FIRST DIVISION

[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.
DECISION
REYES, J.B.L., J p:
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. E00431, 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
allegations 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
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and

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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 expediente, 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
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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 nondisclosure to a wife by her husband of his premarital 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
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and

ART

48-49

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, nondisclosure
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 nondisclosure 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
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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 official leave.
SECOND DIVISION
[GR No. 47101 . April 25, 1941]
GODOFREDO BUCCAT , plaintiff and appellant ,
against Luida Mangonon OF BUCCAT , and
defendant appealed .
D. Feliciano Leviste, D. Tomas P. Panganiban and
Doa Sotera N. Megia for appellant.
Doa Luida Buccat Mangonon of their own
representation.

marriage, he did so because the defendant had

assured him that she was virgin.
From the decision of the trial court the following
facts:
The plaintiff met the defendant in March 1938
After several entravistas, both were committed
on 19 September mOsmol year. On 26 November
the same year, the plaintiff married the
defendant in the Catholic Cathedral of the City of
Baguio. After living maritally for about eighty-nine
days, the defendant gave birth to a boy of nine
days, the defendant gave birth to a nine-month,
23 February 1939 As a result of this event, the
plaintiff abandoned the defendant and did not
return to make marital life with her.
We see no reason to overturn the original ruling.
Indeed, it is improbable the allegation of the
complainant that the appellant had not even
suspected the gravid state of the defendant,
being this, as is proved in very late pregnant
condition. So there is no need to estimate the
fraud who speaks the appellant. He claimed this
in the sense that it is not uncommon to find
people from developed abdomen, it seems
childish to merit our consideration, both as the
plaintiff maa was freshman right.
Marriage is a very sacred institution: it is the
foundation upon which society rests. You can stop
this are necessary clear and convincing evidence.
In this case there is no such evidence.
Finding the original ruling in accordance with law,
must be confirmed, such as the uphold this, in its
entirety, with costs against the appellant. So it is
ordered.
Avancea, Pres. Imperial, Diaz, and Laurel, MM.,
are compliant.

SYLLABUS
1 MARRIAGE; Validity. - Marriage is a very
sacred institution: it is the foundation upon which
society rests. You can stop this are necessary
clear and convincing evidence. In this case there
is no such evidence.
DECISION
HORRILLENO , M. p :
This issue has been elevated to this superiority
by the Court of First Instance of Baguio, as only
raises a question purely of law.
The March 20, 1939 the plaintiff initiated the
present case, where the defendant failed to
appear, despite having been duly summoned. So,
I allowed the plaintiff to present evidence, the
lower court ruling the matter in favor of the
defendant. Hence this appeal.
The applicant seeks the annulment of her
marriage with the defendant been Luida Buccat
Mangonon of the November 26, 1938 in Baguio
City, the grounds that, in consenting to the
3 | FA M I LY _ A R T 4 5 - 4 6

and

ART

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FIRST DIVISION
[G.R. No. L-15853. July 27, 1960.]
FERNANDO AQUINO, petitioner, vs. CONCHITA
DELIZO, respondent.
N. L. Dasig and C. L. Francisco for petitioner.
Federico Roy for respondent.
SYLLABUS

CASES

1.MARRIAGE; ANNULMENT; CONCEALMENT

OF PREGNANCY AT TIME OF MARRIAGE
CONSTITUTES FRAUD AS GROUND FOR
ANNULMENT. 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 (Art. 85, par. (4) in relation to Art. 86,
par. (3), New Civil Code).
2.NEW TRIAL; MERE FAILURE TO ANSWER
MOTION
IS
NEITHER
EVIDENCE
OF
COLLUSION NOR GROUND FOR DENIAL.
When the evidence sought to be introduced at
the new trial, taken together with what has
already been adduced would be sufficient to
sustain the fraud alleged by plaintiff, the motion
praying for new trial should not be denied simply
because defendant failed to file her answer
thereto. Such failure cannot be talked as
evidence of collusion, especially where a
provincial fiscal has been ordered to represent
the Government precisely to prevent such
collusion.
DECISION
GUTIERREZ DAVID, J p:
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 the 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 attorneys 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
4 | FA M I LY _ A R T 4 5 - 4 6

and

ART

48-49

child was born within 180 days after the marriage

between
the
parties,
and
holding
that
concealment of pregnancy as alleged by plaintiff
does not constitute such fraud as 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 commonlaw 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 that Cesar Aquino and defendant
lived together as husband and wife before
December 27, 1954, the date of plaintiff's
marriage to defendant;

