G.R. No.
79284 November 27, 1987 In this recourse, petitioner contends that the civil action for legal
FROILAN C. GANDIONCO, petitioner,  for support pendente lite, should be suspended in view of the
vs.
HON. SENEN C. PEÑARANDA, as Presiding Judge of the
Regional Trial Court of Misamis Oriental, Branch 18, Cagayan
de Oro City, and TERESITA S. GANDIONCO, respondents.
PADILLA, J.:
A special civil action for certiorari, with application for injunction, to
annul (1) the Order of the respondent Judge, dated 10 December
1986, ordering petitioner to pay support pendente lite to private
respondent (his wife) and their child, and (2) the Order of the same
respondent Judge, dated 5 August 1987, denying petitioner's motion
to suspend hearings in the action for legal separation filed against
him by private respondent as well as his motion to inhibit respondent
Judge from further hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner,
filed with the Regional Trial Court of Misamis Oriental, 10th
Judicial District, Branch 18, in Cagayan de Oro City, presided over
by respondent Judge, a complaint against petitioner for legal
separation, on the ground of concubinage, with a petition for support
and payment of damages. This case was docketed as Civil Case No.
10636. On 13 October 1986, private respondent also filed with the
Municipal Trial Court, General Santos City, a complaint against
petitioner for concubinage, which was docketed on 23 October 1986
as Criminal Case No. 15437111. On 14 November 1986, application
for the provisional remedy of support pendente lite, pending a
decision in the action for legal separation, was filed by private
respondent in the civil case for legal separation. The respondent
judge, as already stated, on 10 December 1986, ordered The payment
of support pendente lite.
separation and the incidents consequent thereto, such as, application
criminal case for concubinage filed against him the private
respondent. In support of his contention, petitioner cites Art. III. Sec.
3 of the 1985 Rules on Criminal Procedure, which states:
SEC. 3. Other Civil action arising from offenses.
— Whenever the offended party shall have instituted
the civil action to enforce the civil liability arising
from the offense. as contemplated in the first Section
1 hereof, the following rules shall be observed:
(a) After a criminal action has been commenced the
pending civil action arising from the same offense
shall be suspended, in whatever stage it may be
found, until final judgment in the criminal
proceeding has been rendered. . . .
The civil action for legal separation, grounded as it is on
concubinage, it is petitioner's position that such civil action arises
from, or is inextricably tied to the criminal action for concubinage,
so that all proceedings related to legal separation will have to be
suspended to await conviction or acquittal for concubinage in the
criminal case. Authority for this position is this Court's decision in
the case of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an
action for legal separation would be proper if an allegation of
concubinage is made therein, relied solely on Sec. 1 of Rule 107 of
the then provisions of the Rules of Court on criminal procedure, to
wit:
 Sec. 1. Rules governing civil actions arising from
offenses.-Except as otherwise provided by law, the
following rules shall he observed:
(a) When a criminal action is instituted, the civil
action for recovery of civil liability arising from the
offense charged is impliedly instituted with the
criminal action, unless the offended party expressly
waives the civil action or reserves his right to
institute it separately;
(b) Criminal and civil actions arising from the same
offense may be instituted separately, but after the
criminal action has been commenced the civil action
can not be instituted until final judgment has been
rendered in the criminal action;
(c) After a criminal action has been commenced, no
civil action arising from the same offense can be
prosecuted and the same shall be suspended in
whatever stage it may be found until final judgment
in the criminal proceeding has been rendered ...
(Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules do,
that the civil action to be suspended, with or upon the filing of a
criminal action, is one which is "to enforce the civil liability arising
from the offense". In other words, in view of the amendment under
the 1985 Rules on Criminal Procedure, a civil action for legal
separation, based on concubinage, may proceed ahead of, or
simultaneously with, a criminal action for concubinage, because said
civil action is not one "to enforce the civil liability arising from the
offense" even if both the civil and criminal actions arise from or are
related to the same offense. Such civil action is one intended to
obtain the right to live separately, with the legal consequences
thereof, such as, the dissolution of the conjugal partnership of gains,
custody of offsprings, support, and disqualification from inheriting
from the innocent spouse, among others. As correctly pointed out by
the respondent Judge in his Order dated 5 August 1987:
The unreported case of JERUSALEM vs. Hon.
Roberto Zurbano, Judge of CFI of Antique, et al., L-
11935, April 24, 1959 (105 Phil. 1277) is not
controlling. It applied paragraph C of Sec. 1, of then
Rule 107 of the Rules of Court, which reads:
After a criminal action has been
commenced, no civil action arising
from the same offense can be
prosecuted and the same shall be
suspended, in whatever stage it may
be found, until final judgment in the
criminal proceeding has been
rendered. (Emphasis supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal
Procedure which refers to "civil actions to enforce the civil liability
arising from the offense" as contemplated in the first paragraph of
Section 1 of Rule 111-which is a civil action "for recovery of civil
liability arising from the offense charged." Sec. 1, Rule 111, (1985)
is specific that it refers to civil action for the recovery of civil
liability arising from the offense charged. Whereas, the old Sec. 1
(c), Rule 107 simply referred to "Civil action arising from the
offense."
As earlier noted this action for legal separation is not to recover civil
liability, in the main, but is aimed at the conjugal rights of the
spouses and their relations to each other, within the contemplation of
Articles 7 to 108, of the Civil Code."2
Petitioner also argues that his conviction for concubinage will have
to be first secured before the action for legal separation can prosper
or succeed, as the basis of the action for legal separation is his judge from hearing the case, on the ground of bias and manifest
alleged offense of concubinage. partiality. This is more so, in this case, where we find the judge's
disposition of petitioner's motions to be sound and well-taken.
Petitioner's assumption is erroneous.
WHEREFORE, the instant petition is hereby DISMISSED. Costs
A decree of legal separation, on the ground of concubinage, may be against petitioner.
issued upon proof by preponderance of evidence in the action for
legal separation. 3 No criminal proceeding or conviction is necessary. SO ORDERED.
To this end, the doctrine in Francisco vs. Tayao 4 has been modified,
as that case was decided under Act. No. 2710, when absolute divorce Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ.,
was then allowed and had for its grounds the same grounds for legal concur.
separation under the New Civil Code, with the requirement, under
such former law, that the guilt of defendant spouses had to be  
established by final judgment in a criminal action. That requirement
has not been reproduced or adopted by the framers of the present
Civil Code, and the omission has been uniformly accepted as a
modification of the stringent rule in Francisco v. Tayao.5

Petitioner's attempt to resist payment of support pendente lite to his

wife must also fail, as we find no proof of grave abuse of discretion
on the part of the respondent Judge in ordering the same.
Support pendente lite, as a remedy, can be availed of in an action for
G.R. No. L-19565           January 30, 1968
legal separation, and granted at the discretion of the judge. 6 If
petitioner finds the amount of support pendente lite ordered as too
onerous, he can always file a motion to modify or reduce the same. 7 ESTRELLA DE LA CRUZ, plaintiff-appellee, 
vs.
SEVERINO DE LA CRUZ, defendant-appellant.
Petitioner lastly seeks to have the respondent Judge disqualified from
hearing the case, as the grant of support pendente lite and the denial
of the motion to suspend hearings in the case, are taken by the Estacion and Paltriguera for plaintiff-appellee. 
petitioner as a disregard of applicable laws and existing doctrines, Manuel O. Soriano and Pio G. Villoso for defendant-appellant.
thereby showing the respondent Judge's alleged manifest partiality to
private respondent. CASTRO, J.:

