Legal Separation Cases

LEGAL SEPARATION
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-13553 February 23, 1960
JOSE DE OCAMPO, petitioner,

vs.
SERAFINA FLORENCIANO, respondent.
Joselito J. Coloma for petitioner.
BENGZON, J.:
Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery. The court of first
instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there was confession of judgment, plus
condonation or consent to the adultery and prescription.
We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code, which for convenience
are quoted herewith:
ART. 100.—The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall
cause the dismissal of the petition.
ART. 101.—No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of
judgment.
In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether
or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene
for the State in order to take care that the evidence for the plaintiff is not fabricated.
The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it described their
marriage performed in 1938, and the commission of adultery by Serafina, in March 1951 with Jose Arcalas, and in June
1955 with Nelson Orzame.
Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above, directed the provincial
fiscal to investigate whether or not collusion existed between the parties. The fiscal examined the defendant under
oath, and then reported to the Court that there was no collusion. The plaintiff presented his evidence consisting of the
testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin
Gubat.
According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant were married in
April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as husband and wife. They begot
several children who are now living with plaintiff. In March, 1951, plaintiff discovered on several occasions that his wife
was betraying his trust by maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying
marital relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where she stayed
for one year. Again, plaintiff discovered that while in the said city defendant was going out with several other men,
1
aside from Jose Arcalas. Towards the end of June, 1952, when defendant had finished studying her course, she left
plaintiff and since then they had lived separately.
"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by the name of
Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to which defendant manifested
her conformity provided she is not charged with adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955,
a petition for legal separation."
The Court of Appeals held that the husband's right to legal separation on account of the defendant's adultery with Jose
Arcalas had prescribed, because his action was not filed within one year from March 1951 when plaintiff discovered her
infidelity. (Art. 102, New Civil Code) We must agree with the Court of Appeals on this point.1
As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955, the husband upon
discovering the illicit connection, expressed his wish to file a petition for legal separation and defendant readily agreed
to such filing. And when she was questioned by the Fiscal upon orders of the court, she reiterated her conformity to the
legal separation even as she admitted having had sexual relations with Nelson Orzame. Interpreting these facts virtually
to mean a confession of judgment the Appellate Court declared that under Art. 101, legal separation could not be
decreed.
As we understand the article, it does not exclude, as evidence, any admission or confession made by the defendant
outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment
usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading
expressly agreeing to the plaintiff's demand.2 This is not occur.
Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch
as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it
would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a
judgment based exclusively or mainly on defendant's confession. If a confession defeats the action ipso facto, any
defendant who opposes the separation will immediately confess judgment, purposely to prevent it.
The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated from her husband, is
no obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her
willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes
precautions against collusion, which implies more than consent or lack of opposition to the agreement.
Needless to say, when the court is informed that defendant equally desires the separation and admitted the commission
of the offense, it should be doubly careful lest a collusion exists. (The Court of Appeals did not find collusion.)
Collusion in divorce or legal separation means the agreement.
. . . between husband and wife for one of them to commit, or to appear to commit, or to be represented in
court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose
of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the
parties. It is a ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs.
Sandoz, 107 Ore. 282, 214 Pas. 590.).
In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been
committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of
grounds therefor.
Here, the offense of adultery had really taking place, according to the evidence. The defendant could not have falsely
told the adulterous acts to the Fiscal, because her story might send her to jail the moment her husband requests the
Fiscal to prosecute. She could not have practiced deception at such a personal risk.
2
In this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses
to the offense and thus enables the other party to procure evidence necessary to prove it. (Williams vs. Williams, [N. Y.]
40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.).
And proof that the defendant desires the divorce and makes no defense, is not by itself collusion. (Pohlman vs.
Pohlman, [N. J.] 46 Atl. Rep. 658.).
We do not think plaintiff's failure actively to search for defendant and take her home (after the latter had left him in
1952) constituted condonation or consent to her adulterous relations with Orzame. It will be remembered that she "left"
him after having sinned with Arcalas and after he had discovered her dates with other men. Consequently, it was not his
duty to search for her to bring her home. Hers was the obligation to return.
Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the husband's consent to or
condonation of his wife's misconduct. However, upon careful examination, a vital difference will be found: in both
instances, the husband had abandoned his wife; here it was the wife who "left" her husband.
Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed decision and
decree a legal separation between these spouse, all the consequent effects. Costs of all instances against Serafina
Florenciano. So ordered.
Paras, C. J., Padilla, Montemayor, Labrador, Concepcion, Reyes, J. B. L., Endencia, Barrera, and Gutierrez David,
JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. L-3047 May 16, 1951
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
GUADALUPE ZAPATA and DALMACIO BONDOC, defendants-appellees.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Jaime de los Angeles for appellant.
Francisco M. Ramos and Moises Sevilla Ocampo for appellee Dalmacio Bondoc.
Hernandez and Laquian for appellee Guadalupe Zapata.