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"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 Carrolle 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
5 | FA M I LY _ A R T 4 5 - 4 6

and

ART

48-49

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 to 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 circumstances, 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.
EN BANC
[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 & Silang for appellee.
SYLLABUS
CASES

1.MARRIAGE; ITS NATURE AND SANCTITY;

SECURITY AND STABILITY OF STATE.
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 in the interest and duty 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.
2.ID.;
ANNULMENT;
IMPOTENCY;
LONE
TESTIMONY OF HUSBAND; CASE AT BAR.
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 because from the
commencement of the proceedings until the
entry of the decree she had abstained from
taking part therein.
3.ID.; WOMAN'S REFUSAL FOR PHYSICAL
EXAMINATION;
NOT
SUPPRESSION
OF
EVIDENCE. Although the wife's 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
woman 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 upon her constitutional
right. A physical examination 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. Impotency being an
abnormal condition should not be presumed.
4.ID.; ANNULMENT; PRESUMPTION OF POTENCY;
HUSBAND'S LONE TESTIMONY INSUFFICIENT.
The presumption is in favor of potency. 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.
DECISION
PADILLA, J p:
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
6 | FA M I LY _ A R T 4 5 - 4 6

and

ART

48-49

on 3 August 1950 before a judge of the municipal

court of Zamboanga City, upon the ground that
the orifice of her genitals or vagina was too 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 with 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 between
the parties and, if there was no 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 so 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.

CASES

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.

ARTICLE 48 AND 49
OF THE FAMILY
CODE

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 and duty 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, because 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 upon her
constitutional right. A physical examination 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.

FIRST DIVISION
[G.R. No. 137590. March 26, 2001.]
FLORENCE MALCAMPO-SIN, petitioner, vs.
PHILIPP T. SIN, respondent.

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.
Pars, C.J., Bengzon, Bautista Angelo, Labrador,
Concepcin, Reyes, J.B.L., Barrera, Gutierrez
David, and Dizon, JJ. concur.
7 | FA M I LY _ A R T 4 5 - 4 6

and

ART

48-49

DECISION
PARDO, J p:
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
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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. cSTHAC
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 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 (underscoring ours).
"In the cases referred to in the preceding
paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment."
8 | FA M I LY _ A R T 4 5 - 4 6

and

ART

48-49

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
(undescoring 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
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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 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. SADECI
"(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,
9 | FA M I LY _ A R T 4 5 - 4 6

and

ART

48-49

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. TAIEcS
Davide, Jr., C.J., Puno, Kapunan and YnaresSantiago, JJ., concur.
EN BANC
[G.R. No. L-13553. February 23, 1960.]
JOSE DE OCAMPO, petitioner, vs. SERAFINA
FLORENCIANO, respondent.
Joselito J. Coloma for petitioner.
No appearance for respondent.
SYLLABUS
1. LEGAL SEPARATION; CONFESSION OF
JUDGMENT; EXISTENCE OF EVIDENCE OF
ADULTERY INDEPENDENTLY OF CONFESSION.
Where there is evidence of the adultery
independently of the defendant's statement
agreeing to the legal separation, the decree of
separation should be granted, since it would not
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be based on the confession but upon the

evidence presented by the plaintiff. What the law
prohibits is a judgment based exclusively on
defendant's confession.
2. ID.; ID.; ADMISSIBILITY OF CONFESSION
MADE OUTSIDE OF COURT. Article 101 of the
new Civil Code does not exclude, as evidence,
any admission or confession made by the
defendant outside of the court.
3. ID.; ID.; COLLUSION MAY NOT BE
INFERRED FROM CONFESSION. Collusion
may not be inferred from the mere fact that the
guilty party confesses to the offense of adultery,
desires the divorce and makes no defense.
4.
ID.;
CONDONATION;
FAILURE
OF
HUSBAND TO SEARCH FOR ERRING WIFE.
In the case at bar, the wife left her husband after
the latter discovered her dates with other men.
Held: The failure of the husband actively to
search for his wife and take her home does not
constitute condonation or consent to the adultery.
It was not his duty to search for her.
DECISION
BENGZON, J p:
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.
10 | F A M I L Y _ A R T 4 5 - 4 6

and

ART

48-49

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 got 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.
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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 did 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 defendant told the
Fiscal that she "liked 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.)

11 | F A M I L Y _ A R T 4 5 - 4 6

and

ART

48-49

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 taken
place, according to the evidence. The defendant
could not have falsely 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 spouses, with all the consequent
effects. Costs of all instances against Serafina
Florenciano. So ordered.
Pars, C. J., Padilla, Montemayor, Labrador,
Concepcin, Reyes, J. B. L., Endencia, Barrera and
Gutirrez David, JJ., concur.

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