,
1955;
2. In finding that the letter exh. 3 was written by one Nenita Hernandez and that
she and the defendant are living as husband and wife;
3. In finding that since 1951 the relations between the plaintiff and the defendant
were far from cordial, and that it was from 1948 that the former has been
receiving an allowance from the latter;
4. In finding that the defendant has abandoned the plaintiff;
5. In finding that the defendant since 1956 has not discussed with his wife the
business activities of the partnership, and that this silence constituted "abuse of
administration of the conjugal partnerships";
6. In declaring that the defendant mortgaged the conjugal assets without the
knowledge of the plaintiff and thru false pretences to which the latter was prey;
7. In allowing the plaintiff, on the one hand, to testify on facts not actually known
by her, and, on the other hand, in not allowing the defendant to establish his
special defenses;
8. In ordering separation of the conjugal partnership properties; and
9. In sentencing the defendant to pay to the plaintiff attorney's fees in the amount
of P20,000, with interest at the legal rate.1wph1.t
Two issues of law as well emerge, requiring resolution petition: (1) Did the separation of
the defendant from the plaintiff constitute abandonment in law that would justify a
separation of the conjugal partnership properties? (2) Was the defendant's failure and/or
refusal to inform the plaintiff of the state of their business enterprises such an abuse of
his powers of administration of the conjugal partnership as to warrant a division of the
matrimonial assets?
The plaintiff's evidence may be summarized briefly. The defendant started living in
Manila in 1955, although he occasionally returned to Bacolod City, sleeping in his office
at the Philippine Texboard Factory in Mandalagan, instead of in the conjugal home at
2nd Street, Bacolod City. Since 1955 the defendant had not slept in the conjugal
dwelling, although in the said year he paid short visits during which they engaged in brief
conversations. After 1955 up to the time of the trial, the defendant had never visited the
conjugal abode, and when he was in Bacolod, she was denied communication with him.
He has abandoned her and their children, to live in Manila with his concubine, Nenita
Hernandez. In 1949 she began to suspect the existence of illicit relations between her
husband and Nenita. This suspicion was confirmed in 1951 when she found an unsigned
note in a pocket of one of her husband's polo shirt which was written by Nenita and in
which she asked "Bering" to meet her near the church. She confronted her husband who
forthwith tore the note even as he admitted his amorous liaison with Nenita. He then
allayed her fears by vowing to forsake his mistress. Subsequently, in November 1951,
she found in the iron safe of her husband a letter, exh. C, also written by Nenita. In this
letter the sender (who signed as "D") apologized for her conduct, and expressed the
hope that the addressee ("Darling") could join her in Baguio as she was alone in the
Patria Inn and lonely in "a place for honeymooners". Immediately after her husband
departed for Manila the following morning, the plaintiff enplaned for Baguio, where she
learned that Nenita had actually stayed at the Patria Inn, but had already left for Manila
before her arrival. Later she met her husband in the house of a relative in Manila from
whence they proceeded to the Avenue Hotel where she again confronted him about
Nenita. He denied having further relations with this woman.
Celia Baez, testifying for the plaintiff, declared that she was employed as a cook in the
home of the spouses from May 15, 1955 to August 15, 1958, and that during the entire
period of her employment she saw the defendant in the place only once. This declaration
is contradicted, however, by the plaintiff herself who testified that in 1955 the defendant
"used to have a short visit there," which statement implies more than one visit.
The defendant, for his part, denied having abandoned his wife and children, but admitted
that in 1957, or a year before the filing of the action, he started to live separately from his
wife. When he transferred his living quarters to his office in Mandalagan, Bacolod City,
his intention was not, as it never has been, to abandon his wife and children, but only to
teach her a lesson as she was quarrelsome and extremely jealous of every woman. He
decided to live apart from his wife temporarily because at home he could not concentrate
on his work as she always quarreled with him, while in Mandalagan he could pass the
nights in peace. Since 1953 he stayed in Manila for some duration of time to manage
their expanding business and look for market outlets for their texboard products. Even
the plaintiff admitted in both her original and amended complaints that "sometime in
1953, because of the expanding business of the herein parties, the defendant
established an office in the City of Manila, wherein some of the goods, effects and
merchandise manufactured or produced in the business enterprises of the parties were
sold or disposed of". From the time he started living separately in Mandalagan up to the
filing of the complaint, the plaintiff herself furnished him food and took care of his
laundry. This latter declaration was not rebutted by the plaintiff.
The defendant, with vehemence, denied that he has abandoned his wife and family,
averring that he has never failed, even for a single month, to give them financial support,
as witnessed by the plaintiff's admission in her original and amended complaints as well
as in open court that during the entire period of their estrangement, he was giving her
around P500 a month for support. In point of fact, his wife and children continued to
draw allowances from his office of a total ranging from P1,200 to P1,500 a month. He
financed the education of their children, two of whom were studying in Manila at the time
of the trial and were not living with the plaintiff. While in Bacolod City, he never failed to
visit his family, particularly the children. His wife was always in bad need of money
because she played mahjong, an accusation which she did not traverse, explaining that
she played mahjong to entertain herself and forget the infidelities of her husband.
Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated the
testimony of the defendant on the matter of the support the latter gave to his family, by
declaring in court that since the start of his employment in 1950 as assistant general
manager, the plaintiff has been drawing an allowance of P1,000 to P1,500 monthly,
which amount was given personally by the defendant or, in his absence, by the witness
himself.
The defendant denied that he ever maintained a mistress in Manila. He came to know
Nenita Hernandez when she was barely 12 years old, but had lost track of her thereafter.
His constant presence in Manila was required by the pressing demands of an expanding
business. He denied having destroyed the alleged note which the plaintiff claimed to
have come from Nenita, nor having seen, previous to the trial, the letter exh. C. The
allegation of his wife that he had a concubine is based on mere suspicion. He had
always been faithful to his wife, and not for a single instance had he been caught or
surprised by her with another woman.
On the matter of the alleged abuse by the defendant of his powers of administration of
the conjugal partnership, the plaintiff declared that the defendant refused and failed to
inform her of the progress of their various business concerns. Although she did not
allege, much less prove, that her husband had dissipated the conjugal properties, she
averred nevertheless that her husband might squander and dispose of the conjugal
assets in favor of his concubine. Hence, the urgency of separation of property.
The defendant's answer to the charge of mismanagement is that he has applied his
industry, channeled his ingenuity, and devoted his time, to the management,
maintenance and expansion of their business concerns, even as his wife threw money
away at the mahjong tables. Tangible proof of his endeavors is that from a single cargo
truck which he himself drove at the time of their marriage, he had built up one business
after another, the Speedway Trucking Service, the Negros Shipping Service, the
Bacolod Press, the Philippine Texboard Factory, and miscellaneous other business
enterprises worth over a million pesos; that all that the spouses now own have been
acquired through his diligence, intelligence and industry; that he has steadily expanded
the income and assets of said business enterprises from year to year, contrary to the
allegations of the complainant, as proved by his balance sheet and profit and loss
statements for the year 1958 and 1959 (exhibits 1 and 2); and that out of the income of
their enterprises he had purchased additional equipment and machineries and has
partially paid their indebtedness to the Philippine National Bank and the Development
Bank of the Philippines.
It will be noted that the plaintiff does not ask for legal separation. The evidence
presented by her to prove concubinage on the part of the defendant, while pertinent and
material in the determination of the merits of a petition for legal separation, must in this
case be regarded merely as an attempt to bolster her claim that the defendant had
abandoned her, which abandonment, if it constitutes abandonment in law, would justify
separation of the conjugal assets under the applicable provisions of article 178 of the
new Civil Code which read: "The separation in fact between husband and wife without
judicial approval, shall not affect the conjugal partnership, except that . . . if the husband
has abandoned the wife without just cause for at least one year, she may petition the
court for a receivership, or administration by her of the conjugal partnership property, or
separation of property". In addition to abandonment as a ground, the plaintiff also
invokes article 167 of the new Civil Code in support of her prayer for division of the
matrimonial assets. This article provides that "In case of abuse of powers of
administration of the conjugal partnership property by the husband, the courts, on the
petition of the wife, may provide for a receivership, or administration by the wife, or
separation of property". It behooves us, therefore, to inquire, in the case at bar, whether
there has been abandonment, in the legal sense, by the defendant of the plaintiff, and/or
whether the defendant has abused his powers of administration of the conjugal
partnership property, so as to justify the plaintiff's plea for separation of property.
We have made a searching scrutiny of the record, and it is our considered view that the
defendant is not guilty of abandonment of his wife, nor of such abuse of his powers of
administration of the conjugal partnership, as to warrant division of the conjugal assets.
The extraordinary remedies afforded to the wife by article 178 when she has been
abandoned by the husband for at least one year are the same as those granted to her by
article 167 in case of abuse of the powers of administration by the husband. To entitle
her to any of these remedies, under article 178, there must be real abandonment,
and not mere separation.
1
The abandonment must not only be physical estrangement
but also amount to financial and moral desertion.
Although an all-embracing definition of the term "abandonment " is yet to be spelled out
in explicit words, we nevertheless can determine its meaning from the context of the Law
as well as from its ordinary usage. The concept of abandonment in article 178 may be
established in relation to the alternative remedies granted to the wife when she has been
abandoned by the husband, namely, receivership, administration by her, or separation of
property, all of which are designed to protect the conjugal assets from waste and
dissipation rendered imminent by the husband's continued absence from the conjugal
abode, and to assure the wife of a ready and steady source of support. Therefore,
physical separation alone is not the full meaning of the term "abandonment", if the
husband, despite his voluntary departure from the society of his spouse, neither neglects
the management of the conjugal partnership nor ceases to give support to his wife.
The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or
renounce utterly.
2
The dictionaries trace this word to the root idea of "putting under a
bar". The emphasis is on the finality and the publicity with which some thing or body is
thus put in the control of another, and hence the meaning of giving up absolutely, with
intent never again to resume or claim one's rights or interests.
3
When referring to
desertion of a wife by a husband, the word has been defined as "the act of a husband in
voluntarily leaving his wife with intention to forsake her entirely, never to return to her,
and never to resume his marital duties towards her, or to claim his marital rights; such
neglect as either leaves the wife destitute of the common necessaries of life, or would
leave her destitute but for the charity of others."
4
The word "abandonment", when
referring to the act of one consort of leaving the other, is "the act of the husband or the
wife who leaves his or her consort wilfully, and with an intention of causing per perpetual
separation."
5
Giving to the word "abandoned", as used in article 178, the meaning drawn
from the definitions above reproduced, it seems rather clear that to constitute
abandonment of the wife by the husband, there must be absolute cessation of marital
relations and duties and rights, with the intention of perpetual separation.
Coming back to the case at bar, we believe that the defendant did not intend to leave his
wife and children permanently. The record conclusively shows that he continued to give
support to his family despite his absence from the conjugal home. This fact is admitted
by the complainant, although she minimized the amount of support given, saying that it
was only P500 monthly. There is good reason to believe, however, that she and the
children received more than this amount, as the defendant's claim that his wife and
children continued to draw from his office more than P500 monthly was substantially
corroborated by Marcos Ganaban, whose declarations were not rebutted by the plaintiff.
And then there is at all no showing that the plaintiff and the children were living in want.
On the contrary, the plaintiff admitted, albeit reluctantly, that she frequently
played mahjong, from which we can infer that she had money; to spare.
The fact that the defendant never ceased to give support to his wife and children
negatives any intent on his part not to return to the conjugal abode and resume his
marital duties and rights. In People v. Schelske,
6
it was held that where a husband, after
leaving his wife, continued to make small contributions at intervals to her support and
that of their minor child, he was not guilty of their "abandonment", which is an act of
separation with intent that it shall be perpetual, since contributing to their support
negatived such intent. In re Hoss' Estate, supra, it was ruled that a father did not
abandon his family where the evidence disclosed that he almost always did give his wife
part of his earnings during the period of their separation and that he gradually paid some
old rental and grocery bills.
With respect to the allegation that the defendant maintained a concubine, we believe,
contrary to the findings of the court a quo, that the evidence on record fails to
preponderate in favor of the plaintiff's thesis. The proof that Nenita Hernandez was the
concubine of the defendant and that they were living as husband and wife in Manila, is
altogether too indefinite. Aside from the uncorroborated statement of the plaintiff that she
knew that Nenita Hernandez was her husband's concubine, without demonstrating by
credible evidence the existence of illicit relations between Nenita and the defendant, the
only evidence on record offered to link the defendant to his alleged mistress is exh. C.
The plaintiff however failed to connect authorship of the said letter with Nenita, on the
face whereof the sender merely signed as "D" and the addressee was one unidentified
"Darling". The plaintiff's testimony on cross-examination, hereunder quoted, underscores
such failure:
Q. You personally never received any letter from Nenita?
A. No.
Q. Neither have you received on any time until today from 1949 from Nenita?
A. No.
Q. Neither have you written to her any letter yourself until now?
A. Why should I write a letter to her.
Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting of
Nenita. Is that right?
A. I can say that Nenita writes very well.
Q. I am not asking you whether she writes very well or not but, my question is
this: In view of the fact that you have never received a letter from Nenita, you
have ot sent any letter to her, you are not familiar with her handwriting?
A. Yes.
Q. You have not seen her writing anybody?
A. Yes.
Anent the allegation that the defendant had mismanaged the conjugal partnership
property, the record presents a different picture. There is absolutely no evidence to show
that he has squandered the conjugal assets. Upon the contrary, he proved that through
his industry and zeal, the conjugal assets at the time of the trial had increased to a value
of over a million pesos.
The lower court likewise erred in holding that mere refusal or failure of the husband as
administrator of the conjugal partnership to inform the wife of the progress of the family
businesses constitutes abuse of administration. For "abuse" to exist, it is not enough that
the husband perform an act or acts prejudicial to the wife. Nor is it sufficient that he
commits acts injurious to the partnership, for these may be the result of mere inefficient
or negligent administration. Abuse connotes willful and utter disregard of the interests of
the partnership, evidenced by a repetition of deliberate acts and/or omissions prejudicial
to the latter.
7

