Partosa-Jo vs. CA
Ong
The petitioner, Prima Jo, is the legal wife of Jose Jo, herein
private respondent. Wherein the husband admitted to have
cohabited with 3 women and fathered 15 children.
Prima filed a complaint against the husband for judicial
separation of conjugal property in addition to an earlier action
for support which was consolidated.
RTC decision was a definite disposition of the complaint for
support but none of that for the judicial separation of conjugal
property.
Jose elevated an appeal to CA which affirmed rulings of the trial
court. The complaint on the separation of property was
dismissed for lack of cause of action on the ground that
separation by agreement was not covered in Art. 178 of the Civil
Code.
The wife contested that the agreement between her and Jose
was for her to temporarily live with her parents during the initial
period of her pregnancy and for him to visit and support her, and
that they never agreed to be separated permanently. She even
returned to him but the latter refused to accept her.
Issue is WON there is abandonment on the part of Jose Jo to
warrant judicial separation of conjugal property.
Ruling: SC believes that respondent court should have made the
necessary modification instead of dismissing the case filed.
For abandonment to exist, there must be an absolute cessation
of marital relations, duties and rights, with the intention of
perpetual separation.
The fact that Jo did not accept her demonstrates that he had no
intention of resuming their conjugal relationship. In fact, the
husband refused to provide financial support to Prima. Hence,
the physical separation of the parties, coupled with the refusal
by the private respondent to give support to the petitioner,
sufficed to constitute abandonment as a ground for the judicial
separation of their conjugal property.
Thus, the petition was granted and in favor of the petitioner and
that the court ordered the conjugal property of the spouses be
divided between them, share and share alike.
The division will be implemented after the determination of all
the properties pertaining to the said conjugal partnership
including those that may have been illegally registered in the
name of the persons.
Ong vs.
William Ong and Lucita Ong were married and had 3 children.
Later on, Lucita filed a complaint for legal separation under Art
55 (1) of FC on grounds of physical violence, threats, intimidation
and grossly abusive conduct of petitioner. And the RTC granted
prayer for legal separation.
CA upheld RTCs decision when herein petitioner, the husband,
filed a Motion for Reconsideration (MR).
In fact, when the respondent asked petitioner to bring their son
back from Bacolod which turned into a violent quarrel with the
petitioner hitting the respondent on the head, left cheek, eye,
stomach, arms, and ultimately pointing a gun at respondents
head asking her to leave the conjugal house.
Many more instances of indisputable physical and verbal abuse
where committed by the husband towards his wife. He also said
that such legal separation would label him as a wife-beater and
child abuser.
Issue is WON CA erred in upholding the RTCs decision granting
legal separation to Lucita when she herself has given ground for
legal separation when abandoned her family.
Ruling: No. It is true that a decree of legal separation should not
be granted when both parties have given ground for legal
separation (Art 56 (4) FC). However, the abandonment referred
to in the Family Code is abandonment without justifiable cause
for more than one year.
But in this case, it was established that Lucita left William due to
his abusive conduct which does not constitute the abandonment
contemplated in the said provision.
Thus, petition of husband was denied for lack of merit because
the wifes ground for legal separation was indisputable, while
the husbands petition against his wife, where he said that she
herself has given ground for legal separation, did not fly with the
court.
 Dela Cruz vs. Dela Cruz
Estrella, the plaintiff, and Severino, the defendant were married
in Bacolod and begotten 6 children. During their marriage, they
acquired several parcels of land and were engage in various
businesses.
The plaintiff filed an action against her husband for the
separation of their properties.
She further alleged that her husband aside from abandoning her,
also mismanaged their conjugal properties.
On the other hand, Severino contended that he had always
visited the conjugal home and had provided support for the
family despite his frequent absences when he was in Manila to
supervise the expansion of their business. Since 1955, he had
not slept in the conjugal dwelling instead stayed in his office at
Texboard Factory although he paid short visits in the conjugal
home, which was affirmed by Estrella.
Furthermore, the wife suspected that her husband had a
mistress named Nenita Hernandez, hence, the urgency of the
separation of property for the fear that her husband might
squander and dispose the conjugal assets in favor of the
concubine.
Issue is WON there has been abandonment on the part of the
husband and (lesser issue:) WON there has been an abused of
his authority as administrator of the conjugal partnership.
