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Defense of in pari delicto is inapplicable in “psychological

incapacity” cases.
In Ramon Velasco vs. Norma Villanueva Velasco, CA-G.R. No. 36075, February 16, 1995, penned by Justice Jesus
M. Elbinias, it was said that the act of the wife of living separately from the husband, maintaining sexual relations
with another man, boasting to her husband how physically big and macho her paramour is shows a clear lack of love,
respect and fidelity to her husband. The Court of Appeals reversed the Regional Trial Court’s decision denying the
action for declaration of nullity of the marriage on the ground of “psychological incapacity.”

Case:
Ramon Velasco vs. Norma V. Velasco
CA-G.R. No. 36075, February 16, 1995
Facts:
The unrebutted testimony of the plaintiff on the sexual attitude of the defendant was that the latter even
boasted that her paramour was a better partner in bed; described him as macho. He also presented letters of the
defendant to her paramour telling him how she missed him. In fact, the defendant even confirmed the truth about the
letters. The lower court held that the defendant was still capable of complying with her duties to the marriage bond,
hence, an appeal was made with the Court of Appeals.

The Court of Appeals made the observation that from the judicial admission of the parties, they were
psychologically incapacitated but it was worse for the defendant. It was said that:

“The adulterous relationship of the defendant with said Donald Tan was adequately substantiated by copies
of the letters written by defendant to said paramour. The originals thereof were presented and testified thereon
by the plaintiff on direct examination. Counsel for the defendant did not cross-examine the plaintiff on the
authenticity of those letters nor on the fact that those letters were obtained from Donald Tan, the addressee
thereof. Neither did the defendant, during her direct examination, by way of rebuttal, deny that those letters
were written by her. Thus, the authenticity of those letters were deemed admitted, with or without Donald
Tan testifying on them.

“Now, in the lecture delivered by former Justice Ricardo Puno on the Family Code at the UP Law Center on
November 19, 1988, he cited as one of the examples of ‘psychological incapacity’ ‘excess sex hunger,’ which
is satyriasis in men and nymphomania in women. (Cited in Rufus B. Rodriguez, The Family Code of the
Philippines Annotated, p. 69, 1992 ed.). In this case, the testimonies on record, the letters defendant wrote to
her paramour, Donald Tan, and her boast to the plaintiff that Donald Tan had a bigger physique (and all that
it implies), a macho and better in bed, show that even if she does not have such excessive hunger as to amount
to nymphomania, at least she appears to be close to having it.”

“It should be noted that the spouses here have been childless for more than 10 years. They have subjected
themselves to medical examinations to know the cause of their childlessness. The plaintiff-husband was
found to be sterile due to a low sperm count. The defendant-wife herself has admitted to also being barren.
Thus, in his strong desire to have a child, even by adoption, the husband broached the idea to his wife, who
acceded, and they agreed to adopt the child born out of wedlock of 19 year-old Yvonne Tan.”

“That he can file an action for this purpose on such ground and only after years following the celebration of
their marriage, as he did, is beyond question. The provisions of Article 36 of the Family Code are clear on
the point:

‘A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated
to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity
becomes manifest only after its solemnization.’ (As amended by E.O. No. 227, July 17, 1987).

‘Moreover, from the actuations of the wife — living separately in the Imbo apartment away from the conjugal
home, maintaining sexual liaison with Donald Tan, revealing in her letters to this paramour how she missed
him (implying the need to fill her sexual urges), boasting to her husband how physically big (with the usual
sexual insinuation) and macho this paramour was — it is clear that she lacks the love, respect and fidelity
she owes him, so that, although she may not be psychologically incapacitated in the legal sense contemplated
in said Article 36 of the Family Code to be entitled to ask for declaration of the nullity of marriage, her
actuations are clearly demonstrative of utter insensibility or inability to give meaning and significance to the
marriage.’

“All those, added to the “psychological incapacity” of her husband — and even if such incapacity is to be
discounted — are, to our mind, compelling reasons to severe their marriage and to let them go their own way,
as they in fact have already done, the husband keeping his adopted child and Yvonne, and the wife marrying
someone, physically big and macho. To preserve their marriage under those circumstances would be to force
the spouses to continue committing immorality during their entire lives while remaining married to each
other. This certainly is not the intendment of the law.’’

“The action a quo was properly instituted. There is no question that, as the party who is psychologically
incapacitated, he or his wife may file an action for the declaration of the absolute nullity of the marriage on
that ground.’’

Note that the decision of the Court of Appeals is justified by the rule enunciated in Article 68 of the Family Code that
the husband and the wife are obliged to live together, love one another, support, help and observe mutual respect and
fidelity. The situation in the aforementioned case exactly falls under the law for the woman did not show love and
respect for the husband anymore by boasting that her paramour was a bigger and better partner in bed. That is adding
insult to injury. What is marriage if there is no love, no respect? Under the circumstances, it is better to put an end to
the marriage, rather than preserving it, for there would be no peace in the family. There is no solidarity and sanctity
of the family to speak of which the Constitution seeks to preserve.

The Court of Appeals recognized the fact that both spouses were suffering from “psychological incapacity,” but it
said it was worse for the wife. In short, even the defense of in pari delicto would not defeat an action for declaration
of nullity of marriage due to “psychological incapacity.” In ordinary contracts, if there is pari delicto, the court
would leave the parties where they are. They are not entitled to the relief they are asking for. But in actions for
declaration of nullity of marriage on the ground of “psychological incapacity,’’ such defense is unavailing. It must
be observed that the Supreme Court, in Antonio A.S. Valdes vs. RTC, Quezon City, silently agreed with the Regional
Trial Court on the pari delicto rule. In this case, the lower court voided the marriage even as it recognized their pari
delicto. At any rate, it was not the issue as the main case became final and executory in the lower court. But, an
examination of Article 36 of the Family Code shows that if “any party” to the marriage is not capacitated to comply
with his or her duties to the marriage bond, then, the marriage can be declared void on the ground of “psychological
incapacity.’’ It is believed that if one of the parties is suffering from “psychological incapacity’’ the marriage can be
declared void, then, with more reason if both of the parties are suffering from “psychological incapacity.’’ The
reason is obvious. What would happen to the family if both parties cannot comply with their essential duties to the
marriage bond, like loving, supporting, respecting, helping one another and living together? Then, there would be
chaos in the family. Since there is no pari delicto in “psychological incapacity’’ cases, anyone of the parties
or both of them can commence the action to declare the marriage void. Even the one suffering from “psychological
incapacity’’ can commence the action. The reason is that, the law does not make any distinction. When the law does
not distinguish, we should not distinguish.