If there is only physical separation between the spouses (and nothing more),
engendered by the husband's leaving the conjugal abode, but the husband continues to
manage the conjugal properties with the same zeal, industry, and efficiency as he did
prior to the separation, and religiously gives support to his wife and children, as in the
case at bar, we are not disposed to grant the wife's petition for separation of property.
This decision may appear to condone the husband's separation from his wife; however,
the remedies granted to the wife by articles 167 and 178 are not to be construed as
condonation of the husband's act but are designed to protect the conjugal partnership
from waste and shield the wife from want. Therefore, a denial of the wife's prayer does
not imply a condonation of the husband's act but merely points up the insufficiency or
absence of a cause of action.1wph1.t
Courts must need exercise judicial restraint and reasoned hesitance in ordering a
separation of conjugal properties because the basic policy of the law is homiletic, to
promote healthy family life and to preserve the union of the spouses, in person, in spirit
and in property.
Consistent with its policy of discouraging a regime of separation as not in
harmony with the unity of the family and the mutual affection and help expected
of the spouses, the Civil Code (both old and new) requires that separation of
property shall not prevail unless expressly stipulated in marriage settlements
before the union is solemnized or by formal judicial decree during the existence
of the marriage (Article 190, new Civil Code, Article 1432, old Civil Code): and in
the latter case, it may only be ordered by the court for causes specified in Article
191 of the new Civil Code.
8

Furthermore, a judgment ordering the division of conjugal assets where there has been
no real abandonment, the separation not being wanton and absolute, may altogether
slam shut the door for possible reconciliation. The estranged spouses may drift
irreversibly further apart; the already broken family solidarity may be irretrievably
shattered; and any flickering hope for a new life together may be completely and finally
extinguished.
The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958, long
before the devaluation of the Philippine peso in 1962, should be increased to P3,000.
On the matter of attorney's fees, it is our view that because the defendant, by leaving the
conjugal abode, has given cause for the plaintiff to seek redress in the courts, and ask
for adequate support, an award of attorney's fees to the plaintiff must be made. Ample
authority for such award is found in paragraphs 6 and 11 of article 2208 of the new Civil
Code which empower courts to grant counsel's fees "in actions for legal support" and in
cases "where the court deems it just and equitable that attorney's fees . . . should be
recovered." However, an award of P10,000, in our opinion, is, under the environmental
circumstances, sufficient.
This Court would be remiss if it did not, firstly, remind the plaintiff and the defendant that
the law enjoins husband and wife to live together, and, secondly, exhort them to avail of
mutually, earnestly and steadfastly all opportunities for reconciliation to the end
that their marital differences may be happily resolved, and conjugal harmony may return
and, on the basis of mutual respect and understanding, endure.
ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal
properties, is reversed and set aside. Conformably to our observations, however, the
defendant is ordered to pay to the plaintiff, in the concept of support, the amount of
P3,000 per month, until he shall have rejoined her in the conjugal home, which amount
may, in the meantime, be reduced or increased in the discretion of the court a quo as
circumstances warrant. The award of attorney's fees to the plaintiff is reduced to
P10,000, without interest. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Angeles and Fernando, JJ., concur.

DIGEST
Facts: Estrella de la Cruz, petitioner, was married to Severino de la Cruz, defendant, at
Bacolod City. During their coverture they acquire seven parcels of land in Bacolod
Cadastre and three parcels of land at Silay Cadastre. They are also engaged in varied
business ventures.

The defendant started living in Manila, although he occasionally returned to Bacolod
City, sleeping in his office at the Philippine Texboard Factory in Mandalagan, instead of
in the conjugal home at Bacolod City. Estrella then filed a petition on the ground of
abandonment upon the defendant who had never visited their conjugal abode. She also
began to suspect the defendant in having an illicit relation while in Manila to a certain
Nenita Hernandez, which she confirmed upon getting several pieces of evidence on the
defendants polo shirt and iron safe.

The defendant denied the allegations of the petitioner and that the reason he transferred
his living quarters to his office in Mandalagan, Bacolod City was to teach her a lesson as
she was quarrelsome and extremely jealous of every woman. He decided to live apart
from his wife temporarily because at home he could not concentrate on his work. The
defendant, with vehemence, denied that he has abandoned his wife and family, averring
that he has never failed, even for a single month, to give them financial support. In point
of fact, his wife and children continued to draw allowances from his office and he
financed the education of their children, two of whom were studying in Manila.

Issue: Whether or not respondent abandoned his family and failed to comply with his
obligations.

Ruling: The SC have made a searching scrutiny of the record, and it is considered view
that the defendant is not guilty of abandonment of his wife, nor of such abuse of his
powers of administration of the conjugal partnership, as to warrant division of the
conjugal assets. There must be real abandonment, and not mere separation. The
abandonment must not only be physical estrangement but also amount to financial and
moral desertion.

Therefore, physical separation alone is not the full meaning of the term "abandonment",
if the husband, despite his voluntary departure from the society of his spouse, neither
neglects the management of the conjugal partnership nor ceases to give support to his
wife. The fact that the defendant never ceased to give support to his wife and children
negatives any intent on his part not to return to the conjugal abode and resume his
marital duties and rights.

Partosa-Jo vs. CA (216 SCRA 692)
G.R. No. 82606 December 18, 1992
PRIMA PARTOSA-JO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and HO HANG (with aliases JOSE JO and
CONSING), respondents.

