G.R. No.
L-34132 July 29, 1972 After a careful consideration of the legal question presented, it is the holding of
LUCY SOMOSA-RAMOS, petitioner,
vs.
THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of the
Court of First Instance of Negros Oriental and CLEMEN G. RAMOS,
respondents.
T. R. Reyes & Associates for petitioner.
Soleto J. Erames for respondents.
FERNANDO, J.:p
The question raised in this petition for certiorari is whether or not Article 103 of the Civil Code prohibiting the
hearing of an action for legal separation before the lapse of six months from the filing of the petition, would
likewise preclude the court from acting on a motion for preliminary mandatory injunction applied for as an
ancillary remedy to such a suit. Respondent Cipriano Vamenta, Jr., of the Court of First Instance of Negros
Oriental, answered the question in the affirmative, in view of the absolute tenor of such Civil Code provision,
which reads thus: "An action for legal separation shall in no case be tried before six months shall have elapsed
since the filing of the petition." He therefore ordered the suspension, upon the plea of the other respondent the
husband Clemente G. Ramos, of the hearing on a motion for a writ of preliminary mandatory injunction filed by
petitioner at the same time the suit for legal separation was instituted. Petitioner, Lucy Somosa-Ramos, the wife
who brought the action for legal separation would dispute such a ruling. Hence, this certiorari proceeding. As
will be shown later there is justification for such a move on the part of petitioner. The respondent Judge ought to
have acted differently. The plea for a writ of certiorari must be granted.
The pleadings show that on June 18, 1971, petitioner filed Civil Case No. 5274 in
the sala of respondent Judge against respondent Clemente Ramos for legal
separation, on concubinage on the respondent's part and an attempt by him against
her life being alleged. She likewise sought the issuance of a writ of preliminary
mandatory injunction for the return to her of what she claimed to be her
paraphernal and exclusive property, then under the administration and
management of respondent Clemente Ramos. There was an opposition to the
hearing of such a motion, dated July 3, 1971, based on Article 103 of the Civil
Code. It was further manifested by him in a pleading dated July 16, 1971, that if
the motion asking for preliminary mandatory injunction were heard, the prospect
of the reconciliation of the spouses would become even more dim. Respondent
Judge ordered the parties to submit their respective memoranda on the matter.
Then on September 3, 1971, petitioner received an order dated August 4, 1971 of
respondent Judge granting the motion of respondent Ramos to suspend the
hearing of the petition for a writ of mandatory preliminary injunction. That is the
order complained of in this petition for certiorari. Respondents were required to
answer according to our resolution of October 5, 1971. The answer was filed
December 2 of that year. Then on January 12, 1972 came a manifestation from
parties in the case submitting the matter without further arguments.
this Court that Article 103 the Civil Code is not an absolute bar to the hearing
motion for preliminary injunction prior to the expiration of the six-month period.
1. It is understandable why there should be a period during which the court is
precluded from acting. Ordinarily of course, no such delay is permissible. Justice
to parties would not thereby be served. The sooner the dispute is resolved, the
better for all concerned. A suit for legal separation, however, is something else
again. It involves a relationship on which the law for the best reasons would
attach the quality of permanence. That there are times when domestic felicity is
much less than it ought to be is not of course to be denied. Grievances, whether
fancied or real, may be entertained by one or both of the spouses. There may be
constant bickering. The loss affection on the part of one or both may be
discernible. Nonetheless, it will not serve public interest, much less the welfare of
the husband or the wife, to allow them to go their respective ways. Where there
are offspring, the reason for maintaining the conjugal union is even more
imperative. It is a mark of realism of the law that for certain cases, adultery on the
part of the wife and concubinage on the part of the husband, or an attempt of one
spouse against the life of the other,1 it recognizes, albeit reluctantly, that the
couple is better off apart. A suit for legal separation lies. Even then, the hope that
the parties may settle their differences is not all together abandoned. The healing
balm of time may aid in the process. Hopefully, the guilty parties may mend his or
her ways, and the offended party may in turn exhibit magnanimity. Hence, the
interposition of a six-month period before an action for legal separation is to be
tried.
The court where the action is pending according to Article 103 is to remain
passive. It must let the parties alone in the meanwhile. It is precluded from
hearing the suit. There is then some plausibility for the view of the lower court
that an ancillary motion such as one for preliminary mandatory injunction is not to
be acted on. If it were otherwise, there would be a failure to abide by the literal
language of such codal provision. That the law, however, remains cognizant of the
need in certain cases for judicial power to assert itself is discernible from what is
set forth in the following article. It reads thus: "After the filing of the petition for
legal separation, the spouse shall be entitled to live separately from each other and
manage their respective property. The husband shall continue to manage the
conjugal partnership property but if the court deems it proper, it may appoint
another to manage said property, in which case the administrator shall have the
same rights and duties as a guardian and shall not be allowed to dispose of the
income or of the capital except in accordance with the orders of the court."2 There
would appear to be then a recognition that the question of management of their
respective property need not be left unresolved even during such six-month
period. An administrator may even be appointed for the management of the
property of the conjugal partnership. The absolute limitation from which the court
suffers under the preceding article is thereby eased. The parties may in the
meanwhile be heard. There is justification then for the petitioner's insistence that
her motion for preliminary mandatory injunction should not be ignored by the
lower court. There is all the more reason for this response from respondent Judge,
considering that the husband whom she accused of concubinage and an attempt
against her life would in the meanwhile continue in the management of what she
claimed to be her paraphernal property, an assertion that was not specifically
denied by him. What was held by this Court in Araneta v. Concepcion,3 thus
possesses relevance: "It is conceded that the period of six months fixed therein
Article 103 (Civil Code) is evidently intended as a cooling off period to make
possible a reconciliation between the spouses. The recital of their grievances
against each other in court may only fan their already inflamed passions against
one another, and the lawmaker has imposed the period to give them opportunity
for dispassionate reflection. But this practical expedient, necessary to carry out
legislative policy, does not have the effect of overriding other provisions such as
the determination of the custody of the children and alimony and support pendente
lite according to the circumstance ... The law expressly enjoins that these should
be determined by the court according to the circumstances. If these are ignored or
the courts close their eyes to actual facts, rank injustice may be caused."4 At any
rate, from the time of the issuance of the order complained of on August 4, 1971,
more than six months certainly had elapsed. Thus there can be no more
impediment for the lower court acting on the motion of petitioner for the issuance
of a writ of preliminary mandatory injunction.
WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the
order of respondent Court of August 4, 1971, suspending the hearing on the
petition for a writ of preliminary mandatory injunction is set aside. Respondent
Judge is directed to proceed without delay to hear the motion for preliminary
mandatory injunction. Costs against respondent Clemente G. Ramos.