PADILLA, J.:
In the Court of First Instance of Pampanga a complaint for adultery was filed by Andres Bondoc against Guadalupe
Zapata, his wife, and Dalmacio Bondoc, her paramour, for cohabiting and having repeated sexual intercourse during the
period from the year 1946 14 March 1947, the date of the filing of the complaint, Dalmacio Bondoc knowing his
codefendant to be a married woman (criminal case No. 426). The defendant wife entered the plea of guilty and was
sentenced to suffer four months of arresto mayor which penalty she served. In the same court, on 17 September 1948,
the offended husband filed another complaint for adulterous acts committed by his wife and her paramour from 15
March 1947 to 17 September 1948, the date of the filing of the second complaint (criminal case No. 735). On 21
February 1949, each of the defendants filed a motion to quash the complaint of the ground that they would be twice
put in jeopardy of punishment for the same offense. The trial court upheld the contention of the defendants and
quashed the second complaint. From the other sustaining the motions to quash the prosecution has appealed.
3
The trial court held that the adulterous acts charged in the first and second complains must be deemed one continuous
offense, the defendants in both complaints being the same and identical persons and the two sets of unlawful acts
having taken place continuously during the years 1946, 1947 and part of 1948, and that the acts or two sets of acts
that gave rise to the crimes of adultery complained of in both cases constitute one and the same offense, within the
scope and meaning of the constitutional provision that "No person shall be twice put in jeopardy of punishment for the
same offense.".
Adultery is a crime of result and not of tendency, as the Supreme Court of Spain has held (S. 10 December 1945); it is a
instantaneous crime which is consummated and exhausted or completed at the moment of the carnal union. Each
sexual intercourse constitutes a crime of adultery (Cuello Calon, Derecho Penal, Vol. II, p. 569). True, two or more
adulterous acts committed by the same defendants are against the same person — the offended husband, the same
status — the union of the husband and wife by their marriage, and the same community represented by the State for its
interest in maintaining and preserving such status. But this identity of the offended party, status society does not argue
against the commission of the crime of adultery as many times as there were carnal consummated, for as long as the
status remain unchanged, the nexus undissolved and unbroken, an encroachment or trespass upon that status
constitutes a crime. There is no constitutional or legal provision which bars the filing of as many complaints for
adultery as there were adulterous acts committed, each constituting one crime.
The notion or concept of a continuous crime has its origin in the juridical fiction favorable to the law transgressors and
in many a case against the interest of society (Cuello Calon, Derecho Penal, Vol. II, p. 521). For it to exist there would be
plurality of acts performed seperately during a period of time; unity of penal provision infringed upon or violated; and
unity of criminal intent or purpose, which means that two or more violations of the same penal provision are united in
one and the same intent leading to the perpetration of the same criminal purpose or aim (Ibid. p. 520).In the instant
case the last unity does not exist, because as already stated the culprits perpetrate the crime in every sexual
intercourse and they need not to another or other adulterous acts to consummate it. After the last acts of adultery had
been committed as charged in the first complaint, the defendants again committed adulterous acts not included in the
first complaint and for which the second complaint was filed. It was held by the Supreme Court of Spain that another
crime of adultery was committed, if the defendants, after their provincional release during the pendency of the case in
which they were sent to prison to serve the penalty imposed upon them(S. 28 February 1906; 76 Jur. Crim. pp. 208-
210).
Another reason why a second complaint charging the commission of adulterous acts not included in the first complaint
does not constitute a violation of the double jeopardy clause of the constitution is that, if the second places complaint
the defendants twice in jeopardy of punishment for the same offense, the adultery committed by the male defendant
charged in the second complaint, should he be absolved from, or acquitted of, the first charge upon the evidence that
he did not know that his codefendant was a married woman, would remain or go unpunished. The defense set up by
him against the first charge upon which he was acquitted would no longer be available, because at the time of the
commission of the crime charged in the second complaint, he already knew that this defendant was a married woman
and he continued to have carnal knowledge of her. Even if the husband should pardon his adulterous wife, such pardon
would not exempt the wife and her paramour from criminal liability for adulterous acts committed after the pardon was
granted because the pardon refers to previous and not to subsequent adulterous acts(Viada [5th ed.] Vol. 5, p. 208;
Groizard [2nd ed.] Vol. 5, pp. 57-58).
The order appealed from, which quashed the second complaint for adultery, is hereby reversed and set aside, and trial
court directed to proceed with the trial of the defendants in accordance with law, with costs against the appellees.
Feria, Pablo, Tuason and Jugo, JJ., concur.

Paras, C.J., Bengzon and Montemayor, JJ., concur in the result.
Paras, C.J., Mr. Justice Reyes voted for the reversal.
4
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 79284 November 27, 1987
FROILAN C. GANDIONCO, petitioner,

vs.
HON. SENEN C. PEÑARANDA, as Presiding Judge of the Regional Trial Court of Misamis Oriental, Branch 18, Cagayan de
Oro City, and TERESITA S. GANDIONCO, respondents.