CRUZ, J .:
The herein private respondent, Jose Jo, admits to having cohabited with three women
and fathered fifteen children. The first of these women, the herein petitioner, claims to be
his legal wife whom he begot a daughter, Monina Jo. The other women and their
respective offspring are not parties of these case.
In 1980, the petitioner filed a complaint against Jo for judicial separation of conjugal
property, docketed as Civil Case No. 51, in addition to an earlier action for support, also
against him and docketed as Civil Case No. 36, in the Regional Trial Court of Negros
Oriental, Branch 35.
The two cases were consolidated and tried jointly. On November 29, 1983, Judge
German G. Lee, Jr. rendered an extensive decision, the dispositive portion of which
read:
WHEREFORE, in view of all the foregoing arguments and considerations,
this court hereby holds that the plaintiff Prima Partosa was legally married
to Jose Jo alias Ho Hang, alias Consing, and, therefore, is entitled to
support as the lawfully wedded wife and the defendant is hereby ordered
to give a monthly support of P500.00 to the plaintiff Prima Partosa, to be
paid on or before the 5th day of every month, and to give to the plaintiff
the amount of P40,000.00 for the construction of the house in
Zamboanguita, Negros Oriental where she may live separately from the
defendant being entitled under the law to separate maintenance being the
innocent spouse and to pay the amount of P19,200.00 to the plaintiff by
way of support in arrears and to pay the plaintiff the amount of P3,000.00
in the concept of attorney's fees.
As will be noticed, there was a definite disposition of the complaint for support but none
of the complaint for judicial separation of conjugal property.
Jo elevated the decision to the Court of Appeals, which affirmed the ruling of the trial
court in the complaint for support.
1
The complaint for judicial separation of conjugal
property was dismissed for lack of a cause of action and on the ground that separation
by agreement was not covered by Article 178 of the Civil Code.
When their motions for reconsideration were denied, both parties came to this Court for
relief. The private respondent's petition for review on certiorari was dismissed for
tardiness in our resolution dated February 17, 1988, where we also affirmed the legality
of the marriage between Jose and Prima and the obligation of the former to support her
and her daughter.
This petition deals only with the complaint for judicial separation of conjugal property.
It is here submitted that the Court of Appeals erred in holding that: a) the judicial
separation of conjugal property sought was not allowed under Articles 175, 178 and 191
of the Civil Code; and b) no such separation was decreed by the trial court in the
dispositive portion of its decision.
The private respondent contends that the decision of the trial court can longer be
reviewed at this time because it has a long since become final and executory. As the
decretal portion clearly made no disposition of Civil Case No. 51, that case should be
considered impliedly dismissed. The petitioner should have called the attention of the
trial court to the omission so that the proper rectification could be made on time. Not
having done so, she is now concluded by the said decision, which can no longer be
corrected at this late hour.
We deal first with the second ground.
While admitting that no mention was made of Civil Case No. 51 in the dispositive portion
of the decision of the trial court, the petitioner argues that a disposition of the case was
nonetheless made in the penultimate paragraph of the decision reading as follows:
It is, therefore, hereby ordered that all properties in question are
considered properties of Jose Jo, the defendant in this case, subject to
separation of property under Article 178, third paragraph of the Civil
Code, which is subject of separate proceedings as enunciated herein.
The petitioner says she believed this to be disposition enough and so did not feel it was
necessary for her to appeal, particularly since the order embodied in that paragraph was
in her favor. It was only when the respondent court observed that there was no
dispositive portion regarding that case and so ordered its dismissal that she found it
necessary to come to this Court for relief.
The petitioner has a point.
The dispositive portion of the decision in question was incomplete insofar as it carried no
ruling on the complaint for judicial separation of conjugal property although it was
extensively discussed in the body of the decision. The drafting of the decision was
indeed not exactly careful. The petitioner's counsel, noting this, should have taken
immediate steps for the rectification for the omission so that the ruling expressed in the
text of the decision could have been embodied in the decretal portion. Such alertness
could have avoided this litigation on a purely technical issue.
Nevertheless, the technicality invoked in this case should not be allowed to prevail over
considerations of substantive justive. After all, the technical defect is not insuperable.
We have said time and again that where there is an ambiguity caused by an omission or
a mistake in the dispositive portion of the decision, this Court may clarify such an
ambiguity by an amendment even after the judgment have become final.
2
In doing so,
the Court may resort to the pleading filed by the parties and the findings of fact and the
conclusions of law expressed in the text or body of the decision.
3

The trial court made definite findings on the complaint for judicial separation of conjugal
property, holding that the petitioner and the private respondent were legally married and
that the properties mentioned by the petitioner were acquired by Jo during their marriage
although they were registered in the name of the apparent dummy.
There is no question therefore that the penultimate paragraph of the decision of the trial
court was a ruling based upon such findings and so should have been embodied in the
dispositive portion. The respondent court should have made the necessary modification
instead of dismissing Civil Case No. 51 and thus upholding mere form over substance.
In the interest of substantive justice, and to expedite these proceedings, we hereby
make such modification.
And now to the merits of Civil Case No. 51.
The Court of Appeals dismissed the complaint on the ground that the separation of the
parties was due to their agreement and not because of abondonment. The respondent
court relied mainly on the testimony of the petitioner, who declared under oath that she
left Dumaguete City, where she and Jo were living together "because that was our
agreement." It held that a agreement to live separately without just cause was void under
Article 221 of the Civil Code and could not sustain any claim of abandonment by the
aggrieved spouse. Its conclusion was that the only remedy availabe to the petitioner was
legal separation under Article 175 of the Civil Code,
4
by virtue of which the conjugal
partnership of property would be terminated.
The petitioner contends that the respondent court has misinterpreted Articles 175, 178
and 191 of the Civil Code. She submits that the agreement between her and the private
respondent was for her to temporarily live with her parents during the initial period of her
pregnancy and for him to visit and support her. They never agreed to separate
permanently. And even if they did, this arrangement was repudiated and ended in 1942,
when she returned to him at Dumaguete City and he refused to accept her.
The petitioner invokes Article 178 (3) of the Civil Code, which reads:
Art. 178. The separation in fact between husband and wife without judicial
approval, shall not affect the conjugal partnership, except that:
xxx xxx xxx
(3) If the husband has abandoned the wife without just cause for at least
one year, she may petition the court for a receivership, or administration
by her of the conjugal partnership property or separation of property.
The above-quoted provision has been superseded by Article 128 of the Family Code,
which states:
Art. 128. If a spouse without just cause abandons the other or fails to
comply with his or her obligations to the family, the aggrieved spouse may
petition the court for receivership, for judicial separation of property, of for
authority to be the sole administrator of the conjugal partnership property,
subject to such precautionary conditions as the court may impose.
The obligations to the family mentioned in the preceding paragraph refer
to martial, parental or property relations.
A spouse is deemed to have abondoned the other when he or she has
left the conjugal dwelling without any intention of returning. The spouse
who has left the conjugal dwelling for a period of three months or has
failed within the same period to give any information as to his or her
whereabouts shall be prima facie presumed to have no intention of
returning to the conjugal dwelling.
Under the this provision, the aggrieved spouse may petition for judicial separation on
either of these grounds:
1. Abondonment by a spouse of the other without just cause; and
2. Failure of one spouse to comply with his or her obligations to the family
without just cause, even if she said spouse does not leave the other
spouse.
Abandonment implies a departure by one spouse with the avowed intent never to return,
followed by prolonged absence without just cause, and without in the meantime
providing in the least for one's family although able to do so.
5
There must be absolute
cessation of marital relations, duties and rights, with the intention of perpetual
separation.
6
This idea is clearly expressed in the above-quoted provision, which states
that "a spouse is deemed to have abandoned the other when he or she has left the
conjugal dwelling without any intention of returning."
The record shows that as early as 1942, the private respondent had already rejected the
petitioner, whom he denied admission to their conjugal home in Dumaguete City when
she returned from Zamboanguita. The fact that she was not accepted by Jo
demonstrates all too clearly that he had no intention of resuming their conjugal
relationship. Moreover, beginning 1968 until the determination by this Court of the action
for support in 1988, the private respondent refused to give financial support to the
petitioner. The physical separation of the parties, coupled with the refusal by the private
respondent to give support to the petitioner, sufficed to constitute abandonment as a
ground for the judicial separation of their conjugal property.
In addition, the petitioner may also invoke the second ground allowed by Article 128, for
the fact is that he has failed without just cause to comply with his obligations to the
family as husband or parent. Apart form refusing to admit his lawful wife to their conjugal
home in Dumaguete City, Jo has freely admitted to cohabiting with other women and
siring many children by them. It was his refusal to provide for the petitioner and their
daughter that prompted her to file the actions against him for support and later for
separation of the conjugal property, in which actions, significantly, he even denied being
married to her. The private respondent has not established any just cause for his refusal
to comply with his obligations to his wife as dutiful husband.
Their separation thus falls also squarely under Article 135 of the Family Code, providing
as follows:
Art. 135. Any of the following shall be considered sufficient cause for
judicial separation of property:
xxx xxx xxx
(6) That at the time of the petition, the spouse have been separated in
fact for at least one year and reconciliation is highly improbable.
The amendments introduced in the Family Code are applicable to the case before us
although they became effective only on August 3, 1988. As we held in Ramirez v. Court
of Appeals:
7

The greater weight of authority is inclined to the view that an appellate
court, in reviewing a judgment on appeal, will dispose of a question
according to the law prevailing at the term of such disposition, and not
according to the law prevailing at the time of rendition of the appealed
judgement. The court will therefore reverse a judgement which was
correct at the time it was originally rendered where, by statute, there has
been an intermediate change in the law which renders such judgement
erroneous at the time the case was finally disposed of on appeal.
The order of judicial separation of the properties in question is based on the finding of
both the trial and respondent courts that the private respondent is indeed their real
owner. It is these properties that should now be divided between him and the petitioner,
on the assumption that they were acquired during coverture and so belong to the
spouses half and half. As the private respondent is a Chinese citizen, the division must
include such properties properly belonging to the conjugal partnership as may have
been registered in the name of other persons in violation of the Anti-Dummy Law.
The past has caught up with the private respondent. After his extramarital flings and a
succession of illegitimate children, he must now make an accounting to his lawful wife of
the properties he denied her despite his promise to their of his eternal love and care.
WHEREFORE, the petition is GRANTED and the assailed decision of the respondent
court is MODIFIED. Civil Case No. 51 is hereby decided in favor the plaintiff, the
petitioner herein, and the conjugal property of the petitioner and the private respondent
is hereby ordered divided between them, share and share alike. This division shall be
implemented by the trial court after determination of all the properties pertaining to the
said conjugal partnership, including those that may have been illegally registered in the
name of the persons.
SO ORDERED.
Padilla, Grio-Aquino and Bellosillo, JJ., concur.


DIGEST
Facts: Jose Jo, respondent, cohabited with three women and fathered fifteen children.
The first woman, petitioner Prima Partosa-Jo claims to be his legal wife by whom he
begot a daughter.

Petitioner filed a complaint against Jo for judicial separation of conjugal property and an
action for support. The complaint for support was granted by the lower court but the
judicial separation of conjugal property was never entertained. Jo elevated the decision
for support to the CA but retain its affirmation on trial courts ruling. When their motions
for reconsideration were denied, both parties appeal to SC for the complaint of judicial
separation of conjugal property.

The SC, through the definite findings of the trial court, holds that the petitioner and
respondent were legally married and that the properties mentioned by the petitioner
were acquired by Jo during their marriage although they were registered in the name of
an apparent dummy.

Issue: Whether or not the judicial separation of conjugal property be granted to the
petitioner on the ground of abandonment.

Ruling: SC granted the petition. The record shows that respondent had already rejected
the petitioner. The fact that she was not accepted by Jo demonstrates all too clearly that
he had no intention of resuming their conjugal relationship. The respondent also refuses
to give financial support to the petitioner.

The physical separation of the parties, coupled with the refusal by the respondent to give
support to the petitioner, sufficed to constitute abandonment as a ground for the judicial
separation of their conjugal property.



Article 102
BA Finance Corp. vs. CA (G.R. No. 61464, 28 May 1988)
G.R. No. L-61464 May 28, 1988
BA FINANCE CORPORATION, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, AUGUSTO YULO, LILY YULO (doing
business under the name and style of A & L INDUSTRIES), respondents.

