Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-23482

August 30, 1968

ALFONSO LACSON, petitioner,

vs.
CARMEN SAN JOSE-LACSON and THE COURT OF APPEALS, respondents.
----------------------------G.R. No. L-23767

August 30, 1968

CARMEN SAN JOSE-LACSON, plaintiff-appellant,

vs.
ALFONSO LACSON, defendant-appellee.
----------------------------G.R. No. L-24259

August 30, 1968

ALFONSO LACSON, petitioner-appellee,

vs.
CARMEN SAN JOSE-LACSON, petitioner-appellant.
Paredes, Poblador, Cruz and Nazareno for respondent-appellant Carmen San Jose-Lacson.
Norberto Quisumbing for petitioner-appellee Alfonso Lacson.
CASTRO, J.:
These three cases (G.R. L-23482, L-23767 and L-24259) involving the same parties pose a common
fundamental issue the resolution of which will necessarily and inescapably resolve all the other
issues. Thus their joinder in this decision.
The antecedent facts are not disputed.
Alfonso Lacson (hereinafter referred to as the petitioner spouse) and Carmen San Jose-Lacson
(hereinafter referred to as the respondent spouse) were married on February 14, 1953. To them
were born four children, all alive.
On January 9, 1963 the respondent spouse left the conjugal home in Santa Clara Subdivision,
Bacolod City, and commenced to reside in Manila. She filed on March 12, 1963 a complaint
docketed as civil case E-00030 in the Juvenile and Domestic Relations Court of Manila (hereinafter
referred to as the JDRC) for custody of all their children as well as support for them and herself.

However, the spouses, thru the assistance of their respective attorneys, succeeded in reaching an
amicable settlement respecting custody of the children, support, and separation of property. On April
27, 1963 they filed a joint petition dated April 21, 1963, docketed as special proceeding 6978 of the
Court of First Instance of Negros Occidental (hereinafter referred to as the CFI).
The important and pertinent portions of the petition, embodying their amicable settlement, read as
follows:
3. Petitioners have separated last January 9, 1963 when petitioner Carmen San JoseLacson left their conjugal home at the Santa Clara Subdivision, Bacolod City, did not return,
and decided to reside in Manila.
4. Petitioners have mutually agreed upon the dissolution of their conjugal partnership subject
to judicial approval as required by Article 191 of the Civil Code of the Philippines the
particular terms and conditions of their mutual agreement being as follows:
(a) There will be separation of property petitioner Carmen San Jose-Lacson
hereby waiving any and all claims for a share in property that may be held by
petitioner Alfonso Lacson since they have acquired no property of any consequence.
(b) Hereafter, each of them shall own, dispose of, possess, administer and enjoy
such separate estate as they may acquire without the consent of the other and all
earnings from any profession, business or industry as may be derived by each
petitioner shall belong to that petitioner exclusively.
(c) The custody of the two elder children named Enrique and Maria Teresa shall be
awarded to petitioner Alfonso Lacson and the custody of the younger children named
Gerrard and Ramon shall be awarded to petitioner Carmen San Jose-Lacson.
(d) Petitioner Alfonso Lacson shall pay petitioner Carmen San Jose-Lacson a
monthly allowance of P300.00 for the support of the children in her custody.
(e) Each petitioner shall have reciprocal rights of visitation of the children in the
custody of the other at their respective residences and, during the summer months,
the two children in the custody of each petitioner shall be given to the other except
that, for this year's summer months, all four children shall be delivered to and remain
with petitioner Carmen San Jose-Lacson until June 15, 1963 on which date, she
shall return the two elder children Enrique and Maria Teresa to petitioner Alfonso
Lacson this judgment of course being subject to enforcement by execution writ
and contempt.
5. Petitioners have no creditors.
WHEREFORE, they respectfully pray that notice of this petition be given to creditors and
third parties pursuant to Article 191 of the Civil Code of the Philippines and thereafter that the
Court enter its judicial approval of the foregoing agreement for the dissolution of their
conjugal partnership and for separation of property, except that the Court shall immediately
approve the terms set out in paragraph 4 above and embody the same in a judgment
immediately binding on the parties hereto to the end that any non-compliance or violation of
its terms by one party shall entitle the other to enforcement by execution writ and contempt
even though the proceedings as to creditors have not been terminated.".

Finding the foregoing joint petition to be "conformable to law," the CFI (Judge Jose F. Fernandez,
presiding) issued an order on April 27, 1963, rendering judgment (hereinafter referred to as the
compromise judgment) approving and incorporating in toto their compromise agreement. In
compliance with paragraph 4 (e) of their mutual agreement (par. 3[e] of the compromise judgment),
the petitioner spouse delivered all the four children to the respondent spouse and remitted money for
their support.
On May 7, 1963 the respondent spouse filed in the JDRC a motion wherein she alleged that she
"entered into and signed the ... Joint Petition as the only means by which she could have immediate
custody of the ... minor children who are all below the age of 7," and thereafter prayed that she "be
considered relieved of the ... agreement pertaining to the custody and visitation of her minor children
... and that since all the children are now in her custody, the said custody in her favor be
confirmed pendente lite." On May 24, 1963 the petitioner spouse opposed the said motion and
moved to dismiss the complaint based, among other things, on the grounds of res judicata and lis
pendens. The JDRC on May 28, 1963, issued an order which sustained the petitioner spouse's plea
of bar by prior judgment and lis pendens, and dismissed the case. After the denial of her motion for
reconsideration, the respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No.
32608-R) wherein she raised, among others, the issue of validity or legality of the compromise
agreement in connection only with the custody of their minor children. On October 14, 1964 the
Court of Appeals certified the said appeal to the Supreme Court (G.R. No. L-23767), since "no
hearing on the facts was ever held in the court below no evidence, testimonial or documentary,
presented only a question of law pends resolution in the appeal." .
The respondent spouse likewise filed a motion dated May 15, 1963 for reconsideration of the
compromise judgment dated April 27, 1963 rendered in special proceeding 6978 of the CFI, wherein
she also alleged, among others, that she entered into the joint petition as the only means by which
she could have immediate custody of her minor children, and thereafter prayed the CFI to reconsider
its judgment pertaining to the custody and visitation of her minor children and to relieve her from the
said agreement. The petitioner spouse opposed the said motion and, on June 1, 1963, filed a motion
for execution of the compromise judgment and a charge for contempt. The CFI (Judge Jose R.
Querubin, presiding), in its order dated June 22, 1963, denied the respondent spouse's motion for
reconsideration, granted the petitioner spouse's motion for execution, and ordered that upon "failure
on the part of Carmen San Jose-Lacson to deliver the said children [i.e., to return the two older
children Enrique and Maria Teresa in accordance with her agreement with Alfonso Lacson] to the
special sheriff on or before June 29, 1963, she may be held for contempt pursuant to the provisions
of Rule 39 sections 9 and 10, and Rule 64 section 7 of the (old) Rules of Court." From the aforesaid
compromise judgment dated April 27, 1963 and execution order dated June 22, 1963, the
respondent spouse interposed an appeal to the Court of Appeals (CA-G.R. No. 32798-R) wherein
she likewise questioned the validity or legality of her agreement with the petitioner spouse respecting
custody of their children. On February 11, 1965 the Court of Appeals also certified the said appeal to
the Supreme Court (G.R. No. L-24259), since "no evidence of any kind was introduced before the
trial court and ... appellant did not specifically ask to be allowed to present evidence on her behalf." .
The respondent spouse also instituted certiorari proceedings before the Court of Appeals (CA-G.R.
No. 32384R), now the subject of an appeal by certiorari to this Court (G.R. No. L-23482). In her
petition for certiorari dated June 27, 1963, she averred that the CFI (thru Judge Querubin) committed
grave abuse of discretion and acted in excess of jurisdiction in ordering the immediate execution of
the compromise judgment in its order of June 22, 1963, thus in effect depriving her of the right to
appeal. She prayed for (1) the issuance of a writ of preliminary injunction enjoining the respondents
therein and any person acting under them from enforcing, by contempt proceedings and other
means, the writ of execution issued pursuant to the order of the respondent Judge Querubin dated
June 22, 1963 in special proceeding 6978 of the CFI, (2) the setting aside, after hearing, of the
compromise judgment dated April 27, 1963 and the order dated June 22, 1963, and (3) the awarding

of the custody of Enrique and Maria Teresa to her, their mother. As prayed for, the Court of Appeals
issued ex parte a writ of preliminary injunction enjoining the enforcement of the order dated June 22,
1963 for execution of the compromise judgment rendered in special proceeding 6978. The petitioner
spouse filed an urgent motion dated July 5, 1963 for the dissolution of the writ of preliminary
injunction ex parte which urgent motion was denied by the Court of Appeals in its resolution dated
July 9, 1963. The petitioner spouse likewise filed his answer. After hearing, the Court of Appeals on
May 11, 1964 promulgated in said certiorari case (CA-G.R. No. 32384-R) its decision granting the
petition for certiorari and declaring null and void both (a) the compromise judgment dated April 27,
1963 in so far as it relates to the custody and right of visitation over the two children, Enrique and
Teresa, and (b) the order dated June 22, 1963 for execution of said judgment. The petitioner spouse
moved to reconsider, but his motion for reconsideration was denied by the Court of Appeals in its
resolution dated July 31, 1964. From the decision dated May 11, 1964 and the resolution dated July
31, 1964, the petitioner spouse interposed an appeal to this Court, as abovestated, and assigned the
following errors:
(1) The Court of Appeals erred in annulling thru certiorari the lower court's order of execution
of the compromise judgment.
(2) The Court of Appeals erred in resolving in the certiorari case the issue of the legality of
the compromise judgment which is involved in two appeals, instead of the issue of grave
abuse of discretion in ordering its execution.
(3) The Court of Appeals erred in ruling that the compromise agreement upon which the
judgment is based violates article 363 of the Civil Code.
1wph1.t

As heretofore adverted, the aforecited three appeals converge on one focal issue: whether the
compromise agreement entered into by the parties and the judgment of the CFI grounded on the
said agreement, are conformable to law.
We hold that the compromise agreement and the judgment of the CFI grounded on the said
agreement are valid with respect to the separation of property of the spouses and the dissolution of
the conjugal partnership.
The law allows separation of property of the spouses and the dissolution of their conjugal
partnership provided judicial sanction is secured beforehand. Thus the new Civil Code provides:
In the absence of an express declaration in the marriage settlements, the separation of
property between spouses during the marriage shall not take place save in virtue of a judicial
order. (Art. 190, emphasis supplied)
The husband and the wife may agree upon the dissolution of the conjugal partnership during
the marriage, subject to judicial approval. All the creditors of the husband and of the wife, as
well as of the conjugal partnership, shall be notified of any petition for judicial approval of the
voluntary dissolution of the conjugal partnership, so that any such creditors may appear at
the hearing to safeguard his interests. Upon approval of the petition for dissolution of the
conjugal partnership, the court shall take such measures as may protect the creditors and
other third persons. (Art. 191, par. 4, emphasis supplied).
In the case at bar, the spouses obtained judicial imprimatur of their separation of property and the
dissolution of their conjugal partnership. It does not appeal that they have creditors who will be
prejudiced by the said arrangements.

It is likewise undisputed that the couple have been separated in fact for at least five years - the wife's
residence being in Manila, and the husband's in the conjugal home in Bacolod City. Therefore,
inasmuch as a lengthy separation has supervened between them, the propriety of severing their
financial and proprietary interests is manifest.
Besides, this Court cannot constrain the spouses to live together, as
[I]t is not within the province of the courts of this country to attempt to compel one of the
spouses to cohabit with, and render conjugal rights to, the other. .. At best such an order can
be effective for no other purpose than to compel the spouse to live under the same roof; and
the experience of those countries where the courts of justice have assumed to compel the
cohabitation of married couple shows that the policy of the practice is extremely
questionable. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60).
However, in so approving the regime of separation of property of the spouses and the dissolution of
their conjugal partnership, this Court does not thereby accord recognition to nor legalize the de facto
separation of the spouses, which again in the language of Arroyo v. Vasquez de Arroyo, supra is
a "state which is abnormal and fraught with grave danger to all concerned." We would like to douse
the momentary seething emotions of couples who, at the slightest ruffling of domestic tranquility
brought about by "mere austerity of temper, petulance of manners, rudeness of language, a want of
civil attention and accommodation, even occasional sallies of passion" without more would be
minded to separate from each other. In this jurisdiction, the husband and the wife are obliged to live
together, observe mutual respect and fidelity, and render mutual help and support (art. 109, new Civil
Code). There is, therefore, virtue in making it as difficult as possible for married couples impelled
by no better cause than their whims and caprices to abandon each other's company.
'... For though in particular cases the repugnance of the law to dissolve the obligations of
matrimonial cohabitation may operate with great severity upon individuals, yet it must be
carefully remembered that the general happiness of the married life is secured by its
indissolubility. When people understand that they must live together, except for a very few
reasons known to the law, they learn to soften by mutual accommodation that yoke which
they know they cannot shake off; they become good husbands and good wives from the
necessity of remaining husbands and wives; for necessity is a powerful master in teaching
the duties which it imposes ..." (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466,
467.) (Arroyo vs. Vasquez de Arroyo, Id., pp. 58-59).
We now come to the question of the custody and support of the children.
It is not disputed that it was the JDRC which first acquired jurisdiction over the matter of custody and
support of the children. The complaint docketed as civil case E-00030 in the JDRC was filed by the
respondent spouse on March 12, 1963, whereas the joint petition of the parties docketed as special
proceeding 6978 in the CFI was filed on April 27, 1963. However, when the respondent spouse
signed the joint petition on the same matter of custody and support of the children and filed the same
with the CFI of Negros Occidental, she in effect abandoned her action in the JDRC. The petitioner
spouse who could have raised the issue of lis pendens in abatement of the case filed in the CFI,
but did not do so - had the right, therefore, to cite the decision of the CFI and to ask for the dismissal
of the action filed by the respondent spouse in the JDRC, on the grounds of res judicata and lis
pendens. And the JDRC acted correctly and justifiably in dismissing the case for custody and
support of the children based on those grounds. For it is no defense against the dismissal of the
action that the case before the CFI was filed later than the action before the JDRC, considering:.

... [T]hat the Rules do not require as a ground for dismissal of a complaint that there is a prior
pending action. They provide only that there is a pending action, not a pending prior action. 1
We agree with the Court of Appeals, however, that the CFI erred in depriving the mother, the
respondent spouse, of the custody of the two older children (both then below the age of 7).
The Civil Code specifically commands in the second sentence of its article 363 that "No mother shall
be separated from her child under seven years of age, unless the court finds compelling reasons for
such measure." The rationale of this new provision was explained by the Code Commission thus:
The general rule is recommended in order to avoid many a tragedy where a mother has
seen her baby torn away from her. No man can sound the deep sorrows of a mother who is
deprived of her child of tender age. The exception allowed by the rule has to be for
"compelling reasons" for the good of the child: those cases must indeed be rare, if the
mother's heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty
of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for
her. Moreover, her moral dereliction will not have any effect upon the baby who is as yet
unable to understand the situation." (Report of the Code Commission, p. 12).
The use of the word shall2 in article 363 of the Civil Code, coupled with the observations made by the
Code Commission in respect to the said legal provision, underscores its mandatory character. It
prohibits in no uncertain: terms the separation of a mother and her child below seven years, unless
such separation is grounded upon compelling reasons as determined by a court.
The order dated April 27, 1963 of the CFI, in so far as it awarded custody of the two older children
who were 6 and 5 years old, respectively, to the father, in effect sought to separate them from their
mother. To that extent therefore, it was null and void because clearly violative of article 363 of the
Civil Code.
Neither does the said award of custody fall within the exception because the record is bereft of
any compelling reason to support the lower court's order depriving the wife of her minor children's
company. True, the CFI stated in its order dated June 22, 1963, denying the respondent spouse's
motion for reconsideration of its order dated April 27, 1963, that .
... If the parties have agreed to file a joint petition, it was because they wanted to avoid the
exposure of the bitter truths which serve as succulent morsel for scandal mongers and idle
gossipers and to save their children from embarrassment and inferiority complex which may
inevitably stain their lives. ..
If the parties agreed to submit the matter of custody of the minor children to the Court for
incorporation in the final judgment, they purposely suppressed the "compelling reasons for such
measure" from appearing in the public records. This is for the sake and for the welfare of the minor
children.".
But the foregoing statement is at best a mere hint that there were compelling reasons. The lower
court's order is eloquently silent on what these compelling reasons are. Needless to state, courts
cannot proceed on mere insinuations; they must be confronted with facts before they can properly
adjudicate.
It might be argued and correctly that since five years have elapsed since the filing of these
cases in 1963, the ages of the four children should now be as follows: Enrique 11, Maria Teresa

 10, Gerrard 9, and Ramon 5. Therefore, the issue regarding the award of the custody of
Enrique and Maria Teresa to the petitioner spouse has become moot and academic. The passage of
time has removed the prop which supports the respondent spouse's position.
Nonetheless, this Court is loath to uphold the couple's agreement regarding the custody of the
children.
1wph1.t

Article 356 of the new Civil Code provides:

Every child:
(1) Is entitled to parental care;
(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the parents or guardian;
(4) Has a right to live in an atmosphere conducive to his physical, moral and
intellectual development.
It is clear that the abovequoted legal provision grants to every child rights which are not and should
not be dependent solely on the wishes, much less the whims and caprices, of his parents. His
welfare should not be subject to the parents' say-so or mutual agreement alone. Where, as in this
case, the parents are already separated in fact, the courts must step in to determine in whose
custody the child can better be assured the right granted to him by law. The need, therefore, to
present evidence regarding this matter, becomes imperative. A careful scrutiny of the records reveals
that no such evidence was introduced in the CFI. This latter court relied merely on the mutual
agreement of the spouses-parents. To be sure, this was not a sufficient basis to determine the
fitness of each parent to be the custodian of the children.
Besides, at least one of the children Enrique, the eldest is now eleven years of age and should
be given the choice of the parent he wishes to live with. This is the clear mandate of sec. 6, Rule 99
of the Rules of Court which, states, inter alia:
... When husband and wife are divorced or living separately and apart from each other, and
the question as to the care, custody, and control of a child or children of their marriage is
brought before a Court of First Instance by petition or as an incident to any other proceeding,
the court, upon hearing testimony as may be pertinent, shall award the care, custody and
control of each such child as will be for its best interestpermitting the child to choose which
parent it prefers to live with if it be over ten years of age, unless the parent so chosen be
unfit to take charge of the child by reason of moral depravity, habitual drunkenness,
incapacity, or poverty... (Emphasis supplied).
One last point regarding the matter of support for the children assuming that the custody of any or
more of the children will be finally awarded to the mother. Although the spouses have agreed upon
the monthly support of P150 to be given by the petitioner spouse for each child, still this Court must
speak out its mind on the insufficiency of this amount. We, take judicial notice of the devaluation of
the peso in 1962 and the steady skyrocketing of prices of all commodities, goods, and services, not
to mention the fact that all the children are already of school age. We believe, therefore, that the CFI
may increase this amount of P150 according to the needs of each child.

With the view that we take of this case, we find it unnecessary to pass upon the other errors
assigned in the three appeals.
ACCORDINGLY, the decision dated May 11, 1964 and the resolution dated July 31, 1964 of the
Court of Appeals in CA-G.R. 32384-R (subject matter of G.R. L-23482), and the orders dated May
28, 1963 and June 24, 1963 of the Juvenile and Domestic Relations Court (subject matter of G.R. L23767) are affirmed. G.R. L-24259 is hereby remanded to the Court of First Instance of Negros
Occidental for further proceedings, in accordance with this decision. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Angeles, JJ., concur.
Sanchez and Fernando, JJ., took no part.
Footnotes
1

Teodoro vs. Mirasol, 99 Phil. 150, 153.

