G.R. No.

L-17014 August 11, 1921

MARIANO B. ARROYO, plaintiff-appellant,

vs.
DOLORES C. VASQUEZ DE ARROYO, defendant-appellee.

Fisher & DeWitt for appellant.

Powell & Hill for appellee.

STREET, J.:

Mariano B. Arroyo and Dolores C. Vasquez de Arroyo were united in the bonds of wedlock by marriage in the year 1910,
and since that date, with a few short intervals of separation, they have lived together as man and wife in the city of Iloilo
until July 4, 1920, when the wife went away from their common home with the intention of living thenceforth separate from
her husband. After efforts had been made by the husband without avail to induce her to resume marital relations, this
action was initiated by him to compel her to return to the matrimonial home and live with him as a dutiful wife. The
defendant answered, admitting the fact of marriage, and that she had left her husband's home without his consent; but
she averred by way of defense and cross-complaint that she had been compelled to leave by cruel treatment on the part
of her husband. Accordingly she in turn prayed for affirmative relief, to consist of (1) a decree of separation; (2) a
liquidation of the conjugal partnership; (3) and an allowance for counsel fees and permanent separate maintenance. Upon
hearing the cause the lower court gave judgment in favor of the defendant, authorizing her to live apart from her husband,
granting her alimony at the rate of P400 per month, and directing that the plaintiff should pay to the defendant's attorney
the sum of P1,000 for his services to defendant in the trial of the case. The plaintiff thereupon removed the case with the
usual formalities by appeal to this court.

The trial judge, upon consideration of the evidence before him, reached the conclusion that the husband was more to
blame than his wife and that his continued ill-treatment of her furnished sufficient justification for her abandonment of the
conjugal home and the permanent breaking off of marital relations with him. We have carefully examined and weighed
every line of the proof, and are of the opinion that the conclusion stated is wholly untenable. The evidence shows that the
wife is afflicted with a disposition of jealousy towards her husband in an aggravated degree; and to his cause are chiefly
traceable without a doubt the many miseries that have attended their married life. In view of the decision which we are to
pronounce nothing will be said in this opinion which will make the resumption of married relations more difficult to them or
serve as a reminder to either of the mistakes of the past; and we prefer to record the fact that so far as the proof in this
record shows neither of the spouses has at any time been guilty of conjugal infidelity, or has given just cause to the other
to suspect illicit relations with any person. The tales of cruelty on the part of the husband towards the wife, which are the
basis of the cross-action, are in our opinion no more than highly colored versions of personal wrangles in which the
spouses have allowed themselves from time to time to become involved and would have little significance apart from the
morbid condition exhibited by the wife. The judgment must therefore be recorded that the abandonment by her of the
marital home was without sufficient justification in fact.

In examining the legal questions involved, it will be found convenient to dispose first of the defendant's cross-complaint.
To begin with, the obligation which the law imposes on the husband to maintain the wife is a duty universally recognized
in civil society and is clearly expressed in articles 142 and 143 of the Civil code. The enforcement of this obligation by the
wife against the husband is not conditioned upon the procurance of a divorce by her, nor even upon the existence of a
cause for divorce. Accordingly it had been determined that where the wife is forced to leave the matrimonial abode and to
live apart from her husband, she can, in this jurisdiction, compel him to make provision for her separate maintenance
(Goitia vs. Campos Rueda, 35 Phil., 252); and he may be required to pay the expenses, including attorney's fees,
necessarily incurred in enforcing such obligation, (Mercado vs. Ostrand and Ruiz, 37 Phil., 179.) Nevertheless, the
interests of both parties as well as of society at large require that the courts should move with caution in enforcing the duty
to provide for the separate maintenance of the wife, for this step involves a recognition of the de facto separation of the
spouses — a state which is abnormal and fraught with grave danger to all concerned. From this consideration it follows
that provision should not be made for separate maintenance in favor of the wife unless it appears that the continued
cohabitation of the pair has become impossible and separation necessary from the fault of the husband.

