VOIDABLE MARRIAGE

G.R. No. 47101 April 25, 1941

GODOFREDO BUCCAT, plaintiff-appellant,

vs.
LUIDA MANGONON DE BUCCAT, defendant-appealed.

HORRILLENO, J .:
This matter has been elevated to this Superiority by the Court of First Instance of Baguio,
since it only raises a question purely of law.
On March 20, 1939, the plaintiff initiated the case, in which the defendant did not appear,
despite having been duly summoned. Therefore, when the plaintiff was allowed to present
his evidence, the lower court ruled the matter in favor of the defendant. Hence this appeal.
The plaintiff requests the annulment of his marriage with the defendant Luida Mangonon
de Buccat on November 26, 1938, in the City of Baguio, on the grounds that, by
consenting to said marriage, he did so because the defendant had assured him that she
was Virgin.
The following facts emerge from the decision of the lower court:
The plaintiff met the defendant in March 1938. After several interviews, both were
engaged on September 19 of the same year. On November 26 of the same year, the
plaintiff married the defendant in the Catholic Cathedral of the City of Baguio. After having
lived together for eighty-nine days, the defendant gave birth to a nine-month-old boy on
February 23, 1939. As a result of this event, the plaintiff abandoned the defendant and
did not return to marital life with she.
We see no reason to revoke the appealed sentence. Indeed, the plaintiff's and appellant's
allegation that he did not continue had suspected the serious condition of the defendant,
it is, as is proven, in a pregnant condition very advanced. So there is no place to estimate
the fraud of which the appellant speaks. What is alleged by this in the sense that it is not
unusual to find people with a developed abdomen seems to us childish to deserve our
consideration, all the more since the applicant was a first-year law student.
Marriage is a very sacred institution: it is the foundation on which society rests. To annul
it, clear and reliable evidence is necessary. There is no such evidence in this matter.
Finding the appealed sentence adjusted to law, it must be confirmed, as we hereby
confirm, in all its parts, with the costs to the appellant. So it is ordered.

G.R. No. L-15853 July 27, 1960

FERNANDO AQUINO, petitioner,
vs.
CONCHITA DELIZO, respondent.

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 taken as evidence of collusion, especially where a provincial
fiscal has been ordered to represent the Government precisely to prevent such
collusion.

GUTIERREZ DAVID, J.:

This is a petition for certiorari to review a decision of the Court of Appeals affirming that
of the Court of First Instance of Rizal which dismissed petitioner's complaint for annulment
of his marriage with respondent Conchita Delizo.

The dismissed complaint, which was filed on September 6, 1955, was based on the
ground of fraud, it being alleged, among other things, that defendant Conchita Delizo,
herein respondent, at the date of her marriage to plaintiff, herein petitioner Fernando
Aquino, on December 27, 1954, concealed from the latter that fact that she was pregnant
by another man, and sometime in April, 1955, or about four months after their marriage,
gave birth to a child. In her answer, defendant claimed that the child was conceived out
of lawful wedlock between her and the plaintiff.

At the trial, the attorney's for both parties appeared and the court a quo ordered Assistant
Provincial Fiscal Jose Goco to represent the State in the proceedings to prevent collusion.
Only the plaintiff however, testified and the only documentary evidence presented was
the marriage contract between the parties. Defendant neither appeared nor presented
any evidence despite the reservation made by her counsel that he would present
evidence on a later date.

On June 16, 1956, the trial court — noting that no birth certificate was presented to show
that the child was born within 180 days after the marriage between the parties, and
holding that concealment of pregnancy as alleged by the plaintiff does not constitute such
fraud sa would annul a marriage — dismissed the complaint. Through a verified "petition
to reopen for reception of additional evidence", plaintiff tried to present the certificates of
birth and delivery of the child born of the defendant on April 26, 1955, which documents,
according to him, he had failed to secure earlier and produce before the trial court thru
excusable negligence. The petition, however, was denied.

On appeal to the Court of Appeals, that court held that there has been excusable neglect
in plaintiff's inability to present the proof of the child's birth, through her birth certificate,
and for that reason the court a quo erred in denying the motion for reception of additional
evidence. On the theory, however, that it was not impossible for plaintiff and defendant to
have had sexual intercourse during their engagement so that the child could be their own,
and finding unbelievable plaintiff's claim that he did not notice or even suspect that
defendant was pregnant when he married her, the appellate court, nevertheless, affirmed
the dismissal of the complaint.