Petitioner's contention is without merit. Divergence of opinions The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958
between a judge hearing a case and a party's counsel, as to applicable with the Court of First Instance of Negros Occidental, alleging in
laws and jurisprudence, is not a sufficient ground to disqualify the essence that her husband, the defendant Severino de la Cruz, had not
only abandoned her but as well was mismanaging their conjugal
partnership properties, and praying for (1) separation of property, (2)
monthly support of P2,500 during the pendency of the action, and (3)
payment of P20,000 as attorney's fees, and costs.
The court a quo forthwith issued an order allowing the plaintiff the
amount prayed for as alimony pendente lite, which however, upon
defendant's motion, was reduced to P2,000.
On June 1, 1961 the trial court rendered judgment ordering
separation and division of the conjugal assets, and directing the
defendant to pay to the plaintiff the sum of P20,000 as attorney's
fees, with legal interest from the date of the original complaint, that
is, from July 22, 1958, until fully paid, plus costs. From this
judgment the defendant appealed to the Court of Appeals, which
certified the case to us, "it appearing that the total value of the
conjugal assets is over P500,000".
The basic facts are not controverted. The plaintiff and the defendant
were married in Bacolod City on February 1, 1938. Six children were
born to them, namely, Zenia (1939), Ronnie (1942), Victoria (1944),
Jessie 1945), Bella (1946), and Felipe (1948). During their coverture
they acquired seven parcels of land of the Bacolod Cadastre, all
assessed at P45,429, and three parcels of the Silay Cadastre, all
assessed at P43,580. All these parcels are registered in their names.
The hacienda in Silay yielded for the year 1957 a net profit of
P3,390.49.
They are also engaged in varied business ventures with fixed assets
valued as of December 31, 1956 at P496,006.92, from which they
obtained for that year a net profit of P75,655.78. The net gain of the
Philippine Texboard Factory, the principal business of the spouses,
was P90,454.48 for the year 1957. As of December 31, 1959, the
total assets of the various enterprises of the conjugal partnership
were valued at P1,021,407.68, not including those of the Top Service
Inc., of which firm the defendant has been the president since its
organization in 1959 in Manila with a paid-up capital of P50,000,
P10,000 of which was contributed by him. This corporation was the
Beverly Hills Subdivision in Antipolo, Rizal, the Golden Acres
Subdivision and the Green Valley Subdivision in Las Piñas, Rizal,
and a lot and building located at M. H. del Pilar, Manila purchased
for P285,000, an amount borrowed from the Manufacturer's Bank
and Trust Company.
The spouses are indebted to the Philippine National Bank and the
Development Bank of the Philippines for loans obtained, to secure
which they mortgaged the Philippine Texboard Factory, the
Silay hacienda, their conjugal house, and all their parcels of land
located in Bacolod City.
The essential issues of fact may be gleaned from the nine errors the
defendant imputes to the court a quo, namely,
1. In finding that the only visit, from May 15, 1955 to the
rendition of the decision, made by the defendant to the
conjugal abode to see his wife was on June 15, 1955;
2. In finding that the letter exh. 3 was written by one Nenita
Hernandez and that she and the defendant are living as
husband and wife;
3. In finding that since 1951 the relations between the
plaintiff and the defendant were far from cordial, and that it
was from 1948 that the former has been receiving an
allowance from the latter;
4. In finding that the defendant has abandoned the plaintiff;
5. In finding that the defendant since 1956 has not discussed
with his wife the business activities of the partnership, and
that this silence constituted "abuse of administration of the
conjugal partnerships";
 6. In declaring that the defendant mortgaged the conjugal
assets without the knowledge of the plaintiff and thru false
pretences to which the latter was prey;
7. In allowing the plaintiff, on the one hand, to testify on
facts not actually known by her, and, on the other hand, in
not allowing the defendant to establish his special defenses;
8. In ordering separation of the conjugal partnership
properties; and
9. In sentencing the defendant to pay to the plaintiff
attorney's fees in the amount of P20,000, with interest at the
legal rate.1äwphï1.ñët
Two issues of law as well emerge, requiring resolution petition: (1)
Did the separation of the defendant from the plaintiff constitute
abandonment in law that would justify a separation of the conjugal
partnership properties? (2) Was the defendant's failure and/or refusal
to inform the plaintiff of the state of their business enterprises such
an abuse of his powers of administration of the conjugal partnership
as to warrant a division of the matrimonial assets?
The plaintiff's evidence may be summarized briefly. The defendant
started living in Manila in 1955, although he occasionally returned to
Bacolod City, sleeping in his office at the Philippine Texboard
Factory in Mandalagan, instead of in the conjugal home at 2nd
Street, Bacolod City. Since 1955 the defendant had not slept in the
conjugal dwelling, although in the said year he paid short visits
during which they engaged in brief conversations. After 1955 up to
the time of the trial, the defendant had never visited the conjugal
abode, and when he was in Bacolod, she was denied communication
with him. He has abandoned her and their children, to live in Manila
with his concubine, Nenita Hernandez. In 1949 she began to suspect
the existence of illicit relations between her husband and Nenita.
This suspicion was confirmed in 1951 when she found an unsigned
note in a pocket of one of her husband's polo shirt which was written
by Nenita and in which she asked "Bering" to meet her near the
church. She confronted her husband who forthwith tore the note even
as he admitted his amorous liaison with Nenita. He then allayed her
fears by vowing to forsake his mistress. Subsequently, in November
1951, she found in the iron safe of her husband a letter, exh. C, also
written by Nenita. In this letter the sender (who signed as "D")
apologized for her conduct, and expressed the hope that the
addressee ("Darling") could join her in Baguio as she was alone in
the Patria Inn and lonely in "a place for honeymooners".
Immediately after her husband departed for Manila the following
morning, the plaintiff enplaned for Baguio, where she learned that
Nenita had actually stayed at the Patria Inn, but had already left for
Manila before her arrival. Later she met her husband in the house of
a relative in Manila from whence they proceeded to the Avenue
Hotel where she again confronted him about Nenita. He denied
having further relations with this woman.
Celia Bañez, testifying for the plaintiff, declared that she was
employed as a cook in the home of the spouses from May 15, 1955
to August 15, 1958, and that during the entire period of her
employment she saw the defendant in the place only once. This
declaration is contradicted, however, by the plaintiff herself who
testified that in 1955 the defendant "used to have a short visit there,"
which statement implies more than one visit.
The defendant, for his part, denied having abandoned his wife and
children, but admitted that in 1957, or a year before the filing of the
action, he started to live separately from his wife. When he
transferred his living quarters to his office in Mandalagan, Bacolod
City, his intention was not, as it never has been, to abandon his wife
and children, but only to teach her a lesson as she was quarrelsome
and extremely jealous of every woman. He decided to live apart from
his wife temporarily because at home he could not concentrate on his
work as she always quarreled with him, while in Mandalagan he
could pass the nights in peace. Since 1953 he stayed in Manila for
some duration of time to manage their expanding business and look
for market outlets for their texboard products. Even the plaintiff
admitted in both her original and amended complaints that
"sometime in 1953, because of the expanding business of the herein
parties, the defendant established an office in the City of Manila,
wherein some of the goods, effects and merchandise manufactured or
produced in the business enterprises of the parties were sold or
disposed of". From the time he started living separately in
Mandalagan up to the filing of the complaint, the plaintiff herself
furnished him food and took care of his laundry. This latter
declaration was not rebutted by the plaintiff.
The defendant, with vehemence, denied that he has abandoned his
wife and family, averring that he has never failed, even for a single
month, to give them financial support, as witnessed by the plaintiff's
admission in her original and amended complaints as well as in open
court that during the entire period of their estrangement, he was
giving her around P500 a month for support. In point of fact, his wife
and children continued to draw allowances from his office of a total
ranging from P1,200 to P1,500 a month. He financed the education
of their children, two of whom were studying in Manila at the time
of the trial and were not living with the plaintiff. While in Bacolod
City, he never failed to visit his family, particularly the children. His
wife was always in bad need of money because she played mahjong,
an accusation which she did not traverse, explaining that she
played mahjong to entertain herself and forget the infidelities of her
husband.
Marcos V. Ganaban, the manager of the Philippine Texboard
Factory, corroborated the testimony of the defendant on the matter of
the support the latter gave to his family, by declaring in court that
since the start of his employment in 1950 as assistant general
manager, the plaintiff has been drawing an allowance of P1,000 to
P1,500 monthly, which amount was given personally by the
defendant or, in his absence, by the witness himself.
The defendant denied that he ever maintained a mistress in Manila.
He came to know Nenita Hernandez when she was barely 12 years
old, but had lost track of her thereafter. His constant presence in
Manila was required by the pressing demands of an expanding
business. He denied having destroyed the alleged note which the
plaintiff claimed to have come from Nenita, nor having seen,
previous to the trial, the letter exh. C. The allegation of his wife that
he had a concubine is based on mere suspicion. He had always been
faithful to his wife, and not for a single instance had he been caught
or surprised by her with another woman.
On the matter of the alleged abuse by the defendant of his powers of
administration of the conjugal partnership, the plaintiff declared that
the defendant refused and failed to inform her of the progress of their
various business concerns. Although she did not allege, much less
prove, that her husband had dissipated the conjugal properties, she
averred nevertheless that her husband might squander and dispose of
the conjugal assets in favor of his concubine. Hence, the urgency of
separation of property.
The defendant's answer to the charge of mismanagement is that he
has applied his industry, channeled his ingenuity, and devoted his
time, to the management, maintenance and expansion of their
business concerns, even as his wife threw money away at
the mahjong tables. Tangible proof of his endeavors is that from a
single cargo truck which he himself drove at the time of their
marriage, he had built up one business after another, the Speedway
Trucking Service, the Negros Shipping Service, the Bacolod Press,
the Philippine Texboard Factory, and miscellaneous other business
enterprises worth over a million pesos; that all that the spouses now
own have been acquired through his diligence, intelligence and