PADILLA, J.:
A special civil action for certiorari, with application for injunction, to annul (1) the Order of the respondent Judge, dated
10 December 1986, ordering petitioner to pay support pendente lite to private respondent (his wife) and their child,
and (2) the Order of the same respondent Judge, dated 5 August 1987, denying petitioner's motion to suspend hearings
in the action for legal separation filed against him by private respondent as well as his motion to inhibit respondent
Judge from further hearing and trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, filed with the Regional Trial Court of Misamis
Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro City, presided over by respondent Judge, a complaint
against petitioner for legal separation, on the ground of concubinage, with a petition for support and payment of
damages. This case was docketed as Civil Case No. 10636. On 13 October 1986, private respondent also filed with the
Municipal Trial Court, General Santos City, a complaint against petitioner for concubinage, which was docketed on 23
October 1986 as Criminal Case No. 15437111. On 14 November 1986, application for the provisional remedy of
support pendente lite, pending a decision in the action for legal separation, was filed by private respondent in the civil
case for legal separation. The respondent judge, as already stated, on 10 December 1986, ordered The payment of
support pendente lite.
In this recourse, petitioner contends that the civil action for legal separation and the incidents consequent thereto, such
as, application for support pendente lite, should be suspended in view of the criminal case for concubinage filed
against him the private respondent. In support of his contention, petitioner cites Art. III. Sec. 3 of the 1985 Rules on
Criminal Procedure, which states:
SEC. 3. Other Civil action arising from offenses. — Whenever the offended party shall have instituted
the civil action to enforce the civil liability arising from the offense. as contemplated in the first
Section 1 hereof, the following rules shall be observed:
(a) After a criminal action has been commenced the pending civil action arising from the same
offense shall be suspended, in whatever stage it may be found, until final judgment in the criminal
proceeding has been rendered. . . .
The civil action for legal separation, grounded as it is on concubinage, it is petitioner's position that such civil action
arises from, or is inextricably tied to the criminal action for concubinage, so that all proceedings related to legal
separation will have to be suspended to await conviction or acquittal for concubinage in the criminal case. Authority for
this position is this Court's decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
5
In Jerusalem, the Court's statement to the effect that suspension of an action for legal separation would be proper if an
allegation of concubinage is made therein, relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules of
Court on criminal procedure, to wit:
Sec. 1. Rules governing civil actions arising from offenses.-Except as otherwise provided by law, the
following rules shall he observed:
(a) When a criminal action is instituted, the civil action for recovery of civil liability arising from the
offense charged is impliedly instituted with the criminal action, unless the offended party expressly
waives the civil action or reserves his right to institute it separately;
(b) Criminal and civil actions arising from the same offense may be instituted separately, but after the
criminal action has been commenced the civil action can not be instituted until final judgment has
been rendered in the criminal action;
(c) After a criminal action has been commenced, no civil action arising from the same offense can be
prosecuted and the same shall be suspended in whatever stage it may be found until final judgment
in the criminal proceeding has been rendered ... (Emphasis supplied)
The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil action to be suspended, with or
upon the filing of a criminal action, is one which is "to enforce the civil liability arising from the offense". In other
words, in view of the amendment under the 1985 Rules on Criminal Procedure, a civil action for legal separation, based
on concubinage, may proceed ahead of, or simultaneously with, a criminal action for concubinage, because said civil
action is not one "to enforce the civil liability arising from the offense" even if both the civil and criminal actions arise
from or are related to the same offense. Such civil action is one intended to obtain the right to live separately, with the
legal consequences thereof, such as, the dissolution of the conjugal partnership of gains, custody of offsprings,
support, and disqualification from inheriting from the innocent spouse, among others. As correctly pointed out by the
respondent Judge in his Order dated 5 August 1987:
The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of CFI of Antique, et al., L-
11935, April 24, 1959 (105 Phil. 1277) is not controlling. It applied paragraph C of Sec. 1, of then
Rule 107 of the Rules of Court, which reads:
After a criminal action has been commenced, no civil action arising from the same
offense can be prosecuted and the same shall be suspended, in whatever stage it
may be found, until final judgment in the criminal proceeding has been rendered.
(Emphasis supplied)
The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal Procedure which refers to "civil actions to enforce
the civil liability arising from the offense" as contemplated in the first paragraph of Section 1 of Rule 111-which is a
civil action "for recovery of civil liability arising from the offense charged." Sec. 1, Rule 111, (1985) is specific that it
refers to civil action for the recovery of civil liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule
107 simply referred to "Civil action arising from the offense."
As earlier noted this action for legal separation is not to recover civil liability, in the main, but is aimed at the conjugal
rights of the spouses and their relations to each other, within the contemplation of Articles 7 to 108, of the Civil Code."2
Petitioner also argues that his conviction for concubinage will have to be first secured before the action for legal
separation can prosper or succeed, as the basis of the action for legal separation is his alleged offense of concubinage.