In Davidson vs Davidson, the Supreme Court of Michigan, speaking through the eminent jurist, Judge Thomas M. Cooley,
held that an action for the support of the wife separate from the husband will only be sustained when the reasons for it are
imperative (47 Mich., 151). That imperative necessity is the only ground on which such a proceeding can be maintained
also appears from the decision in Schindel vs. Schindel (12 Md., 294). In the State of South Carolina, where judicial
divorces have never been procurable on any ground, the Supreme court fully recognizes the right of the wife to have
provision for separate maintenance, where it is impossible for her to continue safely to cohabit with her husband; but the
same court has more than once rejected the petition of the wife for separate maintenance where it appeared that the
husband's alleged cruelty or ill-treatment was provoked by the wife's own improper conduct. (Rhame vs. Rhame, 1
McCord's Chan. [S. Car.], 197; 16 Am. Dec., 597; Boyd vs. Boyd, Har. Eq. [S. Car.], 144.)

Upon one occasion Sir William Scott, pronouncing the judgment of the English Ecclesiastical Court in a case where
cruelty on the part of the husband was relied upon to secure a divorce for the wife, made use of the following eloquent
words, — which are perhaps even more applicable in a proceeding for separate maintenance in a jurisdiction where, as
here, a divorce cannot be obtained except on the single ground of adultery and this, too, after the conviction of the guilty
spouse in a criminal prosecution for that crime. Said he:

That the duty of cohabitation is released by the cruelty of one of the parties is admitted, but the question occurs,
What is cruelty? . . .
 What merely wounds the mental feelings is in few cases to be admitted where they are not accompanied with
bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a
want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm,
do not amount to legal cruelty: they are high moral offenses in the marriage-state undoubtedly, not innocent
surely in any state of life, but still they are not that cruelty against which the law can relieve. Under such
misconduct of either of the parties, for it may exist on the one side as well as on the other, the suffering party
must bear in some degree the consequences of an injudicious connection; must subdue by decent resistance or
by prudent conciliation; and if this cannot be done, both must suffer in silence. . . .

The humanity of the court has been loudly and repeatedly invoked. Humanity is the second virtue of courts, but
undoubtedly the first is justice. If it were a question of humanity simply, and of humanity which confined its views
merely to the happiness of the present parties, it would be a question easily decided upon first impressions. Every
body must feel a wish to sever those who wish to live separate from each other, who cannot live together with any
degree of harmony, and consequently with any degree of happiness; but my situation does not allow me to
indulge the feelings, much less the first feelings of an individual. The law has said that married persons shall not
be legally separated upon the mere disinclination of one or both to cohabit together. . . .

To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it would not be difficult
to show that the law in this respect has acted with its usual wisdom and humanity with that true wisdom, and that
real humanity, that regards the general interests of mankind. For though in particular cases the repugnance of the
law to dissolve the obligations of matrimonial cohabitation may operate with great severity upon individual, yet it
must be carefully remembered that the general happiness of the married life is secured by its indissolubility. When
people understand that they must live together, except for a very few reasons known to the law, they learn to
soften by mutual accommodation that yoke which they know cannot shake off; they become good husbands and
good wives form the necessity of remaining husbands and wives; for necessity is a powerful master in teaching
the duties which it imposes. . . . In this case, as in many others, the happiness of some individuals must be
sacrificed to the greater and more general good. (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.)

In the light of the considerations stated, it is obvious that the cross-complaint is not well founded and none of the relief
sought therein can be granted.

The same considerations that require the dismissal of the cross-complaint conclusively prove that the plaintiff, Mariano B.
Arroyo, has done nothing to forfeit his right to the marital society of his wife and that she is under an obligation, both moral
and legal, to return to the common home and cohabit with him. The only question which here arises is as to the character
and extent of the relief which may be properly conceded to him by judicial decree.

The action is one by which the plaintiff seeks the restitution of conjugal rights; and it is supposed in the petitory part of the
complaint that he is entitled to a permanent mandatory injunction requiring the defendant to return to the conjugal home
and live with him as a wife according to the precepts of law and morality. Of course if such a decree were entered, in
unqualified terms, the defendant would be liable to attachment for contempt, in case she should refuse to obey it; and, so
far as the present writer is aware, the question is raised for the first time in this jurisdiction whether it is competent for the
court to make such an order.