industry; that he has steadily expanded the income and assets of said
business enterprises from year to year, contrary to the allegations of
the complainant, as proved by his balance sheet and profit and loss
statements for the year 1958 and 1959 (exhibits 1 and 2); and that out
of the income of their enterprises he had purchased additional
equipment and machineries and has partially paid their indebtedness
to the Philippine National Bank and the Development Bank of the
Philippines.
It will be noted that the plaintiff does not ask for legal separation.
The evidence presented by her to prove concubinage on the part of
the defendant, while pertinent and material in the determination of
the merits of a petition for legal separation, must in this case be
regarded merely as an attempt to bolster her claim that the defendant
had abandoned her, which abandonment, if it constitutes
abandonment in law, would justify separation of the conjugal assets
under the applicable provisions of article 178 of the new Civil Code
which read: "The separation in fact between husband and wife
without judicial approval, shall not affect the conjugal partnership,
except that . . . if the husband has abandoned the wife without just
cause for at least one year, she may petition the court for a
receivership, or administration by her of the conjugal partnership
property, or separation of property". In addition to abandonment as a
ground, the plaintiff also invokes article 167 of the new Civil Code
in support of her prayer for division of the matrimonial assets. This
article provides that "In case of abuse of powers of administration of
the conjugal partnership property by the husband, the courts, on the
petition of the wife, may provide for a receivership, or administration
by the wife, or separation of property". It behooves us, therefore, to
inquire, in the case at bar, whether there has been abandonment, in
the legal sense, by the defendant of the plaintiff, and/or whether the
defendant has abused his powers of administration of the conjugal
partnership property, so as to justify the plaintiff's plea for separation
of property.
We have made a searching scrutiny of the record, and it is our
considered view that the defendant is not guilty of abandonment of
his wife, nor of such abuse of his powers of administration of the
conjugal partnership, as to warrant division of the conjugal assets.
The extraordinary remedies afforded to the wife by article 178 when
she has been abandoned by the husband for at least one year are the
same as those granted to her by article 167 in case of abuse of the
powers of administration by the husband. To entitle her to any of
these remedies, under article 178, there must be real abandonment,
and not mere separation. 1 The abandonment must not only be
physical estrangement but also amount to financial and moral
desertion.
Although an all-embracing definition of the term "abandonment " is
yet to be spelled out in explicit words, we nevertheless can determine
its meaning from the context of the Law as well as from its ordinary
usage. The concept of abandonment in article 178 may be established
in relation to the alternative remedies granted to the wife when she
has been abandoned by the husband, namely, receivership,
administration by her, or separation of property, all of which are
designed to protect the conjugal assets from waste and dissipation
rendered imminent by the husband's continued absence from the
conjugal abode, and to assure the wife of a ready and steady source
of support. Therefore, physical separation alone is not the full
meaning of the term "abandonment", if the husband, despite his
voluntary departure from the society of his spouse, neither neglects
the management of the conjugal partnership nor ceases to give
support to his wife.
The word "abandon", in its ordinary sense, means to forsake entirely;
to forsake or renounce utterly. 2 The dictionaries trace this word to
the root idea of "putting under a bar". The emphasis is on the finality
and the publicity with which some thing or body is thus put in the
control of another, and hence the meaning of giving up absolutely,
with intent never again to resume or claim one's rights or
interests. 3 When referring to desertion of a wife by a husband, the
word has been defined as "the act of a husband in voluntarily leaving
his wife with intention to forsake her entirely, never to return to her,
and never to resume his marital duties towards her, or to claim his
marital rights; such neglect as either leaves the wife destitute of the
common necessaries of life, or would leave her destitute but for the
charity of others." 4 The word "abandonment", when referring to the
act of one consort of leaving the other, is "the act of the husband or
the wife who leaves his or her consort wilfully, and with an intention
of causing per perpetual separation." 5 Giving to the word
"abandoned", as used in article 178, the meaning drawn from the
definitions above reproduced, it seems rather clear that to constitute
abandonment of the wife by the husband, there must be absolute
cessation of marital relations and duties and rights, with the intention
of perpetual separation.
Coming back to the case at bar, we believe that the defendant did not
intend to leave his wife and children permanently. The record
conclusively shows that he continued to give support to his family
despite his absence from the conjugal home. This fact is admitted by
the complainant, although she minimized the amount of support
given, saying that it was only P500 monthly. There is good reason to
believe, however, that she and the children received more than this
amount, as the defendant's claim that his wife and children continued
to draw from his office more than P500 monthly was substantially
corroborated by Marcos Ganaban, whose declarations were not
rebutted by the plaintiff. And then there is at all no showing that the
plaintiff and the children were living in want. On the contrary, the
plaintiff admitted, albeit reluctantly, that she frequently
played mahjong, from which we can infer that she had money; to
spare.
The fact that the defendant never ceased to give support to his wife
and children negatives any intent on his part not to return to the
conjugal abode and resume his marital duties and rights. In People v.
Schelske, 6 it was held that where a husband, after leaving his wife,
continued to make small contributions at intervals to her support and
that of their minor child, he was not guilty of their "abandonment",
which is an act of separation with intent that it shall be perpetual,
since contributing to their support negatived such intent. In re Hoss'
Estate, supra, it was ruled that a father did not abandon his family
where the evidence disclosed that he almost always did give his wife
part of his earnings during the period of their separation and that he
gradually paid some old rental and grocery bills.
With respect to the allegation that the defendant maintained a
concubine, we believe, contrary to the findings of the court a quo,
that the evidence on record fails to preponderate in favor of the
plaintiff's thesis. The proof that Nenita Hernandez was the concubine
of the defendant and that they were living as husband and wife in
Manila, is altogether too indefinite. Aside from the uncorroborated
statement of the plaintiff that she knew that Nenita Hernandez was
her husband's concubine, without demonstrating by credible
evidence the existence of illicit relations between Nenita and the
defendant, the only evidence on record offered to link the defendant
to his alleged mistress is exh. C. The plaintiff however failed to
connect authorship of the said letter with Nenita, on the face whereof
the sender merely signed as "D" and the addressee was one
unidentified "Darling". The plaintiff's testimony on cross-
examination, hereunder quoted, underscores such failure:
Q. You personally never received any letter from Nenita?
A. No.
Q. Neither have you received on any time until today from
1949 from Nenita?
A. No.
Q. Neither have you written to her any letter yourself until
now?
A. Why should I write a letter to her.
Q. In that case, Mrs. De la Cruz, you are not familiar with
the handwriting of Nenita. Is that right?
 A. I can say that Nenita writes very well.
Q. I am not asking you whether she writes very well or not
but, my question is this: In view of the fact that you have
never received a letter from Nenita, you have ot sent any
letter to her, you are not familiar with her handwriting?
A. Yes.
Q. You have not seen her writing anybody?
A. Yes.
Anent the allegation that the defendant had mismanaged the conjugal
partnership property, the record presents a different picture. There is
absolutely no evidence to show that he has squandered the conjugal
assets. Upon the contrary, he proved that through his industry and
zeal, the conjugal assets at the time of the trial had increased to a
value of over a million pesos.
The lower court likewise erred in holding that mere refusal or failure
of the husband as administrator of the conjugal partnership to inform
the wife of the progress of the family businesses constitutes abuse of
administration. For "abuse" to exist, it is not enough that the husband
perform an act or acts prejudicial to the wife. Nor is it sufficient that
he commits acts injurious to the partnership, for these may be the
result of mere inefficient or negligent administration. Abuse
connotes willful and utter disregard of the interests of the
partnership, evidenced by a repetition of deliberate acts and/or
omissions prejudicial to the latter. 7
If there is only physical separation between the spouses (and nothing
more), engendered by the husband's leaving the conjugal abode, but
the husband continues to manage the conjugal properties with the
same zeal, industry, and efficiency as he did prior to the separation,
and religiously gives support to his wife and children, as in the case
at bar, we are not disposed to grant the wife's petition for separation
of property. This decision may appear to condone the husband's
separation from his wife; however, the remedies granted to the wife
by articles 167 and 178 are not to be construed as condonation of the
husband's act but are designed to protect the conjugal partnership
from waste and shield the wife from want. Therefore, a denial of the
wife's prayer does not imply a condonation of the husband's act but
merely points up the insufficiency or absence of a cause of
action.1äwphï1.ñët
Courts must need exercise judicial restraint and reasoned hesitance in
ordering a separation of conjugal properties because the basic policy
of the law is homiletic, to promote healthy family life and to preserve
the union of the spouses, in person, in spirit and in property.
Consistent with its policy of discouraging a regime of
separation as not in harmony with the unity of the family and
the mutual affection and help expected of the spouses, the
Civil Code (both old and new) requires that separation of
property shall not prevail unless expressly stipulated in
marriage settlements before the union is solemnized or by
formal judicial decree during the existence of the marriage
(Article 190, new Civil Code, Article 1432, old Civil Code):
and in the latter case, it may only be ordered by the court for
causes specified in Article 191 of the new Civil Code. 8
Furthermore, a judgment ordering the division of conjugal assets
where there has been no real abandonment, the separation not being
wanton and absolute, may altogether slam shut the door for possible
reconciliation. The estranged spouses may drift irreversibly further
apart; the already broken family solidarity may be irretrievably
shattered; and any flickering hope for a new life together may be
completely and finally extinguished.
The monthly alimony in the sum of P2,000 which was allowed to the
wife in 1958, long before the devaluation of the Philippine peso in
1962, should be increased to P3,000.

