MAXIMA P. SACLOLO AND TERESITA P. OGATIA, Petitioners vs.

ROMEO MARQUITO,
MONICO MARQUITO, CLEMENTE MARQUITO, ESTER M. LOYOLA, MARINA M.
PRINCILLO, LOURDES MARQUITO AND LORNA MARQUITO, Respondents

DECISION

CAGUIOA, J.:

This is a petition for review on certiorari (Petition) under Rule 45 of the Rules of Court assailing
the Decision1 of the Court of Appeals (CA) dated July 10, 2015 and the Resolution 2 dated
November 14, 2016 in CA-G.R. CEB-CV. No. 01796. The CA Decision denied the appeal and
affirmed the Decision3 dated July 26, 2006 of Branch 3, Regional Trial Court, Guiuan, Eastern
Samar (RTC), in Civil Case No. 1159, denying the Complaint on the ground that the right to
repurchase/redeem the subject property had already expired.

The Facts and Antecedent Proceedings

The dispute involved a co-owned parcel of coconut land, which Maxima P. Saclolo (petitioner
Saclolo) and Teresita P. Ogatia (petitioner Ogatia) (together, petitioners) inherited from their
father.4

Petitioners claimed that on December 27, 1987, they each obtained a loan of ₱3,500.00 from
Felipe Marquito, the father of Romeo Marquito, Monico Marquito, Clemente Marquito, Ester
M. Loyola, Marina M. Princillo, Lourdes Marquito and Lorna Marquito 5 (respondents).
Petitioners used their land as collateral for the loan obligation. 6 On said date, respondents'
father began occupying the land. 7 In March 2003, petitioner Ogatia borrowed an additional
₱6,000.00, and again used her aliquot share of the land as collateral for the loan. 8 In June 2004,
petitioner Saclolo also borrowed an additional amount of ₱10,000.00 from respondents, using
her aliquot share of the land as collateral.9

Sometime in October 2004, petitioners verbally informed respondents of their intention to

"redeem" the property.10 On November 18, 2004, a written offer to redeem the property was
made.11 Respondents, however, refused.12 Thus, petitioners were constrained to file a
Complaint for redemption of mortgaged properties, specific performance with damages
before the RTC.13 During the proceedings, they manifested their willingness to deposit the
amounts due on their loan obligation for the purpose of redemption.14

Respondents, on the other hand, alleged that in 1984, petitioners sold the subject property for
₱1,000.00 under a Memorandum of Deed of Sale with Right of Repurchase.15 Since then, they
have been in actual possession of the property in the concept of owner and even introduced
improvements thereon worth ₱120,000.00. 16 They admitted that since 1984, petitioners, on
numerous occasions, borrowed money from them but explained that they extended said loans
on the understanding that petitioners would execute a deed of absolute sale in their favor. 17
After trial, the RTC found that the true transaction between the parties was one of equitable
mortgage.18 However, it held that the period for the redemption of the property had lapsed as
it was filed beyond the four-year period under Article 1606 19 of the Civil Code.20 Thus, it
dismissed the complaint.21

Petitioners' filed a Motion for Reconsideration.22 On the other hand, respondents failed or
refused to challenge the finding that the real transaction between the parties was an equitable
mortgage.23 Thus, this issue attained finality.24

When the RTC denied their motion,25 petitioners appealed to the CA alleging that the RTC
erred in ruling that their right to redeem the property had already prescribed. 26 They argued
that since the transaction was found to be an equitable mortgage, the property should be
subjected to a foreclosure sale and the period to redeem the property under Article 1606 does
not apply.27

The Ruling of the CA

The CA denied the appeal and affirmed the Decision of the RTC. 28 The CA held that "inasmuch
as [respondents] did not interpose their own appeal, the trial court's finding that the
transaction between the parties is an equitable mortgage can no longer be disturbed x x x in
line with the rule that only assigned errors will be decided during appeal." 29 Nevertheless, the
CA agreed that the real transaction between the parties was one of equitable mortgage.30

Further, the CA agreed that petitioners' action had prescribed, but found the RTC's application
of the four-year period under Article 1606 incorrect. The CA explained that under Article
114231 and 1144,32 petitioners had 10 years from the execution of the Memorandum of Deed of
Sale with Right to Repurchase on July 26, 1984 "to redeem the property." 33 As petitioners only
formally offered to redeem the property on November 18, 2004, the action had prescribed. 34

On reconsideration, however, the CA reversed its ruling on the proper prescriptive period and
agreed "with the trial court that [petitioners could] no longer repurchase or redeem the
property pursuant to Article 1606 of the Civil Code."35

Hence, this Petition.

Issue

Whether the action has prescribed.

The Court's Ruling

The Petition has merit.

In Spouses Salonga v. Spouses Conception,36 the Court explained the nature of an equitable
mortgage, viz.:
Article 1602 of the New Civil Code of the Philippines provides that a contract shall be presumed
to be an equitable mortgage, in any of the following cases:

(1) When the price of a sale with right to repurchase is unusually inadequate;

(2) When the vendor remains in possession as lessee or otherwise;

(3) When upon or after the expiration of the right to repurchase another instrument extending
the period of redemption or granting a new period is executed;

(4) When the purchaser retains for himself a part of the purchase price;

(5) When the vendor binds himself to pay the taxes on the thing sold;

(6) In any other case where it may be fairly inferred that the real intention of the parties is that
the transaction shall secure the payment of a debt or the performance of any other obligation.

In any of the foregoing case, any money, fruits, or other benefit to be received by the vendee
as rent or otherwise shall be considered as interest which shall be subject to the usury laws.

The provision shall apply to a contract purporting to be an absolute sale.1âшphi1 In case of

doubt, a contract purporting to be a sale with right to repurchase shall be considered as an
equitable mortgage. In a contract of mortgage, the mortgagor merely subjects the property to
a lien, but the ownership and possession thereof are retained by him.

For the presumption in Article 1602 of the New Civil Code to arise, two requirements must
concur: (a) that the parties entered into a contract denominated as a contract of sale; and (b)
that their intention was to secure an existing debt by way of a mortgage. The existence of any
of the circumstances defined in Article 1602 of the New Civil Code, not the concurrence nor an
overwhelming number of such circumstances[,] is sufficient for a contract of sale to be
presumed an equitable mortgage.

If the terms of a contract are clear and leave no doubt upon the intention of the contracting
parties, the literal meaning of its stipulations shall control. However, if the records appear to be
contrary to the evident intention of the contracting parties, the latter shall prevail.

The nomenclature given by the parties to the contract is not conclusive of the nature and legal
effects thereof. Even if a document appears on its face to be a sale, the owner of the property
may prove that the contract is really a loan with mortgage, and that the document does not
express the true intent of the parties.

There is no conclusive test to determine whether a deed absolute on its face is really a simple
loan accommodation secured by a mortgage. The decisive factor in evaluating such deed is the
intention of the parties as shown by all the surrounding circumstances, such as the relative
situation of the parties at that time, the attitude, acts, conduct, and declarations of the parties
before, during and after the execution of said deed, and generally all pertinent facts having a
tendency to determine the real nature of their design and understanding. As such,
documentary and parol evidence may be adduced by the parties. When in doubt, courts are
generally inclined to construe a transaction purporting to be a sale as an equitable mortgage,
which involves a lesser transmission of rights and interests over the property in controversy.37

In the instant case, the RTC and CA both held that the subject Memorandum of Deed of Sale
with Right of Repurchase, while purporting to be a sale with right to repurchase, was, in fact, an
equitable mortgage.38 Factual findings of the lower court, more so when supported by the
evidence, as in this case, command not only respect but even finality and are binding on the
Court.39 Further, the findings of the RTC and the CA on the nature of the transaction have
attained finality considering that the respondents never challenged the same.40

Thus, the only issue for resolution before the Court is whether petitioners' action to "redeem"
the subject property has prescribed. Both the RTC and the CA held that while the true
transaction was one of equitable mortgage under Articles 1602 and 1603 of the Civil Code,
petitioners could no longer "repurchase" or "redeem" the subject property as the period for
redemption under Article 1606 of the Civil Code has lapsed.41 This is erroneous.

An equitable mortgage, like any other mortgage, is a mere accessory contract "constituted to
secure the fulfillment of a principal obligation,"42 i.e., the full payment of the loan.

Since the true transaction between the parties was an equitable mortgage and not a sale with
right of repurchase, there is no "redemption" or "repurchase" to speak of and the periods
provided under Article 1606 do not apply. Instead, the prescriptive period under Article
114443 of the Civil Code is applicable. In other words, the parties had 10 years from the time the
cause of action accrued to file the appropriate action.

A review of the records unequivocally shows that the parties faithfully abided by their true
agreement for 19 years counted from the execution of the Memorandum of Deed of Sale with
Right of Repurchase.

Although the Memorandum of Deed of Sale with Right of Repurchase was executed in 1984 and
the period to redeem the same supposedly lapsed in 1994 if such contract were a true sale with
right to repurchase, both the RTC and CA found that subsequent loans were extended to either
or both of the petitioners in 1987, 2003, and 2004, "using the same land as security for the
loan."44 These facts were alleged in petitioners' Complaint 45 and were not specifically denied in
respondents' Answer.46

The release of additional loans on the basis of the same security, coupled with the fact that
respondents never filed an action to consolidate ownership over the subject property under
Article 1607,47 evidently shows that for 19 years, respondents expressly recognized: 1) that
petitioners continued to own the subject property and 2) that the loan and equitable mortgage
subsisted.
Thus, petitioners' cause of action to recover the subject property can be said to have accrued
only in 2004, that is, when respondents rejected petitioners' offers to pay and extinguish the
loan and to recover the mortgaged property as it was only at this time that respondents
manifested their intention not to comply with the true agreement of the parties.
Undoubtedly, the filing of the complaint in 2005 was made well-within the 10-year
prescriptive period. Such treatment is more in keeping with the principle that:

The provisions of the Civil Code governing equitable mortgages disguised as sale contracts,
like the one herein, are primarily designed to curtail the evils brought about by contracts of
sale with right to repurchase, particularly the circumvention of the usury law and pactum
commissorium. Courts have taken judicial notice of the well-known fact that contracts of sale
with right to repurchase have been frequently resorted to in order to conceal the true nature of
a contract, that is, a loan secured by a mortgage. It is a reality that grave financial distress
renders persons hard-pressed to meet even their basic needs or to respond to an emergency,
leaving no choice to them but to sign deeds of absolute sale of property or deeds of sale
with pacto de retro if only to obtain the much-needed loan from unscrupulous money lenders.48

Respondents, for their part, are not without remedy. They are entitled to collect the
outstanding amount of petitioners' loan, plus interest, and to foreclose on the subject property
should the latter fail to pay the same.49 To allow respondents to appropriate the subject lot
without prior foreclosure would produce the same effect as a pactum comissorium.50 Upon full
satisfaction of the debt, the mortgage, being a security contract, shall be extinguished 51 and
the property should be returned to herein petitioners. As the records are bereft of any basis for
the determination of the outstanding amount of the loan, the Court is left with no choice but
to remand the instant case to the RTC for a determination of the outstanding amount of the
loan and the imposition of the applicable interest, and for a declaration of whether or not
respondents are entitled to foreclose on the equitable mortgage.

WHEREFORE, the Petition is GRANTED. The Decision dated July 10, 2015 and the Resolution
dated November 14, 2016 in CA-G.R. CEB-CV. No. 01796 are REVERSED. The instant case
is REMANDED to Branch 3, Regional Trial Court, Guiuan, Eastern Samar to determine the
outstanding amount of the loan and the applicable interest, to fix a reasonable period for the
payment of the same, and to order the return of the subject property only upon full satisfaction
thereof.

SO ORDERED.

G.R. No. 103047 September 2, 1994

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
COURT OF APPEALS AND ANGELINA M. CASTRO, respondents.

Parungao, Abesamis, Eleazar & Pulgar Law Offices for private respondent.
PUNO, J.:

The case at bench originated from a petition filed by private respondent Angelina M. Castro in the
Regional Trial Court of Quezon City seeking a judicial declaration of nullity of her marriage to Edwin
F. Cardenas. As ground therefor, Castro claims that no marriage license was ever issued to them
1

prior to the solemnization of their marriage.

Despite notice, defendant Edwin F. Cardenas failed to file his answer. Consequently, he was
declared in default. Trial proceeded in his absence.

The controlling facts are undisputed:

On June 24, 1970, Angelina M. Castro and Edwin F. Cardenas were married in a civil ceremony
performed by Judge Pablo M. Malvar, City Court Judge of Pasay City. The marriage was celebrated
without the knowledge of Castro's parents. Defendant Cardenas personally attended to the
processing of the documents required for the celebration of the marriage, including the procurement
of the marriage, license. In fact, the marriage contract itself states that marriage license no. 3196182
was issued in the name of the contracting parties on June 24, 1970 in Pasig, Metro Manila.

The couple did not immediately live together as husband and wife since the marriage was unknown
to Castro's parents. Thus, it was only in March 1971, when Castro discovered she was pregnant,
that the couple decided to live together. However, their cohabitation lasted only for four (4) months.
Thereafter, the couple parted ways. On October 19, 1971, Castro gave birth. The baby was adopted
by Castro's brother, with the consent of Cardenas.

The baby is now in the United States. Desiring to follow her daughter, Castro wanted to put in order
her marital status before leaving for the States. She thus consulted a lawyer, Atty. Frumencio E.
Pulgar, regarding the possible annulment of her marriage. Through her lawyer's efforts, they
discovered that there was no marriage license issued to Cardenas prior to the celebration of their
marriage.

As proof, Angelina Castro offered in evidence a certification from the Civil Register of Pasig, Metro
Manila. It reads:

February 20, 1987

TO WHOM IT MAY CONCERN:

This is to certify that the names EDWIN F. CARDENAS and ANGELINA M. CASTRO
who were allegedly married in the Pasay City Court on June 21, 1970 under an
alleged (s)upportive marriage license
no. 3196182 allegedly issued in the municipality on June 20, 1970 cannot be located
as said license no. 3196182 does not appear from our records.

Issued upon request of Mr. Ed Atanacio.

(Sgd)
CENON
A D.
 QUINT
OS
Senior
Civil
Registr
y
Officer

Castro testified that she did not go to the civil registrar of Pasig on or before June 24, 1970 in order
to apply for a license. Neither did she sign any application therefor. She affixed her signature only on
the marriage contract on June 24, 1970 in Pasay City.

The trial court denied the petition. It held that the above certification was inadequate to establish
2

the alleged non-issuance of a marriage license prior to the celebration of the marriage between the
parties. It ruled that the "inability of the certifying official to locate the marriage license is not
conclusive to show that there was no marriage license issued."

Unsatisfied with the decision, Castro appealed to respondent appellate court. She insisted that the
certification from the local civil registrar sufficiently established the absence of a marriage license.

As stated earlier, respondent appellate court reversed the Decision of the trial court. It declared the
3

marriage between the contracting parties null and void and directed the Civil Registrar of Pasig to
cancel the subject marriage contract.

Hence this petition for review on certiorari.

Petitioner Republic of the Philippines urges that respondent appellate court erred when it ruled that
the certification issued by the civil registrar that marriage license no. 3196182 was not in their record
adequately proved that no such license was ever issued. Petitioner also faults the respondent court
for relying on the self-serving and uncorroborated testimony of private respondent Castro that she
had no part in the procurement of the subject marriage license. Petitioner thus insists that the
certification and the uncorroborated testimony of private respondent are insufficient to overthrow the
legal presumption regarding the validity of a marriage.

Petitioner also points that in declaring the marriage between the parties as null and void, respondent
appellate court disregarded the presumption that the solemnizing officer, Judge Pablo M. Malvar,
regularly performed his duties when he attested in the marriage contract that marriage license no.
3196182 was duly presented to him before the solemnization of the subject marriage.

The issues, being interrelated, shall be discussed jointly.

The core issue presented by the case at bench is whether or not the documentary and testimonial
evidence presented by private respondent are sufficient to establish that no marriage license was
issued by the Civil Registrar of Pasig prior to the celebration of the marriage of private respondent to
Edwin F. Cardenas.

We affirm the impugned Decision.

At the time the subject marriage was solemnized on June 24, 1970, the law governing marital
relations was the New Civil Code. The law provides that no marriage shall be solemnized without a
4
marriage license first issued by a local civil registrar. Being one of the essential requisites of a valid
marriage, absence of a license would render the marriage void ab initio. 5

Petitioner posits that the certification of the local civil registrar of due search and inability to find a
record or entry to the effect that marriage license no. 3196182 was issued to the parties is not
adequate to prove its non-issuance.

We hold otherwise. The presentation of such certification in court is sanctioned by Section 29, Rule
132 of the Rules of Court, viz.:

Sec. 29. Proof of lack of record. — A written statement signed by an officer having
custody of an official record or by his deputy, that after diligent search, no record or
entry of a specified tenor is found to exist in the records of his office, accompanied by
a certificate as above provided, is admissible as evidence that the records of his
office contain no such record or entry.

The above Rule authorized the custodian of documents to certify that despite diligent search, a
particular document does not exist in his office or that a particular entry of a specified tenor was not
to be found in a register. As custodians of public documents, civil registrars are public officers
charged with the duty, inter alia, of maintaining a register book where they are required to enter all
applications for marriage licenses, including the names of the applicants, the date the marriage
license was issued and such other relevant data. 6

The certification of "due search and inability to find" issued by the civil registrar of Pasig enjoys
probative value, he being the officer charged under the law to keep a record of all data relative to the
issuance of a marriage license. Unaccompanied by any circumstance of suspicion and pursuant to
Section 29, Rule 132 of the Rules of Court, a certificate of "due search and inability to find"
sufficiently proved that his office did not issue marriage license no. 3196182 to the contracting
parties.

The fact that private respondent Castro offered only her testimony in support of her petition is, in
itself, not a ground to deny her petition. The failure to offer any other witness to corroborate her
testimony is mainly due to the peculiar circumstances of the case. It will be remembered that the
subject marriage was a civil ceremony performed by a judge of a city court. The subject marriage is
one of those commonly known as a "secret marriage" — a legally non-existent phrase but ordinarily
used to refer to a civil marriage celebrated without the knowledge of the relatives and/or friends of
either or both of the contracting parties. The records show that the marriage between Castro and
Cardenas was initially unknown to the parents of the former.

Surely, the fact that only private respondent Castro testified during the trial cannot be held against
her. Her husband, Edwin F. Cardenas, was duly served with notice of the proceedings and a copy of
the petition. Despite receipt thereof, he chose to ignore the same. For failure to answer, he was
properly declared in default. Private respondent cannot be faulted for her husband's lack of interest
to participate in the proceedings. There was absolutely no evidence on record to show that there
was collusion between private respondent and her husband Cardenas.

It is noteworthy to mention that the finding of the appellate court that the marriage between the
contracting parties is null and void for lack of a marriage license does not discount the fact that
indeed, a spurious marriage license, purporting to be issued by the civil registrar of Pasig, may have
been presented by Cardenas to the solemnizing officer.
In fine, we hold that, under the circumstances of the case, the documentary and testimonial
evidence presented by private respondent Castro sufficiently established the absence of the subject
marriage license.

IN VIEW WHEREOF, the petition is DENIED there being no showing of any reversible error
committed by respondent appellate court.

SO ORDERED.

G.R. No. 165842 November 29, 2005

EDUARDO P. MANUEL, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) in CA-
G.R. CR No. 26877, affirming the Decision2 of the Regional Trial Court (RTC) of Baguio City, Branch
3, convicting Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R.

Eduardo was charged with bigamy in an Information filed on November 7, 2001, the accusatory
portion of which reads:

That on or about the 22nd day of April, 1996, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused EDUARDO P. MANUEL, being then
previously and legally married to RUBYLUS [GAÑA] and without the said marriage having been
legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage
with TINA GANDALERA-MANUEL, herein complainant, who does not know the existence of the first
marriage of said EDUARDO P. MANUEL to Rubylus [Gaña].

CONTRARY TO LAW. 3

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to Rubylus Gaña
before Msgr. Feliciano Santos in Makati, which was then still a municipality of the Province of
Rizal.4 He met the private complainant Tina B. Gandalera in Dagupan City sometime in January
1996. She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina was then 21 years
old, a Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to Baguio
City to visit her. Eventually, as one thing led to another, they went to a motel where, despite Tina’s
resistance, Eduardo succeeded in having his way with her. Eduardo proposed marriage on several
occasions, assuring her that he was single. Eduardo even brought his parents to Baguio City to meet
Tina’s parents, and was assured by them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of March 1996. They were married
on April 22, 1996 before Judge Antonio C. Reyes, the Presiding Judge of the RTC of Baguio City,
Branch 61.5 It appeared in their marriage contract that Eduardo was "single."
The couple was happy during the first three years of their married life. Through their joint efforts,
they were able to build their home in Cypress Point, Irisan, Baguio City. However, starting 1999,
Manuel started making himself scarce and went to their house only twice or thrice a year. Tina was
jobless, and whenever she asked money from Eduardo, he would slap her.6 Sometime in January
2001, Eduardo took all his clothes, left, and did not return. Worse, he stopped giving financial
support.

Sometime in August 2001, Tina became curious and made inquiries from the National Statistics
Office (NSO) in Manila where she learned that Eduardo had been previously married. She secured
an NSO-certified copy of the marriage contract.7 She was so embarrassed and humiliated when she
learned that Eduardo was in fact already married when they exchanged their own vows. 8

For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where she worked as a
Guest Relations Officer (GRO). He fell in love with her and married her. He informed Tina of his
previous marriage to Rubylus Gaña, but she nevertheless agreed to marry him. Their marital
relationship was in order until this one time when he noticed that she had a "love-bite" on her neck.
He then abandoned her. Eduardo further testified that he declared he was "single" in his marriage
contract with Tina because he believed in good faith that his first marriage was invalid. He did not
know that he had to go to court to seek for the nullification of his first marriage before marrying Tina.

Eduardo further claimed that he was only forced to marry his first wife because she threatened to
commit suicide unless he did so. Rubylus was charged with estafa in 1975 and thereafter
imprisoned. He visited her in jail after three months and never saw her again. He insisted that he
married Tina believing that his first marriage was no longer valid because he had not heard from
Rubylus for more than 20 years.

After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty beyond reasonable
doubt of bigamy. He was sentenced to an indeterminate penalty of from six (6) years and ten (10)
months, as minimum, to ten (10) years, as maximum, and directed to indemnify the private
complainant Tina Gandalera the amount of ₱200,000.00 by way of moral damages, plus costs of
suit.9

The trial court ruled that the prosecution was able to prove beyond reasonable doubt all the
elements of bigamy under Article 349 of the Revised Penal Code. It declared that Eduardo’s belief,
that his first marriage had been dissolved because of his first wife’s 20-year absence, even if true,
did not exculpate him from liability for bigamy. Citing the ruling of this Court in People v. Bitdu,10 the
trial court further ruled that even if the private complainant had known that Eduardo had been
previously married, the latter would still be criminally liable for bigamy.

Eduardo appealed the decision to the CA. He alleged that he was not criminally liable for bigamy
because when he married the private complainant, he did so in good faith and without any malicious
intent. He maintained that at the time that he married the private complainant, he was of the honest
belief that his first marriage no longer subsisted. He insisted that conformably to Article 3 of the
Revised Penal Code, there must be malice for one to be criminally liable for a felony. He was not
motivated by malice in marrying the private complainant because he did so only out of his
overwhelming desire to have a fruitful marriage. He posited that the trial court should have taken into
account Article 390 of the New Civil Code. To support his view, the appellant cited the rulings of this
Court in United States v. Peñalosa11 and Manahan, Jr. v. Court of Appeals.12

The Office of the Solicitor General (OSG) averred that Eduardo’s defense of good faith and reliance
on the Court’s ruling in United States v. Enriquez13 were misplaced; what is applicable is Article 41 of
the Family Code, which amended Article 390 of the Civil Code. Citing the ruling of this Court
in Republic v. Nolasco,14 the OSG further posited that as provided in Article 41 of the Family Code,
there is a need for a judicial declaration of presumptive death of the absent spouse to enable the
present spouse to marry. Even assuming that the first marriage was void, the parties thereto should
not be permitted to judge for themselves the nullity of the marriage;
the matter should be submitted to the proper court for resolution. Moreover, the OSG maintained,
the private complainant’s knowledge of the first marriage would not afford any relief since bigamy is
an offense against the State and not just against the private complainant.

However, the OSG agreed with the appellant that the penalty imposed by the trial court was
erroneous and sought the affirmance of the decision appealed from with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of the RTC with modification as
to the penalty of the accused. It ruled that the prosecution was able to prove all the elements of
bigamy. Contrary to the contention of the appellant, Article 41 of the Family Code should apply.
Before Manuel could lawfully marry the private complainant, there should have been a judicial
declaration of Gaña’s presumptive death as the absent spouse. The appellate court cited the rulings
of this Court in Mercado v. Tan15 and Domingo v. Court of Appeals16 to support its ruling. The
dispositive portion of the decision reads:

WHEREFORE, in the light of the foregoing, the Decision promulgated on July 31, 2002 is
hereby MODIFIED to reflect, as it hereby reflects, that accused-appellant is sentenced to an
indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as
minimum, to ten (10) years of prision mayor as maximum. Said Decision is AFFIRMED in all other
respects.

SO ORDERED.17

Eduardo, now the petitioner, filed the instant petition for review on certiorari, insisting that:

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT RULED THAT
PETITIONER’S FIRST WIFE CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390
OF THE CIVIL CODE AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH
AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE.

II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW WHEN IT AFFIRMED

THE AWARD OF PHP200,000.00 AS MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN
LAW.18

The petitioner maintains that the prosecution failed to prove the second element of the felony, i.e.,
that the marriage has not been legally dissolved or, in case his/her spouse is absent, the absent
spouse could not yet be presumed dead under the Civil Code. He avers that when he married
Gandalera in 1996, Gaña had been "absent" for 21 years since 1975; under Article 390 of the Civil
Code, she was presumed dead as a matter of law. He points out that, under the first paragraph of
Article 390 of the Civil Code, one who has been absent for seven years, whether or not he/she is still
alive, shall be presumed dead for all purposes except for succession, while the second paragraph
refers to the rule on legal presumption of death with respect to succession.
The petitioner asserts that the presumptive death of the absent spouse arises by operation of law
upon the satisfaction of two requirements: the
specified period and the present spouse’s reasonable belief that the absentee is dead. He insists
that he was able to prove that he had not heard from his first wife since 1975 and that he had no
knowledge of her whereabouts or whether she was still alive; hence, under Article 41 of the Family
Code, the presumptive death of Gaña had arisen by operation of law, as the two requirements of
Article 390 of the Civil Code are present. The petitioner concludes that he should thus be acquitted
of the crime of bigamy.