Petitioner's assumption is erroneous.
6
A decree of legal separation, on the ground of concubinage, may be issued upon proof by preponderance of evidence in
the action for legal separation. 3 No criminal proceeding or conviction is necessary. To this end, the doctrine
in Francisco vs. Tayao 4 has been modified, as that case was decided under Act. No. 2710, when absolute divorce was
then allowed and had for its grounds the same grounds for legal separation under the New Civil Code, with the
requirement, under such former law, that the guilt of defendant spouses had to be established by final judgment in a
criminal action. That requirement has not been reproduced or adopted by the framers of the present Civil Code, and the
omission has been uniformly accepted as a modification of the stringent rule in Francisco v. Tayao.5
Petitioner's attempt to resist payment of support pendente lite to his wife must also fail, as we find no proof of grave
abuse of discretion on the part of the respondent Judge in ordering the same. Support pendente lite, as a remedy, can
be availed of in an action for legal separation, and granted at the discretion of the judge. 6 If petitioner finds the
amount of support pendente lite ordered as too onerous, he can always file a motion to modify or reduce the same. 7
Petitioner lastly seeks to have the respondent Judge disqualified from hearing the case, as the grant of
support pendente lite and the denial of the motion to suspend hearings in the case, are taken by the petitioner as a
disregard of applicable laws and existing doctrines, thereby showing the respondent Judge's alleged manifest partiality
to private respondent.
Petitioner's contention is without merit. Divergence of opinions between a judge hearing a case and a party's counsel,
as to applicable laws and jurisprudence, is not a sufficient ground to disqualify the judge from hearing the case, on the
ground of bias and manifest partiality. This is more so, in this case, where we find the judge's disposition of petitioner's
motions to be sound and well-taken.
WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.
Footnotes
1 G.R. No. L- 11935, 24 April 1959, 105 Phil. 1277 (1959),Unrep.
2 Rollo at 33.
3 Petitioner himself admits this in his Rejoinder to plaintiff's Opposition to his Motion to Inhibit
Respondent Judge and Motion to Suspend Hearing wherein he states, "Concubinage is the same
criminal offense punishable under Art. 334 of the Revised Penal Code which in a case for legal
separation, the same may be proved based on preponderance of evidence". Rollo at 50.
4 50 Phil. 42 (1927)
5 Padilla, I CIVIL CODE ANNOTATED 526 (1975); Paras, I CIVIL CODE OF THE PHILIPPINES ANNOTATED
374 (1971); Tolentino, I COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE
PHILIPPINES 311 (1983). Tolentino qualifies: " It is not mere sexual infidelity that constitutes the
ground for legal separation. Such infidelity must constitute adultery or concubinage as defined by the
Revised Penal Code." (Id. at 310). Further: "There would be no more legal obstacle to a decree of legal
separation at the instance of an offended wife, based on an act of infidelity for which the guilty
husband has been convicted of adultery upon the complaint of his paramour's husband so long as
such act may also constitute concubinage and can be proven in the legal separation proceedings. We
submit that the new Code, by omitting the requirement of criminal conviction of adultery or
7
concubinage, as the case may be, has modified the doctrine in the case of Francisco v. Tayao."(Id. at
311).
It may be noted that under Article 55(6) of the Family Code of the Philippines (Executive Order No.
209 as ammended) soon to take effect, sexual infidelity or perversion of either spouse has replaced
adultery on the part of the wife and concubinage on the part of the husband as defined by the
Revised Penal Code (Art. 97, New Civil Code) as one of the grounds for legal separation.
6 Araneta v. Concepcion, et al., 99 Phil. 709 (1956).
7 Sec. 5, Rule 61 of the Rules of Court states:
Order.- The court shall determine provisionally the pertinent facts, and shall render such order as
equity and justice may require, having due regard to the necessities of the applicant, the means of
the adverse party, the probable outcome of the case, and such other circumstances as may aid in the
proper elucidation of the question involved. If the application is granted, the court shall fix the
amount of money to be provisionally paid, and the terms of payment. If the application is denied, the
trial of the principal case on its merit shall be held as early as possible.
PROCEDURAL MATTERS

SUPREME COURT
Manila
EN BANC
G.R. No. L-34132 July 29, 1972
LUCY SOMOSA-RAMOS, petitioner,

vs.
THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of the Court of First Instance of Negros Oriental and CLEMEN
G. RAMOS, respondents.
T. R. Reyes & Associates for petitioner.
Soleto J. Erames for respondents.