On the matter of attorney's fees, it is our view that because the

defendant, by leaving the conjugal abode, has given cause for the
plaintiff to seek redress in the courts, and ask for adequate support,
an award of attorney's fees to the plaintiff must be made. Ample
authority for such award is found in paragraphs 6 and 11 of article
2208 of the new Civil Code which empower courts to grant counsel's
fees "in actions for legal support" and in cases "where the court
deems it just and equitable that attorney's fees . . . should be
recovered." However, an award of P10,000, in our opinion, is, under
the environmental circumstances, sufficient.

This Court would be remiss if it did not, firstly, remind the plaintiff
and the defendant that the law enjoins husband and wife to live
together, and, secondly, exhort them to avail of — mutually,
earnestly and steadfastly — all opportunities for reconciliation to the
end that their marital differences may be happily resolved, and
conjugal harmony may return and, on the basis of mutual respect and
understanding, endure.

ACCORDINGLY, the judgment a quo, insofar as it decrees

separation of the conjugal properties, is reversed and set aside.
Conformably to our observations, however, the defendant is ordered
to pay to the plaintiff, in the concept of support, the amount of
P3,000 per month, until he shall have rejoined her in the conjugal
home, which amount may, in the meantime, be reduced or increased
in the discretion of the court a quo as circumstances warrant. The
award of attorney's fees to the plaintiff is reduced to P10,000,
without interest. No pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P.,

Zaldivar, Sanchez, Angeles and Fernando, JJ., concur.
 women, the herein petitioner, claims to be his legal wife whom he
begot a daughter, Monina Jo. The other women and their respective
offspring are not parties of these case.

In 1980, the petitioner filed a complaint against Jo for judicial

separation of conjugal property, docketed as Civil Case No. 51, in
addition to an earlier action for support, also against him and
docketed as Civil Case No. 36, in the Regional Trial Court of Negros
Oriental, Branch 35.

The two cases were consolidated and tried jointly. On November 29,
1983, Judge German G. Lee, Jr. rendered an extensive decision, the
dispositive portion of which read:

WHEREFORE, in view of all the foregoing

arguments and considerations, this court hereby
holds that the plaintiff Prima Partosa was legally
married to Jose Jo alias Ho Hang, alias Consing,
and, therefore, is entitled to support as the lawfully
wedded wife and the defendant is hereby ordered to
give a monthly support of P500.00 to the plaintiff
Prima Partosa, to be paid on or before the 5th day of
every month, and to give to the plaintiff the amount
G.R. No. 82606 December 18, 1992 of P40,000.00 for the construction of the house in
Zamboanguita, Negros Oriental where she may live
PRIMA PARTOSA-JO, petitioner,  separately from the defendant being entitled under
vs. the law to separate maintenance being the innocent
THE HONORABLE COURT OF APPEALS and HO HANG spouse and to pay the amount of P19,200.00 to the
(with aliases JOSE JO and CONSING), respondents. plaintiff by way of support in arrears and to pay the
plaintiff the amount of P3,000.00 in the concept of
attorney's fees.

CRUZ, J.: As will be noticed, there was a definite disposition of the complaint

for support but none of the complaint for judicial separation of
The herein private respondent, Jose Jo, admits to having cohabited conjugal property.
with three women and fathered fifteen children. The first of these
Jo elevated the decision to the Court of Appeals, which affirmed the
ruling of the trial court in the complaint for support. 1 The complaint
for judicial separation of conjugal property was dismissed for lack of
a cause of action and on the ground that separation by agreement was
not covered by Article 178 of the Civil Code.
When their motions for reconsideration were denied, both parties
came to this Court for relief. The private respondent's petition for
review on certiorari was dismissed for tardiness in our resolution
dated February 17, 1988, where we also affirmed the legality of the
marriage between Jose and Prima and the obligation of the former to
support her and her daughter.
This petition deals only with the complaint for judicial separation of
conjugal property.
It is here submitted that the Court of Appeals erred in holding that: a)
the judicial separation of conjugal property sought was not allowed
under Articles 175, 178 and 191 of the Civil Code; and b) no such
separation was decreed by the trial court in the dispositive portion of
its decision.
The private respondent contends that the decision of the trial court
can longer be reviewed at this time because it has a long since
become final and executory. As the decretal portion clearly made no
disposition of Civil Case No. 51, that case should be considered
impliedly dismissed. The petitioner should have called the attention
of the trial court to the omission so that the proper rectification could
be made on time. Not having done so, she is now concluded by the
said decision, which can no longer be corrected at this late hour.
We deal first with the second ground.
While admitting that no mention was made of Civil Case No. 51 in
the dispositive portion of the decision of the trial court, the petitioner
argues that a disposition of the case was nonetheless made in the
penultimate paragraph of the decision reading as follows:
It is, therefore, hereby ordered that all properties in
question are considered properties of Jose Jo, the
defendant in this case, subject to separation of
property under Article 178, third paragraph of the
Civil Code, which is subject of separate proceedings
as enunciated herein.
The petitioner says she believed this to be disposition enough and so
did not feel it was necessary for her to appeal, particularly since the
order embodied in that paragraph was in her favor. It was only when
the respondent court observed that there was no dispositive portion
regarding that case and so ordered its dismissal that she found it
necessary to come to this Court for relief.
The petitioner has a point.
The dispositive portion of the decision in question was incomplete
insofar as it carried no ruling on the complaint for judicial separation
of conjugal property although it was extensively discussed in the
body of the decision. The drafting of the decision was indeed not
exactly careful. The petitioner's counsel, noting this, should have
taken immediate steps for the rectification for the omission so that
the ruling expressed in the text of the decision could have been
embodied in the decretal portion. Such alertness could have avoided
this litigation on a purely technical issue.
Nevertheless, the technicality invoked in this case should not be
allowed to prevail over considerations of substantive justive. After
all, the technical defect is not insuperable. We have said time and
again that where there is an ambiguity caused by an omission or a
mistake in the dispositive portion of the decision, this Court may
clarify such an ambiguity by an amendment even after the judgment
have become final. 2 In doing so, the Court may resort to the pleading
filed by the parties and the findings of fact and the conclusions of
law expressed in the text or body of the decision. 3
The trial court made definite findings on the complaint for judicial
separation of conjugal property, holding that the petitioner and the
private respondent were legally married and that the properties
mentioned by the petitioner were acquired by Jo during their
marriage although they were registered in the name of the apparent
dummy.
There is no question therefore that the penultimate paragraph of the
decision of the trial court was a ruling based upon such findings and
so should have been embodied in the dispositive portion. The
respondent court should have made the necessary modification
instead of dismissing Civil Case No. 51 and thus upholding mere
form over substance.
In the interest of substantive justice, and to expedite these
proceedings, we hereby make such modification.
And now to the merits of Civil Case No. 51.
The Court of Appeals dismissed the complaint on the ground that the
separation of the parties was due to their agreement and not because
of abondonment. The respondent court relied mainly on the
testimony of the petitioner, who declared under oath that she left
Dumaguete City, where she and Jo were living together "because
that was our agreement." It held that a agreement to live separately
without just cause was void under Article 221 of the Civil Code and
could not sustain any claim of abandonment by the aggrieved spouse.
Its conclusion was that the only remedy availabe to the petitioner
was legal separation under Article 175 of the Civil Code, 4 by virtue
of which the conjugal partnership of property would be terminated.
The petitioner contends that the respondent court has misinterpreted
Articles 175, 178 and 191 of the Civil Code. She submits that the
agreement between her and the private respondent was for her to
temporarily live with her parents during the initial period of her
pregnancy and for him to visit and support her. They never agreed to
separate permanently. And even if they did, this arrangement was
repudiated and ended in 1942, when she returned to him at
Dumaguete City and he refused to accept her.
The petitioner invokes Article 178 (3) of the Civil Code, which
reads:
Art. 178. The separation in fact between husband
and wife without judicial approval, shall not affect
the conjugal partnership, except that:
xxx xxx xxx
(3) If the husband has abandoned the wife without
just cause for at least one year, she may petition the
court for a receivership, or administration by her of
the conjugal partnership property or separation of
property.
The above-quoted provision has been superseded by Article 128 of
the Family Code, which states:
Art. 128. If a spouse without just cause abandons the
other or fails to comply with his or her obligations to
the family, the aggrieved spouse may petition the
court for receivership, for judicial separation of
property, of for authority to be the sole administrator
of the conjugal partnership property, subject to such
precautionary conditions as the court may impose.
The obligations to the family mentioned in the
preceding paragraph refer to martial, parental or
property relations.
 A spouse is deemed to have abondoned the other
when he or she has left the conjugal dwelling
without any intention of returning. The spouse who
has left the conjugal dwelling for a period of three
months or has failed within the same period to give
any information as to his or her whereabouts shall
be prima facie presumed to have no intention of
returning to the conjugal dwelling.
Under the this provision, the aggrieved spouse may petition for
judicial separation on either of these grounds:
1. Abondonment by a spouse of the other without
just cause; and
2. Failure of one spouse to comply with his or her
obligations to the family without just cause, even if
she said spouse does not leave the other spouse.
Abandonment implies a departure by one spouse with the avowed
intent never to return, followed by prolonged absence without just
cause, and without in the meantime providing in the least for one's
family although able to do so. 5 There must be absolute cessation of
marital relations, duties and rights, with the intention of perpetual
separation. 6 This idea is clearly expressed in the above-quoted
provision, which states that "a spouse is deemed to have abandoned
the other when he or she has left the conjugal dwelling without any
intention of returning."
The record shows that as early as 1942, the private respondent had
already rejected the petitioner, whom he denied admission to their
conjugal home in Dumaguete City when she returned from
Zamboanguita. The fact that she was not accepted by Jo
demonstrates all too clearly that he had no intention of resuming
their conjugal relationship. Moreover, beginning 1968 until the
determination by this Court of the action for support in 1988, the
private respondent refused to give financial support to the petitioner.
The physical separation of the parties, coupled with the refusal by
the private respondent to give support to the petitioner, sufficed to
constitute abandonment as a ground for the judicial separation of
their conjugal property.
In addition, the petitioner may also invoke the second ground
allowed by Article 128, for the fact is that he has failed without just
cause to comply with his obligations to the family as husband or
parent. Apart form refusing to admit his lawful wife to their conjugal
home in Dumaguete City, Jo has freely admitted to cohabiting with
other women and siring many children by them. It was his refusal to
provide for the petitioner and their daughter that prompted her to file
the actions against him for support and later for separation of the
conjugal property, in which actions, significantly, he even denied
being married to her. The private respondent has not established any
just cause for his refusal to comply with his obligations to his wife as
dutiful husband.
Their separation thus falls also squarely under Article 135 of the
Family Code, providing as follows:
Art. 135. Any of the following shall be considered
sufficient cause for judicial separation of property:
xxx xxx xxx
(6) That at the time of the petition, the spouse have
been separated in fact for at least one year and
reconciliation is highly improbable.
The amendments introduced in the Family Code are applicable to the
case before us although they became effective only on August 3,
1988. As we held in Ramirez v. Court of Appeals: 7
 The greater weight of authority is inclined to the SO ORDERED.
view that an appellate court, in reviewing a
judgment on appeal, will dispose of a question Padilla, Griño-Aquino and Bellosillo, JJ., concur.
according to the law prevailing at the term of such
disposition, and not according to the law prevailing
at the time of rendition of the appealed judgement.
The court will therefore reverse a judgement which
was correct at the time it was originally rendered
where, by statute, there has been an intermediate
change in the law which renders such judgement
erroneous at the time the case was finally disposed
of on appeal.