GUTIERREZ, JR., J .:
This is a petition for review seeking to set aside the decision of the Court of Appeals
which affirmed the decision of the then Court of First Instance of Manila, dismissing the
complaint instituted by the petitioner and ordering it to pay damages on the basis of the
private respondent's counterclaim.
On July 1, 1975, private respondent Augusto Yulo secured a loan from the petitioner in
the amount of P591,003.59 as evidenced by a promissory note he signed in his own
behalf and as representative of the A & L Industries. Respondent Yulo presented an
alleged special power of attorney executed by his wife, respondent Lily Yulo, who
manages A & L Industries and under whose name the said business is registered,
purportedly authorizing Augusto Yulo to procure the loan and sign the promissory note.
About two months prior to the loan, however, Augusto Yulo had already left Lily Yulo and
their children and had abandoned their conjugal home. When the obligation became due
and demandable, Augusto Yulo failed to pay the same.
On October 7, 1975, the petitioner filed its amended complaint against the spouses
Augusto and Lily Yulo on the basis of the promissory note. It also prayed for the
issuance of a writ of attatchment alleging that the said spouses were guilty of fraud in
contracting the debt upon which the action was brought and that the fraud consisted of
the spouses' inducing the petitioner to enter into a contract with them by executing a
Deed of Assignment in favor of the petitioner, assigning all their rights, titles and
interests over a construction contract executed by and between the spouses and A.
Soriano Corporation on June 19, 1974 for a consideration of P615,732.50 when, in truth,
the spouses did not have any intention of remitting the proceeds of the said construction
contract to the petitioner because despite the provisions in the Deed of Assignment that
the spouses shall, without compensation or costs, collect and receive in trust for the
petitioner all payments made upon the construction contract and shall remit to the
petitioner all collections therefrom, the said spouses failed and refuse to remit the
collections and instead, misappropriated the proceeds for their own use and benefit,
without the knowledge or consent of the petitioner.
The trial court issued the writ of attachment prayed for thereby enabling the petitioner to
attach the properties of A & L Industries. Apparently not contented with the order, the
petitioner filed another motion for the examination of attachment debtor, alleging that the
properties attached by the sheriff were not sufficient to secure the satisfaction of any
judgment that may be recovered by it in the case. This was likewise granted by the
court.
Private respondent Lily Yulo filed her answer with counterclaim, alleging that although
Augusta Yulo and she are husband and wife, the former had abandoned her and their
children five (5) months before the filing of the complaint; that they were already
separated when the promissory note was executed; that her signature in the special
power of attorney was forged because she had never authorized Augusto Yulo in any
capacity to transact any business for and in behalf of A & L Industries, which is owned
by her as a single proprietor, that she never got a single centavo from the proceeds of
the loan mentioned in the promissory note; and that as a result of the illegal attachment
of her properties, which constituted the assets of the A & L Industries, the latter closed
its business and was taken over by the new owner.
After hearing, the trial court rendered judgment dismissing the petitioner's complaint
against the private respondent Lily Yulo and A & L Industries and ordering the petitioner
to pay the respondent Lily Yulo P660,000.00 as actual damages; P500,000.00 as
unrealized profits; P300,000.00 as exemplary damages; P30,000.00 as and for
attorney's fees; and to pay the costs.
The petitioner appealed. The Court of Appeals affirmed the trial court's decision except
for the exemplary damages which it reduced from P300,000.00 to P150,000.00 and the
attorney's fees which were reduced from P30,000.00 to P20,000.00.
In resolving the question of whether or not the trial court erred in holding that the
signature of respondent Lily Yulo in the special power of attorney was forged, the Court
of Appeals said:
The crucial issue to be determined is whether or not the signatures of the
appellee Lily Yulo in Exhibits B and B-1 are forged. Atty. Crispin Ordoa,
the Notary Public, admitted in open court that the parties in the subject
documents did not sign their signatures in his presence. The same were
already signed by the supposed parties and their supposed witnesses at
the time they were brought to him for ratification. We quote from the
records the pertinent testimony of Atty. Ordoa, thus:
Q. This document marked as Exhibit B-1, when this was
presented to you by that common friend, June Enriquez, it
was already typewritten, it was already accomplished, all
typewritten.?
A. Yes, sir.
Q And the parties had already affixed their signatures in
this document?
A. Yes, sir.
Q. In this document marked as Exhibit B although it
appears here that this is an acknowledgment, you have not
stated here that the principal actually acknowledged this
document to be her voluntary act and deed?
A This in one of those things that escaped my attention.
Actually I have not gone over the second page. I believed
it was in order I signed it. (TSN pp. 13-14, Hearing of Nov.
26, 1976).
The glaring admission by the Notary Public that he failed to state in the
acknowledgment portion of Exhibit B-1 that the appellee Lily Yulo
acknowledged the said document to be her own voluntary act and deed,
is a very strong and commanding circumstance to show that she did not
appear personally before the said Notary Public and did not sign the
document.
Additionally, the Notary Public admitted that, while June Enriquez is
admittedly a mutual friend of his and the defendant Augusta Yulo, and
who is also an instrumental witness in said Exhibit B-1., he could not
recognize or tell which of the two signatures appearing therein, was the
signature of this June Enriquez.
Furthermore, as the issue is one of credibility of a witness, the findings
and conclusions of the trial court before whom said witness, Atty. Crispin
Ordoa, the Notary Public before whom the questioned document was
supposedly ratified and acknowledged, deserve great respect and are
seldom disturbed on appeal by appellate tribunals, since it is in the best
and peculiar advantage of determining and observing the conduct,
demeanor and deportment of a particular witness while he is testifying in
court, an opportunity not enjoyed by the appellate courts who merely
have to rely on the recorded proceedings which transpired in the court
below, and the records are bare of any circumstance of weight, which the
trial court had overlooked and which if duly considered, may radically
affect the outcome of the case.
On the other hand, the appellee Lily Yulo, to back up her claim of forgery
of her signature in Exhibit B-1, presented in court a handwriting expert
witness in the person of Police Captain Yakal Giron of the Integrated
National Police Training Command, and who is also a Document
Examiner of the same Command's Crime Laboratory at Fort Bonifacio,
Metro Manila. His experience as an examiner of questioned and disputed
documents, in our mind, is quite impressive. To qualify him as a
handwriting expert, he declared that he underwent extensive and actual
studies and examination of disputed or questioned document, both at the
National Bureau of Investigation Academy and National Bureau of
Investigation Questioned Document Laboratory, respectively, from July
1964, up to his appointment as Document Examiner in June, 1975, and,
to further his experience along this line, he attended the 297th Annual
Conference of the American Society of Questioned Docurnent Examiners
held at Seattle, Washington, in August 1971, as a representative of the
Philippines, and likewise conducted an observation of the present and
modern trends of crime laboratories in the West Coast, U.S.A., in 1971;
that he likewise had conducted actual tests and examination of about
100,000 documents, as requested by the different courts, administrative,
and governmental agencies of the Government, substantial portions of
which relate to actual court cases.
In concluding that the signatures of the appellee Lily Yulo, in the disputed
document in question (Exh. B-1), were all forgeries, and not her genuine
signature, the expert witness categorically recited and specified in open
court what he observed to be about twelve (12) glaring and material
significant differences, in his comparison of the signatures appearing in
the genuine specimen signatures of the said appellee and with those
appearing in the questioned document (Exhibit B-1). Indeed, we have
likewise seen the supposed notable differences, found in the standard or
genuine signatures of the appellee which were lifted and obtained in the
official files of the government, such as the Bureau of Internal Revenue
on her income tax returns, as compared to the pretended signature of the
appellee appearing in Exhibits B, B-1. It is also noteworthy to mention that
the appellant did not even bother to conduct a cross-examination of the
handwriting expert witness, Capt. Giron, neither did the appellant present
another handwriting expert, at least to counter-act or balance the
appellee's handwriting expert.
Prescinding from the foregoing facts, we subscribe fully to the lower
court's observations that the signatures of the appellee Lily Yulo in the
questioned document (Exh. B-1) were forged. Hence, we find no factual
basis to disagree. (pp. 28-30, Rollo)
As to the petitioner's contention that even if the signature of Lily Yulo was forged or even
if the attached properties were her exclusive property, the same can be made
answerable to the obligation because the said properties form part of the conjugal
partnership of the spouses Yulo, the appellate court held that these contentions are
without merit because there is strong preponderant evidence to show that A & L
Industries belongs exclusively to respondent Lily Yulo, namely: a) The Certificate of
Registration of A & L Industries, issued by the Bureau of Commerce, showing that said
business is a single proprietorship, and that the registered owner thereof is only Lily
Yulo; b) The Mayor's Permit issued in favor of A & L Industries, by the Caloocan City
Mayor's Office showing compliance by said single proprietorship company with the City
Ordinance governing business establishments; and c) The Special Power of Attorney
itself, assuming but without admitting its due execution, is tangible proof that Augusto
Yulo has no interest whatsoever in the A & L Industries, otherwise, there would have
been no necessity for the Special Power of Attorney if he is a part owner of said single
proprietorship.
With regard to the award of damages, the Court of Appeals affirmed the findings of the
trial court that there was bad faith on the part of the petitioner as to entitle the private
respondent to damages as shown not only by the fact that the petitioner did not present
the Deed of Assignment or the construction agreement or any evidence whatsoever to
support its claim of fraud on the part of the private respondent and to justify the issuance
of a preliminary attachment, but also by the following findings:
Continuing and elaborating further on the appellant's mala fide actuations
in securing the writ of attachment, the lower court stated as follows:
Plaintiff not satisfied with the instant case where an order
for attachment has already been issued and enforced, on
the strength of the same Promissory Note (Exhibit"A"),
utilizing the Deed of Chattel Mortgage (Exhibit "4"), filed a
foreclosure proceedings before the Office of the Sheriff of
Caloocan (Exhibit"6") foreclosing the remaining properties
found inside the premises formerly occupied by the A & L
Industries. A minute examination of Exhibit "4" will show
that the contracting parties thereto, as appearing in par. 1
thereof, are Augusto Yulo, doing business under the style
of A & L Industries (should be A & L Glass Industries
Corporation), as mortgagor and BA Finance Corporation
as mortgagee, thus the enforcement of the Chattel
Mortgage against the property of A & L Industries
exclusively owned by Lily T. Yulo appears to be without
any factual or legal basis whatsoever. The chattel
mortgage, Exhibit "4" and the Promissory Note, Exhibit A,
are based on one and the same obligation. Plaintiff tried to
enforce as it did enforce its claim into two different modes
a single obligation.
Aware that defendant Lily Yulo, filed a Motion to Suspend
Proceedings by virtue of a complaint she filed with the
Court of First Instance of Caloocan, seeking annulment of
the Promissory Note, the very basis of the plaintiff in filing
this complaint, immediately after the day it filed a Motion
for the Issuance of an Alias Writ of Preliminary Attachment
. . .Yet, inspite of the knowledge and the filing of this
Motion to Suspend Proceedings, the Plaintiff still filed a
Motion for the Issuance of a Writ of Attachment dated
February 6, 1976 before this court. To add insult to injury,
plaintiff even filed a Motion for Examination of the
Attachment Debtor, although aware that Lily Yulo had
already denied participation in the execution of Exhibits "A"
and "B". These incidents and actions taken by plaintiff, to
the thinking of the court, are sufficient to prove and
establish the element of bad faith and malice on the part of
plaintiff which may warrant the award of damages in favor
of defendant Lily Yulo. (Ibid., pp. 102-103).<re||an1w>
Indeed, the existence of evident bad faith on the
