ARTICLE 55 LEGAL SEPARATION

G.R. No. L-53880 March 17, 1994

ENRICO L. PACETE, CLARITA DE LA CONCEPCION, EMELDA C.
PACETE, EVELINA C. PACETE and EDUARDO C. PACETE, petitioners,
vs.
HON. GLICERIO V. CARRIAGA, JR. and CONCEPCION (CONCHITA)
ALANIS PACETE, respondents.
Juan G. Sibug and Rodolfo B. Quiachon for petitioners.
Julio F. Andres, Jr. for private respondent.
VITUG, J.:
The issue in this petition for certiorari is whether or not the Court of First Instance
(now Regional Trial Court) of Cotabato, Branch I, in Cotabato City, gravely abused its
discretion in denying petitioners' motion for extension of time to file their answer in
Civil Case No. 2518, in declaring petitioners in default and in rendering its decision of
17 March 1980 which, among other things, decreed the legal separation of petitioner
Enrico L. Pacete and private respondent Concepcion Alanis and held to be null and
void ab initio the marriage of Enrico L. Pacete to Clarita de la Concepcion.
On 29 October 1979, Concepcion Alanis filed with the court below a complaint for the
declaration of nullity of the marriage between her erstwhile husband Enrico L. Pacete
and one Clarita de la Concepcion, as well as for legal separation (between Alanis and
Pacete), accounting and separation of property. In her complaint, she averred that she
was married to Pacete on 30 April 1938 before the Justice of the Peace of Cotabato,
Cotabato; that they had a child named Consuelo who was born on 11 March 1943; that
Pacete subsequently contracted (in 1948) a second marriage with Clarita de la
Concepcion in Kidapawan, North Cotabato; that she learned of such marriage only on
01 August 1979; that during her marriage to Pacete, the latter acquired vast property
consisting of large tracts of land, fishponds and several motor vehicles; that he
fraudulently placed the several pieces of property either in his name and Clarita or in
the names of his children with Clarita and other "dummies;" that Pacete ignored
overtures for an amicable settlement; and that reconciliation between her and Pacete
was impossible since he evidently preferred to continue living with Clarita.
The defendants were each served with summons on 15 November 1979. They filed a
motion for an extension of twenty (20) days from 30 November 1979 within which to
file an answer. The court granted the motion. On 18 December 1979, appearing through
a new counsel, the defendants filed a second motion for an extension of another thirty
(30) days from 20 December 1979. On 07 January 1980, the lower court granted the
motion but only for twenty (20) days to be counted from 20 December 1979 or until 09
January 1980. The Order of the court was mailed to defendants' counsel on 11 January
1980. Likely still unaware of the court order, the defendants, on 05 February 1980,
again filed another motion (dated 18 January 1980) for an extension of "fifteen (15)
days counted from the expiration of the 30-day period previously sought" within which
to file an answer. The following day, or on 06 February 1980, the court denied this last
motion on the ground that it was "filed after the original period given . . . as first
extension had expired." 1
The plaintiff thereupon filed a motion to declare the defendants in default, which the
court forthwith granted. The plaintiff was then directed to present her evidence. 2 The
court received plaintiff's evidence during the hearings held on 15, 20, 21 and 22
February 1980.
On 17 March 1980, the court 3 promulgated the herein questioned decision, disposing
of the case, thus

WHEREFORE, order is hereby issued ordering:

1. The issuance of a Decree of Legal Separation of the marriage
between, the plaintiff, Concepcion (Conchita) Alanis Pacete and the
herein defendants, Enrico L. Pacete, in accordance with the
Philippine laws and with consequences, as provided for by our laws;
2. That the following properties are hereby declared as the conjugal
properties of the partnership of the plaintiff, Concepcion (Conchita)
Alanis Pacete and the defendant, Enrico L. Pacete, half and half, to
wit:
1. The parcel of land covered by TCT No. V-815 which is a parcel of
land situated in the barrio of Langcong, Municipality of Matanog
(previously of Parang), province of Maguindanao (previously of
Cotabato province) with an area of 45,265 square meters registered
in the name of Enrico Pacete, Filipino, of legal age, married to
Conchita Alanis as shown in Exhibits "B" and "B-1" for the plaintiff.
2. A parcel of land covered by Transfer Certificate of Title No. T20442, with an area of 538 square meters and covered by Tax
Declaration No. 2650 (74) in the name of Enrico Pacete, situated in
the Poblacion of Kidapawan, North Cotabato, together with all its
improvements, which parcel of land, as shown by Exhibits "K-1" was
acquired by way of absolute deed of sale executed by Amrosio
Mondog on January 14, 1965.
3. A parcel of land covered by Transfer Certificate of Title No. T20424 and covered by Tax Declaration No. 803 (74), with an area of
5.1670 hectares, more or less, as shown by Exhibit "R", the same was
registered in the name of Enrico Pacete and the same was acquired
by Enrico Pacete last February 17, 1967 from Ambag Ampoy, as
shown by Exhibit "R-1", situated at Musan, Kidapawan, North
Cotabato.
4. A parcel of land situated at Lanao, Kidapawan, North Cotabato,
with an area of 5.0567 hectares, covered by Tax Declaration No. 4332
(74), as shown by Exhibit "S", and registered in the name of Enrico
Pacete.
5. A parcel of land covered by Transfer Certificate of Title No. T-9750,
situated at Lika, Mlang, North Cotabato, with an area of 4.9841
hectares and the same is covered by Tax Declaration No. 803 (74)
and registered in the name of Enrico Pacete and which land was
acquired by Enrico Pacete from Salvador Pacete on September 24,
1962, as shown by Exhibit "Q-1".
6. A parcel of land covered by Transfer Certificate of Title No. T9944, with an area of 9.9566 and also covered by Tax Declaration No.
8608 (74) and registered in the name of the defendant Enrico L.
Pacete which Enrico L. Pacete acquired from Sancho Balingcos last
October 22, 1962, as shown by Exhibit "L-1" and which parcel of land
is situated at (Kialab), Kiab, Matalam, North Cotabato.
7. A parcel of land covered by Transfer Certificate of Title No. T-9227,
situated at Kiab, Matalam, North Cotabato, with an area of 12.04339
hectares, more or less, and also covered by Tax Declaration No. 8607
(74) both in the name of the defendant Enrico L. Pacete which he
acquired last October 15, 1962 from Minda Bernardino, as shown by
Exhibit "M-1".

8. A parcel of land covered by Transfer Certificate of Title No. T9228, situated at Kiab, Matalam, North Cotabato, with an area of
10.8908 hectares, registered in the name of Enrico Pacete and also
covered by Tax Declaration No. 5781 (74) in the name of Enrico
Pacete and which parcel of land he acquired last September 25, 1962
from Conchita dela Torre, as shown by Exhibit "P-1".
9. A parcel of land covered by Transfer Certificate of Title No. T10301, situated at Linao, Matalam, North Cotabato, with an area of
7.2547 hectares, registered in the name of Enrico Pacete and also
covered by Tax Declaration No. 8716 (74) also in the name of Enrico
Pacete which Enrico Pacete acquired from Agustin Bijo last July 16,
1963, as shown by Exhibit "N-1".
10. A parcel of land covered by Transfer Certificate of Title No. 12728
in the name of the defendant, Enrico L. Pacete, with an area of
10.9006 hectares, situated at Linao, Matalam, North Cotabato and is
also covered by Tax Declaration No. 5745 (74) in the name of Enrico
Pacete, as shown on Exhibit "O" and which Enrico Pacete acquired
last December 31, 1963 from Eliseo Pugni, as shown on Exhibit "01".
3. Ordering the Cancellation of Original Certificate of Title No. P34243 covering Lot No. 1066, issued in the name of Evelina Pacete,
situated at Kiab, Matalam, North Cotabato, and ordering the
registration of the same in the joint name of Concepcion (Conchita)
Alanis Pacete and Enrico L. Pacete as their conjugal property, with
address on the part of Concepcion (Conchita) Alanis Pacete at
Parang, Maguindanao and on the part of Enrico L. Pacete at
Kidapawan, North Cotabato.
4. Ordering likewise the cancellation of Original Certificate of Title
No. V-20101, covering Lot No. 77, in the name of Eduardo C. Pacete,
situated at New Lawaan, Mlang, North Cotabato, and the issuance of
a new Transfer Certificate of Title in the joint name of (half and half)
Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete.
5. Ordering likewise the cancellation of Original Certificate of Title
No. P-29890, covering Lot 1068, situated at Kiab, Matalam, North
Cotabato, with an area of 12.1031 hectares, in the name of Emelda C.
Pacete and the issuance of a new Transfer Certificate of Title in the
joint name (half and half) of Concepcion (Conchita) Alanis Pacete
and Enrico L. Pacete; and declaring that the fishpond situated at
Barrio Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares
and covered by Fishpond Lease Agreement of Emelda C. Pacete,
dated July 29, 1977 be cancelled and in lieu thereof, the joint name
of Concepcion (Conchita) Alanis Pacete and her husband, Enrico L.
Pacete, be registered as their joint property, including the 50
hectares fishpond situated in the same place, Barrio Timanan, Bislig,
Surigao del Sur.
6. Ordering the following motor vehicles to be the joint properties of
the conjugal partnership of Concepcion (Conchita) Alanis Pacete and
Enrico L. Pacete, viz:
a. Motor vehicle with Plate No. T-RG-783; Make, Dodge; Motor No.
T137-20561; Chassis No. 83920393, and Type, Mcarrier;
b. Motor vehicle with Plate No. T-RG-784; Make, Dodge; Motor No.
T214-229547; Chassis No. 10D-1302-C; and Type, Mcarrier;

c. Motor vehicle with Plate No. J-PR-818; Make, Ford; Motor No.
GRW-116188; Chassis No. HOCC-GPW-1161-88-C; Type, Jeep;
d. Motor vehicle with Plate No. TH-5J-583; Make, Ford: Motor No.
F70MU5-11111; Chassis No. HOCC-GPW-1161188-G; Type, Stake;
e. Motor vehicle with Plate No. TH-5J-584; Make, Hino; Motor No.
ED300-45758; Chassis No. KB222-22044; Type, Stake; and
f. Motor vehicle with Plate No. TH-5J-585; Make, Ford: Motor No.
LTC-780-Dv; Chassis No. 10F-13582-K; Type, Stake.
7. Ordering the defendant Enrico L. Pacete to pay the plaintiff the
sum of P46,950.00 which is the share of the plaintiff in the
unaccounted income of the ricemill and corn sheller for three years
from 1971 to 1973.
8. Ordering the defendant, Enrico L. Pacete, to reimburse the
plaintiff the monetary equipment of 30% of whether the plaintiff has
recovered as attorney's fees;
9. Declaring the subsequent marriage between defendant Enrico L.
Pacete and Clarita de la Concepcion to be void ab initio; and
10. Ordering the defendants to pay the costs of this suit. 4
Hence, the instant special civil action of certiorari.
Under ordinary circumstances, the petition would have outrightly been dismissed, for,
as also pointed out by private respondents, the proper remedy of petitioners should
have instead been either to appeal from the judgment by default or to file a petition for
relief from judgment. 5 This rule, however, is not inflexible; a petition forcertiorari is
allowed when the default order is improperly declared, or even when it
is properly declared, where grave abuse of discretion attended such declaration. 6 In
these exceptional instances, the special civil action of certiorari to declare the nullity of
a judgment by default is available. 7 In the case at bench, the default order
unquestionably is not legally sanctioned. The Civil Code provides:
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 provision has been taken from Article 30 of the California Civil Code, 8 and it is, in
substance, reproduced in Article 60 of the Family Code. 9
Article 101 reflects the public policy on marriages, and it should easily explain the
mandatory tenor of the law. InBrown v. Yambao, 10 the Court has observed:
The policy of Article 101 of the new Civil Code, calling for the
intervention of the state attorneys in case of uncontested proceedings
for legal separation (and of annulment of marriages, under Article
88), is to emphasize that marriage is more than a mere contract; that
it is a social institution in which the state is vitally interested, so that
its continuation or interruption can not be made to depend upon the
parties themselves (Civil Code, Article 52; Adong vs. Cheong Gee, 43
Phil. 43; Ramirez v. Gmur, 42 Phil. 855; Goitia v. Campos, 35 Phil.
252). It is consonant with this policy that the inquiry by the Fiscal
should be allowed to focus upon any relevant matter that may
indicate whether the proceedings for separation or annulment are
fully justified or not.

Article 103 of the Civil Code, now Article 58 of the Family Code, further mandates that
an action for legal separation must "in no case be tried before six months shall have
elapsed since the filing of the petition," obviously in order to provide the parties a
"cooling-off" period. In this interim, the court should take steps toward getting the
parties to reconcile.
The significance of the above substantive provisions of the law is further underscored
by the inclusion of the following provision in Rule 18 of the Rules of Court:
Sec. 6. No defaults in actions for annulments of marriage or for
legal separation. If the defendant in an action for annulment of
marriage or for legal separation fails to answer, the court shall order
the prosecuting attorney to investigate whether or not a collusion
between the parties exists, and if there is no collusion, to intervene
for the State in order to see to it that the evidence submitted is not
fabricated.
The special prescriptions on actions that can put the integrity of marriage to possible
jeopardy are impelled by no less than the State's interest in the marriage relation and
its avowed intention not to leave the matter within the exclusive domain and the
vagaries of the parties to alone dictate.
It is clear that the petitioner did, in fact, specifically pray for legal separation. 11 That
other remedies, whether principal or incidental, have likewise been sought in the same
action cannot dispense, nor excuse compliance, with any of the statutory requirements
aforequoted.
WHEREFORE, the petition for certiorari is hereby GRANTED and the proceedings
below, including the Decision of 17 March 1980 appealed from, are NULLIFIED and
SET ASIDE. No costs.
SO ORDERED.

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 plaintiffappellant, 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 gobetween, 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
non-appearance 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 defendantappellee, 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 non-resident 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.