The order of judicial separation of the properties in question is based

on the finding of both the trial and respondent courts that the private
respondent is indeed their real owner. It is these properties that
should now be divided between him and the petitioner, on the
assumption that they were acquired during coverture and so belong
to the spouses half and half. As the private respondent is a Chinese
citizen, the division must include such properties properly belonging
to the conjugal partnership as may have been registered in the name
of other persons in violation of the Anti-Dummy Law.

The past has caught up with the private respondent. After his
extramarital flings and a succession of illegitimate children, he must
now make an accounting to his lawful wife of the properties he
denied her despite his promise to their of his eternal love and care.

WHEREFORE, the petition is GRANTED and the assailed decision

of the respondent court is MODIFIED. Civil Case No. 51 is hereby
decided in favor the plaintiff, the petitioner herein, and the conjugal
property of the petitioner and the private respondent is hereby
ordered divided between them, share and share alike. This division G.R. No. L-13553             February 23, 1960
shall be implemented by the trial court after determination of all the
properties pertaining to the said conjugal partnership, including those
that may have been illegally registered in the name of the persons.
JOSE DE OCAMPO, petitioner,  The record shows that on July 5, 1955, the complaint for legal
vs.
SERAFINA FLORENCIANO, respondent.
Joselito J. Coloma for petitioner.
BENGZON, J.:
Action for legal separation by Jose de Ocampo against his wife
Serafina, on the ground of adultery. The court of first instance of
Nueva Ecija dismissed it. The Court of Appeals affirmed, holding
there was confession of judgment, plus condonation or consent to the
adultery and prescription.
We granted certiorari to consider the application of articles 100 and
101 of the New Civil Code, which for convenience are quoted
herewith:
ART. 100.—The legal separation may be claimed only by
the innocent spouse, provided there has been no condonation
of or consent to the adultery or concubinage. Where both
spouses are offenders, a legal separation cannot be claimed
by either of them. Collusion between the parties to obtain
legal separation shall cause the dismissal of the petition.
ART. 101.—No decree of legal separation shall be
promulgated upon a stipulation of facts or by confession of
judgment.
In case of non-appearance of the defendant, the court shall
order the prosecuting attorney to inquire whether or not a
collusion between the parties exists. If there is no collusion,
the prosecuting attorney shall intervene for the State in order
to take care that the evidence for the plaintiff is not
fabricated.
separation was filed. As amended, it described their marriage
performed in 1938, and the commission of adultery by Serafina, in
March 1951 with Jose Arcalas, and in June 1955 with Nelson
Orzame.
Because the defendant made no answer, the court defaulted her, and
pursuant to Art. 101 above, directed the provincial fiscal to
investigate whether or not collusion existed between the parties. The
fiscal examined the defendant under oath, and then reported to the
Court that there was no collusion. The plaintiff presented his
evidence consisting of the testimony of Vicente Medina, Ernesto de
Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt.
Serafin Gubat.
According to the Court of Appeals, the evidence thus presented
shows that "plaintiff and defendant were married in April 5, 1938 by
a religious ceremony in Guimba, Nueva Ecija, and had lived
thereafter as husband and wife. They begot several children who are
now living with plaintiff. In March, 1951, plaintiff discovered on
several occasions that his wife was betraying his trust by maintaining
illicit relations with one Jose Arcalas. Having found the defendant
carrying marital relations with another man plaintiff sent her to
Manila in June 1951 to study beauty culture, where she stayed for
one year. Again, plaintiff discovered that while in the said city
defendant was going out with several other men, aside from Jose
Arcalas. Towards the end of June, 1952, when defendant had
finished studying her course, she left plaintiff and since then they
had lived separately.
"On June 18, 1955, plaintiff surprised his wife in the act of having
illicit relations with another man by the name of Nelson Orzame.
Plaintiff signified his intention of filing a petition for legal
separation, to which defendant manifested her conformity provided
she is not charged with adultery in a criminal action. Accordingly,
plaintiff filed on July 5, 1955, a petition for legal separation."
The Court of Appeals held that the husband's right to legal separation
on account of the defendant's adultery with Jose Arcalas had
prescribed, because his action was not filed within one year from
March 1951 when plaintiff discovered her infidelity. (Art. 102, New
Civil Code) We must agree with the Court of Appeals on this point.1
As to the adultery with Nelson Orzame, the appellate court found
that in the night of June 18, 1955, the husband upon discovering the
illicit connection, expressed his wish to file a petition for legal
separation and defendant readily agreed to such filing. And when she
was questioned by the Fiscal upon orders of the court, she reiterated
her conformity to the legal separation even as she admitted having
had sexual relations with Nelson Orzame. Interpreting these facts
virtually to mean a confession of judgment the Appellate Court
declared that under Art. 101, legal separation could not be decreed.
As we understand the article, it does not exclude, as evidence, any
admission or confession made by the defendant outside of the court.
It merely prohibits a decree of separation upon a confession of
judgment. Confession of judgment usually happens when the
defendant appears in court and confesses the right of plaintiff to
judgment or files a pleading expressly agreeing to the plaintiff's
demand.2 This is not occur.
Yet, even supposing that the above statement of defendant
constituted practically a confession of judgment, inasmuch as there is
evidence of the adultery independently of such statement, the decree
may and should be granted, since it would not be based on her
confession, but upon evidence presented by the plaintiff. What the
law prohibits is a judgment based exclusively or mainly on
defendant's confession. If a confession defeats the action ipso facto,
any defendant who opposes the separation will immediately confess
judgment, purposely to prevent it.
The mere circumstance that defendants told the Fiscal that she "like
also" to be legally separated from her husband, is no obstacle to the
successful prosecution of the action. When she refused to answer the
complaint, she indicated her willingness to be separated. Yet, the law
does not order the dismissal. Allowing the proceeding to continue, it
takes precautions against collusion, which implies more than consent
or lack of opposition to the agreement.
Needless to say, when the court is informed that defendant equally
desires the separation and admitted the commission of the offense, it
should be doubly careful lest a collusion exists. (The Court of
Appeals did not find collusion.)
Collusion in divorce or legal separation means the agreement.
. . . between husband and wife for one of them to commit, or
to appear to commit, or to be represented in court as having
committed, a matrimonial offense, or to suppress evidence of
a valid defense, for the purpose of enabling the other to
obtain a divorce. This agreement, if not express, may be
implied from the acts of the parties. It is a ground for
denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689
60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas.
590.).
In this case, there would be collusion if the parties had arranged to
make it appear that a matrimonial offense had been
committed although it was not, or if the parties had connived to bring
about a legal separation even in the absence of grounds therefor.
Here, the offense of adultery had really taking place, according to the
evidence. The defendant could not have falsely told the adulterous
acts to the Fiscal, because her story might send her to jail the
moment her husband requests the Fiscal to prosecute. She could not
have practiced deception at such a personal risk.
In this connection, it has been held that collusion may not be inferred
from the mere fact that the guilty party confesses to the offense and
thus enables the other party to procure evidence necessary to prove
it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs.
Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W.
[2d] 688.).

And proof that the defendant desires the divorce and makes no
defense, is not by itself collusion. (Pohlman vs. Pohlman, [N. J.] 46
Atl. Rep. 658.).

We do not think plaintiff's failure actively to search for defendant

and take her home (after the latter had left him in 1952) constituted
condonation or consent to her adulterous relations with Orzame. It
will be remembered that she "left" him after having sinned with
Arcalas and after he had discovered her dates with other men.
Consequently, it was not his duty to search for her to bring her
home. Hers was the obligation to return.