appellant's part in proceeding against the appellee Lily
Yulo in the present case, may likewise be distressed on
the fact that its officer Mr. Abraham Co, did not even
bother to demand the production of at least the duplicate
original of the Special Power of Attorney (Exhibit B) and
merely contended himself with a mere xerox copy thereof,
neither did he require a more specific authority from the A
& L Industries to contract the loan in question, since from
the very content and recitals of the disputed document, no
authority, express or implied, has been delegated or
granted to August Yulo to contract a loan, especially with
the appellant. (pp. 33-34, Rollo)
Concerning the actual damages, the appellate court ruled that the petitioner should have
presented evidence to disprove or rebut the private respondent's claim but it remained
quiet and chose not to disturb the testimony and the evidence presented by the private
respondent to prove her claim.
In this petition for certiorari, the petitioner raises three issues. The first issue deals with
the appellate court's affirmance of the trial court's findings that the signature of the
private respondent on the Special Power of Attorney was forged. According to the
petitioner, the Court of Appeals disregarded the direct mandate of Section 23, Rule 132
of the Rules of Court which states in part that evidence of handwriting by comparison
may be made "with writings admitted or treated as genuine by the party against whom
the evidence is offered, or proved to be genuine to the satisfaction of the judge," and that
there is no evidence on record which proves or tends to prove the genuineness of the
standards used.
There is no merit in this contention.
The records show that the signatures which were used as "standards" for comparison
with the alleged signature of the private respondent in the Special Power of Attorney
were those from the latter's residence certificates in the years 1973, 1974 and 1975, her
income tax returns for the years 1973 and 1975 and from a document on long bond
paper dated May 18, 1977. Not only were the signatures in the foregoing documents
admitted by the private respondent as hers but most of the said documents were used
by the private respondent in her transactions with the government. As was held in the
case of Plymouth Saving & Loan Assn. No. 2 v. Kassing (125 NE 488, 494):
We believe the true rule deduced from the authorities to be that the
genuineness of a "standard" writing may be established (1) by the
admission of the person sought to be charged with the disputed writing
made at or for the purposes of the trial or by his testimony; (2) by
witnesses who saw the standards written or to whom or in whose hearing
the person sought to be charged acknowledged the writing thereof; (3) by
evidence showing that the reputed writer of the standard has acquiesced
in or recognized the same, or that it has been adopted and acted upon by
him his business transactions or other concerns....
Furthermore, the judge found such signatures to be sufficient as standards. In the case
of Taylor-Wharton Iron & Steel Co. v. Earnshaw (156 N.E. 855, 856), it was held:
When a writing is offered as a standard of comparison it is for the
presiding judge to decide whether it is the handwriting of the party to be
charged. Unless his finding is founded upon error of law, or upon
evidence which is, as matter of law, insufficient to justify the finding, this
court will not revise it upon exceptions." (Costelo v. Crowell, 139 Mass.
588, 590, 2 N.E. 648; Nuez v. Perry, 113 Mass, 274, 276.)
We cannot find any error on the part of the trial judge in using the above documents as
standards and also in giving credence to the expert witness presented by the private
respondent whose testimony the petitioner failed to rebut and whose credibility it likewise
failed to impeach. But more important is the fact that the unrebutted handwriting expert's
testimony noted twelve (12) glaring and material differences in the alleged signature of
the private respondent in the Special Power of Attorney as compared with the specimen
signatures, something which the appellate court also took into account. In Cesar v.
Sandiganbayan (134 SCRA 105, 132), we ruled:
Mr. Maniwang pointed to other significant divergences and distinctive
characteristics between the sample signatures and the signatures on the
questioned checks in his report which the court's Presiding Justice kept
mentioning during Maniwang's testimony.
In the course of his cross-examination, NBI expert Tabayoyong admitted
that he saw the differences between the exemplars used and the
questioned signatures but he dismissed the differences because he did
not consider them fundamental. We rule that significant differences are
more fundamental than a few similarities. A forger always strives to
master some similarities.
The second issue raised by the petitioner is that while it is true that A & L Industries is a
single proprietorship and the registered owner thereof is private respondent Lily Yulo,
the said proprietorship was established during the marriage and its assets were also
acquired during the same. Therefore, it is presumed that this property forms part of the
conjugal partnership of the spouses Augusto and Lily Yulo and thus, could be held liable
for the obligations contracted by Augusto Yulo, as administrator of the partnership.
There is no dispute that A & L Industries was established during the marriage of Augusta
and Lily Yulo and therefore the same is presumed conjugal and the fact that it was
registered in the name of only one of the spouses does not destroy its conjugal nature
(See Mendoza v. Reyes, 124 SCRA 161, 165). However, for the said property to be held
liable, the obligation contracted by the husband must have redounded to the benefit of
the conjugal partnership under Article 161 of the Civil Code. In the present case, the
obligation which the petitioner is seeking to enforce against the conjugal property
managed by the private respondent Lily Yulo was undoubtedly contracted by Augusto
Yulo for his own benefit because at the time he incurred the obligation he had already
abandoned his family and had left their conjugal home. Worse, he made it appear that
he was duly authorized by his wife in behalf of A & L Industries, to procure such loan
from the petitioner. Clearly, to make A & L Industries liable now for the said loan would
be unjust and contrary to the express provision of the Civil Code. As we have ruled
in Luzon Surety Co., Inc. v. De Gracia (30 SCRA 111, 115-117):
As explained in the decision now under review: "It is true that the husband
is the administrator of the conjugal property pursuant to the provisions of
Art. 163 of the new Civil Code. However, as such administrator the only
obligations incurred by the husband that are chargeable against the
conjugal property are those incurred in the legitimate pursuit of his career,
profession or business with the honest belief that he is doing right for the
benefit of the family. This is not true in the case at bar for we believe that
the husband in acting as guarantor or surety for another in an indemnity
agreement as that involved in this case did not act for the benefit of the
conjugal partnership. Such inference is more emphatic in this case, when
no proof is presented that Vicente Garcia in acting as surety or guarantor
received consideration therefore, which may redound to the benefit of the
conjugal partnership.(Ibid, pp. 46-47).
xxx xxx xxx
xxx xxx xxx
In the most categorical language, a conjugal partnership under that
provision is liable only for such "debts and obligations contracted by the
husband for the benefit of the conjugal partnership." There must be the
requisite showing then of some advantage which clearly accrued to the
welfare of the spouses. There is none in this case.
xxx xxx xxx
Moreover, it would negate the plain object of the additional requirement in
the present Civil Code that a debt contracted by the husband to bind a
conjugal partnership must redound to its benefit. That is still another
provision indicative of the solicitude and tender regard that the law
manifests for the family as a unit. Its interest is paramount; its welfare
uppermost in the minds of the codifiers and legislators.
We, therefore, rule that the petitioner cannot enforce the obligation contracted by
Augusto Yulo against his conjugal properties with respondent Lily Yulo. Thus, it follows
that the writ of attachment cannot issue against the said properties.
Finally, the third issue assails the award of actual damages according to the petitioner,
both the lower court and the appellate court overlooked the fact that the properties
referred to are still subject to a levy on attachment. They are, therefore, still
under custodia legis and thus, the assailed decision should have included a declaration
as to who is entitled to the attached properties and that assuming arguendo that the
attachment was erroneous, the lower court should have ordered the sheriff to return to
the private respondent the attached properties instead of condemning the petitioner to
pay the value thereof by way of actual damages.
In the case of Lazatin v. Twao (2 SCRA 842, 847), we ruled:
xxx xxx xxx
... It should be observed that Sec. 4 of Rule 59, does not prescribed the
remedies available to the attachment defendant in case of a wrongful
attachment, but merely provides an action for recovery upon the bond,
based on the undertaking therein made and not upon the liability arising
from a tortuous act, like the malicious suing out of an attachment. Under
the first, where malice is not essential, the attachment defendant, is
entitled to recover only the actual damages sustained by him by reason of
the attachment. Under the second, where the attachment is maliciously
sued out, the damages recoverable may include a compensation for
every injury to his credit, business or feed (Tyler v. Mahoney, 168 NC
237, 84 SE 362; Pittsburg etc. 5 Wakefield, etc., 135 NC 73, 47 SE 234).
...
The question before us, therefore, is whether the attachment of the properties of A & L
Industries was wrongful so as to entitle the petitioner to actual damages only or whether
the said attachment was made in bad faith and with malice to warrant the award of other
kinds of damages. Moreover, if the private respondent is entitled only to actual damages,
was the court justified in ordering the petitioner to pay for the value of the attached
properties instead of ordering the return of the said properties to the private respondent
Yulo ?
Both the trial and appellate courts found that there was bad faith on the part of the
petitioner in securing the writ of attachment. We do not think so. "An attachment may be
said to be wrongful when, for instance, the plaintiff has no cause of action, or that there
is no true ground therefore, or that the plaintiff has a sufficient security other than the
property attached, which is tantamout to saying that the plaintiff is not entitled to
attachment because the requirements of entitling him to the writ are wanting. (7 C.J.S.,
664)" (p. 48, Section 4, Rule 57, Francisco, Revised Rules of Court).
Although the petitioner failed to prove the ground relied upon for the issuance of the writ
of attachment, this failure cannot be equated with bad faith or malicious intent. The steps
which were taken by the petitioner to ensure the security of its claim were premised, on
the firm belief that the properties involved could be made answerable for the unpaid
obligation due it. There is no question that a loan in the amount of P591,003.59 was
borrowed from the bank.
We, thus, find that the petitioner is liable only for actual damages and not for exemplary
damages and attorney's fees. Respondent Lily Yulo has manifested before this Court
that she no longer desires the return of the attached properties since the said
attachment caused her to close down the business. From that time she has become a
mere employee of the new owner of the premises. She has grave doubts as to the
running condition of the attached machineries and equipments considering that the
attachment was effected way back in 1975. She states as a matter of fact that the
petitioner has already caused the sale of the machineries for fear that they might be
destroyed due to prolonged litigation. We, therefore, deem it just and equitable to allow
private respondent Lily Yulo to recover actual damages based on the value of the
attached properties as proven in the trial court, in the amount of P660,000.00. In turn, if
there are any remaining attached properties, they should be permanently released to
herein petitioner.
We cannot, however, sustain the award of P500,000.00 representing unrealized profits
because this amount was not proved or justified before the trial court. The basis of the
alleged unearned profits is too speculative and conjectural to show actual damages for a
future period. The private respondent failed to present reports on the average actual
profits earned by her business and other evidence of profitability which are necessary to
prove her claim for the said amount (See G. A. Machineries, Inc. v. Yaptinchay, 126
SCRA 78, 88).
The judgment is therefore set aside insofar as it holds the petitioner liable for
P500,000.00 actual damages representing unrealized profits, P150,000.00 for
exemplary damages and P20,000.00 for attorney's fees. As stated earlier, the attached
properties, should be released in favor of the petitioner.
WHEREFORE, the decision of the Court of Appeals is hereby SET ASIDE and the
petitioner is ordered to pay the private respondent Lily Yulo the amount of SIX
HUNDRED SIXTY THOUSAND PESOS (P660,000.00) as actual damages. The
remaining properties subject of the attachment are ordered released in favor of the
petitioner.
SO ORDERED.
Fernan (Chairman), Feliciano, Bidin and Cortes JJ., concur.