FERNANDO, J.:p
The question raised in this petition for certiorari is whether or not Article 103 of the Civil Code prohibiting the hearing
of an action for legal separation before the lapse of six months from the filing of the petition, would likewise preclude
the court from acting on a motion for preliminary mandatory injunction applied for as an ancillary remedy to such a
suit. Respondent Cipriano Vamenta, Jr., of the Court of First Instance of Negros Oriental, answered the question in the
affirmative, in view of the absolute tenor of such Civil Code provision, which reads thus: "An action for legal separation
shall in no case be tried before six months shall have elapsed since the filing of the petition." He therefore ordered the
suspension, upon the plea of the other respondent the husband Clemente G. Ramos, of the hearing on a motion for a
writ of preliminary mandatory injunction filed by petitioner at the same time the suit for legal separation was instituted.
Petitioner, Lucy Somosa-Ramos, the wife who brought the action for legal separation would dispute such a ruling.
Hence, this certiorari proceeding. As will be shown later there is justification for such a move on the part of petitioner.
The respondent Judge ought to have acted differently. The plea for a writ of certiorari must be granted.
8
The pleadings show that on June 18, 1971, petitioner filed Civil Case No. 5274 in the sala of respondent Judge against
respondent Clemente Ramos for legal separation, on concubinage on the respondent's part and an attempt by him
against her life being alleged. She likewise sought the issuance of a writ of preliminary mandatory injunction for the
return to her of what she claimed to be her paraphernal and exclusive property, then under the administration and
management of respondent Clemente Ramos. There was an opposition to the hearing of such a motion, dated July 3,
1971, based on Article 103 of the Civil Code. It was further manifested by him in a pleading dated July 16, 1971, that if
the motion asking for preliminary mandatory injunction were heard, the prospect of the reconciliation of the spouses
would become even more dim. Respondent Judge ordered the parties to submit their respective memoranda on the
matter. Then on September 3, 1971, petitioner received an order dated August 4, 1971 of respondent Judge granting
the motion of respondent Ramos to suspend the hearing of the petition for a writ of mandatory preliminary injunction.
That is the order complained of in this petition for certiorari. Respondents were required to answer according to our
resolution of October 5, 1971. The answer was filed December 2 of that year. Then on January 12, 1972 came a
manifestation from parties in the case submitting the matter without further arguments.
After a careful consideration of the legal question presented, it is the holding of this Court that Article 103 the Civil
Code is not an absolute bar to the hearing motion for preliminary injunction prior to the expiration of the six-month
period.
1. It is understandable why there should be a period during which the court is precluded from acting. Ordinarily of
course, no such delay is permissible. Justice to parties would not thereby be served. The sooner the dispute is resolved,
the better for all concerned. A suit for legal separation, however, is something else again. It involves a relationship on
which the law for the best reasons would attach the quality of permanence. That there are times when domestic felicity
is much less than it ought to be is not of course to be denied. Grievances, whether fancied or real, may be entertained
by one or both of the spouses. There may be constant bickering. The loss affection on the part of one or both may be
discernible. Nonetheless, it will not serve public interest, much less the welfare of the husband or the wife, to allow
them to go their respective ways. Where there are offspring, the reason for maintaining the conjugal union is even more
imperative. It is a mark of realism of the law that for certain cases, adultery on the part of the wife and concubinage on
the part of the husband, or an attempt of one spouse against the life of the other,1 it recognizes, albeit reluctantly, that
the couple is better off apart. A suit for legal separation lies. Even then, the hope that the parties may settle their
differences is not all together abandoned. The healing balm of time may aid in the process. Hopefully, the guilty parties
may mend his or her ways, and the offended party may in turn exhibit magnanimity. Hence, the interposition of a six-
month period before an action for legal separation is to be tried.
The court where the action is pending according to Article 103 is to remain passive. It must let the parties alone in the
meanwhile. It is precluded from hearing the suit. There is then some plausibility for the view of the lower court that an
ancillary motion such as one for preliminary mandatory injunction is not to be acted on. If it were otherwise, there
would be a failure to abide by the literal language of such codal provision. That the law, however, remains cognizant of
the need in certain cases for judicial power to assert itself is discernible from what is set forth in the following article. It
reads thus: "After the filing of the petition for legal separation, the spouse shall be entitled to live separately from each
other and manage their respective property. The husband shall continue to manage the conjugal partnership property
but if the court deems it proper, it may appoint another to manage said property, in which case the administrator shall
have the same rights and duties as a guardian and shall not be allowed to dispose of the income or of the capital except
in accordance with the orders of the court."2 There would appear to be then a recognition that the question of
management of their respective property need not be left unresolved even during such six-month period. An
administrator may even be appointed for the management of the property of the conjugal partnership. The absolute
limitation from which the court suffers under the preceding article is thereby eased. The parties may in the meanwhile
be heard. There is justification then for the petitioner's insistence that her motion for preliminary mandatory injunction
should not be ignored by the lower court. There is all the more reason for this response from respondent Judge,
considering that the husband whom she accused of concubinage and an attempt against her life would in the
meanwhile continue in the management of what she claimed to be her paraphernal property, an assertion that was not
specifically denied by him. What was held by this Court in Araneta v. Concepcion,3 thus possesses relevance: "It is
conceded that the period of six months fixed therein Article 103 (Civil Code) is evidently intended as a cooling off
period to make possible a reconciliation between the spouses. The recital of their grievances against each other in court
may only fan their already inflamed passions against one another, and the lawmaker has imposed the period to give
9
them opportunity for dispassionate reflection. But this practical expedient, necessary to carry out legislative policy,
does not have the effect of overriding other provisions such as the determination of the custody of the children and
alimony and support pendente lite according to the circumstance ... The law expressly enjoins that these should be
determined by the court according to the circumstances. If these are ignored or the courts close their eyes to actual
facts, rank injustice may be caused."4 At any rate, from the time of the issuance of the order complained of on August
4, 1971, more than six months certainly had elapsed. Thus there can be no more impediment for the lower court acting
on the motion of petitioner for the issuance of a writ of preliminary mandatory injunction.
WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the order of respondent Court of August 4,
1971, suspending the hearing on the petition for a writ of preliminary mandatory injunction is set aside. Respondent
Judge is directed to proceed without delay to hear the motion for preliminary mandatory injunction. Costs against
respondent Clemente G. Ramos.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
Separate Opinions:
Reyes, J.B.L.,. J., concurring:
Concurs, specially in view of the ruling in De la Viña vs. Villareal, 41 Phil. 13, 24.
Separate Opinions
Reyes, J.B.L.,. J., concurring:
Concurs, specially in view of the ruling in De la Viña vs. Villareal, 41 Phil. 13, 24.
Footnotes
1 Article 97 of the Civil Code reads: "A petition for legal separation may be filed: (1) For adultery on
the part of the wife and for concubinage on the part of the husband as defined in the Penal Code; or
(2) An attempt by one spouse against the life of the other."
2 Art. 104, Civil Code.
3 99 Phil. 709 (1956).
4 Ibid., p. 712.

SUPREME COURT
Manila
EN BANC
G.R. No. L-11766 October 25, 1960
SOCORRO MATUBIS, plaintiff-appellant,

vs.
ZOILO PRAXEDES, defendant-appellee.
Luis N. de Leon for appellant.

Lucio La. Margallo for appellee.
PAREDES, J.:
Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with the Court of First Instance of Camarines
Sur, on April 24, 1956, a complaint for legal Separation and changed of surname against her husband defendant Zoilo
Praxedes.
10
The allegations of the complaint were denied by defendant spouse, who interposed the defense that it was plaintiff who
left the conjugal home.
During the trial, wherein the plaintiff alone introduced oral as well as documentary evidence, the following facts were
established:.
Plaintiff and defendant were legally married on January 10, 1943 at Iriga, Camarines Sur. For failure to agree on how
they should live as husband and wife, the couple, on May 30, 1944, agreed to live separately from each other, which
status remained unchanged until the present. On April 3, 1948, plaintiff and defendant entered into an agreement
(Exhibit B), the significant portions of which are hereunder reproduced..
(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.
(c) That I, the, wife, is no longer entitled for any support from my husband or any benefits he may received
thereafter, nor I the husband is not entitled for anything from my wife.
(d) That neither of us can claim anything from the other from the time we verbally separated, that is from May
30, 1944 to the present when we made our verbal separation into writing.
In January, 1955, defendant began cohabiting with one Asuncion Rebulado and on September 1, 1955, said Asuncion
gave birth to a child who was recorded as the child of said defendant (Exh. C.).It was shown also that defendant and
Asuncion deported themselves as husband and wife and were generally reputed as such in the community.
After the trial, without the defendant adducing any evidence, the court a quo rendered judgment holding that the acts
of defendant constituted concubinage, a ground for legal separation. It however, dismissed the complaint by stating:
While this legal ground exist, the suit must be dismissed for two reasons, viz:
Under Art. 102 of the new Civil Code, 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 and
after the date when the cause occurred. The plaintiff became aware of the illegal cohabitation of her husband
with Asuncion Rebulado in January, 1955. The complaint was filed on April 24, 1956. The present action was,
therefore, filed out of time and for that reason action is barred.
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. As shown in
Exhibit B, the plaintiff has consented to the commission of concubinage by her husband. Her consent is clear
from the following stipulations:
(b) That both of us is free to get any mate and live with as husband and wife 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. (Exh. B).
This stipulation is an unbridled license she gave her husband to commit concubinage. Having consented to the
concubinage, the plaintiff cannot claim legal separation.
The above decision is now before us for review, plaintiff- appellant claiming that it was error for the lower court to have
considered that the period to bring the action has already elapsed and that there was consent on the part of the
plaintiff to the concubinage. The proposition, therefore, calls for the interpretation of the provisions of the law upon
which the lower court based its judgment of dismissal.
11
Article 102 of the new Civil Code provides:
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.
The very wording of the agreement Exhibit B. gives no room for interpretation other than that given by the trial judge.