On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered, or,
if such reconsideration be denied, that the case be remanded to the lower court for new
trial. In support of the motion, plaintiff attached as annexes thereof the following
documents:

1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and plaintiff's

brother, with whom defendant was living at the time plaintiff met, courted and
married her, and with whom defendant has begotten two more children, aside from
her first born, in common-law relationship) admitting that he is the father of
defendant's first born, Catherine Bess Aquino, and that he and defendant hid her
pregnancy from plaintiff at the time of plaintiff's marriage to defendant;

2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her pregnancy by

Cesar Aquino, her brother-in-law and plaintiff's own brother, at the time of her
marriage to plaintiff and her having hidden this fact from plaintiff before and up to
the time of their marriage;

3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino and
defendant lived together as husband and wife before December 27, 1954, the date
of plaintiff's marriage to defendant;

4. Birth Certificate of defendant's first born, Catherine Bess Aquino showing her
date of birth to be April 26, 1955;

5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of
defendant with Cesar Aquino, her brother-in-law;

6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of Cesar
Aquino and defendant; and

7. Pictures of defendant showing her natural plumpness as early as 1952 to as late

as November, 1954, the November, 1954 photo itself does not show defendant's
pregnancy which must have been almost four months old at the time the picture
was taken.
Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and
Assistant Provincial Fiscal of Rizal, who was representing the Government, to answer the
motion for reconsideration, and deferred action on the prayer for new trial until after the
case is disposed of. As both the defendant and the fiscal failed to file an answer, and
stating that it "does not believe the veracity of the contents of the motion and its annexes",
the Court of Appeals, on August 6, 1959, denied the motion. From that order, the plaintiff
brought the case to this Court thru the present petition for certiorari.

After going over the record of the case, we find that the dismissal of plaintiff's complaint
cannot be sustained.

Under the new Civil Code, concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband constitutes fraud and is
ground for annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3). In the
case of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be reviewed, which
was also an action for the annulment of marriage on the ground of fraud, plaintiff's claim
that he did not even suspect the pregnancy of the defendant was held to be unbelievable,
it having been proven that the latter was already in an advanced stage of pregnancy (7th
month) at the time of their marriage. That pronouncement, however, cannot apply to the
case at bar. Here the defendant wife was alleged to be only more than four months
pregnant at the time of her marriage to plaintiff. At that stage, we are not prepared to say
that her pregnancy was readily apparent, especially since she was "naturally plump" or
fat as alleged by plaintiff. According to medical authorities, even on the 5th month of
pregnancy, the enlargement of a woman's abdomen is still below the umbilicus, that is to
say, the enlargement is limited to the lower part of the abdomen so that it is hardly
noticeable and may, if noticed, be attributed only to fat formation on the lower part of the
abdomen. It is only on the 6th month of pregnancy that the enlargement of the woman's
abdomen reaches a height above the umbilicus, making the roundness of the abdomen
more general and apparent. (See Lull, Clinical Obstetrics, p. 122) If, as claimed by
plaintiff, defendant is "naturally plump", he could hardly be expected to know, merely by
looking, whether or not she was pregnant at the time of their marriage more so because
she must have attempted to conceal the true state of affairs. Even physicians and
surgeons, with the aid of the woman herself who shows and gives her subjective and
objective symptoms, can only claim positive diagnosis of pregnancy in 33% at five
months. and 50% at six months. (XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p.
10).

The appellate court also said that it was not impossible for plaintiff and defendant to have
had sexual intercourse before they got married and therefore the child could be their own.
This statement, however, is purely conjectural and finds no support or justification in the
record.

Upon the other hand, the evidence sought to be introduced at the new trial, taken together
with what has already been adduced would, in our opinion, be sufficient to sustain the
fraud alleged by plaintiff. The Court of Appeals should, therefore, not have denied the
motion praying for new trial simply because defendant failed to file her answer thereto.
Such failure of the defendant cannot be taken as evidence of collusion, especially since
a provincial fiscal has been ordered of represent the Government precisely to prevent
such collusion. As to the veracity of the contents of the motion and its annexes, the same
can best be determined only after hearing evidence. In the circumstance, we think that
justice would be better served if a new trial were ordered.

Wherefore, the decision complained of is set aside and the case remanded to the court a
quo for new trial. Without costs.

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.

Civil Law; Marriages; Void and Voidable Marriages; Fraud as a ground for annulment
of marriage.—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. This fraud, as a vice of
consent, is limited exclusively by law to those kinds or species of fraud enumerated in
Article 86.

Same; Same; Same; Same; Legislative Intention.—The intention of Congress to

confine the circumstances that can constitute fraud as ground for annulment of marriage
to three cases may be deduced from the fact that, of all the causes of nullity enumerated
in Article 85, Civil Code, fraud is the only one given special treatment in a subsequent
article within the chapter on void and voidable marriages. If its intention were otherwise,
Congress would have stopped at Article 85, for, anyway, fraud in general is already
mentioned therein as a cause for annulment. But Article 86 was also enacted, expressly
and specifically dealing with "fraud referred to in number 4 of the preceding article," and
proceeds by enumerating the specific frauds (misrepresentation as to identity, non-
disclosure of a previous conviction, and concealment of pregnancy), making it clear that
Congress intended to exclude all other frauds or deceits. To stress further such intention,
the enumeration of the specific frauds was followed by the interdiction: "No other
misrepresentation or deceit as to character, rank, fortune or chastity shall constitute such
fraud as will give grounds for action for the annulment of marriage."
Same; Same; Same; Non-disclosure of a husband's premarital relationship, not a
fraud.—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 Article 86, Civil Code. While a woman may
detest such non-disclosure of premarital lewdness or feel having been thereby cheated
into giving her consent to the marriage, nevertheless the law does not assuage her grief
after her consent was solemnly given, for upon marriage she entered into an institution in
which society, and not herself alone, is interested. The lawmaker's intent being plain, the
Court's duty is to give effect to the same, whether it agrees with the rule or not.