Ruling: On the first issue: No. The husband has never desisted in
the fulfillment of his marital obligations and support of the
family.
To be legally declared as to have abandoned the conjugal home,
one must have willfully and with intention of not coming back
and perpetual separation. There must be real abandonment and
not mere separation. In fact, the husband never failed to give
monthly financial support as admitted by the wife. This negates
the intention of coming home to the conjugal abode. The
plaintiff even testified that the husband paid short visits
implying more than one visit. Likewise, as testified by the
manager of one of their businesses, the wife has been drawing a
monthly allowance of P1,000-1,500 that was given personally by
the defendant or the witness himself.
On the 2nd issue: SC held that lower court erred in holding that
mere refusal or failure of the husband as administrator of the
conjugal partnership to inform the wife of the progress of the
business constitutes abuse of administration. In order for abuse
to exist, there must be a willful and utter disregard of the interest
of the partnership evidenced by a repetition of deliberate acts or
omissions prejudicial to the latter.
Najera vs. Najera
Petitioner filed with the RTC a verified Petition for Declaration of
Nullity of Marriage with Alternative Prayer for Legal Separation,
with Application for Designation as Administrator Pendente Lite
of the Conjugal Partnership of Gains. Petitioner alleged that she
and respondent are residents of Bugallon, Pangasinan, but
respondent is presently living in the United States of America
(U.S.A). They were married but are childless.
Petitioner claimed that at the time of the celebration of
marriage, respondent was PI to comply with the essential marital
obligations of the marriage: (1) that respondent was jobless and
was not exerting effort to find a job at the time of marriage; (2)
that while employed as a seaman, respondent did not give
petitioner sufficient financial support; (3) that respondent would
quarrel with petitioner and falsely accuse her of having an affair
with another man whenever he came home, and took to
smoking marijuana and drinking; (4) that while he was quarreling
with petitioner, without provocation, he inflicted physical
violence upon her and attempted to kill her with a bolo; and (5)
after the said incident respondent left the family home, taking
along all their personal belongings, and abandoned the
petitioner. Petitioner reported the incident at the police station
of Bugallon, Pangasinan.
Petitioner presented the psychological conclusions made by
Psychologist Cristina R. Gates on her interview with her
concluding the PI of the husband.
RTC rendered a Decision that decreed only the legal separation
of the petitioner and respondent, but not the annulment of their
marriage. Petitioners motion for reconsideration was denied,
and she appealed the RTC Decision and Resolution to the CA. CA
affirmed the Decision of the RTC.
Issue is: (1) Main issue: whether or not the totality of petitioners
evidence was able to prove that respondent is psychologically
incapacitated to comply with the essential obligations of
marriage warranting the annulment of their marriage under
Article 36 of the Family Code. (2) Whether or not the CA failed to
take into consideration the Decision of the National Appellate
Matrimonial Tribunal. (3) Whether or not the evidence of
petitioner proved the root cause of the psychological incapacity
of respondent. (4) Whether or not the factual basis of the
Decision of the National Appellate Matrimonial Tribunal is
practically the same set of facts established by petitioners
evidence submitted before the trial court and therefore the
same conclusion ought to be rendered by the Court. (5) Whether
or not credence ought to be given to the conclusion of
Psychologist Cristina R. Gates as an expert in Psychology.
Ruling:
(1) The evidence presented by petitioner in regard to the
physical violence or grossly abusive conduct of respondent
toward petitioner and respondents abandonment of petitioner
without justifiable cause for more than one year are grounds for
legal separation only and not for annulment of marriage under
Article 36 of the Family Code.
(2) In its Decision dated February 23, 2004, the CA apparently did
not have the opportunity to consider the decision of the National
Appellate Matrimonial Tribunal. Nevertheless, it is clear that the
CA considered the Matrimonial Tribunals decision in its
Resolution dated August 5, 2004 when it resolved petitioners
motion for reconsideration. In the said Resolution, the CA took
cognizance of the very same issues now raised before this Court
and correctly held that petitioners motion for reconsideration
was devoid of merit.
(3) SC agrees with the CA that the totality of the evidence
submitted by petitioner failed to satisfactorily prove that
respondent was psychologically incapacitated to comply with
the essential obligations of marriage. The root cause of
respondents alleged psychological incapacity was not
sufficiently proven by experts or shown to be medically or
clinically permanent or incurable.