DIGEST
FACTS:

Augusto Yulo secured a loan from the petitioner in the amount of P591,003.59 as
evidenced by a promissory note he signed in his own behalf and as a representative of
A&L Industries. Augusto presented an alleged special power of attorney executed by his
wife, Lily Yulo, who managed the business and under whose name the said business
was registered, purportedly authorized the husband to procure the loan and sign the
promissory note. 2months prior the procurement of the loan, Augusto left Lily and their
children which in turn abandoned their conjugal home. When the obligation became due
and demandable, Augusto failed to pay the same.

The petitioner prayed for the issuance of a writ of attachment alleging that said spouses
were guilty of fraud consisting of the execution of Deed of Assignment assigning the
rights, titles and interests over a construction contract executed by and between the
spouses and A. Soriano Corporation. The writ hereby prayed for was issued by the trial
court and not contented with the order, petitioner filed a motion for the examination of
attachment debtor alleging that the properties attached by the sheriff were not sufficient
to secure the satisfaction of any judgment which was likewise granted by the court.

ISSUE: WON A&L Industries can be held liable for the obligations contracted by the
husband.

HELD:

A&L Industries is a single proprietorship, whose registered owner is Lily Yulo. The said
proprietorship was established during the marriage and assets were also acquired
during the same. Hence, it is presumed that the property forms part of the conjugal
partnership of the spouses and be held liable for the obligations contracted by the
husband. However, for the property to be liable, the obligation contracted by the
husband must have redounded to the benefit of the conjugal partnership. The obligation
was contracted by Augusto for his own benefit because at the time he incurred such
obligation, he had already abandoned his family and left their conjugal home. He
likewise made it appear that he was duly authorized by his wife in behalf of the company
to procure such loan from the petitioner. Clearly, there must be the requisite showing
that some advantage accrued to the welfare of the spouses.

Thus, the Court ruled that petitioner cannot enforce the obligation contracted by Augusto
against his conjugal properties with Lily. Furthermore, the writ of attachment cannot be
issued against the said properties and that the petitioner is ordered to pay Lily actual
damages amouting to P660,000.00.

Johnson & Johnson vs. CA (G.R. No. 102692, 23 September 1996)
THIRD DIVISION
[G.R. No. 102692. September 23, 1996]
JOHNSON & JOHNSON (PHILS.), INC., petitioner, vs. COURT OF APPEALS and
ALEJO M. VINLUAN, respondents.
D E C I S I O N
PANGANIBAN, J .:
May a husband be held liable for the debts of his wife which were incurred without
his consent and which did not benefit the conjugal partnership? May a judgment
declaring a wife solely liable, be executed upon conjugal property, over the objection of
the husband?
These are the main questions raised in the instant petition for review
on certiorari under Rule 45 of the Rules of Court which seeks nullification of the
Decision
[1]
in CA-G.R. SP No. 19178 of the Court of Appeals,
[2]
the dispositive portion of
which reads:
"WHEREFORE, in view of all the foregoing, the instant petition is hereby GRANTED,
and the orders dated July 24, 1989 and October 4, 1989 of the Regional Trial Court of
Makati, Branch 137, in Civil Case No. 4186, as well as the notices of levy issued by the
Provincial Sheriff of Rizal dated February 8, 1989, are hereby declared null and void and
set aside. No costs."
The Facts
This case was initiated in the trial court by a complaint
[3]
filed by petitioner against
spouses Delilah A. Vinluan, owner of Vinluan Enterprises, and her husband Capt. Alejo
M. Vinluan (the private respondent before us), for collection of a sum of money with
damages, which was docketed as Civil Case No. 4186 and tried in the Regional Trial
Court of Makati, Branch 137.
[4]
The respondent appellate Court found the antecedent
facts, to be as follows:
[5]

"The plaintiff-respondent Johnson & Johnson (Phils.), Incorporated (hereinafter referred
to as the corporation) is engaged in the manufacturing and selling of various cosmetics,
health, and body care products, as well as medical drugs. On several occasions in the
year 1982, the defendant, Delilah Vinluan, purchased products of the plaintiff-respondent
corporation, as she was also engaged in the business of retailing Johnson products,
among others. The defendants, under the name and style of 'Vinluan Enterprises,' thus
incurred an obligation of Two Hundred Thirty-Five Thousand Eight Hundred Eighty
Pesos and Eighty-Nine (P235,880.89) Centavos, for which she issued seven (7)
Philippine Banking Corporation checks of varying amounts and due dates. When
presented on their respective due dates, however, the checks given in payment of the
obligation bounced and were dishonored for having been drawn against insufficient
funds.
Several demands thereafter for payment were to no avail, despite the accommodations
given by the plaintiff-respondent corporation by granting several extensions to the
defendant spouses to settle the obligation. It was only on January 5, 1983 that the
defendants made a partial payment of Five Thousand (P5,000.00) Pesos, there by
reducingt heir principal obligation to P230,880.89. When no further payments were
made to settle the obligation despite repeated demands, the plaintiff-respondent
corporation was constrained to file a complaint (Annex 'A') on June 8, 1983 against
defendant spouses Vinluan, for collection of the principal obligation plus interest, with
damages. Filed before the respondent Regional Trial Court of Makati, Branch 137, it
was docketed as Civil Case No. 4186.
After trial on the merits, on February 5, 1985, the respondent court rendered its Decision
(Annex 'C'), the dispositive portion of which reads:
'WHEREFORE, judgment is hereby rendered sentencing the defendant DELILAH A.
VINLUAN to pay plaintiff Johnson & Johnson (Phils.), Inc., the sum of P242,482.40, with
interest and penalty charges at the rate of 2% per month from 30 January 1983 until fully
paid, and the sum of P30,000.00 as attorney's fees, and to pay the costs.
Defendants' counterclaim is hereby dismissed for lack of sufficient merit.
In arriving at the sole liability of defendant Delilah A. Vinluan, the trial court found
after "meticulous scrutiny and careful evaluation of the evidence on record" that there
was "no privity of contract, whether direct or indirect, between plaintiff and defendant-
husband regarding the obligations incurred by defendant-wife." According to the trial
court, "(i)n fact, the acts performed, and the statements made, by defendant-husband,
and from which plaintiff derived the notion that said defendant is a co-owner of VINLUAN
ENTERPRISES, took place after the obligations involved in this action had been
incurred or contracted by the defendant-wife, albeit without the husband's knowledge or
consent, as there was no allegation in the complaint that said obligations were incurred
by defendant-wife with her husband's consent, or that it was incurred for the benefit of
the family. x x x."
[6]

The trial court also found that private respondent never intimidated in his
conversations or meetings with, or in any of his letters to, petitioner that "he was a co-
owner of VINLUAN ENTERPRISES, much less did he represent himself as such co-
owner, to the plaintiff and to plaintiff's counsel x x x." When private respondent
personally negotiated with petitioner and proposed a settlement of the subject
obligations, these actuations were not to be considered as admission of co-ownership of
VINLUAN ENTERPRISES for "(a)fter all, common sense and our inborn mores of
conduct dictate that a husband must give aid and comfort to his distressed wife."
[7]
The
trial court further held that the defendant spouses had sufficiently established that the
defendant wife was sole owner of the business venture, that the conjugal partnership
never derived any benefit therefrom, and that the same closed due to continued
losses. In sum, the court a quo held that private respondent could not legally be held
liable for the obligations contracted by the wife.
Thus, the court below issued a writ of execution
[8]
on February 3, 1989, directing the
Provincial Sheriff of Rizal to execute the judgment on the properties of the defendant-
wife. However, the two notices of levy on execution
[9]
issued on February 8,
1989 covered not only her exclusive or paraphernal properties, but also the real and
personal properties of the conjugal partnership of the spouses Vinluan. The next day,
her husband (herein private respondent) filed a third-party claim
[10]
seeking the lifting of
the levy on the conjugal properties, followed by another third-party claim reiterating the
same demand with threat of possible law suit. Subsequently, petitioner corporation filed
a motion dated February 14, 1989 asking the court to fix the value of the properties
levied upon by the sheriff. In response to the third-party claims of private respondent, a
comment and/or opposition dated March 6, 1989 was filed by petitioner.
Private respondent moved on July 1, 1989 to quash the levy on execution on the
ground that the notices of levy on execution did not conform to the final decision of the
court and to the writ of execution. As expected, petitioner opposed the motion. On July
24, 1989, the trial court issued the first assailed Order fixing the value of the levied
personal properties at P300,000.00, and denying the third-party claim and the motion to
quash the levy on execution. Citing the last sentence of Article 117
[11]
of the Civil Code,
the court a quo ruled that:
[12]