Two decisions3 are cited wherein from apparently similar

circumstances, this Court inferred the husband's consent to or
condonation of his wife's misconduct. However, upon careful
examination, a vital difference will be found: in both instances, the
husband had abandoned his wife; here it was the wife who "left" her
husband.
Wherefore, finding no obstacles to the aggrieved husband's petition
we hereby reverse the appealed decision and decree a legal
separation between these spouse, all the consequent effects. Costs of
all instances against Serafina Florenciano. So ordered.
Paras, C. J., Padilla, Montemayor, Labrador, Concepcion, Reyes, J.
B. L., Endencia, Barrera, and Gutierrez David, JJ., concur.
WILLIAM H. BROWN, plaintiff-appellant, 
vs.
JUANITA YAMBAO, defendant-appellee.
Jimenez B. Buendia for appellant.
Assistant City Fiscal Rafel A. Jose for appellee.
REYES, J.B.L., J.:
On July 14, 1955, William H. Brown filed suit in the Court of First
Instance of Manila to obtain legal separation from his lawful wife
Juanita Yambao. He alleged under oath that while interned by the
Japanese invaders, from 1942 to 1945, at the University of Sto.
Tomas internment camp, his wife engaged in adulterous relations
with one Carlos Field of whom she begot a baby girl that Brown
learned of his wifes misconduct only in 1945, upon his release from
internment; that thereafter the spouse lived separately and later
executed a document (Annex A ) liquidating their conjugal
partnership and assigning certain properties to the erring wife as her
share. The complaint prayed for confirmation of the liquidation
agreement; for custody of the children issued of the marriage; that
the defendant be declared disqualified to succeed the plaintiff; and
for their remedy as might be just and equitable.
Upon petition of the plaintiff, the court subsequently declared the
wife in default, for failure to answer in due time, despite service of
summons; and directed the City Fiscal or his representatives to—
investigate, in accordance with Article 101 of the Civil
Code, whether or not a collusion exists between the parties
and to report to this Court the result of his investigation
within fifteen (15) days from receipt of copy of this order.
The City Fiscal or his representative is also directed to
intervene in the case in behalf of the State. (Rec. App. p. 9).
As ordered, Assistant City Fiscal Rafael Jose appeared at the trial,
and cross-examined plaintiff Brown. His questions (strenuously
objected to by Brown's counsel) elicited the fact that after liberation,
Brown had lived maritally with another woman and had begotten
children by her. Thereafter, the court rendered judgment denying the
legal separation asked, on the ground that, while the wife's adultery
was established, Brown had incurred in a misconduct of similar
nature that barred his right of action under Article 100 of the new
Civil Code, providing:
ART. 100. The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation or
of consent to the adultery or concubinage. Where both
spouses are offenders, a legal separation cannot be claimed
by either of them. Collusion between the parties to obtain
legal separation shall cause the dismissal of the petition.
that there had been consent and connivance, and because Brown's
action had prescribed under Article 102 of the same Code:
ART. 102 An action for legal separation cannot be filed
except within one year from and after the date on which the
plaintiff became cognizant of the cause and within five years
from and after date when such cause occurred.
since the evidence showed that the learned of his wife's infidelity in
1945 but only filed action in 1945.
Brown appeared to this Court, assigning the following errors:
The court erred in permitting the Assistant Fiscal Rafel Jose
of Manila to act as counsel for the defendant, who defaulted.
The court erred in declaring that there was condonation of or
consent to the adultery.
The court erred in dismissing the plaintiff's complaint.
Appellant Brown argues that in cross-examining him with regard to
his marital relation with Lilia Deito, who was not his wife, the
Assistant Fiscal acted as consel for the defaulting wife, "when the
power of the prosecuting officer is limited to finding out whether or
not there is collusion, and if there is no collusion, which is the fact in
the case at bar, to intervene for the state which is not the fact in the
instant case, the truth of the matter being that he intervened for
Juanita Yambao, the defendant-appellee, who is private citizen and
who is far from being the state.".
The argument is untenable. Collusion in matrimonial cases being
"the act of married persons in procuring a divorce by mutual consent,
whether by preconcerted commission by one of a matrimonial
offense, or by failure, in pursuance of agreement to defend divorce
proceedings" (Cyclopedia Law Dictionary; Nelson, Divorce and
Separation, Section 500), it was legitimate for the Fiscal to bring to
light any circumstances that could give rise to the inference that the
wife's default was calculated, or agreed upon, to enable appellant to
obtain the decree of legal separation that he sought without regard to
the legal merits of his case. One such circumstance is obviously the
fact of Brown's cohabitation with a woman other than his wife, since
it bars him from claiming legal separation by express provision of
Article 100 of the new Civil Code. Wherefore, such evidence of such
misconduct, were proper subject of inquiry as they may justifiably be
considered circumstantial evidence of collusion between the spouses.
The policy of Article 101 of the new Civil Code, calling for the
intervention of the state attorneys in case of uncontested proceedings
for legal separation (and of annulment of marriages, under Article
88), is to emphasize that marriage is more than a mere contract; that
it is a social institution in which the state is vitally interested, so that
its continuation or interruption cannot be made depend upon the
parties themselves (Civil Code, Article 52; Adong vs, Cheong Gee,
43 Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35
Phil. 252). It is consonant with this policy that the injury by the
Fiscal should be allowed to focus upon any relevant matter that may
indicate whether the proceedings for separation or annulment are
fully justified or not.
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.
Hence, there being at least two well established statutory grounds for
denying the remedy sought (commission of similar offense by
petitioner and prescription of the action), it becomes unnecesary to
delve further into the case and ascertain if Brown's inaction for ten
years also evidences condonation or connivance on his part. Even if
it did not, his situation would not be improved. It is thus needless to
discuss the second assignment of error.
The third assignment of error being a mere consequence of the others
must necessarily fail with them.
The decision appealed from is affirmed, with costs against appellant.
So ordered.
Bengzon, Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista
Angelo, Labrador, Concepcion, Endencia and Felix, JJ., concur.

The court below also found, and correctly held that the appellant's
action was already barred, because Brown did not petition for legal
separation proceedings until ten years after he learned of his wife's
adultery, which was upon his release from internment in 1945. Under
Article 102 of the new Civil Code, action for legal separation can not
be filed except within one (1) year from and after the plaintiff
became cognizant of the cause and within five years from and after
the date when such cause occurred. Appellant's brief does not even
contest the correctness of such findings and conclusion.

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

Nevertheless, the courts can take cognizance thereof, because actions
G.R. No. L-10033        December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant, 
vs.
LEONILA GINEZ, defendant-appellee.

Florencio Dumapias for appellant. 

Numeriano Tanopo, Jr. for appellee.

FELIX, J.:

This is a case for legal separation filed in the Court of First Instance
of Pangasinan wherein on motion of the defendant, the case was
dismissed. The order of dismissal was appealed to the Court of
Appeals, but said Tribunal certified the case to the Court on the
ground that there is absolutely no question of fact involved, the
motion being predicated on the assumption as true of the very facts
testified to by plaintiff-husband.