Upon examination of the authorities we are convinced that it is not within the province of the courts of this country to
attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other. Of course where the
property rights of one of the pair are invaled, an action for restitution of such rights can be maintained. But we are
disinclined to sanction the doctrine that an order, enforcible by process of contempt, may be entered to compel the
restitution of the purely personal rights of consortium. At best such an order can be effective for no other purpose than to
compel the spouses to live under the same roof; and the experience of these countries where the court of justice have
assumed to compel the cohabitation of married people shows that the policy of the practice is extremely questionable.
Thus in England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the instance of
either husband or wife; and if the facts were found to warrant it that court would make a mandatory decree, enforcible by
process of contempt in case of disobedience, requiring the delinquent party to live with the other and render conjugal
rights. Yet this practice was sometimes criticized even by the judges who felt bound to enforce such orders, and in
Weldon vs. Weldon (9 P. D., 52), decided in 1883, Sir James Hannen, President in the Probate, Divorce and Admiralty
Division of the High Court of Justice, expressed his regret that the English law on the subject was not the same as that
which prevailed in Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in
England, could be obtained by the injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience
to the growing sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy of imprisonment;
though a decree for the restitution of conjugal rights can still be procured, and in case of disobedience may serve in
appropriate cases as the basis of an order for the periodical payment of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has ever attempted to
make a peremptory order requiring one of the spouses to live with the other; and that was in a case where a wife was
ordered to follow and live with her husband, who had changed his domicile to the City of New Orleans. The decision
referred to (Gahn vs. Darby, 36 La. Ann., 70) was based on a provision of the Civil Code of Louisiana similar to article 56
of the Spanish Civil Code. It was decided many years ago, and the doctrine evidently has not been fruitful even in the
State of Louisiana. In other states of the American Union the idea of enforcing cohabitation by process of contempt is
rejected. (21 Cyc., 1148.)

In a decision of January 2, 1909, the supreme court of Spain appears to have affirmed an order of the Audencia Territorial
de Valladolid requiring a wife to return to the marital domicile, and in the alternative, upon her failure to do so, to make a
particular disposition of certain money and effects then in her possession and to deliver to her husband, as administrator
of the ganancial property, all income, rents, and interest which might accrue to her from the property which she had
brought to the marriage. (113 Jur. Civ., pp. 1, 11.) but it does not appear that this order for the return of the wife to the
marital domicile was sanctioned by any other penalty than the consequences that would be visited upon her in respect to
the use and control of her property; and it does not appear that her disobedience to that order would necessarily have
been followed by imprisonment for contempt.

We are therefore unable to hold that Mariano B. Arroyo in this case is entitled to the unconditional and absolute order for
the return of the wife to the marital domicile, which is sought in the petitory part of the complaint; though he is, without
doubt, entitled to a judicial declaration that his wife has presented herself without sufficient cause and that it is her duty to
return.

Therefore, reversing the judgment appealed from, in respect both to the original complaint and the cross-bill, it is declared
that Dolores Vasquez de Arroyo has absented herself from the marital home without sufficient cause; and she is
admonished that it is her duty to return. The plaintiff is absolved from the cross-complaint, without special pronouncement
as to costs of either instance. So ordered.

Mapa, C.J., Johnson, Araullo, Avanceña and Villamor, JJ., concur.

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 Doña 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.

Torres, Johnson and Carson, JJ., concur.

Separate Opinions

MORELAND, J., concurring:

I based my vote in this case upon the ground that a husband cannot, by his own wrongful acts, relieve himself from the
duty to support his wife imposed by law; and where a husband, by wrongful, illegal, and unbearable conduct, drives his
wife from the domicile fixed by him, he cannot take advantage of her departure to abrogate the law applicable to the
marital relation and repudiate his duties thereunder. In law and for all purposes within its purview, the wife still remains an
inmate of the conjugal domicile; for I regard it as a principle of law universally recognized that where a person by his
wrongful and illegal acts creates a condition which under ordinary circumstances would produce the loss of rights or
status pertaining to another, the law will, whenever necessary to protect fully the rights or status of the person affected by
such acts, regard the condition by such acts created as not existing and will recur to and act upon the original situation of
the parties to determine their relative rights or the status of the person adversely affected.