Counsel in his brief submits that the agreement 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. We do not share appellant's view. Condonation and consent on the part of
plaintiff are necessarily the import of paragraph 6(b) of the agreement. The condonation and consent here are not only
implied but expressed. The law (Art. 100 Civil Code), specifically provides that legal separation may be claimed only by
the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Having
condoned and/or consented in writing, the plaintiff is now undeserving of the court's sympathy (People vs.
Scheneckenburger, 73 Phil., 413). Plaintiff's counsel even agrees that the complaint should be dismissed. He claims
however, that the grounds for the dismissal should not be those stated in the decision of the lower court, "but on the
ground that plaintiff and defendant have already been legally separated from each other, but without the marital bond
having been affected, long before the effectivity of the new Civil Code" (appellants brief, pp. 7-8). Again, we cannot
subscribed to counsel's contention, because it is contrary to the evidence.
Conformably with the foregoing, we find that the decision appealed from is in accordance with the evidence and the law
on the matter. The same is hereby affirmed, with costs.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, and Gutierrez David, JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. L-10033 December 28, 1956
BENJAMIN BUGAYONG, plaintiff-appellant,

vs.
LEONILA GINEZ, defendant-appellee.
Florencio Dumapias for appellant.

Numeriano Tanopo, Jr. for appellee.
FELIX, J.:
This is a case for legal separation filed in the Court of First Instance of Pangasinan wherein on motion of the defendant,
the case was dismissed. The order of dismissal was appealed to the Court of Appeals, but said Tribunal certified the
case to the Court on the ground that there is absolutely no question of fact involved, the motion being predicated on
the assumption as true of the very facts testified to by plaintiff-husband.
12
The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a serviceman in the United States Navy, was
married to defendant Leonila Ginez on August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately
after their marriage, the couple lived with their sisters who later moved to Sampaloc, Manila. After some time, or about
July, 1951, Leonila Ginez left the dwelling of her sister-in-law and informed her husband by letter that she had gone to
reside with her mother in Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a local
college there.
As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana Polangco (plaintiff's 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 which he did not even care to mention. On cross-examination, plaintiff admitted that his wife also informed him by
letter, which she claims to have destroyed, that a certain "Eliong" kissed her. All these communications prompted him in
October, 1951 to seek the advice of the Navy Chaplain as to the propriety of a legal separation between him and his
wife on account of the latter's alleged acts of infidelity, and he was directed to consult instead the navy legal
department.
In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he met in the house of one Mrs.
Malalang, defendant's godmother. She came along with him and both proceeded to the house of Pedro Bugayong, a
cousin of the plaintiff-husband, where they stayed and lived for 2 nights and 1 day as husband and wife. Then they
repaired to the plaintiff's house and again passed the night therein as husband and wife. On the second day, Benjamin
Bugayong tried to verify from his wife the truth of the information he received that she had committed adultery but
Leonila, instead of answering his query, merely packed up and left, which he took as a confirmation of the acts of
infidelity imputed on her. After that and despite such belief, plaintiff exerted efforts to locate her and failing to find her,
he went to Bacarra, Ilocos Norte, "to soothe his wounded feelings".
On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of Pangasinan a complaint for legal
separation against his wife, Leonila Ginez, who timely filed an answer vehemently denying the averments of the
complaint and setting up affirmative defenses. After the issues were joined and convinced that a reconciliation was not
possible, the court set the case for hearing on June 9, 1953. Plaintiff's counsel announced that he was to present 6
witnesses but after plaintiff-husband finished testifying in his favor, counsel for the defendant orally moved for the
dismissal of the complaint, but the Court ordered him to file a written motion to that effect and gave plaintiff 10 days to
answer the same.
The motion to dismiss was predicted on the following grounds: (1) Assuming arguendo the truth of the allegations of
the commission of "acts of rank infidelity amounting to adultery", the cause of action, if any, is barred by the statute of
limitations; (2) That under the same assumption, the act charged have been condoned by the plaintiff-husband; and (3)
That the complaint failed to state a cause of action sufficient for this court to render a valid judgment.
The motion to dismiss was answered by plaintiff and the Court, considering only the second ground of the motion to
dismiss i. e., condonation, ordered the dismissal of the action. After the motion for reconsideration filed by plaintiff was
denied, the case was taken up for review to the Court of Appeals, appellant's counsel maintaining that the lower court
erred:
(a) In so prematurely dismissing the case;
(b) In finding that there were condonation on the part of plaintiff-appellant; and
(c) In entertaining condonation as a ground for dismissal inasmuch as same was not raised in the answer or in
a motion to dismiss.
As the questions raised in the brief were merely questions of law, the Court of Appeals certified the case to Superiority.
The Civil Code provides:
13
ART. 97. A petition for legal separation may be filed:
(1) For adultery on the part of the wife and for concubinage for the part of the husband as defined on the
Penal Code; or
(2) An attempt by one spouse against the life of the other.
ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot by either of them. Collusion between the parties to obtain legal separation shall cause the
dismissal of the petition.
ART. 102. 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 and after the date when such
cause occurred.