REYES, J.B.L., J.:

Appeal from an order of dismissal, issued motu proprio by the Juvenile & Domestic
Relations Court, Manila, of a complaint for annulment of marriage, docketed therein as
Civil Case No. E-00431, entitled "Aurora A. Anaya, plaintiff vs. Fernando O. Palaroan,
defendant."

The complaint in said Civil Case No. E-00431 alleged, inter alia, that plaintiff Aurora and
defendant Fernando were married on 4 December 1953; that defendant Fernando filed
an action for annulment of the marriage on 7 January 1954 on the ground that his consent
was obtained through force and intimidation, which action was docketed in the Court of
First Instance of Manila as Civil Case No. 21589; that judgment was rendered therein on
23 September 1959 dismissing the complaint of Fernando, upholding the validity of the
marriage and granting Aurora's counterclaim; that (per paragraph IV) while the amount of
the counterclaim was being negotiated "to settle the judgment," Fernando had divulged
to Aurora that several months prior to their marriage he had pre-marital relationship with
a close relative of his; and that "the non-divulgement to her of the aforementioned pre-
marital secret on the part of defendant that definitely wrecked their marriage, which
apparently doomed to fail even before it had hardly commenced ... frank disclosure of
which, certitude precisely precluded her, the Plaintiff herein from going thru the marriage
that was solemnized between them constituted 'FRAUD', in obtaining her consent, within
the contemplation of No. 4 of Article 85 of the Civil Code" (sic) (Record on Appeal, page
3). She prayed for the annulment of the marriage and for moral damages.

Defendant Fernando, in his answer, denied the allegation in paragraph IV of the complaint
and denied having had pre-marital relationship with a close relative; he averred that under
no circumstance would he live with Aurora, as he had escaped from her and from her
relatives the day following their marriage on 4 December 1953; that he denied having
committed any fraud against her. He set up the defenses of lack of cause of action and
estoppel, for her having prayed in Civil Case No. 21589 for the validity of the marriage
and her having enjoyed the support that had been granted her. He counterclaimed for
damages for the malicious filing of the suit. Defendant Fernando did not pray for the
dismissal of the complaint but for its dismissal "with respect to the alleged moral
damages."

Plaintiff Aurora filed a reply with answer to the counterclaim, wherein she alleged:

(1) that prior to their marriage on 4 December 1953, he paid court to her,
and pretended to shower her with love and affection not because he really
felt so but because she merely happened to be the first girl available to
marry so he could evade marrying the close relative of his whose immediate
 members of her family were threatening him to force him to marry her (the
close relative);

(2) that since he contracted the marriage for the reason intimated by him,
and not because he loved her, he secretly intended from the very beginning
not to perform the marital duties and obligations appurtenant thereto, and
furthermore, he covertly made up his mind not to live with her;

(3) that the foregoing clandestine intentions intimated by him were

prematurely concretized for him, when in order to placate and appease the
immediate members of the family of the first girl (referent being the close
relative) and to convince them of his intention not to live with plaintiff, carried
on a courtship with a third girl with whom, after gaining the latter's love
cohabited and had several children during the whole range of nine years
that Civil Case No. 21589, had been litigated between them (parties);
(Record on Appeal, pages 10-11)

Failing in its attempt to have the parties reconciled, the court set the case for trial on 26
August 1966 but it was postponed. Thereafter, while reviewing the expendiente, the court
realized that Aurora's allegation of the fraud was legally insufficient to invalidate her
marriage, and, on the authority of Brown vs. Yambao, 102 Phil. 168, holding:

It is true that the wife has not interposed prescription as a defense.

Nevertheless, the courts can take cognizance thereof, because actions
seeking a decree of legal separation, or annulment of marriage, involve
public interest, and it is the policy of our law that no such decree be issued
if any legal obstacles thereto appear upon the record. —

the court a quo required plaintiff to show cause why her complaint should
not be dismissed. Plaintiff Aurora submitted a memorandum in compliance
therewith, but the court found it inadequate and thereby issued an order,
dated 7 October 1966, for the dismissal of the complaint; it also denied
reconsideration.

The main issue is whether or not the non-disclosure to a wife by her husband of his pre-
marital relationship with another woman is a ground for annulment of marriage.

We must agree with the lower court that it is not. For fraud as a vice of consent in
marriage, which may be a cause for its annulment, comes under Article 85, No. 4, of the
Civil Code, which provides:

ART. 85. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:

xxx xxx xxx

 (4) That the consent of either party was obtained by fraud, unless such party
afterwards, with full knowledge of the facts constituting the fraud, freely
cohabited with the other as her husband or his wife, as the case may be;

This fraud, as vice of consent, is limited exclusively by law to those kinds or

species of fraud enumerated in Article 86, as follows:

ART. 86. Any of the following circumstances shall constitute fraud referred
to in number 4 of the preceding article:

(1) Misrepresentation as to the identity of one of the

contracting parties;

(2) Non-disclosure of the previous conviction of the other party

of a crime involving moral turpitude, and the penalty imposed
was imprisonment for two years or more;

(3) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband.

No other misrepresentation or deceit as to character, rank, fortune or

chastity shall constitute such fraud as will give grounds for action for the
annulment of marriage.