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 Code4before 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 wifebeater 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.

AGREEMENT TO SEPARATE
REDENTOR ALBANO, complainant,
vs.
MUNICIPAL JUDGE PATROCINIO C. GAPUSAN of Dumalneg, Ilocos
Norte, respondent.
RESOLUTION
AQUINO, J.:
Redentor Albano in a verified complaint dated August 18, 1975 charged Municipal
Judge Patrocinio C. Gapusan of Dumalneg and Adams, Ilocos Norte (1) with
incompetence and Ignorance of the law for having prepared and notarized a document
providing for tile personal separation of husband and wife and the extrajudicial
liquidation of their conjugal partnership and (2) with having allegedly influenced Judge
Zacarias A. Crispin of the Court of First Instance of Ilocos Norte in deciding two
criminal cases.
Malpractice as a notary. In 1941 or five years before his appointment to the bench,
respondent Gapusan notarized a document for the personal separation of the spouses
Valentina Andres and Guillermo Maligta of Barrio 6, Vintar, Ilocos Norte and for the
extrajudicial liquidation of their conjugal partnership.
It was stipulated in that document that if either spouse should commit adultery or
concubinage, as the case may be, then the other should refrain from filing an action
against the other.
Judge Gapusan denied that he drafted the agreement. He explained that the spouses
had been separated for a long time when they signed the separation agreement and that
the wife had begotten children with her paramour. He said that there was a stipulation
in the agreement that the spouses would live together in case of reconciliation. His
belief was that the separation agreement forestalled the occurrence of violent incidents
between the spouses.
Albano in filing the malpractice charge is in effect asking this Court to take belated
disciplinary action against Judge Gapusan as a member of the bar or as a notary. (He
was admitted to the bar in 1937).
There is no question that the covenents contained in the said separation agreement are
contrary to law, morals and good customs (Biton vs. Momongan, 62 Phil. 7). Those
stipulations undermine the institutions of marriage and the family, "Marriage is not a
mere contract but an inviolable social institution". "The family is a basic social
institution which public policy cherishes and protects." (Arts. 52 and 216, Civil Code).
Marriage and the family are the bases of human society throughout the civilized world
(Adong vs. Cheong Seng Gee, 43 Phil. 43; Ramirez vs. Gmur, 42 Phil. 855, 864; Goitia
vs. Campos Rueda, 35 Phil. 252, 254; Brown vs. Yambao, 102 Phil. 168).
To preserve the institutions of marriage and the family, the law considers as void "any
contract for personal separation between husband and wife" and "every extrajudicial

agreement, during the marriage, for the dissolution of the conjugal partnership" (Art.
221, Civil Code). Before the new Civil Code, it was held that the extrajudicial dissolution
of the conjugal partnership without judicial sanction was void (Quintana vs. Lerma, 24
Phil. 285; De Luna vs. Linatoc, 74 Phil. 15).
A notary should not facilitate the disintegration of a marriage and the family by
encouraging the separation of the spouses and extrajudically dissolving the conjugal
partnership. Notaries were severely censured by this Court for notarizing documents
which subvert the institutions of marriage and the family (Selanova vs. Mendoza, Adm.
Matter No. 804-CJ, May 19, 1975, 64 SCRA 69; Miranda vs. Fuentes, Adm. Case No.
241, April 30, 1966, 16 SCRA 802; Biton vs. Momongan, supra,, Panganiban vs.
Borromeo, 58 Phil. 367; In re Santiago, 70 Phil. 66; Balinon vs. De Leon, 94 Phil. 277).
Respondent Gapusan as a member of the bar should be censured for having notarized
the void separation agreement already mentioned.
However, his notarization of that document does not warrant any disciplinary action
against him as a municipal judge (he was appointed in 1946 as justice of the peace)
especially considering that his appointment to the judiciary was screened by the
Commission on Appointments (See Ty vs. San Diego, Adm. Matter No. 169-J, June 29,
1972).
Alleged misconduct in influencing CFI Judge. Albano complains that Judge Gapusan
took advantage of his intimacy with Judge Crispin. He implies that by reason of that
intimacy Judge Crispin acquitted of frustrated murder the defendants in Criminal Case
No. 102-III, People vs. Freddie Gapusan Gamboa, et al. and convicted Albano
(complainant herein) of double frustrated murder with triple attempted murder in
Criminal Case No. 70-III.
Albano said that Freddie Gapusan, an accused in the first criminal case abovementioned and a complaining witness in the other case against Albano, is a relative of
Judge Gapusan. He revealed that after the acquittal decision was rendered by Judge
Crispin in Criminal Case No. 102 III, the relatives of the accused in that case were saying
that their relationship to Judge Gapusan, a friend of Judge Crispin, proved to be
"worthwhile and useful".
Judge Gapusan admitted in his answer that he is close to Judge Crispin because they
used to be members of the Municipal Judges League (when it was headed by Judge
Crispin) and because the latter used to be an Executive Judge (with supervision over
municipal judges). Respondent said that his association with Judge Crispin "was purely
official".
Judge Gapusan also admitted that Freddie Gapusan is his distant relative. He denied
that he influenced Judge Crispin in rendering his decisions in the two criminal cases.
It is manifest that Alliano's imputation that Judge Gapusan influenced Judge Crispin
is anchored on mere suspicion. If he has any evidence that Judge Crispin committed
any irregularity due to the alleged influence exerted by Judge Gapusan, then Albano
should have complained against Judge Crispin's actuations. He should riot vent his ire
on Judge Gapusan alone.

When an officer or court allows itself to enter upon the sea of suspicion, it permits itself
to enter upon a sea which has no shore, and the embarkation is without a rudder or
compass to control the direction or to ascertain its bearing." (Dy Keng vs. Collector of
Customs, 40 Phil, 118, 123).
A person has freedom to choose his friends and to hobnob with them. It is not a crime
nor unethical per se for a municipal judge to fraternize with a Judge of the Court of
First Instance. Whether the fraternization resulted in an unjust verdict rendered by the
Judge of the Court of First Instance due to the sinister or corruptive influence of the
municipal judge cannot be shown by mere inference, or conjecture. It should be
Substantiated by solid evidence. The unjustness of the decision should be indubitably
established.
The second charge should be dismissed for being speculative and unfair to Judge
Crispin. (He retired in September, 1975).
WHEREFORE, the respondent, as a member of the bar, is for having notarized the
above-mentioned void agreement. The second charge is dismissed.
IN RE: ATTY. RUFILLO D. BUCANA, respondent.
RESOLUTION
ANTONIO, J.:
Acting upon the letter of Mrs. Angela Drilon Baltazar, Barangay Captain of Victories,
Dumangas, Iloilo, dated February 26, 1976, respondent Notary Public Rufillo D.
Bucana was required by this Court in its Resolution of March 23, 1976, to show cause
within ten (10) days from notice, why he should not be disciplinarily dealt with for
having notarized on November 10, 1975 at Dumangas, Iloilo an Agreement executed by
the spouses Gonzalo Baltazar and Luisa Sorongon wherein the afore-mentioned
spouses agreed therein that "in case anyone of them will remarry both parties offer no
objection and waive all civil and criminal actions against them" and that the aforementioned Agreement was "entered into for the purpose of agreement to allow each
and everyone of them to remarry without objection or reservation ...", which affidavit
is contrary to law because it sanctions an illicit and immoral purpose.
On April 21, 1976, respondent . submitted his explanation, admitting that he notarized
the afore-mentioned document and that the Agreement is "immoral and against public
policy", but in mitigation he asserted that the document in question was Prepared by
his clerk, Lucia D. Doctolero without his previous knowledge; that when said document
was presented to him for signature after it was signed by the parties, he vehemently
refused to sign it and informed the parties that the document was immoral; that he
placed the said document on his table among his files and more than a week later, he
asked his clerk where the document was for the purpose of destroying it, but to his
surprise he found that the same was notarized by him as per his file copies in the office;
that he dispatched his clerk to get the copy from the parties, but the afore-mentioned
parties could not be found in their respective residences; that he must have
inadvertently notarized the same in view of the numerous documents on his table and
at that time he was emotionally disturbed as his father (now deceased) was then
seriously ill. The foregoing contentions of respondent were corroborated substantially

by the separate sworn statements of his clerk, Lucia D. Doctolero and Angela Drilon
Baltazar, both dated April 20, 1976. 1
There is no question that the afore-mentioned Agreement is contrary to law, morals
and good customs. Marriage is an inviolable social institution, in the maintenance of
which in its purity the public is deeply interested for it is the foundation of the family
and of society without which there could be neither civilization nor progress. 2
The contract, in substance, purports to formulate an agreement between the husband
and the wife to take unto himself a concubine and the wife to live in adulterous relations
with another man, without opposition from either one, and what is more, it induces
each party to commit bigamy. 3 This is not only immoral but in effect abets the
commission of a crime. A notary public, by virtue of the nature of his office, is required
to exercise his duties with due care and with due regard to the provisions of existing
law.
As stressed by Justice Malcolm in Panganiban v. Borromeo, 4 "it is for the notary to
inform himself of the facts to which he intends to certify and to take part in no illegal
enterprise. The notary public is usually a person who has been admitted to the practice
of law, and as such, in the commingling of his duties notary and lawyer, must be held
responsible for both. We are led to hold that a member of the bar who performs an act
as a notary public of a disgraceful or immoral character may be held to account by the
court even to the extent of disbarment."
In the case at bar, respondent in effect pleads for clemency, claiming that the
notarization of the questioned document was due to his negligence. We find, however,
that the aforementioned document could not have been notarized if the respondent had
only exercised the requisite care required by law in the exercise of his duties as notary
public.
WHEREFORE, We hold that respondent Rufillo D. Bucana is guilty of malpractice and
is hereby suspended from the office of not try public for a period of six (6) months, with
the admonition that a repetition of the same or a similar act in the future will be dealt
with more severely.

Fernando (Chairman), Barredo, Aquino and Martin, JJ., concur.

GROUNDS FOR LEGAL SEPARATION

G.R. No. 126010 December 8, 1999
LUCITA ESTRELLA HERNANDEZ, petitioner,
vs.
COURT OF APPEALS and MARIO C. HERNANDEZ, respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision 1 of the Court of Appeals, dated
January 30, 1996, affirming the decision of the Regional Trial Court, Branch 18,
Tagaytay City, dated April 10, 1993, which dismissed the petition for annulment of
marriage filed by petitioner.
Petitioner Lucita Estrella Hernandez and private respondent Mario C. Hernandez were
married at the Silang Catholic Parish Church in Silang, Cavite on January 1, 1981 (Exh.
A). 2 Three children were born to them, namely, Maie, who was born on May 3, 1982
3
(Exh.
B),
Lyra,
born
on
May
22,
1985
(Exh. C), 4 and Marian, born on June 15, 1989 (Exh. D). 5
On July 10, 1992, petitioner filed before the Regional Trial Court, Branch 18, Tagaytay
City, a petition seeking the annulment of her marriage to private respondent on the
ground of psychological incapacity of the latter. She alleged that from the time of their
marriage up to the time of the filing of the suit, private respondent failed to perform his
obligation to support the family and contribute to the management of the household,
devoting most of his time engaging in drinking sprees with his friends. She further
claimed that private respondent, after they were married, cohabited with another
woman with whom he had an illegitimate child, while having affairs with different
women, and that, because of his promiscuity, private respondent endangered her
health by infecting her with a sexually transmissible disease (STD). She averred that
private respondent was irresponsible, immature and unprepared for the duties of a
married life. Petitioner prayed that for having abandoned the family, private
respondent be ordered to give support to their three children in the total amount of
P9,000.00 every month; that she be awarded the custody of their children; and that
she be adjudged as the sole owner of a parcel of land located at Don Gregorio
Subdivision I in Bo. Bucal, Dasmarias, Cavite, purchased during the marriage, as well
as the jeep which private respondent took with him when he left the conjugal home on
June 12, 1992. 6
On October 8, 1992, because of private respondent's failure to file his answer, the trial
court issued an order directing the assistant provincial prosecutor to conduct an
investigation
to
determine
if
there
was
collusion
between
the
parties. 7 Only petitioner appeared at the investigation on November 5, 1992.
Nevertheless, the prosecutor found no evidence of collusion and recommended that the
case be set for trial. 8
Based on the evidence presented by the petitioner, the facts are as follows: 9
Petitioner and private respondent met in 1977 at the Philippine Christian University in
Dasmarias, Cavite. Petitioner, who is five years older than private respondent, was
then in her first year of teaching zoology and botany. Private respondent, a college
freshman, was her student for two consecutive semesters. They became sweethearts in
February 1979 when she was no longer private respondent's teacher. On January 1,
1981, they were married.
Private respondent continued his studies for two more years. His parents paid for his
tuition fees, while petitioner provided his allowances and other financial needs. The
family income came from petitioner's salary as a faculty member of the Philippine