The petitioner insists that except for the period of absences provided for in Article 390 of the Civil
Code, the rule therein on legal presumptions remains valid and effective. Nowhere under Article 390
of the Civil Code does it require that there must first be a judicial declaration of death before the rule
on presumptive death would apply. He further asserts that contrary to the rulings of the trial and
appellate courts, the requirement of a judicial declaration of presumptive death under Article 41 of
the Family Code is only a requirement for the validity of the subsequent or second marriage.

The petitioner, likewise, avers that the trial court and the CA erred in awarding moral damages in
favor of the private complainant. The private complainant was a "GRO" before he married her, and
even knew that he was already married. He genuinely loved and took care of her and gave her
financial support. He also pointed out that she had an illicit relationship with a lover whom she
brought to their house.

In its comment on the petition, the OSG maintains that the decision of the CA affirming the
petitioner’s conviction is in accord with the law, jurisprudence and the evidence on record. To bolster
its claim, the OSG cited the ruling of this Court in Republic v. Nolasco.19

The petition is denied for lack of merit.

Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads:

Art. 349. Bigamy. – The penalty of prision mayor shall be imposed upon any person who shall
contract a second or subsequent marriage before the former marriage has been legally dissolved, or
before the absent spouse has been declared presumptively dead by means of a judgment rendered
in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit:

El que contrajere Segundo o ulterior matrimonio sin hallarse legítimamente disuelto el anterior, será
castigado con la pena de prision mayor. xxx

The reason why bigamy is considered a felony is to preserve and ensure the juridical tie of marriage
established by law.20 The phrase "or before the absent spouse had been declared presumptively
dead by means of a judgment rendered in the proper proceedings" was incorporated in the Revised
Penal Code because the drafters of the law were of the impression that "in consonance with the civil
law which provides for the presumption of death after an absence of a number of years, the judicial
declaration of presumed death like annulment of marriage should be a justification for bigamy."21

For the accused to be held guilty of bigamy, the prosecution is burdened to prove the felony: (a)
he/she has been legally married; and (b) he/she contracts a subsequent marriage without the former
marriage having been lawfully dissolved. The felony is consummated on the celebration of the
second marriage or subsequent marriage.22 It is essential in the prosecution for bigamy that the
alleged second marriage, having all the essential requirements, would be valid were it not for the
subsistence of the first marriage.23 Viada avers that a third element of the crime is that the second
marriage must be entered into with fraudulent intent (intencion fraudulente) which is an essential
element of a felony by dolo.24 On the other hand, Cuello Calon is of the view that there are only two
elements of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and (2) the
celebration of a second marriage. It does not matter whether the first marriage is void or voidable
because such marriages have juridical effects until lawfully dissolved by a court of competent
jurisdiction.25 As the Court ruled in Domingo v. Court of Appeals26 and Mercado v. Tan,27 under the
Family Code of the Philippines, the judicial declaration of nullity of a previous marriage is a defense.

In his commentary on the Revised Penal Code, Albert is of the same view as Viada and declared
that there are three (3) elements of bigamy: (1) an undissolved marriage; (2) a new marriage; and
(3) fraudulent intention constituting the felony of the act.28 He explained that:

… This last element is not stated in Article 349, because it is undoubtedly incorporated in the
principle antedating all codes, and, constituting one of the landmarks of our Penal Code, that, where
there is no willfulness there is no crime. There is no willfulness if the subject
believes that the former marriage has been dissolved; and this must be supported by very strong
evidence, and if this be produced, the act shall be deemed not to constitute a crime. Thus, a person
who contracts a second marriage in the reasonable and well-founded belief that his first wife is dead,
because of the many years that have elapsed since he has had any news of her whereabouts, in
spite of his endeavors to find her, cannot be deemed guilty of the crime of bigamy, because there is
no fraudulent intent which is one of the essential elements of the crime. 29

As gleaned from the Information in the RTC, the petitioner is charged with bigamy, a felony
by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code provides that there is deceit when
the act is performed with deliberate intent. Indeed, a felony cannot exist without intent. Since a
felony by dolo is classified as an intentional felony, it is deemed voluntary.30 Although the words "with
malice" do not appear in Article 3 of the Revised Penal Code, such phrase is included in the word
"voluntary."31

Malice is a mental state or condition prompting the doing of an overt act without legal excuse or
justification from which another suffers injury.32 When the act or omission defined by law as a felony
is proved to have been done or committed by the accused, the law presumes it to have been
intentional.33 Indeed, it is a legal presumption of law that every man intends the natural or probable
consequence of his voluntary act in the absence of proof to the contrary, and such presumption must
prevail unless a reasonable doubt exists from a consideration of the whole evidence. 34

For one to be criminally liable for a felony by dolo, there must be a confluence of both an evil act and
an evil intent. Actus non facit reum, nisi mens sit rea.35

In the present case, the prosecution proved that the petitioner was married to Gaña in 1975, and
such marriage was not judicially declared a nullity; hence, the marriage is presumed to subsist. 36 The
prosecution also proved that the petitioner married the private complainant in 1996, long after the
effectivity of the Family Code.

The petitioner is presumed to have acted with malice or evil intent when he married the private
complainant. As a general rule, mistake of fact or good faith of the accused is a valid defense in a
prosecution for a felony by dolo; such defense negates malice or criminal intent. However, ignorance
of the law is not an excuse because everyone is presumed to know the law. Ignorantia legis
neminem excusat.
It was the burden of the petitioner to prove his defense that when he married the private complainant
in 1996, he was of the well-grounded belief
that his first wife was already dead, as he had not heard from her for more than 20 years since 1975.
He should have adduced in evidence a decision of a competent court declaring the presumptive
death of his first wife as required by Article 349 of the Revised Penal Code, in relation to Article 41 of
the Family Code. Such judicial declaration also constitutes proof that the petitioner acted in good
faith, and would negate criminal intent on his part when he married the private complainant and, as a
consequence, he could not be held guilty of bigamy in such case. The petitioner, however, failed to
discharge his burden.

The phrase "or before the absent spouse has been declared presumptively dead by means of a
judgment rendered on the proceedings" in Article 349 of the Revised Penal Code was not an
aggroupment of empty or useless words. The requirement for a judgment of the presumptive death
of the absent spouse is for the benefit of the spouse present, as protection from the pains and the
consequences of a second marriage, precisely because he/she could be charged and convicted of
bigamy if the defense of good faith based on mere testimony is found incredible.

The requirement of judicial declaration is also for the benefit of the State. Under Article II, Section 12
of the Constitution, the "State shall protect and strengthen the family as a basic autonomous social
institution." Marriage is a social institution of the highest importance. Public policy, good morals and
the interest of society require that the marital relation should be surrounded with every safeguard
and its severance only in the manner prescribed and the causes specified by law.37 The laws
regulating civil marriages are necessary to serve the interest, safety, good order, comfort or general
welfare of the community and the parties can waive nothing essential to the validity of the
proceedings. A civil marriage anchors an ordered society by encouraging stable relationships over
transient ones; it enhances the welfare of the community.

In a real sense, there are three parties to every civil marriage; two willing spouses and an approving
State. On marriage, the parties assume new relations to each other and the State touching nearly on
every aspect of life and death. The consequences of an invalid marriage to the parties, to innocent
parties and to society, are so serious that the law may well take means calculated to ensure the
procurement of the most positive evidence of death of the first spouse or of the presumptive death of
the absent spouse38 after the lapse of the period provided for under the law. One such means is the
requirement of the declaration by a competent court of the presumptive death of an absent spouse
as proof that the present spouse contracts a subsequent marriage on a well-grounded belief of the
death of the first spouse. Indeed, "men readily believe what they wish to be true," is a maxim of the
old jurists. To sustain a second marriage and to vacate a first because one of the parties believed
the other to be dead would make the existence of the marital relation determinable, not by certain
extrinsic facts, easily capable of forensic ascertainment and proof, but by the subjective condition of
individuals.39 Only with such proof can marriage be treated as so dissolved as to permit second
marriages.40 Thus, Article 349 of the Revised Penal Code has made the dissolution of marriage
dependent not only upon the personal belief of parties, but upon certain objective facts easily
capable of accurate judicial cognizance,41 namely, a judgment of the presumptive death of the
absent spouse.

The petitioner’s sole reliance on Article 390 of the Civil Code as basis for his acquittal for bigamy is
misplaced.

Articles 390 and 391 of the Civil Code provide –

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 his succession till after an
absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years
shall be sufficient in order that his succession may be opened.

Art. 391. The following shall be presumed dead for all purposes, including the division of the estate
among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has
not been heard of for four years since the loss of the vessel or aeroplane;

(2) A person in the armed forces who has taken part in war, and has been missing for four years;

(3) A person who has been in danger of death under other circumstances and his existence has not
been known for four years.

The presumption of death of the spouse who had been absent for seven years, it being unknown
whether or not the absentee still lives, is created by law and arises without any necessity of judicial
declaration.42 However, Article 41 of the Family Code, which amended the foregoing rules on
presumptive death, reads:

Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be
null and void, unless before the celebration of the subsequent marriage, the prior spouse had been
absent for four consecutive years and the spouse present had a well-founded belief that the absent
spouse was already dead. In case of disappearance where there is danger of death under the
circumstances set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.

For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse
present must institute a summary proceeding as provided in this Court for the declaration of
presumptive death of the absentee, without prejudice to the effect of reappearance of the absent
spouse.43

With the effectivity of the Family Code,44 the period of seven years under the first paragraph of Article
390 of the Civil Code was reduced to four consecutive years. Thus, before the spouse present may
contract a subsequent marriage, he or she must institute summary proceedings for the declaration of
the presumptive death of the absentee spouse,45 without prejudice to the effect of the reappearance
of the absentee spouse. As explained by this Court in Armas v. Calisterio:46

In contrast, under the 1988 Family Code, in order that a subsequent bigamous marriage may
exceptionally be considered valid, the following conditions must concur, viz.: (a) The prior spouse of
the contracting party must have been absent for four consecutive years, or two years where there is
danger of death under the circumstances stated in Article 391 of the Civil Code at the time of
disappearance; (b) the spouse present has a well-founded belief that the absent spouse is already
dead; and (c) there is, unlike the old rule, a judicial declaration of presumptive death of the absentee
for which purpose the spouse present can institute a summary proceeding in court to ask for that
declaration. The last condition is consistent and in consonance with the requirement of judicial
intervention in subsequent marriages as so provided in Article 41, in relation to Article 40, of the
Family Code.

The Court rejects petitioner’s contention that the requirement of instituting a petition for declaration
of presumptive death under Article 41 of the Family Code is designed merely to enable the spouse
present to contract a valid second marriage and not for the acquittal of one charged with bigamy.
Such provision was designed to harmonize civil law and Article 349 of the Revised Penal Code, and
put to rest the confusion spawned by the rulings of this Court and comments of eminent authorities
on Criminal Law.

As early as March 6, 1937, this Court ruled in Jones v. Hortiguela47 that, for purposes of the marriage
law, it is not necessary to have the former spouse judicially declared an absentee before the spouse
present may contract a subsequent marriage. It held that the declaration of absence made in
accordance with the provisions of the Civil Code has for its sole purpose 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 had 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 such former spouse is generally reputed to be dead and the spouse present so
believes at the time of the celebration of the marriage.48 In In Re Szatraw,49 the Court declared that a
judicial declaration that a person is presumptively dead, because he or she 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; and that proof of actual death of the person presumed dead being
unheard from in seven years, would have to be made in another proceeding to have such particular
fact finally determined. The Court ruled that if a judicial decree declaring a person presumptively
dead because he or she 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
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 stated
that it should not waste its valuable time and be made to perform a superfluous and meaningless
act.50 The Court also took note that a petition for a declaration of the presumptive death of an absent
spouse may even be made in collusion with the other spouse.

In Lukban v. Republic of the Philippines,51 the Court declared that the words "proper proceedings" in
Article 349 of the Revised Penal Code can only refer to those authorized by law such as Articles 390
and 391 of the Civil Code which refer to the administration or settlement of the estate of a deceased
person. In Gue v. Republic of the Philippines,52 the Court rejected the contention of the petitioner
therein that, under Article 390 of the Civil Code, the courts are authorized to declare the presumptive
death of a person after an absence of seven years. The Court reiterated its rulings in Szatraw,
Lukban and Jones.

Former Chief Justice Ramon C. Aquino was of the view that "the provision of Article 349 or "before
the absent spouse has been declared presumptively dead by means of a judgment reached in the
proper proceedings" is erroneous and should be considered as not written. He opined that such
provision presupposes that, if the prior marriage has not been legally dissolved and the absent first
spouse has not been declared presumptively dead in a proper court proceedings, the subsequent
marriage is bigamous. He maintains that the supposition is not true. 53 A second marriage is
bigamous only when the circumstances in paragraphs 1 and 2 of Article 83 of the Civil Code are not
present.54 Former Senator Ambrosio Padilla was, likewise, of the view that Article 349 seems to
require judicial decree of dissolution or judicial declaration of absence but even with such decree, a
second marriage in good faith will not constitute bigamy. He posits that a second marriage, if not
illegal, even if it be annullable, should not give rise to bigamy.55 Former Justice Luis B. Reyes, on the
other hand, was of the view that in the case of an absent spouse who could not yet be presumed
dead according to the Civil Code, the spouse present cannot be charged and convicted of bigamy in
case he/she contracts a second marriage.56

The Committee tasked to prepare the Family Code proposed the amendments of Articles 390 and
391 of the Civil Code to conform to Article 349 of the Revised Penal Code, in that, in a case where a
spouse is absent for the requisite period, the present spouse may contract a subsequent marriage
only after securing a judgment declaring the presumptive death of the absent spouse to avoid being
charged and convicted of bigamy; the present spouse will have to adduce evidence that he had a
well-founded belief that the absent spouse was already dead.57 Such judgment is proof of the good
faith of the present spouse who contracted a subsequent marriage; thus, even if the present spouse
is later charged with bigamy if the absentee spouse reappears, he cannot be convicted of the crime.
As explained by former Justice Alicia Sempio-Diy:

… Such rulings, however, conflict with Art. 349 of the Revised Penal Code providing that the present
spouse must first ask for a declaration of presumptive death of the absent spouse in order not to be
guilty of bigamy in case he or she marries again.

The above Article of the Family Code now clearly provides that for the purpose of the present
spouse contracting a second marriage, he or she must file a summary proceeding as provided in the
Code for the declaration of the presumptive death of the absentee, without prejudice to the latter’s
reappearance. This provision is intended to protect the present spouse from a criminal prosecution
for bigamy under Art. 349 of the Revised Penal Code because with the judicial declaration that the
missing spouses presumptively dead, the good faith of the present spouse in contracting a second
marriage is already established.58

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of Justice) who wrote that
things are now clarified. He says judicial declaration of presumptive death is now authorized for
purposes of
remarriage. The present spouse must institute a summary proceeding for declaration of presumptive
death of the absentee, where the ordinary rules of procedure in trial will not be followed. Affidavits
will suffice, with possible clarificatory examinations of affiants if the Judge finds it necessary for a full
grasp of the facts. The judgment declaring an absentee as presumptively dead is without prejudice
to the effect of reappearance of the said absentee.

Dean Pineda further states that before, the weight of authority is that the clause "before the absent
spouse has been declared presumptively dead x x x" should be disregarded because of Article 83,
paragraph 3 of the Civil Code. With the new law, there is a need to institute a summary proceeding
for the declaration of the presumptive death of the absentee, otherwise, there is bigamy. 59

According to Retired Supreme Court Justice Florenz D. Regalado, an eminent authority on Criminal
Law, in some cases where an absentee spouse is believed to be dead, there must be a judicial
declaration of presumptive death, which could then be made only in the proceedings for the
settlement of his estate.60 Before such declaration, it was held that the remarriage of the other
spouse is bigamous even if done in good faith.61 Justice Regalado opined that there were contrary
views because of the ruling in Jones and the provisions of Article 83(2) of the Civil Code, which,
however, appears to have been set to rest by Article 41 of the Family Code, "which requires a
summary hearing for the declaration of presumptive death of the absent spouse before the other
spouse can remarry."

Under Article 238 of the Family Code, a petition for a declaration of the presumptive death of an
absent spouse under Article 41 of the Family Code may be filed under Articles 239 to 247 of the
same Code.62

On the second issue, the petitioner, likewise, faults the trial court and the CA for awarding moral
damages in favor of the private complainant. The petitioner maintains that moral damages may be
awarded only in any of the cases provided in Article 2219 of the Civil Code, and bigamy is not one of
them. The petitioner asserts that the appellate court failed to apply its ruling in People v.
Bondoc,63 where an award of moral damages for bigamy was disallowed. In any case, the petitioner
maintains, the private complainant failed to adduce evidence to prove moral damages.

The appellate court awarded moral damages to the private complainant on its finding that she
adduced evidence to prove the same. The appellate court ruled that while bigamy is not included in
those cases enumerated in Article 2219 of the Civil Code, it is not proscribed from awarding moral
damages against the petitioner. The appellate court ruled that it is not bound by the following ruling
in People v. Bondoc:

... Pero si en dichos asuntos se adjudicaron daños, ello se debió indedublamente porque el articulo
2219 del Código Civil de Filipinas autoriza la adjudicación de daños morales en los delitos de
estupro, rapto, violación, adulterio o concubinato, y otros actos lascivos, sin incluir en esta
enumeración el delito de bigamia. No existe, por consiguiente, base legal para adjudicar aquí los
daños de ₱5,000.00 arriba mencionados.64

The OSG posits that the findings and ruling of the CA are based on the evidence and the law. The
OSG, likewise, avers that the CA was not bound by its ruling in People v. Rodeo.

The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable
of pecuniary computation, moral damages may be recovered if they are the proximate result of the
defendant’s wrongful act or omission.65 An award for moral damages requires the confluence of the
following conditions: first, there must be an injury, whether physical, mental or psychological, clearly
sustained by the claimant; second, there must be culpable act or omission factually
established; third, the wrongful act or omission of the defendant is the proximate cause of the injury
sustained by the claimant; and fourth, the award of damages is predicated on any of the cases
stated in Article 2219 or Article 2220 of the Civil Code.66

Moral damages may be awarded in favor of the offended party only in criminal cases enumerated in
Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil Code and analogous cases, viz.:

Art. 2219. Moral damages may be recovered in the following and analogous cases.

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;

(4) Adultery or concubinage;

(5) Illegal or arbitrary detention or arrest;

(6) Illegal search;

(7) Libel, slander or any other form of defamation;

(8) Malicious prosecution;

(9) Acts mentioned in article 309;

(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34 and 35.

The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article,
may also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in
No. 9 of this article in the order named.

Thus, the law does not intend that moral damages should be awarded in all cases where the
aggrieved party has suffered mental anguish, fright, moral anxieties, besmirched reputation,
wounded feelings, moral shock, social humiliation and similar injury arising out of an act or omission
of another, otherwise, there would not have been any reason for the inclusion of specific acts in
Article 221967 and analogous cases (which refer to those cases bearing analogy or resemblance,
corresponds to some others or resembling, in other respects, as in form, proportion, relation, etc.) 68

Indeed, bigamy is not one of those specifically mentioned in Article 2219 of the Civil Code in which
the offender may be ordered to pay moral damages to the private complainant/offended party.
Nevertheless, the petitioner is liable to the private complainant for moral damages under Article 2219
in relation to Articles 19, 20 and 21 of the Civil Code.

According to Article 19, "every person must, in the exercise of his rights and in the performance of
his act with justice, give everyone his due, and observe honesty and good faith." This provision
contains what is commonly referred to as the principle of abuse of rights, and sets certain standards
which must be observed not only in the exercise of one’s rights but also in the performance of one’s
duties. The standards are the following: act with justice; give everyone his due; and observe honesty
and good faith. The elements for abuse of rights are: (a) there is a legal right or duty; (b) exercised in
bad faith; and (c) for the sole intent of prejudicing or injuring another. 69

Article 20 speaks of the general sanctions of all other provisions of law which do not especially
provide for its own sanction. When a right is exercised in a manner which does not conform to the
standards set forth in the said provision and results in damage to another, a legal wrong is thereby
committed for which the wrongdoer must be responsible.70 If the provision does not provide a remedy
for its violation, an action for damages under either Article 20 or Article 21 of the Civil Code would be
proper. Article 20 provides that "every person who, contrary to law, willfully or negligently causes
damage to another shall indemnify the latter for the same." On the other hand, Article 21 provides
that "any person who willfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for damages." The latter provision
is adopted to remedy "the countless gaps in the statutes which leave so many victims of moral
wrongs helpless, even though they have actually suffered material and moral injury should
vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for
human foresight to prove for specifically in the statutes." Whether or not the principle of abuse of
rights has been violated resulting in damages under Article 20 or Article 21 of the Civil Code or other
applicable provisions of law depends upon the circumstances of each case.71

In the present case, the petitioner courted the private complainant and proposed to marry her. He
assured her that he was single. He even brought his parents to the house of the private complainant
where he and his parents made the same assurance – that he was single. Thus, the private
complainant agreed to marry the petitioner, who even stated in the certificate of marriage that he
was single. She lived with the petitioner and dutifully performed her duties as his wife, believing all
the while that he was her lawful husband. For two years or so until the petitioner heartlessly
abandoned her, the private complainant had no inkling that he was already married to another
before they were married.

Thus, the private complainant was an innocent victim of the petitioner’s chicanery and heartless
deception, the fraud consisting not of a single act alone, but a continuous series of acts. Day by day,
he maintained the appearance of being a lawful husband to the private complainant, who
changed her status from a single woman to a married woman, lost the consortium, attributes and
support of a single man she could have married lawfully and endured mental pain and humiliation,
being bound to a man who it turned out was not her lawful husband. 72

The Court rules that the petitioner’s collective acts of fraud and deceit before, during and after his
marriage with the private complainant were willful, deliberate and with malice and caused injury to
the latter. That she did not sustain any physical injuries is not a bar to an award for moral damages.
Indeed, in Morris v. Macnab,73 the New Jersey Supreme Court ruled:

xxx The defendant cites authorities which indicate that, absent physical injuries, damages for shame,
humiliation, and mental anguish are not recoverable where the actor is simply negligent. See
Prosser, supra, at p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all recognize
that where the wrong is willful rather than negligent, recovery may be had for the ordinary, natural,
and proximate consequences though they consist of shame, humiliation, and mental anguish. See
Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936); Kuzma v. Millinery
Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p.
38. Here the defendant’s conduct was not merely negligent, but was willfully and maliciously
wrongful. It was bound to result in shame, humiliation, and mental anguish for the plaintiff, and when
such result did ensue the plaintiff became entitled not only to compensatory but also to punitive
damages. See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery Workers, etc., Local
24, supra. CF. Note, "Exemplary Damages in the Law of Torts," 70 Harv. L. Rev. 517 (1957). The
plaintiff testified that because of the defendant’s bigamous marriage to her and the attendant
publicity she not only was embarrassed and "ashamed to go out" but "couldn’t sleep" but "couldn’t
eat," had terrific headaches" and "lost quite a lot of weight." No just basis appears for judicial
interference with the jury’s reasonable allowance of $1,000 punitive damages on the first count. See
Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App. Div.74 1955).

The Court thus declares that the petitioner’s acts are against public policy as they undermine and
subvert the family as a social institution, good morals and the interest and general welfare of society.

Because the private complainant was an innocent victim of the petitioner’s perfidy, she is not barred
from claiming moral damages. Besides, even considerations of public policy would not prevent her
from recovery. As held in Jekshewitz v. Groswald:75

Where a person is induced by the fraudulent representation of another to do an act which, in

consequence of such misrepresentation, he believes to be neither illegal nor immoral, but which is in
fact a criminal offense, he has a right of action against the person so inducing him for damages
sustained by him in consequence of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B.
816. In Cooper v. Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a
false representation by the defendant that he was divorced from his former wife, whereby the plaintiff
was induced to marry him, gave her a remedy in tort for deceit. It seems to have been assumed that
the fact that she had unintentionally violated the law or innocently committed a crime by cohabiting
with him would be no bar to the action, but rather that it might be a ground for enhancing her
damages. The injury to the plaintiff was said to be in her being led by the promise to give the
fellowship and assistance of a wife to one who was not her husband and to assume and act in a
relation and condition that proved to be false and ignominious. Damages for such an injury were
held to be recoverable in Sherman v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339,
343, 8 Am. Rep. 336.

Furthermore, in the case at bar the plaintiff does not base her cause of action upon any
transgression of the law by herself but upon the defendant’s misrepresentation. The criminal
relations which followed, innocently on her part, were but one of the incidental results of the
defendant’s fraud for which damages may be assessed.

[7] Actions for deceit for fraudulently inducing a woman to enter into the marriage relation have been
maintained in other jurisdictions. Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.)
819; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec.
747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy would not
prevent recovery where the circumstances are such that the plaintiff was conscious of no moral
turpitude, that her illegal action was induced solely by the defendant’s misrepresentation, and that
she does not base her cause of action upon any transgression of the law by herself. Such
considerations
distinguish this case from cases in which the court has refused to lend its aid to the enforcement of a
contract illegal on its face or to one who has consciously and voluntarily become a party to an illegal
act upon which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E.
251, 49 A. L. R. 958.76

Considering the attendant circumstances of the case, the Court finds the award of ₱200,000.00 for
moral damages to be just and reasonable.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed decision of the Court of
Appeals is AFFIRMED. Costs against the petitioner.

SO ORDERED.

G.R. No. 107383 February 20, 1996

CECILIA ZULUETA, petitioner,

vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION

MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the
Regional Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers
taken by her from private respondent's clinic without the latter's knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother,
a driver and private respondent's secretary, forcibly opened the drawers and cabinet in her
husband's clinic and took 157 documents consisting of private correspondence between Dr. Martin
and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and
photographs. The documents and papers were seized for use in evidence in a case for legal
separation and for disqualification from the practice of medicine which petitioner had filed against her
husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages
against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after
trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the
capital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint or those
further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta and any
person acting in her behalf to a immediately return the properties to Dr. Martin and to pay him
P5,000.00, as nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay the
costs of the suit. The writ of preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of
Appeals affirmed the decision of the Regional Trial Court. Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr.
Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and
consent. For that reason, the trial court declared the documents and papers to be properties of
private respondent, ordered petitioner to return them to private respondent and enjoined her from
using them in evidence. In appealing from the decision of the Court of Appeals affirming the trial
court's decision, petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr., this Court ruled
1

that the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that
case) were admissible in evidence and, therefore, their use by petitioner's attorney, Alfonso Felix did
not constitute malpractice or gross misconduct, For this reason it is contended that the Court of
Appeals erred in affirming the decision of the trial court instead of dismissing private respondent's
complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among
other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in
using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct
because of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr.,
this Court took note of the following defense of Atty. Felix; Jr. which it found to be "impressed with
merit:"2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he

maintains that:

....