"In common or ordinary parlance and in its ordinary significance the term "shall" is a word of
command, and one which has always or which must be given a compulsory meaning, and it
is generally imperative or mandatory. It has the invariable significance of operating to impose
a duty which may be enforced, particularly if public policy is in favor of this meaning or when
public interest is involved, or where the public or persons have rights which ought to be
exercised or enforced, unless a contrary intent appears. People v. O'Rourke, 13 P. 2d. 989,
992, 124 Cal. App. 752, (30 Words, and Phrases, Permanent Ed., p. 90).
2

"The presumption is that the word "shall" in a statute is used in an imperative, and
not in a directory, sense. If a different interpretation is sought, it must rest upon
something in the character of the legislation or in the context which will justify a
different meaning. Haythron v. Van Keuren & Sons, 74 A 502, 504, 79 N.J.L. 101;
Board of Finance of School City of Aurora v. People's Nat. Bank of Lawrenceburg, 89
N.E. 904, 905, 44 Ind. App. 578. (39 Words and Phrases, Permanent Ed. P. 93.)"
Diokno v. Rehabilitation Finance Corporation, G.R. No. L-4712, July 11, 1952, 91
Phil. 608) (emphasis supplied).

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-19671

November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant,

vs.
VICENTA F. ESCAO, ET AL., defendants-appellees.
I. V. Binamira & F. B. Barria for plaintiff-appellant.
Jalandoni & Jarnir for defendants-appellees.
REYES, J.B.L., J.:

Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of
Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez,
for legal separation and one million pesos in damages against his wife and parents-in-law, the
defendants-appellees, Vicente, Mamerto and Mena,1 all surnamed "Escao," respectively.2
The facts, supported by the evidence of record, are the following:
Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City,
where she was then enrolled as a second year student of commerce, Vicenta Escao, 27 years of
age (scion of a well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered
colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army
officer and of undistinguished stock, without the knowledge of her parents, before a Catholic
chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said city. The marriage was the
culmination of a previous love affair and was duly registered with the local civil register.
Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply
in love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out
their marital future whereby Pacita would be the governess of their first-born; they started saving
money in a piggy bank. A few weeks before their secret marriage, their engagement was broken;
Vicenta returned the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor
beckoned; she pleaded for his return, and they reconciled. This time they planned to get married and
then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the room of
Pacita Noel in St. Mary's Hall, which was their usual trysting place.
Although planned for the midnight following their marriage, the elopement did not, however,
materialize because when Vicente went back to her classes after the marriage, her mother, who got
wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken home
where she admitted that she had already married Pastor. Mamerto and Mena Escao were
surprised, because Pastor never asked for the hand of Vicente, and were disgusted because of the
great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following
morning, the Escao spouses sought priestly advice. Father Reynes suggested a recelebration to
validate what he believed to be an invalid marriage, from the standpoint of the Church, due to the
lack of authority from the Archbishop or the parish priest for the officiating chaplain to celebrate the
marriage. The recelebration did not take place, because on 26 February 1948 Mamerto Escao was
handed by a maid, whose name he claims he does not remember, a letter purportedly coming from
San Carlos college students and disclosing an amorous relationship between Pastor Tenchavez and
Pacita Noel; Vicenta translated the letter to her father, and thereafter would not agree to a new
marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta
continued living with her parents while Pastor returned to his job in Manila. Her letter of 22 March
1948 (Exh. "M"), while still solicitous of her husband's welfare, was not as endearing as her previous
letters when their love was aflame.
Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly
accepted her being called a "jellyfish." She was not prevented by her parents from communicating
with Pastor (Exh. "1-Escao"), but her letters became less frequent as the days passed. As of June,
1948 the newlyweds were already estranged (Exh. "2-Escao"). Vicenta had gone to Jimenez,
Misamis Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a
lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She
did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her nonappearance at the hearing (Exh. "B-4").

On 24 June 1950, without informing her husband, she applied for a passport, indicating in her
application that she was single, that her purpose was to study, and she was domiciled in Cebu City,
and that she intended to return after two years. The application was approved, and she left for the
United States. On 22 August 1950, she filed a verified complaint for divorce against the herein
plaintiff in the Second Judicial District Court of the State of Nevada in and for the County of Washoe,
on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a decree of
divorce, "final and absolute", was issued in open court by the said tribunal.
In 1951 Mamerto and Mena Escao filed a petition with the Archbishop of Cebu to annul their
daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation
of her marriage (Exh. "D"-2).
On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives
with him in California, and, by him, has begotten children. She acquired American citizenship on 8
August 1958.
But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of
First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escao, her parents,
Mamerto and Mena Escao, whom he charged with having dissuaded and discouraged Vicenta from
joining her husband, and alienating her affections, and against the Roman Catholic Church, for
having, through its Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal
separation and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an
equally valid marriage to her present husband, Russell Leo Moran; while her parents denied that
they had in any way influenced their daughter's acts, and counterclaimed for moral damages.
The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his
wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto
Escao and Mena Escao for moral and exemplary damages and attorney's fees against the
plaintiff-appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court.
The appellant ascribes, as errors of the trial court, the following:
1. In not declaring legal separation; in not holding defendant Vicenta F. Escao liable for
damages and in dismissing the complaint;.
2. In not holding the defendant parents Mamerto Escano and the heirs of Doa Mena
Escao liable for damages;.
3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant
parents on their counterclaims; and.
4. In dismissing the complaint and in denying the relief sought by the plaintiff.
That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee,
Vicenta Escao, were validly married to each other, from the standpoint of our civil law, is clearly
established by the record before us. Both parties were then above the age of majority, and otherwise
qualified; and both consented to the marriage, which was performed by a Catholic priest (army
chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said priest was
not duly authorized under civil law to solemnize marriages.

The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as
required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and
State but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at
the time) expressly provided that
SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the
contracting parties and consent. (Emphasis supplied)
The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore,
not essential to give the marriage civil effects,3 and this is emphasized by section 27 of said marriage
act, which provided the following:
SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid
because of the absence of one or several of the formal requirements of this Act if, when it
was performed, the spouses or one of them believed in good faith that the person who
solemnized the marriage was actually empowered to do so, and that the marriage was
perfectly legal.
The good faith of all the parties to the marriage (and hence the validity of their marriage) will be
presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs.
Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of
the solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father
Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original
action for annulment and subsequently suing for divorce implies an admission that her marriage to
plaintiff was valid and binding.
Defendant Vicenta Escao argues that when she contracted the marriage she was under the undue
influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez.
Even granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent
was vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but
merely voidable, and the marriage remained valid until annulled by a competent civil court. This was
never done, and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis
was dismissed for non-prosecution.
It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta
Escao remained subsisting and undissolved under Philippine law, notwithstanding the decree of
absolute divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial
District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in
character." At the time the divorce decree was issued, Vicenta Escao, like her husband, was still a
Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil Code of the
Philippines (Rep. Act No. 386), already in force at the time, expressly provided:
Laws relating to family rights and duties or to the status, condition and legal capacity of
persons are binding upon the citizens of the Philippines, even though living abroad.
The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo
matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the
matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery
of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only
provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly
prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).

For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute
divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state,
specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following:
Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, policy and good customs, shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.
Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect,
give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of
those members of our polity whose means do not permit them to sojourn abroad and obtain absolute
divorces outside the Philippines.
From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the
Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private
parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a nonresident consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95
Phil. 579).
From the preceding facts and considerations, there flows as a necessary consequence that in this
jurisdiction Vicenta Escao's divorce and second marriage are not entitled to recognition as valid; for
her previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows,
likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion
of her husband constitute in law a wrong caused through her fault, for which the husband is entitled
to the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit
nor an anonymous letter charging immorality against the husband constitute, contrary to her claim,
adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically
"intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles
plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery"
(Revised Penal Code, Art. 333).
The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in
accord with the previous doctrines and rulings of this court on the subject, particularly those that
were rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the
Philippine Legislature). As a matter of legal history, our statutes did not recognize divorces a
vinculo before 1917, when Act 2710 became effective; and the present Civil Code of the Philippines,
in disregarding absolute divorces, in effect merely reverted to the policies on the subject prevailing
before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act abovementioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of
particular interest. Said this Court in that case:
As the divorce granted by the French Court must be ignored, it results that the marriage of
Dr. Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations;
and the circumstance that they afterwards passed for husband and wife in Switzerland until
her death is wholly without legal significance. The claims of the very children to participate in
the estate of Samuel Bishop must therefore be rejected. The right to inherit is limited to
legitimate, legitimated and acknowledged natural children. The children of adulterous
relations are wholly excluded. The word "descendants" as used in Article 941 of the Civil
Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis
supplied)

Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to
Leo Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority for
the proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for
legal separation on the part of the innocent consort of the first marriage, that stands undissolved in
Philippine law. In not so declaring, the trial court committed error.
True it is that our ruling gives rise to anomalous situations where the status of a person (whether
divorced or not) would depend on the territory where the question arises. Anomalies of this kind are
not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:
The hardship of the existing divorce laws in the Philippine Islands are well known to the
members of the Legislature. It is the duty of the Courts to enforce the laws of divorce as
written by Legislature if they are constitutional. Courts have no right to say that such laws are
too strict or too liberal. (p. 72)
The appellant's first assignment of error is, therefore, sustained.
However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escao and his wife,
the late Doa Mena Escao, alienated the affections of their daughter and influenced her conduct
toward her husband are not supported by credible evidence. The testimony of Pastor Tenchavez
about the Escao's animosity toward him strikes us to be merely conjecture and exaggeration, and
are belied by Pastor's own letters written before this suit was begun (Exh. "2-Escao" and "Vicenta,"
Rec. on App., pp. 270-274). In these letters he expressly apologized to the defendants for
"misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful
pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escao house to visit and court
Vicenta, and the record shows nothing to prove that he would not have been accepted to marry
Vicente had he openly asked for her hand, as good manners and breeding demanded. Even after
learning of the clandestine marriage, and despite their shock at such unexpected event, the parents
of Vicenta proposed and arranged that the marriage be recelebrated in strict conformity with the
canons of their religion upon advice that the previous one was canonically defective. If no
recelebration of the marriage ceremony was had it was not due to defendants Mamerto Escao and
his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escao did not seek to
compel or induce their daughter to assent to the recelebration but respected her decision, or that
they abided by her resolve, does not constitute in law an alienation of affections. Neither does the
fact that Vicenta's parents sent her money while she was in the United States; for it was natural that
they should not wish their daughter to live in penury even if they did not concur in her decision to
divorce Tenchavez (27 Am. Jur. 130-132).
There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her
original suit for annulment, or her subsequent divorce; she appears to have acted independently,
and being of age, she was entitled to judge what was best for her and ask that her decisions be
respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the
absence of malice or unworthy motives, which have not been shown, good faith being always
presumed until the contrary is proved.
SEC. 529. Liability of Parents, Guardians or Kin. The law distinguishes between the right
of a parent to interest himself in the marital affairs of his child and the absence of rights in a
stranger to intermeddle in such affairs. However, such distinction between the liability of
parents and that of strangers is only in regard to what will justify interference. A parent
isliable for alienation of affections resulting from his own malicious conduct, as where he
wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless
he acts maliciously, without justification and from unworthy motives. He is not liable where he

acts and advises his child in good faith with respect to his child's marital relations in the
interest of his child as he sees it, the marriage of his child not terminating his right and liberty
to interest himself in, and be extremely solicitous for, his child's welfare and happiness, even
where his conduct and advice suggest or result in the separation of the spouses or the
obtaining of a divorce or annulment, or where he acts under mistake or misinformation, or
where his advice or interference are indiscreet or unfortunate, although it has been held that
the parent is liable for consequences resulting from recklessness. He may in good faith take
his child into his home and afford him or her protection and support, so long as he has not
maliciously enticed his child away, or does not maliciously entice or cause him or her to stay
away, from his or her spouse. This rule has more frequently been applied in the case of
advice given to a married daughter, but it is equally applicable in the case of advice given to
a son.
Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and
with having exerted efforts and pressured her to seek annulment and divorce, unquestionably
caused them unrest and anxiety, entitling them to recover damages. While this suit may not have
been impelled by actual malice, the charges were certainly reckless in the face of the proven facts
and circumstances. Court actions are not established for parties to give vent to their prejudices or
spleen.
In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant
Vicente Escao, it is proper to take into account, against his patently unreasonable claim for a
million pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not
characterized by publicity or undue humiliation on appellant's part; (b) that the parties never lived
together; and (c) that there is evidence that appellant had originally agreed to the annulment of the
marriage, although such a promise was legally invalid, being against public policy (cf. Art. 88, Civ.
Code). While appellant is unable to remarry under our law, this fact is a consequence of the
indissoluble character of the union that appellant entered into voluntarily and with open eyes rather
than of her divorce and her second marriage. All told, we are of the opinion that appellant should
recover P25,000 only by way of moral damages and attorney's fees.
With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escao and Mena
Escao, by the court below, we opine that the same are excessive. While the filing of this unfounded
suit must have wounded said defendants' feelings and caused them anxiety, the same could in no
way have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a
common occurrence in present society. What is important, and has been correctly established in the
decision of the court below, is that said defendants were not guilty of any improper conduct in the
whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only.
Summing up, the Court rules:
(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the
present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and
neither is the marriage contracted with another party by the divorced consort, subsequently to the
foreign decree of divorce, entitled to validity in the country;
(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful
husband entitle the latter to a decree of legal separation conformably to Philippine law;
(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to
recover damages;

(4) That an action for alienation of affections against the parents of one consort does not lie in the
absence of proof of malice or unworthy motives on their part.
WHEREFORE, the decision under appeal is hereby modified as follows;
(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from
defendant Vicenta F. Escao;
(2) Sentencing defendant-appellee Vicenta Escao to pay plaintiff-appellant Tenchavez the amount
of P25,000 for damages and attorneys' fees;
(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escao and the estate of
his wife, the deceased Mena Escao, P5,000 by way of damages and attorneys' fees.
Neither party to recover costs.
Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar,
JJ., concur.

Footnotes
The latter was substituted by her heirs when she died during the pendency of the case in
the trial court.
1

The original complaint included the Roman Catholic Church as a defendant, sought to be
enjoined from acting on a petition for the ecclesiastical annulment of the marriage between
Pastor Tenchavez and Vicenta Escao; the case against the defendant Church was
dismissed on a joint motion.
2

In the present Civil Code the contrary rule obtains (Art. 53).

She was naturalized as an American citizen only on 8 August 1958.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-20530

June 29, 1967

MANILA SURETY and FIDELITY COMPANY, INC., petitioner,

vs.
TRINIDAD TEODORO and THE COURT OF APPEALS, respondents.
De Santos and Delfino for petitioner.
V. J. Francisco and R. F. Francisco for respondents.
MAKALINTAL, J.:
The Manila Surety & Fidelity Company, Inc., filed this petition for review by certiorari of the decision
of the Court of Appeals in its Case No. CA-G.R. 30916. The case relates to the execution of a joint
and several judgment for money obtained by the said company against the Philippine Ready-Mix
Concrete Co., Inc. and Jose Corominas, Jr., in a litigation started in 1952 in the Court of First
Instance of Manila (Civil Case No. 17014), whose decision was affirmed by the Court of Appeals with
only a slight modification in respect of the award for attorney's fees.
The proceedings which took place thereafter are narrated in the decision sought to be reviewed as
follows:
When said decision became final, respondent Manila Sure secured on September 20, 1961,
from the Court of First Instance of Manila in Civil Case No. 17014 a second alias writ of
execution addressed to respondent provincial sheriff of Rizal whose deputy, together with
counsel for respondent Manila Surety, repaired to the residence of herein petitioner at No.
794 Harvard Street, Mandaluyong, Rizal, and levied upon a car, some furniture, appliances
and personal properties found therein belonging solely and exclusively to the petitioner with
the exception of sewing machine which belonged to a maid by the name of Nati Fresco, a
G.E. television set which was the property of the minor Jose Alfonso Corominas, and a baby
grand piano as well as a Columbia radio phonograph which belonged to Jose Corominas, Jr.
As the petitioner was then abroad, her sister Josefina Teodoro, to whom she had entrusted
the custody and safekeeping of the properties, had made representations to the deputy
sheriff and to the counsel of respondent Manila Surety regarding the ownership of the
petitioner over certain personal effects levied upon, but they ignored the same and
proceeded with the levy.
Thus, respondents caused the posting at several places notices of sale, preparatory to
disposing petitioner's properties at public auction.
To stay the sale at public auction of petitioner's properties, she filed on November 3, 1961,
with the Court of First Instance of Rizal a complaint with injunction, entitled "Trinidad Teodoro
vs Manila Surety & Fidelity Co., Inc. and the Provincial Sheriff of Rizal," praying among other
things, for damages and a writ of preliminary injunction which was accordingly issued upon
petitioner's filing of a bond in the sum of P30,000.00 enjoining the provincial sheriff of Rizal
from selling at public auction the properties claimed by said petitioner.
However, on November 9, 1961, respondent Manila Surety filed an "Omnibus Motion to
Dismiss the Complaint and to Dissolve Injunction" to which an opposition was filed.
After the parties had adduced their evidence in support of their respective claims and after
hearing their arguments, the lower court declared that the properties in question are
community properties of Trinidad Teodoro (herein petitioner) and Jose Corominas, Jr.,
dissolved on May 12, 1962, the writ of preliminary injunction it had issued and dismissed the
complaint (Civil case No. 6865, CFI Rizal).

Not satisfied, Trinidad Teodoro (as plaintiff in said civil case No. 6865 of Rizal) interposed an
appeal. In the meanwhile, however, the Manila Surety filed on May 29, 1962, in the Court of
First Instance of Manila a motion for the issuance of a third alias writ of execution for the
satisfaction of the judgment debt in civil case No. 17014. Acting upon said motion the Court
of First Instance of Manila issued on June 2, 1962, the "Third Alias Writ of Execution."
Thus, on June 7,1962, deputies of the provincial sheriff of Rizal again repaired to the
residence of herein petitioner at No. 794 Harvard St., Mandaluyong, and levied upon the
same properties, with the exception of the baby grand piano and the "Columbia" phonograph
which were the properties of Jose Corominas, Jr. and which had already been sold at public
auction November 6, 1961 for P3,305.00, the Regal sewing machine owned by Nati Fresco,
the beds found in the boy's and girl's rooms, a marble dining table and chairs, a stereophonic
phonograph and the G.E. television set. And on the following day, June 8, 1962, respondent
provincial sheriff of Rizal advertised the sale at public auction of the aforementioned
properties claimed by herein petitioner, setting the date thereof for June 16, 1962.
Trinidad Teodoro thereupon filed an original petition for injunction in the Court of Appeals to stop the
scheduled sale. On October 24, 1962 the said Court rendered the decision now under review,
granting the writ prayed for and permanently enjoining respondent provincial sheriff of Rizal from
selling at public auction the properties in question for the satisfaction of the judgment debt of Jose
Corominas, Jr.
1wph1.t

The case for herein petitioner rests on the proposition that the said properties, claimed by
respondent Teodoro to be hers exclusively, pertain to the co-ownership established between her and
Jose Corominas, Jr., pursuant to Article 144 of the Civil Code, and consequently may be levied upon
on execution for the satisfaction of the latter's judgment debt. The facts relied upon in support of this
theory of co-ownership are stated in the decision of the court a quo and quoted by the Court of
Appeals, as follows:
Jose Corominas, Jr. and Sonia Lizares were married in Iloilo on January 5, 1935. On
November 29,1954, a decree of divorce was granted by the Court of the State of Nevada
dissolving the bonds of matrimony between Sonia Lizares and Jose Corominas, Jr. . . .
Trinidad Teodoro met Jose Corominas, Jr. in Hongkong on October 30, 1955. . . . On March
26,1956, they went through a Buddhist wedding ceremony in Hongkong. Upon their return to
the Philippines they took up residence in a rented house at No. 2305 Agno Street, . . .
Manila. On September 5, 1961, plaintiff and Jose Corominas, Jr. were married for a second
time on Washoe County, Nevada. U.S.A.
Additional Pertinent facts, also mentioned in the decision under review and controverted by the
parties, are that Sonia Lizares is still living and that the conjugal partnership formed by her marriage
to Corominas was dissolved by the Juvenile and Domestic Relations Court of Manila upon their joint
petition, the decree of dissolution having been issued on October 21, 1957.
The principal issue here is the applicability of Article 144 of the Civil Code to the situation thus
created. This Article provides:
When a man and a woman live together as husband and wife, but they are not married, or
their marriage is void from the beginning, the property acquired by either or both of them
through then work or industry or their wages and salaries shall be governed by the rules on
co-ownership.