The intention of Congress to confine the circumstances that can constitute fraud as
ground for annulment of marriage to the foregoing three cases may be deduced from the
fact that, of all the causes of nullity enumerated in Article 85, fraud is the only one given
special treatment in a subsequent article within the chapter on void and voidable
marriages. If its intention were otherwise, Congress would have stopped at Article 85, for,
anyway, fraud in general is already mentioned therein as a cause for annulment. But
Article 86 was also enacted, expressly and specifically dealing with "fraud referred to in
number 4 of the preceding article," and proceeds by enumerating the specific frauds
(misrepresentation as to identity, non-disclosure of a previous conviction, and
concealment of pregnancy), making it clear that Congress intended to exclude all other
frauds or deceits. To stress further such intention, the enumeration of the specific frauds
was followed by the interdiction: "No other misrepresentation or deceit as to character,
rank, fortune or chastity shall constitute such fraud as will give grounds for action for the
annulment of marriage."

Non-disclosure of a husband's pre-marital relationship with another woman is not one of

the enumerated circumstances that would constitute a ground for annulment; and it is
further excluded by the last paragraph of the article, providing that "no other
misrepresentation or deceit as to ... chastity" shall give ground for an action to annul a
marriage. While a woman may detest such non-disclosure of premarital lewdness or feel
having been thereby cheated into giving her consent to the marriage, nevertheless the
law does not assuage her grief after her consent was solemnly given, for upon marriage
she entered into an institution in which society, and not herself alone, is interested. The
lawmaker's intent being plain, the Court's duty is to give effect to the same, whether it
agrees with the rule or not.

But plaintiff-appellant Anaya emphasizes that not only has she alleged "non-divulgement"
(the word chosen by her) of the pre-marital relationship of her husband with another
woman as her cause of action, but that she has, likewise, alleged in her reply that
defendant Fernando paid court to her without any intention of complying with his marital
duties and obligations and covertly made up his mind not to live with her. Plaintiff-
appellant contends that the lower court erred in ignoring these allegations in her reply.

This second set of averments which were made in the reply (pretended love and absence
of intention to perform duties of consortium) is an entirely new and additional "cause of
action." According to the plaintiff herself, the second set of allegations is "apart, distinct
and separate from that earlier averred in the Complaint ..." (Record on Appeal, page 76).
Said allegations were, therefore, improperly alleged in the reply, because if in a reply a
party-plaintiff is not permitted to amend or change the cause of action as set forth in his
complaint (Calo vs. Roldan, 76 Phil. 445), there is more reason not to allow such party to
allege a new and additional cause of action in the reply. Otherwise, the series of pleadings
of the parties could become interminable.

On the merits of this second fraud charge, it is enough to point out that any secret intention
on the husband's part not to perform his marital duties must have been discovered by the
wife soon after the marriage: hence her action for annulment based on that fraud should
have been brought within four years after the marriage. Since appellant's wedding was
celebrated in December of 1953, and this ground was only pleaded in 1966, it must be
declared already barred.

FOR THE FOREGOING REASONS, the appealed order is hereby affirmed. No costs.

Notes.—Annulment of marriage.—The fundamental policy of the State, which regards

marriage as indissoluble and sacred, being the foundation upon which society rests, is to
be cautious and strict in granting annulment of marriage (Roque vs. Encarnacion, L-6505,
August 23, 1954, 50 O.G. 4193; Buccat vs. De Buccat, 72 Phil. 19).

As such, in order to annul a marriage, clear and undeniable proofs are necessary
(Buccat vs. De Buccat, supra). A motion for summary judgment annulling a marriage
cannot properly be granted regardless of any genuine issue raised by the pleadings
(Roque vs. Encarnacion, supra).

To annul a marriage on the ground of fraud, it would have to be proved that the
plaintiff's consent had been secured by fraud or deceit; that is, that the fraudulent
representations of the defendant had actually induced her to contract marriage, in the firm
belief that they were true (Garcia vs. Montague, 12 Phil. 480).
 Failure to sign the marriage certificate or contract by the wedded couple, the witnesses
and the priest does not constitute a ground for nullity, it being not one of the causes for
annulment of marriage and the signing thereof being required by the statute simply for
the purpose of evidencing the act of marriage and to prevent fraud (De Loria vs. Apelan
Felix, L-9005, June 20, 1958). Nor do the priest's failure to make and file the affidavit
required by Sections 20 and 21 of the Marriage Law for in articulo mortis marriages and
to furnish the parties with copies of the marriage certificate constitute a ground for
annulment, especially where it was caused by an emergency ( De Loria vs. Apelan Felix,
supra).

G.R. No. L-12790 August 31, 1960

JOEL JIMENEZ, plaintiff-appellee,

vs.
REMEDIOS CAÑIZARES, defendant.
Republic of the Philippines, intervenor-appellant.

Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for
appellant.
Climaco, Ascarraga and Silang for appellee.

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 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. 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.