(4) Even if, as contended by petitioner, the factual basis of the
decision of the National Appellate Matrimonial Tribunal is similar
to the facts established by petitioner before the trial court, the
basis of the decision of the National Appellate Matrimonial
Tribunal confirming the decree of nullity of marriage by the court
a quo is not the third paragraph of Canon 1095 which mentions
causes of a psychological nature, but the second paragraph of
Canon 1095 which refers to those who suffer from a grave lack
of discretion of judgment concerning essential matrimonial
rights and obligations to be mutually given and accepted.
(5) As found by the CA, Psychologists conclusion that
respondent was psychologically incapacitated was based on
facts relayed to her by petitioner and was not based on her
personal knowledge and evaluation of respondent; thus, her
finding is unscientific and unreliable. Moreover, the trial court
correctly found that petitioner failed to prove with certainty that
the alleged personality disorder of respondent was incurable.
People vs Schnekenburger
Accused Rodolfo married the complainant Elena Ramirez Cartagena and
after 7 years (due to incompatibility of characters) they agreed to live
separately from each other.
Late on, the accused w/o leaving the Philippines secured a divorce
decree from civil court of Mexico.
The husband contracted another marriage with co-accused Julia Medel
before the justice of the peace of Malabon.
Because of the nullity of the divorce decree, complainant herein
instituted two actions against the accused, one for bigamy and another
for concubinage. Charge for bigamy culminated in the conviction of
accused.
Meanwhile, before the trial for the charge of concubinage commenced,
accused interposed the plea of double jeopardy and the case was
initially dismissed; upon appeal, the CA held the dismissal before trial to
be premature and without deciding the question of double jeopardy,
remanded the case to the trial court for trial on the merits. The TC ruled
the accused was convicted of concubinage through reckless
imprudence.
Issue is WON the accused should be acquitted of concubinage in view
of the agreement executed by Rodolfo and Elena upon their separation.
HELD: Yes. The agreement constituted a consent given by Elena to
Rodolfo, hence, Rodolfo should be acquitted. Judgment is reversed.
No double jeopardy - the defense of bigamy for which he was convicted
and that of concubinage for which he stood trial in the court are two
distinct offenses in the law.
BIGAMY: celebration of second marriage while the first is still existing;
offense against civil status which may be prosecuted at the instance of
the state, while CONCUBINAGE: mere cohabitation by the husband with
a woman who is not his wife; offense against chastity and may be
prosecuted only at the instance of the offended party.
The accused should have been acquitted of the crime of concubinage.
The document executed by and between the accused and the
complainant in which they agreed, while illegal for the purpose for
which it was executed, constitutes nevertheless a valid consent to the
act of concubinage within the meaning of Art. 344 of the RPC. By such
agreement, each party clearly intended to forego the illicit acts of the
other.
Previously, the court held that the consent which bars the offended
party from instituting a criminal prosecution in cases of adultery,
concubinage, seduction, abduction, rape and acts of lasciviousness is
that which has been given expressly or impliedly after the crime has
been committed. However, in this case, the Court sees this to be a
narrow view.
As the term "pardon" unquestionably refers to the offense after its
commission, "consent" must have been intended agreeably with its
ordinary usage, to refer to the offense prior to its commission. No logical
difference can indeed be perceived between prior and subsequent
consent, for in both instances as the offended party has chosen to
compromise with his/her dishonor, he/she becomes unworthy to come
to court and invoke its aid in the vindication of the wrong.
Prior consent is as effective as subsequent consent to bar the offended
party from prosecuting the offense. An agreement of the tenor entered
into between the parties herein, operates, within the plain language
and manifest policy of the law, to bar the offended party from
prosecuting the offense.
 Bugayong vs. Ginez
Benjamin Bugayong, a serviceman in the US Navy was married
with Leonila Ginez while on furlough leave. Immediately after
the marriage, they lived with the sisters of Bugayong in said
municipality before he went back to duty. The couple came to
an agreement that Ginez would stay with his sisters who later
moved in Manila. Later on, she left the dwelling of the sisters-
in-law and informed her husband by letter that she had gone to
Pangasinan to reside with her mother and later on moved to
Dagupan to study in a local college.