4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional
Trial Court, there was admittedly an order of the Manila Regional Trial Court prohibiting
Cecilia from using the documents Annex "A-1 to J-7." On September 6, 1983, however
having appealed the said order to this Court on a petition for certiorari, this Court issued a
restraining order on aforesaid date which order temporarily set aside the order of the trial
court. Hence, during the enforceability of this Court's order, respondent's request for
petitioner to admit the genuineness and authenticity of the subject annexes cannot be looked
upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and authenticity
of the questioned annexes, At that point in time, would it have been malpractice for
respondent to use petitioner's admission as evidence against him in the legal separation
 case pending in the Regional Trial Court of Makati? Respondent submits it is not
malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself
under oath, Such verified admission constitutes an affidavit, and, therefore, receivable in
evidence against him. Petitioner became bound by his admission. For Cecilia to avail herself
of her husband's admission and use the same in her action for legal separation cannot be
treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a
declaration that his use of the documents and papers for the purpose of securing Dr. Martin's
admission as to their genuiness and authenticity did not constitute a violation of the injunctive order
of the trial court. By no means does the decision in that case establish the admissibility of the
documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the
documents and papers, enforcement of the order of the trial court was temporarily restrained by this
Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by
petitioner against the trial court's order was dismissed and, therefore, the prohibition against the
further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring "the privacy of communication and correspondence [to be] inviolable" is no less
3

applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity)
who is the party against whom the constitutional provision is to be enforced. The only exception to
the prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or
order requires otherwise, as prescribed by law." Any violation of this provision renders the evidence
4

obtained inadmissible "for any purpose in any proceeding." 5

The intimacies between husband and wife do not justify any one of them in breaking the drawers
and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A
person, by contracting marriage, does not shed his/her integrity or his right to privacy as an
individual and the constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged.
Neither husband nor wife may testify for or against the other without the consent of the affected
spouse while the marriage subsists. Neither may be examined without the consent of the other as to
6

any communication received in confidence by one from the other during the marriage, save for
specified exceptions. But one thing is freedom of communication; quite another is a compulsion for
7

each one to share what one knows with the other. And this has nothing to do with the duty of fidelity
that each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.

CHRISTIAN CADAJAS Y CABIAS, PETITIONER, VS. PEOPLE OF THE PHILIPPINES,

RESPONDENT.
 DECISION

LOPEZ, J., J.:

Before this Court is a Petition for Review on Certiorari1 under Rule 45 of the Revised Rules of Court
assailing the Decision2 dated September 17, 2018 and Resolution3 dated May 9, 2019 rendered by
the Court of Appeals (CA) in CA-G.R. CR No. 40298, which affirmed with modification the August 7,
2017 Joint Decision4 of the Regional Trial Court of Valenzuela City, Branch 270 (RTC) in Criminal
Case Nos. 215-V-17 and 216-V-17, finding Christian Cadajas y Cabias (petitioner) guilty of violating
Section 4(c)(2) of Republic Act (R.A.) No. 10175, in relation to Sections 4(a), 3(b) and (c)(5) of R.A.
No. 9775.

The Antecedents

Petitioner, who was then 24 years old, met the victim, AAA,5 who was only 14 years old, in the
canteen where he works. Their relationship started when the younger sibling of AAA told petitioner
that AAA had a crush on him. Petitioner tried to evade AAA, but the latter started to stalk him. Later,
AAA sent petitioner a request in his Facebook Messenger, which he accepted. The petitioner and
AAA would then exchange messages on Facebook Messenger and after some time, petitioner
courted AAA for two weeks, until they became sweethearts on April 2, 2016.6

Sometime in June 2016, BBB, the mother of AAA, learned of their relationship.7 She discovered the
relationship because AAA would borrow her cellphone to access the latter's Facebook account.8 Her
mother was thus able to read their messages whenever AAA would forget to log out her account.
BBB disapproved of their relationship because AAA was still too young.9 However, petitioner and
AAA ignored her admonishment.

Sometime in October 2016, BBB was disheartened when she read that petitioner was sexually luring
her daughter to meet with him in a motel. She confronted petitioner and told him to stay away
because AAA was still a minor.10

At around 5:30 in the morning of November 18, 2016, BBB was shocked when she read the
conversation between petitioner and AAA. She found that petitioner was coaxing her daughter to
send him photos of the latter's breast and vagina. AAA relented and sent petitioner the photos he
was asking. When AAA learned that her mother read their conversation, she rushed to a computer
shop to delete her messages. BBB, however, was able to force her to open petitioner's Facebook
messenger account to get a copy of their conversation.11

On the part of the petitioner, he admitted sending AAA the messages "oo ready ako sa ganyan" and
"sige hubad." He, however, denied having sent AAA, photos of his private part. On November 17,
2016, AAA asked petitioner to delete their messages from his account. He even told her "bakit kasi
hindi ka pa nagtitino, hayan tuloy nakita ng mama mo." On the same day, petitioner broke up with
AAA because her mother did not like him.12

Petitioner later learned from his co-workers that two (2) criminal cases were filed against him.13 He
was charged for violation of Section 10(a) of R.A. No. 7610 and for child pornography as defined and
penalized under Section 4(c)(2) of R.A. No. 10175 in relation to Sections 4(a), 3(b) and (c)(5) of R.A.
No. 9775. The two (2) informations that were filed against petitioner on December 27, 2016, read as
follows:

Criminal Case No. 215-V-17

 The undersigned Associate Prosecutor Attorney II accuses CHRISTIAN
CADAJAS of "Violation of Section 10(a) of R.A. No. 7610" committed as follows:

That on or about November 16, 2016 in Valenzuela City and within the jurisdiction of the Honorable
Court, the above-named accused, acting with lewd design, and abuse of minority, did, then and
there, willfully, unlawfully and feloniously coerced. [AAA] (DOB: February 10, 2002) (POB:
Valenzuela City), 14 years old, a minor, to send pictures of her breasts and vagina through
Facebook Messenger, which circumstances debased, degraded and demeaned the intrinsic worth
and dignity of the child as a human being, thereby endangering her youth, normal growth and
development.

CONTRARY TO LAW.14

Criminal Case No. 216-V-17

The undersigned Associate Prosecution Attorney II accuses CHRISTIAN

CADAJAS of Child Pornography Under Section 4(c)(2) of R.A. No. 10175
(Cybercrime Prevention of 2012, in Relation to Sections 4(a) and 3(b) and (c)(5) of
R.A. No. 9775", committed as follows:

That on or about November 16, 2016 in Valenzuela City and within the
jurisdiction of the Honorable Court, the accused, the above-named accused, acting
with lewd design, did, then and there, willfully, unlawfully and feloniously coerced,
induced [AAA], (DOB: February 10, 2002) (POB: Valenzuela City), 14 years old, to
send him pictures of her vagina and breasts, through Facebook Messenger using a
mobile phone.

CONTRARY TO LAW.15

Petitioner entered a plea of not guilty to both charges during arraignment.16

After trial, the RTC acquitted petitioner of the charge for violation of Section 10(a) of R.A. No. 7610,
but found him guilty beyond reasonable doubt for violation of Section 4(c)(2) of R.A. No. 10175 in
relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775. As such, petitioner was sentenced
to reclusion temporal and to pay a fine of P1,000,000.00.17

According to the RTC, petitioner was aware that AAA was still a minor when he obstinately prodded
the latter to send him photos of her private parts. This is an explicit sexual activity, a lascivious
conduct, which the minor victim, AAA, could not have done were it not for the persistent inducement
of the petitioner.18 Moreover, petitioner's violation of R.A. No. 9775 is a malum prohibitum.19 As
such, his claim that he was in a relationship with AAA finds no relevance.

On the other hand, the RTC dismissed the charge against petitioner for violation of Section 10(a) of
R.A. No. 7610 holding that AAA is a city lass who was no longer innocent of the ways of the world.
She herself attested that she was not affected by what happened. As such, the RTC ruled that the
protective mantle of R.A. No. 7610 is wanting.20 Thus, the RTC disposed the case as follows:

WHEREFORE, in the light of the foregoing, judgment is hereby rendered as

follows:
 In Criminal Case No. 215-V-17, finding accused CHRISTIAN
CADAJAS y CABIAS NOT GUILTY and is hereby acquitted. The prosecution failed
to prove beyond cavil of doubt all the elements of the offense as charged.

In Criminal Case No. 216-V-17, finding accused CHRISTIAN

CADAJAS y CABIAS GUILTY of violation of Sections 4(a) and 3(b) and (c)(5) of RA
9775 and he is hereby sentenced to suffer the penalty of reclusion temporal and to
pay a FINE of One Million Pesos.

SO ORDERED.21

On appeal, the CA affirmed the RTC's judgment. The CA held that the minority of AAA was both
established and was even admitted by the petitioner.22 Furthermore, petitioner's conversation with
AAA showed that he induced her to send him photos of her private parts.23 These facts clearly
evince that petitioner committed child pornography as defined and penalized under Section 4(c)(2) of
R.A. No. 10175, in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775. The CA did not give
credence to the sweetheart defense that was raised by petitioner as the violation committed by
petitioner was a malum prohibitum.24 As regards the penalty, the CA modified the same and
sentenced petitioner to suffer the penalty of imprisonment for 14 years, eight months and one day,
as minimum, to 18 years and three months, as maximum. The fine imposed was retained as it was
within the range prescribed by law.25 Thus, the CA disposed as follows:

WHEREFORE, in view of the foregoing, the appeal is hereby DISMISSED for

lack of merit. The Joint Decision dated August 7, 2017 issued by the Regional Trial
Court of Valenzuela City, Branch270 in Criminal Case No. 216-V-17 finding
Christian Cadajas y Cabias guilty beyond reasonable doubt of violation of Section
4(a) and 3(b) and (c)(5) of Republic Act 9775 is AFFIRMED with MODIFICATION in
that appellant is sentenced to an indeterminate penalty of 14 years, 8 months and 1
day, as minimum, to 18 years and 3 months, as maximum.

SO ORDERED.26

Petitioner filed a Motion for Reconsideration, which the CA denied in its Resolution27 dated May 9,
2019.

Undeterred, petitioner filed the instant Petition28 before this Court.

Issues

I.

Whether the CA gravely erred in not finding that the evidence presented by the prosecution are
inadmissible for violating petitioner's right to privacy.

II.

Whether the CA gravely erred in convicting petitioner of violation of Section 4(c)(2) of R.A. No.
10175 in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775 despite the fact that the alleged
act complained of does not constitute an offense penalized under the said statute.

III.
Whether the CA gravely erred in the interpretation of the unlawful and punishable acts under Section
4(c)(2) of R.A. No. 10175 in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775.

IV.

Whether the CA gravely erred in convicting petitioner of violation of Section 4(c)(2) of R.A. No.
10175 in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775 despite the failure of the
prosecution to prove his guilt beyond reasonable doubt.

Our Ruling

Upon a careful review of the records of this case, the Court finds the petition to be without merit.

On petitioner's right to privacy

One of the arguments raised by petitioner before this Court concerns the admissibility of the
evidence presented by the prosecution, which was taken from his Facebook messenger account. He
claims that the photos presented in evidence during the trial of the case were taken from his
Facebook messenger account. According to him, this amounted to a violation of his right to privacy,
and therefore, any evidence obtained in violation thereof amounts to a fruit of the poisonous tree.

We disagree.

The right to privacy is defined as "the right to be free from unwarranted exploitation of one's person
or from intrusion into one's private activities in such a way as to cause humiliation to a person's
ordinary sensibilities." It is the right of an individual "to be free from unwarranted publicity, or to live
without unwarranted interference by the public in matters in which the public is not necessarily
concerned." Simply put, the right to privacy is "the right to be let alone."29 In his Separate
Concurring Opinion, Associate Justice Marvic Mario Victor F. Leonen expounded on the concept of
privacy, as it has developed throughout the digital age, thus:

Chief Justice Puno sparked judicial interest in the right to privacy. In his speech
that I cited in my separate opinion in Versoza v. People,30 he discussed the three
strands of privacy in American Jurisprudence, namely, locational or situational
privacy, informational privacy, and decisional privacy.

Locational privacy, also known as situational privacy, pertains to privacy that is

felt in a physical space. It may be violated through an act of trespass or through an
unlawful search. Meanwhile, informational privacy refers to one's right to control "the
processing—i.e., acquisition, disclosure and use—of personal information."

Decisional privacy, regarded as the most controversial among the three, refers
to one's right "to make certain kinds of fundamental choices with respect to their
personal and reproductive autonomy."31

This speech has been influential in several of our jurisprudence.32 To this day, we are still refining
our concept of privacy, particularly the right to informational privacy.33

As early as Morfe v. Mutuc,34 we have recognized the increasing importance of the protection of the
right to privacy in the digital age. Such right is of particular importance given the nature of the
internet and our inescapable dependence on it despite the possible disruption that it can bring. In my
separate opinion in Disini v. Secretary of Justice,35 I explained:

The internet or cyberspace is a complex phenomenon. It has pervasive effects

and are, by now, ubiquitous in many communities. Its possibilities for reordering
human relationships are limited only by the state of its constantly evolving
technologies and the designs of various user interfaces. The internet contains
exciting potentials as well as pernicious dangers.

The essential framework for governance of the parts of cyberspace that have
reasonable connections with our territory and our people should find definite
references in our Constitution. However, effective governance of cyberspace
requires cooperation and harmonization with other approaches in other jurisdictions.
Certainly, its scope and continuous evolution require that we calibrate our
constitutional doctrines carefully: in concrete steps and with full and deeper
understanding of incidents that involve various parts of this phenomenon. The
internet is neither just one relationship nor is it a single technology. It is an
interrelationship of many technologies and cultures.

....

While the Internet has engendered innovation and growth, it has also engendered new types of
disruption. A noted expert employs an "evolutionary metaphor" as he asserts:

[Generative technologies] encourage mutations, branchings away from the

status quo — some that are curious dead ends, others that spread like wildfire. They
invite disruption —along with the good things and bad things that can come with
such disruption.

Addressing the implications of disruption, he adds:

Disruption benefits some while others lose, and the power of the generative
Internet, available to anyone with a modicum of knowledge and a broadband
connection, can be turned to network-destroying ends ... [T]he Internet's very
generativity — combined with that of the PCs attached —sows the seeds for a
"digital Pearl Harbor."

The Internet is an infrastructure that allows for a "network of networks." It is also

a means for several purposes. As with all other "means enhancing capabilities of
human interaction," it can be used to facilitate benefits as well as nefarious ends.
The Internet can be a means for criminal activity.

Parallel to the unprecedented escalation of the use of the Internet and its
various technologies is also an escalation in what has been termed as
cybercrimes.36

Privacy scholars explain that the right to informational privacy, to a certain extent, requires "limitation
on inspection, observation, and knowledge by others."37 Thus, it has the following aspects: (1) to
keep inalienable information to themselves; (2) to prevent first disclosure; and (3) to prevent further
dissemination in case the information has already been disclosed. More recently, the European
Union has paved the way for the fourth aspect —the right to be forgotten, or the right to prevent the
storage of data.

As regards the first component of the right to informational privacy, a person has the right not to be
exposed on the internet in matters involving one's private life, such as acts having no relation to
public interest or concern. Closely related to the first component is the right to prevent first
disclosure, allowing individuals to regulate the extent, time, and manner of disclosure, if at all, of
their information. In case the data have been illegally disclosed, a person does not lose protection
since they have the right to prevent their further dissemination. In some cases, one has the right to
prevent the storage of their data, which gives one the right to be forgotten. Privacy scholars describe
this right as "forced omission," or the process of making the information difficult to find on the
internet.38

Under the 1987 Constitution, the right to privacy is expressly recognized under Article III, Sec. 3
thereof, which reads:

SECTION 3. (1) The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

While the above provision highlights the importance of the right to privacy and its consequent effect
on the rules on admissibility of evidence, one must not lose sight of the fact that the Bill of Rights
was intended to protect private individuals against government intrusions. Hence, its provisions are
not applicable between and amongst private individuals. As explained in People v. Marti:39

That the Bill of Rights embodied in the Constitution is not meant to be invoked
against acts of private individuals finds support in the deliberations of the
Constitutional Commission. True, the liberties guaranteed by the fundamental law of
the land must always be subject to protection. But protection against whom?
Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the

essence of constitutional democracy. Protection against whom? Protection against
the state. The Bill of Rights governs the relationship between the individual and the
state. Its concern is not the relation between individuals, between a private individual
and other individuals. What the Bill of Rights does is to declare some forbidden
zones in the private sphere inaccessible to any power holder. (Sponsorship Speech
of Commissioner Bernas, Record of the Constitutional Commission, Vol. 1, p. 674;
July 17, 1986; Emphasis supplied)40

While the case of Zulueta v. Court of Appeals41 (Zulueta) may appear to carve out an exception to
the abovementioned rule by recognizing the rule on inadmissibility of evidence between spouses
when one obtains evidence in violation of his/her spouse's right to privacy, such a pronouncement is
a mere obiter dictum that cannot be considered as a binding precedent. This is because the petition
brought to the Court in Zulueta simply asked for the return of the documents seized by the wife and
thus, pertained to the ownership of the documents therein. Moreover, documents were declared
inadmissible because of the injunction order issued by the trial court and not on account of Art. III,
Sec. 3 of the Constitution. At any rate, violation of the right to privacy between individuals is properly
governed by the provisions of the Civil Code, the Data Privacy Act (DPA),42 and other pertinent
laws, while its admissibility shall be governed by the rules on relevance, materiality, authentication of
documents, and the exclusionary rules under the Rules on Evidence.

In this case, the photographs and conversations in the Facebook Messenger account that were
obtained and used as evidence against petitioner, which he considers as fruit of the poisonous tree,
were not obtained through the efforts of the police officers or any agent of the State. Rather, these
were obtained by a private individual. Indeed, the rule governing the admissibility of an evidence
under Article III of the Constitution must affect only those pieces of evidence obtained by the State
through its agents. It is these individuals who can flex government muscles and use government
resources for a possible abuse. However, where private individuals are involved, for which their
relationship is governed by the New Civil Code, the admissibility of an evidence cannot be
determined by the provisions of the Bill of Rights.

Here, the pieces of evidence presented by the prosecution were properly authenticated when AAA
identified them in open court. As further pointed out by Associate Justice Rodil V. Zalameda during
the deliberations of this case, the DPA allows the processing of data and sensitive personal
information where it relates to the determination of criminal liability of a data subject,43 such as a
violation of R.A. No. 10175 in relation to R.A. No. 9775 and when necessary for the protection of
lawful rights and interests of persons in court proceedings,44 as in this case where the
communications and photos sought to be excluded were submitted in evidence to establish AAA's
legal claims before the prosecutor's office and the courts.

Be that as it may, the act of AAA cannot be said to have violated petitioner's right to privacy. The test
in ascertaining whether there is a violation of the right to privacy has been explained in the case
of Spouses Hing v. Choachuy, Sr.45 as follows:

In ascertaining whether there is a violation of the right to privacy, courts use the
"reasonable expectation of privacy" test. This test determines whether a person has
a reasonable expectation of privacy and whether the expectation has been violated.
In Ople v. Torres, we enunciated that "the reasonableness of a person's expectation
of privacy depends on a two-part test: (1) whether, by his conduct, the individual has
exhibited an expectation of privacy; and (2) this expectation is one that society
recognizes as reasonable." Customs, community norms, and practices may,
therefore, limit or extend an individual's "reasonable expectation of privacy." Hence,
the reasonableness of a person's expectation of privacy must be determined on a
case-to-case basis since it depends on the factual circumstances surrounding the
case.46

Here, petitioner's expectation of privacy emanates from the fact that his Facebook Messenger
account is password protected, such that no one can access the same except himself. Petitioner
never asserted that his Facebook Messenger account was hacked or the photos were taken from his
account through unauthorized means. Rather, the photos were obtained from his account because
AAA, to whom he gave his password, had access to it. Considering that he voluntarily gave his
password to AAA, he, in effect, has authorized AAA to access the same. He did not even take steps
to exclude AAA from gaining access to his account. Having been given authority to access his
Facebook Messenger account, petitioner's reasonable expectation of privacy, in so far as AAA is
concerned, had been limited. Thus, there is no violation of privacy to speak of.

While the messages and photos were taken from the Facebook Messenger of petitioner because
AAA was forced by BBB to do so, such does not deviate from the fact that petitioner allowed another
person to access his account. When he gave his Facebook Messenger password to AAA, he made
its contents available to AAA, and the latter would then have the latitude to show to other persons
what she could access, whether she be forced to do so or not. The availability of accessing these
photos limited the scope of his right to privacy, especially that these became essential in pursuing
AAA's claims to protect her rights.

In any case, it bears pointing out that petitioner failed to raise his objection to the admissibility of the
photos during the proceedings in the RTC. Basic is the rule that in order to exclude evidence, the
objection to admissibility of evidence must be made at the proper time, and the grounds therefore be
specified. Objection to evidence must be made at the time it is formally offered. In case of
documentary evidence, offer is made after all the witnesses of the party making the offer have
testified, specifying the purpose for which the evidence is being offered. It is only at this time, and
not at any other, that objection to the documentary evidence may be made. When a party failed to
interpose a timely objection to evidence at the time they were offered in evidence, such objection
shall be considered as waived. This is true even if by its nature the evidence is inadmissible and
would have surely been rejected if it had been challenged at the proper time.47

As a complimentary principle, it is well-settled that no question will be entertained on appeal unless it

has been raised in the proceedings below. Points of law, theories, issues and arguments not brought
to the attention of the lower court, administrative agency or quasi-judicial body, need not be
considered by a reviewing court, as they cannot be raised for the first time at that late stage. Basic
considerations of fairness and due process impel this rule. Any issue raised for the first time on
appeal is barred by estoppel.48

By failing to timely raise his objection to the admissibility of the photos, petitioner is deemed to have
already waived the same. Thus, the photos taken from his Facebook Messenger account are
admissible in evidence.

On petitioner's liability

Petitioner was charged for violating Section 4(c)(2) of R.A. No. 1017549 in relation to Sections 4(a)
and 3(b) and (c)(5) of R.A. No. 9775,50 which reads as follows:

xxxx

Section 4. Cybercrime Offenses. — The following acts constitute the offense of

cybercrime punishable under this Act: x x x

(c) Content-related Offenses: x x x

(2) Child Pornography. — The unlawful or prohibited acts defined and

punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of 2009,
committed through a computer system: Provided, That the penalty to be imposed
shall be (1) one degree higher than that provided for in Republic Act No. 9775.

xxxx

Section 4. Unlawful or Prohibited Acts. - It shall be unlawful for any person:

(a) To hire, employ, use, persuade, induce or coerce a child to perform in the
creation or production of any form of child pornography

Section 3. Definition of Terms. - x x x

(b) "Child pornography" refers to any representation, whether visual, audio, or written
combination thereof, by electronic, mechanical, digital, optical, magnetic or any other means,
of child engaged or involved in real or simulated explicit sexual activities.

(c) "Explicit Sexual Activity" includes actual or simulated - x x x

(5) lascivious exhibition of the genitals, buttocks, breasts, pubic

area and/or anus.51

xxxx

From the foregoing, one can be convicted for committing child pornography upon proof of the
following: (1) victim is a child; (2) victim was induced or coerced to perform in the creation or
production of any form of child pornography; and (3) child pornography was performed through
visual, audio or written combination thereof by electronic, mechanical, digital, optical, magnetic or
any other means. This Court finds that the prosecution was able to prove these facts by proof
beyond reasonable doubt.

Section 3(a) of R.A. No. 9775 defines a child to be as follows:

(a) "Child" refers to a person below eighteen (18) years of age or over, but is
unable to fully take care of himself/herself from abuse, neglect, cruelty, exploitation
or discrimination because of a physical or mental disability or condition.

For the purpose of this Act, a child shall also refer to:

(1) a person regardless of age who is presented, depicted or portrayed as a

child as defined herein; and

(2) computer-generated, digitally or manually crafted images or graphics of a

person who is represented or who is made to appear to be a child as defined herein.

The members of the Technical Working Group for the Pre-Bicameral Conference Committee on the
Disagreeing Provisions of House Bill No. 6440 and Senate Bill No. 2317 (Anti-Child Pornography Act
of 2009) explained the intent in defining "child" under the statute as follows:

MS. GIRONELLA. Sir, in addition to that, I would just like to quote what Senator Defensor-Santiago
said on the floor because she fully agreed with the expanded definition as seen in the House
version, numbers (1) and (2). She said that she fully agrees to the extended definition of the term
"child" so that adult website that display explicit images of legal-aged models in pigtails with the
balloon or lollipop while surrounded by stuff animals could be prosecuted under the measure. While
the law seeks to protect children, the extended definition punishes the depravity of the viewer. So,
what we are after here talaga is the perpetrator. We don't care what age the child or the person is.
What we're trying to penalize, what we're trying to prohibit is the pedophile from gravitating towards
that kind of material.

Yes, Mr. Del Prado.

MR. DEL PRADO. We support that view. That's why it is specific here a person regardless of age. It
is the representation that is deemed reprehensible and I think the public policy expression here is
really to prohibit promoting the child as a sexual object and, therefore, it covers both the adult and
children being subject of sexually explicit activity.52

Here, it was uncontroverted that AAA was only 14 years old at the time of the incident. This was
established from the copy of her Certificate of Live Birth53 that was presented in evidence.
Moreover, petitioner was aware of this fact. It was undisputed that BBB confronted petitioner and
told him to stay away because her daughter was still a minor.

It is likewise clear from the records of this case that petitioner induced AAA to send him photos of
her private parts through Facebook Messenger. This is evident from their conversation, which the
CA quoted as follows:

AAA (K): Hahaha gusto ko siya pagtripan e di mo kasi ako pinagtritripan (sic) e.

Cadajas (C): Gsto (sic) muh (sic) pagtrepan (sic) kita ngayon

K: Oo

Ready ako sa ganyan

C: Sge (sic) hubad

K: Nakahubad na hahaha

C: Tangalin (sic) uh (sic) panti (sic) muh (sic) haha

K: Baliw hubad na lahat

C: Picturan uh (sic) pasa muh (sic) xkin (sic) bi

K: Lah gagi bi wag

Ayoko

C: Uh ayaw muh (sic) pala sa mga treep (sic) KO (sic) ei (sic)

xxx

C: Tayo lang naman makakakita ie (sic)

K: Hahahaha baka pagkalat mo

Dede lang

C: Ako din bi PSA (sic) mna (sic)

HahAt (sic) bi

K: Magpasa ka din hahaha

 Lah (sic) bat lahat

xxx

C: Hahaha hnde (sic) aman (sic) bi

Lahat bi gusto ko

Uo nga nkKaumay (sic) bi nslibugan (sic) ako

K: Gagi ayoko nga yung pepe

xxx

C: Buka muh (sic) nga kunti (sic) bi kunti (sic) lang tutok muh (sic)

Hah (sic)

K: Ayoko na.