I do not believe, therefore, that the case is properly conceived by defendant, when the consideration thereof proceeds
solely on the theory that the wife is outside the domicile fixed by the husband. Under the facts alleged in the complainant
the wife is legally still within the conjugal domicile.

G.R. No. L-23482 August 30, 1968

ALFONSO LACSON, petitioner,

vs.
CARMEN SAN JOSE-LACSON and THE COURT OF APPEALS, respondents.

-----------------------------

G.R. No. L-23767 August 30, 1968

CARMEN SAN JOSE-LACSON, plaintiff-appellant,

vs.
ALFONSO LACSON, defendant-appellee.

-----------------------------

G.R. No. L-24259 August 30, 1968

ALFONSO LACSON, petitioner-appellee,

vs.
CARMEN SAN JOSE-LACSON, petitioner-appellant.
Paredes, Poblador, Cruz and Nazareno for respondent-appellant Carmen San Jose-Lacson.
Norberto Quisumbing for petitioner-appellee Alfonso Lacson.

CASTRO, J.:

These three cases (G.R. L-23482, L-23767 and L-24259) involving the same parties pose a common fundamental issue
the resolution of which will necessarily and inescapably resolve all the other issues. Thus their joinder in this decision.

The antecedent facts are not disputed.

Alfonso Lacson (hereinafter referred to as the petitioner spouse) and Carmen San Jose-Lacson (hereinafter referred to as
the respondent spouse) were married on February 14, 1953. To them were born four children, all alive.

On January 9, 1963 the respondent spouse left the conjugal home in Santa Clara Subdivision, Bacolod City, and
commenced to reside in Manila. She filed on March 12, 1963 a complaint docketed as civil case E-00030 in the Juvenile
and Domestic Relations Court of Manila (hereinafter referred to as the JDRC) for custody of all their children as well as
support for them and herself.

However, the spouses, thru the assistance of their respective attorneys, succeeded in reaching an amicable settlement
respecting custody of the children, support, and separation of property. On April 27, 1963 they filed a joint petition dated
April 21, 1963, docketed as special proceeding 6978 of the Court of First Instance of Negros Occidental (hereinafter
referred to as the CFI).

The important and pertinent portions of the petition, embodying their amicable settlement, read as follows:

3. Petitioners have separated last January 9, 1963 when petitioner Carmen San Jose-Lacson left their conjugal
home at the Santa Clara Subdivision, Bacolod City, did not return, and decided to reside in Manila.

4. Petitioners have mutually agreed upon the dissolution of their conjugal partnership subject to judicial approval
as required by Article 191 of the Civil Code of the Philippines — the particular terms and conditions of their mutual
agreement being as follows:

(a) There will be separation of property — petitioner Carmen San Jose-Lacson hereby waiving any and all
claims for a share in property that may be held by petitioner Alfonso Lacson since they have acquired no
property of any consequence.

(b) Hereafter, each of them shall own, dispose of, possess, administer and enjoy such separate estate as
they may acquire without the consent of the other and all earnings from any profession, business or
industry as may be derived by each petitioner shall belong to that petitioner exclusively.

(c) The custody of the two elder children named Enrique and Maria Teresa shall be awarded to petitioner
Alfonso Lacson and the custody of the younger children named Gerrard and Ramon shall be awarded to
petitioner Carmen San Jose-Lacson.

(d) Petitioner Alfonso Lacson shall pay petitioner Carmen San Jose-Lacson a monthly allowance of
P300.00 for the support of the children in her custody.

(e) Each petitioner shall have reciprocal rights of visitation of the children in the custody of the other at
their respective residences and, during the summer months, the two children in the custody of each
petitioner shall be given to the other except that, for this year's summer months, all four children shall be
delivered to and remain with petitioner Carmen San Jose-Lacson until June 15, 1963 — on which date,
she shall return the two elder children Enrique and Maria Teresa to petitioner Alfonso Lacson — this
judgment of course being subject to enforcement by execution writ and contempt.