The facts of the case abridgedly stated are as follows: Benjamin

Bugayong, a serviceman in the United States Navy, was married to
defendant Leonila Ginez on August 27, 1949, at Asingan,
Pangasinan, while on furlough leave. Immediately after their
marriage, the couple lived with their sisters who later moved to
Sampaloc, Manila. After some time, or about July, 1951, Leonila
Ginez left the dwelling of her sister-in-law and informed her husband
by letter that she had gone to reside with her mother in Asingan,
Pangasinan, from which place she later moved to Dagupan City to
study in a local college there.
As early as July, 1951, Benjamin Bugayong began receiving letters
from Valeriana Polangco (plaintiff's sister-in-law) and some from
anonymous writers(which were not produced at the hearing)
informing him of alleged acts of infidelity of his wife which he did
not even care to mention. On cross-examination, plaintiff admitted
that his wife also informed him by letter, which she claims to have
destroyed, that a certain "Eliong" kissed her. All these
communications prompted him in October, 1951 to seek the advice
of the Navy Chaplain as to the propriety of a legal separation
between him and his wife on account of the latter's alleged acts of
infidelity, and he was directed to consult instead the navy legal
department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought
for his wife whom he met in the house of one Mrs. Malalang,
defendant's godmother. She came along with him and both
proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-
husband, where they stayed and lived for 2 nights and 1 day as
husband and wife. Then they repaired to the plaintiff's house and
again passed the night therein as husband and wife. On the second
day, Benjamin Bugayong tried to verify from his wife the truth of the
information he received that she had committed adultery but Leonila,
instead of answering his query, merely packed up and left, which he
took as a confirmation of the acts of infidelity imputed on her. After
that and despite such belief, plaintiff exerted efforts to locate her and
failing to find her, he went to Bacarra, Ilocos Norte, "to soothe his
wounded feelings".
On November 18, 1952, Benjamin Bugayong filed in the Court of
First Instance of Pangasinan a complaint for legal separation against
his wife, Leonila Ginez, who timely filed an answer vehemently
denying the averments of the complaint and setting up affirmative
defenses. After the issues were joined and convinced that a
reconciliation was not possible, the court set the case for hearing on
June 9, 1953. Plaintiff's counsel announced that he was to present 6
witnesses but after plaintiff-husband finished testifying in his favor,
counsel for the defendant orally moved for the dismissal of the
complaint, but the Court ordered him to file a written motion to that
effect and gave plaintiff 10 days to answer the same.
The motion to dismiss was predicted on the following grounds: (1)
Assuming arguendo the truth of the allegations of the commission of
"acts of rank infidelity amounting to adultery", the cause of action, if
any, is barred by the statute of limitations; (2) That under the same
assumption, the act charged have been condoned by the plaintiff-
husband; and (3) That the complaint failed to state a cause of action
sufficient for this court to render a valid judgment.
The motion to dismiss was answered by plaintiff and the Court,
considering only the second ground of the motion to dismiss i.
e., condonation, ordered the dismissal of the action. After the motion
for reconsideration filed by plaintiff was denied, the case was taken
up for review to the Court of Appeals, appellant's counsel
maintaining that the lower court erred:
(a) In so prematurely dismissing the case;
(b) In finding that there were condonation on the part of
plaintiff-appellant; and
(c) In entertaining condonation as a ground for dismissal
inasmuch as same was not raised in the answer or in a
motion to dismiss.
As the questions raised in the brief were merely questions of law, the
Court of Appeals certified the case to Superiority.
The Civil Code provides:
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage
for the part of the husband as defined on the Penal Code; or
(2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the
innocent spouse, provided there has been no condonation of
or consent to the adultery or concubinage. Where both
spouses are offenders, a legal separation cannot by either of
them. Collusion between the parties to obtain legal
separation shall cause the dismissal of the petition.
ART. 102. An action for legal separation cannot be filed
except within one year from and after the date on which the
plaintiff became cognizant of the cause and within five years
from and after the date when such cause occurred.
As the only reason of the lower Court for dismissing the action was
the alleged condonation of the charges of adultery that the plaintiff-
husband had preferred in the complaint against his wife, We will
disregard the other 2 grounds of the motion to dismiss, as anyway
they have not been raised in appellant's assignment of errors.
Condonation is the forgiveness of a marital offense constituting a
ground for legal separation or, as stated in I Bouver's Law
Dictionary, p. 585, condonation is the "conditional forgiveness or
remission, by a husband or wife of a matrimonial offense which the
latter has committed". It is to be noted, however, that in defendant's
answer she vehemently and vigorously denies having committed any
act of infidelity against her husband, and even if We were to give full
weight to the testimony of the plaintiff, who was the only one that
had the chance of testifying in Court and link such evidence with the
averments of the complaint, We would have to conclude that the
facts appearing on the record are far from sufficient to establish the
charge of adultery, or, as the complaint states, of "acts of rank
infidelity amounting to adultery" preferred against the defendant.
Certainly, the letter that plaintiff claims to have received from his
sister-in-law Valeriana Polangco, which must have been too vague
and indefinite as to defendant's infidelity to deserve its production in
evidence; nor the anonymous letters which plaintiff also failed to
present; nor the alleged letter that, according to plaintiff, his wife
addressed to him admitting that she had been kissed by one Eliong,
whose identity was not established and which admission defendant
had no opportunity to deny because the motion to dismiss was filed
soon after plaintiff finished his testimony in Court, do not amount to
anything that can be relied upon.
But this is not a question at issue. In this appeal, We have to consider
plaintiff's line of conduct under the assumption that he really
believed his wife guilty of adultery. What did he do in such state of
mind. In August, 1952, he went to Pangasinan and looked for his
wife and after finding her they lived together as husband and wife for
2 nights and 1 day, after which he says that he tried to verify from
her the truth of the news he had about her infidelity, but failed to
attain his purpose because his wife, instead of answering his query
on the matter, preferred to desert him, probably enraged for being
subjected to such humiliation. And yet he tried to locate her, though
in vain. Now, do the husband's attitude of sleeping with his wife for
2 nights despite his alleged belief that she was unfaithful to him,
amount to a condonation of her previous and supposed adulterous
acts? In the order appealed from, the Court a quo had the following
to say on this point:
In the hearing of the case, the plaintiff further testified as
follows:
Q. Now Mr. Bugayong, you have filed this action for legal
separation from your wife. Please tell this Hon. Court why
you want to separate from your wife? — A. I came to know
that my wife is committing adultery, I consulted the chaplain
and he told me to consult the legal adviser. (p. 11, t.s.n.)
Q. Did you finally locate her?--A. Four days later or on the
fifth day since my arrival she went to the house of our god-
mother, and as a husband I went to her to come along with
me in our house but she refused. (p. 12, t.s.n.)lawphil.net
Q. What happened next? — A. I persuaded her to come
along with me. She consented but I did not bring her home
but brought her to the house of my cousin Pedro Bugayong.
(p. 12, t.s.n.)
Q. How long did you remain in the house of your cousin
Pedro Bugayong? — A. One day and one night. (p. 12. t.s.n.)
Q. That night when you stayed in the house of your cousin
Pedro Bugayong as husband and wife, did you slept
together? — A. Yes, sir. (p. 19, t.s.n.)
Q. On the next night, when you slept in your own house, did
you sleep together also as husband and wife? — A. Yes, sir.
(p. 19. t.s.n.)
Q. When was that? — A. That was in August, 1952. (p. 19
t.s.n.)
Q. How many nights did you sleep together as husband and
wife? — A. Only two nights. (p. 19, t.s.n.)
The New Civil Code of the Philippines, in its Art. 97, says:
A petition for legal separation may be filed:
(1) For adultery on the part of the wife and concubinage on
the part of the husband as defined on the Penal Code.
and in its Art. 100 it says:lawphil.net
The legal separation may be claimed only by the innocent
spouse, provided there has been no condonation of or
consent to the adultery or concubinage. Where both spouses
are offenders, legal separation cannot be claimed by either of
them. Collusion between the parties to obtain legal
separation shall cause the dismissal of the petition.
A detailed examination of the testimony of the plaintiff-
husband, especially those portions quoted above, clearly
shows that there was a condonation on the part of the
husband for the supposed "acts of rank infidelity amounting
to adultery" committed by defendant-wife. Admitting for the
sake of argument that the infidelities amounting to adultery
were committed by the defendant, a reconciliation was
effected between her and the plaintiff. The act of the latter in
persuading her to come along with him, and the fact that she
went with him and consented to be brought to the house of
his cousin Pedro Bugayong and together they slept there as
husband and wife for one day and one night, and the further
fact that in the second night they again slept together in their
house likewise as husband and wife — all these facts have
no other meaning in the opinion of this court than that a
reconciliation between them was effected and that there was
a condonation of the wife by the husband. The reconciliation
occurred almost ten months after he came to know of the
acts of infidelity amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935,
it has been held that "condonation is implied from sexual
intercourse after knowledge of the other infidelity. such acts
necessary implied forgiveness. It is entirely consonant with
 reason and justice that if the wife freely consents to sexual
intercourse after she has full knowledge of the husband's
guilt, her consent should operate as a pardon of his wrong."
In Tiffany's Domestic and Family Relations, section 107
says:
Condonation. Is the forgiveness of a marital offense
constituting a ground for divorce and bars the right
to a divorce. But it is on the condition, implied by
the law when not express, that the wrongdoer shall
not again commit the offense; and also that he shall
thereafter treat the other spouse with conjugal
kindness. A breach of the condition will revive the
original offense as a ground for divorce.
Condonation may be express or implied.
It has been held in a long line of decisions of the various
supreme courts of the different states of the U. S. that 'a
single voluntary act of sexual intercourse by the innocent
spouse after discovery of the offense is ordinarily sufficient
to constitute condonation, especially as against the husband'.
(27 Corpus Juris Secundum, section 61 and cases cited
therein).
In the lights of the facts testified to by the plaintiff-husband,
of the legal provisions above quoted, and of the various
decisions above-cited, the inevitable conclusion is that the
present action is untenable.
Although no acts of infidelity might have been committed by the
wife, We agree with the trial judge that the conduct of the plaintiff-
husband above narrated despite his belief that his wife was
unfaithful, deprives him, as alleged the offended spouse, of any
action for legal separation against the offending wife, because his
said conduct comes within the restriction of Article 100 of the Civil
Code.
The only general rule in American jurisprudence is that any
cohabitation with the guilty party, after the commission of the
offense, and with the knowledge or belief on the part of the injured
party of its commission, will amount to conclusive evidence of
condonation; but this presumption may be rebutted by evidence (60
L. J. Prob. 73).
If there had been cohabitation, to what extent must it be to constitute
condonation?
Single voluntary act of marital intercourse between the
parties ordinarily is sufficient to constitute condonation, and
where the parties live in the same house, it is presumed that
they live on terms of matrimonial cohabitation (27 C. J. S.,
section 6-d).
A divorce suit will not be granted for adultery where the
parties continue to live together after it was known
(Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974)
or there is sexual intercourse after knowledge of adultery
(Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together
for a single night (Toulson vs. Toulson, 50 Atl. 401, citing
Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199;
Collins vs. Collins, 193 So. 702), and many others. The
resumption of marital cohabitation as a basis of condonation
will generally be inferred, nothing appearing to the contrary,
from the fact of the living together as husband and wife,
especially as against the husband (Marsh vs. Marsh, 14 N. J.
Eq. 315).
There is no ruling on this matter in our jurisprudence but we have no
reason to depart from the doctrines laid down in the decisions of the
various supreme courts of the United States above quoted.
There is no merit in the contention of appellant that the lower court
erred in entertaining condonation as a ground for dismissal inasmuch
as same was not raised in the answer or in a motion to dismiss,
because in the second ground of the motion to dismiss. It is true that
it was filed after the answer and after the hearing had been
commenced, yet that motion serves to supplement the averments of
defendant's answer and to adjust the issues to the testimony of
plaintiff himself (section 4, Rule 17 of the Rules of Court).
Wherefore, and on the strength of the foregoing, the order appealed
from is hereby affirmed, with costs against appellant. It is so ordered.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.
SOCORRO MATUBIS, plaintiff-appellant, 
vs.
ZOILO PRAXEDES, defendant-appellee.
Luis N. de Leon for appellant.
Lucio La. Margallo for appellee.
PAREDES, J.:
Alleging abandonment and concubinage, plaintiff Socorro Matubis,
filed with the Court of First Instance of Camarines Sur, on April 24,
1956, a complaint for legal Separation and changed of surname
against her husband defendant Zoilo Praxedes.
The allegations of the complaint were denied by defendant spouse,
who interposed the defense that it was plaintiff who left the conjugal
home.
During the trial, wherein the plaintiff alone introduced oral as well as
documentary evidence, the following facts were established:.
Plaintiff and defendant were legally married on January 10, 1943 at
Iriga, Camarines Sur. For failure to agree on how they should live as
husband and wife, the couple, on May 30, 1944, agreed to live
separately from each other, which status remained unchanged until
the present. On April 3, 1948, plaintiff and defendant entered into an
agreement (Exhibit B), the significant portions of which are
hereunder reproduced..
. . . (a) That both of us relinquish our right over the other as
legal husband and wife.
(b) That both without any interference by any of us, nor
either of us can prosecute the other for adultery or
concubinage or any other crime or suit arising from our
separation.
(c) That I, the, wife, is no longer entitled for any support
from my husband or any benefits he may received thereafter,
nor I the husband is not entitled for anything from my wife.
(d) That neither of us can claim anything from the other from
the time we verbally separated, that is from May 30, 1944 to
the present when we made our verbal separation into writing.
In January, 1955, defendant began cohabiting with one Asuncion
Rebulado and on September 1, 1955, said Asuncion gave birth to a
child who was recorded as the child of said defendant (Exh. C.).It
was shown also that defendant and Asuncion deported themselves as
husband and wife and were generally reputed as such in the
community.
After the trial, without the defendant adducing any evidence, the
court a quo rendered judgment holding that the acts of defendant
constituted concubinage, a ground for legal separation. It however,
dismissed the complaint by stating:
While this legal ground exist, the suit must be dismissed for
two reasons, viz:
Under Art. 102 of the new Civil Code, an action for legal
separation cannot be filed except within one year from and
after the date on which the plaintiff became cognizant of the
cause and within five years from and after the date when the
cause occurred. The plaintiff became aware of the illegal
cohabitation of her husband with Asuncion Rebulado in
January, 1955. The complaint was filed on April 24, 1956.
The present action was, therefore, filed out of time and for
that reason action is barred.
Article 100 of the new Civil Code provides that the legal
separation may be claimed only by the innocent spouse,
provided there has been no condonation of or consent to the
adultery or concubinage. As shown in Exhibit B, the plaintiff
has consented to the commission of concubinage by her
husband. Her consent is clear from the following
stipulations:
(b) That both of us is free to get any mate and live
with as husband and wife without any interference
by any of us, nor either of us can prosecute the other
for adultery or concubinage or any other crime or
suit arising from our separation. (Exh. B).
This stipulation is an unbridled license she gave her husband
to commit concubinage. Having consented to the
concubinage, the plaintiff cannot claim legal separation.
The above decision is now before us for review, plaintiff- appellant
claiming that it was error for the lower court to have considered that
the period to bring the action has already elapsed and that there was
consent on the part of the plaintiff to the concubinage. The
proposition, therefore, calls for the interpretation of the provisions of
the law upon which the lower court based its judgment of dismissal.
Article 102 of the new Civil Code provides:
An action for legal separation cannot be filed except within
one year from and after the date on which the plaintiff
became cognizant of the cause and within five years from
after the date when cause occurred.
The complaint was filed outside the periods provided for by the
above Article. By the very admission of plaintiff, she came to know
the ground (concubinage) for the legal separation in January, 1955.
She instituted the complaint only on April 24, 1956. It is to be noted
that appellant did not even press this matter in her brief.
The very wording of the agreement Exhibit B. gives no room for
interpretation other than that given by the trial judge. Counsel in his
brief submits that the agreement is divided in two parts. The first part
having to do with the act of living separately which he claims to be
legal, and the second part — that which becomes a license to commit
the ground for legal separation which is admittedly illegal. We do
not share appellant's view. Condonation and consent on the part of
plaintiff are necessarily the import of paragraph 6(b) of the
agreement. The condonation and consent here are not only implied
but expressed. The law (Art. 100 Civil Code), specifically provides
that legal separation may be claimed only by the innocent spouse,
provided there has been no condonation of or consent to the adultery
or concubinage. Having condoned and/or consented in writing, the
plaintiff is now undeserving of the court's sympathy (People vs.
Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees that
the complaint should be dismissed. He claims however, that the
grounds for the dismissal should not be those stated in the decision
of the lower court, "but on the ground that plaintiff and defendant
have already been legally separated from each other, but without the
marital bond having been affected, long before the effectivity of the
new Civil Code" (appellants brief, pp. 7-8). Again, we cannot
subscribed to counsel's contention, because it is contrary to the
evidence.