There is no doubt that the decree of divorce granted by the Court of Nevada in 1954 is not valid
under Philippine law, which has outlawed divorce altogether; that the matrimonial bonds between
Jose Corominas, Jr. and Sonia Lizares have not been dissolved, although their conjugal partnership
was terminated in 1957; and that the former's subsequent marriage in Hongkong to Trinidad Teodoro
is bigamous and void.
While Article 144 speaks, inter alia, of a void marriage without any qualification, the Court of Appeals
declined to apply it in this case on two grounds: (1) the subsisting marriage of Corominas to Sonia
Lizares constitutes an impediment to a valid marriage between him and respondent Trinidad
Teodoro, which impediment, according to a number of decisions of the Supreme Court, precludes
the establishment of a co-ownership under said article, and (2) the funds used by said respondent in
acquiring the properties in question were "fruits of her paraphernal investments which accrued
before her marriage to Corominas."
The decisions cited under the first ground are Christensen vs. Garcia, 56 O.G. No. 16, p.
3199; Samson vs. Salaysay, 56 O.G. No. 11, p. 2401; and Osmea vs. Rodriguez, 54 O.G. No. 20,
p. 5526. In a proper case, where it may be necessary to do so in order to resolve an unavoidable
issue, the precise scope of the "no impediment to a valid marriage" dictum in said decisions will
undoubtedly deserve closer examination, since it establishes an exception to the broad terms of
Article 144. For one thing, a situation may arise involving a conflict of rights between a co-ownership
under that provision and an existing conjugal partnership formed by a prior marriage where, for
instance, the husband in such marriage lives with another woman and with his salary or wages
acquires properties during the extra-marital cohabitation. A ruling would then be in order to
determine which as between the co-ownership and the conjugal partnership could claim
ascendancy insofar as the properties are concerned.
In the present case, however, we find no need to pass on this question. The particular properties
involved here which were admittedly acquired by respondent Teodoro, cannot be deemed to belong
to such co-ownership because, as found by the trial court and confirmed by the Court of Appeals, the
funds used in acquiring said properties were fruits of respondent's paraphernal investments which
accrued before her "marriage" to Corominas. In other words they were not acquired by either or both
of the partners in the void marriage through their work or industry or their wages and salaries, and
hence cannot be the subject of co-ownership under Article 144. They remain respondent's exclusive
properties, beyond the reach of execution to satisfy the judgment debt of Corominas.
Several procedural questions have been raised by petitioner. First, that the injunction issued by the
Court of Appeals was improper since it was not in aid of its appellate jurisdiction; second, that
respondent Trinidad Teodoro having elected to appeal from the decision of the Court of First
Instance of Rizal, she may not pursue the remedy of injunction as she did in this case; third, that
respondent's petition for injunction in the Court of Appeals failed to state a cause of action; fourth,
that the proper remedy available to respondent was by filing a third-party claim; and finally, that the
trial judge should have been included as party respondent in the petition for injunction.
As to the first in second points, the fact is that respondent Trinidad Teodoro perfected her appeal to
the Court of Appeals, which found that there were questions of fact involved therein, one of them
being whether the properties in question were acquired before or after her void marriage to
Corominas. In aid of its appellate jurisdiction, therefore, the said Court could issue a writ of
injunction. Of course, what happened here was that before the record on appeal could be filed (on
June 18, 1962) or approved (on September 8, 1962) a third alias writ of execution was issued by the
trial court (on June 2, 1962) and the properties in question were again levied upon by the sheriff and
advertised for sale on June 16, 1962. It was impracticable for respondent to first wait for the appeal
to be elevated to and docketed in the Court of Appeals and there secure the ancillary remedy of

injunction therein. An independent petition for injunction, under the circumstances, was not
unjustified.
Respondent could, indeed, have filed a third party claim instead as indicated in Rule 39, Section
15.* But then her sister Josefina Teodoro did make such a claim in her behalf after the second alias
writ of execution was issued, but it was ignored and the sheriff proceeded with the levy. In any event,
a third party claim is not an exclusive remedy: the same rule provides that nothing therein contained
"shall prevent such third person from vindicating his claim to the property by any proper action.
We do not deem it to be a reversible error for Trinidad Teodoro not to include the trial Judge as partyrespondent in her petition for injunction in the Court of Appeals. The trial Judge would have been
merely a nominal party anyway, and no substantial rights of petitioner here have been prejudiced by
the omission.
In view of the foregoing, the judgment of the Court of Appeals is affirmed, with costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.
Footnotes
*

Editor's Note: Should read "Section 17."

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 153206

October 23, 2006

ONG ENG KIAM a.k.a. WILLIAM ONG, petitioner,

vs.
LUCITA G. ONG, respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review seeking the reversal of the Decision 1 of the Court of
Appeals (CA) in CA G.R. CV No. 59400 which affirmed in toto the Decision of the Regional Trial
Court (RTC) Branch 41, Dagupan City granting the petition for legal separation filed by herein
respondent, as well as the Resolution2 of the CA dated April 26, 2002 which denied petitioners
motion for reconsideration.
Ong Eng Kiam, also known as William Ong (William) and Lucita G. Ong (Lucita) were married on
July 13, 1975 at the San Agustin Church in Manila. They have three children: Kingston, Charleston,
and Princeton who are now all of the age of majority.3
On March 21, 1996, Lucita filed a Complaint for Legal Separation under Article 55 par. (1) of the
Family Code4 before the Regional Trial Court (RTC) of Dagupan City, Branch 41 alleging that her life
with William was marked by physical violence, threats, intimidation and grossly abusive conduct. 5
Lucita claimed that: soon after three years of marriage, she and William quarreled almost every day,
with physical violence being inflicted upon her; William would shout invectives at her like "putang ina
mo", "gago", "tanga", and he would slap her, kick her, pull her hair, bang her head against concrete
wall and throw at her whatever he could reach with his hand; the causes of these fights were petty
things regarding their children or their business; William would also scold and beat the children at
different parts of their bodies using the buckle of his belt; whenever she tried to stop William from
hitting the children, he would turn his ire on her and box her; on December 9, 1995, after she
protested with Williams decision to allow their eldest son Kingston to go to Bacolod, William slapped
her and said, "it is none of your business"; on December 14, 1995, she asked William to bring
Kingston back from Bacolod; a violent quarrel ensued and William hit her on her head, left cheek,
eye, stomach, and arms; when William hit her on the stomach and she bent down because of the
pain, he hit her on the head then pointed a gun at her and asked her to leave the house; she then
went to her sisters house in Binondo where she was fetched by her other siblings and brought to
their parents house in Dagupan; the following day, she went to her parents doctor, Dr. Vicente
Elinzano for treatment of her injuries.6
William for his part denied that he ever inflicted physical harm on his wife, used insulting language
against her, or whipped the children with the buckle of his belt. While he admits that he and Lucita
quarreled on December 9, 1995, at their house in Jose Abad Santos Avenue, Tondo, Manila, he
claimed that he left the same, stayed in their Greenhills condominium and only went back to their
Tondo house to work in their office below. In the afternoon of December 14, 1995, their
laundrywoman told him that Lucita left the house.7
On January 5, 1998, the RTC rendered its Decision decreeing legal separation, thus:
WHEREFORE, premises considered, judgment is hereby rendered decreeing the legal
separation of plaintiff and defendant, with all the legal effects attendant thereto, particularly
the dissolution and liquidation of the conjugal partnership properties, for which purpose the
parties are hereby ordered to submit a complete inventory of said properties so that the
Court can make a just and proper division, such division to be embodied in a supplemental
decision.
SO ORDERED.8
The RTC found that:
It is indubitable that plaintiff (Lucita) and defendant (William) had their frequent quarrels and
misunderstanding which made both of their lives miserable and hellish. This is even admitted

by the defendant when he said that there was no day that he did not quarrel with his wife.
Defendant had regarded the plaintiff negligent in the performance of her wifely duties and
had blamed her for not reporting to him about the wrongdoings of their children. (citations
omitted)
These quarrels were always punctuated by acts of physical violence, threats and intimidation
by the defendant against the plaintiff and on the children. In the process, insulting words and
language were heaped upon her. The plaintiff suffered and endured the mental and physical
anguish of these marital fights until December 14, 1995 when she had reached the limits of
her endurance. The more than twenty years of her marriage could not have been put to
waste by the plaintiff if the same had been lived in an atmosphere of love, harmony and
peace. Worst, their children are also suffering. As very well stated in plaintiffs memorandum,
"it would be unthinkable for her to throw away this twenty years of relationship, abandon the
comforts of her home and be separated from her children, whom she loves, if there exists no
cause, which is already beyond her endurance. 9
William appealed to the CA which affirmed in toto the RTC decision. In its Decision dated October 8,
2001, the CA found that the testimonies for Lucita were straightforward and credible and the ground
for legal separation under Art. 55, par. 1 of the Family Code, i.e., physical violence and grossly
abusive conduct directed against Lucita, were adequately proven.10
As the CA explained:
The straightforward and candid testimonies of the witnesses were uncontroverted and
credible. Dr. Elinzanos testimony was able to show that the [Lucita] suffered several injuries
inflicted by [William]. It is clear that on December 14, 1995, she sustained redness in her
cheek, black eye on her left eye, fist blow on the stomach, blood clot and a blackish
discoloration on both shoulders and a "bump" or "bukol" on her head. The presence of these
injuries was established by the testimonies of [Lucita] herself and her sister, Linda Lim. The
Memorandum/Medical Certificate also confirmed the evidence presented and does not
deviate from the doctors main testimony --- that [Lucita] suffered physical violence on [sic]
the hands of her husband, caused by physical trauma, slapping of the cheek, boxing and fist
blows. The effect of the so-called alterations in the Memorandum/Medical Certificate
questioned by [William] does not depart from the main thrust of the testimony of the said
doctor.
Also, the testimony of [Lucita] herself consistently and constantly established that [William]
inflicted repeated physical violence upon her during their marriage and that she had been
subjected to grossly abusive conduct when he constantly hurled invectives at her even in
front of their customers and employees, shouting words like, "gaga", "putang ina mo,"
tanga," and "you dont know anything."
These were further corroborated by several incidents narrated by Linda Lim who lived in their
conjugal home from 1989 to 1991. She saw her sister after the December 14, 1995 incident
when she (Lucita) was fetched by the latter on the same date. She was a witness to the kind
of relationship her sister and [William] had during the three years she lived with them. She
observed that [William] has an "explosive temper, easily gets angry and becomes very
violent." She cited several instances which proved that William Ong indeed treated her wife
shabbily and despicably, in words and deeds.
xxx

That the physical violence and grossly abusive conduct were brought to bear upon [Lucita]
by [William] have been duly established by [Lucita] and her witnesses. These incidents were
not explained nor controverted by [William], except by making a general denial thereof.
Consequently, as between an affirmative assertion and a general denial, weight must be
accorded to the affirmative assertion.
The grossly abusive conduct is also apparent in the instances testified to by [Lucita] and her
sister. The injurious invectives hurled at [Lucita] and his treatment of her, in its entirety, in
front of their employees and friends, are enough to constitute grossly abusive conduct. The
aggregate behavior of [William] warrants legal separation under grossly abusive conduct. x x
x11
William filed a motion for reconsideration which was denied by the CA on April 26, 2002. 12
Hence the present petition where William claims that:
I
THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING CLEAR
EVIDENCE THAT THE PETITION FOR LEGAL SEPARATION WAS INSTITUTED BY THE
PRIVATE RESPONDENT FOR THE SOLE PURPOSE OF REMOVING FROM PETITIONER
THE CONTROL AND OWNERSHIP OF THEIR CONJUGAL PROPERTIES AND TO
TRANSFER THE SAME TO PRIVATE RESPONDENTS FAMILY.
II
THE COURT OF APPEALS COMMITTED AN ERROR OF LAW IN DISREGARDING CLEAR
EVIDENCE REPUDIATING PRIVATE RESPONDENTS CLAIM OF REPEATED PHYSICAL
VIOLENCE AND GROSSLY ABUSIVE CONDUCT ON THE PART OF PETITIONER.13
William argues that: the real motive of Lucita and her family in filing the case is to wrest control and
ownership of properties belonging to the conjugal partnership; these properties, which include real
properties in Hong Kong, Metro Manila, Baguio and Dagupan, were acquired during the marriage
through his (Williams) sole efforts; the only parties who will benefit from a decree of legal separation
are Lucitas parents and siblings while such decree would condemn him as a violent and cruel
person, a wife-beater and child abuser, and will taint his reputation, especially among the FilipinoChinese community; substantial facts and circumstances have been overlooked which warrant an
exception to the general rule that factual findings of the trial court will not be disturbed on appeal; the
findings of the trial court that he committed acts of repeated physical violence against Lucita and
their children were not sufficiently established; what took place were disagreements regarding the
manner of raising and disciplining the children particularly Charleston, Lucitas favorite son; marriage
being a social contract cannot be impaired by mere verbal disagreements and the complaining party
must adduce clear and convincing evidence to justify legal separation; the CA erred in relying on the
testimonies of Lucita and her witnesses, her sister Linda Lim, and their parents doctor, Dr. Vicente
Elinzanzo, whose testimonies are tainted with relationship and fraud; in the 20 years of their
marriage, Lucita has not complained of any cruel behavior on the part of William in relation to their
marital and family life; William expressed his willingness to receive respondent unconditionally
however, it is Lucita who abandoned the conjugal dwelling on December 14, 1995 and instituted the
complaint below in order to appropriate for herself and her relatives the conjugal properties; the
Constitution provides that marriage is an inviolable social institution and shall be protected by the
State, thus the rule is the preservation of the marital union and not its infringement; only for grounds

enumerated in Art. 55 of the Family Code, which grounds should be clearly and convincingly proven,
can the courts decree a legal separation among the spouses.14
Respondent Lucita in her Comment, meanwhile, asserts that: the issues raised in the present
petition are factual; the findings of both lower courts rest on strong and clear evidence borne by the
records; this Court is not a trier of facts and factual findings of the RTC when confirmed by the CA
are final and conclusive and may not be reviewed on appeal; the contention of William that Lucita
filed the case for legal separation in order to remove from William the control and ownership of their
conjugal properties and to transfer the same to Lucitas family is absurd; Lucita will not just throw her
marriage of 20 years and forego the companionship of William and her children just to serve the
interest of her family; Lucita left the conjugal home because of the repeated physical violence and
grossly abusive conduct of petitioner.15
Petitioner filed a Reply, reasserting his claims in his petition, 16 as well as a Memorandum where he
averred for the first time that since respondent is guilty of abandonment, the petition for legal
separation should be denied following Art. 56, par. (4) of the Family Code. 17 Petitioner argues that
since respondent herself has given ground for legal separation by abandoning the family simply
because of a quarrel and refusing to return thereto unless the conjugal properties were placed in the
administration of petitioners in-laws, no decree of legal separation should be issued in her favor.18
Respondent likewise filed a Memorandum reiterating her earlier assertions. 19
We resolve to deny the petition.
It is settled that questions of fact cannot be the subject of a petition for review under Rule 45 of the
Rules of Court. The rule finds more stringent application where the CA upholds the findings of fact of
the trial court. In such instance, this Court is generally bound to adopt the facts as determined by the
lower courts.20
The only instances when this Court reviews findings of fact are:
(1) when the findings are grounded entirely on speculation, surmises or conjectures; (2)
when the inference made is manifestly mistaken, absurd or impossible; (3) when there is
grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5)
when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals
went beyond the issues of the case, or its findings are contrary to the admissions of both the
appellant and the appellee; (7) when the findings are contrary to that of the trial court; (8)
when the findings are conclusions without citation of specific evidence on which they are
based; (9) when the facts set forth in the petition as well as in the petitioners main and reply
briefs are not disputed by the respondent; (10) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the evidence on record; and (11) when
the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties,
which, if properly considered, would justify a different conclusion. 21
As petitioner failed to show that the instant case falls under any of the exceptional circumstances,
the general rule applies.
Indeed, this Court cannot review factual findings on appeal, especially when they are borne out by
the records or are based on substantial evidence. 22 In this case, the findings of the RTC were
affirmed by the CA and are adequately supported by the records.

As correctly observed by the trial court, William himself admitted that there was no day that he did
not quarrel with his wife, which made his life miserable, and he blames her for being negligent of her
wifely duties and for not reporting to him the wrongdoings of their children. 23
Lucita and her sister, Linda Lim, also gave numerous accounts of the instances when William
displayed violent temper against Lucita and their children; such as: when William threw a steel chair
at Lucita;24 threw chairs at their children;25 slapped Lucita and utter insulting words at her;26 use the
buckle of the belt in whipping the children;27 pinned Lucita against the wall with his strong arms
almost strangling her, and smashed the flower vase and brick rocks and moldings leaving the
bedroom in disarray;28 shouted at Lucita and threw a directory at her, in front of Linda and the
employees of their business, because he could not find a draft letter on his table; 29got mad at
Charleston for cooking steak with vetchin prompting William to smash the plate with steak and hit
Charleston, then slapped Lucita and shouted at her "putang ina mo, gago, wala kang pakialam,
tarantado" when she sided with Charleston;30 and the December 9 and December 14, 1995 incidents
which forced Lucita to leave the conjugal dwelling. 31
Lucita also explained that the injuries she received on December 14, 1995, were not the first. As she
related before the trial court:
q. You stated on cross examination that the injuries you sustained on December 14, 1995
were the most serious?
a. Unlike before I considered December 14, 1995 the very serious because before it is only
on the arm and black eye, but on this December 14, I suffered bruises in all parts of my body,
sir.32
To these, all William and his witnesses, could offer are denials and attempts to downplay the said
incidents.33
As between the detailed accounts given for Lucita and the general denial for William, the Court gives
more weight to those of the former. The Court also gives a great amount of consideration to the
assessment of the trial court regarding the credibility of witnesses as trial court judges enjoy the
unique opportunity of observing the deportment of witnesses on the stand, a vantage point denied
appellate tribunals.34 Indeed, it is settled that the assessment of the trial court of the credibility of
witnesses is entitled to great respect and weight having had the opportunity to observe the conduct
and demeanor of the witnesses while testifying.35
In this case, the RTC noted that:
Williams denial and that of his witnesses of the imputation of physical violence committed by
him could not be given much credence by the Court. Since the office secretary Ofelia Rosal
and the family laundrywoman Rosalino Morco are dependent upon defendant for their
livelihood, their testimonies may be tainted with bias and they could not be considered as
impartial and credible witnesses. So with Kingston Ong who lives with defendant and
depends upon him for support.36
Parenthetically, William claims that that the witnesses of Lucita are not credible because of their
relationship with her. We do not agree. Relationship alone is not reason enough to discredit and
label a witnesss testimony as biased and unworthy of credence37 and a witness relationship to one
of the parties does not automatically affect the veracity of his or her testimony.38 Considering the
detailed and straightforward testimonies given by Linda Lim and Dr. Vicente Elinzano, bolstered by

the credence accorded them by the trial court, the Court finds that their testimonies are not tainted
with bias.
William also posits that the real motive of Lucita in filing the case for legal separation is in order for
her side of the family to gain control of the conjugal properties; that Lucita was willing to destroy his
reputation by filing the legal separation case just so her parents and her siblings could control the
properties he worked hard for. The Court finds such reasoning hard to believe. What benefit would
Lucita personally gain by pushing for her parents and siblings financial interests at the expense of
her marriage? What is more probable is that there truly exists a ground for legal separation, a cause
so strong, that Lucita had to seek redress from the courts. As aptly stated by the RTC,
...it would be unthinkable for her to throw away this twenty years of relationship, abandon the
comforts of her home and be separated from her children whom she loves, if there exists no
cause, which is already beyond her endurance. 39
The claim of William that a decree of legal separation would taint his reputation and label him as a
wife-beater and child-abuser also does not elicit sympathy from this Court. If there would be such a
smear on his reputation then it would not be because of Lucitas decision to seek relief from the
courts, but because he gave Lucita reason to go to court in the first place.
Also without merit is the argument of William that since Lucita has abandoned the family, a decree of
legal separation should not be granted, following Art. 56, par. (4) of the Family Code which provides
that legal separation shall be denied when both parties have given ground for legal separation. The
abandonment referred to by the Family Code is abandonment without justifiable cause for more than
one year.40 As it was established that Lucita left William due to his abusive conduct, such does not
constitute abandonment contemplated by the said provision.
As a final note, we reiterate that our Constitution is committed to the policy of strengthening the
family as a basic social institution.41 The Constitution itself however does not establish the
parameters of state protection to marriage and the family, as it remains the province of the
legislature to define all legal aspects of marriage and prescribe the strategy and the modalities to
protect it and put into operation the constitutional provisions that protect the same. 42 With the
enactment of the Family Code, this has been accomplished as it defines marriage and the family,
spells out the corresponding legal effects, imposes the limitations that affect married and family life,
as well as prescribes the grounds for declaration of nullity and those for legal separation. 43 As Lucita
has adequately proven the presence of a ground for legal separation, the Court has no reason but to
affirm the findings of the RTC and the CA, and grant her the relief she is entitled to under the law.
WHEREFORE, the petition is DENIED for lack of merit.
Costs against petitioner.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19565