5. Petitioners have no creditors.

WHEREFORE, they respectfully pray that notice of this petition be given to creditors and third parties pursuant to
Article 191 of the Civil Code of the Philippines and thereafter that the Court enter its judicial approval of the
foregoing agreement for the dissolution of their conjugal partnership and for separation of property, except that
the Court shall immediately approve the terms set out in paragraph 4 above and embody the same in a judgment
immediately binding on the parties hereto to the end that any non-compliance or violation of its terms by one party
shall entitle the other to enforcement by execution writ and contempt even though the proceedings as to creditors
have not been terminated.".

Finding the foregoing joint petition to be "conformable to law," the CFI (Judge Jose F. Fernandez, presiding) issued an
order on April 27, 1963, rendering judgment (hereinafter referred to as the compromise judgment) approving and
incorporating in toto their compromise agreement. In compliance with paragraph 4 (e) of their mutual agreement (par. 3[e]
of the compromise judgment), the petitioner spouse delivered all the four children to the respondent spouse and remitted
money for their support.
On May 7, 1963 the respondent spouse filed in the JDRC a motion wherein she alleged that she "entered into and signed
the ... Joint Petition as the only means by which she could have immediate custody of the ... minor children who are all
below the age of 7," and thereafter prayed that she "be considered relieved of the ... agreement pertaining to the custody
and visitation of her minor children ... and that since all the children are now in her custody, the said custody in her favor
be confirmed pendente lite." On May 24, 1963 the petitioner spouse opposed the said motion and moved to dismiss the
complaint based, among other things, on the grounds of res judicata and lis pendens. The JDRC on May 28, 1963, issued
an order which sustained the petitioner spouse's plea of bar by prior judgment and lis pendens, and dismissed the case.
After the denial of her motion for reconsideration, the respondent spouse interposed an appeal to the Court of Appeals
(CA-G.R. No. 32608-R) wherein she raised, among others, the issue of validity or legality of the compromise agreement in
connection only with the custody of their minor children. On October 14, 1964 the Court of Appeals certified the said
appeal to the Supreme Court (G.R. No. L-23767), since "no hearing on the facts was ever held in the court below — no
evidence, testimonial or documentary, presented — only a question of law pends resolution in the appeal." .

The respondent spouse likewise filed a motion dated May 15, 1963 for reconsideration of the compromise judgment dated
April 27, 1963 rendered in special proceeding 6978 of the CFI, wherein she also alleged, among others, that she entered
into the joint petition as the only means by which she could have immediate custody of her minor children, and thereafter
prayed the CFI to reconsider its judgment pertaining to the custody and visitation of her minor children and to relieve her
from the said agreement. The petitioner spouse opposed the said motion and, on June 1, 1963, filed a motion for
execution of the compromise judgment and a charge for contempt. The CFI (Judge Jose R. Querubin, presiding), in its
order dated June 22, 1963, denied the respondent spouse's motion for reconsideration, granted the petitioner spouse's
motion for execution, and ordered that upon "failure on the part of Carmen San Jose-Lacson to deliver the said children
[i.e., to return the two older children Enrique and Maria Teresa in accordance with her agreement with Alfonso Lacson] to
the special sheriff on or before June 29, 1963, she may be held for contempt pursuant to the provisions of Rule 39
sections 9 and 10, and Rule 64 section 7 of the (old) Rules of Court." From the aforesaid compromise judgment dated
April 27, 1963 and execution order dated June 22, 1963, the respondent spouse interposed an appeal to the Court of
Appeals (CA-G.R. No. 32798-R) wherein she likewise questioned the validity or legality of her agreement with the
petitioner spouse respecting custody of their children. On February 11, 1965 the Court of Appeals also certified the said
appeal to the Supreme Court (G.R. No. L-24259), since "no evidence of any kind was introduced before the trial court and
... appellant did not specifically ask to be allowed to present evidence on her behalf." .