PADILLA, J.:

In a complaint filed on 7 June 1955 in the Court of First Instance of Zamboanga the
plaintiff Joel Jimenez prays for a decree annulling his marriage to the defendant
Remedios Cañizares contracted on 3 August 1950 before a judge of the municipal court
of Zamboanga City, upon the ground that the office of her genitals or vagina was to small
to allow the penetration of a male organ or penis for copulation; that the condition of her
genitals as described above existed at the time of marriage and continues to exist; and
that for that reason he left the conjugal home two nights and one day after they had been
married. On 14 June 1955 the wife was summoned and served a copy of the complaint.
She did not file an answer. On 29 September 1956, pursuant to the provisions of article
88 of the Civil Code, the Court directed the city attorney of Zamboanga to inquire whether
there was a collusion, to intervene for the State to see that the evidence for the plaintiff is
not a frame-up, concocted or fabricated. On 17 December 1956 the Court entered an
order requiring the defendant to submit to a physical examination by a competent lady
physician to determine her physical capacity for copulation and to submit, within ten days
from receipt of the order, a medical certificate on the result thereof. On 14 March 1957
the defendant was granted additional five days from notice to comply with the order of 17
December 1956 with warning that her failure to undergo medical examination and submit
the required doctor's certificate would be deemed lack of interest on her part in the case
and that judgment upon the evidence presented by her husband would be rendered.

After hearing, at which the defendant was not present, on 11 April 1957 the Court entered
a decree annulling the marriage between the plaintiff and the defendant. On 26 April 1957
the city attorney filed a motion for reconsideration of the decree thus entered, upon the
ground, among others, that the defendant's impotency has not been satisfactorily
established as required by law; that she had not been physically examined because she
had refused to be examined; that instead of annulling the marriage the Court should have
punished her for contempt of court and compelled her to undergo a physical examination
and submit a medical certificate; and that the decree sought to be reconsidered would
open the door to married couples, who want to end their marriage to collude or connive
with each other by just alleging impotency of one of them. He prayed that the complaint
be dismissed or that the wife be subjected to a physical examination. Pending resolution
of his motion, the city attorney timely appealed from the decree. On 13 May 1957 the
motion for reconsideration was denied.

The question to determine is whether the marriage in question may be annulled on the
strength only of the lone testimony of the husband who claimed and testified that his wife
was and is impotent. The latter did not answer the complaint, was absent during the
hearing, and refused to submit to a medical examination.

Marriage in this country is an institution in which the community is deeply interested. The
state has surrounded it with safeguards to maintain its purity, continuity and permanence.
The security and stability of the state are largely dependent upon it. It is the interest of
each and every member of the community to prevent the bringing about of a condition
that would shake its foundation and ultimately lead to its destruction. The incidents of the
status are governed by law, not by will of the parties. The law specifically enumerates the
legal grounds, that must be proved to exist by indubitable evidence, to annul a marriage.
In the case at bar, the annulment of the marriage in question was decreed upon the sole
testimony of the husband who was expected to give testimony tending or aiming at
securing the annulment of his marriage he sought and seeks. Whether the wife is really
impotent cannot be deemed to have been satisfactorily established, becase from the
commencement of the proceedings until the entry of the decree she had abstained from
taking part therein. Although her refusal to be examined or failure to appear in court show
indifference on her part, yet from such attitude the presumption arising out of the
suppression of evidence could not arise or be inferred because women of this country are
by nature coy, bashful and shy and would not submit to a physical examination unless
compelled to by competent authority. This the Court may do without doing violence to and
infringing in this case is not self-incrimination. She is not charged with any offense. She
is not being compelled to be a witness against herself. 1 "Impotency being an abnormal
condition should not be presumed. The presumption is in favor of potency." 2 The lone
testimony of the husband that his wife is physically incapable of sexual intercourse is
insufficient to tear asunder the ties that have bound them together as husband and wife.

The decree appealed from is set aside and the case remanded to the lower court for
further proceedings in accordance with this decision, without pronouncement as to costs.

[G.R. No. L-8492. February 29, 1956.]

In the Matter of the Declaration of the Civil Status of: LOURDES G.
LUKBAN, Petitioner-Appellant, vs. REPUBLIC OF THE PHILIPPINES, Oppositor-
Appellee.

1. PRESUMPTION OF DEATH, “JURIS TANTUM" ONLY; CANNOT BE

SUBJECT OF JUDICIAL PRONOUNCEMENT.—A petition for judicial
declaration that petitioner’s husband is presumed to be dead cannot be
entertained because it is not authorized by law, and if such declaration cannot
 be made in a special proceeding much less can the court determine the status
of petitioner as a widow since this matter must of necessity depend upon the
fact of death of the husband. This the Court can declare upon proper
evidence, but not to decree that he is merely presumed to be dead. (Nicolai
Szartraw, 46 Off. Gaz., 1st Sup., 243).

2. ID.; ID.; PHILOSOPHY BEHIND THE RULING.—The philosophy behind this

ruling is that “A judicial pronouncement to that effect, even if final and
executory, would still be a prima facie presumption only. It is still disputable. It
is for that reason that it cannot be the subject of a judicial pronouncement or
declaration, if it is the only question or matter involved in a case, or upon which
a competent court has to pass * * *. It is, therefore, clear that a judicial
declaration that a person is presumptively dead, because he had been
unheard from in seven years, being a presumption juris tantumonly, subject
to contrary proof, cannot reach the stage of finality or become final.” (Nicolai
Szartraw, supra).