Petitioner then began receiving letters from Valeriana Polangco,
(plaintiffs sister-in-law) and some from anonymous writers,
which were not produced at the hearing, informing him of
alleged acts of infidelity of his wife. He admitted that his wife
informed him by letter that a certain Eliong kissed her. All these
communications, prompted him to seek the advice of the Navy
Chaplain who asked him to consult with the navy legal
department.
Bugayong went to Pangasinan and looked for his wife. They met
in the house of the defendants godmother. They proceeded to
the house of Pedro, cousin of the plaintiff where they stayed for
1 day and 1 night as husband and wife. The next day, they slept
together in their own house. He tried to verify with Leonila the
truth on the information he received but instead of answering,
she merely packed up and left which he took as a confirmation
of the acts of infidelity. He then filed a complaint for legal
separation.
ISSUE: WON there was condonation between Bugayong and
Ginez that may serve as a ground for dismissal of the action.
Ruling: Yes. There was condonation because the husband,
Benjamin Bugayong, actively searched for his wife in Pangasinan
after she left the conjugal home. The act of Benjamin in
persuading Leoniza to come along with him, and the fact that she
went with him and consented to be brought to the house of his
cousin and together slept there as husband and wife and the
further fact that in the second night they slept together in their
house as husband and wife all these facts have no other
meaning than that a reconciliation between them was effected
and that there was condonation of the wife by the husband. A
single voluntary act of marital intercourse between the parties
ordinarily is sufficient to constitute condonation, and where the
parties live in the same house, it is presumed that they live on
terms of matrimonial cohabitation.
Furthermore, Art. 100 of the Civil Code states that the legal
separation may be claimed only by the innocent spouse,
provided there has been no condonation of or consent to the
adultery or concubinage.
Busuego vs. Office of the Ombudsman Mindanao
Private respondent Rosa S. Busuego (Rosa) filed a complaint for: (1)
Concubinage under Article 334 of the Revised Penal Code; (2) violation
of Republic Act No. 9262 (Anti-Violence Against Women and Their
Children); and (3) Grave Threats under Article 282 of the Revised Penal
Code, before the Office of the Ombudsman against her husband,
Alfredo. Alfredo is the Chief of Hospital, Davao Regional Hospital. They
have 2 children. However, their marriage turned sour. She saw
photographs of, and love letters addressed to Alfredo from, other
women. She confronted her husband but he claimed ignorance of the
existence of such letters.
An opportunity to work as nurse in N.Y. USA. Alfredo opposed.
Nonetheless, Rosa completed the requirements. However, before
leaving, furious with Rosas pressing, Alfredo took his gun and pointed
it at Rosas temple. Alfredo was only staved off because Rosas mother
arrived at the couples house.
Rosa went to the US and was eventually joined by her 2 children, Alfred
and Robert. Robert eventually returned to Davao City to study
medicine. Sometime in 1997, Rosa learned that a certain Emy Sia (Sia)
was living at their conjugal home. When Rosa asked Alfredo, he said that
Sia, nurse at the Regional Hospital, was just in a sorry plight and was
allegedly raped by Rosas brother-in-law so he allowed her to sleep at
the maids quarters.
In October 2005, Rosa finally learned of Alfredos extra-marital
relationships. Robert and the housekeepers executed a joint affidavit to
support Rosas allegations. Rosa and the other son Alfred flew to Davao
without informing Alfredo. She gathererd and consolidated information
of her husbands sexual affairs. She also averred that during the course
of the marriage, Alfredo physically and verbally abused her and her
family. Alfredo denied all accusations. In their subsequent exchange of
responsive pleadings, Rosa maintained Alfredos culpability, and
naturally, Alfredo claimed innocence.
In the course thereof, the procedural issue of Rosas failure to implead
Sia and de Leon as respondents cropped up. Alfredo insisted that Rosas
complaint ought to be dismissed for failure to implead his alleged
concubines as respondents.
Specifically to dispose of that issue, the Ombudsman scheduled a
clarificatory hearing where both Rosa and Alfredo were represented by
their respective counsels. The office of the Ombudsman explained that
the position of Alfredo would just prolong the conduct of the
preliminary investigation since Rosa can just re-file her complaint. The
doctrine of res judicata does not apply in the preliminary investigation
stage. Hence, the counsel for Rosa was directed to submit to this Office
the addresses of the alleged mistresses so that they could be served
with the Order directing them to file their counter-affidavits. Rosa
submitted an Ex-Parte Manifestation on the last known addresses of
Julie de Leon and Emy Sia (alleged mistresses.)