Christian University. Petitioner augmented her earnings by selling "Tupperware"

products, as well as engaging in the buy-and-sell of coffee, rice and polvoron.
From 1983 up to 1986, as private respondent could not find a stable job, it was agreed
that he would help petitioner in her businesses by delivering orders to customers.
However, because her husband was a spendthrift and had other women, petitioner's
business suffered. Private respondent often had smoking and drinking sprees with his
friends and betted on fighting cocks. In 1982, after the birth of their first child,
petitioner discovered two love letters written by a certain Realita Villena to private
respondent. She knew Villena as a married student whose husband was working in
Saudi Arabia. When petitioner confronted private respondent, he admitted having an
extra-marital affair with Villena. Petitioner then pleaded with Villena to end her
relationship with private respondent. For his part, private respondent said he would
end the affairs, but he did not keep his promise. Instead, he left the conjugal home and
abandoned petitioner and their child. When private respondent came back, however,
petitioner accepted him, despite private respondent's infidelity in the hope of saving
their marriage.
Upon the recommendation of a family friend, private respondent was able to get a job
at Reynolds Philippines, Inc. in San Agustin, Dasmarias, Cavite in 1986. However,
private respondent was employed only until March 31, 1991, because he availed himself
of the early retirement plan offered by the company. He received P53,000.00 in
retirement pay, but instead of spending the amount for the needs of the family, private
respondent spent the money on himself and consumed the entire amount within four
months of his retirement.
While private respondent worked at Reynolds Philippines, Inc., his smoking, drinking,
gambling and womanizing became worse. Petitioner discovered that private
respondent carried on relationships with different women. He had relations with a
certain Edna who worked at Yazaki; Angie, who was an operator of a billiard hall; Tess,
a "Japayuki"; Myrna Macatangay, a secretary at the Road Master Driver's School in
Bayan, Dasmarias, Cavite, with whom he cohabited for quite a while; and, Ruth Oliva,
by whom he had a daughter named Margie P. Oliva, born on September 15, 1989 (Exh.
E). 10 When petitioner confronted private respondent about his relationship with Tess,
he beat her up, as a result of which she was confined at the De la Salle University
Medical Center in Dasmarias, Cavite on July 4-5, 1990 because of cerebral concussion
(Exh. F). 11
According to petitioner, private respondent engaged in extreme promiscuous conduct
during the latter part of 1986. As a result, private respondent contracted gonorrhea and
infected petitioner. They both received treatment at the Zapote Medical Specialists
Center in Zapote, Bacoor, Cavite from October 22, 1986 until March 13, 1987 (Exhs. G
& H). 12
Petitioner averred that on one occasion of a heated argument, private respondent hit
their eldest child who was then barely a year old. Private respondent is not close to any
of their children as he was never affectionate and hardly spent time with them.
On July 17, 1979, petitioner entered into a contract to sell (Exh. J) 13 with F & C Realty
Corporation whereby she agreed to buy from the latter a parcel of land at the Don
Gregorio Heights Subdivision I in Bo. Bucal, Dasmarias, Cavite and placed a partial
payment of P31,330.00. On May 26, 1987, after full payment of the amount of
P51,067.10, inclusive of interests from monthly installments, a deed of absolute
sale(Exh. K) 14 was executed in her favor and TCT No. T-221529 (Exh. M) 15 was duly
issued.
According to petitioner, on August 1, 1992, she sent a handwritten
letter 16 to private respondent expressing her frustration over the fact that her efforts
to save their marriage proved futile. In her letter, petitioner also stated that she was

allowing him to sell their owner-type jeepney 17 and to divide the proceeds of the sale
between the two of them. Petitioner also told private respondent of her intention to fill
a petition for the annulment of their marriage.
It does not appear that private respondent ever replied to petitioner's letter. By this
time, he had already abandoned petitioner and their children. In October 1992,
petitioner learned that private respondent left for the Middle East. Since then, private
respondent's whereabouts had been unknown.
Ester Alfaro, petitioner's childhood friend and co-teacher at the Philippine Christian
University, testified during the hearing on the petition for annulment. She said that
sometime in June 1979, petitioner introduced private respondent to her (Alfaro) as the
former's sweetheart. Alfaro said she was not impressed with private respondent who
was her student in accounting. She observed private respondent to be fun-loving,
spending most of his time with campus friends. In November 1980, when petitioner
asked Alfaro to be one of the secondary sponsors at her forthcoming wedding, Alfaro
wanted to dissuade petitioner from going through with the wedding because she
thought private respondent was not ready for married life as he was then unemployed.
True enough, although the couple appeared happy during the early part of their
marriage, it was not long thereafter that private respondent started drinking with his
friends and going home late at night. Alfaro corroborated petitioner's claim that private
respondent was a habitual drunkard who carried on relationships with different women
and continued hanging out with his friends. She also confirmed that petitioner was once
hospitalized because she was beaten up by private respondent. After the first year of
petitioner's marriage, Alfaro tried to talk to private respondent, but the latter accused
her of meddling with their marital life. Alfaro said that private respondent was not close
to his children and that he had abandoned petitioner. 18
On April 10, 1993, the trial court rendered a decision 19 dismissing the petition for
annulment of marriage filed by petitioner. The pertinent portion of the decision
reads: 20
The Court can underscore the fact that the circumstances mentioned
by the petitioner in support of her claim that respondent was
"psychologically incapacitated" to marry her are among the grounds
cited by the law as valid reasons for the grant of legal separation
(Article 55 of the Family Code) not as grounds for a declaration of
nullity of marriages or annulment thereof. Thus, Article 55 of the
same code reads as follows:
Art. 55. A petition for legal separation may be filed
on any of the following grounds:
(1) Repeated physical violence or grossly abusive
conduct directed against the petitioner, a common
child, or a child of the petitioner;
xxx xxx xxx
(5) Drug addiction or habitual alcoholism of the
respondent;
xxx xxx xxx
(8) Sexual infidelity or perversion;
xxx xxx xxx
(10) Abandonment of petitioner by respondent
without justifiable cause for more than one year.
xxx xxx xxx
If indeed Article 36 of the Family Code of the Philippines, which
mentions psychological incapacity as a ground for the declaration of
the nullity of a marriage, has intended to include the above-stated

circumstances as constitutive of such incapacity, then the same

would not have been enumerated as grounds for legal separation.
In the same manner, this Court is not disposed to grant relief in favor
of the petitioner under Article 46, paragraph (3) of the Family Code
of the Philippines, as there is no dispute that the "gonorrhea"
transmitted to the petitioner by respondent occurred sometime in
1986, or five (5) years after petitioner's marriage with respondent
was celebrated in 1981. The provisions of Article 46, paragraph (3) of
the same law should be taken in conjunction with Article 45,
paragraph (3) of the same code, and a careful reading of the two (2)
provisions of the law would require the existence of this ground
(fraud) at the time of the celebration of the marriage. Hence, the
annulment of petitioner's marriage with the respondent on this
ground, as alleged and proved in the instant case, cannot be legally
accepted by the Court.
Petitioner appealed to the Court of Appeals which, on January 30, 1996, rendered its
decision affirming the decision of the trial court. Citing the ruling in Santos v. Court of
Appeals, 21 the Court of Appeals held: 22
It is clear in the above law and jurisprudence that the psychological
incapacity of a spouse, as a ground for declaration of nullify of
marriage, must exist at the time of the celebration of marriage. More
so, chronic sexual infidelity, abandonment, gambling and use of
prohibited drugs are not grounds per se, of psychological incapacity
of a spouse.
We agree with the Solicitor General that petitioner-appellant failed
to prove that her respondent-husband was psychologically
incapacitated at the time of the celebration of the marriage.
Certainly, petitioner-appellant's declaration that at the time of their
marriage her respondent-husband's character was on the "borderline
between a responsible person and the happy-go-lucky," could not
constitute the psychological incapacity in contemplation of Article 36
of the Family Code. In fact, petitioner-appellant herself ascribed said
attitude to her respondent-husband's youth and very good looks,
who was admittedly several years younger than petitioner-appellant
who, herself, happened to be the college professor of her respondenthusband. Petitioner-appellant even described her respondenthusband not as a problem student but a normal one (p. 24, tsn, Dec.
8, 1992).
The acts and attitudes complained of by petitioner-appellant
happened after the marriage and there is no proof that the same have
already existed at the time of the celebration of the marriage to
constitute the psychological incapacity under Article 36 of the Family
Code.
Hence, this petition. Petitioner contends that the respondent Court of Appeals erred
I. IN FINDING THAT THE PSYCHOLOGICAL
INCAPACITY OF THE PRIVATE RESPONDENT
TO COMPLY WITH HIS ESSENTIAL MARITAL
OBLIGATIONS DID NOT EXIST FROM THE
TIME OF THE CELEBRATION OF THE
MARRIAGE.
II. IN RULING THAT PRIVATE RESPONDENT
WAS
NOT
PSYCHOLOGICALLY

INCAPACITATED TO COMPLY WITH HIS

ESSENTIAL MARITAL OBLIGATIONS.
III. IN AFFIRMING THE DECISION OF THE
TRIAL COURT DENYING THE AWARD OF
PERMANENT CUSTODY OF THE CHILDREN
TO PETITIONER.
IV. IN AFFIRMING THE DECISION OF THE
TRIAL COURT DENYING THE PRAYER FOR
ISSUANCE OF AN ORDER REQUIRING
PRIVATE RESPONDENT TO GIVE SUPPORT TO
THE THREE CHILDREN IN THE AMOUNT OF
P3,000,00 PER CHILD.
V. IN NOT DECLARING THE REAL PROPERTY
ACQUIRED BY PETITIONER AS HER
EXCLUSIVE PROPERTY.
The issue in this case is whether or not the marriage of petitioner and private
respondent should be annulled on the ground of private respondent's psychological
incapacity.
Petitioner alleges that the Court of Appeals erred in holding that petitioner failed to
show that private respondent's psychological incapacity existed at the time of the
celebration of the marriage. She argues that the fact that the acts of incapacity of private
respondent became manifest only after the celebration of their marriage should not be
a bar to the annulment of their marriage.
Art. 36 of the Family Code states:
A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even
if such incapacity becomes manifest only after its solemnization. 23
In Santos v. Court of Appeals, 24 we held:
"Psychological incapacity" should refer to no less than a mental (not
physical) incapacity that causes a party to be truly incognitive of the
basic marital covenants that concomitantly must be assumed and
discharged by the parties to the marriage which, as so expressed by
Article 68 of the Family Code, include their mutual obligations to live
together, observe love, respect and fidelity and render help and
support. There is hardly any doubt that the intendment of the law
has been to confine the meaning of "psychological incapacity" to the
most serious cases of personality, disorders clearly demonstrative of
an utter insensitivity or inability to give meaning and significance to
the marriage. This psychological condition must exist at the time the
marriage is celebrated. The law does not evidently envision, upon the
other hand, an inability of the spouse to have sexual relations with
the other. This conclusion is implicit under Article 54 of the Family
Code which considers children conceived prior to the judicial
declaration of nullity of the void marriage to be "legitimate."
The other forms of psychoses, if existing at the inception of marriage,
like the state of a party being of unsound mind or concealment of
drug addiction, habitual alcoholism, homosexuality or lesbianism,
merely renders the marriage contract voidable pursuant to Article
46, Family Code. If drug addiction, habitual alcoholism, lesbianism
or homosexuality should occur only during the marriage, they
become mere grounds for legal separation under Article 55 of the

Family Code. These provisions of the Code, however, do not

necessarily preclude the possibility of these various circumstances
being themselves, depending on the degree and severity of the
disorder, indicia of psychological incapacity.
Until further statutory and jurisprudential parameters are
established, every circumstance that may have some bearing on the
degree, extent, and other conditions of that incapacity must, in every
case, be carefully examined and evaluated so that no precipitate and
indiscriminate nullity is peremptorily decreed. The well-considered
opinions of psychiatrists, psychologists, and persons with expertise
in psychological disciplines might be helpful or even desirable.
In the instant case, other than her self-serving declarations, petitioner failed to
establish the fact that at the time they were married, private respondent was suffering
from a psychological defect which in fact deprived him of the ability to assume the
essential duties of marriage and its concomitant responsibilities. As the Court of
Appeals pointed out, no evidence was presented to show that private respondent was
not cognizant of the basic marital obligations. It was not sufficiently proved that private
respondent was really incapable of fulfilling his duties due to some incapacity of a
psychological nature, and not merely physical. Petitioner says that at the outset of their
marriage, private respondent showed lack of drive to work for his family. Private
respondent's parents and petitioner supported him through college. After his schooling,
although he eventually found a job, he availed himself of the early retirement plan
offered by his employer and spent the entire amount he received on himself. For a
greater part of their marital life, private respondent was out of job and did not have the
initiative to look for another. He indulged in vices and engaged in philandering, and
later abandoned his family. Petitioner concludes that private respondent's condition is
incurable, causing the disintegration of their union and defeating the very objectives of
marriage.
However, private respondent's alleged habitual alcoholism, sexual infidelity or
perversion, and abandonment do not by themselves constitute grounds for finding that
he is suffering from psychological incapacity within the contemplation of the Family
Code. It must be shown that these acts are manifestations of a disordered personality
which make private respondent completely unable to discharge the essential
obligations of the marital state, and not merely due to private respondent's youth and
self-conscious feeling of being handsome, as the appellate court held. As pointed out
in Republic of the Philippines v. Court of Appeals: 25
The root cause of the psychological incapacity must be: (a) medically
or clinically identified, (b) alleged in the complaint, (c) sufficiently
proven by experts and (d) clearly explained in the decision. Article
36 of the Family Code requires that the incapacity must be
psychological not physical, although its manifestations and/or
symptoms may be physical. The evidence must convince the court
that the parties, or one of them, was mentally or physically ill to such
an extent that the obligations he was assuming, or knowing them,
could not have given valid assumption thereof. Although no example
of such incapacity need given here so as not to limit the application
of the provision under the principle of ejusdem generis (citing Salaita
v. Magtolis, supra) nevertheless such root cause must be identified
as a psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified psychiatrists
and clinical psychologists.

Moreover, expert testimony should have been presented to establish the precise cause
of private respondent's psychological incapacity, if any, in order to show that it existed
at the inception of the marriage. The burden of proof to show the nullity of the marriage
rests upon rests petitioner. The Court is mindful of the policy of the 1987 Constitution
to protect and strengthen the family as the basic autonomous social institution and
marriage
as
the
foundation
of
the
family. 26 Thus, any doubt should be resolved in favor of the validity of the marriage. 27
We, therefore, find no reason to reverse the ruling of respondent Court of Appeals
whose conclusions, affirming the trial court's finding with regard to the non-existence
of private respondent's psychological incapacity at the time of the marriage, are entitled
to great weight and even finality. 28 Only where it is shown that such findings are
whimsical, capricious, and arbitrary can these be overturned.
The conclusion we have reached makes it unnecessary for us to pass upon petitioner's
contentions on the issue of permanent custody of children, the amount for their
respective support, and the declaration of exclusive ownership of petitioner over the
real property. These matters may more appropriately be litigated in a separate
proceeding for legal separation, dissolution of property regime, and/or custody of
children which petitioner may bring.
WHEREFORE, the decision of the Court of Appeal is AFFIRMED.
SO ORDERED.