January 30, 1968

ESTRELLA DE LA CRUZ, plaintiff-appellee,

vs.
SEVERINO DE LA CRUZ, defendant-appellant.
Estacion and Paltriguera for plaintiff-appellee.
Manuel O. Soriano and Pio G. Villoso for defendant-appellant.
CASTRO, J.:
The plaintiff Estrella de la Cruz filed a complaint on July 22, 1958 with the Court of First Instance of
Negros Occidental, alleging in essence that her husband, the defendant Severino de la Cruz, had
not only abandoned her but as well was mismanaging their conjugal partnership properties, and
praying for (1) separation of property, (2) monthly support of P2,500 during the pendency of the
action, and (3) payment of P20,000 as attorney's fees, and costs.
The court a quo forthwith issued an order allowing the plaintiff the amount prayed for as
alimony pendente lite, which however, upon defendant's motion, was reduced to P2,000.
On June 1, 1961 the trial court rendered judgment ordering separation and division of the conjugal
assets, and directing the defendant to pay to the plaintiff the sum of P20,000 as attorney's fees, with
legal interest from the date of the original complaint, that is, from July 22, 1958, until fully paid, plus
costs. From this judgment the defendant appealed to the Court of Appeals, which certified the case
to us, "it appearing that the total value of the conjugal assets is over P500,000".
The basic facts are not controverted. The plaintiff and the defendant were married in Bacolod City on
February 1, 1938. Six children were born to them, namely, Zenia (1939), Ronnie (1942), Victoria
(1944), Jessie 1945), Bella (1946), and Felipe (1948). During their coverture they acquired seven
parcels of land of the Bacolod Cadastre, all assessed at P45,429, and three parcels of the Silay
Cadastre, all assessed at P43,580. All these parcels are registered in their names. The hacienda in
Silay yielded for the year 1957 a net profit of P3,390.49.
They are also engaged in varied business ventures with fixed assets valued as of December 31,
1956 at P496,006.92, from which they obtained for that year a net profit of P75,655.78. The net gain
of the Philippine Texboard Factory, the principal business of the spouses, was P90,454.48 for the
year 1957. As of December 31, 1959, the total assets of the various enterprises of the conjugal
partnership were valued at P1,021,407.68, not including those of the Top Service Inc., of which firm
the defendant has been the president since its organization in 1959 in Manila with a paid-up capital
of P50,000, P10,000 of which was contributed by him. This corporation was the Beverly Hills
Subdivision in Antipolo, Rizal, the Golden Acres Subdivision and the Green Valley Subdivision in Las
Pias, Rizal, and a lot and building located at M. H. del Pilar, Manila purchased for P285,000, an
amount borrowed from the Manufacturer's Bank and Trust Company.
The spouses are indebted to the Philippine National Bank and the Development Bank of the
Philippines for loans obtained, to secure which they mortgaged the Philippine Texboard Factory, the
Silay hacienda, their conjugal house, and all their parcels of land located in Bacolod City.

The essential issues of fact may be gleaned from the nine errors the defendant imputes to the
court a quo, namely,
1. In finding that the only visit, from May 15, 1955 to the rendition of the decision, made by
the defendant to the conjugal abode to see his wife was on June 15, 1955;
2. In finding that the letter exh. 3 was written by one Nenita Hernandez and that she and the
defendant are living as husband and wife;
3. In finding that since 1951 the relations between the plaintiff and the defendant were far
from cordial, and that it was from 1948 that the former has been receiving an allowance from
the latter;
4. In finding that the defendant has abandoned the plaintiff;
5. In finding that the defendant since 1956 has not discussed with his wife the business
activities of the partnership, and that this silence constituted "abuse of administration of the
conjugal partnerships";
6. In declaring that the defendant mortgaged the conjugal assets without the knowledge of
the plaintiff and thru false pretences to which the latter was prey;
7. In allowing the plaintiff, on the one hand, to testify on facts not actually known by her, and,
on the other hand, in not allowing the defendant to establish his special defenses;
8. In ordering separation of the conjugal partnership properties; and
9. In sentencing the defendant to pay to the plaintiff attorney's fees in the amount of
P20,000, with interest at the legal rate.
1wph1.t

Two issues of law as well emerge, requiring resolution petition: (1) Did the separation of the
defendant from the plaintiff constitute abandonment in law that would justify a separation of the
conjugal partnership properties? (2) Was the defendant's failure and/or refusal to inform the plaintiff
of the state of their business enterprises such an abuse of his powers of administration of the
conjugal partnership as to warrant a division of the matrimonial assets?
The plaintiff's evidence may be summarized briefly. The defendant started living in Manila in 1955,
although he occasionally returned to Bacolod City, sleeping in his office at the Philippine Texboard
Factory in Mandalagan, instead of in the conjugal home at 2nd Street, Bacolod City. Since 1955 the
defendant had not slept in the conjugal dwelling, although in the said year he paid short visits during
which they engaged in brief conversations. After 1955 up to the time of the trial, the defendant had
never visited the conjugal abode, and when he was in Bacolod, she was denied communication with
him. He has abandoned her and their children, to live in Manila with his concubine, Nenita
Hernandez. In 1949 she began to suspect the existence of illicit relations between her husband and
Nenita. This suspicion was confirmed in 1951 when she found an unsigned note in a pocket of one
of her husband's polo shirt which was written by Nenita and in which she asked "Bering" to meet her

near the church. She confronted her husband who forthwith tore the note even as he admitted his
amorous liaison with Nenita. He then allayed her fears by vowing to forsake his mistress.
Subsequently, in November 1951, she found in the iron safe of her husband a letter, exh. C, also
written by Nenita. In this letter the sender (who signed as "D") apologized for her conduct, and
expressed the hope that the addressee ("Darling") could join her in Baguio as she was alone in the
Patria Inn and lonely in "a place for honeymooners". Immediately after her husband departed for
Manila the following morning, the plaintiff enplaned for Baguio, where she learned that Nenita had
actually stayed at the Patria Inn, but had already left for Manila before her arrival. Later she met her
husband in the house of a relative in Manila from whence they proceeded to the Avenue Hotel where
she again confronted him about Nenita. He denied having further relations with this woman.
Celia Baez, testifying for the plaintiff, declared that she was employed as a cook in the home of the
spouses from May 15, 1955 to August 15, 1958, and that during the entire period of her employment
she saw the defendant in the place only once. This declaration is contradicted, however, by the
plaintiff herself who testified that in 1955 the defendant "used to have a short visit there," which
statement implies more than one visit.
The defendant, for his part, denied having abandoned his wife and children, but admitted that in
1957, or a year before the filing of the action, he started to live separately from his wife. When he
transferred his living quarters to his office in Mandalagan, Bacolod City, his intention was not, as it
never has been, to abandon his wife and children, but only to teach her a lesson as she was
quarrelsome and extremely jealous of every woman. He decided to live apart from his wife
temporarily because at home he could not concentrate on his work as she always quarreled with
him, while in Mandalagan he could pass the nights in peace. Since 1953 he stayed in Manila for
some duration of time to manage their expanding business and look for market outlets for their
texboard products. Even the plaintiff admitted in both her original and amended complaints that
"sometime in 1953, because of the expanding business of the herein parties, the defendant
established an office in the City of Manila, wherein some of the goods, effects and merchandise
manufactured or produced in the business enterprises of the parties were sold or disposed of". From
the time he started living separately in Mandalagan up to the filing of the complaint, the plaintiff
herself furnished him food and took care of his laundry. This latter declaration was not rebutted by
the plaintiff.
The defendant, with vehemence, denied that he has abandoned his wife and family, averring that he
has never failed, even for a single month, to give them financial support, as witnessed by the
plaintiff's admission in her original and amended complaints as well as in open court that during the
entire period of their estrangement, he was giving her around P500 a month for support. In point of
fact, his wife and children continued to draw allowances from his office of a total ranging from P1,200
to P1,500 a month. He financed the education of their children, two of whom were studying in Manila
at the time of the trial and were not living with the plaintiff. While in Bacolod City, he never failed to
visit his family, particularly the children. His wife was always in bad need of money because she
played mahjong, an accusation which she did not traverse, explaining that she played mahjong to
entertain herself and forget the infidelities of her husband.
Marcos V. Ganaban, the manager of the Philippine Texboard Factory, corroborated the testimony of
the defendant on the matter of the support the latter gave to his family, by declaring in court that

since the start of his employment in 1950 as assistant general manager, the plaintiff has been
drawing an allowance of P1,000 to P1,500 monthly, which amount was given personally by the
defendant or, in his absence, by the witness himself.
The defendant denied that he ever maintained a mistress in Manila. He came to know Nenita
Hernandez when she was barely 12 years old, but had lost track of her thereafter. His constant
presence in Manila was required by the pressing demands of an expanding business. He denied
having destroyed the alleged note which the plaintiff claimed to have come from Nenita, nor having
seen, previous to the trial, the letter exh. C. The allegation of his wife that he had a concubine is
based on mere suspicion. He had always been faithful to his wife, and not for a single instance had
he been caught or surprised by her with another woman.
On the matter of the alleged abuse by the defendant of his powers of administration of the conjugal
partnership, the plaintiff declared that the defendant refused and failed to inform her of the progress
of their various business concerns. Although she did not allege, much less prove, that her husband
had dissipated the conjugal properties, she averred nevertheless that her husband might squander
and dispose of the conjugal assets in favor of his concubine. Hence, the urgency of separation of
property.
The defendant's answer to the charge of mismanagement is that he has applied his industry,
channeled his ingenuity, and devoted his time, to the management, maintenance and expansion of
their business concerns, even as his wife threw money away at the mahjong tables. Tangible proof
of his endeavors is that from a single cargo truck which he himself drove at the time of their
marriage, he had built up one business after another, the Speedway Trucking Service, the Negros
Shipping Service, the Bacolod Press, the Philippine Texboard Factory, and miscellaneous other
business enterprises worth over a million pesos; that all that the spouses now own have been
acquired through his diligence, intelligence and industry; that he has steadily expanded the income
and assets of said business enterprises from year to year, contrary to the allegations of the
complainant, as proved by his balance sheet and profit and loss statements for the year 1958 and
1959 (exhibits 1 and 2); and that out of the income of their enterprises he had purchased additional
equipment and machineries and has partially paid their indebtedness to the Philippine National Bank
and the Development Bank of the Philippines.
It will be noted that the plaintiff does not ask for legal separation. The evidence presented by her to
prove concubinage on the part of the defendant, while pertinent and material in the determination of
the merits of a petition for legal separation, must in this case be regarded merely as an attempt to
bolster her claim that the defendant had abandoned her, which abandonment, if it constitutes
abandonment in law, would justify separation of the conjugal assets under the applicable provisions
of article 178 of the new Civil Code which read: "The separation in fact between husband and wife
without judicial approval, shall not affect the conjugal partnership, except that . . . if the husband has
abandoned the wife without just cause for at least one year, she may petition the court for a
receivership, or administration by her of the conjugal partnership property, or separation of property".
In addition to abandonment as a ground, the plaintiff also invokes article 167 of the new Civil Code in
support of her prayer for division of the matrimonial assets. This article provides that "In case of
abuse of powers of administration of the conjugal partnership property by the husband, the courts,
on the petition of the wife, may provide for a receivership, or administration by the wife, or separation

of property". It behooves us, therefore, to inquire, in the case at bar, whether there has been
abandonment, in the legal sense, by the defendant of the plaintiff, and/or whether the defendant has
abused his powers of administration of the conjugal partnership property, so as to justify the
plaintiff's plea for separation of property.
We have made a searching scrutiny of the record, and it is our considered view that the defendant is
not guilty of abandonment of his wife, nor of such abuse of his powers of administration of the
conjugal partnership, as to warrant division of the conjugal assets.
The extraordinary remedies afforded to the wife by article 178 when she has been abandoned by the
husband for at least one year are the same as those granted to her by article 167 in case of abuse of
the powers of administration by the husband. To entitle her to any of these remedies, under article
178, there must be real abandonment, and not mere separation. 1 The abandonment must not only
be physical estrangement but also amount to financial and moral desertion.
Although an all-embracing definition of the term "abandonment " is yet to be spelled out in explicit
words, we nevertheless can determine its meaning from the context of the Law as well as from its
ordinary usage. The concept of abandonment in article 178 may be established in relation to the
alternative remedies granted to the wife when she has been abandoned by the husband, namely,
receivership, administration by her, or separation of property, all of which are designed to protect the
conjugal assets from waste and dissipation rendered imminent by the husband's continued absence
from the conjugal abode, and to assure the wife of a ready and steady source of support. Therefore,
physical separation alone is not the full meaning of the term "abandonment", if the husband, despite
his voluntary departure from the society of his spouse, neither neglects the management of the
conjugal partnership nor ceases to give support to his wife.
The word "abandon", in its ordinary sense, means to forsake entirely; to forsake or renounce
utterly. 2 The dictionaries trace this word to the root idea of "putting under a bar". The emphasis is on
the finality and the publicity with which some thing or body is thus put in the control of another, and
hence the meaning of giving up absolutely, with intent never again to resume or claim one's rights or
interests. 3 When referring to desertion of a wife by a husband, the word has been defined as "the act
of a husband in voluntarily leaving his wife with intention to forsake her entirely, never to return to
her, and never to resume his marital duties towards her, or to claim his marital rights; such neglect
as either leaves the wife destitute of the common necessaries of life, or would leave her destitute but
for the charity of others." 4 The word "abandonment", when referring to the act of one consort of
leaving the other, is "the act of the husband or the wife who leaves his or her consort wilfully, and
with an intention of causing per perpetual separation." 5 Giving to the word "abandoned", as used in
article 178, the meaning drawn from the definitions above reproduced, it seems rather clear that to
constitute abandonment of the wife by the husband, there must be absolute cessation of marital
relations and duties and rights, with the intention of perpetual separation.
Coming back to the case at bar, we believe that the defendant did not intend to leave his wife and
children permanently. The record conclusively shows that he continued to give support to his family
despite his absence from the conjugal home. This fact is admitted by the complainant, although she
minimized the amount of support given, saying that it was only P500 monthly. There is good reason
to believe, however, that she and the children received more than this amount, as the defendant's

claim that his wife and children continued to draw from his office more than P500 monthly was
substantially corroborated by Marcos Ganaban, whose declarations were not rebutted by the
plaintiff. And then there is at all no showing that the plaintiff and the children were living in want. On
the contrary, the plaintiff admitted, albeit reluctantly, that she frequently played mahjong, from which
we can infer that she had money; to spare.
The fact that the defendant never ceased to give support to his wife and children negatives any
intent on his part not to return to the conjugal abode and resume his marital duties and rights.
In People v. Schelske, 6 it was held that where a husband, after leaving his wife, continued to make
small contributions at intervals to her support and that of their minor child, he was not guilty of their
"abandonment", which is an act of separation with intent that it shall be perpetual, since contributing
to their support negatived such intent. In re Hoss' Estate, supra, it was ruled that a father did not
abandon his family where the evidence disclosed that he almost always did give his wife part of his
earnings during the period of their separation and that he gradually paid some old rental and grocery
bills.
With respect to the allegation that the defendant maintained a concubine, we believe, contrary to the
findings of the court a quo, that the evidence on record fails to preponderate in favor of the plaintiff's
thesis. The proof that Nenita Hernandez was the concubine of the defendant and that they were
living as husband and wife in Manila, is altogether too indefinite. Aside from the uncorroborated
statement of the plaintiff that she knew that Nenita Hernandez was her husband's concubine, without
demonstrating by credible evidence the existence of illicit relations between Nenita and the
defendant, the only evidence on record offered to link the defendant to his alleged mistress is exh.
C. The plaintiff however failed to connect authorship of the said letter with Nenita, on the face
whereof the sender merely signed as "D" and the addressee was one unidentified "Darling". The
plaintiff's testimony on cross-examination, hereunder quoted, underscores such failure:
Q. You personally never received any letter from Nenita?
A. No.
Q. Neither have you received on any time until today from 1949 from Nenita?
A. No.
Q. Neither have you written to her any letter yourself until now?
A. Why should I write a letter to her.
Q. In that case, Mrs. De la Cruz, you are not familiar with the handwriting of Nenita. Is that
right?
A. I can say that Nenita writes very well.

