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Per Rec. No.

L-2555 September 3, 1935

LEONARDO S. BITON, Petitioner, vs. ANDRES MOMONGAN, Respondent.

The respondent in his own behalf.


Office of the Solicitor-General for the Government.

IMPERIAL, J.:

The administrative case originated from the complaint for malpractice filed against the respondent attorney. The latter was a legal
practictioner and at the same time a notary public in the City of Cebu, Province of Cebu. On October 26, 1927, he ratified, as notary
public, a document entitled "Legal Separation", executed by the spouses Leonardo Biton and Fortunata Quijano, as husband and wife,
wherein it was agreed that they separated mutually and voluntarily, that they renounced their rights and obligations, and that they
authorized each other to remarry, renouncing any action to which they might be entitled and each promising not to be a witness against
the other.chanroblesvirtualawlibrary chanrobles virtual law library

The respondent admits that he ratified the document without reading its contents, but that he was not the one who prepared it. The
complainant testified that the respondent prepared the document and that it was drawn up to conform with the respondent's legal advice
to him and his wife. The latter asserts that it was her husband who had prepared the document. In the face of this evidence, we are of
the opinion that it is preponderantly in favor of the respondent's claim that he did not draft the
document.chanroblesvirtualawlibrary chanrobles virtual law library

It seems evident that the respondent ratified the document with knowledge of its contents. It is unbelievable that he had merely asked
the parties to the document if the acknowledged its contents without he himself being familiar therewith. The word "pleases" appearing
on the second line of the second paragraph has the respondent's initial's stamped over it. The latter admitted his initials and the authorship
of the amendment. This admission necessarily implies knowledge of the contents of the document, for otherwise it would not have been
possible for the respondent to make the amendment.chanroblesvirtualawlibrary chanrobles virtual law library

The contract acknowledged by the respondent is indubitably illegal and immoral. Its covenants are contrary to laws, morals, and good
customs, and tend to subvert the vital foundation of the legitimate family. The ratification of a contract of this type, executed by a notary
public who is a practicing attorney at the same time, constitutes malpractice, and as a disciplinary measure, this court may impose even
disbarment. (Paganiban vs. Borromeo, 58 Phil., 367.)chanrobles virtual law library

In imposing the punishment, there should be taken into account the recommendation for leniency made by the judge who conducted the
investigation, and the circumstance that the respondent has been undoubtedly suspended from the office of notary public to which he
will not be reappointed for an indefinite period; wherefore, we hold the respondent Andres Momongan guilty of malpractice, and he is
hereby severely censured. So ordered.chanroblesvirtualawlibrary chanrobles virtual law library

Avancea, C.J., Malcolm, Villa-Real, Abad Santos, Hull, Butte, Goddard, and Recto, JJ.,concur.

G.R. No. L-28248 March 12, 1975

LEONORA PERIDO, joined by husband MANUEL PIROTE, INOCENCIA PERIDO, ALBENIO PERIDO, PAULINO
PERIDO, LETIA PERIDO, joined by husband BIENVENIDO BALYAO, LETICIA PERIDO, joined by husband FELIX
VILLARUZ, EUFEMIA PERIDO, CONSOLACION PERIDO, ALFREDO PERIDO, GEORGE PERIDO, AMPARO
PERIDO, WILFREDO PERIDO, MARGARITA PERIDO, ROLANDO SALDE and EDUARDO SALDE, petitioners,
vs.
MARIA PERIDO, SOFRONIO PERIDO, JUAN A. PERIDO, GONZALO PERIDO, PACITA PERIDO, MAGDALENA
PERIDO, ALICIA PERIDO, JOSEFINA PERIDO, FE PERIDO, TERESA PERIDO and LUZ PERIDO, respondents.

Januario L. Jison, Jr. for petitioners.

Antonio T. de Jesus for respondents.

MAKALINTAL, C.J.:+.wph!1

This is an appeal by certiorari from the decision of the Court of Appeals in its CA-G.R. No. 37034-R, affirming the decision of the Court
of First Instance of Negros Occidental in Civil Case No. 6529.