G.R. No. 11263

November 2, 1916
ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,
vs.
JOSE CAMPOS RUEDA, defendant-appellee.
Eduardo Gutierrez Repide and Felix Socias for appellant.
Sanz, Opisso and Luzuriaga for appellee.
TRENT, J.:
This is an action by the wife against her husband for support outside of the conjugal
domicile. From a judgment sustaining the defendant's demurrer upon the ground that
the facts alleged in the complaint do not state a cause of action, followed by an order
dismissing the case after the plaintiff declined to amend, the latter appealed.
It was urged in the first instance, and the court so held, that the defendant cannot be
compelled to support the plaintiff, except in his own house, unless it be by virtue of a
judicial decree granting her a divorce or separation from the defendant.
The parties were legally married in the city of Manila on January 7, 1915, and
immediately thereafter established their residence at 115 Calle San Marcelino, where
they lived together for about a month, when the plaintiff returned to the home of her
parents. The pertinent allegations of the complaint are as follows:
That the defendant, one month after he had contracted marriage with the
plaintiff, demanded of her that she perform unchaste and lascivious acts on
his genital organs; that the plaintiff spurned the obscene demands of the
defendant and refused to perform any act other than legal and valid
cohabitation; that the defendant, since that date had continually on other
successive dates, made similar lewd and indecorous demands on his wife, the
plaintiff, who always spurned them, which just refusals of the plaintiff
exasperated the defendant and induce him to maltreat her by word and deed
and inflict injuries upon her lips, her face and different parts of her body; and
that, as the plaintiff was unable by any means to induce the defendant to desist
from his repugnant desires and cease from maltreating her, she was obliged
to leave the conjugal abode and take refuge in the home of her parents.
Marriage in this jurisdiction is a contract entered into in the manner and with the
solemnities established by General Orders No. 68, in so far as its civil effects are
concerned requiring the consent of the parties. (Garcia vs. Montague, 12 Phil. Rep.,
480, citing article 1261 of Civil Code.) Upon the termination of the marriage ceremony,
a conjugal partnership is formed between the parties. (Sy Joc Lieng vs. Encarnacion, 16
Phil. Rep., 137.) To this extent a marriage partakes of the nature of an ordinary contract.
But it is something more than a mere contract. It is a new relation, the rights, duties,
and obligations of which rest not upon the agreement of the parties but upon the
general law which defines and prescribes those rights, duties, and obligations .Marriage
is an institution, in the maintenance of which in its purity the public is deeply
interested. It is a relation for life and the parties cannot terminate it at any shorter
period by virtue of any contract they may make .The reciprocal rights arising from this
relation, so long as it continues, are such as the law determines from time to time, and
none other. When the legal existence of the parties is merged into one by marriage, the
new relation is regulated and controlled by the state or government upon principles of
public policy for the benefit of society as well as the parties. And when the object of a
marriage is defeated by rendering its continuance intolerable to one of the parties and
productive of no possible good to the community, relief in some way should be

obtainable. With these principles to guide us, we will inquire into the status of the law
touching and governing the question under consideration.
Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto
vs. De la Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870,
in force in the Peninsula, were extended to the Philippine Islands by royal decree on
April 13, 1883 (Ebreo vs. Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48 of this law
read:
ART. 44. The spouses are obliged to be faithful to each other and to mutually
assist each other.
ART. 45. The husband must live with and protect his wife. (The second
paragraph deals with the management of the wife's property.)
ART. 48. The wife must obey her husband, live with him, and follow him when
he charges his domicile or residence.
Notwithstanding the provisions of the foregoing paragraph, the court may for
just cause relieve her from this duty when the husband removes his residence
to a foreign country.
And articles 143 and 149 of the Civil Code are as follows:
ART. 143. The following are obliged to support each other reciprocally to the
whole extent specified in the preceding article.
1. The consorts.
xxx
xxx
xxx
ART. (149) 49. The person obliged to give support may, at his option, satisfy
it, either by paying the pension that may be fixed or by receiving and
maintaining in his own home the person having the right to the same.
Article 152 of the Civil Code gives the instances when the obligation to give support
shall cease. The failure of the wife to live with her husband is not one of them.
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the
duties and obligations of the spouses. The spouses must be faithful to, assist, and
support each other. The husband must live with and protect his wife. The wife must
obey and live with her husband and follow him when he changes his domicile or
residence, except when he removes to a foreign country. But the husband who is obliged
to support his wife may, at his option, do so by paying her a fixed pension or by receiving
and maintaining her in his own home. May the husband, on account of his conduct
toward his wife, lose this option and be compelled to pay the pension? Is the rule
established by article 149 of the Civil Code absolute? The supreme court of Spain in its
decision of December 5, 1903, held:.
That in accordance with the ruling of the supreme court of Spain in its
decisions dated May 11, 1897, November 25, 1899, and July 5, 1901, the option
which article 149 grants the person, obliged to furnish subsistence, between
paying the pension fixed or receiving and keeping in his own house the party
who is entitled to the same, is not so absolute as to prevent cases being
considered wherein, either because this right would be opposed to the exercise
of a preferential right or because of the existence of some justifiable cause
morally opposed to the removal of the party enjoying the maintenance, the
right of selection must be understood as being thereby restricted.
Whereas the only question discussed in the case which gave rise to this appeal
was whether there was any reason to prevent the exercise of the option granted
by article 149 of the Civil Code to the person obliged to furnish subsistence, to
receive and maintain in his own house the one who is entitled to receive it;
and inasmuch as nothing has been alleged or discussed with regard to the
parental authority of Pedro Alcantara Calvo, which he ha not exercised, and it
having been set forth that the natural father simply claims his child for the

purpose of thus better attending to her maintenance, no action having been

taken by him toward providing the support until, owing to such negligence,
the mother was obliged to demand it; it is seen that these circumstances,
together with the fact of the marriage of Pedro Alcantara, and that it would be
difficult for the mother to maintain relations with her daughter, all constitute
an impediment of such a nature as to prevent the exercise of the option in the
present case, without prejudice to such decision as may be deemed proper
with regard to the other questions previously cited in respect to which no
opinion should be expressed at this time.
The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil.
Rep., 576), wherein the court held that the rule laid down in article 149 of the Civil Code
"is not absolute." but it is insisted that there existed a preexisting or preferential right
in each of these cases which was opposed to the removal of the one entitled to support.
It is true that in the first the person claiming the option was the natural father of the
child and had married a woman other than the child's mother, and in the second the
right to support had already been established by a final judgment in a criminal case.
Notwithstanding these facts the two cases clearly established the proposition that the
option given by article 149 of the Civil Code may not be exercised in any and all cases.
Counsel for the defendant cite, in support of their contention, the decision of the
supreme court of Spain, dated November 3, 1905. In this case Don Berno Comas, as a
result of certain business reverses and in order no to prejudice his wife, conferred upon
her powers to administer and dispose of her property. When she left him he gave her
all the muniments of title, mortgage credits, notes, P10,000 in accounts receivable, and
the key to the safe in which he kept a large amount of jewels, thus depriving himself of
all his possessions and being reduced in consequence to want. Subsequently he
instituted this civil action against his wife, who was then living in opulence, for support
and the revocation of the powers heretofore granted in reference to the administration
and disposal of her property. In her answer the wife claimed that the plaintiff (her
husband) was not legally in a situation to claim support and that the powers voluntarily
conferred and accepted by her were bilateral and could not be canceled by the plaintiff.
From a judgment in favor of the plaintiff the defendant wife appealed to the Audencia
Territorialwherein, after due trial, judgment was rendered in her favor dismissing the
action upon the merits. The plaintiff appealed to the supreme court and that high
tribunal, in affirming the judgment of the Audencia Territorial, said:
Considering that article 143, No. 1, of the Civil Code, providing that the
spouses are mutually obliged to provide each other with support, cannot but
be subordinate to the other provisions of said Code which regulates the family
organization and the duties of spouses not legally separated, among which
duties are those of their living together and mutually helping each other, as
provided in article 56 of the aforementioned code; and taking this for granted,
the obligation of the spouse who has property to furnish support to the one
who has no property and is in need of it for subsistence, is to be understood as
limited to the case where, in accordance with law, their separation has been
decreed, either temporarily or finally and this case, with respect to the
husband, cannot occur until a judgment of divorce is rendered, since, until
then, if he is culpable, he is not deprived of the management of his wife's
property and of the product of the other property belonging to the conjugal
partnership; and
Considering that, should the doctrine maintained in the appeal prevail, it
would allow married persons to disregard the marriage bond and separate
from each other of their own free will, thus establishing, contrary to the legal
provision contained in said article 56 of the Civil Code, a legal status entirely

incompatible with the nature and effects of marriage in disregard of the duties
inherent therein and disturbing the unity of the family, in opposition to what
the law, in conformity with good morals, has established; and.
Considering that, as the spouses D. Ramon Benso and Doa Adela Galindo are
not legally separated, it is their duty to live together and afford each other help
and support; and for this reason, it cannot be held that the former has need of
support from his wife so that he may live apart from her without the conjugal
abode where it is his place to be, nor of her conferring power upon him to
dispose even of the fruits of her property in order therewith to pay the
matrimonial expenses and, consequently, those of his own support without
need of going to his wife; wherefore the judgment appealed from, denying the
petition of D. Ramon Benso for support, has not violated the articles of the
Civil Code and the doctrine invoked in the assignments of error 1 and 5 of the
appeal.
From a careful reading of the case just cited and quoted from it appears quite clearly
that the spouses separated voluntarily in accordance with an agreement previously
made. At least there are strong indications to this effect, for the court says, "should the
doctrine maintained in the appeal prevail, it would allow married persons to disregard
the marriage bond and separate from each other of their own free will." If this be the
true basis upon which the supreme court of Spain rested its decision, then the doctrine
therein enunciated would not be controlling in cases where one of the spouses was
compelled to leave the conjugal abode by the other or where the husband voluntarily
abandons such abode and the wife seeks to force him to furnish support. That this is
true appears from the decision of the same high tribunal, dated October 16, 1903. In
this case the wife brought an action for support against her husband who had willfully
and voluntarily abandoned the conjugal abode without any cause whatever. The
supreme court, reversing the judgment absolving the defendant upon the ground that
no action for divorce, etc., had been instituted, said:
In the case at bar, it has been proven that it was Don Teodoro Exposito who
left the conjugal abode, although he claims, without however proving his
contention, that the person responsible for this situation was his wife, as she
turned him out of the house. From this state of affairs it results that it is the
wife who is party abandoned, the husband not having prosecuted any action
to keep her in his company and he therefore finds himself, as long as he
consents to the situation, under the ineluctable obligation to support his wife
in fulfillment of the natural duty sanctioned in article 56 of the Code in relation
with paragraph 1 of article 143. In not so holding, the trial court, on the
mistaken ground that for the fulfillment of this duty the situation or relation
of the spouses should be regulated in the manner it indicates, has made the
errors of law assigned in the first three grounds alleged, because the nature of
the duty of affording mutual support is compatible and enforcible in all
situations, so long as the needy spouse does not create any illicit situation of
the court above described.lawphil.net
If we are in error as to the doctrine enunciated by the supreme court of Spain in its
decision of November 3, 1905, and if the court did hold, as contended by counsel for
the defendant in the case under consideration, that neither spouse can be compelled to
support the other outside of the conjugal abode, unless it be by virtue of a final
judgment granting the injured one a divorce or separation from the other, still such
doctrine or holding would not necessarily control in this jurisdiction for the reason that
the substantive law is not in every particular the same here as it is in Spain. As we have
already stated, articles 42 to 107 of the Civil Code in force in the Peninsula are not in
force in the Philippine Islands. The law governing the duties and obligations of husband

and wife in this country are articles 44 to 78 of the Law of Civil Marriage of 1870 .In
Spain the complaining spouse has, under article 105 of the Civil Code, various causes
for divorce, such as adultery on the part of the wife in every case and on the part of the
husband when public scandal or disgrace of the wife results therefrom; personal
violence actually inflicted or grave insults: violence exercised by the husband toward
the wife in order to force her to change her religion; the proposal of the husband to
prostitute his wife; the attempts of the husband or wife to corrupt their sons or to
prostitute their daughters; the connivance in their corruption or prostitution; and the
condemnation of a spouse to perpetual chains or hard labor, while in this jurisdiction
the only ground for a divorce is adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34,
45.) This positive and absolute doctrine was announced by this court in the case just
cited after an exhaustive examination of the entire subject. Although the case was
appealed to the Supreme Court of the United States and the judgment rendered by this
court was there reversed, the reversal did not affect in any way or weaken the doctrine
in reference to adultery being the only ground for a divorce. And since the decision was
promulgated by this court in that case in December, 1903, no change or modification
of the rule has been announced. It is, therefore, the well settled and accepted doctrine
in this jurisdiction.
But it is argued that to grant support in an independent suit is equivalent to granting
divorce or separation, as it necessitates a determination of the question whether the
wife has a good and sufficient cause for living separate from her husband; and,
consequently, if a court lacks power to decree a divorce, as in the instant case, power to
grant a separate maintenance must also be lacking. The weakness of this argument lies
in the assumption that the power to grant support in a separate action is dependent
upon a power to grant a divorce. That the one is not dependent upon the other is
apparent from the very nature of the marital obligations of the spouses. The mere act
of marriage creates an obligation on the part of the husband to support his wife. This
obligation is founded not so much on the express or implied terms of the contract of
marriage as on the natural and legal duty of the husband; an obligation, the
enforcement of which is of such vital concern to the state itself that the laws will not
permit him to terminate it by his own wrongful acts in driving his wife to seek
protection in the parental home. A judgment for separate maintenance is not due and
payable either as damages or as a penalty; nor is it a debt in the strict legal sense of the
term, but rather a judgment calling for the performance of a duty made specific by the
mandate of the sovereign. This is done from necessity and with a view to preserve the
public peace and the purity of the wife; as where the husband makes so base demands
upon his wife and indulges in the habit of assaulting her. The pro tanto separation
resulting from a decree for separate support is not an impeachment of that public policy
by which marriage is regarded as so sacred and inviolable in its nature; it is merely a
stronger policy overruling a weaker one; and except in so far only as such separation is
tolerated as a means of preserving the public peace and morals may be considered, it
does not in any respect whatever impair the marriage contract or for any purpose place
the wife in the situation of a feme sole.
The foregoing are the grounds upon which our short opinion and order for judgment,
heretofore filed in this case, rest.