Q. I am not asking you whether she writes very well or not but, my question is this: In view of
the fact that you have never received a letter from Nenita, you have ot sent any letter to her,
you are not familiar with her handwriting?
A. Yes.
Q. You have not seen her writing anybody?
A. Yes.
Anent the allegation that the defendant had mismanaged the conjugal partnership property, the
record presents a different picture. There is absolutely no evidence to show that he has squandered
the conjugal assets. Upon the contrary, he proved that through his industry and zeal, the conjugal
assets at the time of the trial had increased to a value of over a million pesos.
The lower court likewise erred in holding that mere refusal or failure of the husband as administrator
of the conjugal partnership to inform the wife of the progress of the family businesses constitutes
abuse of administration. For "abuse" to exist, it is not enough that the husband perform an act or
acts prejudicial to the wife. Nor is it sufficient that he commits acts injurious to the partnership, for
these may be the result of mere inefficient or negligent administration. Abuse connotes willful and
utter disregard of the interests of the partnership, evidenced by a repetition of deliberate acts and/or
omissions prejudicial to the latter. 7
If there is only physical separation between the spouses (and nothing more), engendered by the
husband's leaving the conjugal abode, but the husband continues to manage the conjugal properties
with the same zeal, industry, and efficiency as he did prior to the separation, and religiously gives
support to his wife and children, as in the case at bar, we are not disposed to grant the wife's petition
for separation of property. This decision may appear to condone the husband's separation from his
wife; however, the remedies granted to the wife by articles 167 and 178 are not to be construed as
condonation of the husband's act but are designed to protect the conjugal partnership from waste
and shield the wife from want. Therefore, a denial of the wife's prayer does not imply a condonation
of the husband's act but merely points up the insufficiency or absence of a cause of action.
1wph1.t

Courts must need exercise judicial restraint and reasoned hesitance in ordering a separation of
conjugal properties because the basic policy of the law is homiletic, to promote healthy family life
and to preserve the union of the spouses, in person, in spirit and in property.
Consistent with its policy of discouraging a regime of separation as not in harmony with the
unity of the family and the mutual affection and help expected of the spouses, the Civil Code
(both old and new) requires that separation of property shall not prevail unless expressly
stipulated in marriage settlements before the union is solemnized or by formal judicial decree
during the existence of the marriage (Article 190, new Civil Code, Article 1432, old Civil
Code): and in the latter case, it may only be ordered by the court for causes specified in
Article 191 of the new Civil Code. 8

Furthermore, a judgment ordering the division of conjugal assets where there has been no real
abandonment, the separation not being wanton and absolute, may altogether slam shut the door for
possible reconciliation. The estranged spouses may drift irreversibly further apart; the already
broken family solidarity may be irretrievably shattered; and any flickering hope for a new life together
may be completely and finally extinguished.
The monthly alimony in the sum of P2,000 which was allowed to the wife in 1958, long before the
devaluation of the Philippine peso in 1962, should be increased to P3,000.
On the matter of attorney's fees, it is our view that because the defendant, by leaving the conjugal
abode, has given cause for the plaintiff to seek redress in the courts, and ask for adequate support,
an award of attorney's fees to the plaintiff must be made. Ample authority for such award is found in
paragraphs 6 and 11 of article 2208 of the new Civil Code which empower courts to grant counsel's
fees "in actions for legal support" and in cases "where the court deems it just and equitable that
attorney's fees . . . should be recovered." However, an award of P10,000, in our opinion, is, under
the environmental circumstances, sufficient.
This Court would be remiss if it did not, firstly, remind the plaintiff and the defendant that the law
enjoins husband and wife to live together, and, secondly, exhort them to avail of mutually,
earnestly and steadfastly all opportunities for reconciliation to the end that their marital differences
may be happily resolved, and conjugal harmony may return and, on the basis of mutual respect and
understanding, endure.
ACCORDINGLY, the judgment a quo, insofar as it decrees separation of the conjugal properties, is
reversed and set aside. Conformably to our observations, however, the defendant is ordered to pay
to the plaintiff, in the concept of support, the amount of P3,000 per month, until he shall have
rejoined her in the conjugal home, which amount may, in the meantime, be reduced or increased in
the discretion of the court a quo as circumstances warrant. The award of attorney's fees to the
plaintiff is reduced to P10,000, without interest. No pronouncement as to costs.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-13553

February 23, 1960

JOSE DE OCAMPO, petitioner,

vs.
SERAFINA FLORENCIANO, respondent.
Joselito J. Coloma for petitioner.
BENGZON, J.:

Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery.
The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there
was confession of judgment, plus condonation or consent to the adultery and prescription.
We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code,
which for convenience are quoted herewith:
ART. 100.The legal separation may be claimed only by the innocent spouse, provided
there has been no condonation of or consent to the adultery or concubinage. Where both
spouses are offenders, a legal separation cannot be claimed by either of them. Collusion
between the parties to obtain legal separation shall cause the dismissal of the petition.
ART. 101.No decree of legal separation shall be promulgated upon a stipulation of facts or
by confession of judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting attorney to
inquire whether or not a collusion between the parties exists. If there is no collusion, the
prosecuting attorney shall intervene for the State in order to take care that the evidence for
the plaintiff is not fabricated.
The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it
described their marriage performed in 1938, and the commission of adultery by Serafina, in March
1951 with Jose Arcalas, and in June 1955 with Nelson Orzame.
Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above,
directed the provincial fiscal to investigate whether or not collusion existed between the parties. The
fiscal examined the defendant under oath, and then reported to the Court that there was no
collusion. The plaintiff presented his evidence consisting of the testimony of Vicente Medina, Ernesto
de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat.
According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant
were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived
thereafter as husband and wife. They begot several children who are now living with plaintiff. In
March, 1951, plaintiff discovered on several occasions that his wife was betraying his trust by
maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital
relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where
she stayed for one year. Again, plaintiff discovered that while in the said city defendant was going
out with several other men, aside from Jose Arcalas. Towards the end of June, 1952, when
defendant had finished studying her course, she left plaintiff and since then they had lived
separately.
"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by
the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to
which defendant manifested her conformity provided she is not charged with adultery in a criminal
action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation."

The Court of Appeals held that the husband's right to legal separation on account of the defendant's
adultery with Jose Arcalas had prescribed, because his action was not filed within one year from
March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree with
the Court of Appeals on this point.1Republic of the Philippines

As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955,
the husband upon discovering the illicit connection, expressed his wish to file a petition for legal
separation and defendant readily agreed to such filing. And when she was questioned by the Fiscal
upon orders of the court, she reiterated her conformity to the legal separation even as she admitted
having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a
confession of judgment the Appellate Court declared that under Art. 101, legal separation could not
be decreed.
As we understand the article, it does not exclude, as evidence, any admission or confession made
by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of
judgment. Confession of judgment usually happens when the defendant appears in court and
confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's
demand.2 This is not occur.
Yet, even supposing that the above statement of defendant constituted practically a confession of
judgment, inasmuch as there is evidence of the adultery independently of such statement, the
decree may and should be granted, since it would not be based on her confession, but upon
evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly
on defendant's confession. If a confession defeats the action ipso facto, any defendant who opposes
the separation will immediately confess judgment, purposely to prevent it.
The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated
from her husband, is no obstacle to the successful prosecution of the action. When she refused to
answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the
dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies
more than consent or lack of opposition to the agreement.
Needless to say, when the court is informed that defendant equally desires the separation and
admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The Court
of Appeals did not find collusion.)
Collusion in divorce or legal separation means the agreement.
. . . between husband and wife for one of them to commit, or to appear to commit, or to be
represented in court as having committed, a matrimonial offense, or to suppress evidence of
a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if
not express, may be implied from the acts of the parties. It is a ground for denying the
divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore.
282, 214 Pas. 590.).

In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial
offense had been committed although it was not, or if the parties had connived to bring about a legal
separation even in the absence of grounds therefor.
Here, the offense of adultery had really taking place, according to the evidence. The defendant could
not havefalsely told the adulterous acts to the Fiscal, because her story might send her to jail the
moment her husband requests the Fiscal to prosecute. She could not have practiced deception at
such a personal risk.
In this connection, it has been held that collusion may not be inferred from the mere fact that the
guilty party confesses to the offense and thus enables the other party to procure evidence necessary
to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y.
Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.).
And proof that the defendant desires the divorce and makes no defense, is not by itself collusion.
(Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.).
We do not think plaintiff's failure actively to search for defendant and take her home (after the latter
had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It
will be remembered that she "left" him after having sinned with Arcalas and after he had discovered
her dates with other men. Consequently, it was not his duty to search for her to bring her home. Hers
was the obligation to return.
Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the
husband's consent to or condonation of his wife's misconduct. However, upon careful examination, a
vital difference will be found: in both instances, the husband had abandoned his wife; here it was the
wife who "left" her husband.
Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed
decision and decree a legal separation between these spouse, all the consequent effects. Costs of
all instances against Serafina Florenciano. So ordered.
Paras, C. J., Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and
Gutierrez David, JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. 179267

June 25, 2013

JESUS C. GARCIA, Petitioner,

vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41,

Bacolod City, and ROSALIE JAYPE-GARCIA, for herself and in behalf of minor children,
namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93
percent of a total population of 93.3 million adhering to the teachings of Jesus Christ. 1 Yet, the
admonition for husbands to love their wives as their own bodies just as Christ loved the church and
gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence against
Filipino women. The National Commission on the Role of Filipino Women (NCRFW) reported that,
for the years 2000-2003, "female violence comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases were committed by the women's intimate
partners such as their husbands and live-in partners." 3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress
enacted Republic Act (R.A.) No. 9262, entitled "An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing Penalties Therefor, and for
Other Purposes." It took effect on March 27, 2004.4
R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and
their children (VAWC) perpetrated by women's intimate partners, i.e, husband; former husband; or
any person who has or had a sexual or dating relationship, or with whom the woman has a common
child.5 The law provides for protection orders from the barangay and the courts to prevent the
commission of further acts of VAWC; and outlines the duties and responsibilities of barangay
officials, law enforcers, prosecutors and court personnel, social workers, health care providers, and
other local government officials in responding to complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of
the equal protection and due process clauses, and an undue delegation of judicial power to
barangay officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her
minor children, a verified petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of
Bacolod City for the issuance of a Temporary Protection Order (TPO) against her husband, Jesus C.
Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse; emotional,
psychological, and economic violence as a result of marital infidelity on the part of petitioner, with
threats of deprivation of custody of her children and of financial support. 7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven
years her senior. They have three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the
natural child of petitioner but whom private respondent adopted; Jessie Anthone J. Garcia, 6 years
old; and Joseph Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife, whose life revolved around her
husband. On the other hand, petitioner, who is of Filipino-Chinese descent, is dominant, controlling,

and demands absolute obedience from his wife and children. He forbade private respondent to pray,
and deliberately isolated her from her friends. When she took up law, and even when she was
already working part time at a law office, petitioner trivialized her ambitions and prevailed upon her
to just stay at home. He was often jealous of the fact that his attractive wife still catches the eye of
some men, at one point threatening that he would have any man eyeing her killed. 9
Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's
Bank, Bacolod City, who is the godmother of one of their sons. Petitioner admitted to the affair when
private respondent confronted him about it in 2004. He even boasted to the household help about
his sexual relations with said bank manager. Petitioner told private respondent, though, that he was
just using the woman because of their accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private respondent physically and
emotionally wounded. In one of their quarrels, petitioner grabbed private respondent on both arms
and shook her with such force that caused bruises and hematoma. At another time, petitioner hit
private respondent forcefully on the lips that caused some bleeding. Petitioner sometimes turned his
ire on their daughter, Jo-Ann, who had seen the text messages he sent to his paramour and whom
he blamed for squealing on him. He beat Jo-Ann on the chest and slapped her many times. When
private respondent decided to leave petitioner, Jo-Ann begged her mother to stay for fear that if the
latter leaves, petitioner would beat her up. Even the small boys are aware of private respondent's
sufferings. Their 6-year-old son said that when he grows up, he would beat up his father because of
his cruelty to private respondent.11
All the emotional and psychological turmoil drove private respondent to the brink of despair. On
December 17, 2005, while at home, she attempted suicide by cutting her wrist. She was found by
her son bleeding on the floor. Petitioner simply fled the house instead of taking her to the hospital.
Private respondent was hospitalized for about seven (7) days in which time petitioner never bothered
to visit, nor apologized or showed pity on her. Since then, private respondent has been undergoing
therapy almost every week and is taking anti-depressant medications. 12
When private respondent informed the management of Robinson's Bank that she intends to file
charges against the bank manager, petitioner got angry with her for jeopardizing the manager's job.
He then packed his things and told private respondent that he was leaving her for good. He even
told private respondent's mother, who lives with them in the family home, that private respondent
should just accept his extramarital affair since he is not cohabiting with his paramour and has not
sired a child with her.13
Private respondent is determined to separate from petitioner but she is afraid that he would take her
children from her and deprive her of financial support. Petitioner had previously warned her that if
she goes on a legal battle with him, she would not get a single centavo. 14
Petitioner controls the family businesses involving mostly the construction of deep wells. He is the
President of three corporations 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros
Trading Corporation of which he and private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private respondent merely draws a monthly
salary of P20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household
expenses amounting to not less than P200,000.00 a month are paid for by private respondent
through the use of credit cards, which, in turn, are paid by the same corporation together with the
bills for utilities.15
On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros Rotadrill
Corporation, and enjoys unlimited cash advances and other benefits in hundreds of thousands of

pesos from the corporations.16After private respondent confronted him about the affair, petitioner
forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of the
corporations are conducted, thereby depriving her of access to full information about said
businesses. Until the filing of the petition a quo, petitioner has not given private respondent an
accounting of the businesses the value of which she had helped raise to millions of pesos. 17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of violence against the private
respondent and her children exists or is about to recur, the RTC issued a TPO 18 on March 24, 2006
effective for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal dwelling or family home
within 24 hours from receipt of the Temporary Restraining Order and if he refuses, ordering
that he be removed by police officers from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236 Realty Holdings Inc. (Republic Act
No. 9262 states "regardless of ownership"), this is to allow the Petitioner (private respondent
herein) to enter the conjugal dwelling without any danger from the Respondent.
After the Respondent leaves or is removed from the conjugal dwelling, or anytime the
Petitioner decides to return to the conjugal dwelling to remove things, the Petitioner shall be
assisted by police officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March
2006 because of the danger that the Respondent will attempt to take her children from her
when he arrives from Manila and finds out about this suit.
b) To stay away from the petitioner and her children, mother and all her household help and
driver from a distance of 1,000 meters, and shall not enter the gate of the subdivision where
the Petitioner may be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner,
directly or indirectly, or through other persons, or contact directly or indirectly her children,
mother and household help, nor send gifts, cards, flowers, letters and the like. Visitation
rights to the children may be subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and
ordering the Philippine National Police Firearms and Explosives Unit and the Provincial
Director of the PNP to cancel all the Respondent's firearm licenses. He should also be
ordered to surrender any unlicensed firearms in his possession or control.
e) To pay full financial support for the Petitioner and the children, including rental of a house
for them, and educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and other cash he received
from all the corporations from 1 January 2006 up to 31 March 2006, which himself and as
President of the corporations and his Comptroller, must submit to the Court not later than 2

April 2006. Thereafter, an accounting of all these funds shall be reported to the court by the
Comptroller, copy furnished to the Petitioner, every 15 days of the month, under pain of
Indirect Contempt of Court.
h) To ensure compliance especially with the order granting support pendente lite, and
considering the financial resources of the Respondent and his threat that if the Petitioner
sues she will not get a single centavo, the Respondent is ordered to put up a BOND TO
KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.
On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended
TPO,20 effective for thirty (30) days, which included the following additional provisions:
i) The petitioners (private respondents herein) are given the continued use of the Nissan
Patrol and the Starex Van which they are using in Negros Occidental.
j) The petitioners are given the continued use and occupation of the house in Paraaque, the
continued use of the Starex van in Metro Manila, whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient
sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred
Fifty Thousand Pesos (Php 150,000.00) per month plus rental expenses of Fifty Thousand
Pesos (Php 50,000.00) per month until the matter of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for
Renewal of the TPO21 seeking the denial of the renewal of the TPO on the grounds that it did not (1)
comply with the three-day notice rule, and (2) contain a notice of hearing. He further asked that the
TPO be modified by (1) removing one vehicle used by private respondent and returning the same to
its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the
bond from P5,000,000.00 to a more manageable level at P100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him
visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following
modifications prayed for by private respondent:
a) That respondent (petitioner herein) return the clothes and other personal belongings of
Rosalie and her children to Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours
from receipt of the Temporary Protection Order by his counsel, otherwise be declared in
Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and equipment in the conjugal
house in Pitimini St., Capitolville Subdivision, Bacolod City within 24 hours from receipt of the
Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to
remove Respondent from the conjugal dwelling within eight (8) hours from receipt of the
Temporary Protection Order by his counsel, and that he cannot return until 48 hours after the
petitioners have left, so that the petitioner Rosalie and her representatives can remove

things from the conjugal home and make an inventory of the household furniture, equipment
and other things in the conjugal home, which shall be submitted to the Court.
d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and
Php25,000.00 for clothes of the three petitioners (sic) children within 24 hours from receipt of
the Temporary Protection Order by his counsel, otherwise be declared in indirect contempt of
Court;
e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of
Court within 24 hours from receipt of the Temporary Protection Order by his counsel;
f) That respondent shall pay petitioner educational expenses of the children upon
presentation of proof of payment of such expenses.23
Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with
the TPO; and committed new acts of harassment against her and their children, private respondent
filed another application24for the issuance of a TPO ex parte. She alleged inter
alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter
was purportedly no longer president, with the end in view of recovering the Nissan Patrol and Starex
Van used by private respondent and the children. A writ of replevin was served upon private
respondent by a group of six or seven policemen with long firearms that scared the two small boys,
Jessie Anthone and Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to
kidnap him, which incident traumatized the boy resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed their daughter, Jo-Ann, by the arm and threatened
her.26 The incident was reported to the police, and Jo-Ann subsequently filed a criminal complaint
against her father for violation of R.A. 7610, also known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the
conjugal home of a complaint for kidnapping and illegal detention against private respondent. This
came about after private respondent, armed with a TPO, went to said home to get her and her
children's belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the
maids' room, private respondent filed a case for qualified theft against Jamola. 27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally or through another, acts
of violence against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating
in any form with the offended party, either directly or indirectly;
3) Required to stay away, personally or through his friends, relatives, employees or agents,
from all the Petitioners Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers,
her mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo Hontiveros,
laundrywoman Mercedita Bornales, security guard Darwin Gayona and the petitioner's other

household helpers from a distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioners are temporarily residing, as well as from the schools of the
three children; Furthermore, that respondent shall not contact the schools of the children
directly or indirectly in any manner including, ostensibly to pay for their tuition or other fees
directly, otherwise he will have access to the children through the schools and the TPO will
be rendered nugatory;
4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to
the Court;
5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00
for rental for the period from August 6 to September 6, 2006; and support in arrears from
March 2006 to August 2006 the total amount of Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and
Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a
Starex van with Plate No. FFD 991 and should the respondent fail to deliver said vehicles,
respondent is ordered to provide the petitioner another vehicle which is the one taken by J
Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the
conjugal assets, or those real properties in the name of Jesus Chua Garcia only and those in
which the conjugal partnership of gains of the Petitioner Rosalie J. Garcia and respondent
have an interest in, especially the conjugal home located in No. 14, Pitimini St., Capitolville
Subdivision, Bacolod City, and other properties which are conjugal assets or those in which
the conjugal partnership of gains of Petitioner Rosalie J. Garcia and the respondent have an
interest in and listed in Annexes "I," "I-1," and "I-2," including properties covered by TCT Nos.
T-186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a
copy of this TEMPORARY PROTECTION ORDER and are ordered not to allow the transfer,
sale, encumbrance or disposition of these above-cited properties to any person, entity or
corporation without the personal presence of petitioner Rosalie J. Garcia, who shall affix her
signature in the presence of the Register of Deeds, due to the fear of petitioner Rosalie that
her signature will be forged in order to effect the encumbrance or sale of these properties to
defraud her or the conjugal partnership of gains.
In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another
ten (10) days, and gave petitioner a period of five (5) days within which to show cause why the TPO
should not be renewed, extended, or modified. Upon petitioner's manifestation, 30 however, that he
has not received a copy of private respondent's motion to modify/renew the TPO, the trial court
directed in its Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion.
Nonetheless, an Order32 dated a day earlier, October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally terminated, the Temporary
Protection Order issued on August 23, 2006 is hereby renewed and extended for thirty (30) days and