BAUTISTA ANGELO, J.:

This is a petition filed in the Court of First Instance of Rizal for a declaration
that Petitioner is a widow of her husband Francisco Chuidian who is presumed to be dead
and has no legal impediment to contract a subsequent marriage.
The Solicitor General opposed the petition on the ground that the same is not authorized
by law. After Petitioner had presented her evidence, the court sustained the opposition
and dismissed the petition. Hence this appeal.
Lourdes G. Lukban, Petitioner herein, contracted marriage with Francisco Chuidian on
December 10, 1933 at the Paco Catholic Church, Manila. On December 27, of the same
year, Francisco left Lourdes after a violent quarrel and since then he has not been heard
from despite diligent search made by her. She also inquired about him from his parents
and friends but no one was able to indicate his whereabouts. She has no knowledge if he
is still alive, his last known address being Calle Merced, Paco, Manila. She believes that
he is already dead because he had been absent for more than twenty years, and because
she intends to marry again, she desires that her civil status be defined in order that she
may be relieved of any liability under the law.
We believe that the petition at bar comes within the purview of our decision in the case of
Nicolai Szartraw, 46 Off. Gaz., 1st Sup., 243, wherein it was held that a petition for judicial
declaration that Petitioner’s husband is presumed to be dead cannot be entertained
because it is not authorized by law, and if such declaration cannot be made in a special
proceeding similar to the present, much less can the court determine the status
of Petitioner as a widow since this matter must of necessity depend upon the fact of death
of the husband. This the court can declare upon proper evidence, but not to decree that
he is merely presumed to be dead. (Nicolai Szartraw, 46 Off. Gaz., 1st sup. 243).
The philosophy behind the ruling that such judicial pronouncement cannot be made in a
proceeding of this nature is well expressed in the case above-cited. Thus, we there said
that “A judicial pronouncement to that effect, even if final and executory, would still be a
prima facie presumption only. It is still disputable. It is for that reason that it cannot be the
subject of a judicial pronouncement or declaration, if it is the only question or matter
involved in a case, or upon which a competent court has to pass cralaw. It is, therefore,
clear that a judicial declaration that a person is presumptively dead, because he had been
unheard from in seven years, being a presumption juris tantum only, subject to contrary
proof, cannot reach the stage of finality or become final.”
Appellant claims that the remedy she is seeking for can be granted in the present
proceedings because in the case of Hagans vs. Wislizenus, 42 Phil., 880, it was declared
that a special proceeding is “an application or proceeding to establish the status or right
of a party, or a particular fact”; chan roblesvirtualawlibrarybut, as already said, that
remedy can be invoked if the purpose is to seek the declaration of death of the husband,
and not, as in the present case, to establish a presumption of death. If it can be
satisfactorily proven that the husband is dead, the court would not certainly deny a
declaration to that effect as has been intimated in the case of Nicolas Szartraw, supra.
Appellant also claims that the present petition can be entertained because article 349 of
the Revised Penal Code, in defining bigamy, provides that a person commits that crime
if he contracts a second marriage “before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the proper proceedings” and, it
is claimed, the present petition comes within the purview of this legal provision. The
argument is untenable for the words “proper proceedings” used in said article can only
refer to those authorized by law such as those which refer to the administration or
settlement of the estate of a deceased person (Articles 390 and 391, new Civil Code).
That such is the correct interpretation of the provision in question finds support in the case
of Jones vs. Hortiguela, 64 Phil., 179, wherein this Court made the following
comment:chanroblesvirtuallawlibrary
“For the purposes of the civil marriage law, it is not necessary to have the former spouse
judicially declared an absentee. The declaration of absence made in accordance with the
provisions of the Civil Code has for its sole purpose to enable the taking of the necessary
precautions for the administration of the estate of the absentee. For the celebration of
civil marriage, however, the law only requires that the former spouse has been absent for
seven consecutive years at the time of the second marriage, that the spouse present does
not know his or her former spouse to be living, that each former spouse is generally
reputed to be dead and the spouse present so believes at the time of the celebration of
the marriage (section III, paragraph 2, General Orders, No. 68).”
The decision appealed from is affirmed, without pronouncement as to costs.
G.R. No. L-14058 March 24, 1960

In the matter of the petition for the declaration of William Gue, presumptively dead.
ANGELINA L. GUE,Petitioner-Appellant, vs. THE REPUBLIC OF THE
PHILIPPINES, oppositor-appellee.

Virgilio V. David for appellant.

Office of the Solicitor General Edilberto Barot and Solicitor E. M. Salva for appellee.

MONTEMAYOR, J.:

This is an appeal from the order of the Court of First Instance of Manila, presided by
Judge Bonifacio Ysip, dismissing the petition of Angelina Gue. Involving as it does only
question of law, the appeal was taken directly to us.