The obligation on the part of the husband to support his wife is created
merely in the act of marriage. The law provides that the husband, who is
obliged to support the wife, may fulfill the obligation either by paying her
a fixed pension or by maintaining her in his own home at his
option. However, this option given by law is not absolute. The law will

not permit the husband to evade or terminate his obligation to support his
wife if the wife is driven away from the conjugal home because of his
wrongful acts. In the case at bar, the wife was forced to leave the conjugal
abode because of the lewd designs and physical assault of the husband, she
can therefore claim support from the husband for separate maintenance
even outside the conjugal home.

G.R. No. L-3047

May 16, 1951
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
GUADALUPE ZAPATA and DALMACIO BONDOC, defendants-appellees.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Jaime de los
Angeles for appellant.
Francisco M. Ramos and Moises Sevilla Ocampo for appellee Dalmacio Bondoc.
Hernandez and Laquian for appellee Guadalupe Zapata.
PADILLA, J.:
In the Court of First Instance of Pampanga a complaint for adultery was filed by Andres
Bondoc against Guadalupe Zapata, his wife, and Dalmacio Bondoc, her paramour, for
cohabiting and having repeated sexual intercourse during the period from the year 1946
14 March 1947, the date of the filing of the complaint, Dalmacio Bondoc knowing his
codefendant to be a married woman (criminal case No. 426). The defendant wife
entered the plea of guilty and was sentenced to suffer four months of arresto
mayor which penalty she served. In the same court, on 17 September 1948, the offended
husband filed another complaint for adulterous acts committed by his wife and her
paramour from 15 March 1947 to 17 September 1948, the date of the filing of the second
complaint (criminal case No. 735). On 21 February 1949, each of the defendants filed a
motion to quash the complaint of the ground that they would be twice put in jeopardy
of punishment for the same offense. The trial court upheld the contention of the
defendants and quashed the second complaint. From the other sustaining the motions
to quash the prosecution has appealed.
The trial court held that the adulterous acts charged in the first and second complains
must be deemed one continuous offense, the defendants in both complaints being the
same and identical persons and the two sets of unlawful acts having taken place
continuously during the years 1946, 1947 and part of 1948, and that the acts or two sets
of acts that gave rise to the crimes of adultery complained of in both cases constitute
one and the same offense, within the scope and meaning of the constitutional provision
that "No person shall be twice put in jeopardy of punishment for the same offense.".
Adultery is a crime of result and not of tendency, as the Supreme Court of Spain has
held (S. 10 December 1945); it is a instantaneous crime which is consummated and
exhausted or completed at the moment of the carnal union. Each sexual intercourse
constitutes a crime of adultery (Cuello Calon, Derecho Penal, Vol. II, p. 569). True, two
or more adulterous acts committed by the same defendants are against the same person
the offended husband, the same status the union of the husband and wife by their
marriage, and the same community represented by the State for its interest in
maintaining and preserving such status. But this identity of the offended party, status
society does not argue against the commission of the crime of adultery as many times
as there were carnal consummated, for as long as the status remain unchanged, the
nexus undissolved and unbroken, an encroachment or trespass upon that status
constitutes a crime. There is no constitutional or legal provision which bars the filing of

as many complaints for adultery as there were adulterous acts committed, each
constituting one crime.
The notion or concept of a continuous crime has its origin in the juridical fiction
favorable to the law transgressors and in many a case against the interest of society
(Cuello Calon, Derecho Penal, Vol. II, p. 521). For it to exist there would be plurality of
acts performed seperately during a period of time; unity of penal provision infringed
upon or violated; and unity of criminal intent or purpose, which means that two or more
violations of the same penal provision are united in one and the same intent leading to
the perpetration of the same criminal purpose or aim (Ibid. p. 520).In the instant case
the last unity does not exist, because as already stated the culprits perpetrate the crime
in every sexual intercourse and they need not to another or other adulterous acts to
consummate it. After the last acts of adultery had been committed as charged in the
first complaint, the defendants again committed adulterous acts not included in the
first complaint and for which the second complaint was filed. It was held by the
Supreme Court of Spain that another crime of adultery was committed, if the
defendants, after their provincional release during the pendency of the case in which
they were sent to prison to serve the penalty imposed upon them(S. 28 February 1906;
76 Jur. Crim. pp. 208-210).
Another reason why a second complaint charging the commission of adulterous acts
not included in the first complaint does not constitute a violation of the double jeopardy
clause of the constitution is that, if the second places complaint the defendants twice in
jeopardy of punishment for the same offense, the adultery committed by the male
defendant charged in the second complaint, should he be absolved from, or acquitted
of, the first charge upon the evidence that he did not know that his codefendant was a
married woman, would remain or go unpunished. The defense set up by him against
the first charge upon which he was acquitted would no longer be available, because at
the time of the commission of the crime charged in the second complaint, he already
knew that this defendant was a married woman and he continued to have carnal
knowledge of her. Even if the husband should pardon his adulterous wife, such pardon
would not exempt the wife and her paramour from criminal liability for adulterous acts
committed after the pardon was granted because the pardon refers to previous and not
to subsequent adulterous acts(Viada [5th ed.] Vol. 5, p. 208; Groizard [2nd ed.] Vol. 5,
pp. 57-58).
The order appealed from, which quashed the second complaint for adultery, is hereby
reversed and set aside, and trial court directed to proceed with the trial of the
defendants in accordance with law, with costs against the appellees.

G.R. No. 79284 November 27, 1987

FROILAN
C.
GANDIONCO,
petitioner,
vs.
HON. SENEN C. PEARANDA, as Presiding Judge of the Regional Trial
Court of Misamis Oriental, Branch 18, Cagayan de Oro City, and TERESITA
S. GANDIONCO, respondents.
PADILLA, J.:
A special civil action for certiorari, with application for injunction, to annul (1) the
Order of the respondent Judge, dated 10 December 1986, ordering petitioner to pay
support pendente lite to private respondent (his wife) and their child, and (2) the Order
of the same respondent Judge, dated 5 August 1987, denying petitioner's motion to

suspend hearings in the action for legal separation filed against him by private
respondent as well as his motion to inhibit respondent Judge from further hearing and
trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the
Regional Trial Court of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan
de Oro City, presided over by respondent Judge, a complaint against petitioner for legal
separation, on the ground of concubinage, with a petition for support and payment of
damages. This case was docketed as Civil Case No. 10636. On 13 October 1986, private
respondent also filed with the Municipal Trial Court, General Santos City, a complaint
against petitioner for concubinage, which was docketed on 23 October 1986 as Criminal
Case No. 15437111. On 14 November 1986, application for the provisional remedy of
support pendente lite, pending a decision in the action for legal separation, was filed by
private respondent in the civil case for legal separation. The respondent judge, as
already stated, on 10 December 1986, ordered The payment of support pendente lite.
In this recourse, petitioner contends that the civil action for legal separation and the
incidents consequent thereto, such as, application for support pendente lite, should be
suspended in view of the criminal case for concubinage filed against him the private
respondent. In support of his contention, petitioner cites Art. III. Sec. 3 of the 1985
Rules on Criminal Procedure, which states:
SEC. 3. Other Civil action arising from offenses. Whenever the
offended party shall have instituted the civil action to enforce the
civil liability arising from the offense. as contemplated in the first
Section 1 hereof, the following rules shall be observed:
(a) After a criminal action has been commenced the pending civil
action arising from the same offense shall be suspended, in whatever
stage it may be found, until final judgment in the criminal proceeding
has been rendered. . . .
The civil action for legal separation, grounded as it is on concubinage, it is petitioner's
position that such civil action arises from, or is inextricably tied to the criminal action
for concubinage, so that all proceedings related to legal separation will have to be
suspended to await conviction or acquittal for concubinage in the criminal case.
Authority for this position is this Court's decision in the case of Jerusalem vs. Hon.
Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an action for legal
separation would be proper if an allegation of concubinage is made therein, relied solely
on Sec. 1 of Rule 107 of the then provisions of the Rules of Court on criminal procedure,
to wit:
Sec. 1. Rules governing civil actions arising from offenses.-Except
as otherwise provided by law, the following rules shall he observed:
(a) When a criminal action is instituted, the civil action for recovery
of civil liability arising from the offense charged is impliedly
instituted with the criminal action, unless the offended party
expressly waives the civil action or reserves his right to institute it
separately;
(b) Criminal and civil actions arising from the same offense may be
instituted separately, but after the criminal action has been
commenced the civil action can not be instituted until final judgment
has been rendered in the criminal action;
(c) After a criminal action has been commenced, no civil action
arising from the same offense can be prosecuted and the same shall
be suspended in whatever stage it may be found until final

judgment in the criminal proceeding has been rendered ...

(Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil
action to be suspended, with or upon the filing of a criminal action, is one which is "to
enforce the civil liability arising from the offense". In other words, in view of the
amendment under the 1985 Rules on Criminal Procedure, a civil action for legal
separation, based on concubinage, may proceed ahead of, or simultaneously with, a
criminal action for concubinage, because said civil action is not one "to enforce the civil
liability arising from the offense" even if both the civil and criminal actions arise from
or are related to the same offense. Such civil action is one intended to obtain the right
to live separately, with the legal consequences thereof, such as, the dissolution of the
conjugal partnership of gains, custody of offsprings, support, and disqualification from
inheriting from the innocent spouse, among others. As correctly pointed out by the
respondent Judge in his Order dated 5 August 1987:
The unreported case of JERUSALEM vs. Hon. Roberto Zurbano,
Judge of CFI of Antique, et al., L-11935, April 24, 1959 (105 Phil.
1277) is not controlling. It applied paragraph C of Sec. 1, of then Rule
107 of the Rules of Court, which reads:
After a criminal action has been commenced, no
civil action arising from the same offense can be
prosecuted and the same shall be suspended, in
whatever stage it may be found, until final
judgment in the criminal proceeding has been
rendered. (Emphasis supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which
refers to "civil actions to enforce the civil liability arising from the offense" as
contemplated in the first paragraph of Section 1 of Rule 111-which is a civil action "for
recovery of civil liability arising from the offense charged." Sec. 1, Rule 111, (1985) is
specific that it refers to civil action for the recovery of civil liability arising from the
offense charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred to "Civil action
arising from the offense."
As earlier noted this action for legal separation is not to recover civil liability, in the
main, but is aimed at the conjugal rights of the spouses and their relations to each other,
within the contemplation of Articles 7 to 108, of the Civil Code." 2
Petitioner also argues that his conviction for concubinage will have to be first secured
before the action for legal separation can prosper or succeed, as the basis of the action
for legal separation is his alleged offense of concubinage.
Petitioner's assumption is erroneous.
A decree of legal separation, on the ground of concubinage, may be issued upon proof
by preponderance of evidence in the action for legal separation. 3 No criminal
proceeding or conviction is necessary. To this end, the doctrine in Francisco vs.
Tayao 4 has been modified, as that case was decided under Act. No. 2710, when
absolute divorce was then allowed and had for its grounds the same grounds for legal
separation under the New Civil Code, with the requirement, under such former law,
that the guilt of defendant spouses had to be established by final judgment in a criminal
action. That requirement has not been reproduced or adopted by the framers of the
present Civil Code, and the omission has been uniformly accepted as a modification of
the stringent rule in Francisco v. Tayao. 5
Petitioner's attempt to resist payment of support pendente lite to his wife must also fail,
as we find no proof of grave abuse of discretion on the part of the respondent Judge in
ordering the same. Support pendente lite, as a remedy, can be availed of in an action
for legal separation, and granted at the discretion of the judge. 6 If petitioner finds the

amount of support pendente lite ordered as too onerous, he can always file a motion to
modify or reduce the same.7
Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case,
as the grant of supportpendente lite and the denial of the motion to suspend hearings
in the case, are taken by the petitioner as a disregard of applicable laws and existing
doctrines, thereby showing the respondent Judge's alleged manifest partiality to private
respondent.
Petitioner's contention is without merit. Divergence of opinions between a judge
hearing a case and a party's counsel, as to applicable laws and jurisprudence, is not a
sufficient ground to disqualify the judge from hearing the case, on the ground of bias
and manifest partiality. This is more so, in this case, where we find the judge's
disposition of petitioner's motions to be sound and well-taken.
WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.
SO ORDERED.