"Since Alejo Vinluan did not seek the intervention of the Court to air his objections in his
wife's engaging in business, coupled by the fact that he made several representations
for the settlement of his wife's account, Alejo Vinluan's consent thereto became
evident. As such, even his own capital may be liable, together with the conjugal and
paraphernal property (I Paras 363, 1978 ed., p. 6; Art. 6-10, Code of
Commerce). Withal, Article 172 of the New Civil Code categorically declares that -
'The wife cannot bind the conjugal partnership without the husband's consent, except in
the cases provided by law.'
Granting arguendo that Alejo Vinluan did not give his consent, expressly or impliedly, the
paraphernal and conjugal property may still be held liable but not his capital (I Paras
363, 1978 ed.)."
Petitioner's motion for reconsideration of the abovequoted first order (on the ground
that it directly contravened the decision itself which had already become final and
executory) was denied via the second contested Order dated October 4, 1989, where
the trial court ruled:
[13]

"The Court finds untenable movant-defendant's assertion that Art. 172 of the New Civil
Code is not in point. The consent of the husband is indeed vital in determining what
properties shall be subsidiarily liable in the event the paraphemal properties of Delilah
Vinluan should turn out to be insufficient to cover the judgment debt, as fully explained in
the Order dated 24 July 1989.
Art. 122 of the Family Code which partly provides that --
'Art. 122. The payment of personal debts contracted by the husband or the wife before
or during the marriage shall not be charged to the conjugal partnership except insofar as
they redounded to the benefit of the family.
x x x x x x x x x.'
is not applicable in that --
'This Code (Family Code) shall have retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the Civil Code or other laws (Art.
255, Family Code; underscoring supplied).'
Plaintiff (petitioner herein), having acquired a vested right prior to the effectivity of the
Family Code, said code is not a propos (sic). Even granting arguendo that the same is
befitting, movant defendant failed to realize that although Delilah Vinluan suffered losses
in her legitimate business, the experience she has gained redounded to the benefit of
the family, and as such, the conjugal partnership must bear the indebtedness and losses
(I Paras 464, 1981 ed.). Moreover, had the business Delilah Vinluan engaged in been a
success, all profits would have been considered conjugal; it is therefore but fair that the
risks of the business should be borne by the conjugal partnership (Miravite, Bar Review
Materials in Commercial Law, 1986 ed., p. 89; J. N. Nolledo, Commercial Law Reviewer,
1985 ed., pp. 6, 7; U.P. Law Complex, Answers to Bar Questions in Commercial Law,
1986 ed., pp. 174, 175; Vitug, Commercial Law Reviewer, 1984, ed., p. 5).
There is a wide-embracing oversight when movant-defendant asserted that to hold the
conjugal partnership property liable for the indebtedness incurred solely by his wife
would in effect modify the Decision dated 5 Feb, 1985 which is now final and
executory. As afore-discussed, the conjugal property is subsidiarily liable."
As indicated above, the private respondent elevated the matter to the respondent
appellate Court, charging the trial court with grave abuse of discretion for effectively
reversing its own final judgment. The respondent Court upheld the private respondent in
its now-assailed Decision, and denied herein petitioner's subsequent motion for
reconsideration. Thus, petitioner is now before us seeking review under Rule 45.
The Issues
Petitioner raised the following "Issues of law" for consideration of this Court, to
wit:
[14]

"1. Whether or not the decision of the honorable trial court dated February 5,
1985 exonerating (sic) defendant husband, private respondent herein, from the
obligation contracted by the wife in the pursuit of her business also absolves the
conjugal partnership from liability.
2. Whether or not the subsequent order of the honorable trial court dated July 24,
1989 and October 4, 1989 is a reversal of its own original decision as found out
by the honorable public respondent."
The pivotal issues in this case may be re-stated thus: whether or not the order of the
trial court denying private respondent's third-party claim and motion to quash levy on
execution in effect amended the dispositive portion of the trial court's decision which had
long become final and executory, and if so, whether same is proper or not. These
issues shall be ruled upon together.
The Court's Ruling
Petitioner contends
[15]
that the purpose of impleading private respondent as co-
defendant in petitioner's complaint was to bind not only the defendant-spouses' conjugal
partnership but also private respondent's capital. The trial court resolved that it was not
necessary that private respondent (as husband) be joined as party-defendant in the suit
below. Inasmuch as it appeared from the allegations in the complaint that private
respondent may be a co-owner of Vinluan Enterprises, the trial court nonetheless did not
exclude private respondent but passed upon the issue of such co-ownership to
determine whether he may be held liable in the same manner as his wife. Petitioner
insists that the trial court in its decision merely made a finding that the private
respondent husband was not a co-owner of the business venture of his wife, which
conclusion ("exoneration") only exempted his capital from the adjudged liability, but not
the conjugal properties of the spouses. Petitioner further argues that nowhere in the trial
court's decision can there be found any pronouncement absolving the conjugal property
from liability, contrary to the findings of the respondent Court.
Also, petitioner reasons that the enforcement of the decision against the conjugal
property is merely compliance with law, and that this Court in a long line of cases
[16]
held
that a judgment is not confined to what appears upon the face of the decision but also
those necessarily included therein or necessary thereto.
[17]
Additionally, petitioner pleads
that the trial court's order did not modify its final and executory decision but only clarified
an ambiguity in the decision as to What properties are liable. As authority, it
cites Republic vs. De los Angeles.
[18]

Petitioner's contentions are devoid of merit.
Respondent Court correctly ruled that the trial court cannot, in the guise of deciding
the third-party claim, reverse its final decision. Commenting on the trial court's very
patent "about-face" on the issues of consent of the husband, benefit to the family, and
the husband's liability for obligations contracted by his wife, the appellate Court held, and
we quote:
[19]

"We see in these stark contradictions an attempt by the respondent Court to reverse
itself, even when the decision sought to be executed had already become final. The
respondent Court has no authority to modify or vary the terms and conditions of a final
and executory judgment (Vda. de Nabong vs. Sadang, 167 SCRA 232) and this attempt
to thwart the rules cannot be allowed to pass. Even if the respondent Court feels that it
needed to reverse its findings to correct itself, the decision, whether erroneous or not,
has become the law of the case between the parties upon attaining finality (Balais
vs. Balais, 159 SCRA 37). The respondent Court has no choice but to order the
execution of the final decision according to what is ordained and decreed in the
dispositive portion of the decision (National Steel Corp. vs. NLRC, 165 SCRA 452).
The dispositive portion of the decision charges the defendant Delilah Vinluan alone to
pay the plaintiff corporation, having already declared that the defendant-husband cannot
be held legally liable for his wife's obligations. Perhaps, when it was later discovered that
the defendant Delilah Vinluan did not have sufficient property of her own to settle the
obligation, the conjugal properties of the defendant-spouses became the object of the
levy. But in order to bind the conjugal partnership and its properties, the New Civil Code
provides that the debts and obligations contracted by the husband (or the wife) must be
for the benefit of the conjugal partnership (Article 161, par. 1); and that the husband
must consent to his wife's engaging in business (Article 117).
Thus, we see a belated effort on the part of the respondent Court to reverse itself by
declaring that the obligations incurred by the defendant wife redounded to the benefit of
the family and that the defendant husband had given his consent, in order to bind the
conjugal partnership.
As We stated earlier, this cannot be done because the decision, along with the
respondent Court's original findings, had already become final and indisputable. The
respondent Court already found that the defendant husband did not give his consent;
neither did the obligation incurred by the defendant wife redound to the benefit of the
family. Hence, the conjugal partnership, as well as the defendant husband, cannot be
held liable. As originally decreed by the Court, only the defendant wife and her
paraphernal property can be held liable. Since the power of the court in execution of
judgments extends only to properties unquestionably belonging to the judgment debtor
alone (Republic vs. Enriquez, 166 SCRA 608), the conjugal properties and the capital of
the defendant husband cannot be levied upon."
The settled rule is that a judgment which has acquired finality becomes immutable
and unalterable, and hence may no longer be modified in any respect except only to
correct clerical errors or mistakes -- all the issues between the parties being deemed
resolved and laid to rest.
[20]
This is meant to preserve the stability of decisions rendered
by the courts, and to dissuade parties from trifling with court processes. One who has
submitted his case to a regular court necessarily commits himself to abide by whatever
decision the court may render. Any error in the decision which has not been considered
in a timely motion for reconsideration or appeal cannot be impugned when such error
becomes apparent only during execution. This rule applies with more force in the case
of the deciding judge who has limited prerogative during execution of the judgment. For
as correctly held by herein public respondent, aside from ordering the enforcement of
the dispositive portion of the decision, the trial judge can do nothing about the errors in
the ratiocination of the decision or even alter the dispositive portion by mere order issued
subsequent to the finality of the decision. The issues having been laid to rest, the court
cannot on the pretext of determining the validity of the third-party claim and the motion to
quash levy on execution alter the scope of the dispositive portion of the decision sought
to be implemented.
Petitioner's arguments notwithstanding, the trial court's order cannot be said to be
merely clarificatory in nature. There is no ambiguity at all in the decision, for it
categorically declared defendant Delilah A. Vinluan solely liable, without any recourse
provided against her husband. Thus, the case of Republic vs. Delos Angeles,
[21]
holding
that doubtful or ambiguous judgments are to have a reasonable intendment to do justice
and avoid wrong, does not apply here. As was later held in Filinvest Credit Corporation
vs. Court of Appeals,
[22]
"(w)here there is an ambiguity, a judgment shall be read in
connection with the entire record and construed accordingly. In such a case, it is proper
to consider the pleadings and the evidence." (Italics supplied). But the text of the trial
court's decision points to no other person liable but Delilah Vinluan, and in fact made a
rather lengthy discussion on the exemption from liability of the conjugal partnership;
hence, there can be no ambiguity to speak of in the decision. And even more clearly,
the body of the decision of the trial court expressly exempted private respondent from
liability by categorically ruling that "the defendant-husband cannot, together, with co-
defendant, legally be held liable for the obligations contracted by the wife.
[23]
Further,
the trial court expounded:
[24]