Ombudsman issued a Joint Order4 impleading Sia and de Leon as party-
respondents in the complaint for Concubinage and directing them to
submit their respective counter-affidavits within a period of time. Sia
and de Leon did not submit their respective counter-affidavits.
Alfredo opposed the Ombudsmans ruling to simply amend the
complaint and implead the alleged mistresses. He filed his Comment to
the Provincial Prosecutor praying for the dismissal of the complaint for
failure to implead the two mistresses.
Ombudsman issued herein assailed Resolution, disposing of the
procedural issues, which states that the short cut procedure would
delay the proceedings is misplaced, since Rosa could still amend her
complaint and re-file the case for the doctrine of res judicata will not
apply. Alfredo filed a Motion for Reconsideration excepting to the
Ombudsmans ruling on the automatic inclusion of Sia as respondent in
the complaint and their indictment for the crime of Concubinage.
Nonetheless, the Ombudsman stood pat on its ruling, declared that the
Partial Motion for Reconsideration was filed out of time. Alfredo now
comes to us on petition for certiorari alleging grave abuse of discretion
in the Ombudsmans finding of probable cause to indict him and Sia for
Concubinage.
ISSUE: WON the Ombudsman has full discretionary authority in the
determination of probable cause during a preliminary investigation.
RULING: Yes. Therefore the Court sustain the Ombudsmans decision.
The Ombudsman has full discretionary authority in the determination
of probable cause during a preliminary investigation. This is the reason
why judicial review of the resolution of the Ombudsman in the exercise
of its power and duty to investigate and prosecute felonies and/or
offenses of public officers is limited to a determination of whether there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction. Courts are not empowered to substitute their judgment for
that of the Ombudsman.
with other government investigating agencies such as provincial, city
and state prosecutors. However, the Ombudsman, in the exercise of its
primary jurisdiction over cases cognizable by the Sandiganbayan, may
take over, at any stage, from any investigating agency of the
government, the investigation of such cases.
In other words, respondent DOJ Panel is not precluded from conducting
any investigation of cases against public officers involving violations of
penal laws but if the cases fall under the exclusive jurisdiction of the
Sandiganbayan, the respondent Ombudsman may, in the exercise of its
primary jurisdiction take over at any stage.
Thus, with the jurisprudential declarations that the Ombudsman and
the DOJ have concurrent jurisdiction to conduct preliminary
investigation, the respective heads of said offices came up with OMB-
DOJ Joint Circular No. 95-001 for the proper guidelines of their
respective prosecutors in the conduct of their investigations.
WHEREFORE the petition is DISMISSED.

By grave abuse of discretion is meant such capricious and whimsical

exercise of judgment tantamount to lack of jurisdiction. The abuse of
discretion must be so patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law, or
to act at all in contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reason of passion or hostility. In
this regard, petitioner failed to demonstrate the Ombudsman's abuse,
much less grave abuse, of discretion.

The Ombudsman merely followed the provisions of its Rules of

Procedure. No information may be filed and no complaint may be
dismissed without the written authority or approval of the ombudsman
in cases falling within the jurisdiction of the Sandiganbyan, or of the
proper Deputy Ombudsman in all other cases.

Notably, Rosas complaint contained not just the Concubinage charge,

but other charges: violation of Republic Act No. 9262 and Grave Threats.
Upon the Ombudsmans perusal, the complaint was supported by
affidavits corroborating Rosas accusations. Thus, at that stage, the
Ombudsman properly referred the complaint to Alfredo for comment.
Nonetheless, while the Ombudsman found no reason for outright
dismissal, it deemed it fit to hold a clarificatory hearing to discuss the
applicability of Article 344 of the Revised Penal Code, the issue having
been insisted upon by Alfredo.

Surely the procedural sequence of referral of the complaint to

respondent for comment and thereafter the holding of a clarificatory
hearing is provided for in paragraph b, Section 2 and paragraphs d and
f, Section 4 of Rule II, which the Court have at the outset underscored.