PROCEDURE
G.R. No. 116607 April 10, 1996
EMILIO R. TUASON, petitioner,
vs.
COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents.
PUNO, J.:p
This petition for review on certiorari seeks to annul and set aside the decision dated
July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying petitioner's
appeal from an order of the Regional Trial Court, Branch 149, Makati in Civil Case No.
3769.
This case arose from the following facts:
In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional Trial
Court, Branch 149, Makati a petition for annulment or declaration of nullity of her
marriage to petitioner Emilio R. Tuason. In her complaint, private respondent alleged
that she and petitioner were married on June 3, 1972 and from this union, begot two
children; that at the time of the marriage, petitioner was already psychologically
incapacitated to comply with his essential marital obligations which became manifest
afterward and resulted in violent fights between husband and wife; that in one of their
fights, petitioner inflicted physical injuries on private respondent which impelled her
to file a criminal case for physical injuries against him; that petitioner used prohibited
drugs, was apprehended by the authorities and sentenced to a one-year suspended
penalty and has not been rehabilitated; that petitioner was a womanizer, and in 1984,
he left the conjugal home and cohabited with three women in succession, one of whom
he presented to the public as his wife; that after he left the conjugal dwelling, petitioner
gave minimal support to the family and even refused to pay for the tuition fees of their
children compelling private respondent to accept donations and dole-outs from her
family and friends; that petitioner likewise became a spendthrift and abused his
administration of the conjugal partnership by alienating some of their assets and
incurring large obligations with banks, credit card companies and other financial
institutions, without private respondent's consent; that attempts at reconciliation were
made but they all failed because of petitioner's refusal to reform. In addition to her
prayer for annulment of marriage, private respondent prayed for powers of
administration to save the conjugal properties from further dissipation. 1

Petitioner answered denying the imputations against him. As affirmative defense, he

claimed that he and private respondent were a normal married couple during the first
ten years of their marriage and actually begot two children during this period; that it
was only in 1982 that they began to have serious personal differences when his wife did
not accord the respect and dignity due him as a husband but treated him like a persona
non grata; that due to the "extreme animosities " between them, he temporarily left the
conjugal home for a "cooling-off period" in 1984; that it is private respondent who had
been taking prohibited drugs and had a serious affair with another man; that
petitioner's work as owner and operator of a radio and television station exposed him
to malicious gossip linking him to various women in media and the entertainment
world; and that since 1984, he experienced financial reverses in his business and was
compelled, with the knowledge of his wife, to dispose of some of the conjugal shares in
exclusive golf and country clubs. Petitioner petitioned the court to allow him to return
to the conjugal home and continue his administration of the conjugal partnership.
After the issues were joined, trial commenced on March 30, 1990. Private respondent
presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law expert and
marriage counselor of both private respondent and petitioner; Ms. Adelita Prieto, a
close friend of the spouses, and Atty. Jose F. Racela IV, private respondent's counsel.
Private respondent likewise submitted documentary evidence consisting of newspaper
articles of her husband's relationship with other women, his apprehension by the
authorities for illegal possession of drugs; and copies of a prior a church annulment
decree. 2 The parties' marriage was clerically annulled by the Tribunal Metropolitanum
Matrimonial which was affirmed by the National Appellate Matrimonial Tribunal in
1986. 3
During presentation of private respondent's evidence, petitioner, on April 18, 1990,
filed his Opposition to private respondent's petition for appointment as administratrix
of the conjugal partnership of gains.
After private respondent rested her case, the trial court scheduled the reception of
petitioner's evidence on May 11, 1990.
On May 8, 1990, two days before the scheduled hearing , a counsel for petitioner moved
for a postponement on the ground that the principal counsel was out of the country and
due to return on the first week of June. 4 The court granted the motion and reset the
hearing to June 8, 1990. 5
On June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the
court declared petitioner to have waived his right to present evidence and deemed the
case submitted for decision on the basis of the evidence presented.
On June 29, 1990, the trial court rendered judgment declaring the nullity of private
respondent's marriage to petitioner and awarding custody of the children to private
respondent. The court ruled:
WHEREFORE, in view of the foregoing, the marriage contracted by
Ma. Victoria L. Tuason and Emilio R. Tuason on June 3, 1972 is
declared null and void ab initio on the ground of psychological
incapacity on the part of the defendant under Sec. 36 of the Family
Code. Let herein judgment of annulment be recorded in the registry
of Mandaluyong, Metro Manila where the marriage was contracted
and in the registry of Makati, Metro Manila where the marriage is
annulled.
The custody of the two (2) legitimate children of the plaintiff and the
defendant is hereby awarded to the plaintiff.
The foregoing judgment is without prejudice to the application of the
other effects of annulment as provided for under Arts . 50 and 51 of
the Family Code of the Philippines. 6

Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal
was taken from the decision.
On September 24, 1990, private respondent filed a "Motion for Dissolution of Conjugal
Partnership of Gains and Adjudication to Plaintiff of the Conjugal
Properties." 7 Petitioner opposed the motion on October 17, 1990. 8
Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the
trial court a petition for relief from judgment of the June 29, 1990 decision.
The trial court denied the petition on August 8, 1991. 9
Petitioner appealed before the Court of Appeals the order of the trial court denying his
petition for relief from judgment. On July 29, 1994, the Court of Appeals dismissed the
appeal and affirmed the order of the trial court.10
Hence this petition.
The threshold issue is whether a petition for relief from judgment is warranted under
the circumstances of the case.
We rule in the negative.
A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised
Rules of Court which provides:
Sec. 2. Petition to Court of First Instance for relief from judgment or
other proceeding thereof. When a judgment or order is entered, or
any other proceeding is taken, against a party in a Court of First
Instance through fraud, accident, mistake, or excusable negligence,
he may file a petition in such court and in the same cause praying
that the judgment, order or proceeding be set aside.
Under the rules, a final and executory judgment or order of the Regional Trial Court
may be set aside on the ground of fraud, accident, mistake or excusable negligence. In
addition, the petitioner must assert facts showing that he has a good, substantial and
meritorious defense or cause of action. 11 If the petition is granted, the court shall
proceed to hear and determine the case as if a timely motion for new trial had been
granted therein. 12
In the case at bar, the decision annulling petitioner's marriage to private respondent
had already become final and executory when petitioner failed to appeal during the
reglementary period. Petitioner however claims that the decision of the trial court was
null and void for violation of his right to due process. He contends he was denied due
process when, after failing to appear on two scheduled hearings, the trial court deemed
him to have waived his right to present evidence and rendered judgment on the basis
of the evidence for private respondent. Petitioner justifies his absence at the hearings
on the ground that he was then "confined for medical and/or rehabilitation
reason." 13 In his affidavit of merit before the trial court, he attached a certification by
Lt. Col. Plaridel F. Vidal, Director of the Narcotics Command, Drug Rehabilitation
Center which states that on March 27, 1990 petitioner was admitted for treatment of
drug dependency at the Drug Rehabilitation Center at Camp Bagong Diwa, Bicutan,
Taguig, Metro Manila of the Philippine Constabulary-Integrated National Police. 14 The
records, however, show that the former counsel of petitioner did not inform the trial
court of this confinement. And when the court rendered its decision, the same counsel
was out of the country for which reason the decision became final and executory as no
appeal was taken therefrom. 15
The failure of petitioner's counsel to notify him on time of the adverse judgment to
enable him to appeal therefrom is negligence which is not excusable. Notice sent to
counsel of record is binding upon the client and the neglect or failure of counsel to
inform him of an adverse judgment resulting in the loss of his right to appeal is not a
ground for setting aside a judgment valid and regular on its face. 16

Similarly inexcusable was the failure of his former counsel to inform the trial court of
petitioner's confinement and medical treatment as the reason for his non-appearance
at the scheduled hearings. Petitioner has not given any reason why his former counsel,
intentionally or unintentionally, did not inform the court of this fact. This led the trial
court to order the case deemed submitted for decision on the basis of the evidence
presented by the private respondent alone. To compound the negligence of petitioner's
counsel, the order of the trial court was never assailed via a motion for reconsideration.
Clearly, petitioner cannot now claim that he was deprived of due process. He may have
lost his right to present evidence but he was not denied his day in court. As the record
show, petitioner, through counsel, actively participated in the proceedings below. He
filed his answer to the petition, cross-examined private respondent's witnesses and
even submitted his opposition to private respondent's motion for dissolution of the
conjugal partnership of gains. 17
A petition for relief from judgment is an equitable remedy; it is allowed only in
exception cases where there is no other available or adequate remedy. When a party
has another remedy available or adequate remedy. When a party has another remedy
available to him, which may be either a motion for new trial or appeal from an adverse
decision of the trial or appeal from an adverse decision of the trial court, and he was
not prevented by fraud, accident, mistake or excusable negligence from filing such
motion or taking such appeal, he cannot avail himself of this petition. 18 Indeed, relief
will not be granted to a party who seeks avoidance from the effects of the judgment
when the loss of the remedy at law was due to his own negligence; otherwise the petition
for relief can be used to revive the right to appeal which had been lost thru inexcusable
negligence. 19
Petitioner also insists that he has a valid and meritorious defense. He cites the Family
Code which provides that in actions for annulment of marriage or legal separation, the
prosecuting officer should intervene for the state because the law "looks with disfavor
upon the haphazard declaration of annulment of marriages by default." He contends
that when he failed to appear at the scheduled hearings, the trial court should have
ordered the prosecuting officer to intervene for the state and inquire as to the reason
for his non-appearance. 20
Articles 48 and 60 of the Family Code read as follows:
Art. 48. In all cases of annulment or declaration of absolute nullity of
marriage, the Court shall order the prosecution attorney or fiscal
assigned to it to appear on behalf of the State to take steps to prevent
collusion between the parties and to take care that evidence is not
fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment
shall be based upon a stipulation of facts or confession of judgment.
xxx xxx xxx
Art. 60. No decree of legal separation shall be based upon a
stipulation of facts or a confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal
assigned to it to take steps to prevent collusion between the parties
and to take care that the evidence is not fabricated or suppressed. 21
A grant of annulment of marriage or legal separation by default is fraught with the
danger of collusion. 22 Hence, in all cases for annulment, declaration of nullity of
marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear
on behalf of the state for the purpose of preventing any collusion between the parties
and to take care that their evidence is not fabricated or suppressed. If the defendant
spouse fails to answer the complaint, the court cannot declare him or her in default but
instead, should order the prosecuting attorney to determine if collusion exists between

the parties.23 The prosecuting attorney or fiscal may oppose the application for legal
separation or annulment through the presentation of his own evidence, if in his
opinion, the proof adduced is dubious and fabricated. 24 Our Constitution is committed
to the policy of strengthening the family as a basic social institution. 25 Our family law
is based on the policy that marriage is not a mere contract, but a social institution in
which the state is vitally interested. The state can find no stronger anchor than on good,
solid and happy families. The break up of families weakens our social and moral fabric
and, hence, their preservation is not the concern alone of the family members.
The facts in the case at bar do not call for the strict application of Articles 48 and 60 of
the Family Code. For one, petitioner was not declared in default by the trial court for
failure to answer. Petitioner filed his answer to the complaint and contested the cause
of action alleged by private respondent. He actively participated in the proceedings
below by filing several pleadings and cross-examining the witnesses of private
respondent. It is crystal clear that every stage of the litigation was characterized by a
no-holds barred contest and not by collusion.
The role of the prosecuting attorney or fiscal in annulment of marriage and legal
separation proceedings is to determine whether collusion exists between the parties
and to take care that the evidence is not suppressed or fabricated. Petitioner's vehement
opposition to the annulment proceedings negates the conclusion that collusion existed
between the parties. There is no allegation by the petitioner that evidence was
suppressed or fabricated by any of the parties. Under these circumstances, we are
convinced that the non-intervention of a prosecuting attorney to assure lack of
collusion between the contending parties is not fatal to the validity of the proceedings
in the trial court.
Petitioner also refutes the testimonies of private respondent's witnesses, particularly
Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and hearsay. Petitioner
alleges that if he were able to present his evidence, he could have testified that he was
not psychologically incapacitated at the time of the marriage as indicated by the fact
that during their first ten years, he and private respondent lived together with their
children as one normal and happy family, that he continued supporting his family even
after he left the conjugal dwelling and that his work as owner and operator of a radio
and television corporation places him in the public eye and makes him a good subject
for malicious gossip linking him with various women. These facts, according to
petitioner, should disprove the ground for annulment of his marriage to petitioner.
Suffice it to state that the finding of the trial court as to the existence or non-existence
of petitioner's psychological incapacity at the time of the marriage is final and binding
on us. 26 Petitioner has not sufficiently shown that the trial court's factual findings and
evaluation of the testimonies of private respondent's witnesses vis-a-vis petitioner's
defenses are clearly and manifestly erroneous. 27
IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of the
Court of Appeals in CA-G.R. CV No. 37925 is affirmed.

G.R. No. 96602 November 19, 1991

EDUARDO ARROYO, JR., petitioner,
vs.
COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.
G.R. No. 96715 November 19, 1991
RUBY VERA-NERI, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE COURT OF
APPEALS, respondents.
Efren C. Carag for Eduardo C. Arroyo, Jr.
Singson, Valdes & Associates for Ruby Vera Neri.
RESOLUTION
FELICIANO, J.:p
In G.R. No. 96602, the Court summarized the facts of the case in this manner:
Dr. Jorge B. Neri filed a criminal complaint for adultery before the
Regional Trial Court (RTC), Branch 4, of Benguet against his wife,
Ruby Vera Neri, and Eduardo Arroyo committed on 2 November
1982 in the City of Baguio.
Both defendants pleaded not guilty and after trial, the RTC convicted
petitioner and Mrs. Ruby Vera Neri of adultery as defined under
Article 333 of the Revised Penal Code.
The essential facts of the case, as found by the trial court and the
Court of Appeals, are as follows:
... On November 2, 1982, accused, Mrs. Ruby Vera
Neri in the company of Mrs. Linda Sare and
witness Jabunan, took the morning plane to
Baguio. Arriving at around 11:00 a.m., they
dropped first at the house of Mrs. Vera, mother of
Ruby Vera at Crystal Cave, Baguio City then
proceeded to the Mines View Park Condominium
of the Neri spouses. At around 7:00 o' clock in the
evening, accused Eduardo Arroyo arrived at the
Neris' condominium. Witness opened the door for
Arroyo who entered, he went down to and knocked
at the master's bedroom where accused Ruby Vera
Neri and her companion Linda Sare were. On
accused Ruby Vera Neri's request, Linda Sare left
the master's bedroom and went upstairs to the sala
leaving the two accused. About forty-five minutes
later, Arroyo Jr. came up and told Linda Sare that
she could already come down. Three of them,
thereafter, went up to the sala then left the
condominium. (Court of Appeals Decision, p. 4) 1
Petitioner Arroyo filed a Motion for Reconsideration of the Court of Appeals' Decision.
Petitioner Ruby Vera Neri also moved for reconsideration or a new trial, contending
that a pardon had been extended by her husband, private complain ant Dr. Jorge B.
Neri, and that her husband had later con traded marriage with another woman with
whom he is presently co-habiting. Both motions were denied by the Court of Appeals.