The respondent spouse also instituted certiorari proceedings before the Court of Appeals (CA-G.R. No. 32384R), now the
subject of an appeal by certiorari to this Court (G.R. No. L-23482). In her petition for certiorari dated June 27, 1963, she
averred that the CFI (thru Judge Querubin) committed grave abuse of discretion and acted in excess of jurisdiction in
ordering the immediate execution of the compromise judgment in its order of June 22, 1963, thus in effect depriving her of
the right to appeal. She prayed for (1) the issuance of a writ of preliminary injunction enjoining the respondents therein
and any person acting under them from enforcing, by contempt proceedings and other means, the writ of execution issued
pursuant to the order of the respondent Judge Querubin dated June 22, 1963 in special proceeding 6978 of the CFI, (2)
the setting aside, after hearing, of the compromise judgment dated April 27, 1963 and the order dated June 22, 1963, and
(3) the awarding of the custody of Enrique and Maria Teresa to her, their mother. As prayed for, the Court of Appeals
issued ex parte a writ of preliminary injunction enjoining the enforcement of the order dated June 22, 1963 for execution of
the compromise judgment rendered in special proceeding 6978. The petitioner spouse filed an urgent motion dated July 5,
1963 for the dissolution of the writ of preliminary injunction ex parte which urgent motion was denied by the Court of
Appeals in its resolution dated July 9, 1963. The petitioner spouse likewise filed his answer. After hearing, the Court of
Appeals on May 11, 1964 promulgated in said certiorari case (CA-G.R. No. 32384-R) its decision granting the petition
for certiorari and declaring null and void both (a) the compromise judgment dated April 27, 1963 in so far as it relates to
the custody and right of visitation over the two children, Enrique and Teresa, and (b) the order dated June 22, 1963 for
execution of said judgment. The petitioner spouse moved to reconsider, but his motion for reconsideration was denied by
the Court of Appeals in its resolution dated July 31, 1964. From the decision dated May 11, 1964 and the resolution dated
July 31, 1964, the petitioner spouse interposed an appeal to this Court, as abovestated, and assigned the following errors:

(1) The Court of Appeals erred in annulling thru certiorari the lower court's order of execution of the compromise
judgment.

(2) The Court of Appeals erred in resolving in the certiorari case the issue of the legality of the compromise
judgment which is involved in two appeals, instead of the issue of grave abuse of discretion in ordering its
execution.

(3) The Court of Appeals erred in ruling that the compromise agreement upon which the judgment is based
violates article 363 of the Civil Code. 1äwphï1.ñët

As heretofore adverted, the aforecited three appeals converge on one focal issue: whether the compromise agreement
entered into by the parties and the judgment of the CFI grounded on the said agreement, are conformable to law.

We hold that the compromise agreement and the judgment of the CFI grounded on the said agreement are valid with
respect to the separation of property of the spouses and the dissolution of the conjugal partnership.

The law allows separation of property of the spouses and the dissolution of their conjugal partnership provided judicial
sanction is secured beforehand. Thus the new Civil Code provides:

In the absence of an express declaration in the marriage settlements, the separation of property between spouses
during the marriage shall not take place save in virtue of a judicial order. (Art. 190, emphasis supplied)
 The husband and the wife may agree upon the dissolution of the conjugal partnership during the marriage,
subject to judicial approval. All the creditors of the husband and of the wife, as well as of the conjugal partnership,
shall be notified of any petition for judicial approval of the voluntary dissolution of the conjugal partnership, so that
any such creditors may appear at the hearing to safeguard his interests. Upon approval of the petition for
dissolution of the conjugal partnership, the court shall take such measures as may protect the creditors and other
third persons. (Art. 191, par. 4, emphasis supplied).

In the case at bar, the spouses obtained judicial imprimatur of their separation of property and the dissolution of their
conjugal partnership. It does not appeal that they have creditors who will be prejudiced by the said arrangements.

It is likewise undisputed that the couple have been separated in fact for at least five years - the wife's residence being in
Manila, and the husband's in the conjugal home in Bacolod City. Therefore, inasmuch as a lengthy separation has
supervened between them, the propriety of severing their financial and proprietary interests is manifest.

Besides, this Court cannot constrain the spouses to live together, as

[I]t is not within the province of the courts of this country to attempt to compel one of the spouses to cohabit with,
and render conjugal rights to, the other. .. At best such an order can be effective for no other purpose than to
compel the spouse to live under the same roof; and the experience of those countries where the courts of justice
have assumed to compel the cohabitation of married couple shows that the policy of the practice is extremely
questionable. (Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60).