continuously extended and renewed for thirty (30) days, after each expiration, until further orders,
and subject to such modifications as may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no longer submitted the required
comment to private respondent's motion for renewal of the TPO arguing that it would only be an
"exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a
petition34 for prohibition (CA-G.R. CEB-SP. No. 01698), with prayer for injunction and temporary
restraining order, challenging (1) the constitutionality of R.A. 9262 for being violative of the due
process and the equal protection clauses, and (2) the validity of the modified TPO issued in the civil
case for being "an unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order 36 (TRO) against
the enforcement of the TPO, the amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for failure
of petitioner to raise the constitutional issue in his pleadings before the trial court in the civil case,
which is clothed with jurisdiction to resolve the same. Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the
trial court constituted a collateral attack on said law.
His motion for reconsideration of the foregoing Decision having been denied in the
Resolution37 dated August 14, 2007, petitioner is now before us alleging that
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE
ISSUE OF CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND
THAT, THE PETITION CONSTITUTES A COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT
R.A. 9262 IS DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262
RUNS COUNTER TO THE DUE PROCESS CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE
POLICY OF THE STATE TO PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID
AND UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL
POWER TO THE BARANGAY OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against the constitutionality of R.A.
9262, we shall first tackle the propriety of the dismissal by the appellate court of the petition for
prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if
not raised in the pleadings, ordinarily it may not be raised in the trial, and if not raised in the trial
court, it will not be considered on appeal.39 Courts will not anticipate a question of constitutional law
in advance of the necessity of deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City,
petitioner argues that the Family Court has limited authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special courts, of the same level as
Regional Trial Courts. Under R.A. 8369, otherwise known as the "Family Courts Act of 1997," family
courts have exclusive original jurisdiction to hear and decide cases of domestic violence against
women and children.42 In accordance with said law, the Supreme Court designated from among the
branches of the Regional Trial Courts at least one Family Court in each of several key cities
identified.43 To achieve harmony with the first mentioned law, Section 7 of R.A. 9262 now provides
that Regional Trial Courts designated as Family Courts shall have original and exclusive jurisdiction
over cases of VAWC defined under the latter law, viz:
SEC. 7. Venue. The Regional Trial Court designated as a Family Court shall have original and
exclusive jurisdiction over cases of violence against women and their children under this law. In the
absence of such court in the place where the offense was committed, the case shall be filed in the
Regional Trial Court where the crime or any of its elements was committed at the option of the
complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority
as a court of general original jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization, admiralty or insolvency.44 It is
settled that RTCs have jurisdiction to resolve the constitutionality of a statute, 45 "this authority being
embraced in the general definition of the judicial power to determine what are the valid and binding
laws by the criterion of their conformity to the fundamental law."46 The Constitution vests the power of
judicial review or the power to declare the constitutionality or validity of a law, treaty, international or
executive agreement, presidential decree, order, instruction, ordinance, or regulation not only in this
Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of
any treaty or law, for it speaks of appellate review of final judgments of inferior courts in cases where

such constitutionality happens to be in issue." Section 5, Article VIII of the 1987 Constitution reads in
part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court
may provide, final judgments and orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in
question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have
been raised at the earliest opportunity in his Opposition to the petition for protection order before the
RTC of Bacolod City, which had jurisdiction to determine the same, subject to the review of this
Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays
down a new kind of procedure requiring the respondent to file an opposition to the petition and not
an answer.49 Thus:
SEC. 20. Opposition to petition. (a) The respondent may file an opposition to the petition which he
himself shall verify. It must be accompanied by the affidavits of witnesses and shall show cause why
a temporary or permanent protection order should not be issued.
(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party
complaint, but any cause of action which could be the subject thereof may be litigated in a separate
civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim
and third-party complaint are to be excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim for money or other relief which a
defending party may have against an opposing party.50 A cross-claim, on the other hand, is any claim
by one party against a co-party arising out of the transaction or occurrence that is the subject matter
either of the original action or of a counterclaim therein.51Finally, a third-party complaint is a claim
that a defending party may, with leave of court, file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in respect of his opponent's claim. 52 As
pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a
cause of action that could be the subject of a counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the opposition in view of the familiar maxim
expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the
right of private respondent to a protection order is founded solely on the very statute the validity of
which is being attacked53 by petitioner who has sustained, or will sustain, direct injury as a result of
its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a valid
cause for the non-issuance of a protection order.

That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred
petitioner from raising the same in his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by evidence. 54 Be that as it may, Section
25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine legal issues,
among others, viz:
SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may
issue an order containing the following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been marked and will be
presented;
(d) Names of witnesses who will be ordered to present their direct testimonies in the form of
affidavits; and
(e) Schedule of the presentation of evidence by both parties which shall be done in one day,
to the extent possible, within the 30-day period of the effectivity of the temporary protection
order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the conduct of a hearing when
necessary, Section 26 (b) of A.M. No. 04-10-11-SC provides that if a temporary protection order
issued is due to expire, the trial court may extend or renew the said order for a period of thirty (30)
days each time until final judgment is rendered. It may likewise modify the extended or renewed
temporary protection order as may be necessary to meet the needs of the parties. With the private
respondent given ample protection, petitioner could proceed to litigate the constitutional issues,
without necessarily running afoul of the very purpose for the adoption of the rules on summary
procedure.
In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with
prayer for injunction and temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may
have proceeded upon an honest belief that if he finds succor in a superior court, he could be granted
an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing of a
petition for certiorari, mandamus or prohibition against any interlocutory order issued by the trial
court. Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of
the TPO, the amended TPOs and other orders pursuant thereto was improper, and it effectively
hindered the case from taking its normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited.
Moreover, if the appeal of a judgment granting permanent protection shall not stay its
enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days at a time, 56 should
not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a
litigant to have the same enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United
States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their
separate and distinct prohibitions, are not to be granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the community is immune from prosecution, in good
faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its
extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid. (Citations
omitted)
The sole objective of injunctions is to preserve the status quo until the trial court hears fully the
merits of the case. It bears stressing, however, that protection orders are granted ex parte so as to
protect women and their children from acts of violence. To issue an injunction against such orders
will defeat the very purpose of the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel
issues, or issues of first impression, with far-reaching implications. We have, time and again,
discharged our solemn duty as final arbiter of constitutional issues, and with more reason now, in
view of private respondent's plea in her Comment59 to the instant Petition that we should put the
challenge to the constitutionality of R.A. 9262 to rest. And so we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child
abuse, which could very well be committed by either the husband or the wife, gender alone is not
enough basis to deprive the husband/father of the remedies under the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723, 61 which became R.A. 9262,
reveals that while the sponsor, Senator Luisa Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a "synthesized measure" 62 an amalgamation of
two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in Intimate
Relationships Act"63 providing protection to "all family members, leaving no one in isolation" but at
the same time giving special attention to women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be denied protection under the same
measure. We quote pertinent portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have
expressed concerns and relayed these concerns to me that if we are to include domestic violence
apart from against women as well as other members of the household, including children or the
husband, they fear that this would weaken the efforts to address domestic violence of which the
main victims or the bulk of the victims really are the wives, the spouses or the female partners in a
relationship. We would like to place that on record. How does the good Senator respond to this kind
of observation?
Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR"
Women in Intimate Relationship. They do not want to include men in this domestic violence. But
plenty of men are also being abused by women. I am playing safe so I placed here members of the
family, prescribing penalties therefor and providing protective measures for victims. This includes the
men, children, live-in, common-law wives, and those related with the family.65
xxx

Wednesday, January 14, 2004

xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion whether to limit this to women
and not to families which was the issue of the AWIR group. The understanding that I have is that we
would be having a broader scope rather than just women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong.
However, I believe that there is a need to protect women's rights especially in the domestic
environment.
As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity
to file a case against their spouses, their live-in partners after years, if not decade, of battery and
abuse. If we broaden the scope to include even the men, assuming they can at all be abused by the
women or their spouses, then it would not equalize the already difficult situation for women, Mr.
President.
I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that
the men in this Chamber who love their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world. Whether we like it or not, no matter
how empowered the women are, we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that he is stronger, more superior to
the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because
the family members have been included in this proposed measure since the other members of the
family other than women are also possible victims of violence. While women are most likely the
intended victims, one reason incidentally why the measure focuses on women, the fact remains that
in some relatively few cases, men also stand to be victimized and that children are almost always
the helpless victims of violence. I am worried that there may not be enough protection extended to
other family members particularly children who are excluded. Although Republic Act No. 7610, for
instance, more or less, addresses the special needs of abused children. The same law is
inadequate. Protection orders for one are not available in said law.
I am aware that some groups are apprehensive about granting the same protection to men, fearing
that they may use this law to justify their abusive behavior against women. However, we should also
recognize that there are established procedures and standards in our courts which give credence to
evidentiary support and cannot just arbitrarily and whimsically entertain baseless complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family as the
basic social institution. Though I recognize the unequal power relations between men and women in
our society, I believe we have an obligation to uphold inherent rights and dignity of both husband and
wife and their immediate family members, particularly children.
While I prefer to focus mainly on women, I was compelled to include other family members as a
critical input arrived at after a series of consultations/meetings with various NGOs, experts, sports
groups and other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other senators.
Senator Sotto. Yes, with the permission of the two ladies on the Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.
Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be
removing the "men and children" in this particular bill and focus specifically on women alone. That
will be the net effect of that proposed amendment. Hearing the rationale mentioned by the
distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined
to accept the proposed amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not because if she is going to accept this, I will
propose an amendment to the amendment rather than object to the amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished
proponent of the amendment. As a matter of fact, I tend to agree. Kung may maaabuso, mas
malamang iyong babae kaysa sa lalake. At saka iyong mga lalake, puwede na talagang magulpi
iyan. Okey lang iyan. But I cannot agree that we remove the children from this particular measure.
So, if I may propose an amendment
The President Pro Tempore. To the amendment.

Senator Sotto. more than the women, the children are very much abused. As a matter of fact, it is
not limited to minors. The abuse is not limited to seven, six, 5-year-old children. I have seen 14, 15year-old children being abused by their fathers, even by their mothers. And it breaks my heart to find
out about these things.
Because of the inadequate existing law on abuse of children, this particular measure will update that.
It will enhance and hopefully prevent the abuse of children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but
not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as
amended, is approved.66
It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a
statute.67 Hence, we dare not venture into the real motivations and wisdom of the members of
Congress in limiting the protection against violence and abuse under R.A. 9262 to women and
children only. No proper challenge on said grounds may be entertained in this proceeding. Congress
has made its choice and it is not our prerogative to supplant this judgment. The choice may be
perceived as erroneous but even then, the remedy against it is to seek its amendment or repeal by
the legislative. By the principle of separation of powers, it is the legislative that determines the
necessity, adequacy, wisdom and expediency of any law.68 We only step in when there is a violation
of the Constitution. However, none was sufficiently shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of the laws.
Equal protection simply requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. The oft-repeated disquisition in the early
case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which are
different in fact be treated in law as though they were the same. The equal protection clause does
not forbid discrimination as to things that are different. It does not prohibit legislation which is limited
either in the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law,
as in the other departments of knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars. A law is not invalid because of
simple inequality. The very idea of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter of constitutionality. All that is
required of a valid classification is that it be reasonable, which means that the classification should
be based on substantial distinctions which make for real differences; that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must apply
equally to each member of the class. This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational basis and is not palpably
arbitrary. (Emphasis supplied)
Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid
classification as shall hereinafter be discussed and, as such, did not violate the equal protection
clause by favoring women over men as victims of violence and abuse to whom the State extends its
protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact that women are more likely than
men to be victims of violence; and the widespread gender bias and prejudice against women all
make for real differences justifying the classification under the law. As Justice McIntyre succinctly
states, "the accommodation of differences ... is the essence of true equality." 70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National Machinery for Gender Equality and
Women's Empowerment), violence against women (VAW) is deemed to be closely linked with the
unequal power relationship between women and men otherwise known as "gender-based violence".
Societal norms and traditions dictate people to think men are the leaders, pursuers, providers, and
take on dominant roles in society while women are nurturers, men's companions and supporters,
and take on subordinate roles in society. This perception leads to men gaining more power over
women. With power comes the need to control to retain that power. And VAW is a form of men's
expression of controlling women to retain power.71
The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution
48/104 on the Declaration on Elimination of Violence Against Women on December 20, 1993 stating
that "violence against women is a manifestation of historically unequal power relations between men
and women, which have led to domination over and discrimination against women by men and to the
prevention of the full advancement of women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate positions, compared with men." 72
Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based
violence and developments in advocacies to eradicate VAW, in his remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing Rules last October 27, 2004, the pertinent
portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence against women. The patriarch of a
family was accorded the right to use force on members of the family under his control. I quote the
early studies:

Traditions subordinating women have a long history rooted in patriarchy the institutional rule of
men. Women were seen in virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave, concubine or wife, were under the
authority of men. In law, they were treated as property.
The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she
endangered his property right over her. Judaism, Christianity and other religions oriented towards
the patriarchal family strengthened the male dominated structure of society.
English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone
has been quoted in his commentaries as saying husband and wife were one and that one was the
husband. However, in the late 1500s and through the entire 1600s, English common law began to
limit the right of husbands to chastise their wives. Thus, common law developed the rule of thumb,
which allowed husbands to beat their wives with a rod or stick no thicker than their thumb.
In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict
corporeal punishment ceased. Even then, the preservation of the family was given more importance
than preventing violence to women.
The metamorphosis of the law on violence in the United States followed that of the English common
law. In 1871, the Supreme Court of Alabama became the first appellate court to strike down the
common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her, spit
in her face or kick her about the floor, or to inflict upon her like indignities, is not now acknowledged
by our law... In person, the wife is entitled to the same protection of the law that the husband can
invoke for himself.
As time marched on, the women's advocacy movement became more organized. The temperance
leagues initiated it. These leagues had a simple focus. They considered the evils of alcoholism as
the root cause of wife abuse. Hence, they demonstrated and picketed saloons, bars and their
husbands' other watering holes. Soon, however, their crusade was joined by suffragette movements,
expanding the liberation movement's agenda. They fought for women's right to vote, to own property,
and more. Since then, the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the domestic violence to the public gaze.
They succeeded in transforming the issue into an important public concern. No less than the United
States Supreme Court, in 1992 case Planned Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately two million women are the victims of
severe assaults by their male partners. In a 1985 survey, women reported that nearly one of every
eight husbands had assaulted their wives during the past year. The [American Medical Association]
views these figures as "marked underestimates," because the nature of these incidents discourages
women from reporting them, and because surveys typically exclude the very poor, those who do not
speak English well, and women who are homeless or in institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on family violence agree that the true incidence of
partner violence is probably double the above estimates; or four million severely assaulted women
per year."
Studies on prevalence suggest that from one-fifth to one-third of all women will be physically
assaulted by a partner or ex-partner during their lifetime... Thus on an average day in the United
States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents

involve sexual assault... In families where wife beating takes place, moreover, child abuse is often
present as well.
Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of
abuse. Psychological abuse, particularly forced social and economic isolation of women, is also
common.
Many victims of domestic violence remain with their abusers, perhaps because they perceive no
superior alternative...Many abused women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of income... Returning to one's abuser
can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all
homicide victims in the United States are killed by their spouses...Thirty percent of female homicide
victims are killed by their male partners.
Finally in 1994, the United States Congress enacted the Violence Against Women Act.
In the International front, the women's struggle for equality was no less successful. The United
States Charter and the Universal Declaration of Human Rights affirmed the equality of all human
beings. In 1979, the UN General Assembly adopted the landmark Convention on the Elimination of
all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also
adopted the Declaration on the Elimination of Violence Against Women. World conferences on the
role and rights of women have been regularly held in Mexico City, Copenhagen, Nairobi and Beijing.
The UN itself established a Commission on the Status of Women.
The Philippines has been in cadence with the half and full steps of all these women's
movements. No less than Section 14, Article II of our 1987 Constitution mandates the State to
recognize the role of women in nation building and to ensure the fundamental equality before the law
of women and men. Our Senate has ratified the CEDAW as well as the Convention on the Rights of
the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No.
9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for Protective
Measures for Victims, Prescribing Penalties therefor and for other Purposes." (Citations omitted)
B. Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women
and children show that
x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total
cases reported (9,903). And for the first semester of 2003, there were 2,381 reported cases out of
4,354 cases which represent 54.31%. xxx (T)he total number of women in especially difficult
circumstances served by the Department of Social Welfare and Development (DSWD) for the year
2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx
(T)here are 1,091 DSWD cases out of a total number of 3,471 cases for the first semester of 2003.
Female violence comprised more than 90% of all forms of abuse and violence and more than 90% of
these reported cases were committed by the women's intimate partners such as their husbands and
live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence

against women across an eight-year period from 2004 to August of 2011 with violations under R.A.
9262 ranking first among the different VAW categories since its implementation in 2004, 74 thus:
Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*
Reported
Cases

200
4

200
5

200
6

200
7

200
8

200
9

2010

2011

997

927

659

837

811

770

1,042

832

Incestuous
Rape

38

46

26

22

28

27

19

23

Attempted
Rape

194

148

185

147

204

167

268

201

Acts of
Lasciviousne
ss

580

536

382

358

445

485

745

625

Physical
Injuries

3,55
3

2,33
5

1,89
2

1,50
5

1,30
7

1,49
8

2,018

1,588

53

37

38

46

18

54

83

63

RA 9262

218

924

1,26
9

2,38
7

3,59
9

5,28
5

9,974

9,021

Threats

319

223

199

182

220

208

374

213

62

19

29

30

19

19

25

15

121

102

93

109

109

99

158

128

RA 9208

17

11

16

24

34

152

190

62

Abduction
/Kidnapping

16

34

23

28

18

25

22

Rape

Sexual
Harassment

Seduction
Concubinag
e

29
Unjust
Vexation

Total

90

50

59

59

83

703

183

155

6,27
1

5,37
4

4,88
1

5,72
9

6,90
5

9,48
5

15,10
4

12,94
8

*2011 report covers only from January to August

Source: Philippine National Police Women and Children Protection Center (WCPC)
On the other hand, no reliable estimates may be obtained on domestic abuse and violence against
men in the Philippines because incidents thereof are relatively low and, perhaps, because many
men will not even attempt to report the situation. In the United Kingdom, 32% of women who had
ever experienced domestic violence did so four or five (or more) times, compared with 11% of the
smaller number of men who had ever experienced domestic violence; and women constituted 89%
of all those who had experienced 4 or more incidents of domestic violence. 75 Statistics in Canada
show that spousal violence by a woman against a man is less likely to cause injury than the other
way around (18 percent versus 44 percent). Men, who experience violence from their spouses are
much less likely to live in fear of violence at the hands of their spouses, and much less likely to
experience sexual assault. In fact, many cases of physical violence by a woman against a spouse
are in self-defense or the result of many years of physical or emotional abuse. 76
While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the
Philippines, the same cannot render R.A. 9262 invalid.
In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles
to pick up, gather and deposit in receptacles the manure emitted or discharged by their vehicledrawing animals in any public highways, streets, plazas, parks or alleys, said ordinance was
challenged as violative of the guaranty of equal protection of laws as its application is limited to
owners and drivers of vehicle-drawing animals and not to those animals, although not utilized, but
similarly pass through the same streets.
The ordinance was upheld as a valid classification for the reason that, while there may be nonvehicle-drawing animals that also traverse the city roads, "but their number must be negligible and
their appearance therein merely occasional, compared to the rig-drawing ones, as not to constitute a
menace to the health of the community."77 The mere fact that the legislative classification may result
in actual inequality is not violative of the right to equal protection, for every classification of persons
or things for regulation by law produces inequality in some degree, but the law is not thereby
rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and sentencing, crimes against women
are often treated differently and less seriously than other crimes. This was argued by then United
States Senator Joseph R. Biden, Jr., now Vice President, chief sponsor of the Violence Against
Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress'