Petitioner Arroyo filed a Petition for Review (G.R. No. 96602) dated 8 February 1991
which this court denied in a Resolution dated 24 April 1991.
In the meantime, petitioner Neri filed a separate Petition for Review (G.R. No. 96715)
dated 19 February 1991.
Petitioner Arroyo filed a motion for reconsideration dated 1 May 1991 and a motion
dated 23 May 1991 for consolidation o G.R. No. 96602 with G.R. No. 96715.
On 3 June 1991, G.R. No. 96715 was consolidated with G.R No. 96602 in the Third
Division in accordance with long-stand ing practice of the Court.
On 29 July 1991, the Third Division deliberated upon the case which was then assigned
to the ponente for the writing of the Court's Resolution. 2
On 26 August 1991, Dr. Neri filed a manifestation, dated 14 May 1991, 3 praying that
the case against petitioners be dismissed as he had "tacitly consented" to his wife's
infidelity. 4
Petitioners then filed their respective motions praying for the dismissal or for the
granting of new trial of the case claiming a basis for their motions Dr. Neri's
manifestation. The Solicitor General was then asked to comment on the manifestation;
hi comment was filed with this Court on 18 October 1991. 5
In October 1991, the consolidated cases were, again in accordance with long-standing
practice of the Court, assigned to the First Division upon the assignment of
the ponente to that division. On 4 November 1991, the consolidated cases were re
deliberated upon by the members of the First Division who reached the same
conclusion as the members of the Third Division of the Court.
In his Motion for Reconsideration in G.R. No. 96602, petitioner Arroyo made the
following contentions:
1. Dr. Neri's affidavit of desistance which states that the case was filed
out of "pure misunderstanding' raises questions as to the truth of the
alleged admission made by Mrs. Neri;
2. The other prosecution witnesses' corroborative testimonies merely
proved the existence of an illicit affair but not that adultery was
committed on the date and place in question;
3. Mrs. Neri's separate petition for review raised the issue of Dr.
Neri's alleged subsequent marriage to another woman which, if
proven would preclude either of the spouses from filing charges of
adultery or concubinage against each other.
In G.R. No. 96715, petitioner Neri imputes the following errors to the Court of Appeals:
1. The Honorable Court of Appeals gravely erred in not granting the
motion for reconsideration and/or new trial of the petitioner;
2. The Honorable Court of Appeals gravely erred by violating the
constitutional rights of petitioner against self-incrimination;
3. The Honorable Court of Appeals erred in failing to take into
consideration the material inconsistencies of the testimony of the
complaining witness; and
4. The Honorable Court of Appeals gravely erred in discarding
medical testimony as to the physical impossibility of the petitioner to
have committed the crime charged. 6
The issues in the consolidated cases may be summarized as follows:
1. Whether or not Dr. Neri's affidavit of desistance is sufficient to cast
reasonable doubts on his credibility;
2. Whether or not Mrs. Neri's constitutional right against selfincrimination had been violated;

3. Whether or not Dr. Neri's alleged extra-marital affair precludes

him from filing the criminal complaint on the ground of pari
delicto; and
4. Whether or not Dr. Neri's manifestation is sufficient basis for the
granting of a new trial.
Deliberating on the:
1. Motion for Reconsideration in G.R. No. 96602, the Court believes that petitioner
Arroyo has failed to show any ground that would warrant the Court reversing its
Resolution dated 24 April 1991; and on the
2. Petition for Review docketed as G.R. No. 96715, the Court considers that petitioner
Ruby Vera Neri has failed to show reversible error on the part of the Court of Appeals
in issuing its Decision dated 21 May 1990 and its Resolution, dated 18 December 1990.
Petitioner Arroyo did not convince this Court in G.R. No. 96602 to dismiss the criminal
case on the basis of Dr. Neri's pardon. He, together with petitioner Neri, now cites the
same affidavit in the effort to cast doubts on the credibility of Dr. Neri's testimony given
before the trial court. However, in the Court's Resolution, dated 24 April 1991,
dismissing the Petition for certiorari in G.R. No. 96602, the Court held that:
It has been our constant holding that:
In certiorari proceedings under Rule 45, the
findings of fact of the lower court as well
itsconclusions on credibility of witnesses are
generally not disturbed, the question before the
court being limited to questions of law (Rule 45,
Sec. 2). Specifically, the conclusions of the trial
court on the credibility of witnesses are given
considerable weight, since said court is in the best
position to observe the demeanor, conduct and
attitude of witnesses at the trial. (Aguirre v.
People, 155 SCRA 337 [1987]; emphasis supplied)
Thus,
the
claim
that
Dr.
Neri's
testimony
is
incredible is unavailing at this stage. Besides, the Court does not
believe that such an admission by an unfaithful wife was inherently
improbable or impossible. 7 (Emphasis supplied)
The Court, in the said Resolution of 24 April 1991, had likewise ruled on the claim that
Mrs. Neri's constitutional right against self-incrimination had been disregarded when
her admission to her husband in the privacy of their conjugal home that she had indeed
lain with petitioner Arroyo was taken into account by the trial court, to wit:
Dr. Jorge Neri was also presented as a witness and he testified that
sometime in December of 1982, he surprised his wife while she was
looking at some photographs in their bedroom in their house in
Dasmarias Village, Makati. Accused Ruby Vera Neri then turned
pale and started for the door. Struck by this unusual behavior, Dr.
Neri started looking around the dressing room and he came upon a
Kodak envelope with film negatives inside. He took the negatives for
printing and a few days later, armed with the photographs which
showed his wife in intimate bedroom poses with another man,
confronted Ruby Vera Neri. It was at this point that Ruby Vera Neri
admitted to her husband that Eduardo Arroyo was her lover and that
they went to bed in Baguio on 2 and 3 November 1982.
xxx xxx xxx
As to the constitutional issue, we held in Gamboa v. Cruz (162 SCRA
642 [1988]) that:

The right to counsel attaches upon the start of an

investigation,
i.e.,
when
theinvestigating
officer starts to ask questions to elicit information
and/or
confession
or
admissions
from
respondent-accused.(emphasis supplied)
In the present case, Dr. Neri was not a peace officer nor an
investigating officer conducting a custodial interrogation, hence,
petitioner cannot now claim that Mrs. Neri's admission should have
been rejected.
In the case of Aballe v. People (183 SCRA 196 [1990]), the Court held:
The declaration of an accused expressly
acknowledging his guilt of the offense may be
given in evidence against him.
The rule is that any person, otherwise competent
as witness, who heard the confession, is competent
to testify as to substance of what he heard if he
heard and understood all of it. An oral confession
need not be repeated verbatim, but in such case it
must be given in its substance.
Compliance with the constitutional procedures on
custodial investigation is not applicable to a
spontaneous statement, not elicited through
questioning, but given in an ordinary manner,
whereby the accused orally admitted having slain
the victim.
We also note that the husband is not precluded under the Rules of
Court from testifying against his wife in criminal cases for a crime
committed by one against the other (Section 22, Rule 129, Revised
Rules of Court).
In short, the trial court and the Court of Appeals did not err in
admitting Dr. Neri's testimony as he was a competent witness.
Neither was said testimony rendered inadmissible by the
constitutional provision on the right to remain silent and the right to
counsel of a "person under investigation for the commission of an
offense."
Petitioner next claims that the trial court erred in convicting him on
the basis of the failure of Ruby Vera Neri to take the witness stand.
In People v. Gargoles (83 SCRA 282 [1978]), it was held that:
We have held that an accused has the right to
decline to testify at the trial without having any
inference of guilt drawn from his failure to go on
the witness stand. Thus, a verdict of conviction on
the basis, solely or mainly, of the failure or refusal
of the accused to take the witness stand to deny
the charges against him is a judicial heresy which
cannot be countenanced. Invariably, any such
verdict deserves to be reserved.
Such situation does not obtain, however, in the
case at bar. For while the trial court took note of
the failure of defendant to take the witness
stand to deny the charge against him,the same
was not the main reason, much less the sole basis,

of the trial court in holding, as credible the

testimony
of
complainant,
and
in
ultimately concluding that the crime of rape had
been committed by the accused-appellant.
(Emphasis supplied)
Examination of the trial court decision here shows that said failure
to testify was not the sole nor the main basis of the conviction. Aside
from accused's failure to deny Dr. Neri's testimony, the trial court
also considered the testimonies of Dr. Neri and other prosecution
witnesses and the photographs of the two accused in intimate poses
(and three of which showed them half naked in bed). 8 (Emphasis
supplied)
We turn to the contention that pari-delicto "is a valid defense to a prosecution for
adultery and concubinage and that in such a case "it would be only a hypocritical
pretense for such spouse to appear in court as the offended spouse." 9
In the first place, the case cited does not support petitioner Neri's position. In
the Guinucud case, the Court found that the complaining husband, by entering into an
agreement with his wife that each of them were to live separately and could marry other
persons and by filing complaint only about a year after discovering his wife's infidelity,
had "consented to, and acquiesced in, the adulterous relations existing between the
accused, and he is, therefore, not authorized by law to institute the criminal
proceedings." In fine, the Guinucud case refers not to the notion of pari delicto but to
consent as a bar to the institution of the criminal proceedings. In the present case, no
such acquiescence can be implied: the accused did not enter into any agreement with
Dr. Neri allowing each other to marry or cohabit with other persons; and Dr. Neri
promptly filed his complaint after discovering the illicit affair.
Moreover, the concept of pari delicto is not found in the Revised Penal Code, but only
in Article 1411 of the Civil Code. The Court notes that Article 1411 of the Civil Code
relates only to contracts with illegal consideration.10 The case at bar does not involve
any illegal contract which either of the contracting parties is now seeking to enforce.
Petitioners also contend that Dr. Neri's manifestation which reads:
2. Even before I filed the complaint in court and before the pardon
that I had extended to my wife and her co-accused, I was in reality
aware of what was going on between and therefore, tacitly consented
to my wife's infidelity, ...
should result in the dismissal of the case or, at the very least, in the remand of the case
for new trial claiming that in People v. Camara 11 it was held that "the consent of the
spouse is valid defense to a prosecution for adultery and/or concubinage." 12
Dr. Neri's manifestation amounts in effect to an attempted recantation of testimony
given by him before the trial court. It is settled that not all recantations by witnesses
should result in the granting of a new trial. 13 In People v. Follantes and Jacinto, 14 it
was held that:
... [R]ecantation by witnesses called on behalf of the prosecution
does not necessarily entitle defendant to a new trial. The question
whether a new trial shall be granted on this ground depends on all
the circumstances of the case, including the testimony of the
witnesses submitted on the motion for the new trial.
Moreover, recanting testimony is exceedingly unreliable, and it is
the duty of the court to deny a new trial where it is not satisfied that
such testimony is true. ... 15 (Emphasis supplied)
Succinctly put, the Court doubts the truthfulness and reliability of Dr. Neri's belated
recantation. Dr. Neri had two (2) previous occasions to make the claim contained in his

manifestation: first, in the compromise agreement 16dated 16 February 1989

submitted before the Regional Trial Court of Makati, Branch 149 in relation to Civil
Case No. M-001; and second, his affidavit 17dated 23 November 1988 submitted to the
Court of Appeals. Instead, however, these two (2) documents merely stated that Dr.
Neri had pardoned petitioners 18 and the complaint was filed out of "pure
misunderstanding" 19 without hinting that Dr. Neri knew of the adulterous relations.
It appears to the Court that Dr. Neri's manifestation was so worded as to attempt to
cure the deficiency noted by the Court in the two (2) previous documents in the
disposition of the petition in G.R. No. 96602:
Petitioner will find no solace in the cases he cites, in support of his
prayer to dismiss the case based on Dr. Neri's pardon. People v.
Camara (100 Phil. 1098 (1957) is inapplicable as the affidavit there
expressly stated that the wife had consented to the illicit relationship.
In Gomez v. Intermediate Appellate Court (135 SCRA 620 [1985]) a
case involving estafa, the criminal case was dismissed as the affidavit
of desistance specifically stated that the accused had nothing to do
whatsoever with the crime charged. In the present case, the pardon
did not state that Dr. Neri had consented to the illicit relationship
petitioner and Mrs. Neri. Neither did it state that the case was filed
against the wrong parties. 20
Moreover, while the manifestation is dated 14 May 1991, which incidentally is also the
date of petitioner Arroyo's motion for reconsideration, it was subscribed to only on 23
August 1991.
Petitioner Neri also contends that Dr. Neri's affidavit of desistance and the compromise
agreement operate as a pardon meriting a new trial. The Court notes that the cases
of People v. Camara (supra) and Gomez v. Intermediate Appellate Court (supra) were
the very same cases which petitioner Arroyo cited in G.R. No. 96602 which the Court
has already held to be inapplicable in the present case.
The rule on pardon is found in Article 344 of the Revised Penal Code which provides:
ART. 344. ... The crime of adultery and concubinage shall not be
prosecuted except upon a complaint filed by the offended spouse.
The offended party cannot institute criminal prosecution without
including both parties, if they are both alive, nor in any case, if he
shall have consented or pardoned the offenders.
xxx xxx xxx
While there is a conceptual difference between consent and pardon in the sense that
consent is granted prior to the adulterous act while pardon is given after the illicit
affair, 21 nevertheless, for either consent or pardon to benefit the accused, it must be
given prior to the filing of a criminal complaint. 22 In the present case, the affidavit of
desistance was executed only on 23 November 1988 while the compromise agreement
was executed only on 16 February 1989, after the trial court had already rendered its
decision dated 17 December 1987 finding petitioners guilty beyond reasonable doubt.
Dr. Neri's manifestation is both dated and signed after issuance of our Resolution in
G.R. No. 96602 on 24 April 1991.
It should also be noted that while Article 344 of the Revise Penal Code provides that the
crime of adultery cannot be prosecuted without the offended spouse's complaint, once
the complaint has been filed, the control of the case passes to the public
prosecutor. 23 Enforcement of our law on adultery is not exclusively, nor even
principally, a matter of vindication of the private honor of the offended spouse; much
less is it a matter merely of personal or social hypocrisy. Such enforcement relates, more
importantly, to protection of the basic social institutions of marriage and the family in
the preservation of which the State has the strongest interest; the public policy here

