Sie sind auf Seite 1von 1


L-34132, July 29, 1972

FACTS: Petitioner Lucy Somosa- Ramos, filed an action for legal separation based on the ground of concubinage on the part of respondent Clemen Ramos. She also sought for the issuance of a writ of preliminary mandatory injunction for the return to her of her paraphernal and exclusive property. The hearing on the motion was opposed by respondent Ramos alleging that if the motion for preliminary injunction were heard, the prospect of reconciliation of the spouses would become even more dim. Respondent judge Vamonte thereafter granted the motion of respondent Ramos to suspend the hearing of the petition for a writ of mandatory preliminary injunction. Hence, this petition for certiorari.

ISSUE: Whether or not Article 103 of the Civil Code prohibiting the hearing of an action for legal separation before the lapse of six months from the filing of the petition, would likewise preclude the court from acting on a motion for preliminary mandatory injunction applied for as an ancillary remedy to such a suit

HELD: NO. The court where the action is pending according to Article 103 is to remain passive. It must let the parties alone in the meanwhile. It is precluded from hearing the suit. There is then some plausibility for the view of the lower court that an ancillary motion such as one for preliminary mandatory injunction is not to be acted on. If it were otherwise, there would be a failure to abide by the literal language of such codal provision. . That the law, however, remains cognizant of the need in certain cases for judicial power to assert itself is discernible from what is set forth in the following article. It reads thus: "After the filing of the petition for legal separation, the spouse shall be entitled to live separately from each other and manage their respective property. The husband shall continue to manage the conjugal partnership property but if the court deems it proper, it may appoint another to manage said property, in which case the administrator shall have the same rights and duties as a guardian and shall not be allowed to dispose of 2 the income or of the capital except in accordance with the orders of the court." There would appear to be then a recognition that the question of management of their respective property need not be left unresolved even during such six-month period. An administrator may even be appointed for the management of the property of the conjugal partnership. The absolute limitation from which the court suffers under the preceding article is thereby eased. The parties may in the meanwhile be heard. There is justification then for the petitioner's insistence that her motion for preliminary mandatory injunction should not be ignored by the lower court. There is all the more reason for this response from respondent Judge, considering that the husband whom she accused of concubinage and an attempt against her life would in the meanwhile continue in the management of what she claimed to be her paraphernal property, an assertion that was not specifically denied by him.