On November 20, 1957, Angelina L. Gue filed a petition in the Court of First Instance of
Manila, Civil Case No. 34303, alleging that she was married to William Gue; that they had
a child named Anthony L. Gue; that January 5, 1946, her husband left Manila where they
were residing and went to Shanghai, China, but since then, he had not been heard of,
neither had he written to her, nor in anyway communicated with her as to his whereabouts;
that despite her efforts and diligence, she failed to locate him; and that they had not
acquired any property during the marriage. She asked the court for a declaration of the
presumption of death of William Gue, pursuant to the provisions of Article 390 of the Civil
Code of the Philippines. After due publication and hearing, the trial court issued the order
of dismissal, which we reproduce below:

This is a petition filed by Angelina L. Gue to declare her husband. William

Gue, presumptively dead. During the hearing of this petition, it was
established by the testimony of the petitioner that she and her husband
were married on October 11, 1944 in the City of Manila before the parish
priest of Tondo, Manila, as shows in Exhibit B, the marriage contract. Her
husband, who is a Chinese citizen, left the Philippines for Shanghai on
January, 1946. The petitioner joined him in Shanghai in August of the same
year. In January, 1949, the petitioner came back to the Philippines alone
with her children, on which occasion her husband promised to follow her.
However, up to the present time, said William Gue has not returned to the
Philippines. From January, 1949, the petitioner had sent letters to her
husband in Shanghai, but she never received any reply thereto. She made
inquiries from the Bureau of Immigration in 1955 and 1958 as to whether
her husband had already returned to the Philippines and she received
Exhibit D and Exhibit E from said Office, which gave no information as to
the whereabouts of her husband. It was also established by petitioner's
testimony that no properties have been acquired by said spouses during
their union, and during which they begot two children, named Eugeni and
Anthony, surnamed Gue. library
With this evidence on record and considering the allegations in the petition,
it is clear that no right had been established by the petitioner upon which a
judicial decree may be predicated, and this action is not for the settlement
of the estate of the absentee, as it is clear that he did not leave any.

In the case of "Petition for the Presumption of Death of Nicolai Szatraw", 81

Phil., 461, a case similar to the present, the Supreme Court held:

The petition is not for the settlement of the estate of Nicolai Szatraw,
because it does not appear that he possessed property brought to the
marriage and because he had acquired no property during his married life
with the petitioner. The rule invoked by the latter is merely one of evidence
which permits the court to presume that a person is dead after the fact that
such person had been unheard from in seven years had been established.
This presumption may arise and be invoked and made in a case, whether
in an action or in a special proceeding, which is tried or heard by, and
submitted for decision to, a special proceeding. In this case, there is no right
to be enforced nor is there a remedy prayed for by the petitioner for the final
determination of his right or status or for the ascertainment of a particular
fact (Hagans vs. Wislizenus, 42 Phil., 880), for the petition does not pray for
a declaration that the petitioner's husband is dead, but merely asks for a
declaration that he be presumed dead because he had been unheard from
in seven years. If there is any pretense at securing a declaration that the
petitioner's husband is dead, such a pretension cannot be granted because
it is unauthorized. The petition is for a declaration that the petitioner's
husband is presumptively dead. But this declaration, even if judicially made,
would not improve the petitioner's situation, because such a presumption is
established by law. A judicial pronouncement to that effect, even if final and
executory, would still be a prima facie presumption only. It is still disputable.
It is for that reason that it cannot be the subject of a judicial pronouncement
or declaration, if it is the only question or matter involved in a case, or upon
which a competent court has to pass. The latter must decide finally the
controversy the right or status of a party or established finally a particular
fact, out of which certain rights and obligations arise or may arise; and once
such controversy is decided by a final judgment or such right or status is
determined, then the judgment on the subject of the controversy, or the
decree upon the right or status of a party or upon the existence of a
particular fact, becomes res judicata, subject to no collateral attack, except
in a few rare instances especially provided by law. It is, therefore, clear that
a judicial declaration that a person is presumptively dead, because he had
been unheard from in seven years, being a presumption juris tantum only,
subject to contrary proof cannot reach the state of finality or become final.
Proof of actual death of the person presumed dead because he had been
unheard from in seven years, would have to be made in another proceeding
to have such particular fact finally determined. If a judicial decree declaring
a person presumptively dead, because he had not been heard from in seven
 years, cannot become final and executory even after the lapse of the
reglementary period within which an appeal may be taken, for such a
presumption is still disputable and remains subject to contrary proof, then a
petition for such a declaration is useless, unnecessary, superfluous and of
no benefit to the petitioner. The Court should not waste its valuable time
and be made to perform a superfluous and meaningless act.

"Little effort is necessary to perceive that a declaration such as the one

prayed for by the petitioner, if granted, may make or lead her to believe that
the marital bonds which binds her to her husband are torn asunder, and that
for that reason she is or may feel free to enter into a new marriage contract.
The framers of the rules of court, by the presumption provided for in the rule
of evidence in question, did not intend and mean that a judicial declaration
based solely upon that presumption may be made. A petition for a
declaration such as the one filed in this case may be made in collusion with
the other spouse. If that were the case, then a decree of divorce that cannot
be obtained or granted under the provisions of the Divorce Law (Act No.
2710) could easily be secured by means of a judicial decree declaring a
person unheard from in seven years to be presumptively dead. This is
another strong reason why a petition such as the one presented in this case
should not be countenanced and allowed. What cannot be obtained directly
under the provisions of the Divorce Law could indirectly be secured under
the provisions of Rule 123, section 69 (x). Obviously, the latter must not be
made to prevail over the former."