Haha Christian haha OK nay an

C: She (sic) nah (sic) gsto (sic) KO (sic) mkita (sic) bi54

xxx

It is evident from the above-quoted conversation that petitioner induced AAA to engage in the
lascivious exhibition of her breasts and vagina through Facebook Messenger. Notably, it was
petitioner who was the one giving specific orders to AAA. He even asked AAA to send to him nude
photos of her and for the latter to further spread her legs near the camera, so that petitioner can see
her vagina. In her testimony, AAA further explained that it was because of the continuous prodding
of petitioner, that forced her to send her nude photos to the latter, thus:

Q: What about those pictures? Can you tell us about those pictures that you are
referring to?

A: Because he instructed me to send a picture to him of my breast and vagina,

so I send him pictures, Sir.

Q: Okay, you send pictures of your breast and you [sic] vagina. What did you
use in order to send him those pictures?

A: Cell phone, Sir.

Q: How did the accused convince you to do that?

A: He said magsend daw po ako ng picture.

Q: Was there a promise?

 A: None, Sir.

Q: Just the accused merely telling you or commanding you to produce or take
pictures of your private parts?

A: Yes, Sir.

Q: Why did you allow yourself to do that?

A: Napilitan lang po akong magsend ng ganun.

xx x xx x xxx

Q: Paanong napilitan kung hindi ka pinuwersa or hindi ka tinakot? Paano mo

nasabing napilitan lang? Alam mong mali iyon at hindi naman pinapayagan na
ganun, bakit mo sinend parin kung hindi ka naman niya pinilit o tinakot? Ano talaga
ang nagtulak sayong magsend ng ganun? Ano ba ang pumasok sa isip mo,
pumasok sa katawan mo nung ginawa mo iyon? Just be candid.

A: Hindi ko po alam.

Q: Hindi mo alam kasi?

A: Naaano lang po ako sa sinabi niya, sa message po niya sakin na puro please
magsend kana sige na puro ganun po.

Q: Sa pagkukumbinsi niya? Panay ang please?

A: Hindi po niya ako tinigilan nun e.

Q: Hindi siya tumitigil?

A: Hindi po.55

Further, while the conversation in the Facebook Messenger appears to show that AAA was already
undressed while she was conversing with petitioner, it should be pointed out that they were merely
exchanging messages on a mobile application. It is probable that AAA was merely bluffing to
maintain petitioner's interest. In her testimony, AAA explained that she was not even serious when
she sent some of her messages, thus:

Q: In fact, there is in this statement that you even type these words kuya
nalilibugan ako hahaha is it true that? Did you type this?

A: Yes Sir, I typed that but that is not true, it is just a trip lang sa kanya.

Q: In that trip, in line with it is a four (4) smiley crying while laughing, smiley with
tears meaning you are laughing?

Court:
 You are just joking ganun ba?

Witness:

Yes, your Honor.56

Likewise, when AAA said "Nakahubad na," the same cannot be said to be voluntary on her part as it
was preceded by an order from petitioner to take her clothes off. Thus, it was clear from the
wordings of the messages that petitioner induced AAA to send him photos of her private parts.
Without petitioner's inducement, she would not have been compelled to actually undress and send
petitioner, photos of her private parts.

Thus, contrary to petitioner's contention, his act of inducing AAA to send photos of her breasts and
vagina constitutes child pornography and explicit sexual activity under Sections 4(a), 3(b) and (c)(5)
of R.A. No. 9775. While there was no showing that petitioner intended to sell AAA's photos to other
people, this did not exonerate him from liability under the said provision. During the Pre-Bicameral
Conference Committee meeting that led to the enactment of R.A. No. 9775 the members of the
Technical Working Group made a distinction between the act of merely possessing child
pornography materials from the act of making a profit out of it, to wit:

MR. DESCALLAR. Madam Chair, I think x x x kasi doon sa House version amy
(sic) distinction between producer, distributor x x x

(MS. THELMA M. RETUBA TOOK OVER)

MR. DESCALLAR. (Continuing) x x x distributor and user, client. So, pag ni-level
natin siya on the same level, the producer, distributor can say "I'm just a client. I just
possess with no intention to sell." So, I think, we should differentiate mere
possession and with the other x x x with the intention to distribute or benefit, profit
from pornography.

COMMITTEE SECRETARY MANALIGOD. Madam Chair, may I just explain

because this was a specific amendment of Senator Santiago. In the deliberations on
the floor she stated that on Section 4(d), Senator Santiago noted that the
possession of child pornography was not qualified by the adverb "knowingly". She
explained that knowledge of child pornography does not attach to possession but
only to access. Therefore, she believed that mere possession of child pornography
is punishable and not subject to the defense that the possessor was not aware of
the materials in his or her possession.

MR. DESCALLAR. Papaano 'yun? Saan?

MR. GIRONELLA. Earlier Madam Chair, I think there was a proposal to include
the word "knowingly" before the word "possess". So, it would be "to knowingly
possess" or "knowingly access". Chair Madrigal supports the position of Senator
Defensor-Santiago that knowing possession of a pornographic material cannot be
made a defense by the perpetrator. So, for us, the fact that he or she possesses a
child pornography material is subject to the penalties of this law.
 And on the second point, on the point raised by Mr. Descallar, I think we also
should separate a provision from the possessor's point of view as opposed to that
producer's point of view. So, we cannot include reproduce.

MR. DESCALLAR. With or without the intent to publish.

MS. GIRONELLA. For the possessor.

MR. DESCALLAR. Yes. Oo. Kasi in the House version, letter (f)...

MR. MARALIT. Ihiwalay na lang natin.

COMMITTEE SECRETARY GUEVARRA. Letter (f).

MR. DESCALAR. x x x In the house version, "to knowingly possess, download,

purchase, blah blah x x x "so, it's mere possession, separate x x x distinct from
producing, distributing, selling or profiting from child pornography.

MS. GIRONELLA. So, Sir, I think, what we can do...

MR. MARALIT. Yeah, mere possession.

MS. GIRONELLA. x x x it would be x x x so, let's adopt x x x the proposal is to

adopt section (d) of the Senate version with the following amendments: "To possess
or knowingly access, download, purchase x x x or purchase with reasonable
knowledge, any form of child pornography with or without the intent to publish, sell,
distribute and broadcast;"

MR. DESCALLAR. I think we delete "or without". So, it will be "with the intent to
publish" and you provide another provision for possession as, like for example in
letter (f) of the House version which is mere possession. Letter (d) of the House is
for possession, downloading, or distribution." So, separate x x x ano siya, separate
siya, 'yung intent to publish or to distribute.

MS. GIRONELLA. Sir, can you please word the provision you're proposing.

COMMITTEE SECRETARY GUEVARRA. Okay. May we recognize Atty. Del

Prado first.

MR. DEL PRADO. Na-discuss din po naming ito doon sa x x x first, we support x
x x including the word "knowingly" before "possess". Iyong discussions po ditto,
halimbawa po may nagpadala sa inyo ng e-mail with an attachment of child
pornography na kung hindi natsi-check ng email, it's been there for several months,
hindi pa rin po 'yun dapat "knowing possession". So, pero kapag binuksan mo 'yan
na x x x na-access mon a, alam mo na and then you keep it, so 'yun po 'yung
sinasabi na "knowing possession".

And then doon naman po sa point of "with intent to sell, distribute," ang concern
po ng law enforcement agents you are x x x we are adding another x x x the burden
again of proving this intent kasi 'yung sinasabi nila we can x x x some jurisdictions,
some countries do provide for the x x x parang sa drugs po iyong how many
kilobytes. Pero sinasabi rin po naming, mahirap din pong mag term kasi po pagka
ano 'yung personal and ano 'yung with intent to distribute. So, we really x x x it's
either you possess and we punish that or you distribute and we punish that. Kasi
kung hindi naman natin ma-prove 'yung kanyang distribution, then mayroon pa
tayong fallback doon sa possession. So, ganoon na lang x x x 'yun po ang
irerekomenda natin para hindi po additional burden 'yung to establish the intent.

COMMITTEE SECRETARY GUEVARRA. I think the reason why separate the

two (2) to distinguish possession with the intent to sell and mere possession for
personal use, mas grave ang penalty, 'no. Mas mabigat ang penalty for x x x pag
may intent pa to sell. Pero kung hindi natin maprove 'yung intent to sell, pasok pa rin
siya sa possession.

Now, we can just x x x alisin na lang natin 'yung "personal use", 'no, pero we
retain the "intent to sell, 'no. Kasi if you prove "intent to sell," mas mabigat ang
penalty.

MR. MARALIT. Tama.

COMMITTEE SECRETARY GUEVARRA. If you fail to prove "intent to sell," mas

lighter kasi hindi mo naman dini-distribute, eh.

MR. DEL PRADO. I agree po doon sa graduation ng penalties. Ang sinasabi

lang po natin if we include that phrase "with intent to sell" kailangan po nating i-
prove 'yun. Whereas, kung nag-sell talaga siya, it's an objective culpable act that we
can punish.

MS. GIRONELLA. Madam Chair, point of clarification. What are we talking

about? Are we talking about section "b" of the Senate version, section (b) of the
House version, section (f) of the House version? Parang naghalu-halo na, eh, kasi
earlier we're talking about possession, 'di ba, tapos we went to production and then
distribution.

COMMITTEE SECRETARY GUEVARRA. Oo.

MS. GIRONELLA. So, baka better nga talaga paghiwalayin natin 'yung "act of
possession" which is punishable and then "act of production, distribution with the
intent to sell" as a separate ano rin, 'di ba?

COMMITTEE SECRETARY GUEVARRA. But we already provide "to sell, offer,

advertise" and "to produce, direct," 'di ba? We already provide for the unlawful acts,
eh. It's different, eh. You produce, direct or to sell, it's different. Here, you possess,
meaning, you are not the original owner.

MS. GIRONELLA. So, 'yung section (b) ng House version we're no longer
considering it kasi I think that's the only provision with the phrase "with the intent of
selling or distributing."

COMMITTEE SECRETARY GUEVARRA. That's why we are saying na x x x

because you do not have provision on "knowingly possess" for personal use. Here in
our version, we have. So, diniferentiate naming 'yung "with intent to sell" and
"without intent to sell." So, 'yun siguro doon tayo nagkaiba.

In the Senate version, "possession, 'no, whatever x x x with or without intent to

publish it" magkasama na lang together. In the House version, magkaiba because
the intention is to penalize, to provide for stiffer penalties for those who possess with
the intent to distribute it as against those who possess without intent x x x and to
reproduce this but for his personal use.

MS. GIRONELLA. In the Senate version po kasi, Madam Chair, for clarification,
we intend to punish mere possession. So, we don't need to prove that the person
who knowingly possess pornographic material x x x a child pornographic material.
And then secondly, I think we did away with the intention to sell because that would
be a very hard fact to prove that the person had intent to sell it, unless nagkaroon ng
outright act of selling it.

COMMITTEE SECRETARY GUEVARRA. No, not really. Because if you, by

circumstantial evidence, if you reproduce so many copies and you reproduce or
send or distribute to so many e-mails, 'no, e mail addresses, the intent is there
already. It's already the act of distributing.

MR. MARALIT. What our colleague here is saying that in case there are many
copies x x x

(MS. AGNES LUCIA V. TIBAY TOOK OVER)

MR. MARALIT (Continuing) x x x are many copies made, then it could give rise
to a presumption, maybe a prima facie presumption that he has intent to sell,
distribute. Yeah, we will have to put the presumption there because iyon nga, iyong
intent medyo mahirap i-prove, although it could be x x x although the possession of
so many could give rise to a prima facie presumption of intent to sell. In which case,
if not controverted, then the intent to sell will be conclusively presumed, parang
ganoon, siguro if you were to put that there.

COMMITTEE SECRETARY GUEVARRA. Kasi para sa akin, pagka may intent

ka to distribute, to sell it, economic na ang reason mo, tapos at the expense of other
people, mas dapat mas malaki ang penalty niya.

MR. MARALIT. I agree.

COMMITTEE SECRETARY GUEVARRA. Bahala na kasi, anyway naman kung

hindi naman ma-prove iyong intent, punishable pa rin, hindi ba? Punishable pa rin
siya.

MR. MARALIT. Yes, yes, mere possession. So the suggestion is siguro to

differentiate the two. I think a clear differentiation of the two as well as iyong sa
access, huwag natin isama ito, in my view, kasi mag-iiba ang x x x

COMMITTEE SECRETARY GUEVARRA. Kasi parang unfair doon sa mere

possession, wala siyang intent to sell. Kasi unfair iyong penalty kung pareho. If we
lump it together in one provision, it will be unfair.
 MR. MARALIT. I agree.

COMMITTEE SECRETARY GUEVARRA. Because the other one has earned a

lot or tiyak na mayroon siyang network para pagbigyan at kikita siya.

MR. MARALIT. Yeah like Hayden Kho

MR. DESCALLAR. I suggest that we adopt the House version na letter (d) and
letter (f) with amendments, deleting the term "for personal use" in letter (f) so parang
we distinguish distribution and with the intent to sell and for mere possession,
deleting "for personal use", so mere possession is punishable.

COMMITTEE SECRETARY GUEVARRA. And in the case of letter (d) of the

House version, knowledge of possession is not a requirement, basta ma-prove mo
iyong intent to possess, download, with the intent. So there are two elements here -
to possess or download or purchase or reproduce and then with intent. Kasi pagka
wala siyang x x x so knowledge is immaterial ditto. Hindi kailangan ng knowledge
kasi kapag mapu-prove mo iyong intent. Ngayon kung hindi mo ma-prove iyong
intent, pasok naman siya sa "to knowingly possess".

MR. MARALIT. Iyong suggestion ng colleague naming is, sabi niya, no proof of
intent is necessary if we will provide here that there would rise a presumption of
intent to sell, distribute, in case there are a number of copies, puwede natin i-craft na
lang siguro maya-maya. Ngayon na. we will x x x

MR. DESCALLAR. I move to adopt the House version, letter (d) and letter (f)
with some amendments removing or deleting the term "for personal use" in letter (f).

COMMITTEE SECRETARY GUEVARRA. Of course, with modifications siguro.

MR. MARALIT. Yeah, we will craft the provisions. Can we suspend the
session.57

It can be gleaned from the lengthy discussion of the members of the Technical Working Group that
the authors of this statute intended to penalize even the mere possession, for personal use or
enjoyment, of child pornography. The law, as enacted, considers possession with intent to sell,
distribute, or publish58 to be distinct and separate from mere possession.59 If proven, a stiffer
penalty would be imposed on those who were found to have intended to distribute or profit from child
pornography. Thus, the foregoing shows the intention of the legislature to include as much violation
for acts committed that would further spread the proliferation of pornography in the country, including
possession thereof. Necessarily, as those who merely possess child pornographic materials are also
punished by law, then R.A. No. 9775 could not be said to have limited its application only to those
who are engaged in the business of child pornography.

It also bears emphasis that petitioner obtained the child pornographic materials by inducing AAA to
send him photos of the latter's private parts. He did not come into possession of these photos
because it was sent by another person. Rather, he came into possession of AAA's photos because
of inducing AAA to exhibit her private parts to him. As the inducement to send photos of AAA's
private parts was committed with the use of a mobile phone through Facebook Messenger,
petitioner's act also falls within the purview of Section 4(c)(2) of R.A. No. 10175, which penalizes
child pornography through the use of a computer system. A mobile phone is considered as a
computer system under Section 3(g)60 of R.A. No. 10175.

On another matter, petitioner's heavy reliance on the sweetheart theory is misplaced. Invoking this
defense would depend on the circumstances of each case. Jurisprudence explained that the said
theory applies in felonies that were committed against or without the consent of the victim. This
theory operates on the premise that the violation committed was consensual. Hence, the party
invoking this theory bears the burden of proving that said party and the victim were lovers and that
the latter consented to the commission of the act.61

In the recent case of Bangayan v. People,62 the sweetheart theory was given serious consideration
because the accused and the alleged victim were able to show that the alleged rape incident that
happened between them was consensual, and a product of love. As noted by the court in that case,
the accused and the alleged victim had two children and had lived together even after the filing of
the rape charges.

As compared with the instant case, there was insufficiency of evidence to prove the application of
the sweetheart theory. Lovers, when they are passionate with their feelings, engage in physical
contact, as manifestations of their love towards one another. As they express their feelings towards
one another, they express themselves and not just lust over the photos of private parts of their
partners. While there may be instances of expressions of love in a virtual space, the same would
usually be predicated by endearing words and not just advances of lust, as in this case.

Here, AAA was led to believe that she was in a relationship with petitioner. It was undisputed that it
was AAA who relentlessly pursued the petitioner. Still, it can be gleaned from the facts that
petitioner, who must be basking in her attention, took advantage of her innocence and vulnerability.
The fact that AAA had three previous boyfriends should not even be taken against her for it is the
rule under Section 54(a)(1), Rule 130 of the Revised Rules of Court that "the character of the
offended party may be proved if it tends to establish in any degree the probability or improbability of
the offense charged." It has been held in rape case, that this argument may be raised only to show
that there was consent in a rape case. This does not apply when the woman's consent is immaterial
such as in statutory rape or rape with violence or intimidation.63 It must be added that consent
would also be immaterial if the victim was persuaded, coerced or induced to do a particular act, as in
this case. In his Separate Concurring Opinion, Justice Leonen made reference to his Dissenting
Opinion in Bangayan v. People,64 ultimately concluding that the sweetheart defense should not be
allowed in cases involving child pornography, thus:

xxxx

[S]exual intercourse is a complex act which is not only physical or sensual.

Beyond that, it comes with the complexity of intimacy, relationship, and reproductive
consequences.

Sexual intimacy may be primarily done for procreation or solely for pleasure.
How sexuality and intimacy is expressed, what constitutes sex, and with whom to be
intimate with is a person's choice.

Therefore, consent to sex does not only cover the physical act. Sex does not
only involve the body, but it necessarily involves the mind as well. It embraces the
moral and psychological dispositions of the persons engaged in the act, along with
the socio-cultural expectation and baggage that comes with the act. For instance,
there are observed differences in sexual expectations and behaviors among
 different genders, and more so, among individuals. The wide range of sexual desire
and behavior are not only shaped by biology, but by culture and prevailing norms as
well. Full and genuine consent to sex, therefore, is "preceded by a number of
conditions which must exist in order for act of consent to be performed."

Part and parcel of a valid consent is the ability to have the intellectual resources
and capacity to make a choice that reflects [their] judgments and values. For
someone to give sexual consent, [they] must have reached a certain level of
maturity.

This observation becomes more apparent in determining the validity of sexual

consent given by adults compared to children. Sexual consent is not a switch, but a
spectrum. As a child grows into adolescence, and later to adulthood, the measure of
sexual consent shifts from capacity to voluntariness. Under the law, sexual consent
from a child is immaterial, because [they are] deemed incapable of giving an
intelligent consent. However, this presumption is relaxed as the child matures. In our
jurisdiction, the gradual scale begins when the child reaches the age of 12 years old.
From this age, the law may admit voluntariness on the part of the child.

Nevertheless, voluntariness or informed sexual consent of a child must be

determined cautiously. Cases involving younger victims must be resolved through
more stringent criteria. Several factors, such as the age of the child, [their]
psychological state, intellectual capability, relationship with the accused, their age
difference, and other signs of coercion or manipulation must be taken into account in
order to protect the child.

xxxx

It is for the same reason that we cannot allow the sweetheart defense in child
pornography. The sweetheart defense is a common, distasteful, and much abused
in acts of lasciviousness and rape, aiming to establish that fact that the sexual act
was consensual. Under the pretense of a romantic relationship, it is not
unimaginable that a child will be easily induced or coerced to engage in explicit
sexual acts. Engaging in such a relationship does not remove the special protection
of a child. This is especially true in the digital age and space, where a child's
interaction with others easily evades supervision. Had AAA not been careless in
logging out from her mother's device, the latter would not have found out about their
relationship.65

It should be pointed out that AAA was only 14 years old at the time of the incident while petitioner
was 24 years old. Such huge age disparity placed petitioner in a stronger position over AAA, which
enabled him to wield his will on the latter.66 Judicial notice must also be taken of the fact that
minors, especially those who are between the ages of 12 and 18 years, are curious about their
sexuality. They are that stage in their lives when they are dealing with their raging hormones.
Nonetheless, this should not be taken to mean that they are now capable of giving rational consent
to engage in any sexual activity. In a society where birth control and sex education are taboo
subjects, these sexually curious teenagers are left to their own devices. Unfortunately, the only
source of information available to them are those from the internet or from their friends, who are also
not knowledgeable on the subject. For this reason, minors have been acknowledged to be
vulnerable to the cajolery and deception of adults, such as in this case.67
Unless and until these minors are given proper guidance and/or taught about sex and its
consequences, and until it be shown that their actions arise from their feelings of love towards their
partner, they cannot be considered to be truly capable of giving an educated and rational consent to
engage in any form of sexual activity. Thus, to minimize the risk of harm to minors from the
detrimental consequences of their attempts at adult sexual behavior, the State, as parens patriae, is
under the obligation to intervene and protect them from sexual predators like petitioner in this
case.68 This must be so if We are to be true to the constitutionally enshrined State policy to promote
the physical, moral, spiritual, intellectual and social well-being of the youth.69 This is also in
harmony with the declared policy of the State in R.A. No. 9775, which provides:

x x x The State recognizes the vital role of the youth in nation building and shall
promote and protect their physical, moral, spiritual, intellectual, emotional,
psychological and social well-being. Towards this end, the State shall:

(a) Guarantee the fundamental rights of every child from all forms of neglect,
cruelty and other conditions prejudicial to his/her development;

(b) Protect every child from all forms of exploitation and abuse including, but not
limited to:

(1) the use of a child in pornographic performances and materials; and

(2) the inducement or coercion of a child to engage or be involved in

pornography through whatever means; x x x70

Article 3(1) of the United Nations Convention on the Rights of a Child of which the Philippines is a
signatory is similarly emphatic that in all actions concerning children, whether undertaken by public
or private social welfare institutions, courts of law, administrative authorities or legislative bodies, it is
the best interests of the child that shall be the primary consideration.

Article 1 of Presidential Decree No. 603, otherwise known as, "The Child And Youth Welfare Code"
is likewise clear and unequivocal that every effort should be exerted by the State to promote the
welfare of children and enhance their opportunities for a useful and happy life.

This Court, however, concurs with petitioner's argument, and as pointed out by Associate Justice
Alfredo Benjamin S. Caguioa in his Dissenting Opinion,71 that a violation of Section 4(c)(2) of R.A.
No. 10175, in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775 falls under the class of
offenses known as mala in se, where criminal intent must be proven by proof beyond reasonable
doubt. The difference between the concept of mala in se and malum prohibitum were succinctly
explained as follows:

Criminal law has long divided crimes into acts wrong in themselves called
acts mala in se; and acts which would not be wrong but for the fact that positive law
forbids them, called acts mala prohibita. This distinction is important with reference
to the intent with which a wrongful act is done. The rule on the subject is that in
acts mala in se, the intent governs; but in acts mala prohibita, the only inquiry is, has
the law been violated? When an act is illegal, the intent of the offender is immaterial.
When the doing of an act is prohibited by law, it is considered injurious to public
welfare, and the doing of the prohibited act is the crime itself.
 A common misconception is that all mala in se crimes are found in the Revised
Penal Code (RPC), while all mala prohibita crimes are provided by special penal
laws. In reality, however, there may be mala in se crimes under special laws, such
as plunder under R.A. No. 7080, as amended.

Similarly, there may be mala prohibita crimes defined in the RPC, such as
technical malversation.

The better approach to distinguish between mala in se and mala

prohibita crimes is the determination of the inherent immorality or vileness of the
penalized act. If the punishable act or omission is immoral in itself, then it is a
crime mala in se; on the contrary, if it is not immoral in itself, but there is a statute
prohibiting its commission by reasons of public policy, then it is mala prohibita. In the
final analysis, whether or not a crime involves moral turpitude is ultimately a
question of fact and frequently depends on all the circumstances surrounding the
violation of the statute.72

In the ratification speech on Anti-Child Pornography Act of 2009, the principal author explained the
need for the promulgation of this law, to wit:

This Bill is much awaited by all the sectors involved in the protection and
promotion of the rights of children not only in the Philippines but also in the
international community, and, I believe, by the children themselves whose voices
resonate in the silence of their hearts and in the equanimity of their spirits. Knowing
how this bill could be of great consequence to the building of their self-worth and the
realization of their hope for a bright future, this representation takes pride in
sponsoring this noble piece of legislation in support of their call to stop the menace
of child pornography. Evidently, child pornography is such a disgusting crime which
operates with surprising efficiency, swiftness and dispatch as it rides along with
technologically advanced communication highways such as the internet.

What appalls us more is the fact that such meaningless violence against the
honor and dignity of our children knows no boundaries: political or geographical.
Child pornography transcends national and international boundaries even without
actual physical movement of children from one place of victimization to another.
Verily, while it could be done in the secrecy of her room and abode, its evil resounds
in every corner of society.73

Even during the pre-bicameral conference committee hearing, the Technical Working Group had a
lengthy discussion on the title of the statute to emphasize the depravity of the acts being penalized,
to wit:

So, let's start with the title of the bill. So, we just put in the remarks column that
the Senate version was adopted as the working draft. So, that's the first x x x that's
the first remarks, first remark. So, okay, let us go to the title of the bill. So, which of
the provision x x x which of the title would you think will aptly or will cover, will cover
the purpose, the intent of the bill? So, I suggest that we adopt the House version
because there's still no crime defining child pornography and if we are not just
prohibiting. When you say crime, it's really punishable. Unlike when you just prohibit,
a prohibition may only take x x x the penalty may not be penalty at all but just a
warning or form of fines. But when it says crime, it attaches criminal liability. It
attaches punishment, fines and even other liabilities.
 MS. GIRONELLA. Conferring with Atty. Maralit, 'no, most of our special laws
penalizing or defining a crime is usually called penalizing or punishing the specific
act. You only use the term "defining" when it refers to specific rights that you're
granting an individual. For example, Presidential Decree No. 133, which is x x x I'm
sorry, Presidential Decree 704 which is a decree punishing illegal fishing. So, that's
the usual term that they used. That's why we adopted the word "prohibiting child
pornography and imposing penalties, thereof."

COMMITTEE SECRETARY GUEVARRA. Although kasi sa legislative... this is a

legislative enactment unlike those mentioned by our counterpart that those
provisions x x x those are executive issuances, promulgations.

MR. MARALIT. Yes, but we have also examples of statutes titled this way. "An
Act Prohibiting the Demand of Deposits or Advanced Payments For the
Confinement or For Treatment of Patients in Hospitals and Medical Clinics in Certain
Cases." That is BP Bilang 702 which is a statute. Usually, the word "defining" is
used in defining rights like this statute, Republic Act No. 7438, "An Act Defining
Certain Rights of Person Arrested, Detained or Under Custodial Investigation." So in
our view, it's either prohibiting or punishing, or penalizing, to make a strong
message to the violators, would be violators of this law that Congress is serious with
these violations of law.