authority under the Commerce and Equal Protection Clauses. He stressed that the widespread
gender bias in the U.S. has institutionalized historic prejudices against victims of rape or domestic
violence, subjecting them to "double victimization" first at the hands of the offender and then of the
legal system.79
Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that
"(w)henever violence occurs in the family, the police treat it as a private matter and advise the
parties to settle the conflict themselves. Once the complainant brings the case to the prosecutor, the
latter is hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or
reluctance to be involved by the police and prosecution reinforces the escalating, recurring and often
serious nature of domestic violence."80
Sadly, our own courts, as well, have exhibited prejudices and biases against our women.
In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct
Unbecoming of a Judge. He used derogatory and irreverent language in reference to the
complainant in a petition for TPO and PPO under R.A. 9262, calling her as "only a live-in partner"
and presenting her as an "opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila
even called her a "prostitute," and accused her of being motivated by "insatiable greed" and of
absconding with the contested property.81 Such remarks betrayed Judge Amila's prejudices and lack
of gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination brought about by biases and
prejudices against women. As emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting discrimination through specific measures
focused on women does not discriminate against men.82 Petitioner's contention,83 therefore, that R.A.
9262 is discriminatory and that it is an "anti-male," "husband-bashing," and "hate-men" law deserves
scant consideration. As a State Party to the CEDAW, the Philippines bound itself to take all
appropriate measures "to modify the social and cultural patterns of conduct of men and women, with
a view to achieving the elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for
men and women."84 Justice Puno correctly pointed out that "(t)he paradigm shift changing the
character of domestic violence from a private affair to a public offense will require the development
of a distinct mindset on the part of the police, the prosecution and the judges." 85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose of R.A. 9262, which is to
address violence committed against women and children, spelled out in its Declaration of Policy, as
follows:
SEC. 2. Declaration of Policy. It is hereby declared that the State values the dignity of women and
children and guarantees full respect for human rights. The State also recognizes the need to protect
the family and its members particularly women and children, from violence and threats to their
personal safety and security.
Towards this end, the State shall exert efforts to address violence committed against women and
children in keeping with the fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the Convention on the Elimination of All
Forms of Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August 5,
1981. Subsequently, the Optional Protocol to the CEDAW was also ratified by the Philippines on
October 6, 2003.86 This Convention mandates that State parties shall accord to women equality with
men before the law87 and shall take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the Rights of the Child and its two
protocols.89 It is, thus, bound by said Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was
promulgated, but to future conditions as well, for as long as the safety and security of women and
their children are threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3
thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a woman who is his wife, former
wife, or against a woman with whom the person has or had a sexual or dating relationship, or with
whom he has a common child, or against her child whether legitimate or illegitimate, within or without
the family abode, which result in or is likely to result in physical, sexual, psychological harm or
suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or
arbitrary deprivation of liberty. It includes, but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical harm;
B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her
child. It includes, but is not limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as
a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;
b) acts causing or attempting to cause the victim to engage in any sexual activity by
force, threat of force, physical or other harm or threat of physical or other harm or
coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional
suffering of the victim such as but not limited to intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated verbal abuse and marital infidelity. It includes
causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of
the family to which the victim belongs, or to witness pornography in any form or to witness abusive
injury to pets or to unlawful or unwanted deprivation of the right to custody and/or visitation of
common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent
which includes, but is not limited to the following:
1. withdrawal of financial support or preventing the victim from engaging in any
legitimate profession, occupation, business or activity, except in cases wherein the
other spouse/partner objects on valid, serious and moral grounds as defined in
Article 73 of the Family Code;
2. deprivation or threat of deprivation of financial resources and the right to the use
and enjoyment of the conjugal, community or property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely controlling the conjugal
money or properties.
It should be stressed that the acts enumerated in the aforequoted provision are attributable to
research that has exposed the dimensions and dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination of Violence Against Women. 90 Hence, the
argument advanced by petitioner that the definition of what constitutes abuse removes the difference
between violent action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in
his defense. The acts enumerated above are easily understood and provide adequate contrast
between the innocent and the prohibited acts. They are worded with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited, and need not guess at
its meaning nor differ in its application.91 Yet, petitioner insists92 that phrases like "depriving or
threatening to deprive the woman or her child of a legal right," "solely controlling the conjugal or
common money or properties," "marital infidelity," and "causing mental or emotional anguish" are so
vague that they make every quarrel a case of spousal abuse. However, we have stressed that the
"vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld
not absolute precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather
than meticulous specificity, is permissible as long as the metes and bounds of the statute are clearly
delineated. An act will not be held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the
culprit. As defined above, VAWC may likewise be committed "against a woman with whom the
person has or had a sexual or dating relationship." Clearly, the use of the gender-neutral word
"person" who has or had a sexual or dating relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender be related or connected to the
victim by marriage, former marriage, or a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the Revised Penal Code (RPC). Thus, in the case of
Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be
proper respondents in the case filed by the latter upon the allegation that they and their son (GoTan's husband) had community of design and purpose in tormenting her by giving her insufficient
financial support; harassing and pressuring her to be ejected from the family home; and in
repeatedly abusing her verbally, emotionally, mentally and physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections
afforded by the due process clause of the Constitution. Says he: "On the basis of unsubstantiated
allegations, and practically no opportunity to respond, the husband is stripped of family, property,
guns, money, children, job, future employment and reputation, all in a matter of seconds, without an
inkling of what happened."95
A protection order is an order issued to prevent further acts of violence against women and their
children, their family or household members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any disruption in their daily life and
facilitate the opportunity and ability to regain control of their life. 96
"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is
afforded all the remedies necessary to curtail access by a perpetrator to the victim. This serves to
safeguard the victim from greater risk of violence; to accord the victim and any designated family or
household member safety in the family residence, and to prevent the perpetrator from committing
acts that jeopardize the employment and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from violence, to prevent their abduction
by the perpetrator and to ensure their financial support." 97
The rules require that petitions for protection order be in writing, signed and verified by the
petitioner98 thereby undertaking full responsibility, criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further violence is to be prevented," 99 the court is
authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or
property of the victim is in jeopardy and there is reasonable ground to believe that the order is
necessary to protect the victim from the immediate and imminent danger of VAWC or to prevent
such violence, which is about to recur.100
There need not be any fear that the judge may have no rational basis to issue an ex parte order. The
victim is required not only to verify the allegations in the petition, but also to attach her witnesses'
affidavits to the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process.
Just like a writ of preliminary attachment which is issued without notice and hearing because the
time in which the hearing will take could be enough to enable the defendant to abscond or dispose of
his property,102 in the same way, the victim of VAWC may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even death, if notice and hearing were
required before such acts could be prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the necessities of protecting vital public
interests,103 among which is protection of women and children from violence and threats to their
personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that
notice be immediately given to the respondent directing him to file an opposition within five (5) days
from service. Moreover, the court shall order that notice, copies of the petition and TPO be served
immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30)
days from service on the respondent.104
Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and
service of the notice upon the respondent requiring him to file an opposition to the petition within five
(5) days from service. The date of the preliminary conference and hearing on the merits shall
likewise be indicated on the notice.105

The opposition to the petition which the respondent himself shall verify, must be accompanied by the
affidavits of witnesses and shall show cause why a temporary or permanent protection order should
not be issued.106
It is clear from the foregoing rules that the respondent of a petition for protection order should be
apprised of the charges imputed to him and afforded an opportunity to present his side. Thus, the
fear of petitioner of being "stripped of family, property, guns, money, children, job, future employment
and reputation, all in a matter of seconds, without an inkling of what happened" is a mere product of
an overactive imagination. The essence of due process is to be found in the reasonable opportunity
to be heard and submit any evidence one may have in support of one's defense. "To be heard" does
not only mean verbal arguments in court; one may be heard also through pleadings. Where
opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no denial
of procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte
Motion for Renewal of the TPO that was granted only two days earlier on April 24, 2006. Likewise,
on May 23, 2006, petitioner filed a motion for the modification of the TPO to allow him visitation
rights to his children. Still, the trial court in its Order dated September 26, 2006, gave him five days
(5) within which to show cause why the TPO should not be renewed or extended. Yet, he chose not
to file the required comment arguing that it would just be an "exercise in futility," conveniently
forgetting that the renewal of the questioned TPO was only for a limited period (30 days) each time,
and that he could prevent the continued renewal of said order if he can show sufficient cause
therefor. Having failed to do so, petitioner may not now be heard to complain that he was denied due
process of law.
Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the
residence of the victim, regardless of ownership of the residence, is virtually a "blank check" issued
to the wife to claim any property as her conjugal home. 108
The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that
this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or all
of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of the offended party, regardless of
ownership of the residence, either temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent must remove personal effects
from the residence, the court shall direct a law enforcement agent to accompany the respondent to
the residence, remain there until the respondent has gathered his things and escort him from the
residence;
xxxx
Indubitably, petitioner may be removed and excluded from private respondent's residence,
regardless of ownership, only temporarily for the purpose of protecting the latter. Such removal and
exclusion may be permanent only where no property rights are violated. How then can the private
respondent just claim any property and appropriate it for herself, as petitioner seems to suggest?

The non-referral of a VAWC case

to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation
and counseling, the law has done violence to the avowed policy of the State to "protect and
strengthen the family as a basic autonomous social institution." 109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof
to a mediator. The reason behind this provision is well-explained by the Commentary on Section 311
of the Model Code on Domestic and Family Violence as follows: 110
This section prohibits a court from ordering or referring parties to mediation in a proceeding for an
order for protection. Mediation is a process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at hand. Violence, however, is not a subject
for compromise. A process which involves parties mediating the issue of violence implies that the
victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection
is problematic because the petitioner is frequently unable to participate equally with the person
against whom the protection order has been sought. (Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of judicial power which, under the
Constitution, is placed upon the "Supreme Court and such other lower courts as may be established
by law" and, thus, protests the delegation of power to barangay officials to issue protection
orders.111 The pertinent provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. Barangay Protection
Orders (BPOs) refer to the protection order issued by the Punong Barangay ordering the perpetrator
to desist from committing acts under Section 5 (a) and (b) of this Act. A Punong Barangay who
receives applications for a BPO shall issue the protection order to the applicant on the date of filing
after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to
act on the application for a BPO, the application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the order must be accompanied by an
attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of
an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the
same on the respondent, or direct any barangay official to effect its personal service.
1wphi1

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong
Barangay.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.112 On the other hand, executive power "is generally defined as the
power to enforce and administer the laws. It is the power of carrying the laws into practical operation
and enforcing their due observance."113
As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his
unavailability, by any available Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening to cause the woman or her

child physical harm. Such function of the Punong Barangay is, thus, purely executive in nature, in
pursuance of his duty under the Local Government Code to "enforce all laws and ordinances," and
to "maintain public order in the barangay."114
We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of
certain facts and to apply the law thereto in order to determine what his official conduct shall be and
the fact that these acts may affect private rights do not constitute an exercise of judicial powers." 115
In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding
"whether there is reasonable ground to believe that an offense has been committed and the accused
is probably guilty thereof," the Punong Barangay must determine reasonable ground to believe that
an imminent danger of violence against the woman and her children exists or is about to recur that
would necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor
is, concededly, an executive, not a judicial, function. The same holds true with the issuance of a
BPO.
We need not even belabor the issue raised by petitioner that since barangay officials and other law
enforcement agencies are required to extend assistance to victims of violence and abuse, it would
be very unlikely that they would remain objective and impartial, and that the chances of acquittal are
nil. As already stated, assistance by barangay officials and other law enforcement agencies is
consistent with their duty to enforce the law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear
conflict with the Constitution, not merely a doubtful or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of the Court. In other words, the grounds for nullity
must be beyond reasonable doubt.116 In the instant case, however, no concrete evidence and
convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality
of R.A. 9262, which is an act of Congress and signed into law by the highest officer of the co-equal
executive department. As we said in Estrada v. Sandiganbayan, 117 courts must assume that the
legislature is ever conscious of the borders and edges of its plenary powers, and passed laws with
full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare
of the majority.
We reiterate here Justice Puno's observation that "the history of the women's movement against
domestic violence shows that one of its most difficult struggles was the fight against the violence of
law itself. If we keep that in mind, law will not again be a hindrance to the struggle of women for
equality but will be its fulfillment."118Accordingly, the constitutionality of R.A. 9262 is, as it should be,
sustained.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.
SO ORDERED.

Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION
SHARICA MARI L. GO-TAN
Petitioner,

G.R. No. 168852

Present:
YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.

- versus -

SPOUSES PERFECTO C. TAN

and JUANITA L. TAN,
Promulgated:
*
Respondents.
September 30, 2008
x----------------------------------------------------------x

DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court assailing the Resolution[1] dated March 7, 2005 of the Regional Trial Court (RTC),
Branch
94, Quezon City in Civil
Case No. Q-05-54536 and the RTC
[2]
Resolution dated July 11, 2005 which denied petitioner's Verified Motion for
Reconsideration.
The factual background of the case:
On April 18, 1999, Sharica Mari L. Go-Tan (petitioner) and Steven L. Tan (Steven) were
married.[3] Out of this union, two female children were born, Kyra Danielle[4] and Kristen
Denise.[5] On January 12, 2005, barely six years into the marriage, petitioner filed a
Petition with Prayer for the Issuance of a Temporary Protective Order (TPO) [6] against
Steven and her parents-in-law, Spouses Perfecto C. Tan and Juanita L. Tan (respondents)

before the RTC. She alleged that Steven, in conspiracy with respondents, were causing
verbal, psychological and economic abuses upon her in violation of Section 5, paragraphs
(e)(2)(3)(4), (h)(5), and (i)[7] of Republic Act (R.A.) No. 9262,[8] otherwise known as the
Anti-Violence Against Women and Their Children Act of 2004.
On January 25, 2005, the RTC issued an Order/Notice[9] granting petitioner's prayer for a
TPO.
On February 7, 2005, respondents filed a Motion to Dismiss with Opposition to the
Issuance of Permanent Protection Order Ad Cautelam and Comment on the Petition,
[10]
contending that the RTC lacked jurisdiction over their persons since, as parents-in-law of
the petitioner, they were not covered by R.A. No. 9262.
On February 28, 2005, petitioner filed a Comment on Opposition[11] to respondents' Motion
to Dismiss arguing that respondents were covered by R.A. No. 9262 under a liberal
interpretation thereof aimed at promoting the protection and safety of victims of violence.
On March 7, 2005, the RTC issued a Resolution[12] dismissing the case as to respondents
on the ground that, being the parents-in-law of the petitioner, they were not
included/covered as respondents under R.A. No. 9262 under the well-known rule of
law expressio unius est exclusio alterius.[13]
On March 16, 2005, petitioner filed her Verified Motion for Reconsideration[14] contending
that the doctrine of necessary implication should be applied in the broader interests of
substantial justice and due process.
On April 8, 2005, respondents filed their Comment on the Verified Motion for
Reconsideration[15] arguing that petitioner's liberal construction unduly broadened the
provisions of R.A. No. 9262 since the relationship between the offender and the alleged
victim was an essential condition for the application of R.A. No. 9262.
On July 11, 2005, the RTC issued a Resolution[16] denying petitioner's
Verified Motion for Reconsideration. The RTC reasoned that to include respondents under
the coverage of R.A. No. 9262 would be a strained interpretation of the provisions of the
law.

Hence, the present petition on a pure question of law, to wit:

WHETHER
OR
NOT
RESPONDENTS-SPOUSES
PERFECTO & JUANITA, PARENTS-IN-LAW OF SHARICA, MAY BE
INCLUDED IN THE PETITION FOR THE ISSUANCE OF A
PROTECTIVE ORDER, IN ACCORDANCE WITH REPUBLIC ACT NO.
9262, OTHERWISE KNOWN AS THE ANTI-VIOLENCE AGAINST
WOMEN AND THEIR CHILDREN ACT OF 2004.[17]

Petitioner contends that R.A. No. 9262 must be understood in the light of the provisions of
Section 47 of R.A. No. 9262 which explicitly provides for the suppletory application of the
Revised Penal Code (RPC) and, accordingly, the provision on conspiracy under Article 8
of the RPC can be suppletorily applied to R.A. No. 9262; that Steven and respondents had
community of design and purpose in tormenting her by giving her insufficient financial
support; harassing and pressuring her to be ejected from the family home; and in
repeatedly abusing her verbally, emotionally, mentally and physically; that respondents
should be included as indispensable or necessary parties for complete resolution of the
case.
On the other hand, respondents submit that they are not covered by R.A. No. 9262 since
Section 3 thereof explicitly provides that the offender should be related to the victim only
by marriage, a former marriage, or a dating or sexual relationship; that allegations on the
conspiracy of respondents require a factual determination which cannot be done by this
Court in a petition for review; that respondents cannot be characterized as indispensable or
necessary parties, since their presence in the case is not only unnecessary but altogether
illegal, considering the non-inclusion of in-laws as offenders under Section 3 of R.A. No.
9262.
The Court rules in favor of the petitioner.
Section 3 of R.A. No. 9262 defines ''[v]iolence against women and their children'' as any
act or a series of acts committed by any person against a woman who is his wife, former
wife, or against a woman with whom the person has or had a sexual or dating relationship,
or with whom he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is likely to result in
physical, sexual, psychological harm or suffering, or economic abuse including threats of
such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty.

While the said provision provides that the offender be related or connected to the victim by
marriage, former marriage, or a sexual or dating relationship, it does not preclude the
application of the principle of conspiracy under the RPC.
Indeed, Section 47 of R.A. No. 9262 expressly provides for the suppletory application of
the RPC, thus:
SEC. 47. Suppletory Application. - For purposes of this Act, the Revised Penal
Code and other applicable laws, shall have suppletory application. (Emphasis supplied)

Parenthetically, Article 10 of the RPC provides:

ART. 10. Offenses not subject to the provisions of this Code. Offenses
which are or in the future may be punishable under special laws are not subject
to the provisions of this Code. This Code shall be supplementary to such
laws, unless the latter should specially provide the contrary. (Emphasis
supplied)

Hence, legal principles developed from the Penal Code may be applied in a supplementary
capacity to crimes punished under special laws, such as R.A. No. 9262, in which the
special law is silent on a particular matter.
Thus, in People v. Moreno,[18] the Court applied suppletorily the provision on subsidiary
penalty under Article 39 of the RPC to cases of violations of Act No. 3992, otherwise
known as the Revised Motor Vehicle Law, noting that the special law did not contain any
provision that the defendant could be sentenced with subsidiary imprisonment in case of
insolvency.
In People v. Li Wai Cheung,[19] the Court applied suppletorily the rules on the service of
sentences provided in Article 70 of the RPC in favor of the accused who was found guilty
of multiple violations of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of
1972, considering the lack of similar rules under the special law.
In People v. Chowdury,[20] the Court applied suppletorily Articles 17, 18 and 19 of the
RPC to define the words principal, accomplices and accessories under R.A. No. 8042,
otherwise known as the Migrant Workers and Overseas Filipinos Act of 1995, because said
words were not defined therein, although the special law referred to the same terms in
enumerating the persons liable for the crime of illegal recruitment.

In Yu v. People,[21] the Court applied suppletorily the provisions on subsidiary

imprisonment under Article 39 of the RPC to Batas Pambansa (B.P.) Blg. 22, otherwise
known as the Bouncing Checks Law, noting the absence of an express provision on
subsidiary imprisonment in said special law.
Most recently, in Ladonga v. People,[22] the Court applied suppletorily the principle of
conspiracy under Article 8 of the RPC to B.P. Blg. 22 in the absence of a contrary
provision therein.
With more reason, therefore, the principle of conspiracy under Article 8 of the RPC may be
applied suppletorily to R.A. No. 9262 because of the express provision of Section 47 that
the RPC shall be supplementary to said law. Thus, general provisions of the RPC, which
by their nature, are necessarily applicable, may be applied suppletorily.
Thus, the principle of conspiracy may be applied to R.A. No. 9262. For once conspiracy or
action in concert to achieve a criminal design is shown, the act of one is the act of all the
conspirators, and the precise extent or modality of participation of each of them becomes
secondary, since all the conspirators are principals.[23]
It must be further noted that Section 5 of R.A. No. 9262 expressly recognizes that the acts
of violence against women and their children may be committed by an offender through
another, thus:
SEC. 5. Acts of Violence Against Women and Their Children. - The crime of violence
against women and their children is committed through any of the following acts:
xxx
(h) Engaging in purposeful, knowing, or reckless conduct, personally or through another,
that alarms or causes substantial emotional or psychological distress to the woman or her
child. This shall include, but not be limited to, the following acts:

(1) Stalking or following the woman or her child in public or private places;
(2) Peering in the window or lingering outside the residence of the woman or
her child;

(3) Entering or remaining in the dwelling or on the property of the woman or

her child against her/his will;
(4) Destroying the property and personal belongings or inflicting harm to
animals or pets of the woman or her child; and
(5) Engaging in any form of harassment or violence; x x x. (Emphasis supplied)

In addition, the protection order that may be issued for the purpose of
preventing further acts of violence against the woman or her child may include
individuals other than the offending husband, thus:
SEC. 8. Protection Orders. x x x The protection orders that may be issued
under this Act shall include any, some or all of the following reliefs:
(a) Prohibition of the respondent from threatening to commit or committing,
personally or through another, any of the acts mentioned in Section 5 of this
Act;
(b) Prohibition of the respondent from harassing, annoying, telephoning,
contacting or otherwise communicating with the petitioner, directly
or indirectly; x x x (Emphasis supplied)

Finally, Section 4 of R.A. No. 9262 calls for a liberal construction of the law, thus:
SEC. 4. Construction. - This Act shall be liberally construed to promote the
protection and safety of victims of violence against women and their children.
(Emphasis supplied)
It bears mention that the intent of the statute is the law [24] and that this intent must be
effectuated by the courts. In the present case, the express language of R.A. No. 9262
reflects the intent of the legislature for liberal construction as will best ensure the attainment
of the object of the law according to its true intent, meaning and spirit - the protection and
safety of victims of violence against women and children.