In view of the foregoing and the doctrine of the Supreme Court laid down in
the case above-cited, the Court hereby orders that this case be, as it is
hereby dismissed, without pronouncement as the costs.

In her appeal, Angelina invoked the provisions of the Article 390 of the New Civil Code,
which for purpose of reference, we reproduce below.

ART. 390. After an absence of seven years, it being unknown whether or

not the absentee still lives, he shall be presumed dead for all purposes,
except for those of succession.

The absentee shall not be presumed dead for the purpose of opening this
succession till after an absence of ten years. If he disappeared after the of
seventy-five years, an absence of five years shall be sufficient in order that
his succession may be opened.

She contends that under Article 191 of the Old Civil Code, which reads:

After thirty years have elapsed since disappearance of the absentee, or

since he was last heard from, or ninety years from his birth, the judgment
 upon the petition of any party lawfully interested, shall make an order
declaring that such absentee is presumed to be dead.

a person could be declared presumptively dead, but that said legal provision was
repealed by the Code of Civil Procedure and continued to be repealed by the Rules of
Court. Consequently, only a mere disputable presumption of death was available to any
party, and that the case of Nicolai Szatraw, cited by the trial court, was decided on the
law then existing, namely, the Code of Civil Procedure, and later the new Rules of Court.
However, according to appellant, with the promulgation of the New Civil Code in 1950,
particularly, Article 390 thereof, the Courts are now authorized to declare persons
presumptively dead.

In answer to her contention, the Solicitor General, as appellee herein, correctly cites our
decision in the recent case of Lourdes G. Lukban vs. Republic of the Philippines, 98 Phil.,
574; 52 Off. Gaz., No. 3, 1441, decided long after the New Civil Code went into effect,
wherein we reiterated the doctrine laid own in Nicolai Szatraw, supra. We quote the
pertinent portions of our decision in that case:

This is a petition filed in the Court of First Instance of Rizal for a declaration
that petitioner is a widow of her husband Francisco Chuidian who is
presumed to be dead and has no legal impediment to contract a subsequent
marriage. library

The Solicitor General opposed the petition on the ground that the same is
not authorized by law. After petitioner had presented her evidence, the court
sustained the opposition and dismissed the petition. Hence this appeal.

Lourdes G. Lukban, petitioner herein, contracted marriage with Francisco

Chuidian on December 10, 1933 at the Paco Catholic Church, Manila. On
December 27, of the same year, Francisco left Lourdes after a violent
quarrel and since then he has not been heard from despite diligent search
made by her. She also inquired about him from his parents and friends but
no one was able to indicate his whereabouts. She has no knowledge if he
is still alive, his last known address being Calle Merced, Paco, Manila. She
believes that he is already dead because he had been absent for more than
twenty years, and because she intends to marry again, she desires that her
civil status be defined in order that she may be relieved of any liability under
the law. library

We believe that the petition at bar comes within the purview of our decision
in the case of Nicolai Szatraw, 46 Off. Gaz. 1st Sup. 243, wherein it was
held that a petition for judicial declaration that petitioner's husband is
presumed to be dead cannot be entertained because it is not authorized by
law, and if such declaration cannot be made in a special proceedings similar
to the present, much less can the court determine the status of petitioner as
a widow since this matter must of necessity depend upon the fact of death
 of the husband. This the court can declare upon proper evidence, but not to
decree that he is merely presumed to be dead. (Nicolai Szatraw, 48 Off.
Gaz., 1st Sup. 243)

The philosophy behind the ruling that such judicial pronouncement cannot
be made in a proceeding of this nature is well expressed in the case above-
cited. Thus, we there said that "A judicial pronouncement to that effect, even
if final and executory, would still be a prima facie presumption only. It is still
disputable. It is for that reason that it cannot be the subject of a judicial
pronouncement or declaration, if it is the only question or matter involved in
a case, or upon which a competent court has to pass .. It is, therefore, clear
that a judicial declaration that a person is presumptively dead, because he
had been unheard from in seven years, being a presumption juris tantum
only, subject to contrary proof, cannot reach the stage of finality or become
final."

We deem it unnecessary to further discuss the merits of the case. The appealed order
dismissing the petition is hereby affirmed, with costs.

PRESUMPTION OF DEATH; PERSON UNHEARD FROM IN SEVEN

YEARS; DECLARATION OF PRESUMPTIVE DEATH UNNECESSARY.—A judicial
declaration that a person unheard from in seven years; being a presumption juris
tantum only, subject to contrary proofs, cannot reach the state of finality or become final.
Proof of actual death of the person presumed dead because he had been unheard from
in seven years, would have to be made in another proceeding to have such particular fact
finally determined. If a judicial decree declaring a person presumptively dead, because
he had not been heard from in seven years, cannot become final and executory even
after the lapse of the reglementary period within which an appeal may be taken, for such
a presumption ,is still disputable and remains subject to contrary proof, then a petition for
such a declaration is useless, unnecessary, superfluous and of not benefit to the
petitioner. The Court should not waste its valuable time and be made to perform a
superfluous and meaningless act (Petition for the Presumption of death of Nicolai
Szatraw, 81 Phil., 461).