Lucio Perido of Himamaylan, Negros Occidental, married twice during his lifetime. His first wife was Benita Talorong, with whom he
begot three (3) children: Felix, Ismael, and Margarita. After Benita died Lucio married Marcelina Baliguat, with whom he had five (5)
children: Eusebio, Juan, Maria, Sofronia and Gonzalo. Lucio himself died in 1942, while his second wife died in 1943.
Of the three (3) children belonging to the first marriage only Margarita Perido is still living. Her deceased brother, Felix Perido, is
survived by his children Inocencia, Leonora, Albinio, Paulino, Letia, Leticia, and Eufemia, all surnamed Perido. Nicanora Perido,
another daughter of Felix, is also deceased, but is survived by two (2) sons, Rolando and Eduardo Salde.

Margarita's other deceased brother, Ismael Perido, is survived by his children, namely: Consolacion, Alfredo, Wilfredo, and Amparo.
Susano Perido, another son of Ismael, is dead, but survived by his own son George Perido.

Of Lucio Perido's five (5) children by his second wife, two are already dead, namely: Eusebio and Juan. Eusebio is survived b y his
children Magdalena Perido, Pacita Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa Perido, and Luz Perido, while Juan is
survived by his only child, Juan A. Perido.

On August 15, 1960 the children and grandchildren of the first and second marriages of Lucio Perido executed a document denominated
as "Declaration of Heirship and Extra-judicial Partition," whereby they partitioned among themselves Lots Nos. 458, 471, 506, 511,
509, 513-B, 807, and 808, all of the Cadastral Survey of Himamaylan, Occidental Negros.

Evidently the children belonging to the first marriage of Lucio Perido had second thoughts about the partition. On March 8, 1962 they
filed a complaint in the Court of First Instance of Negros Occidental, which complaint was later amended on February 22, 1963, against
the children of the second marriage, praying for the annulment of the so-called "Declaration of Heirship and Extra-Judicial Partition"
and for another partition of the lots mentioned therein among the plaintiffs alone. They alleged, among other things, that they had been
induced by the defendants to execute the document in question through misrepresentation, false promises and fraudulent means; that the
lots which were partitioned in said document belonged to the conjugal partnership of the spouses Lucio Perido and Benita Talorong,
and that the five children of Lucio Perido with Marcelina Baliguat were all illegitimate and therefore had no successional rights to the
estate of Lucio Perido, who died in 1942. The defendants denied the foregoing allegations.

After trial the lower court rendered its decision dated July 31, 1965, annulling the "Declaration of Heirship and Extra-Judicial Partition."
However, it did not order the partition of the lots involved among the plaintiffs exclusively in view of its findings that the five children
of Lucio Perido with his second wife, Marcelina Baliguat, were legitimate; that all the lots, except Lot No. 458, were the exclusive
properties of Lucio Perido; and that 11/12 of Lot No. 458 belonged to the conjugal partnership of Lucio Perido and his second wife,
Marcelina Baliguat. The dispositive portion of the decision reads as follows:t.hqw