That is our positions.

COMMITTEE SECRETARY GUEVARRA. Okay. Although we also, we already

passed several legislations defining crimes, new crimes, 'yung mga bago pa na hlndi
pa talaga legislated, walang specific law na x x x (interrupted)

MR. MARALIT. Let's just have a compromise. Why don't we say, "prohibiting
and defining?" that would be fine with us, if it's okay with you, "defining and
prohibiting and imposing penalties thereof."

COMMITTEE SECRETARY GUEVARRA. We use imposing or prescribing? We

prescribe the penalties for the crime.

MR. MARALIT. "Prescribe." "Prescribe" is better.

COMMITTEE SECRETARY GUEVARRA. So, for record purposes, the title of

the reconciled bill shall be, "An Act Defining and Prohibiting the Crime" x x x
"Defining and Prohibiting Child Pornography, Prescribing Penalties Therefor and For
Other Purposes."

MR. MARALIT. Can we make "penalizing" rather than "prohibiting"?

COMMITTEE SECRETARY GUEVARRA. Okay, yeah. That's x x x I was about

to suggest because penalizing is more ano x x x

MR. MARALIT. Yes, more forceful.

COMMITTEE SECRETARY GUEVARRA. x x x more forceful than in prohibiting.

 MR. MARALIT. Yeah. Thank you.

COMMITTEE SECRETARY GUEVARRA. Okay, So, that the title of the

reconciled bill shall be "An Act Defining and Penalizing Child Pornography x x x

MR. MARALIT. The crime, the crime.

COMMITTEE SECRETARY GUEVARRA. x x x the Crime of Child Pornography,

Prescribing Penalties Therefor and For Other Purposes. I repeat, "An Act Defining
and Penalizing the Crime of Child Pornography, Prescribing Penalties therefor and
For Other Purposes."

MR. MARALIT. Okay.74

From the foregoing, it is decisively clear that the crime of child pornography as defined and
penalized under R.A. No. 9775 should be classified as a crime mala in se. As parens patriae, this act
of grooming minors for sexual abuse should not be tolerated. We should not be complicit in
reinforcing this belief upon the minors that sex with children is acceptable and thereby fuel a
pedophile's fantasies prior to committing sexual abuse, which clearly happened in the instant case.
Contrary to the appreciation of evidence of the other members of this Court, the circumstances of
this case showed the intent of petitioner to abuse AAA and engage in acts of child pornography by
inducing the latter to exhibit her private parts to him. Petitioner, being the one with mental maturity,
should have known that it was not just legally, but inherently wrong for AAA, a minor, to show her
private parts, particularly, through a mobile device. If indeed, petitioner loved AAA, he should have
protected her dignity, being a minor. However, as the exchanges of petitioner and AAA would show,
it was through petitioner's prodding that led to AAA's act of exhibiting her private parts. Thus, this
Court concurs with the findings of the courts a quo that the prosecution was able to establish beyond
reasonable doubt that petitioner induced or coerced the minor victim to perform in the creation of
child pornography and that the same was done through a computer system.

All told, the courts a quo did not err in finding petitioner guilty beyond reasonable doubt for violation
of Section 4(c)(2) of R.A. No. 10175, in relation to Sections 4(a), 3(b) and (c)(5) of R.A. No. 9775.

As regards the proper penalty to be imposed, Sections 4 and 875 of R.A. No. 10175 both explicitly
provide that the proper penalty to be imposed for child pornography committed through a computer
system should be one degree higher than that provided for in R.A. No. 9775. Under Section
15(b)76 of R.A. No. 9775, the penalty to be imposed is reclusion temporal in its maximum period and
a fine of not less than P1,000,000.00 but not more than P2,000,000.00. The rationale for this rule
was succinctly explained in the case of Disini Jr. v. The Secretary of Justice,77 to wit:

It seems that the above merely expands the scope of the Anti-Child
Pornography Act of 200931 (ACPA) to cover identical activities in cyberspace. In
theory, nothing prevents the government from invoking the ACPA when prosecuting
persons who commit child pornography using a computer system. Actually, ACPA's
definition of child pornography already embraces the use of "electronic, mechanical,
digital, optical, magnetic or any other means." Notably, no one has questioned this
ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is
committed in cyberspace. But no one can complain since the intensity or duration of
penalty is a legislative prerogative and there is rational basis for such higher
 penalty. The potential for uncontrolled proliferation of a particular piece of child
pornography when uploaded in the cyberspace is incalculable.78

One degree higher than the penalty of reclusion temporal is the indivisible penalty of reclusion
perpetua. Accordingly, the penalty imposed by the CA should be modified to reclusion perpetua as it
is in accordance with the provisions and intent of R.A. No. 10175.

Finally, the Court finds no compelling reason to modify the fine imposed by the courts a quo as it is
within the allowable range imposed by law.

WHEREFORE, the petition is DENIED. Consequently, The Decision dated

September 27, 2018 and Resolution dated May 9, 2019 both rendered by the Court
of Appeals in CA-G.R. CR No. 40298 are AFFIRMED with MODIFICATION.
Petitioner Christian Cadajas y Cabias is guilty beyond reasonable doubt of the crime
of child pornography under Section 4(c)(2) of R.A. No. 10175, in relation to Sections
4(a) and 3(b) and (c)(5) of R.A. No. 9775. He is sentenced to reclusion perpetua,
with all its accessory penalties and to pay a fine in the amount of One Million Pesos
(P1,000,000.00).

SO ORDERED.

G.R. No. 162994 September 17, 2004

DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A. TECSON, petitioners,

vs.
GLAXO WELLCOME PHILIPPINES, INC., Respondent.

RESOLUTION

TINGA, J.:

Confronting the Court in this petition is a novel question, with constitutional overtones, involving the
validity of the policy of a pharmaceutical company prohibiting its employees from marrying
employees of any competitor company.

This is a Petition for Review on Certiorari assailing the Decision1 dated May 19, 2003 and
the Resolution dated March 26, 2004 of the Court of Appeals in CA-G.R. SP No. 62434. 2

Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo Wellcome Philippines, Inc.
(Glaxo) as medical representative on October 24, 1995, after Tecson had undergone training and
orientation.

Thereafter, Tecson signed a contract of employment which stipulates, among others, that he agrees
to study and abide by existing company rules; to disclose to management any existing or future
relationship by consanguinity or affinity with co-employees or employees of competing drug
companies and should management find that such relationship poses a possible conflict of interest,
to resign from the company.

The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to inform
management of any existing or future relationship by consanguinity or affinity with co-employees or
employees of competing drug companies. If management perceives a conflict of interest or a
potential conflict between such relationship and the employee’s employment with the company, the
management and the employee will explore the possibility of a "transfer to another department in a
non-counterchecking position" or preparation for employment outside the company after six months.

Tecson was initially assigned to market Glaxo’s products in the Camarines Sur-Camarines Norte
sales area.

Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of Astra
Pharmaceuticals3 (Astra), a competitor of Glaxo. Bettsy was Astra’s Branch Coordinator in Albay.
She supervised the district managers and medical representatives of her company and prepared
marketing strategies for Astra in that area.

Even before they got married, Tecson received several reminders from his District Manager
regarding the conflict of interest which his relationship with Bettsy might engender. Still, love
prevailed, and Tecson married Bettsy in September 1998.

In January 1999, Tecson’s superiors informed him that his marriage to Bettsy gave rise to a conflict
of interest. Tecson’s superiors reminded him that he and Bettsy should decide which one of them
would resign from their jobs, although they told him that they wanted to retain him as much as
possible because he was performing his job well.

Tecson requested for time to comply with the company policy against entering into a relationship
with an employee of a competitor company. He explained that Astra, Bettsy’s employer, was
planning to merge with Zeneca, another drug company; and Bettsy was planning to avail of the
redundancy package to be offered by Astra. With Bettsy’s separation from her company, the
potential conflict of interest would be eliminated. At the same time, they would be able to avail of the
attractive redundancy package from Astra.

In August 1999, Tecson again requested for more time resolve the problem. In September 1999,
Tecson applied for a transfer in Glaxo’s milk division, thinking that since Astra did not have a milk
division, the potential conflict of interest would be eliminated. His application was denied in view of
Glaxo’s "least-movement-possible" policy.

In November 1999, Glaxo transferred Tecson to the Butuan City-Surigao City-Agusan del Sur sales
area. Tecson asked Glaxo to reconsider its decision, but his request was denied.

Tecson sought Glaxo’s reconsideration regarding his transfer and brought the matter to Glaxo’s
Grievance Committee. Glaxo, however, remained firm in its decision and gave Tescon until February
7, 2000 to comply with the transfer order. Tecson defied the transfer order and continued acting as
medical representative in the Camarines Sur-Camarines Norte sales area.

During the pendency of the grievance proceedings, Tecson was paid his salary, but was not issued
samples of products which were competing with similar products manufactured by Astra. He was
also not included in product conferences regarding such products.

Because the parties failed to resolve the issue at the grievance machinery level, they submitted the
matter for voluntary arbitration. Glaxo offered Tecson a separation pay of one-half (½) month pay for
every year of service, or a total of ₱50,000.00 but he declined the offer. On November 15, 2000, the
National Conciliation and Mediation Board (NCMB) rendered its Decision declaring as valid Glaxo’s
policy on relationships between its employees and persons employed with competitor companies,
and affirming Glaxo’s right to transfer Tecson to another sales territory.
Aggrieved, Tecson filed a Petition for Review with the Court of Appeals assailing the
NCMB Decision.

On May 19, 2003, the Court of Appeals promulgated its Decision denying the Petition for Review on
the ground that the NCMB did not err in rendering its Decision. The appellate court held that Glaxo’s
policy prohibiting its employees from having personal relationships with employees of competitor
companies is a valid exercise of its management prerogatives.4

Tecson filed a Motion for Reconsideration of the appellate court’s Decision, but the motion was
denied by the appellate court in its Resolution dated March 26, 2004.5

Petitioners filed the instant petition, arguing therein that (i) the Court of Appeals erred in affirming the
NCMB’s finding that the Glaxo’s policy prohibiting its employees from marrying an employee of a
competitor company is valid; and (ii) the Court of Appeals also erred in not finding that Tecson was
constructively dismissed when he was transferred to a new sales territory, and deprived of the
opportunity to attend products seminars and training sessions.6

Petitioners contend that Glaxo’s policy against employees marrying employees of competitor
companies violates the equal protection clause of the Constitution because it creates invalid
distinctions among employees on account only of marriage. They claim that the policy restricts the
employees’ right to marry.7

They also argue that Tecson was constructively dismissed as shown by the following circumstances:
(1) he was transferred from the Camarines Sur-Camarines Norte sales area to the Butuan-Surigao-
Agusan sales area, (2) he suffered a diminution in pay, (3) he was excluded from attending seminars
and training sessions for medical representatives, and (4) he was prohibited from promoting
respondent’s products which were competing with Astra’s products.8

In its Comment on the petition, Glaxo argues that the company policy prohibiting its employees from
having a relationship with and/or marrying an employee of a competitor company is a valid exercise
of its management prerogatives and does not violate the equal protection clause; and that Tecson’s
reassignment from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City
and Agusan del Sur sales area does not amount to constructive dismissal. 9

Glaxo insists that as a company engaged in the promotion and sale of pharmaceutical products, it
has a genuine interest in ensuring that its employees avoid any activity, relationship or interest that
may conflict with their responsibilities to the company. Thus, it expects its employees to avoid having
personal or family interests in any competitor company which may influence their actions and
decisions and consequently deprive Glaxo of legitimate profits. The policy is also aimed at
preventing a competitor company from gaining access to its secrets, procedures and policies. 10

It likewise asserts that the policy does not prohibit marriage per se but only proscribes existing or
future relationships with employees of competitor companies, and is therefore not violative of the
equal protection clause. It maintains that considering the nature of its business, the prohibition is
based on valid grounds.11

According to Glaxo, Tecson’s marriage to Bettsy, an employee of Astra, posed a real and potential
conflict of interest. Astra’s products were in direct competition with 67% of the products sold by
Glaxo. Hence, Glaxo’s enforcement of the foregoing policy in Tecson’s case was a valid exercise of
its management prerogatives.12 In any case, Tecson was given several months to remedy the
situation, and was even encouraged not to resign but to ask his wife to resign form Astra instead. 13
Glaxo also points out that Tecson can no longer question the assailed company policy because
when he signed his contract of employment, he was aware that such policy was stipulated therein. In
said contract, he also agreed to resign from respondent if the management finds that his relationship
with an employee of a competitor company would be detrimental to the interests of Glaxo. 14

Glaxo likewise insists that Tecson’s reassignment to another sales area and his exclusion from
seminars regarding respondent’s new products did not amount to constructive dismissal.

It claims that in view of Tecson’s refusal to resign, he was relocated from the Camarines Sur-
Camarines Norte sales area to the Butuan City-Surigao City and Agusan del Sur sales area. Glaxo
asserts that in effecting the reassignment, it also considered the welfare of Tecson’s family. Since
Tecson’s hometown was in Agusan del Sur and his wife traces her roots to Butuan City, Glaxo
assumed that his transfer from the Bicol region to the Butuan City sales area would be favorable to
him and his family as he would be relocating to a familiar territory and minimizing his travel
expenses.15

In addition, Glaxo avers that Tecson’s exclusion from the seminar concerning the new anti-asthma
drug was due to the fact that said product was in direct competition with a drug which was soon to
be sold by Astra, and hence, would pose a potential conflict of interest for him. Lastly, the delay in
Tecson’s receipt of his sales paraphernalia was due to the mix-up created by his refusal to transfer
to the Butuan City sales area (his paraphernalia was delivered to his new sales area instead of Naga
City because the supplier thought he already transferred to Butuan).16

The Court is tasked to resolve the following issues: (1) Whether the Court of Appeals erred in ruling
that Glaxo’s policy against its employees marrying employees from competitor companies is valid,
and in not holding that said policy violates the equal protection clause of the Constitution; (2)
Whether Tecson was constructively dismissed.

The Court finds no merit in the petition.

The stipulation in Tecson’s contract of employment with Glaxo being questioned by petitioners
provides:

10. You agree to disclose to management any existing or future relationship you may have,
either by consanguinity or affinity with co-employees or employees of competing drug
companies. Should it pose a possible conflict of interest in management discretion, you
agree to resign voluntarily from the Company as a matter of Company policy.

…17

The same contract also stipulates that Tescon agrees to abide by the existing company rules of
Glaxo, and to study and become acquainted with such policies.18 In this regard, the Employee
Handbook of Glaxo expressly informs its employees of its rules regarding conflict of interest:

1. Conflict of Interest

Employees should avoid any activity, investment relationship, or interest that may run
counter to the responsibilities which they owe Glaxo Wellcome.
 Specifically, this means that employees are expected:

a. To avoid having personal or family interest, financial or otherwise, in any

competitor supplier or other businesses which may consciously or unconsciously
influence their actions or decisions and thus deprive Glaxo Wellcome of legitimate
profit.

b. To refrain from using their position in Glaxo Wellcome or knowledge of Company

plans to advance their outside personal interests, that of their relatives, friends and
other businesses.

c. To avoid outside employment or other interests for income which would impair
their effective job performance.

d. To consult with Management on such activities or relationships that may lead to

conflict of interest.

1.1. Employee Relationships

Employees with existing or future relationships either by consanguinity or affinity with co-
employees of competing drug companies are expected to disclose such relationship to the
Management. If management perceives a conflict or potential conflict of interest, every effort
shall be made, together by management and the employee, to arrive at a solution within six
(6) months, either by transfer to another department in a non-counter checking position, or
by career preparation toward outside employment after Glaxo Wellcome. Employees must
be prepared for possible resignation within six (6) months, if no other solution is feasible. 19

No reversible error can be ascribed to the Court of Appeals when it ruled that Glaxo’s policy
prohibiting an employee from having a relationship with an employee of a competitor company is a
valid exercise of management prerogative.

Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other
confidential programs and information from competitors, especially so that it and Astra are rival
companies in the highly competitive pharmaceutical industry.

The prohibition against personal or marital relationships with employees of competitor companies
upon Glaxo’s employees is reasonable under the circumstances because relationships of that nature
might compromise the interests of the company. In laying down the assailed company policy, Glaxo
only aims to protect its interests against the possibility that a competitor company will gain access to
its secrets and procedures.

That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the
Constitution recognizes the right of enterprises to adopt and enforce such a policy to protect its right
to reasonable returns on investments and to expansion and growth.20 Indeed, while our laws
endeavor to give life to the constitutional policy on social justice and the protection of labor, it does
not mean that every labor dispute will be decided in favor of the workers. The law also recognizes
that management has rights which are also entitled to respect and enforcement in the interest of fair
play.21

As held in a Georgia, U.S.A case,22 it is a legitimate business practice to guard business

confidentiality and protect a competitive position by even-handedly disqualifying from jobs male and
female applicants or employees who are married to a competitor. Consequently, the court ruled than
an employer that discharged an employee who was married to an employee of an active competitor
did not violate Title VII of the Civil Rights Act of 1964.23 The Court pointed out that the policy was
applied to men and women equally, and noted that the employer’s business was highly competitive
and that gaining inside information would constitute a competitive advantage.

The challenged company policy does not violate the equal protection clause of the Constitution as
petitioners erroneously suggest. It is a settled principle that the commands of the equal protection
clause are addressed only to the state or those acting under color of its authority. 24 Corollarily, it has
been held in a long array of U.S. Supreme Court decisions that the equal protection clause erects no
shield against merely private conduct, however, discriminatory or wrongful.25 The only exception
occurs when the state29 in any of its manifestations or actions has been found to have become
entwined or involved in the wrongful private conduct.27 Obviously, however, the exception is not
present in this case. Significantly, the company actually enforced the policy after repeated requests
to the employee to comply with the policy. Indeed, the application of the policy was made in an
impartial and even-handed manner, with due regard for the lot of the employee.

In any event, from the wordings of the contractual provision and the policy in its employee handbook,
it is clear that Glaxo does not impose an absolute prohibition against relationships between its
employees and those of competitor companies. Its employees are free to cultivate relationships with
and marry persons of their own choosing. What the company merely seeks to avoid is a conflict of
interest between the employee and the company that may arise out of such relationships. As
succinctly explained by the appellate court, thus:

The policy being questioned is not a policy against marriage. An employee of the company
remains free to marry anyone of his or her choosing. The policy is not aimed at restricting a
personal prerogative that belongs only to the individual. However, an employee’s personal
decision does not detract the employer from exercising management prerogatives to ensure
maximum profit and business success. . .28

The Court of Appeals also correctly noted that the assailed company policy which forms part of
respondent’s Employee Code of Conduct and of its contracts with its employees, such as that signed
by Tescon, was made known to him prior to his employment. Tecson, therefore, was aware of that
restriction when he signed his employment contract and when he entered into a relationship with
Bettsy. Since Tecson knowingly and voluntarily entered into a contract of employment with Glaxo,
the stipulations therein have the force of law between them and, thus, should be complied with in
good faith."29 He is therefore estopped from questioning said policy.

The Court finds no merit in petitioners’ contention that Tescon was constructively dismissed when he
was transferred from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao
City-Agusan del Sur sales area, and when he was excluded from attending the company’s seminar
on new products which were directly competing with similar products manufactured by Astra.
Constructive dismissal is defined as a quitting, an involuntary resignation resorted to when continued
employment becomes impossible, unreasonable, or unlikely; when there is a demotion in rank or
diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes
unbearable to the employee.30 None of these conditions are present in the instant case. The record
does not show that Tescon was demoted or unduly discriminated upon by reason of such transfer.
As found by the appellate court, Glaxo properly exercised its management prerogative in reassigning
Tecson to the Butuan City sales area:

. . . In this case, petitioner’s transfer to another place of assignment was merely in keeping
with the policy of the company in avoidance of conflict of interest, and thus valid…Note that
 [Tecson’s] wife holds a sensitive supervisory position as Branch Coordinator in her
employer-company which requires her to work in close coordination with District Managers
and Medical Representatives. Her duties include monitoring sales of Astra products,
conducting sales drives, establishing and furthering relationship with customers, collection,
monitoring and managing Astra’s inventory…she therefore takes an active participation in
the market war characterized as it is by stiff competition among pharmaceutical companies.
Moreover, and this is significant, petitioner’s sales territory covers Camarines Sur and
Camarines Norte while his wife is supervising a branch of her employer in Albay. The
proximity of their areas of responsibility, all in the same Bicol Region, renders the conflict of
interest not only possible, but actual, as learning by one spouse of the other’s market
strategies in the region would be inevitable. [Management’s] appreciation of a conflict of
interest is therefore not merely illusory and wanting in factual basis…31

In Abbott Laboratories (Phils.), Inc. v. National Labor Relations Commission,32 which involved a
complaint filed by a medical representative against his employer drug company for illegal dismissal
for allegedly terminating his employment when he refused to accept his reassignment to a new area,
the Court upheld the right of the drug company to transfer or reassign its employee in accordance
with its operational demands and requirements. The ruling of the Court therein, quoted hereunder,
also finds application in the instant case:

By the very nature of his employment, a drug salesman or medical representative is

expected to travel. He should anticipate reassignment according to the demands of their
business. It would be a poor drug corporation which cannot even assign its representatives
or detail men to new markets calling for opening or expansion or to areas where the need for
pushing its products is great. More so if such reassignments are part of the employment
contract.33

As noted earlier, the challenged policy has been implemented by Glaxo impartially and
disinterestedly for a long period of time. In the case at bar, the record shows that Glaxo gave Tecson
several chances to eliminate the conflict of interest brought about by his relationship with Bettsy.
When their relationship was still in its initial stage, Tecson’s supervisors at Glaxo constantly
reminded him about its effects on his employment with the company and on the company’s interests.
After Tecson married Bettsy, Glaxo gave him time to resolve the conflict by either resigning from the
company or asking his wife to resign from Astra. Glaxo even expressed its desire to retain Tecson in
its employ because of his satisfactory performance and suggested that he ask Bettsy to resign from
her company instead. Glaxo likewise acceded to his repeated requests for more time to resolve the
conflict of interest. When the problem could not be resolved after several years of waiting, Glaxo was
constrained to reassign Tecson to a sales area different from that handled by his wife for Astra.
Notably, the Court did not terminate Tecson from employment but only reassigned him to another
area where his home province, Agusan del Sur, was included. In effecting Tecson’s transfer, Glaxo
even considered the welfare of Tecson’s family. Clearly, the foregoing dispels any suspicion of
unfairness and bad faith on the part of Glaxo.34

WHEREFORE, the Petition is DENIED for lack of merit. Costs against petitioners.

SO ORDERED.

G.R. No. 164774 April 12, 2006

STAR PAPER CORPORATION, JOSEPHINE ONGSITCO & SEBASTIAN CHUA, Petitioners,

vs.
RONALDO D. SIMBOL, WILFREDA N. COMIA & LORNA E. ESTRELLA, Respondents.
 DECISION

PUNO, J.:

We are called to decide an issue of first impression: whether the policy of the employer banning
spouses from working in the same company violates the rights of the employee under the
Constitution and the Labor Code or is a valid exercise of management prerogative.

At bar is a Petition for Review on Certiorari of the Decision of the Court of Appeals dated August 3,
2004 in CA-G.R. SP No. 73477 reversing the decision of the National Labor Relations Commission
(NLRC) which affirmed the ruling of the Labor Arbiter.

Petitioner Star Paper Corporation (the company) is a corporation engaged in trading – principally of
paper products. Josephine Ongsitco is its Manager of the Personnel and Administration Department
while Sebastian Chua is its Managing Director.

The evidence for the petitioners show that respondents Ronaldo D. Simbol (Simbol), Wilfreda N.
Comia (Comia) and Lorna E. Estrella (Estrella) were all regular employees of the company. 1

Simbol was employed by the company on October 27, 1993. He met Alma Dayrit, also an employee
of the company, whom he married on June 27, 1998. Prior to the marriage, Ongsitco advised the
couple that should they decide to get married, one of them should resign pursuant to a company
policy promulgated in 1995,2 viz.:

1. New applicants will not be allowed to be hired if in case he/she has [a] relative, up to [the]
3rd degree of relationship, already employed by the company.

2. In case of two of our employees (both singles [sic], one male and another female)
developed a friendly relationship during the course of their employment and then decided to
get married, one of them should resign to preserve the policy stated above. 3

Simbol resigned on June 20, 1998 pursuant to the company policy.4

Comia was hired by the company on February 5, 1997. She met Howard Comia, a co-employee,
whom she married on June 1, 2000. Ongsitco likewise reminded them that pursuant to company
policy, one must resign should they decide to get married. Comia resigned on June 30, 2000. 5

Estrella was hired on July 29, 1994. She met Luisito Zuñiga (Zuñiga), also a co-worker. Petitioners
stated that Zuñiga, a married man, got Estrella pregnant. The company allegedly could have
terminated her services due to immorality but she opted to resign on December 21, 1999. 6

The respondents each signed a Release and Confirmation Agreement. They stated therein that they
have no money and property accountabilities in the company and that they release the latter of any
claim or demand of whatever nature.7

Respondents offer a different version of their dismissal. Simbol and Comia allege that they did not
resign voluntarily; they were compelled to resign in view of an illegal company policy. As to
respondent Estrella, she alleges that she had a relationship with co-worker Zuñiga who
misrepresented himself as a married but separated man. After he got her pregnant, she discovered
that he was not separated. Thus, she severed her relationship with him to avoid dismissal due to the
company policy. On November 30, 1999, she met an accident and was advised by the doctor at the
Orthopedic Hospital to recuperate for twenty-one (21) days. She returned to work on December 21,
1999 but she found out that her name was on-hold at the gate. She was denied entry. She was
directed to proceed to the personnel office where one of the staff handed her a memorandum. The
memorandum stated that she was being dismissed for immoral conduct. She refused to sign the
memorandum because she was on leave for twenty-one (21) days and has not been given a chance
to explain. The management asked her to write an explanation. However, after submission of the
explanation, she was nonetheless dismissed by the company. Due to her urgent need for money,
she later submitted a letter of resignation in exchange for her thirteenth month pay. 8

Respondents later filed a complaint for unfair labor practice, constructive dismissal, separation pay
and attorney’s fees. They averred that the aforementioned company policy is illegal and contravenes
Article 136 of the Labor Code. They also contended that they were dismissed due to their union
membership.

On May 31, 2001, Labor Arbiter Melquiades Sol del Rosario dismissed the complaint for lack of
merit, viz.:

[T]his company policy was decreed pursuant to what the respondent corporation perceived as
management prerogative. This management prerogative is quite broad and encompassing for it
covers hiring, work assignment, working method, time, place and manner of work, tools to be used,
processes to be followed, supervision of workers, working regulations, transfer of employees, work
supervision, lay-off of workers and the discipline, dismissal and recall of workers. Except as provided
for or limited by special law, an employer is free to regulate, according to his own discretion and
judgment all the aspects of employment.9 (Citations omitted.)