The Ombudsman merely facilitated the amendment of the complaint to
cure the defect pointed out by Alfredo. The Ombudsmans primary
jurisdiction, albeit concurrent with the DOJ, to conduct preliminary
investigation of crimes involving public officers, without regard to its
commission in relation to office, had long been settled in Sen. Honasan
II v. The Panel of Investigating Prosecutors of DOJ.

The Constitution, Section 15 of the Ombudsman Act of 1989 and Section

4 of the Sandiganbayan Law, as amended, do not give to the
Ombudsman exclusive jurisdiction to investigate offenses committed by
public officers or employees. The authority of the Ombudsman to
investigate offenses involving public officers or employees is concurrent
 People vs. Sesano and Ramos
Ursula Sensano and Mariano Ventura were married and had one
child. Shortly after the birth of this child, the husband left his
wife to go to the Province of Cagayan where he remained for
three years without writing to his wife or sending her anything
for the support of herself and their son. Poor and illiterate,
without relatives upon whom she could call, she struggled for an
existence for herself and her son until a fatal day when she met
the accused Marcelo Ramos who took her and the child to live
with him.
On the return of the husband, he filed a charge against his wife
and Marcelo Ramos for adultery and both were sentenced
arresto mayor. The court, in its decision, stated the following: "In
the opinion of the court, the husband of the accused has been
somewhat cruel in his treatment of his wife, having abandoned
her as he did."
After completing her sentence, the accused left her paramour.
She thereupon appealed to the municipal president and the
justice of the peace to send for her husband so that she might
ask his pardon and beg him to take her back. At the house of the
president she begged his pardon and promised to be a faithful
wife if he would take her back. He refused to pardon her or to
live with her and said she could go where she wished, that he
would have nothing more to do with her, and she could do as
she pleased.
Abandoned for the second time, she and her child went back to
her co-accused Marcelo Ramos (this was in the year 1924) and
they have lived with him ever since.
The husband, knowing that she resumed living with her
codefendant in 1924, did nothing to interfere with their relations
or to assert his rights as husband. Shortly thereafter he left for
the Territory of Hawaii where he remained for seven years
completely abandoning his said wife and child. On his return to
these Islands, he presented the second charge of adultery here
involved with the sole purpose, as he declared, of being able to
obtain a divorce.
Rule: Apart from the fact that the husband in this case was
assuming a mere pose when he signed the complaint as the
"offended" spouse, we have come to the conclusion that the
evidence in this case and his conduct warrant the inference that
he consented to the adulterous relations existing between the
accused and therefore he is not authorized by law to institute
this criminal proceeding.
We cannot accept the argument of the Attorney-General that
the seven years of acquiescence on his part in the adultery of his
wife is explained by his absence from the Philippine Islands
during which period it was impossible for him to take any action
against the accused. There is no merit in the argument that it
was impossible for the husband to take any action against the
accused during the said seven years.
Matubis vs. Praxedes
Plaintiff and defendant were legally married in at Iriga,
Camarines Sur. For failure to agree on how they should live as
husband and wife, the couple agreed to live separately from
each other, which status remained unchanged until the present.
Later, plaintiff and defendant entered into an agreement, stating
the following: (a) that both of us relinquish our right over the
other as legal husband and wife; (b) That both without any
interference by any of us, nor either of us can prosecute the
other for adultery or concubinage or any other crime or suit
arising from our separation.
In 1955, defendant began cohabiting with one Asuncion
Rebulado who gave birth to a child, who was recorded as the
child of said defendant. It was shown also that defendant and
Asuncion deported themselves as husband and wife and were
generally reputed as such in the community. Alleging
abandonment and concubinage, plaintiff Socorro Matubis filed
with the CFI of Camarines Sur a complaint for legal separation
and changed of surname against her husband defendant Zoilo
Praxedes.
Held: On the Prescription: Article 102 of the new Civil Code
provides that an action for legal separation cannot be filed
except within one year from and after the date on which the
plaintiff became cognizant of the cause and within five years
from after the date when cause occurred.
The complaint was filed outside the periods provided for by the
above Article. By the very admission of plaintiff, she came to
know the ground (concubinage) for the legal separation in
January, 1955. She instituted the complaint only on April 24,
1956. It is to be noted that appellant did not even press this
matter in her brief.