IN VIEW OF ALL THE FOREGOING, the Court renders judgment as follows: declaring the following as the
legitimate children and grandchildren and heirs of Lucio Perido and Benita Talorong: Felix Perido, deceased;
grandchildren: Inocencia Perido, Leonora Perido, Albinio Perido, Paulino Perido, Letia Perido, Leticia Perido,
Eufemia Perido; Nicanora Perido, deceased; great grandchildren: Rolando Salde and Eduardo Salde; Ismael Perido,
deceased; grandchildren: Consolacion Perido, Alfredo Perido, Susano Perido, deceased; great grandson: George
Perido; Amparo Perido and Wilfredo Perido; and, Margarita Perido; (2) declaring the following as the legitimate
children and grandchildren and heirs of Lucio Perido and Marcelina Baliguat: Eusebio Perido, deceased;
grandchildren: Pacita Perido, Magdalena Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa Perido, and Luz
Perido; Juan B. Perido, deceased; grandson, Juan A. Perido; Maria Perido; Sofronia Perido; and Gonzalo Perido; (3)
declaring all lots (471, 506, 511, 509, 513-part, 807, and 808) except Lot No. 458 as exclusive properties of Lucio
Perido so that each of them should be divided into eight (8) equal parts: 1/8 belongs to Felix Perido, but because of
his death leaving eight (8) children, the same should be divided and alloted as follows: 1/64 to Inocencia Perido of
age, widow; 1/64 to Leonora Perido, of age, married to Manuel Pirote; 1/64 to Albinio Perido, of age, married to
Honorata Villasana; 1/64 to Paulino Perido, of age, married to Norma Villalba 1/64 to Letia Perido, of age, married
to Bienvenido Balyac; 1/64 to Leticia Perido, of age, married to Felix Villaruz; 1/64 to Eufemia Perido, of age, single;
1/64 to Nicanora Perido, but because she is now dead the same should be divided and alloted as follows: 1/128 to
Rolando Salde, of age, single; and 1/128 to Eduardo Salde, of age, single; 1/8 belongs to Ismael Perido, but because
he is already dead leaving five children, the same should be divided and alloted as follows: 1/40 to Consolacion Perido,
of age, widow; 1/40 to Alfredo Perido, of age married to Trinidad Tamargo; 1/40 to Susano Perido, but he is already
dead with one son, the same goes to George Perido, of age, single; 1/40 to Wilfredo Perido, of age, single; 1/8 belongs
to Margarita Perido, of age, widow; 1/8 belongs to Eusebio Perido, but because he is already dead with seven children,
the same should be divided and alloted as follows: 1/56 goes to Pacita Perido, of age, single; 1/56 goes to Magdalena
Perido, of age, single; 1/56 goes to Alicia Perido, of age, married to Isaias Ruiz; 1/56 goes to Josefina Perido, of age,
married to Leopoldo Doloroso; 1/56 goes to Fe Perido, of age, single; 1/56 goes to Teresa Perido, of are single; 1/56
goes to Luz Perido, of age, married to Fidel de la Cruz; 1/8 belongs to Juan B. Perido, but because he is already dead
with one child, the same 1/8 goes to Juan A. Perido, of age, married to Salud Salgado 1/8 goes to Maria Perido. of
age, married to Julio Pirote; 1/8 goes to Sofronia Perido, of age, widow; and, 1/8 goes to Gonzalo Perido, of age,
married to Lacomemoracion Estiller; (4) declaring the 11/12 shares in Lot No. 458 as conjugal partnership property
of Lucio Perido and Marcelina Baliguat, which should be divided and alloted as follows: 11/24 goes to Lucio Perido
to be divided into eight (8) equal shares and 11/24 goes to Marcelina Baliguat to be divided into five (5) equal shares
or 11/120 for each of the children and again to be divided by the children of each child now deceased; (6) declaring
Fidel Perido owner of 1/12 share in Lot 458 to be divided among his heirs to be determined accordingly later; and (6)
declaring null and void Exhibit "J" of the plaintiffs which is Exhibit "10" for the defendants, without costs and without
adjudication with respect to the counterclaim and damages, they being members of the same family, for equity and
justice.

The plaintiffs appealed to the Court of Appeals, alleging that the trial court erred: (1) in declaring that Eusebio Perido, Juan Perido,
Maria Perido, Sofronia Perido and Gonzalo Perido, were the legitimate children of Lucio Perido and his second wife, Marcelina Baliguat;
(2) in declaring that Lucio Perido was the exclusive owner of Lots Nos. 471, 506, 511, 509, 513-Part, 807, and 808 of Cadastral Survey
of Himamaylan, Negros Occidental, and in not declaring that said lots were the conjugal partnership property of Lucio Perido and his
first wife, Benita Talorong; and (3) in holding that 11/12 of Lot 458 was the conjugal partnership property of Lucio Perido and Marcelina
Baliguat.
Finding no reversible error in the decision of the lower court, the Court of Appeals affirmed it in toto. The appellants moved to reconsider
but were turned down. Thereupon they instituted he instant petition for review reiterating in effect the assignments of error and the
arguments in the brief they submitted to the appellate court.