On appeal to the NLRC, the Commission affirmed the decision of the Labor Arbiter on January 11,
2002. 10

Respondents filed a Motion for Reconsideration but was denied by the NLRC in a Resolution 11 dated
August 8, 2002. They appealed to respondent court via Petition for Certiorari.

In its assailed Decision dated August 3, 2004, the Court of Appeals reversed the NLRC
decision, viz.:

WHEREFORE, premises considered, the May 31, 2002 (sic)12 Decision of the National Labor
Relations Commission is hereby REVERSED and SET ASIDE and a new one is entered as follows:

(1) Declaring illegal, the petitioners’ dismissal from employment and ordering private
respondents to reinstate petitioners to their former positions without loss of seniority rights
with full backwages from the time of their dismissal until actual reinstatement; and

(2) Ordering private respondents to pay petitioners attorney’s fees amounting to 10% of the
award and the cost of this suit.13

On appeal to this Court, petitioners contend that the Court of Appeals erred in holding that:

1. x x x the subject 1995 policy/regulation is violative of the constitutional rights towards

marriage and the family of employees and of Article 136 of the Labor Code; and

2. x x x respondents’ resignations were far from voluntary.14

We affirm.

The 1987 Constitution15 states our policy towards the protection of labor under the following
provisions, viz.:

Article II, Section 18. The State affirms labor as a primary social economic force. It shall protect the
rights of workers and promote their welfare.

xxx

Article XIII, Sec. 3. The State shall afford full protection to labor, local and overseas, organized and
unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to strike in accordance with law. They shall be
entitled to security of tenure, humane conditions of work, and a living wage. They shall also
participate in policy and decision-making processes affecting their rights and benefits as may be
provided by law.

The State shall promote the principle of shared responsibility between workers and employers,
recognizing the right of labor to its just share in the fruits of production and the right of enterprises to
reasonable returns on investments, and to expansion and growth.

The Civil Code likewise protects labor with the following provisions:

Art. 1700. The relation between capital and labor are not merely contractual. They are so impressed
with public interest that labor contracts must yield to the common good. Therefore, such contracts
are subject to the special laws on labor unions, collective bargaining, strikes and lockouts, closed
shop, wages, working conditions, hours of labor and similar subjects.

Art. 1702. In case of doubt, all labor legislation and all labor contracts shall be construed in favor of
the safety and decent living for the laborer.

The Labor Code is the most comprehensive piece of legislation protecting labor. The case at bar
involves Article 136 of the Labor Code which provides:

Art. 136. It shall be unlawful for an employer to require as a condition of employment or continuation
of employment that a woman employee shall not get married, or to stipulate expressly or tacitly that
upon getting married a woman employee shall be deemed resigned or separated, or to actually
dismiss, discharge, discriminate or otherwise prejudice a woman employee merely by reason of her
marriage.

Respondents submit that their dismissal violates the above provision. Petitioners allege that its
policy "may appear to be contrary to Article 136 of the Labor Code" but it assumes a new meaning if
read together with the first paragraph of the rule. The rule does not require the woman employee to
resign. The employee spouses have the right to choose who between them should resign. Further,
they are free to marry persons other than co-employees. Hence, it is not the marital status of the
employee, per se, that is being discriminated. It is only intended to carry out its no-employment-for-
relatives-within-the-third-degree-policy which is within the ambit of the prerogatives of
management.16
It is true that the policy of petitioners prohibiting close relatives from working in the same company
takes the nature of an anti-nepotism employment policy. Companies adopt these policies to prevent
the hiring of unqualified persons based on their status as a relative, rather than upon their
ability.17 These policies focus upon the potential employment problems arising from the perception of
favoritism exhibited towards relatives.

With more women entering the workforce, employers are also enacting employment policies
specifically prohibiting spouses from working for the same company. We note that two types of
employment policies involve spouses: policies banning only spouses from working in the same
company (no-spouse employment policies), and those banning all immediate family members,
including spouses, from working in the same company (anti-nepotism employment policies).18

Unlike in our jurisdiction where there is no express prohibition on marital discrimination, 19 there are
twenty state statutes20 in the United States prohibiting marital discrimination. Some state
courts21 have been confronted with the issue of whether no-spouse policies violate their laws
prohibiting both marital status and sex discrimination.

In challenging the anti-nepotism employment policies in the United States, complainants utilize two
theories of employment discrimination: the disparate treatment and the disparate impact. Under
the disparate treatment analysis, the plaintiff must prove that an employment policy is
discriminatory on its face. No-spouse employment policies requiring an employee of a particular
sex to either quit, transfer, or be fired are facially discriminatory. For example, an employment policy
prohibiting the employer from hiring wives of male employees, but not husbands of female
employees, is discriminatory on its face.22

On the other hand, to establish disparate impact, the complainants must prove that a facially
neutral policy has a disproportionate effect on a particular class. For example, although most
employment policies do not expressly indicate which spouse will be required to transfer or leave the
company, the policy often disproportionately affects one sex.23

The state courts’ rulings on the issue depend on their interpretation of the scope of marital status
discrimination within the meaning of their respective civil rights acts. Though they agree that the term
"marital status" encompasses discrimination based on a person's status as either married, single,
divorced, or widowed, they are divided on whether the term has a broader meaning. Thus, their
decisions vary.24

The courts narrowly25 interpreting marital status to refer only to a person's status as married, single,
divorced, or widowed reason that if the legislature intended a broader definition it would have either
chosen different language or specified its intent. They hold that the relevant inquiry is if one is
married rather than to whom one is married. They construe marital status discrimination to include
only whether a person is single, married, divorced, or widowed and not the "identity, occupation, and
place of employment of one's spouse." These courts have upheld the questioned policies and ruled
that they did not violate the marital status discrimination provision of their respective state statutes.

The courts that have broadly26 construed the term "marital status" rule that it encompassed the
identity, occupation and employment of one's spouse. They strike down the no-spouse employment
policies based on the broad legislative intent of the state statute. They reason that the no-spouse
employment policy violate the marital status provision because it arbitrarily discriminates against all
spouses of present employees without regard to the actual effect on the individual's qualifications or
work performance.27 These courts also find the no-spouse employment policy invalid for failure of the
employer to present any evidence of business necessity other than the general perception that
spouses in the same workplace might adversely affect the business.28 They hold that the absence of
such a bona fide occupational qualification29 invalidates a rule denying employment to one
spouse due to the current employment of the other spouse in the same office. 30 Thus, they rule that
unless the employer can prove that the reasonable demands of the business require a distinction
based on marital status and there is no better available or acceptable policy which would better
accomplish the business purpose, an employer may not discriminate against an employee based on
the identity of the employee’s spouse.31 This is known as the bona fide occupational qualification
exception.

We note that since the finding of a bona fide occupational qualification justifies an employer’s no-
spouse rule, the exception is interpreted strictly and narrowly by these state courts. There must be a
compelling business necessity for which no alternative exists other than the discriminatory
practice.32 To justify a bona fide occupational qualification, the employer must prove two factors: (1)
that the employment qualification is reasonably related to the essential operation of the job involved;
and, (2) that there is a factual basis for believing that all or substantially all persons meeting the
qualification would be unable to properly perform the duties of the job. 33

The concept of a bona fide occupational qualification is not foreign in our jurisdiction. We employ the
standard of reasonableness of the company policy which is parallel to the bona fide occupational
qualification requirement. In the recent case of Duncan Association of Detailman-PTGWO and
Pedro Tecson v. Glaxo Wellcome Philippines, Inc.,34 we passed on the validity of the policy of a
pharmaceutical company prohibiting its employees from marrying employees of any competitor company. We
held that Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other
confidential programs and information from competitors. We considered the prohibition against personal or
marital relationships with employees of competitor companies upon Glaxo’s employees reasonable under the
circumstances because relationships of that nature might compromise the interests of Glaxo. In laying down
the assailed company policy, we recognized that Glaxo only aims to protect its interests against the possibility
that a competitor company will gain access to its secrets and procedures.35

The requirement that a company policy must be reasonable under the circumstances to qualify as a
valid exercise of management prerogative was also at issue in the 1997 case of Philippine
Telegraph and Telephone Company v. NLRC.36 In said case, the employee was dismissed in
violation of petitioner’s policy of disqualifying from work any woman worker who contracts marriage.
We held that the company policy violates the right against discrimination afforded all women workers
under Article 136 of the Labor Code, but established a permissible exception, viz.:

[A] requirement that a woman employee must remain unmarried could be justified as a "bona fide
occupational qualification," or BFOQ, where the particular requirements of the job would justify the
same, but not on the ground of a general principle, such as the desirability of spreading work in the
workplace. A requirement of that nature would be valid provided it reflects an inherent
quality reasonably necessary for satisfactory job performance.37 (Emphases supplied.)

The cases of Duncan and PT&T instruct us that the requirement of reasonableness must
be clearly established to uphold the questioned employment policy. The employer has the burden to
prove the existence of a reasonable business necessity. The burden was successfully discharged in
Duncan but not in PT&T.

We do not find a reasonable business necessity in the case at bar.

Petitioners’ sole contention that "the company did not just want to have two (2) or more of its
employees related between the third degree by affinity and/or consanguinity" 38 is lame. That the
second paragraph was meant to give teeth to the first paragraph of the questioned rule 39 is evidently
not the valid reasonable business necessity required by the law.
It is significant to note that in the case at bar, respondents were hired after they were found fit for the
job, but were asked to resign when they married a co-employee. Petitioners failed to show how the
marriage of Simbol, then a Sheeting Machine Operator, to Alma Dayrit, then an employee of the
Repacking Section, could be detrimental to its business operations. Neither did petitioners explain
how this detriment will happen in the case of Wilfreda Comia, then a Production Helper in the
Selecting Department, who married Howard Comia, then a helper in the cutter-machine. The policy
is premised on the mere fear that employees married to each other will be less efficient. If we uphold
the questioned rule without valid justification, the employer can create policies based on an
unproven presumption of a perceived danger at the expense of an employee’s right to security of
tenure.

Petitioners contend that their policy will apply only when one employee marries a co-employee, but
they are free to marry persons other than co-employees. The questioned policy may not facially
violate Article 136 of the Labor Code but it creates a disproportionate effect and under the disparate
impact theory, the only way it could pass judicial scrutiny is a showing that it is reasonable despite
the discriminatory, albeit disproportionate, effect. The failure of petitioners to prove a legitimate
business concern in imposing the questioned policy cannot prejudice the employee’s right to be free
from arbitrary discrimination based upon stereotypes of married persons working together in one
company.40

Lastly, the absence of a statute expressly prohibiting marital discrimination in our jurisdiction cannot
benefit the petitioners. The protection given to labor in our jurisdiction is vast and extensive that we
cannot prudently draw inferences from the legislature’s silence41 that married persons are not
protected under our Constitution and declare valid a policy based on a prejudice or stereotype. Thus,
for failure of petitioners to present undisputed proof of a reasonable business necessity, we rule that
the questioned policy is an invalid exercise of management prerogative. Corollarily, the issue as to
whether respondents Simbol and Comia resigned voluntarily has become moot and academic.

As to respondent Estrella, the Labor Arbiter and the NLRC based their ruling on the singular fact that
her resignation letter was written in her own handwriting. Both ruled that her resignation was
voluntary and thus valid. The respondent court failed to categorically rule whether Estrella voluntarily
resigned but ordered that she be reinstated along with Simbol and Comia.

Estrella claims that she was pressured to submit a resignation letter because she was in dire need of
money. We examined the records of the case and find Estrella’s contention to be more in accord
with the evidence. While findings of fact by administrative tribunals like the NLRC are generally given
not only respect but, at times, finality, this rule admits of exceptions, 42 as in the case at bar.

Estrella avers that she went back to work on December 21, 1999 but was dismissed due to her
alleged immoral conduct. At first, she did not want to sign the termination papers but she was forced
to tender her resignation letter in exchange for her thirteenth month pay.

The contention of petitioners that Estrella was pressured to resign because she got impregnated by
a married man and she could not stand being looked upon or talked about as immoral 43 is
incredulous. If she really wanted to avoid embarrassment and humiliation, she would not have gone
back to work at all. Nor would she have filed a suit for illegal dismissal and pleaded for
reinstatement. We have held that in voluntary resignation, the employee is compelled by personal
reason(s) to dissociate himself from employment. It is done with the intention of relinquishing an
office, accompanied by the act of abandonment. 44 Thus, it is illogical for Estrella to resign and then
file a complaint for illegal dismissal. Given the lack of sufficient evidence on the part of petitioners
that the resignation was voluntary, Estrella’s dismissal is declared illegal.
IN VIEW WHEREOF, the Decision of the Court of Appeals in CA-G.R. SP No. 73477 dated August
3, 2004 is AFFIRMED. 1avvphil.net

SO ORDERED.

G.R. No. 187417

CHRISTINE JOY CAPIN-CADIZ, Petitioner,

vs.
BRENT HOSPITAL AND COLLEGES, INC., Respondent.

DECISION

REYES, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the
1

Resolutions dated July 22, 2008 and February 24, 2009 of the Court of Appeals (CA) in CA-GR. SP
2 3

No. 02373-MIN, which dismissed the petition filed by petitioner Christine Joy Capin-Cadiz (Cadiz) on
the following grounds: (1) incomplete statement of material dates; (2) failure to attach registry
receipts; and (3) failure to indicate the place of issue of counsel's Professional Tax Receipt (PTR)
and Integrated Bar of the Philippines (IBP) official receipts.

Antecedent Facts

Cadiz was the Human Resource Officer of respondent Brent Hospital and Colleges, Inc. (Brent) at
the time of her indefinite suspension from employment in 2006. The cause of suspension was
Cadiz's Unprofessionalism and Unethical Behavior Resulting to Unwed Pregnancy. It appears that
Cadiz became pregnant out of wedlock, and Brent imposed the suspension until such time that she
marries her boyfriend in accordance with law.

Cadiz then filed with the Labor Arbiter (LA) a complaint for Unfair Labor Practice, Constructive
Dismissal, Non-Payment of Wages and Damages with prayer for Reinstatement. 4

Ruling of the Labor Tribunals

In its Decision dated April 12, 2007, the LA found that Cadiz's indefinite suspension amounted to a
5

constructive dismissal; nevertheless, the LA ruled that Cadiz was not illegally dismissed as there
was just cause for her dismissal, that is, she engaged in premarital sexual relations with her
boyfriend resulting in a pregnancy out of wedlock. The LA further stated that her "immoral conduct x
6

x x [was] magnified as serious misconduct not only by her getting pregnant as a result thereof before
and without marriage, but more than that, also by the fact that Brent is an institution of the Episcopal
Church in the Philippines operating both a hospital and college where [Cadiz] was employed." The7

LA also ruled that she was not entitled to reinstatement "at least until she marries her boyfriend," to
backwages and vacation/sick leave pay. Brent, however, manifested that it was willing to pay her
13th month pay. The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered, ordering [Brent] to pay [Cadiz] 13th month pay in the
sum of Seven Thousand Nine Hundred Seventy & 11/100 Pesos (P7,970.11).

All other charges and claims are hereby dismissed for lack of merit.
SO ORDERED. 8

Cadiz appealed to the National Labor Relations Commission (NLRC), which affirmed the LA decision
in its Resolution dated December 10, 2007. Her motion for reconsideration having been denied by
9

the NLRC in its Resolution dated February 29, 2008, Cadiz elevated her case to the CA on petition
10

for certiorari under Rule 65.

Ruling of the CA

The CA, however, dismissed her petition outright due to technical defects in the petition: (1)
incomplete statement of material dates; (2) failure to attach registry receipts; and (3) failure to
indicate the place of issue of counsel's PTR and IBP official receipts. Cadiz sought reconsideration
11

of the assailed CA Resolution dated July 22, 2008 but it was denied in the assailed Resolution dated
February 24, 2009. The CA further ruled that "a perusal of the petition will reveal that public
12

respondent NLRC committed no grave abuse of discretion amounting to lack or excess of jurisdiction
x x x holding [Cadiz's] dismissal from employment valid." 13

Hence, the present petition.

Cadiz argues that -

THE HONORABLE [NLRC] GRAVELY ABUSED ITS DISCRETION WHEN IT HELD THAT
[CADIZ'S] IMPREGNATION OUTSIDE OF WEDLOCK IS A GROUND FOR THE TERMINATION OF
[CADIZ'S] EMPLOYMENT 14

II

THE [NLRC] COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT UPHELD THE DISMISSAL
OF [CADIZ] ON THE GROUND THAT THE INDEFINITE SUSPENSION WAS VALID AND
REQUIRED [CADIZ] TO FIRST ENTER INTO MARRIAGE BEFORE SHE CAN BE ADMITTED
BACK TO HER EMPLOYMENT 15

III

RESPONDENT [NLRC] GRAVELY ABUSED ITS DISCRETION WHEN IT DENIED [CADIZ'S]

CLAIM FOR BACKWAGES, ALLOWANCES, SICK LEAVE PAY, MATERNITY PAY AND MORAL
AND EXEMPLARY DAMAGES AND ATTORNEY'S FEES 16

IV

THE [CA] MISPLACED APPLICATION OF THE MATERIAL DATA RULE RESULTING TO GRAVE
ABUSE OF DISCRETION WHEN IT DISMISSED THE APPEAL 17

Cadiz contends, among others, that getting pregnant outside of wedlock is not grossly immoral,
especially when both partners do not have any legal impediment to marry. Cadiz surmises that the
reason for her suspension was not because of her relationship with her then boyfriend but because
of the resulting pregnancy. Cadiz also lambasts Brent's condition for her reinstatement - that she
gets married to her boyfriend - saying that this violates the stipulation against marriage under Article
136 of the Labor Code. Finally, Cadiz contends that there was substantial compliance with the rules
of procedure, and the CA should not have dismissed the petition. 18

Brent, meanwhile, adopts and reiterates its position before the LA and the NLRC that Cadiz's
arguments are irrational and out of context. Brent argues, among others, that for Cadiz to limit acts
of immorality only to extra-marital affairs is to "change the norms, beliefs, teachings and practices of
BRENT as a Church institution of the x x x Episcopal Church in the Philippines." 19

Ruling of the Court

Ordinarily, the Court will simply gloss over the arguments raised by Cadiz, given that the main matter
dealt with by the CA were the infirmities found in the petition and which caused the dismissal of her
case before it. In view, however, of the significance of the issues involved in Cadiz's dismissal from
employment, the Court will resolve the petition including the substantial grounds raised herein.

The issue to be resolved is whether the CA committed a reversible error in ruling that: (1) Cadiz's
petition is dismissible on ground of technical deficiencies; and (2) the NLRC did not commit grave
abuse of discretion in upholding her dismissal from employment.

Rules of procedure are mere tools

designed to facilitate the attainment
of justice

In dismissing outright Cadiz's petition, the CA found the following defects: (1) incomplete statement
of material dates; (2) failure to attach registry receipts; and (3) failure to indicate the place of issue of
counsel's PTR and IBP official receipts.

Rule 46, Section 3 of the Rules of Court states the contents of a petition filed with the CA under Rule
65, viz, "the petition shall x x x indicate the material dates showing when notice of the judgment or
final order or resolution subject thereof was received, when a motion for new trial or reconsideration,
if any, was filed and when notice of the denial thereof was received." The rationale for this is to
enable the CA to determine whether the petition was filed within the period fixed in the
rules. Cadiz's failure to state the date of receipt of the copy of the NLRC decision, however, is not
20

fatal to her case since the more important material date which must be duly alleged in a petition is
the date of receipt of the resolution of denial of the motion for reconsideration, which she has duly
21

complied with. 22

The CA also dismissed the petition for failure to attach the registry receipt in the affidavit of
service. Cadiz points out, on the other hand, that the registry receipt number was indicated in the
23

petition and this constitutes substantial compliance with the requirement. What the rule requires,
however, is that the registry receipt must be appended to the paper being served. Clearly, mere
24

indication of the registry receipt numbers will not suffice. In fact, the absence of the registry receipts
amounts to lack of proof of service. Nevertheless, despite this defect, the Court finds that the ends
25

of substantial justice would be better served by relaxing the application of technical rules of
procedure. With regard to counsel's failure to indicate the place where the IBP and PTR receipts
26

were issued, there was substantial compliance with the requirement since it was indicated in the
verification and certification of non-forum shopping, as correctly argued by Cadiz's lawyer. 27

Time and again, the Court has emphasized that rules of procedure are designed to secure
substantial justice. These are mere tools to expedite the decision or resolution of cases and if their
strict and rigid application would frustrate rather than promote substantial justice, then it must be
avoided. 28
Immorality as a just cause for
termination of employment

Both the LA and the NLRC upheld Cadiz's dismissal as one attended with just cause. The LA, while
ruling that Cadiz's indefinite suspension was tantamount to a constructive dismissal, nevertheless
found that there was just cause for her dismissal. According to the LA, "there was just cause
therefor, consisting in her engaging in premarital sexual relations with Carl Cadiz, allegedly her
boyfriend, resulting in her becoming pregnant out of wedlock." The LA deemed said act to be
29

immoral, which was punishable by dismissal under Brent's rules and which likewise constituted
serious misconduct under Article 282(a) of the Labor Code. The LA also opined that since Cadiz was
Brent's Human Resource Officer in charge of implementing its rules against immoral conduct, she
should have been the "epitome of proper conduct." The LA ruled:
30

[Cadiz's] immoral conduct by having premarital sexual relations with her alleged boy friend, a former
Brent worker and her co-employee, is magnified as serious misconduct not only by her getting
pregnant as a result thereof before and without marriage, but more than that, also by the fact that
Brent is an institution of the Episcopal Church in the Philippines x x x committed to "developing
competent and dedicated professionals x x x and in providing excellent medical and other health
services to the community for the Glory of God and Service to Humanity." x x x As if these were not
enough, [Cadiz] was Brent's Human Resource Officer charged with, among others, implementing the
rules of Brent against immoral conduct, including premarital sexual relations, or fornication x x x. She
should have been the epitome of proper conduct, but miserably failed. She herself engaged in
premarital sexual relations, which surely scandalized the Brent community.xx x. 31

The NLRC, for its part, sustained the LA's conclusion.

The Court, however, cannot subscribe to the labor tribunals' conclusions.

Admittedly, one of the grounds for disciplinary action under Brent's policies is immorality, which is
punishable by dismissal at first offense. Brent's Policy Manual provides:
32

CATEGORY IV

In accordance with Republic Act No. 1052, the following are just cause for terminating an
33

employment of an employee without a definite period:

xxxx

2. Serious misconduct or willful disobedience by the employee of the orders of his employer or
representative in connection with his work, such as, but not limited to the following:

xxxx

b. Commission of immoral conduct or indecency within the company premises, such as an act of
lasciviousness or any act which is sinful and vulgar in nature.

c. Immora1ity, concubinage, bigamy. 34

Its Employee's Manual of Policies, meanwhile, enumerates "[a]cts of immorality such as scandalous
behaviour, acts of lasciviousness against any person (patient, visitors, co-workers) within hospital
premises" as a ground for discipline and discharge. Brent also relied on Section 94 of the Manual of
35
Regulations for Private Schools (MRPS), which lists "disgraceful or immoral conduct" as a cause for
terminating employment. 36

Thus, the question that must be resolved is whether Cadiz's premarital relations with her boyfriend
and the resulting pregnancy out of wedlock constitute immorality. To resolve this, the Court makes
reference to the recently promulgated case of Cheryll Santos Leus v. St. Scholastica’s College
Westgrove and/or Sr. Edna Quiambao, OSB. 37

Leus involved the same personal circumstances as the case at bench, albeit the employer was a
Catholic and sectarian educational institution and the petitioner, Cheryll Santos Leus (Leus ), worked
as an assistant to the school's Director of the Lay Apostolate and Community Outreach Directorate.
Leus was dismissed from employment by the school for having borne a child out of wedlock. The
Court ruled in Leus that the determination of whether a conduct is disgraceful or immoral involves a
two-step process: first, a consideration of the totality of the circumstances surrounding the conduct;
and second, an assessment of the said circumstances vis-a-vis the prevailing norms of
conduct, i.e., what the society generally considers moral and respectable.

In this case, the surrounding facts leading to Cadiz's dismissal are straightforward - she was
employed as a human resources officer in an educational and medical institution of the Episcopal
Church of the Philippines; she and her boyfriend at that time were both single; they engaged in
premarital sexual relations, which resulted into pregnancy. The labor tribunals characterized these
as constituting disgraceful or immoral conduct. They also sweepingly concluded that as Human
Resource Officer, Cadiz should have been the epitome of proper conduct and her indiscretion
"surely scandalized the Brent community." 38

The foregoing circumstances, however, do not readily equate to disgraceful and immoral conduct.
Brent's Policy Manual and Employee's Manual of Policies do not define what constitutes immorality;
it simply stated immorality as a ground for disciplinary action. Instead, Brent erroneously relied on
the standard dictionary definition of fornication as a form of illicit relation and proceeded to conclude
that Cadiz's acts fell under such classification, thus constituting immorality.39

Jurisprudence has already set the standard of morality with which an act should be gauged - it is
public and secular, not religious. Whether a conduct is considered disgraceful or immoral should be
40

made in accordance with the prevailing norms of conduct, which, as stated in Leus, refer to those
conducts which are proscribed because they are detrimental to conditions upon which depend
the existence and progress of human society. The fact that a particular act does not conform to
the traditional moral views of a certain sectarian institution is not sufficient reason to qualify such act
as immoral unless it, likewise, does not conform to public and secular standards. More importantly,
there must be substantial evidence to establish that premarital sexual relations and pregnancy out
of wedlock is considered disgraceful or immoral. 41

The totality of the circumstances of this case does not justify the conclusion that Cadiz committed
acts of immorality. Similar to Leus, Cadiz and her boyfriend were both single and had no legal
impediment to marry at the time she committed the alleged immoral conduct. In fact, they eventually
married on April 15, 2008. Aside from these, the labor tribunals' respective conclusion that Cadiz's
42

"indiscretion" "scandalized the Brent community" is speculative, at most, and there is no proof
adduced by Brent to support such sweeping conclusion. Even Brent admitted that it came to know of
Cadiz's "situation" only when her pregnancy became manifest. Brent also conceded that "[a]t the
43

time [Cadiz] and Carl R. Cadiz were just carrying on their boyfriend-girlfriend relationship, there was
no knowledge or evidence by [Brent] that they were engaged also in premarital sex." This only goes
44

to show that Cadiz did not flaunt her premarital relations with her boyfriend and it was not carried on
under scandalous or disgraceful circumstances. As declared in Leus, "there is no law which
penalizes an unmarried mother by reason of her sexual conduct or proscribes the consensual sexual
activity between two unmarried persons; that neither does such situation contravene[s] any
fundamental state policy enshrined in the Constitution. " The fact that Brent is a sectarian institution
45

does not automatically subject Cadiz to its religious standard of morality absent an express
statement in its manual of personnel policy and regulations, prescribing such religious standard as
gauge as these regulations create the obligation on both the employee and the employer to abide by
the same. 46

Brent, likewise, cannot resort to the MRPS because the Court already stressed in Leus that
"premarital sexual relations between two consenting adults who have no impediment to marry each
other, and, consequently, conceiving a child out of wedlock, gauged from a purely public and secular
view of morality, does not amount to a disgraceful or immoral conduct under Section 94(e) of the
1992 MRPS." 47

Marriage as a condition for

reinstatement

The doctrine of management prerogative gives an employer the right to "regulate, according to his
own discretion and judgment, all aspects of employment, including hiring, work assignments,
working methods, the time, place and manner of work, work supervision, transfer of employees, lay-
off of workers, and discipline, dismissal, and recall of employees." In this case, Brent imposed on
48

Cadiz the condition that she subsequently contract marriage with her then boyfriend for her to be
reinstated. According to Brent, this is "in consonance with the policy against encouraging illicit or
common-law relations that would subvert the sacrament of marriage." 49

Statutory law is replete with legislation protecting labor and promoting equal opportunity in
employment. No less than the 1987 Constitution mandates that the "State shall afford full protection
to labor, local and overseas, organized and unorganized, and promote full employment and equality
of employment opportunities for all." The Labor Code of the Philippines, meanwhile, provides:
50

Art. 136. Stipulation against marriage. It shall be unlawful for an employer to require as a condition of
employment or continuation of employment that a woman employee shall not get married, or to
stipulate expressly or tacitly that upon getting married, a woman employee shall be deemed
resigned or separated, or to actually dismiss, discharge, discriminate or otherwise prejudice a
woman employee merely by reason of her marriage.