Conformably with the foregoing, we find that the decision appealed

from is in accordance with the evidence and the law on the matter.
The same is hereby affirmed, with costs.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes,

J.B.L., Barrera, and Gutierrez David, JJ., concur.

G.R. No. L-37720             March 27, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-
appellee,  as he did." After completing her sentence, the accused left her
vs.
URSULA SENSANO and MARCELO RAMOS, defendants-
appellants.
Emilio L. Medina for appellants.
Attorney-General Jaranilla for appellee.
BUTTE, J.:
The appellants were sentenced by the Court of First Instance of
Ilocos Norte for the crime of adultery to three years, six months
and twenty-one days of prision correccional and appealed to this
court, assigning the following error: "The court below erred in not
holding that the offended husband contested to the adultery
committed by his wife Ursula Sensano in that he refused to live
with her after she extinguished her previous sentence for the
same offense, and by telling her then that she could go where
she wanted to and do what she pleased, and by his silence for
seven years notwithstanding that he was informed of said
adultery."
The facts briefly stated as follows:
Ursula Sensano and Mariano Ventura were married on April 29,
1919. They had one child. Shortly after the birth of his child, the
husband left his wife to go to the Province of Cagayan where he
remained for three years without writing to his wife or sending her
anything for the support of herself and their son. Poor and
illiterate, without relatives upon whom she could call, she
struggled for an existence for herself and her son until a fatal day
when she met the accused Marcelo Ramos who took her and the
child to live with him. On the return of the husband (in 1924), he
filed a charge against his wife and Marcelo Ramos for adultery
and both were sentenced to four months and one day of arresto
mayor. The court, in its decision, stated the following: "In the
opinion of the court, the husband of the accused has been
somewhat cruel in his treatment of his wife having abandoned her
paramour. She thereupon appealed to this municipal president
and the justice of the peace to send for her husband so that she
might ask his pardon and beg him to take her back. At the house
of the president she begged his pardon and promised to be a
faithful wife it he would take care her back. He refused to pardon
her to live with her and said she could go where she wished, that
he would have nothing more to do with her, and she could do as
she pleased. Abandoned for the second time, she and her child
went back to her coaccused Marcelo Ramos (this was in the year
1924) and they have lived with him ever since. The husband,
knowing that she resumed living with her codefendant in 1924,
did nothing to interfere with their relations or to assert his rights
as husband. Shortly thereafter he left for the Territory of Hawaii
where she remained for seven years completely abandoning his
said wife and child. On his return to these Islands, he presented
the second charge of adultery here involved with the sole
purpose, as he declared, of being able to obtain a divorce under
the provisions of Act No. 2710.
Article 344 of the Revised Penal Code, paragraphs 1 and 2, are
as follows:
 Prosecution of the crimes of adultery, concubinage,
seduction, abduction, rape and acts of lasciviousness. —
The crimes of adultery and concubinage shall not be
prosecuted except upon a complaint filed by the offended
spouse.

The offended party cannot institute criminal prosecution

without including both the guilty parties, if they are both
alive, nor, in any case, if he shall have consented or
pardoned the offenders.

Apart from the fact that the husband in this case was assuming a
mere pose when he signed the complaint as the "offended"
spouse, we have come to the conclusion that the evidence in this
case and his conduct warrant the inference that he consented to
the adulterous relations existing between the accused and
therefore he is not authorized by law to institute this criminal
proceeding.

We cannot accept the argument of the Attorney-General that the

seven years of acquiescence on his part in the adultery of his wife
is explained by his absence from the Philippine Islands during
which period it was impossible for him to take any action against
the accused. There is no merit in the argument that it was
impossible for the husband to take any action against the
accused during the said seven years.

The judgment below is reversed with costs de oficio.

Street and Ostrand, JJ., concur.