The first issue pertains to the legitimacy of the five children of Lucio Perido with Marcelina Baliguat. The petitioners insist that said
children were illegitimate on the theory that the first three were born out of wedlock even before the death of Lucio Perido's first wife,
while the last two were also born out of wedlock and were not recognized by their parents before or after their marriage. In support of
their contention they allege that Benita Talorong died in 1905, after the first three children were born, as testified to by petitioner
Margarita Perido and corroborated by petitioner Leonora Perido; that as late as 1923 Lucio Perido was still a widower, as shown on the
face of the certificates of title issued to him in said year; and Lucio Perido married his second wife, Marcelina Baliguat, only in 1925,
as allegedly established through the testimony of petitioner Leonora Perido.

The petition cannot be sustained. The Court of Appeals found that there was evidence to show that Lucio Perido's wife, Benita Talorong,
died during the Spanish regime. This finding conclusive upon us and beyond our power of review. Under the circumstance, Lucio Perido
had no legal impediment to marry Marcelina Baliguat before the birth of their first child in 1900.

With respect to the civil status of Lucio Perido as stated in the certificates of title issued to him in 1923, the Court of Appeals correctly
held that the statement was not conclusive to show that he was not actually married to Marcelina Baliguat. Furthermore, it is weak and
insufficient to rebut the presumption that persons living together husband and wife are married to each other. This presumption,
especially where legitimacy of the issue is involved, as in this case, may be overcome only by cogent proof on the part of those who
allege the illegitimacy. In the case of Adong vs. Cheong Seng Gee1 this Court explained the rationale behind this presumption, thus:
"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 he living in the constant violation of decency and of law. A
presumption established by our Code of Civil Procedure is "that a man and 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."

While the alleged marriage ceremony in 1925, if true, might tend to rebut the presumption of marriage arising from previous
cohabitation, it is to be noted that both the trial court and the appellate court did not even pass upon the uncorroborated testimony of
petitioner Leonora Perido on the matter. The reason is obvious. Said witness, when asked why she knew that Marcelina Baliguat was
married to Lucio Perido only in 1925, merely replied that she knew it because "during the celebration of the marriage by the Aglipayan
priest (they) got flowers from (their) garden and placed in the altar." Evidently she was not even an eyewitness to the ceremony.

In view of the foregoing the Court of Appeals did not err in concluding that the five children of Lucio Perido and Marcelina Baliguat
were born during their marriage and, therefore, legitimate.

The second assignment of error refers to the determination of whether or not Lots Nos. 471, 506, 511, 509-513-Part, 807 and 808 were
the exclusive properties of Lucio Perido. In disposing of the contention of the petitioners that said lots belong to the conjugal partnership
of spouses Lucio Perido and Benita Talorong, the Court of Appeals said:t.hqw

... We cannot agree again with them on this point. It is to be noted that the lands covered by the certificates of title
(Exhs. B to G) were all declared in the name of Lucio Perido. Then there is evidence showing that the lands were
inherited by Lucio Perido from his grandmother (t.s.n., p. 21, Feb. 20, 1964). In other words, they were the exclusive
properties of the late Lucio Perido which he brought into the first and second marriages. By fiat of law said Properties
should be divided accordingly among his legal heirs.

The petitioners take exception to the finding of the appellate court that the aforementioned lots were inherited by Lucio Perido from his
grandmother and contend that they were able to establish through the testimonies of their witnesses that the spouses Lucio Perido and
Benita Talorong acquired them during their lifetime. Again, the petitioners cannot be sustained. The question involves appreciation of
the evidence, which is within the domain of the Court of Appeals, the factual findings of which are not reviewable by this Court.