Thus,
contrary
to
the RTC's pronouncement,
the
maxim "expressio unios est exclusio alterius finds no application here. It must be
remembered that this maxim is only an ancillary rule of statutory construction. It is not of
universal application. Neither is it conclusive. It should be applied only as a means of

discovering legislative intent which is not otherwise manifest and should not be permitted
to defeat the plainly indicated purpose of the legislature.[25]
The Court notes that petitioner unnecessarily argues at great length on the attendance of
circumstances evidencing the conspiracy or connivance of Steven and respondents to cause
verbal, psychological and economic abuses upon her. However, conspiracy is
an evidentiary matter which should be threshed out in a full-blown trial on the merits and
cannot be determined in the present petition since this Court is not a trier of facts.[26] It is
thus premature for petitioner to argue evidentiary matters since this controversy is centered
only on the determination of whether respondents may be included in a petition under R.A.
No. 9262. The presence or absence of conspiracy can be best passed upon after a trial on
the merits.
Considering the Court's ruling that the principle of conspiracy may be
applied suppletorily to R.A. No. 9262, the Court will no longer delve on whether
respondents may be considered indispensable or necessary parties. To do so would be an
exercise in superfluity.
WHEREFORE, the instant petition is GRANTED. The assailed Resolutions
dated March 7, 2005 and July 11, 2005 of the Regional Trial Court, Branch
94, Quezon City in Civil Case No. Q-05-54536 are hereby PARTLY REVERSED
and SET ASIDE insofar as the dismissal of the petition against respondents is
concerned.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 106169 February 14, 1994

SAMSON T. SABALONES, petitioner,
vs.
THE COURT OF APPEALS and REMEDIOS GAVIOLA-SABALONES, respondents.
Leven S. Puno for petitioner.

Benigno M. Puno for private respondent.

CRUZ, J.:
The subject of this petition is the preliminary injunction issued by the respondent court pending
resolution of a case on appeal. We deal only with this matter and not the merits of the case.
As a member of our diplomatic service assigned to different countries during his successive tours of
duties, petitioner Samson T. Sabalones left to his wife, herein respondent Remedios GaviolaSabalones, the administration of some of their conjugal, properties for fifteen years.
Sabalones retired as ambassador in 1985 and came back to the Philippines but not to his wife and
their children. Four years later, he filed an action for judicial authorization to sell a building and lot
located at
#17 Eisenhower St., Greenhills, San Juan, Metro Manila, belonging to the conjugal partnership. He
claimed that he was sixty-eight years old, very sick and living alone without any income, and that his
share of the proceeds of the sale to defray the prohibitive cost of his hospitalization and medical
treatment.
In her answer, the private respondent opposed the authorization and filed a counterclaim for legal
separation. She alleged that the house in Greenhills was being occupied by her and their six children
and that they were depending for their support on the rentals from another conjugal property, a
building and lot in Forbes Park which was on lease to Nobumichi Izumi. She also informed the court
that despite her husband's retirement, he had not returned to his legitimate family and was instead
maintaining a separate residence in Don Antonio Heights, Fairview, Quezon City, with Thelma
Cumareng and their three children.
In her prayer, she asked the court to grant the decree of legal separation and order the liquidation of
their conjugal properties, with forfeiture of her husband's share therein because of his adultery. She
also prayed that it enjoin the petitioner and his agents from a) disturbing the occupants of the Forbes
Park property and b) disposing of or encumbering any of the conjugal properties.
After trial, Judge Mariano M. Umali, found that the petitioner had indeed contracted a bigamous
marriage on October 5, 1981, with Thelma Cumareng, to whom he had returned upon his retirement
in 1985 at a separate residence. The court thus decreed the legal separation of the spouses and the
forfeiture of the petitioner's share in the conjugal properties, declaring as well that he was not entitled
to support from his respondent wife. 1
This decision was appealed to the respondent court. Pendente lite, the respondent wife filed a
motion for the issuance of a writ of preliminary injunction to enjoin the petitioner from interfering with
the administration of their properties in Greenhills and Forbes Park. She alleged inter alia that he
had harassed the tenant of the Forbes Park property by informing him that his lease would not be
renewed. She also complained that the petitioner had disposed of one of their valuable conjugal
properties in the United States in favor of his paramour, to the prejudice of his legitimate wife and
children.

The petitioner opposed this motion and filed his own motion to prevent his wife from entering into a
new contract of lease over the Forbes Park property with its present tenant, or with future tenants,
without his consent.
After hearing, the Court of Appeals, in an order dated April 7, 1992, granted the preliminary
injunction prayed for by his wife. 2
The petitioner now assails this order, arguing that since the law provides for a joint administration of
the conjugal properties by the husband and wife, no injunctive relief can be issued against one or the
other because no right will be violated. In support of this contention, he cites Art. 124 of the Family
Code, reading as follows:
Art. 124. The administration and enjoyment of the conjugal partnership property shall
belong to both spouses jointly. In case of disagreement, the husband's decision shall
prevail, subject to recourse to the court by the wife for proper remedy, which must be
availed of within five years from the date of the contract implementing such decision.
In the event that one spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal properties, the other spouse may assume sole powers
of the administration. These powers do not include disposition or encumbrance
without authority of the court or the written consent of the other spouse. In the
absence of such authority or consent, the disposition or encumbrance shall be void.
However, the transaction shall be construed and the third person, and may be
perfected as a binding contract upon the acceptance by the other spouse or the
authorization by the court before the offer is withdrawn by either or both offerors.
He further notes that the respondent court failed to appoint an administrator of the conjugal assets
as mandated by Art. 61 of the Code, thus:
Art. 61 After the filing of the petition for legal separation, the spouses shall be entitled
to live separately from each other.
The court, in the absence of a written agreement between the spouses, shall
designate either of them or a third person to administer the absolute community or
conjugal partnership property. The administrator appointed by the court shall have
the same powers and duties as those of a guardian under the Rules of Court.
The Court has carefully considered the issues and the arguments of the parties and finds that the
petition has no merit.
We agree with the respondent court that pending the appointment of an administrator over the whole
mass of conjugal assets, the respondent court was justified in allowing the wife to continue with her
administration. It was also correct, taking into account the evidence adduced at the hearing, in
enjoining the petitioner from interfering with his wife's administration pending resolution of the
appeal.

The law does indeed grant to the spouses joint administration over the conjugal properties as clearly
provided in the above-cited Article 124 of the Family Code. However, Article 61, also above quoted,
states that after a petition for legal separation has been filed, the trial court shall, in the absence of a
written agreement between the couple, appoint either one of the spouses or a third person to act as
the administrator.
While it is true that no formal designation of the administrator has been made, such designation was
implicit in the decision of the trial court denying the petitioner any share in the conjugal properties
(and thus also disqualifying him as administrator thereof). That designation was in effect approved
by the Court of Appeals when it issued in favor of the respondent wife the preliminary injunction now
under challenge.
The primary purpose of the provisional remedy of injunction is to preserve the status quo of the
things subject of the action or the relations between the parties and thus protect the rights of the
plaintiff respecting these matters during the pendency of the suit. Otherwise, the defendant may,
before final judgment, do or continue doing the act which the plaintiff asks the court to restrain and
thus make ineffectual the final judgment that may be rendered afterwards in favor of the plaintiff. 3
As observed by Francisco, "Injunction is primarily a preventive remedy. Its province is to afford relief
against future acts which are against equity and good conscience and to keep and preserve the
thing in the status quo, rather than to remedy what is past or to punish for wrongful acts already
committed. It may issue to prevent future wrongs although no right has yet been violated." 4
The Court notes that the wife has been administering the subject properties for almost nineteen
years now, apparently without complaint on the part of the petitioner. He has not alleged, much less
shown, that her administration has caused prejudice to the conjugal partnership. What he merely
suggests is that the lease of the Forbes Park property could be renewed on better terms, or he
should at least be given his share of the rentals.
In her motion for the issuance of a preliminary injunction, the respondent wife alleged that the
petitioner's harassment of their tenant at Forbes Park
would jeopardize the lease and deprive her and her children of the income therefrom on which they
depend for their subsistence. She also testified the numerous . . . including various dollar accounts,
two houses in Quezon City and Cebu City, and a Mercedes Benz. The private respondent also
complained that on June 10, 1991, the petitioner executed a quitclaim over their conjugal property in
Apple Valley, San Bernardino, California, U.S.A., in favor of Thelma Cumareng, to improve his
paramour's luxurious lifestyle to the prejudice of his legitimate family.
These allegations, none of which was refuted by the husband, show that the injunction is necessary
to protect the interests of the private respondent and her children and prevent the dissipation of the
conjugal assets.
The twin requirements of a valid injunction are the existence of a right and its actual or threatened
violation. 5Regardless of the outcome of the appeal, it cannot be denied that as the petitioner's legitimate
wife (and the complainant and injured spouse in the action for legal separation), the private respondent
has a right to a share (if not the whole) of the conjugal estate. There is also, in our view, enough evidence

to raise the apprehension that entrusting said estate to the petitioner may result in its improvident
disposition to the detriment of his wife and children. We agree that inasmuch as the trial court had earlier
declared the forfeiture of the petitioner's share in the conjugal properties, it would be prudent not to allow
him in the meantime to participate in its management.

Let it be stressed that the injunction has not permanently installed the respondent wife as the
administrator of the whole mass of conjugal assets. It has merely allowed her to continue
administering the properties in the meantime without interference from the petitioner, pending the
express designation of the administrator in accordance with Article 61 of the Family Code.
WHEREFORE, the petition is DENIED for lack of merit. It is so ordered.
Davide, Jr., Bellosillo, Quiason and Kapunan, JJ, concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-30977 January 31, 1972

CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant,
vs.
EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.

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

Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29
July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387,
dismissing said case for legal separation on the ground that the death of the therein plaintiff, Carmen
O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as
the action itself. The dismissal order was issued over the objection of Macario Lapuz, the heir of the
deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the
case prosecuted to final judgment.

On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S.
Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically
on 30 September 1934; that they had lived together as husband and wife continuously until 1943
when her husband abandoned her; that they had no child; that they acquired properties during their
marriage; and that she discovered her husband cohabiting with a Chinese woman named Go Hiok at
1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal
separation, which, among others, would order that the defendant Eufemio S. Eufemio should be
deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged
affirmative and special defenses, and, along with several other claims involving money and other
properties, counter-claimed for the declaration of nullity ab initio of his marriage with Carmen O.
Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law
and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective evidence. But
before the trial could be completed (the respondent was already scheduled to present surrebuttal
evidence on 9 and 18 June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31
May 1969. Counsel for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2)
grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for
in Article 102 of the Civil Code; and that the death of Carmen abated the action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her
father, Macario Lapuz. Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the
order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the
question of whether or not the plaintiff's cause of action has survived, which the court resolved in the
negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969.
After first securing an extension of time to file a petition for review of the order of dismissal issued by
the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969.
The same was given due course and answer thereto was filed by respondent, who prayed for the
affirmance of the said order. 3
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he
did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said
counterclaims by praying for the affirmance of the order that dismissed not only the petition for legal
separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab
initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did
not act on the motion for substitution) stated the principal issue to be as follows:

When an action for legal separation is converted by the counterclaim into one for a
declaration of nullity of a marriage, does the death of a party abate the proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to
one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that
"the respondent has acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22).
Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self
same marriage can stand independent and separate adjudication. They are not inseparable nor was
the action for legal separation converted into one for a declaration of nullity by the counterclaim, for
legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage
as a pre-condition.
The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for
legal separation, abate the action? If it does, will abatement also apply if the action involves property
rights? .
An action for legal separation which involves nothing more than the bed-and-board separation of the
spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the
Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else)
to claim legal separation; and in its Article 108, by providing that the spouses can, by their
reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already
rendered. Being personal in character, it follows that the death of one party to the action causes the
death of the action itself actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce, because the
marriage is dissolved. The heirs cannot even continue the suit, if the death of the
spouse takes place during the course of the suit (Article 244, Section 3). The action
is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H.
1933, 332.") 4 .
Marriage is a personal relation or status, created under the sanction of law, and an
action for divorce is a proceeding brought for the purpose of effecting a dissolution of
that relation. The action is one of a personal nature. In the absence of a statute to the
contrary, the death of one of the parties to such action abates the action, for the
reason that death has settled the question of separation beyond all controversy and
deprived the court of jurisdiction, both over the persons of the parties to the action
and of the subject-matter of the action itself. For this reason the courts are almost
unanimous in holding that the death of either party to a divorce proceeding, before
final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72;
Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134
Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md.
185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141. 5
The same rule is true of causes of action and suits for separation and maintenance (Johnson vs.
Bates, Ark. 101 SW 412; 1 Corpus Juris 208).

A review of the resulting changes in property relations between spouses shows that they are solely
the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it
occurs prior to the decree. On the point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the following effects:
(1) The spouses shall be entitled to live separately from each other, but the marriage
bonds shall not be severed; .
(2) The conjugal partnership of gains or the absolute conjugal community of property
shall be dissolved and liquidated, but the offending spouse shall have no right to any
share of the profits earned by the partnership or community, without prejudice to the
provisions of article 176;
(3) The custody of the minor children shall be awarded to the innocent spouse,
unless otherwise directed by the court in the interest of said minors, for whom said
court may appoint a guardian;
(4) The offending spouse shall be disqualified from inheriting from the innocent
spouse by intestate succession. Moreover, provisions in favor of the offending
spouse made in the will of the innocent one shall be revoked by operation of law.
From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or
of the absolute community of property), the loss of right by the offending spouse to any share of the
profits earned by the partnership or community, or his disqualification to inherit by intestacy from the
innocent spouse as well as the revocation of testamentary provisions in favor of the offending
spouse made by the innocent one, are all rights and disabilities that, by the very terms of the Civil
Code article, are vested exclusively in the persons of the spouses; and by their nature and intent,
such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to
said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule
3, of the Rules of Court, to warrant continuation of the action through a substitute of the deceased
party.
Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished,
the court shall order, upon proper notice, the legal representative of the deceased to
appear and to be substituted for the deceased, within a period of thirty (30) days, or
within such time as may be granted...
The same result flows from a consideration of the enumeration of the actions that survive for or
against administrators in Section 1, Rule 87, of the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought against executor or
administrator. No action upon a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or administrator; but actions to
recover real or personal property, or an interest therein, from the estate, or to enforce

a lien thereon, and actions to recover damages for an injury to person or property,
real or personal, may be commenced against him.
Neither actions for legal separation or for annulment of marriage can be deemed fairly included in
the enumeration..
A further reason why an action for legal separation is abated by the death of the plaintiff, even if
property rights are involved, is that these rights are mere effects of decree of separation, their source
being the decree itself; without the decree such rights do not come into existence, so that before the
finality of a decree, these claims are merely rights in expectation. If death supervenes during the
pendency of the action, no decree can be forthcoming, death producing a more radical and definitive
separation; and the expected consequential rights and claims would necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage
to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the
latter, and there could be no further interest in continuing the same after her demise, that
automatically dissolved the questioned union. Any property rights acquired by either party as a result
of Article 144 of the Civil Code of the Philippines 6 could be resolved and determined in a proper
action for partition by either the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83,
paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife
having been an absentee for seven consecutive years, or when she had been generally believed
dead, still the action for annulment became extinguished as soon as one of the three persons
involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that the action for
annulment should be brought during the lifetime of any one of the parties involved. And furthermore,
the liquidation of any conjugal partnership that might have resulted from such voidable marriage
must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly
provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is
hereby affirmed. No special pronouncement as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and
Makasiar, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-20043

November 28, 1964

LOURDES RAMIREZ-CUADERNO, petitioner,

vs.
ANGEL CUADERNO, respondent.
R. L. Ramos and O. F. Disini for petitioner.
Severino C. Dominguez for respondent.
BARRERA, J.:
As a consequence of a complaint for support filed by Lourdes Ramirez-Cuaderno on August 14,
1957, against her husband Angel Cuaderno, the Juvenile and Domestic Relations Court, after due
hearing, rendered judgment ordering the latter to give the plaintiff-wife a monthly support of P150.00,
from the date of the filing of the complaint, plus attorney's fees, and to pay, the costs. On appeal by
the husband to the Court of Appeals, said decision was reversed and set aside "so that (in the
language of the court) appellant and appellee may again resume cohabitation which they are hereby
admonished to do as their duty as husband and wife." The wife filed the instant petition for review of
the aforesaid ruling of the Court of Appeals.
It has been established that the couple were living separately since November 17, 1956 when the
husband, after having inflicted bodily injuries on the wife in the course of a quarrel between them,
took her to her mother's house where the latter stayed until the institution of the claim for support.
The wife claimed maltreatment and abandonment by the husband as basis therefor, whereas the
husband, in resisting her demand for maintenance, contended that it was she who left the conjugal
dwelling and, consequently, is not entitled thereto.
The trial court, in granting the wife's demand, sustained the theory that she was driven out of the
dwelling or, at least prevented from returning thereto by reason of defendant's maltreatment. The
Court of Appeals, on the other hand, while adopting the findings of the Juvenile and Domestic
Relations Court as to the husband's role in the incident that led to the separation, and
notwithstanding the declaration by the husband during the hearing that "all the trouble she (the wife)
has given me is enough for me to turn my back to her," set aside the decision of the lower court, on
the ground that it believes that the conditions were such that cohabitation between the spouses is
not yet impossible. Thus, they were admonished to live together as husband and wife.
We recognize the wisdom of the exhortation1 that in the interest of society, and perhaps of the
parties, courts should move, with caution in providing separate maintenance for the wife, a situation
which would be an acknowledgement of the de facto separation of the spouses. However, it would
be taking an unrealistic view for us to compel or urge them to live together when, at least for the
present, they specially the husband are speaking of impossibility of cohabitation. For while marriage
entitles both parties to cohabitation or consortium, the sanction therefor is the spontaneous, mutual
affection between husband and wife2 and not any legal mandate or court order. This is due to the
inherent characteristic and nature of marriage in this jurisdiction.
In the instant case, it is not disputed that the infliction of physical injuries on the wife, by the husband
gave rise to their separation. It is likewise shown it was the husband who took his wife to her parents'
home where he left her. The fact that the wife allegedly accepted money from her husband and
desisted from accepting any later, because according to the latter, she was demanding for more,

only indicates that even before the filing of the present case, the defendant-husband was already
providing something for the separate maintenance. Considering that the wife has no income of her
own, while the husband has an employment, the sum of P150.00 fixed by the trial court for the wife's
monthly support does not seem to be unreasonable. Needless to state that, as the separation has
been brought about by the husband and under the circumstances established during the trial, the
same shall subsist until a different situation between the parties shall take place.
WHEREFORE, the decision of the Court of Appeals is set aside and that of the Juvenile and
Domestic Relations Court is hereby revived, without costs. So ordered.