However, in so approving the regime of separation of property of the spouses and the dissolution of their conjugal
partnership, this Court does not thereby accord recognition to nor legalize the de facto separation of the spouses, which
again in the language of Arroyo v. Vasquez de Arroyo, supra — is a "state which is abnormal and fraught with grave
danger to all concerned." We would like to douse the momentary seething emotions of couples who, at the slightest
ruffling of domestic tranquility — brought about by "mere austerity of temper, petulance of manners, rudeness of
language, a want of civil attention and accommodation, even occasional sallies of passion" without more — would be
minded to separate from each other. In this jurisdiction, the husband and the wife are obliged to live together, observe
mutual respect and fidelity, and render mutual help and support (art. 109, new Civil Code). There is, therefore, virtue in
making it as difficult as possible for married couples — impelled by no better cause than their whims and caprices — to
abandon each other's company.

'... For though in particular cases the repugnance of the law to dissolve the obligations of matrimonial cohabitation
may operate with great severity upon individuals, yet it must be carefully remembered that the general happiness
of the married life is secured by its indissolubility. When people understand that they must live together, except for
a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know
they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands
and wives; for necessity is a powerful master in teaching the duties which it imposes ..." (Evans vs. Evans, 1 Hag.
Con., 35; 161 Eng. Reprint, 466, 467.) (Arroyo vs. Vasquez de Arroyo, Id., pp. 58-59).

We now come to the question of the custody and support of the children.

It is not disputed that it was the JDRC which first acquired jurisdiction over the matter of custody and support of the
children. The complaint docketed as civil case E-00030 in the JDRC was filed by the respondent spouse on March 12,
1963, whereas the joint petition of the parties docketed as special proceeding 6978 in the CFI was filed on April 27, 1963.
However, when the respondent spouse signed the joint petition on the same matter of custody and support of the children
and filed the same with the CFI of Negros Occidental, she in effect abandoned her action in the JDRC. The petitioner
spouse — who could have raised the issue of lis pendens in abatement of the case filed in the CFI, but did not do so - had
the right, therefore, to cite the decision of the CFI and to ask for the dismissal of the action filed by the respondent spouse
in the JDRC, on the grounds of res judicata and lis pendens. And the JDRC acted correctly and justifiably in dismissing
the case for custody and support of the children based on those grounds. For it is no defense against the dismissal of the
action that the case before the CFI was filed later than the action before the JDRC, considering:.

... [T]hat the Rules do not require as a ground for dismissal of a complaint that there is a prior pending action.
They provide only that there is a pending action, not a pending prior action. 1

We agree with the Court of Appeals, however, that the CFI erred in depriving the mother, the respondent spouse, of the
custody of the two older children (both then below the age of 7).

The Civil Code specifically commands in the second sentence of its article 363 that "No mother shall be separated from
her child under seven years of age, unless the court finds compelling reasons for such measure." The rationale of this
new provision was explained by the Code Commission thus:

The general rule is recommended in order to avoid many a tragedy where a mother has seen her baby torn away
from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age. The
exception allowed by the rule has to be for "compelling reasons" for the good of the child: those cases must
indeed be rare, if the mother's heart is not to be unduly hurt. If she has erred, as in cases of adultery, the penalty
of imprisonment and the (relative) divorce decree will ordinarily be sufficient punishment for her. Moreover, her
moral dereliction will not have any effect upon the baby who is as yet unable to understand the situation." (Report
of the Code Commission, p. 12).
The use of the word shall2 in article 363 of the Civil Code, coupled with the observations made by the Code Commission
in respect to the said legal provision, underscores its mandatory character. It prohibits in no uncertain: terms the
separation of a mother and her child below seven years, unless such separation is grounded upon compelling reasons as
determined by a court.

The order dated April 27, 1963 of the CFI, in so far as it awarded custody of the two older children who were 6 and 5
years old, respectively, to the father, in effect sought to separate them from their mother. To that extent therefore, it was
null and void because clearly violative of article 363 of the Civil Code.

Neither does the said award of custody fall within the exception because the record is bereft of any compelling reason to
support the lower court's order depriving the wife of her minor children's company. True, the CFI stated in its order dated
June 22, 1963, denying the respondent spouse's motion for reconsideration of its order dated April 27, 1963, that .