involved is of the most fundamental kind. In Article II, Section 12 of the Constitution
there is set forth the following basic state policy:
The State recognizes the sanctity of family life and shall protect find
strengthen the family as a basic autonomous social institution ...
The same sentiment has been expressed in the Family Code o the Philippines in Article
149:
The family, being the foundation of the ration, is a basic social
institution which public policy cherishes and protects. Consequently,
family relations are governed by law and no custom, practice or
agreement destructive of the family shall be recognized or given
effect.
In U.S. v. Topio, 24 the Court held that:
... The husband being the head of the family and the only person who
could institute the prosecution and control its effects, it is quite clear
that the principal object in penalizing the offense by the state was to
protect the purity of the family and the honor of the husband, but
now the conduct of the prosecution, after it is once commenced by
the husband, and the enforcement of the penalties imposed is also a
matter of public policy in which the Government is vitally interested
to the extent of preserving the public peace and providing for
the general welfare of the community. ... 25 (Emphasis supplied)
As to the claim that it was impossible for petitioner Neri to engage in sexual intercourse
a month after her ceasarian operation, the Court agrees with the Solicitor General that
this is a question of fact which cannot be raised at this stage. In any case, we find no
reason to overturn the Court of Appeals' finding that "a woman who has the staying
power to volley tennis bags for fifteen minutes at the [John Hay] tennis court would not
be incapable of doing the sexual act" which ball play was followed, as noted by the Court
of Appeals "by a picture taking of both accused in different intimate poses." 26
ACCORDINGLY, the Motion for Reconsideration in G.R. No. 96602 is hereby DENIED
for lack of merit and this denial is FINAL. The Petition for Review in G.R. No. 96715 is
hereby similarly DENIED for lack of merit. Costs against petitioners.
Let a copy of this Resolution and of Dr. Neri's Manifestation and Motion subscribed on
23 August 1991 be forwarded to the Department of Justice for inquiry into the possible
liability of Dr. Neri for perjury.

ARROYO,
JR.
G.R.
No.

v.
96602,

COURT
19

OF
APPEALS
November
1991

FACTS:
A criminal complaint for adultery was filed by Dr. Neri (husband) against
Ruby (wife) and Arroyo (petitioner). After trial, the Regional Trial Court
convicted the petitioner and the wife, based, among others on the wife's
admission to her husband that she sex with petitioner Arroyo. This
decision was affirmed by the Court of Appeals. The wife later filed a
motion for reconsideration or new trial contending that a pardon had
been extended by her husband. The husband filed a manifestation
praying for the dismissal of the case as he had "tacitly consented" to
his
wife's
infidelity.

IN

ISSUES/RULINGS:
1. Whether the admission of adulterous conduct by the wife to her
husband without the presence of her counsel is admissible in evidence.
YES. The husband's testimony relating to the admission of adulterous
conduct made by the wife to her husband is admissible in evidence.
The husband was neither a peace officer nor an investigating officer
conducting a custodial investigation. Neither was said testimony
rendered inadmissible by the constitutional provision on the right to
remain silent and the right to counsel of a "person under investigation
for
the
commission
of
an
offense."
The right to counsel attaches only upon the start of an investigation,
i.e., when the investigating officer starts to ask questions to elicit
information and/or confession or admissions from respondentaccused.

RE:

ATTY.

RUFILLO

D.

BUCANA,

Respondent.

SYNOPSIS
Respondent notarized an agreement executed by the spouses Gonzalo Baltazar and
Luisa Sorongon wherein it was agreed that in case either of them will remarry, the other
party will offer no objection and waives all civil and criminal actions, which agreement
was entered into for the purpose of following either of the parties to remarry without
objection by the other. The agreement being contrary to law, as it sanctioned an illicit
and immoral act. respondent was required by the Supreme Court to show cause within
10 days from notice why he should not be the subject of disciplinary action.
While admitting that said agreement was immoral and against public policy,
respondent contended, among others, that the agreement was prepared by his clerk
without his knowledge; that he refused to notarize the same and instead placed it on
his table; that a week later he discovered he had notarized it inadvertently due to the
great number of documents on his table. In effect, respondent pleaded for clemency for
his
negligence.
Finding that respondent has not exercised the requisite care required by law in the
exercise of his duties as notary public, the Supreme Court adjudged him guilty of
malpractice and suspended him from the office of notary public for a period of six (6)
months, with the admonition that a commission of the same or a similar act in the
future would be dealt with more severely.

2. Whether the husband is a competent witness against his wife

SYLLABUS

Yes. The husband is not precluded under the Rules of Court from
testifying against his wife in criminal cases for a crime committed by
one against the other (Section 22, Rule 129, Revised Rules of Court).
In short, the trial court and the Court of Appeals did not err in admitting
Dr. Neri's testimony as he was a competent witness.

1. FAMILY RELATION; MARRIAGE, NATURE OF. Marriage is an inviolable social

institution in the maintenance of which in its purity the public is deeply interested, for
it is the foundation of the family and of society, without which there could be neither
civilization
nor
progress.
2. ID.; ID.; CONTRACT THAT INDUCES BIGAMY NOT ONLY IMMORAL BUT ABETS
COMMISSION OF CRIME. Where the contract, in substance, purports to formulate
an agreement between the husband and the wife to take unto himself a concubine and
the wife to live in adulterous relations with another man without opposition from either
one, induces each party to commit bigamy, the same is not only immoral but in effect
abets
the
commission
of
a
crime.
3. NOTARIAL LAW; NOTARY PUBLIC; NATURE AND DUTY OF OFFICE. A notary
public, by virtue of the nature of his office, is required to exercise his duties with due
care and with due regard to the provision of existing law. It is for the notary to inform
himself of the facts to which he intends to certify, and to take in no illegal enterprise.
4. ID.; ID.; DUAL RESPONSIBILITY OF NOTARY PUBLIC. The notary public is
usually a person who has been admitted to the practice of law, and as such, in the
commingling of his duties as notary and lawyer, must be held responsible for both. A
member of the bar who as a notary public, performs an act of a disgraceful or immoral
character may be held to account by the court even to the extent of disbarment.
RESOLUTION

ANTONIO, J.:
Acting upon the letter of Mrs. Angela Drilon Baltazar, Barangay Captain of Victorias,
Dumangas, Iloilo, dated February 26, 1976, respondent Notary Public Rufillo D.
Bucana was required by this Court in its Resolution of March 23, 1976, to show cause
within ten (10) days from notice, why he should not be disciplinarily dealt with for
having notarized on November 10, 1975 at Dumangas, Iloilo an Agreement executed by
the spouses Gonzalo Baltazar and Luisa Sorongon wherein the afore-mentioned
spouses agreed therein that "in case anyone of them will remarry both parties offer no
objection and waive all civil and criminal actions against them" and that the aforementioned Agreement was "entered into for the purpose of agreement to allow each
and everyone of them to remarry without objection or reservation . . .", which affidavit
is contrary to law because it sanctions an illicit and immoral purpose.
On April 21, 1976, respondent submitted his explanation, admitting that he notarized
the afore-mentioned document and that the Agreement is "immoral and against public
policy", but in mitigation he asserted that the document in question was prepared by
his clerk, Lucia D. Doctolero without his previous knowledge; that when said document
was presented to him for signature after it was signed by the parties, he vehemently
refused to sign it and informed the parties that the document was immoral; that he
placed the said document on his table among his files and more than a week later, he
asked his clerk where the document was for the purpose of destroying it, but to his
surprise he found that the same was notarized by him as per his file copies in the office;
that he dispatched his clerk to get the copy from the parties, but the afore-mentioned
parties could not be found in their respective residences; that he must have
inadvertently notarized the same in view of the numerous documents on his table and
at that time he was emotionally disturbed as his father (now deceased) was then
seriously ill. The foregoing contentions of respondent were corroborated substantially
by the separate sworn statements of his clerk, Lucia D. Doctolero and Angela Drilon
Baltazar,
both
dated
April
20,
1976.
1
There is no question that the afore-mentioned Agreement is contrary to law, morals
and good customs. Marriage is an inviolable social institution, in the maintenance of
which in its purity the public is deeply interested for it is the foundation of the family
and of society, without which there could be neither civilization nor progress. 2
The contract, in substance, purports to formulate an agreement between the husband
and the wife to take unto himself a concubine and the wife to live in adulterous relations
with another man, without opposition from either one, and what is more, it induces
each party to commit bigamy. 3 This is not only immoral but in effect abets the
commission of a crime. A notary public, by virtue of the nature of his office, is required
to exercise his duties with due care and with due regard to the provisions of existing
law.
As stressed by Justice Malcolm in Panganiban v. Borromeo, 4 "it is for the notary to
inform himself of the facts to which he intends to certify, and to take part in no illegal
enterprise. The notary public is usually a person who has been admitted to the practice
of law, and as such, in the commingling of his duties as notary and lawyer, must be held
responsible for both. We are led to hold that a member of the bar who performs an act

as a notary public of a disgraceful or immoral character may be held to account by the

court even to the extent of disbarment."cralaw virtua1aw library
In the case at bar, respondent in effect pleads for clemency, claiming that the
notarization of the questioned document was due to his negligence. We find, however,
that the afore-mentioned document could not have been notarized if the respondent
had only exercised the requisite care required by law in the exercise of his duties as
notary
public.
WHEREFORE, We hold that respondent Rufillo D. Bucana is guilty of malpractice and
is hereby suspended from the office of notary public for a period of six (6) months, with
the admonition that a repetition of the same or a similar act in the future will be dealt
with more severely.
A.M. No. 1637 July 6, 1976
IN RE: ATTY. RUFILLO D. BUCANA, respondent.
RESOLUTION
ANTONIO, J.:
Acting upon the letter of Mrs. Angela Drilon Baltazar, Barangay Captain of Victories,
Dumangas, Iloilo, dated February 26, 1976, respondent Notary Public Rufillo D.
Bucana was required by this Court in its Resolution of March 23, 1976, to show cause
within ten (10) days from notice, why he should not be disciplinarily dealt with for
having notarized on November 10, 1975 at Dumangas, Iloilo an Agreement executed by
the spouses Gonzalo Baltazar and Luisa Sorongon wherein the afore-mentioned
spouses agreed therein that "in case anyone of them will remarry both parties offer no
objection and waive all civil and criminal actions against them" and that the aforementioned Agreement was "entered into for the purpose of agreement to allow each
and everyone of them to remarry without objection or reservation ...", which affidavit
is contrary to law because it sanctions an illicit and immoral purpose.
On April 21, 1976, respondent . submitted his explanation, admitting that he notarized
the afore-mentioned document and that the Agreement is "immoral and against public
policy", but in mitigation he asserted that the document in question was Prepared by
his clerk, Lucia D. Doctolero without his previous knowledge; that when said document
was presented to him for signature after it was signed by the parties, he vehemently
refused to sign it and informed the parties that the document was immoral; that he
placed the said document on his table among his files and more than a week later, he
asked his clerk where the document was for the purpose of destroying it, but to his
surprise he found that the same was notarized by him as per his file copies in the office;
that he dispatched his clerk to get the copy from the parties, but the afore-mentioned
parties could not be found in their respective residences; that he must have
inadvertently notarized the same in view of the numerous documents on his table and
at that time he was emotionally disturbed as his father (now deceased) was then
seriously ill. The foregoing contentions of respondent were corroborated substantially
by the separate sworn statements of his clerk, Lucia D. Doctolero and Angela Drilon
Baltazar, both dated April 20, 1976. 1
There is no question that the afore-mentioned Agreement is contrary to law, morals
and good customs. Marriage is an inviolable social institution, in the maintenance of
which in its purity the public is deeply interested for it is the foundation of the family
and of society without which there could be neither civilization nor progress. 2
The contract, in substance, purports to formulate an agreement between the husband
and the wife to take unto himself a concubine and the wife to live in adulterous relations
with another man, without opposition from either one, and what is more, it induces

each party to commit bigamy. 3 This is not only immoral but in effect abets the
commission of a crime. A notary public, by virtue of the nature of his office, is required
to exercise his duties with due care and with due regard to the provisions of existing
law.
As stressed by Justice Malcolm in Panganiban v. Borromeo, 4 "it is for the notary to
inform himself of the facts to which he intends to certify and to take part in no illegal
enterprise. The notary public is usually a person who has been admitted to the practice
of law, and as such, in the commingling of his duties notary and lawyer, must be held
responsible for both. We are led to hold that a member of the bar who performs an act
as a notary public of a disgraceful or immoral character may be held to account by the
court even to the extent of disbarment."
In the case at bar, respondent in effect pleads for clemency, claiming that the
notarization of the questioned document was due to his negligence. We find, however,
that the aforementioned document could not have been notarized if the respondent had
only exercised the requisite care required by law in the exercise of his duties as notary
public.
WHEREFORE, We hold that respondent Rufillo D. Bucana is guilty of malpractice and
is hereby suspended from the office of not try public for a period of six (6) months, with
the admonition that a repetition of the same or a similar act in the future will be dealt
with more severely.