The third assignment of error is with regard to the ruling of the Court of Appeals sustaining the finding of the trial court that 11/12 of
Lot 458 was the conjugal partnership property of Lucio Perido and his second wife, Marcelina Baliguat. Said the appellate
court:t.hqw

With respect to Lot No. 458 which is now covered by Original Certificate of Title No. 21769 issued in 1925 the same
should be considered conjugally owned by Lucio Perido and his second wife, Marcelina Baliguat. The finding of the
lower court on this point need not be disturbed. It is expressly stated in the certificate of title (Exh. L) that Lucio
Perido, the registered owner, was married to Marcelina Baliguat unlike in the previous land titles. If the law presumes
a property registered in the name of only one of the spouses to be conjugal (Guinguing vs. Abutin, 48 Phil. 144; Flores
vs. Flores, 48 Phil. 288, Escutin vs. Escutin, 60 Phil. 922), the presumption becomes stronger when the document
recites that the spouse in whose name the land is registered is married to somebody else, like in the case at bar. It
appearing that the legal presumption that the No. 458 belonged to the conjugal partnership had not been overcome by
clear proofs to the contrary, we are constrained to rule, that the same is the conjugal property of the deceased spouses
Lucio Perido and Marcelina Baliguat.

In impugning the foregoing ruling, the petitioners maintain that they were able to prove that 6/12 of said Lot 458 was the conjugal
property of spouses Lucio Perido and his first wife, Benita Talorong, and that the purchase price of the additional 5/12 of said lot came
from the proceeds of sale of a lot allegedly belonging to Lucio Perido and his three children of the first marriage. As in the second
assignment of error, the issue raised here also involves appreciation of the evidence and, consequently, the finding of the appellate court
on the matter is binding on this Court. Indeed, a review of that finding would require an examination of all the evidence introduced
before the trial court, a consideration of the credibility of witnesses and of the circumstances surrounding the case, their relevancy or
relation to one another and to the whole, as well as an appraisal of the probabilities of the entire situation. It would thus abolish the
distinction between an ordinary appeal on the one hand and review on certiorari on the other, and thus defeat the purpose for which the
latter procedure has been established.2

WHEREFORE, the decision of the Court of Appeals is hereby affirmed, with costs against the petitioners.

Castro, Teehankee, Makasiar and Esguerra, JJ., concur.1wph1.t

Muoz Palma, J., is on leave.

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.

xxx xxx xxx

ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by paying the pension that may be fixed
or by receiving and maintaining in his own home the person having the right to the same.

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 Territorial wherein, after due trial, judgment was rendered in her favor dismissing the action upon the
merits. The plaintiff appealed to the supreme court and that high tribunal, in affirming the judgment of the Audencia Territorial, said:

Considering that article 143, No. 1, of the Civil Code, providing that the spouses are mutually obliged to provide each other
with support, cannot but be subordinate to the other provisions of said Code which regulates the family organization and the
duties of spouses not legally separated, among which duties are those of their living together and mutually helping each other,
as provided in article 56 of the aforementioned code; and taking this for granted, the obligation of the spouse who has property
to furnish support to the one who has no property and is in need of it for subsistence, is to be understood as limited to the case
where, in accordance with law, their separation has been decreed, either temporarily or finally and this case, with respect to the
husband, cannot occur until a judgment of divorce is rendered, since, until then, if he is culpable, he is not deprived of the
management of his wife's property and of the product of the other property belonging to the conjugal partnership; and

Considering that, should the doctrine maintained in the appeal prevail, it would allow married persons to disregard the marriage
bond and separate from each other of their own free will, thus establishing, contrary to the legal provision contained in said
article 56 of the Civil Code, a legal status entirely incompatible with the nature and effects of marriage in disregard of the duties
inherent therein and disturbing the unity of the family, in opposition to what the law, in conformity with good morals, has
established; and.

Considering that, as the spouses D. Ramon Benso and 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.