With particular regard to women, Republic Act No. 9710 or the Magna Carta of Women protects
51

women against discrimination in all matters relating to marriage and family relations, including
the right to choose freely a spouse and to enter into marriage only with their free and full
consent. 52

Weighed against these safeguards, it becomes apparent that Brent's condition is coercive,
oppressive and discriminatory. There is no rhyme or reason for it. It forces Cadiz to marry for
1âwphi1

economic reasons and deprives her of the freedom to choose her status, which is a privilege that
inheres in her as an intangible and inalienable right. While a marriage or no-marriage qualification
53

may be justified as a "bona fide occupational qualification," Brent must prove two factors
necessitating its imposition, viz: (1) that the employment qualification is reasonably related to the
essential operation of the job involved; and (2) that there is a factual basis for believing that all or
substantially all persons meeting the qualification would be unable to properly perform the duties of
the job. Brent has not shown the presence of neither of these factors. Perforce, the Court cannot
54

uphold the validity of said condition.

Given the foregoing, Cadiz, therefore, is entitled to reinstatement without loss of seniority rights, and
payment of backwages computed from the time compensation was withheld up to the date of actual
reinstatement. Where reinstatement is no longer viable as an option, separation pay should be
awarded as an alternative and as a form of financial assistance. In the computation of separation
55

pay, the Court stresses that it should not go beyond the date an employee was deemed to
have been actually separated from employment, or beyond the date when reinstatement was
rendered impossible. In this case, the records do not show whether Cadiz already severed her
56

employment with Brent or whether she is gainfully employed elsewhere; thus, the computation of
separation pay shall be pegged based on the findings that she was employed on August 16, 2002,
on her own admission in her complaint that she was dismissed on November 17, 2006, and that she
was earning a salary of P9,108.70 per month, which shall then be computed at a rate of one (1)
57

month salary for every year of service, as follows:

58

Monthly salary P9,108.70

multiplied by number of
x
years

in service (Aug 02 to Nov 06) 4

P36,434.80

The Court also finds that Cadiz is only entitled to limited backwages. Generally, the computation of
backwages is reckoned from the date of illegal dismissal until actual reinstatement. In case
59

separation pay is ordered in lieu of reinstatement or reinstatement is waived by the employee,

backwages is computed from the time of dismissal until the finality of the decision ordering
separation pay. Jurisprudence further clarified that the period for computing the backwages during
60

the period of appeal should end on the date that a higher court reversed the labor arbitration ruling of
illegal dismissal. If applied in Cadiz's case, then the computation of backwages should be from
61

November 17, 2006, which was the time of her illegal dismissal, until the date of promulgation of this
decision. Nevertheless, the Court has also recognized that the constitutional policy of providing full
protection to labor is not intended to oppress or destroy management. The Court notes that at the
62

time of Cadiz's indefinite suspension from employment, Leus was yet to be decided by the Court.
Moreover, Brent was acting in good faith and on its honest belief that Cadiz's pregnancy out of
wedlock constituted immorality. Thus, fairness and equity dictate that the award of backwages shall
only be equivalent to one (1) year or P109,304.40, computed as follows:

Monthly salary P9,108.70

multiplied by one
x
year

or 12 months 12
 P109,304.40

Finally, with regard to Cadiz's prayer for moral and exemplary damages, the Court finds the same
without merit. A finding of illegal dismissal, by itself, does not establish bad faith to entitle an
employee to moral damages. Absent clear and convincing evidence showing that Cadiz's dismissal
63

from Brent's employ had been carried out in an arbitrary, capricious and malicious manner, moral
and exemplary damages cannot be awarded. The Court nevertheless grants the award of attorney's
fees in the amount of ten percent (10%) of the total monetary award, Cadiz having been forced to
litigate in order to seek redress of her grievances.
64

WHEREFORE, the petition is GRANTED. The Resolutions dated July 22, 2008 and February 24,
2009 of the Court of Appeals in CA-G.R. SP No. 02373-MIN are REVERSED and SET ASIDE, and
a NEW ONE ENTERED finding petitioner Christine Joy Capin-Cadiz to have been dismissed without
just cause.

Respondent Brent Hospital and Colleges, Inc. is hereby ORDERED TO PAY petitioner Christine Joy
Capin-Cadiz:

(1) One Hundred Nine Thousand Three Hundred Four Pesos and 40/100 (Pl 09,304.40) as
backwages;

(2) Thirty-Six Thousand Four Hundred Thirty-Four Pesos and 80/100 (P36,434.80) as
separation pay; and

(3) Attorney's fees equivalent to ten percent (10%) of the total award.

The monetary awards granted shall earn legal interest at the rate of six percent (6%) per
annum from the date of the finality of this Decision until fully paid.

SO ORDERED.

G.R. No. 174689 October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.

DECISION

CORONA, J.:

When God created man, He made him in the likeness of God; He created them male and
female. (Genesis 5:1-2)

Amihan gazed upon the bamboo reed planted by Bathala and she heard voices coming from
inside the bamboo. "Oh North Wind! North Wind! Please let us out!," the voices said. She
pecked the reed once, then twice. All of a sudden, the bamboo cracked and slit open. Out
came two human beings; one was a male and the other was a female. Amihan named the
 man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The Legend of Malakas and
Maganda)

When is a man a man and when is a woman a woman? In particular, does the law recognize the
changes made by a physician using scalpel, drugs and counseling with regard to a person’s sex?
May a person successfully petition for a change of name and sex appearing in the birth certificate to
reflect the result of a sex reassignment surgery?

On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a petition for the change of
his first name and sex in his birth certificate in the Regional Trial Court of Manila, Branch 8. The
petition, docketed as SP Case No. 02-105207, impleaded the civil registrar of Manila as respondent.

Petitioner alleged in his petition that he was born in the City of Manila to the spouses Melecio
Petines Silverio and Anita Aquino Dantes on April 4, 1962. His name was registered as "Rommel
Jacinto Dantes Silverio" in his certificate of live birth (birth certificate). His sex was registered as
"male."

He further alleged that he is a male transsexual, that is, "anatomically male but feels, thinks and acts
as a female" and that he had always identified himself with girls since childhood. 1 Feeling trapped in
a man’s body, he consulted several doctors in the United States. He underwent psychological
examination, hormone treatment and breast augmentation. His attempts to transform himself to a
"woman" culminated on January 27, 2001 when he underwent sex reassignment surgery 2 in
Bangkok, Thailand. He was thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who issued a medical certificate attesting that he
(petitioner) had in fact undergone the procedure.

From then on, petitioner lived as a female and was in fact engaged to be married. He then sought to
have his name in his birth certificate changed from "Rommel Jacinto" to "Mely," and his sex from
"male" to "female."

An order setting the case for initial hearing was published in the People’s Journal Tonight, a
newspaper of general circulation in Metro Manila, for three consecutive weeks.3 Copies of the order
were sent to the Office of the Solicitor General (OSG) and the civil registrar of Manila.

On the scheduled initial hearing, jurisdictional requirements were established. No opposition to the
petition was made.

During trial, petitioner testified for himself. He also presented Dr. Reysio-Cruz, Jr. and his American
fiancé, Richard P. Edel, as witnesses.

On June 4, 2003, the trial court rendered a decision4 in favor of petitioner. Its relevant portions read:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof
or for any unlawful motive but solely for the purpose of making his birth records compatible
with his present sex.

The sole issue here is whether or not petitioner is entitled to the relief asked for.

The [c]ourt rules in the affirmative.

 Firstly, the [c]ourt is of the opinion that granting the petition would be more in consonance
with the principles of justice and equity. With his sexual [re-assignment], petitioner, who has
always felt, thought and acted like a woman, now possesses the physique of a female.
Petitioner’s misfortune to be trapped in a man’s body is not his own doing and should not be
in any way taken against him.

Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be caused to anybody or
the community in granting the petition. On the contrary, granting the petition would bring the
much-awaited happiness on the part of the petitioner and her [fiancé] and the realization of
their dreams.

Finally, no evidence was presented to show any cause or ground to deny the present petition
despite due notice and publication thereof. Even the State, through the [OSG] has not seen
fit to interpose any [o]pposition.

WHEREFORE, judgment is hereby rendered GRANTING the petition and ordering the Civil
Registrar of Manila to change the entries appearing in the Certificate of Birth of [p]etitioner,
specifically for petitioner’s first name from "Rommel Jacinto" to MELY and petitioner’s gender
from "Male" to FEMALE. 5

On August 18, 2003, the Republic of the Philippines (Republic), thru the OSG, filed a petition for
certiorari in the Court of Appeals.6 It alleged that there is no law allowing the change of entries in the
birth certificate by reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of the Republic. It ruled
that the trial court’s decision lacked legal basis. There is no law allowing the change of either name
or sex in the certificate of birth on the ground of sex reassignment through surgery. Thus, the Court
of Appeals granted the Republic’s petition, set aside the decision of the trial court and ordered the
dismissal of SP Case No. 02-105207. Petitioner moved for reconsideration but it was
denied.9 Hence, this petition.

Petitioner essentially claims that the change of his name and sex in his birth certificate is allowed
under Articles 407 to 413 of the Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048. 10

The petition lacks merit.

A Person’s First Name Cannot Be Changed On the Ground of Sex Reassignment

Petitioner invoked his sex reassignment as the ground for his petition for change of name and sex.
As found by the trial court:

Petitioner filed the present petition not to evade any law or judgment or any infraction thereof
or for any unlawful motive but solely for the purpose of making his birth records
compatible with his present sex. (emphasis supplied)

Petitioner believes that after having acquired the physical features of a female, he became entitled to
the civil registry changes sought. We disagree.

The State has an interest in the names borne by individuals and entities for purposes of
identification.11 A change of name is a privilege, not a right.12 Petitions for change of name are
controlled by statutes.13 In this connection, Article 376 of the Civil Code provides:
 ART. 376. No person can change his name or surname without judicial authority.

This Civil Code provision was amended by RA 9048 (Clerical Error Law). In particular, Section 1 of
RA 9048 provides:

SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name
or Nickname. – No entry in a civil register shall be changed or corrected without a judicial
order, except for clerical or typographical errors and change of first name or nickname which
can be corrected or changed by the concerned city or municipal civil registrar or consul
general in accordance with the provisions of this Act and its implementing rules and
regulations.

RA 9048 now governs the change of first name.14 It vests the power and authority to entertain
petitions for change of first name to the city or municipal civil registrar or consul general concerned.
Under the law, therefore, jurisdiction over applications for change of first name is now primarily
lodged with the aforementioned administrative officers. The intent and effect of the law is to exclude
the change of first name from the coverage of Rules 103 (Change of Name) and 108 (Cancellation
or Correction of Entries in the Civil Registry) of the Rules of Court, until and unless an administrative
petition for change of name is first filed and subsequently denied. 15 It likewise lays down the
corresponding venue,16 form17 and procedure. In sum, the remedy and the proceedings regulating
change of first name are primarily administrative in nature, not judicial.

RA 9048 likewise provides the grounds for which change of first name may be allowed:

SECTION 4. Grounds for Change of First Name or Nickname. – The petition for change of
first name or nickname may be allowed in any of the following cases:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted with dishonor or
extremely difficult to write or pronounce;

(2) The new first name or nickname has been habitually and continuously used by the
petitioner and he has been publicly known by that first name or nickname in the community;
or

(3) The change will avoid confusion.

Petitioner’s basis in praying for the change of his first name was his sex reassignment. He intended
to make his first name compatible with the sex he thought he transformed himself into through
surgery. However, a change of name does not alter one’s legal capacity or civil status. 18 RA 9048
does not sanction a change of first name on the ground of sex reassignment. Rather than avoiding
confusion, changing petitioner’s first name for his declared purpose may only create grave
complications in the civil registry and the public interest.

Before a person can legally change his given name, he must present proper or reasonable cause or
any compelling reason justifying such change.19 In addition, he must show that he will be prejudiced
by the use of his true and official name.20 In this case, he failed to show, or even allege, any
prejudice that he might suffer as a result of using his true and official name.

In sum, the petition in the trial court in so far as it prayed for the change of petitioner’s first name was
not within that court’s primary jurisdiction as the petition should have been filed with the local civil
registrar concerned, assuming it could be legally done. It was an improper remedy because the
proper remedy was administrative, that is, that provided under RA 9048. It was also filed in the
wrong venue as the proper venue was in the Office of the Civil Registrar of Manila where his birth
certificate is kept. More importantly, it had no merit since the use of his true and official name does
not prejudice him at all. For all these reasons, the Court of Appeals correctly dismissed petitioner’s
petition in so far as the change of his first name was concerned.

No Law Allows The Change of Entry In The Birth Certificate As To Sex On the Ground of Sex
Reassignment

The determination of a person’s sex appearing in his birth certificate is a legal issue and the court
must look to the statutes.21 In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in the civil register shall be changed or corrected without a judicial order.

Together with Article 376 of the Civil Code, this provision was amended by RA 9048 in so far
as clerical or typographical errors are involved. The correction or change of such matters can now
be made through administrative proceedings and without the need for a judicial order. In effect, RA
9048 removed from the ambit of Rule 108 of the Rules of Court the correction of such errors. 22 Rule
108 now applies only to substantial changes and corrections in entries in the civil register. 23

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. – As used in this Act, the following terms shall mean:

xxx xxx xxx

(3) "Clerical or typographical error" refers to a mistake committed in the performance

of clerical work in writing, copying, transcribing or typing an entry in the civil register
that is harmless and innocuous, such as misspelled name or misspelled place of
birth or the like, which is visible to the eyes or obvious to the understanding, and can
be corrected or changed only by reference to other existing record or
records: Provided, however, That no correction must involve the change
of nationality, age, status or sex of the petitioner. (emphasis supplied)

Under RA 9048, a correction in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable procedure is Rule 108 of the
Rules of Court.

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code:24

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the Civil Code include even
those that occur after birth.25 However, no reasonable interpretation of the provision can justify the
conclusion that it covers the correction on the ground of sex reassignment.

To correct simply means "to make or set aright; to remove the faults or error from" while to change
means "to replace something with something else of the same kind or with something that serves as
a substitute."26 The birth certificate of petitioner contained no error. All entries therein, including those
corresponding to his first name and sex, were all correct. No correction is necessary.

Article 407 of the Civil Code authorizes the entry in the civil registry of certain acts (such as
legitimations, acknowledgments of illegitimate children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial decrees (such as legal separations, annulments of
marriage, declarations of nullity of marriages, adoptions, naturalization, loss or recovery of
citizenship, civil interdiction, judicial determination of filiation and changes of name). These acts,
events and judicial decrees produce legal consequences that touch upon the legal capacity, status
and nationality of a person. Their effects are expressly sanctioned by the laws. In contrast, sex
reassignment is not among those acts or events mentioned in Article 407. Neither is it recognized
nor even mentioned by any law, expressly or impliedly.

"Status" refers to the circumstances affecting the legal situation (that is, the sum total of capacities
and incapacities) of a person in view of his age, nationality and his family membership. 27

The status of a person in law includes all his personal qualities and relations, more or less
permanent in nature, not ordinarily terminable at his own will, such as his being
legitimate or illegitimate, or his being married or not. The comprehensive term status…
include such matters as the beginning and end of legal personality, capacity to have rights in
general, family relations, and its various aspects, such as birth, legitimation, adoption,
emancipation, marriage, divorce, and sometimes even succession.28 (emphasis supplied)

A person’s sex is an essential factor in marriage and family relations. It is a part of a person’s legal
capacity and civil status. In this connection, Article 413 of the Civil Code provides:

ART. 413. All other matters pertaining to the registration of civil status shall be governed by
special laws.

But there is no such special law in the Philippines governing sex reassignment and its effects. This is
fatal to petitioner’s cause.

Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

SEC. 5. Registration and certification of births. – The declaration of the physician or midwife
in attendance at the birth or, in default thereof, the declaration of either parent of the
newborn child, shall be sufficient for the registration of a birth in the civil register. Such
declaration shall be exempt from documentary stamp tax and shall be sent to the local civil
registrar not later than thirty days after the birth, by the physician or midwife in attendance at
the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the following facts: (a) date
and hour of birth; (b) sex and nationality of infant; (c) names, citizenship and religion of
parents or, in case the father is not known, of the mother alone; (d) civil status of parents; (e)
 place where the infant was born; and (f) such other data as may be required in the
regulations to be issued.

xxx xxx xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the facts as they existed at
the time of birth.29 Thus, the sex of a person is determined at birth, visually done by the birth
attendant (the physician or midwife) by examining the genitals of the infant. Considering that there is
no law legally recognizing sex reassignment, the determination of a person’s sex made at the time of
his or her birth, if not attended by error,30 is immutable.31

When words are not defined in a statute they are to be given their common and ordinary meaning in
the absence of a contrary legislative intent. The words "sex," "male" and "female" as used in the Civil
Register Law and laws concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative intent to the contrary. In
this connection, sex is defined as "the sum of peculiarities of structure and function that distinguish a
male from a female"32 or "the distinction between male and female."33 Female is "the sex that
produces ova or bears young"34 and male is "the sex that has organs to produce spermatozoa for
fertilizing ova."35 Thus, the words "male" and "female" in everyday understanding do not include
persons who have undergone sex reassignment. Furthermore, "words that are employed in a statute
which had at the time a well-known meaning are presumed to have been used in that sense unless
the context compels to the contrary."36 Since the statutory language of the Civil Register Law was
enacted in the early 1900s and remains unchanged, it cannot be argued that the term "sex" as used
then is something alterable through surgery or something that allows a post-operative male-to-
female transsexual to be included in the category "female."

For these reasons, while petitioner may have succeeded in altering his body and appearance
through the intervention of modern surgery, no law authorizes the change of entry as to sex in the
civil registry for that reason. Thus, there is no legal basis for his petition for the correction or change
of the entries in his birth certificate.

Neither May Entries in the Birth Certificate As to First Name or Sex Be Changed on the
Ground of Equity

The trial court opined that its grant of the petition was in consonance with the principles of justice
and equity. It believed that allowing the petition would cause no harm, injury or prejudice to anyone.
This is wrong.

The changes sought by petitioner will have serious and wide-ranging legal and public policy
consequences. First, even the trial court itself found that the petition was but petitioner’s first step
towards his eventual marriage to his male fiancé. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a woman.37 One of its
essential requisites is the legal capacity of the contracting parties who must be a male and a
female.38 To grant the changes sought by petitioner will substantially reconfigure and greatly alter the
laws on marriage and family relations. It will allow the union of a man with another man who has
undergone sex reassignment (a male-to-female post-operative transsexual). Second, there are
various laws which apply particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal Code40 and the presumption of
survivorship in case of calamities under Rule 131 of the Rules of Court,41 among others. These laws
underscore the public policy in relation to women which could be substantially affected if petitioner’s
petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court shall decline to render
judgment by reason of the silence, obscurity or insufficiency of the law." However, it is not a license
for courts to engage in judicial legislation. The duty of the courts is to apply or interpret the law, not
to make or amend it.

In our system of government, it is for the legislature, should it choose to do so, to determine what
guidelines should govern the recognition of the effects of sex reassignment. The need for legislative
guidelines becomes particularly important in this case where the claims asserted are statute-based.

To reiterate, the statutes define who may file petitions for change of first name and for correction or
change of entries in the civil registry, where they may be filed, what grounds may be invoked, what
proof must be presented and what procedures shall be observed. If the legislature intends to confer
on a person who has undergone sex reassignment the privilege to change his name and sex to
conform with his reassigned sex, it has to enact legislation laying down the guidelines in turn
governing the conferment of that privilege.

It might be theoretically possible for this Court to write a protocol on when a person may be
recognized as having successfully changed his sex. However, this Court has no authority to fashion
a law on that matter, or on anything else. The Court cannot enact a law where no law exists. It can
only apply or interpret the written word of its co-equal branch of government, Congress.

Petitioner pleads that "[t]he unfortunates are also entitled to a life of happiness, contentment and
[the] realization of their dreams." No argument about that. The Court recognizes that there are
people whose preferences and orientation do not fit neatly into the commonly recognized
parameters of social convention and that, at least for them, life is indeed an ordeal. However, the
remedies petitioner seeks involve questions of public policy to be addressed solely by the
legislature, not by the courts.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

REPUBLIC OF THE PHILIPPINES, G.R. No. 166676

Petitioner, Present:

- versus - Quisumbing, J., Chairperson,

JENNIFER B. CAGANDAHAN, Carpio Morales,

Respondent. Tinga,

VELASCO, JR., and

BRION, JJ.

Promulgated:

September 12, 2008

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION

QUISUMBING, J.:

This is a petition for review under Rule 45 of the Rules of Court raising purely questions of law
and seeking a reversal of the Decision[1] dated January 12, 2005 of the Regional Trial Court
(RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for Correction of Entries in
Birth Certificate filed by Jennifer B. Cagandahan and ordered the following changes of entries
in Cagandahan’s birth certificate: (1) the name "Jennifer Cagandahan" changed to "Jeff
Cagandahan" and (2) gender from "female" to "male."

The facts are as follows.

On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for Correction of
Entries in Birth Certificate2 before the RTC, Branch 33 of Siniloan, Laguna.

In her petition, she alleged that she was born on January 13, 1981 and was registered as a
female in the Certificate of Live Birth but while growing up, she developed secondary male
characteristics and was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which is a
condition where persons thus afflicted possess both male and female characteristics. She
further alleged that she was diagnosed to have clitoral hyperthropy in her early years and at
age six, underwent an ultrasound where it was discovered that she has small ovaries. At age
thirteen, tests revealed that her ovarian structures had minimized, she has stopped growing
and she has no breast or menstrual development. She then alleged that for all interests and
appearances as well as in mind and emotion, she has become a male person. Thus, she
prayed that her birth certificate be corrected such that her gender be changed from female to
male and her first name be changed from Jennifer to Jeff.

The petition was published in a newspaper of general circulation for three (3) consecutive
weeks and was posted in conspicuous places by the sheriff of the court. The Solicitor General
entered his appearance and authorized the Assistant Provincial Prosecutor to appear in his
behalf.

To prove her claim, respondent testified and presented the testimony of Dr. Michael Sionzon
of the Department of Psychiatry, University of the Philippines-Philippine General Hospital. Dr.
Sionzon issued a medical certificate stating that respondent’s condition is known as CAH. He
explained that genetically respondent is female but because her body secretes male
hormones, her female organs did not develop normally and she has two sex organs – female
and male. He testified that this condition is very rare, that respondent’s uterus is not fully
developed because of lack of female hormones, and that she has no monthly period. He
further testified that respondent’s condition is permanent and recommended the change of
gender because respondent has made up her mind, adjusted to her chosen role as male, and
the gender change would be advantageous to her.

The RTC granted respondent’s petition in a Decision dated January 12, 2005 which reads:

The Court is convinced that petitioner has satisfactorily shown that he is entitled to the reliefs
prayed [for]. Petitioner has adequately presented to the Court very clear and convincing
proofs for the granting of his petition. It was medically proven that petitioner’s body produces
male hormones, and first his body as well as his action and feelings are that of a male. He has
chosen to be male. He is a normal person and wants to be acknowledged and identified as a
male.

WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby ordered to
make the following corrections in the birth [c]ertificate of Jennifer Cagandahan upon payment
of the prescribed fees:

a) By changing the name from Jennifer Cagandahan to JEFF CAGANDAHAN; and

b) By changing the gender from female to MALE.

It is likewise ordered that petitioner’s school records, voter’s registry, baptismal certificate,
and other pertinent records are hereby amended to conform with the foregoing corrected
data.

SO ORDERED.[3]

Thus, this petition by the Office of the Solicitor General (OSG) seeking a reversal of the
abovementioned ruling.

The issues raised by petitioner are:

THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING THAT:

I.

THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT HAVE NOT BEEN
COMPLIED WITH; AND,

II.

CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF "SEX" OR "GENDER"
IN THE BIRTH CERTIFICATE, WHILE RESPONDENT’S MEDICAL CONDITION, i.e., CONGENITAL
ADRENAL HYPERPLASIA DOES NOT MAKE HER A "MALE."4

Simply stated, the issue is whether the trial court erred in ordering the correction of entries in
the birth certificate of respondent to change her sex or gender, from female to male, on the
ground of her medical condition known as CAH, and her name from "Jennifer" to "Jeff," under
Rules 103 and 108 of the Rules of Court.

The OSG contends that the petition below is fatally defective for non-compliance with Rules
103 and 108 of the Rules of Court because while the local civil registrar is an indispensable
party in a petition for cancellation or correction of entries under Section 3, Rule 108 of the
Rules of Court, respondent’s petition before the court a quo did not implead the local civil
registrar.5 The OSG further contends respondent’s petition is fatally defective since it failed to
state that respondent is a bona fide resident of the province where the petition was filed for
at least three (3) years prior to the date of such filing as mandated under Section 2(b), Rule
103 of the Rules of Court.6 The OSG argues that Rule 108 does not allow change of sex or
gender in the birth certificate and respondent’s claimed medical condition known as CAH
does not make her a male.7

On the other hand, respondent counters that although the Local Civil Registrar of Pakil,
Laguna was not formally named a party in the Petition for Correction of Birth Certificate,
nonetheless the Local Civil Registrar was furnished a copy of the Petition, the Order to publish
on December 16, 2003 and all pleadings, orders or processes in the course of the
proceedings,8 respondent is actually a male person and hence his birth certificate has to be
corrected to reflect his true sex/gender,9 change of sex or gender is allowed under Rule
108,10 and respondent substantially complied with the requirements of Rules 103 and 108 of
the Rules of Court.11

Rules 103 and 108 of the Rules of Court provide:

Rule 103

CHANGE OF NAME

Section 1. Venue. – A person desiring to change his name shall present the petition to the
Regional Trial Court of the province in which he resides, [or, in the City of Manila, to the
Juvenile and Domestic Relations Court].