"x x x. What is more, it is an admitted fact that the subject obligations had partially been
paid by the defendant-wife herself. Thus, plaintiff implicitly averred that 'defendant
Delilah Vinluan, doing business under the name and style of VINLUAN ENTERPRISES
is one of the various customers of the plaintiff's products' (Cf. p. 1, Plaintiff's Pre-Trial
Brief); that 'Delilah Vinluan x x x purchased different Johnson products x x x, thus
incurring an obligation of P235,880.89' (Cf. par. III, Complaint); that 'defendant Delilah
Vinluan tried to pay (her) obligations x x x when she issued Philippine Banking Checks x
x x, but which checks upon presentment to the Bank were dishonored for the reason
'Drawn Against Insufficient Funds' (Cf. par. V, id.); that 'x x x x, defendant Delilah A.
Vinluan appealed to the company and also represented that she be given an opportunity
to settle the accountability' (Cf. par. VI, id.); that 'defendant sent a letter to the company
where she alleged that payment cannot be made because they are 'victims of some bad
practices in the trade and that they are working on some means to settle their accounts
and all that they ask is time to settle.' (Cf. par. VI, id.)."
We take this occasion to reiterate the ruling of this Court in an early case
[25]
that
litigations must end and terminate sometime and somewhere, it being essential to the
effective and efficient administration of justice that once a judgment has become final,
the winning party be not, through a mere subterfuge, deprived of the fruits of the
verdict. Hence, courts must guard against any scheme calculated to bring about that
result, for, constituted as they are to put an end to controversies, courts should frown
upon any attempt to prolong them. Furthermore, public policy and sound practice
demand that at the risk of occasional errors, judgments of courts should become
final and irrevocable at some definite date fixed by law. And this is better observed if the
court executing the judgment would refrain from creating further controversy by
effectively modifying and altering the dispositive portion of the decision, thus further
delaying the satisfaction of the judgment. No matter how just the intention of the trial
court, it cannot legally reverse what has already been settled. Holding the conjugal
partnership liable in the order after the finality of the decision is evidently not just
correcting a mere clerical error; it goes into the merits of the case. And this is prohibited
by the rules and jurisprudence.
We have elsewhere ruled that "should judgments of lower courts -- which may
normally be subject to review by higher tribunals -- become final and executory before,
or without, exhaustion of all recourse of appeal, they, too, become inviolable, impervious
to modification. They may, then, no longer be reviewed, or in any way modified directly
or indirectly, by a higher court, not even by the Supreme Court, much less by any other
official, branch or department of Government."
[26]

"' x x x (N)othing is more settled in the law than that when a final judgment becomes
executory, it thereby becomes immutable and unalterable. The judgment may no longer
be modified in any respect, even if the modification is meant to correct what is perceived
to be an erroneous conclusion of fact or law, and regardless of whether the modification
is attempted to be made by the Court rendering it or by the highest Court of land. The
only recognized exceptions are the correction of clerical errors or the making of so-
called nunc pro tunc entries which cause no prejudice to any party, and, of course,
where the judgment is void.'
Furthermore, '(a)ny amendment or alteration which substantially affects a final and
executory judgment is null and void for lack of jurisdiction, including the entire
proceedings held for that purpose.
[27]

The respondent Court also commented on the sheriffs actuations as follows:
[28]

"Furthermore, it is the duty of the sheriff to ensure that only that portion of the decision
ordained and decreed in the dispositive part should be the subject of the execution
(Cunanan vs. Cruz, 167 SCRA 674). The writ of execution itself states that only the
properties of the defendant wife were to be levied upon. There was no mention even of
conjugal properties. Hence, in levying on the properties that did not exclusively belong
to the judgment debtor, the notices of levy failed to conform to the decree of the
decision, and are, therefore, irregular and contrary to the Rules (Canlas vs. CA, 164
SCRA 160)."
It Is a rule firmly established in our jurisprudence that a sheriff is not authorized to
attach or levy on property not belonging to the judgment debtor.
[29]
A sheriff even incurs
liability if he wrongfully levies upon the property of a third person.
[30]
A sheriff has no
authority to attach the property of any person under execution except that of the
judgment debtor. The sheriff maybe liable for enforcing execution on property belonging
to a third party.
[31]
If he does so, the writ of execution affords him no justification, for the
action is not in obedience to the mandate of the writ.
WHEREFORE, in view of the foregoing considerations, the herein petition is
hereby DENIED, and the Decision of the respondent Court is AFFIRMED. Costs against
petitioner.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Francisco, JJ., concur.

DIGEST
FACTS:

Delilah Vinluan purchased products from petitioner for her retail business under the
name of Vinluan Enterprises incurring an obligation of P235,880.89 for which she
issued seven checks of varying amounts and due dates that bounced and were
dishonored for having been drawn against insufficient funds. Partial payments were
made after several demands. When no further payments were made to settle the
obligation, J&J filed a complaint against the spouses for collection of the principal
obligation plus interest with damages. RTC rendered decision in favor of J&J and found
that there was no privity of contract between J&J and defendant husband Alejo Vinluan
regarding the obligations incurred by the wife. Husband was made a co-owner of the
enterprise afer the obligation involved in this action has been incurred. The court then
issued a writ of execution directing the sheriff to execute judgment on the properties of
the wife. However, the 2 notices of levy on execution covered not only her exclusive
paraphernal properties but also the properties of the conjugal partnership of the
spouses. This led the husband to file a third-party claim seeking the lifting of the levy on
the conjugal properties. Trial court denied the third-party claim since Alejos consent
became evident when he did not seek the intervention of the Court to air his objections
in his wifes engaging business coupled by the fact that he made several representations
for the settlement of his wifes account. Thus, even his own capital may be liable aside
from the conjugal and paraphernal property. Private respondent elevated the matter to
CA, charging the trial court with grave abuse of discretion for effectively reversing its
own final judgment. CA upheld private respondent. Hence this petition by J&J.

ISSUE: WON a husband may be held liable for the debts incurred by his wife without his
consent and did not benefit the conjugal partnership?

HELD:

SC held that respondent court correctly ruled that the trial court cannot, in the guise of
deciding the third-party claim, reverse its final decision. Only the wife and her
paraphernal property can be held liable. And since the pwer of the execution of
judgment extends only to properties belonging to the judgment debtor alone, the
conjugal property and the capital of the husband cannot be levied upon. In any event
that Delilahs paraphernal properties are insufficient, in order to bind the conjugal
partnership properties, the debts and obligations contracted by either the husband or the
wife must be for the benefit of the conjugal partnership and that the husband must
consent to his wifes engaging in business. The respondent court already found that the
husband did not give his consent neither did the obligation incurred by the wife redound
to the benefit of the family.


Conjugal Partnership of Gains (Articles 105-133) 5 Hours

Article 109
Spouses Laperal vs. Spouses Katigbak (90 Phil 77)
Villanueva vs. IAC (192 SCRA 21)

Article 115-116
BPI vs Posadas (56 Phil. 215)
Wong vs IAC (200 SCRA 792)

Article 121-122
Ayala Investments vs. CA (G.R. No. 118305, 12 February 1998)
Carlos vs. Abelardo (G.R. No. 146504, 4 April 2002)

Separation of Property of the Spouse and Administration of Common Property during the
Marriage (Articles 134- 142) -2 Hours

Regime of Separation of Property (Article 143-146) -1 Hour

Property Regime of Unions without Marriage (Article 147-148) -2 Hours

Article 147
Mallilin vs. Castro (G.R. No. 136803, 16 June 2000)
Valdes vs. RTC (260 SCRA 221)
Francisco vs. Master Iron Works Construction Corp. (G.R. No. 151967, 16 February
2005)
Dino vs. Dino (G.R. No. 178044, 19 January 2011)

Article 148
Agapay vs. Palang (276 SCRA 341)
Juaniza vs. Jose (89SCRA 306)
Tumlos vs. Fernandez (G.R. No. 137650, 12 April 2000)

The Family -1 Hour

Family as an Institution (Article 149-151)

Article 149
Docena vs. Lapesura (G.R. No. 140153, 28 March 2001)

Article 150
Martinez vs. Martinez (G.R. No. 162084, 28 June 2005)
Hontiveros vs. RTC (G.R. No. 125465, 29 June 1999)

Article 151
Manalo vs. CA (G.R. No. 129242, 16 January 2001)
Albano vs. Gapusan (AM No. 1022-MJ, 7 May 1976)
Article 332, Revised Penal Code

Family Home (Article 152-162)

Modequillo vs. Breva (185 SCRA 766)
Manacop vs. CA (277 SCRA 941)

Paternity and Filiation -3 Hours

Legitimate Children (Article 163-171)

Article 166
Andal vs. Macaraig (89 Phil. 165)
Benitez-Badua vs. CA (G.R. No. 105625, 24 January 1994)

Article 167
Concepcion vs. CA (G.R. No. 123450, 31 August 2005)

Article 170-171
Liyao vs. Liyao (G.R. No. 138961, 7 March 2002)

Proof of Filiation (Article 172-174)

Article 172
Eceta vs. Eceta (G.R. No. 157037, 20 May 2004)
Constantino vs. Mendez (209 SCRA 18)
Bernabe vs. Alejo (G.R. No. 140500, 21 January 2002)
Jison vs. CA (G.R. No. 124853, 24 February 1998)

Article 173
Conde vs. Abaya (13 Phil. 249)

Illegitimate Children and Legitimated Children (Article 175-182)

Article 176
RA No. 9255
Marquino vs. IAC (G.R. No. 72078, 27 June 1994)

Article 177-180
Angeles vs. Tabiliran (249 SCRA 447)

Adoption -4 Hours

Teotico vs. Del Val (13 SCRA 406)
Republic Act No. 9523
In Re: Petition for Adoption of Michelle Lim, et al. (G.R. No. 168992-93, 21 May 2009)

Domestic Adoption Act of 1998

Republic vs. CA and Bobiles (205 SCRA 356)
Tamargo vs. CA (209 SCRA 518)

Inter-Country Adoption Act of 1995

Support (Article 194-208) -2 Hours

Javier vs. Lucero (94 Phil. 634)
Goitia vs. Campos-Rueda (35 Phil. 252, 262)
De Asis vs De Asis (303 SCRA 176)

Parental Authority

General Provisions (Article 209-215) - 1 Hour

Espiritu vs. CA (242 SCRA 362)

Substitute and Special Parental Authority (Article 216-219) -3 Hours

Amadora vs. CA (160 SCRA 274)
Ylarde vs. Aquino (163 SCRA 697)
St. Marys Academy vs. Carpetanos (G.R. No. 143363, 6 February 2002)

Effect and Suspension/Termination of Parental Authority (Article 220-233) -2 Hours

Tamargo vs. CA
Libi vs. IAC (209 SCRA 518)
RA No. 7610

Emancipation and Age of Majority (Article 234-237) -1 Hour

RA No. 6809

Summary Judicial Proceedings (Article 238-253) -1 Hour

CIVIL CODE

Funerals/ Care and Education of Children (Article 305-310; Article 356-363) -1 Hour

Use of Surnames (Articles 364-380) -1 Hour

Laperal vs. Republic (G.R. No. L-18008, 30 October 1962)
Llaneta vs. Agrava (G.R. No. L-32054, 15 May 1974)

Absence (Articles 381-396) -2 Hours

Lukban vs. Republic

Civil Registry (407-413) -1 Hour

R.A. No. 7048
Republic vs. Cagandahan (G.R. No. 166676, 12 September 2008)