... If the parties have agreed to file a joint petition, it was because they wanted to avoid the exposure of the bitter
truths which serve as succulent morsel for scandal mongers and idle gossipers and to save their children from
embarrassment and inferiority complex which may inevitably stain their lives. ..

If the parties agreed to submit the matter of custody of the minor children to the Court for incorporation in the final
judgment, they purposely suppressed the "compelling reasons for such measure" from appearing in the public records.
This is for the sake and for the welfare of the minor children.".

But the foregoing statement is at best a mere hint that there were compelling reasons. The lower court's order is
eloquently silent on what these compelling reasons are. Needless to state, courts cannot proceed on mere insinuations;
they must be confronted with facts before they can properly adjudicate.

It might be argued — and correctly — that since five years have elapsed since the filing of these cases in 1963, the ages
of the four children should now be as follows: Enrique — 11, Maria Teresa — 10, Gerrard — 9, and Ramon — 5.
Therefore, the issue regarding the award of the custody of Enrique and Maria Teresa to the petitioner spouse has become
moot and academic. The passage of time has removed the prop which supports the respondent spouse's position.

Nonetheless, this Court is loath to uphold the couple's agreement regarding the custody of the children. 1äwphï1.ñët

Article 356 of the new Civil Code provides:

Every child:

(1) Is entitled to parental care;

(2) Shall receive at least elementary education;

(3) Shall be given moral and civic training by the parents or guardian;

(4) Has a right to live in an atmosphere conducive to his physical, moral and intellectual development.

It is clear that the abovequoted legal provision grants to every child rights which are not and should not be dependent
solely on the wishes, much less the whims and caprices, of his parents. His welfare should not be subject to the parents'
say-so or mutual agreement alone. Where, as in this case, the parents are already separated in fact, the courts must step
in to determine in whose custody the child can better be assured the right granted to him by law. The need, therefore, to
present evidence regarding this matter, becomes imperative. A careful scrutiny of the records reveals that no such
evidence was introduced in the CFI. This latter court relied merely on the mutual agreement of the spouses-parents. To
be sure, this was not a sufficient basis to determine the fitness of each parent to be the custodian of the children.

Besides, at least one of the children — Enrique, the eldest — is now eleven years of age and should be given the choice
of the parent he wishes to live with. This is the clear mandate of sec. 6, Rule 99 of the Rules of Court which, states, inter
alia:

... When husband and wife are divorced or living separately and apart from each other, and the question as to the
care, custody, and control of a child or children of their marriage is brought before a Court of First Instance by
petition or as an incident to any other proceeding, the court, upon hearing testimony as may be pertinent, shall
award the care, custody and control of each such child as will be for its best interestpermitting the child to choose
which parent it prefers to live with if it be over ten years of age, unless the parent so chosen be unfit to take
charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or poverty... (Emphasis
supplied).

One last point regarding the matter of support for the children — assuming that the custody of any or more of the children
will be finally awarded to the mother. Although the spouses have agreed upon the monthly support of P150 to be given by
the petitioner spouse for each child, still this Court must speak out its mind on the insufficiency of this amount. We, take
judicial notice of the devaluation of the peso in 1962 and the steady skyrocketing of prices of all commodities, goods, and
services, not to mention the fact that all the children are already of school age. We believe, therefore, that the CFI may
increase this amount of P150 according to the needs of each child.
With the view that we take of this case, we find it unnecessary to pass upon the other errors assigned in the three
appeals.

ACCORDINGLY, the decision dated May 11, 1964 and the resolution dated July 31, 1964 of the Court of Appeals in CA-
G.R. 32384-R (subject matter of G.R. L-23482), and the orders dated May 28, 1963 and June 24, 1963 of the Juvenile
and Domestic Relations Court (subject matter of G.R. L-23767) are affirmed. G.R. L-24259 is hereby remanded to the
Court of First Instance of Negros Occidental for further proceedings, in accordance with this decision. No pronouncement
as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Angeles, JJ., concur.
Sanchez and Fernando, JJ., took no part.

Footnotes

1Teodoro vs. Mirasol, 99 Phil. 150, 153.

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

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