Sec. 2. Contents of petition. – A petition for change of name shall be signed and verified by
the person desiring his name changed, or some other person on his behalf, and shall set forth:

(a) That the petitioner has been a bona fide resident of the province where the petition is
filed for at least three (3) years prior to the date of such filing;

(b) The cause for which the change of the petitioner's name is sought;

(c) The name asked for.

Sec. 3. Order for hearing. – If the petition filed is sufficient in form and substance, the court,
by an order reciting the purpose of the petition, shall fix a date and place for the hearing
thereof, and shall direct that a copy of the order be published before the hearing at least once
a week for three (3) successive weeks in some newspaper of general circulation published in
the province, as the court shall deem best. The date set for the hearing shall not be within
thirty (30) days prior to an election nor within four (4) months after the last publication of the
notice.

Sec. 4. Hearing. – Any interested person may appear at the hearing and oppose the petition.
The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the
Government of the Republic.

Sec. 5. Judgment. – Upon satisfactory proof in open court on the date fixed in the order that
such order has been published as directed and that the allegations of the petition are true,
the court shall, if proper and reasonable cause appears for changing the name of the
petitioner, adjudge that such name be changed in accordance with the prayer of the petition.

Sec. 6. Service of judgment. – Judgments or orders rendered in connection with this rule shall
be furnished the civil registrar of the municipality or city where the court issuing the same is
situated, who shall forthwith enter the same in the civil register.

Rule 108

CANCELLATION OR CORRECTION OF ENTRIES

IN THE CIVIL REGISTRY

Section 1. Who may file petition. – Any person interested in any act, event, order or decree
concerning the civil status of persons which has been recorded in the civil register, may file a
verified petition for the cancellation or correction of any entry relating thereto, with the
Regional Trial Court of the province where the corresponding civil registry is located.

Sec. 2. Entries subject to cancellation or correction. – Upon good and valid grounds, the
following entries in the civil register may be cancelled or corrected: (a) births; (b) marriages;
(c) deaths; (d) legal separations; (e) judgments of annulments of marriage; (f) judgments
declaring marriages void from the beginning; (g) legitimations; (h) adoptions; (i)
acknowledgments of natural children; (j) naturalization; (k) election, loss or recovery of
citizenship; (l) civil interdiction; (m) judicial determination of filiation; (n) voluntary
emancipation of a minor; and (o) changes of name.

Sec. 3. Parties. – When cancellation or correction of an entry in the civil register is sought, the
civil registrar and all persons who have or claim any interest which would be affected thereby
shall be made parties to the proceeding.

Sec. 4. Notice and publication. – Upon the filing of the petition, the court shall, by an order, fix
the time and place for the hearing of the same, and cause reasonable notice thereof to be
given to the persons named in the petition. The court shall also cause the order to be
published once a week for three (3) consecutive weeks in a newspaper of general circulation
in the province.

Sec. 5. Opposition. – The civil registrar and any person having or claiming any interest under
the entry whose cancellation or correction is sought may, within fifteen (15) days from notice
of the petition, or from the last date of publication of such notice, file his opposition thereto.

Sec. 6. Expediting proceedings. – The court in which the proceedings is brought may make
orders expediting the proceedings, and may also grant preliminary injunction for the
preservation of the rights of the parties pending such proceedings.

Sec. 7. Order. – After hearing, the court may either dismiss the petition or issue an order
granting the cancellation or correction prayed for. In either case, a certified copy of the
judgment shall be served upon the civil registrar concerned who shall annotate the same in
his record.

The OSG argues that the petition below is fatally defective for non-compliance with Rules 103
and 108 of the Rules of Court because respondent’s petition did not implead the local civil
registrar. Section 3, Rule 108 provides that the civil registrar and all persons who have or claim
any interest which would be affected thereby shall be made parties to the proceedings.
Likewise, the local civil registrar is required to be made a party in a proceeding for the
correction of name in the civil registry. He is an indispensable party without whom no final
determination of the case can be had.[12] Unless all possible indispensable parties were duly
notified of the proceedings, the same shall be considered as falling much too short of the
requirements of the rules.13 The corresponding petition should also implead as respondents
the civil registrar and all other persons who may have or may claim to have any interest that
would be affected thereby.14 Respondent, however, invokes Section 6,[15] Rule 1 of the Rules
of Court which states that courts shall construe the Rules liberally to promote their objectives
of securing to the parties a just, speedy and inexpensive disposition of the matters brought
before it. We agree that there is substantial compliance with Rule 108 when respondent
furnished a copy of the petition to the local civil registrar.

The determination of a person’s sex appearing in his birth certificate is a legal issue and the
court must look to the statutes. In this connection, Article 412 of the Civil Code provides:

ART. 412. No entry in a civil register shall be changed or corrected without a judicial order.

Together with Article 376[16] of the Civil Code, this provision was amended by Republic Act
No. 9048[17] in so far as clerical or typographical errors are involved. The correction or
change of such matters can now be made through administrative proceedings and without
the need for a judicial order. In effect, Rep. Act No. 9048 removed from the ambit of Rule 108
of the Rules of Court the correction of such errors. Rule 108 now applies only to substantial
changes and corrections in entries in the civil register.18

Under Rep. Act No. 9048, a correction in the civil registry involving the change of sex is not a
mere clerical or typographical error. It is a substantial change for which the applicable
procedure is Rule 108 of the Rules of Court.19

The entries envisaged in Article 412 of the Civil Code and correctable under Rule 108 of the
Rules of Court are those provided in Articles 407 and 408 of the Civil Code:

ART. 407. Acts, events and judicial decrees concerning the civil status of persons shall be
recorded in the civil register.

ART. 408. The following shall be entered in the civil register:

(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of marriage; (6)
judgments declaring marriages void from the beginning; (7) legitimations; (8) adoptions; (9)
acknowledgments of natural children; (10) naturalization; (11) loss, or (12) recovery of
citizenship; (13) civil interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.

The acts, events or factual errors contemplated under Article 407 of the Civil Code include
even those that occur after birth.20

Respondent undisputedly has CAH. This condition causes the early or "inappropriate"
appearance of male characteristics. A person, like respondent, with this condition produces
too much androgen, a male hormone. A newborn who has XX chromosomes coupled with
CAH usually has a (1) swollen clitoris with the urethral opening at the base, an ambiguous
genitalia often appearing more male than female; (2) normal internal structures of the female
reproductive tract such as the ovaries, uterus and fallopian tubes; as the child grows older,
some features start to appear male, such as deepening of the voice, facial hair, and failure to
menstruate at puberty. About 1 in 10,000 to 18,000 children are born with CAH.

CAH is one of many conditions[21] that involve intersex anatomy. During the twentieth
century, medicine adopted the term "intersexuality" to apply to human beings who cannot be
classified as either male or female.[22] The term is now of widespread use. According to
Wikipedia, intersexuality "is the state of a living thing of a gonochoristic species whose sex
chromosomes, genitalia, and/or secondary sex characteristics are determined to be neither
exclusively male nor female. An organism with intersex may have biological characteristics of
both male and female sexes."

Intersex individuals are treated in different ways by different cultures. In most societies,
intersex individuals have been expected to conform to either a male or female gender role.
[23] Since the rise of modern medical science in Western societies, some intersex people with
ambiguous external genitalia have had their genitalia surgically modified to resemble either
male or female genitals.[24] More commonly, an intersex individual is considered as suffering
from a "disorder" which is almost always recommended to be treated, whether by surgery
and/or by taking lifetime medication in order to mold the individual as neatly as possible into
the category of either male or female.

In deciding this case, we consider the compassionate calls for recognition of the various
degrees of intersex as variations which should not be subject to outright denial. "It has been
suggested that there is some middle ground between the sexes, a ‘no-man’s land’ for those
individuals who are neither truly ‘male’ nor truly ‘female’."[25] The current state of Philippine
statutes apparently compels that a person be classified either as a male or as a female, but
this Court is not controlled by mere appearances when nature itself fundamentally negates
such rigid classification.

In the instant case, if we determine respondent to be a female, then there is no basis for a
change in the birth certificate entry for gender. But if we determine, based on medical
testimony and scientific development showing the respondent to be other than female, then
a change in the

subject’s birth certificate entry is in order.

Biologically, nature endowed respondent with a mixed (neither consistently and categorically
female nor consistently and categorically male) composition. Respondent has female (XX)
chromosomes. However, respondent’s body system naturally produces high levels of male
hormones (androgen). As a result, respondent has ambiguous genitalia and the phenotypic
features of a male.

Ultimately, we are of the view that where the person is biologically or naturally intersex the
determining factor in his gender classification would be what the individual, like respondent,
having reached the age of majority, with good reason thinks of his/her sex. Respondent here
thinks of himself as a male and considering that his body produces high levels of male
hormones (androgen) there is preponderant biological support for considering him as being
male. Sexual development in cases of intersex persons makes the gender classification at birth
inconclusive. It is at maturity that the gender of such persons, like respondent, is fixed.

Respondent here has simply let nature take its course and has not taken unnatural steps to
arrest or interfere with what he was born with. And accordingly, he has already ordered his
life to that of a male. Respondent could have undergone treatment and taken steps, like
taking lifelong medication,[26] to force his body into the categorical mold of a female but he
did not. He chose not to do so. Nature has instead taken its due course in respondent’s
development to reveal more fully his male characteristics.

In the absence of a law on the matter, the Court will not dictate on respondent concerning a
matter so innately private as one’s sexuality and lifestyle preferences, much less on whether
or not to undergo medical treatment to reverse the male tendency due to CAH. The Court will
not consider respondent as having erred in not choosing to undergo treatment in order to
become or remain as a female. Neither will the Court force respondent to undergo treatment
and to take medication in order to fit the mold of a female, as society commonly currently
knows this gender of the human species. Respondent is the one who has to live with his
intersex anatomy. To him belongs the human right to the pursuit of happiness and of health.
Thus, to him should belong the primordial choice of what courses of action to take along the
path of his sexual development and maturation. In the absence of evidence that respondent is
an "incompetent"[27] and in the absence of evidence to show that classifying respondent as a
male will harm other members of society who are equally entitled to protection under the
law, the Court affirms as valid and justified the respondent’s position and his personal
judgment of being a male.

In so ruling we do no more than give respect to (1) the diversity of nature; and (2) how an
individual deals with what nature has handed out. In other words, we respect respondent’s
congenital condition and his mature decision to be a male. Life is already difficult for the
ordinary person. We cannot but respect how respondent deals with his unordinary state and
thus help make his life easier, considering the unique circumstances in this case.

As for respondent’s change of name under Rule 103, this Court has held that a change of
name is not a matter of right but of judicial discretion, to be exercised in the light of the
reasons adduced and the consequences that will follow.[28] The trial court’s grant of
respondent’s change of name from Jennifer to Jeff implies a change of a feminine name to a
masculine name. Considering the consequence that respondent’s change of name merely
recognizes his preferred gender, we find merit in respondent’s change of name. Such a change
will conform with the change of the entry in his birth certificate from female to male.

WHEREFORE, the Republic’s petition is DENIED. The Decision dated January 12, 2005 of the
Regional Trial Court, Branch 33 of Siniloan, Laguna, is AFFIRMED. No pronouncement as to
costs.

SO ORDERED.
G.R. No. 198780 October 16, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,

vs.
LIBERTY D. ALBIOS, Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules t of Court assailing the
September 29, 2011 Decision1 of the Court of Appeals (CA), in CA-G.R. CV No. 95414, which
affirmed the April 25, 2008Decision2 of the Regional Trial Court, Imus, Cavite (RTC). declaring the
marriage of Daniel Lee Fringer (Fringer) and respondent Liberty Albios (A/bios) as void from the
beginning.

The facts

On October 22, 2004, Fringer, an American citizen, and Albios were married before Judge Ofelia I.
Calo of the Metropolitan Trial Court, Branch59, Mandaluyong City (MeTC), as evidenced by a
Certificate of Marriage with Register No. 2004-1588.3

On December 6, 2006, Albios filed with the RTC a petition for declaration of nullity 4 of her marriage
with Fringer. She alleged that immediately after their marriage, they separated and never lived as
husband and wife because they never really had any intention of entering into a married state or
complying with any of their essential marital obligations. She described their marriage as one made
in jest and, therefore, null and void ab initio .

Summons was served on Fringer but he did not file his answer. On September 13, 2007, Albios filed
a motion to set case for pre-trial and to admit her pre-trial brief. The RTC ordered the Assistant
Provincial Prosecutor to conduct an investigation and determine the existence of a collusion. On
October 2, 2007, the Assistant Prosecutor complied and reported that she could not make a
determination for failure of both parties to appear at the scheduled investigation.

At the pre-trial, only Albios, her counsel and the prosecutor appeared. Fringer did not attend the
hearing despite being duly notified of the schedule. After the pre-trial, hearing on the merits ensued.

Ruling of the RTC

In its April 25, 2008 Decision,5 the RTC declared the marriage void ab initio, the dispositive portion of
which reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring the marriage of Liberty
Albios and Daniel Lee Fringer as void from the very beginning. As a necessary consequence of this
pronouncement, petitioner shall cease using the surname of respondent as she never acquired any
right over it and so as to avoid a misimpression that she remains the wife of respondent.

xxxx

SO ORDERED.6
The RTC was of the view that the parties married each other for convenience only. Giving credence
to the testimony of Albios, it stated that she contracted Fringer to enter into a marriage to enable her
to acquire American citizenship; that in consideration thereof, she agreed to pay him the sum of
$2,000.00; that after the ceremony, the parties went their separate ways; that Fringer returned to the
United States and never again communicated with her; and that, in turn, she did not pay him the
$2,000.00 because he never processed her petition for citizenship. The RTC, thus, ruled that when
marriage was entered into for a purpose other than the establishment of a conjugal and family life,
such was a farce and should not be recognized from its inception.

Petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), filed
a motion for reconsideration. The RTC issued the Order, 7 dated February 5, 2009, denying the
motion for want of merit. It explained that the marriage was declared void because the parties failed
to freely give their consent to the marriage as they had no intention to be legally bound by it and
used it only as a means to acquire American citizenship in consideration of $2,000.00.

Not in conformity, the OSG filed an appeal before the CA.

Ruling of the CA

In its assailed decision, dated September 29, 2011, the CA affirmed the RTC ruling which found that
the essential requisite of consent was lacking. The CA stated that the parties clearly did not
understand the nature and consequence of getting married and that their case was similar to a
marriage in jest. It further explained that the parties never intended to enter into the marriage
contract and never intended to live as husband and wife or build a family. It concluded that their
purpose was primarily for personal gain, that is, for Albios to obtain foreign citizenship, and for
Fringer, the consideration of $2,000.00.

Hence, this petition.

Assignment of Error

THE COURT OF APPEALS ERRED ON A QUESTION OF LAWWHEN IT HELD THAT A

MARRIAGE CONTRACTED FOR THEPURPOSE OF OBTAINING FOREIGN CITIZENSHIP WAS
DONEIN JEST, HENCE, LACKING IN THE ESSENTIAL ELEMENT OFCONSENT. 8

The OSG argues that albeit the intention was for Albios to acquire American citizenship and for
Fringer to be paid $2,000.00, both parties freely gave their consent to the marriage, as they
knowingly and willingly entered into that marriage and knew the benefits and consequences of being
bound by it. According to the OSG, consent should be distinguished from motive, the latter being
inconsequential to the validity of marriage.

The OSG also argues that the present case does not fall within the concept of a marriage in jest.
The parties here intentionally consented to enter into a real and valid marriage, for if it were
otherwise, the purpose of Albios to acquire American citizenship would be rendered futile.

On October 29, 2012, Albios filed her Comment9 to the petition, reiterating her stand that her
marriage was similar to a marriage by way of jest and, therefore, void from the beginning.

On March 22, 2013, the OSG filed its Reply10 reiterating its arguments in its petition for review on
certiorari.
 Ruling of the Court

The resolution of this case hinges on this sole question of law: Is a marriage, contracted for the sole
purpose of acquiring American citizenship in consideration of $2,000.00, void ab initio on the ground
of lack of consent?

The Court resolves in the negative.

Before the Court delves into its ruling, It shall first examine the phenomenon of marriage fraud for
the purposes of immigration.

Marriage Fraud in Immigration

The institution of marriage carries with it concomitant benefits. This has led to the development of
marriage fraud for the sole purpose of availing of particular benefits. In the United States, marriages
where a couple marries only to achieve a particular purpose or acquire specific benefits, have been
referred to as "limited purpose" marriages.11 A common limited purpose marriage is one entered into
solely for the legitimization of a child.12 Another, which is the subject of the present case, is for
immigration purposes. Immigration law is usually concerned with the intention of the couple at the
time of their marriage,13 and it attempts to filter out those who use marriage solely to achieve
immigration status.14

In 1975, the seminal case of Bark v. Immigration and Naturalization Service, 15 established the
principal test for determining the presence of marriage fraud in immigration cases. It ruled that a
"marriage is a sham if the bride and groom did not intend to establish a life together at the time they
were married. "This standard was modified with the passage of the Immigration Marriage Fraud
Amendment of 1986 (IMFA), which now requires the couple to instead demonstrate that the
marriage was not "entered into for the purpose of evading the immigration laws of the United
States." The focus, thus, shifted from determining the intention to establish a life together, to
determining the intention of evading immigration laws.16 It must be noted, however, that this standard
is used purely for immigration purposes and, therefore, does not purport to rule on the legal validity
or existence of a marriage.

The question that then arises is whether a marriage declared as a sham or fraudulent for the limited
purpose of immigration is also legally void and in existent. The early cases on limited purpose
marriages in the United States made no definitive ruling. In 1946, the notable case of

United States v. Rubenstein17 was promulgated, wherein in order to allow an alien to stay in the
country, the parties had agreed to marry but not to live together and to obtain a divorce within six
months. The Court, through Judge Learned Hand, ruled that a marriage to convert temporary into
permanent permission to stay in the country was not a marriage, there being no consent, to wit:

x x x But, that aside, Spitz and Sandler were never married at all. Mutual consent is necessary to
every contract; and no matter what forms or ceremonies the parties may go through indicating the
contrary, they do not contract if they do not in fact assent, which may always be proved. x x x
Marriage is no exception to this rule: a marriage in jest is not a marriage at all. x x x It is quite true
that a marriage without subsequent consummation will be valid; but if the spouses agree to a
marriage only for the sake of representing it as such to the outside world and with the understanding
that they will put an end to it as soon as it has served its purpose to deceive, they have never really
agreed to be married at all. They must assent to enter into the relation as it is ordinarily understood,
and it is not ordinarily understood as merely a pretence, or cover, to deceive others. 18
(Italics supplied)

On the other end of the spectrum is the 1969 case of Mpiliris v. Hellenic Lines, 19 which declared as
valid a marriage entered into solely for the husband to gain entry to the United States, stating that a
valid marriage could not be avoided "merely because the marriage was entered into for a limited
purpose."20 The 1980 immigration case of Matter of McKee,21 further recognized that a fraudulent or
sham marriage was intrinsically different from a non subsisting one.

Nullifying these limited purpose marriages for lack of consent has, therefore, been recognized as
problematic. The problem being that in order to obtain an immigration benefit, a legal marriage is first
necessary.22 At present, United States courts have generally denied annulments involving" limited
purpose" marriages where a couple married only to achieve a particular purpose, and have upheld
such marriages as valid.23

The Court now turns to the case at hand.

Respondent’s marriage not void

In declaring the respondent’s marriage void, the RTC ruled that when a marriage was entered into
for a purpose other than the establishment of a conjugal and family life, such was a farce and should
not be recognized from its inception. In its resolution denying the OSG’s motion for reconsideration,
the RTC went on to explain that the marriage was declared void because the parties failed to freely
give their consent to the marriage as they had no intention to be legally bound by it and used it only
as a means for the respondent to acquire American citizenship. Agreeing with the RTC, the CA ruled
that the essential requisite of consent was lacking. It held that the parties clearly did not understand
the nature and consequence of getting married. As in the Rubenstein case, the CA found the
marriage to be similar to a marriage in jest considering that the parties only entered into the marriage
for the acquisition of American citizenship in exchange of $2,000.00. They never intended to enter
into a marriage contract and never intended to live as husband and wife or build a family.

The CA’s assailed decision was, therefore, grounded on the parties’ supposed lack of consent.
Under Article 2 of the Family Code, consent is an essential requisite of marriage. Article 4 of the
same Code provides that the absence of any essential requisite shall render a marriage void ab
initio.

Under said Article 2, for consent to be valid, it must be (1) freely given and (2) made in the presence
of a solemnizing officer. A "freely given" consent requires that the contracting parties willingly and
deliberately enter into the marriage. Consent must be real in the sense that it is not vitiated nor
rendered defective by any of the vices of consent under Articles45 and 46 of the Family Code, such
as fraud, force, intimidation, and undue influence.24 Consent must also be conscious or intelligent, in
that the parties must be capable of intelligently understanding the nature of, and both the beneficial
or unfavorable consequences of their act.25 Their understanding should not be affected by insanity,
intoxication, drugs, or hypnotism.26

Based on the above, consent was not lacking between Albios and Fringer. In fact, there was real
consent because it was not vitiated nor rendered defective by any vice of consent. Their consent
was also conscious and intelligent as they understood the nature and the beneficial and
inconvenient consequences of their marriage, as nothing impaired their ability to do so. That their
consent was freely given is best evidenced by their conscious purpose of acquiring American
citizenship through marriage. Such plainly demonstrates that they willingly and deliberately
contracted the marriage. There was a clear intention to enter into a real and valid marriage so as to
fully comply with the requirements of an application for citizenship. There was a full and complete
understanding of the legal tie that would be created between them, since it was that precise legal tie
which was necessary to accomplish their goal.

In ruling that Albios’ marriage was void for lack of consent, the CA characterized such as akin to a
marriage by way of jest. A marriage in jest is a pretended marriage, legal in form but entered into as
a joke, with no real intention of entering into the actual marriage status, and with a clear
understanding that the parties would not be bound. The ceremony is not followed by any conduct
indicating a purpose to enter into such a relation.27 It is a pretended marriage not intended to be real
and with no intention to create any legal ties whatsoever, hence, the absence of any genuine
consent. Marriages in jest are void ab initio, not for vitiated, defective, or unintelligent consent, but
for a complete absence of consent. There is no genuine consent because the parties have
absolutely no intention of being bound in any way or for any purpose.

The respondent’s marriage is not at all analogous to a marriage in jest. Albios and Fringer had an
1âwphi1

undeniable intention to be bound in order to create the very bond necessary to allow the respondent
to acquire American citizenship. Only a genuine consent to be married would allow them to further
their objective, considering that only a valid marriage can properly support an application for
citizenship. There was, thus, an apparent intention to enter into the actual marriage status and to
create a legal tie, albeit for a limited purpose. Genuine consent was, therefore, clearly present.

The avowed purpose of marriage under Article 1 of the Family Code is for the couple to establish a
conjugal and family life. The possibility that the parties in a marriage might have no real intention to
establish a life together is, however, insufficient to nullify a marriage freely entered into in
accordance with law. The same Article 1 provides that the nature, consequences, and incidents of
marriage are governed by law and not subject to stipulation. A marriage may, thus, only be declared
void or voidable under the grounds provided by law. There is no law that declares a marriage void if
it is entered into for purposes other than what the Constitution or law declares, such as the
acquisition of foreign citizenship. Therefore, so long as all the essential and formal requisites
prescribed by law are present, and it is not void or voidable under the grounds provided by law, it
shall be declared valid.28

Motives for entering into a marriage are varied and complex. The State does not and cannot dictate
on the kind of life that a couple chooses to lead. Any attempt to regulate their lifestyle would go into
the realm of their right to privacy and would raise serious constitutional questions. 29 The right to
marital privacy allows married couples to structure their marriages in almost any way they see fit, to
live together or live apart, to have children or no children, to love one another or not, and so
on.30 Thus, marriages entered into for other purposes, limited or otherwise, such as convenience,
companionship, money, status, and title, provided that they comply with all the legal requisites, 31 are
equally valid. Love, though the ideal consideration in a marriage contract, is not the only valid cause
for marriage. Other considerations, not precluded by law, may validly support a marriage.

Although the Court views with disdain the respondent’s attempt to utilize marriage for dishonest
purposes, It cannot declare the marriage void. Hence, though the respondent’s marriage may be
considered a sham or fraudulent for the purposes of immigration, it is not void ab initio and continues
to be valid and subsisting.

Neither can their marriage be considered voidable on the ground of fraud under Article 45 (3) of the
Family Code. Only the circumstances listed under Article 46 of the same Code may constitute fraud,
namely, (1) non- disclosure of a previous conv1ctwn involving moral turpitude; (2) concealment by
the wife of a pregnancy by another man; (3) concealment of a sexually transmitted disease; and (4)
concealment of drug addiction, alcoholism, or homosexuality. No other misrepresentation or deceit
shall constitute fraud as a ground for an action to annul a marriage. Entering into a marriage for the
sole purpose of evading immigration laws does not qualify under any of the listed circumstances.
Furthermore, under Article 47 (3), the ground of fraud may only be brought by the injured or innocent
party. In the present case, there is no injured party because Albios and Fringer both conspired to
enter into the sham marriage.

Albios has indeed made a mockery of the sacred institution of marriage. Allowing her marriage with
Fringer to be declared void would only further trivialize this inviolable institution. The Court cannot
declare such a marriage void in the event the parties fail to qualify for immigration benefits, after they
have availed of its benefits, or simply have no further use for it. These unscrupulous individuals
cannot be allowed to use the courts as instruments in their fraudulent schemes. Albios already
misused a judicial institution to enter into a marriage of convenience; she should not be allowed to
again abuse it to get herself out of an inconvenient situation.

No less than our Constitution declares that marriage, as an in violable social institution, is the
foundation of the family and shall be protected by the State. 32 It must, therefore, be safeguarded from
the whims and caprices of the contracting parties. This Court cannot leave the impression that
marriage may easily be entered into when it suits the needs of the parties, and just as easily nullified
when no longer needed.

WHEREFORE, the petition is GRANTED. The September 29, 2011 Decision of the Court of Appeals
in CA-G.R. CV No. 95414 is ANNULLED, and Civil Case No. 1134-06 is DISMISSED for utter lack of
merit.

SO ORDERED.