On Condonation: Article 100 of the new Civil Code provides that
the legal separation may be claimed only by the innocent
spouse, provided there has been no condonation of or consent
to the adultery or concubinage.
The agreement between the spouses is divided in two parts. The
first part having to do with the act of living separately which he
claims to be legal, and the second part that which becomes a
license to commit the ground for legal separation which is
admittedly illegal.
The condonation and consent here are not only implied but
expressed. Having condoned and/or consented in writing, the
plaintiff is now undeserving of the court's sympathy.
 Arroyo, Jr. vs CA
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
had 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.
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 respondent-accused.
2. Whether the husband is a competent witness against his wife.
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.
Brown vs. Yambao
William H. Brown filed a petition for legal separation from his
wife, Juanita Yambao, before the Court of First Instance of
Manila on the ground of adultery.
According to Brown, while he was interned by the Japanese
invaders from 1942 to 1945 at the University of Santo Tomas
internment camp, his wife engaged in adulterous relations with
a certain Carlos Field of whom she begot a baby girl. Brown said
that he learned of his wifes misconduct only in 1945 upon his
release from internment and that they have lived separately
thereafter.
Brown is now praying for the confirmation of their liquidation
agreement; for custody of the children issued of the marriage;
and that the defendant be declared disqualified to succeed the
plaintiff and for other remedy as might be just and equitable.
Now, because Juanita Yambao failed to file her answer to the
petition in due time, the trial court declared her in default and
ordered the City Fiscal to represent the state and investigate, in
accordance with Article 101 of the New Civil Code, if collusion
exists between the parties.
During the cross-examination of the plaintiff by Assistant City
Fiscal Rafael Jose, it was found out that after the liberation,
Brown had lived martially with another woman and had
begotten children by her. Because of this fact, the trial court
denied the petition for legal separation on the ground that, while
his wifes adultery was established, Brown had incurred a
misconduct of similar nature that barred his right of action under
Article 100 of the new Civil Code, and that there had been
consent and connivance in addition to Browns action for filing a
petition for legal separation prescribing. Brown is now appealing
the decision of the lower court before the Supreme Court.
ISSUES: (1) WON the court erred in allowing Assistant Fiscal
Rafael Jose to act as counsel for the defendant, who defaulted?
Whether or not the petition for legal separation should be
granted?
DECISION: No. No. Decision appealed from affirmed.
RATIONALE: ISSUE #1: According to the Supreme Court,
Collusion in matrimonial cases is defined as the act of married
of persons in procuring a divorce by mutual consent, whether by
pre-concerted commission by one of a matrimonial offense, or
by failure, in pursuance of agreement to defend divorce
proceedings
In the case at bar, the SC said that it was legitimate for the fiscal
to bring to light any circumstances that could give rise to the
inference that the wifes default was calculated, or agreed upon,
to enable the appellant to obtain the decree of legal separation
that he sought without regard to the legal merits of his case.
The fact that there was evidence of misconduct on the part of
the husband and the failure of the wife to set it up by way of
defense, were proper subject of inquiry as they may justifiably
be considered circumstantial evidence of collusion between the
spouses.
The SC also said that the requirement of intervention of the
state attorney in case of uncontested proceedings for legal
separation (and of annulment of marriages), is to emphasize that
marriage is more than a mere contract; that it is a social
institution in which the state is vitally interested, so that its
 continuation or interruption cannot be made to depend upon
the parties themselves.
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.
ISSUE #2: In the case at bar, the SC said that the petition for legal
separation should not be granted it being evident that Brown is
also guilty of co-habiting with a woman other than his wife. This
misconduct bars him from claiming legal separation in
accordance with the express provision of Article 100 of the new
Civil Code.
Another reason why the petition for legal separation cannot be
granted is that the action for legal separation in the case at bar
has already prescribed, since Brown did not institute the
proceeding until 10years after he learned of his wifes adultery
in 1945 (he filed it on 1955) and Article 102 of the new Civil Code
states that an action for legal separation cannot be filed except
within 1year from and after the plaintiff became cognizant of the
cause and within 5years from and after the date when such
cause occurred
[It is true that the wife has not interposed prescription as a
defense. Nevertheless, the courts can take cognizance thereof,
because actions seeking a decree of legal separation, or
annulment of marriage, involve public interest, and it is the
policy of our law that no such decree be issued if any legal
obstacles thereto appear upon the record]