As the only reason of the lower Court for dismissing the action was the alleged condonation of the charges of adultery
that the plaintiff-husband had preferred in the complaint against his wife, We will disregard the other 2 grounds of the
motion to dismiss, as anyway they have not been raised in appellant's assignment of errors.
Condonation is the forgiveness of a marital offense constituting a ground for legal separation or, as stated in I Bouver's
Law Dictionary, p. 585, condonation is the "conditional forgiveness or remission, by a husband or wife of a matrimonial
offense which the latter has committed". It is to be noted, however, that in defendant's answer she vehemently and
vigorously denies having committed any act of infidelity against her husband, and even if We were to give full weight to
the testimony of the plaintiff, who was the only one that had the chance of testifying in Court and link such evidence
with the averments of the complaint, We would have to conclude that the facts appearing on the record are far from
sufficient to establish the charge of adultery, or, as the complaint states, of "acts of rank infidelity amounting to
adultery" preferred against the defendant. Certainly, the letter that plaintiff claims to have received from his sister-in-
law Valeriana Polangco, which must have been too vague and indefinite as to defendant's infidelity to deserve its
production in evidence; nor the anonymous letters which plaintiff also failed to present; nor the alleged letter that,
according to plaintiff, his wife addressed to him admitting that she had been kissed by one Eliong, whose identity was
not established and which admission defendant had no opportunity to deny because the motion to dismiss was filed
soon after plaintiff finished his testimony in Court, do not amount to anything that can be relied upon.
But this is not a question at issue. In this appeal, We have to consider plaintiff's line of conduct under the assumption
that he really believed his wife guilty of adultery. What did he do in such state of mind. In August, 1952, he went to
Pangasinan and looked for his wife and after finding her they lived together as husband and wife for 2 nights and 1 day,
after which he says that he tried to verify from her the truth of the news he had about her infidelity, but failed to attain
his purpose because his wife, instead of answering his query on the matter, preferred to desert him, probably enraged
for being subjected to such humiliation. And yet he tried to locate her, though in vain. Now, do the husband's attitude
of sleeping with his wife for 2 nights despite his alleged belief that she was unfaithful to him, amount to a condonation
of her previous and supposed adulterous acts? In the order appealed from, the Court a quo had the following to say on
this point:
In the hearing of the case, the plaintiff further testified as follows:

Q. Now Mr. Bugayong, you have filed this action for legal separation from your wife. Please tell this Hon. Court
why you want to separate from your wife? — A. I came to know that my wife is committing adultery, I
consulted the chaplain and he told me to consult the legal adviser. (p. 11, t.s.n.)
Q. Did you finally locate her?--A. Four days later or on the fifth day since my arrival she went to the house of
our god-mother, and as a husband I went to her to come along with me in our house but she refused. (p. 12,
t.s.n.)lawphil.net
Q. What happened next? — A. I persuaded her to come along with me. She consented but I did not bring her
home but brought her to the house of my cousin Pedro Bugayong. (p. 12, t.s.n.)
14
Q. How long did you remain in the house of your cousin Pedro Bugayong? — A. One day and one night. (p. 12.
t.s.n.)
Q. That night when you stayed in the house of your cousin Pedro Bugayong as husband and wife, did you slept
together? — A. Yes, sir. (p. 19, t.s.n.)
Q. On the next night, when you slept in your own house, did you sleep together also as husband and wife? —
A. Yes, sir. (p. 19. t.s.n.)
Q. When was that? — A. That was in August, 1952. (p. 19 t.s.n.)
Q. How many nights did you sleep together as husband and wife? — A. Only two nights. (p. 19, t.s.n.)
The New Civil Code of the Philippines, in its Art. 97, says:
A petition for legal separation may be filed:
(1) For adultery on the part of the wife and concubinage on the part of the husband as defined on the Penal
Code.
and in its Art. 100 it says:lawphil.net
The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of
or consent to the adultery or concubinage. Where both spouses are offenders, legal separation cannot be
claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of
the petition.
A detailed examination of the testimony of the plaintiff-husband, especially those portions quoted above,
clearly shows that there was a condonation on the part of the husband for the supposed "acts of rank infidelity
amounting to adultery" committed by defendant-wife. Admitting for the sake of argument that the infidelities
amounting to adultery were committed by the defendant, a reconciliation was effected between her and the
plaintiff. The act of the latter in persuading her to come along with him, and the fact that she went with him
and consented to be brought to the house of his cousin Pedro Bugayong and together they slept there as
husband and wife for one day and one night, and the further fact that in the second night they again slept
together in their house likewise as husband and wife — all these facts have no other meaning in the opinion of
this court than that a reconciliation between them was effected and that there was a condonation of the wife
by the husband. The reconciliation occurred almost ten months after he came to know of the acts of infidelity
amounting to adultery.
In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that "condonation is implied from
sexual intercourse after knowledge of the other infidelity. such acts necessary implied forgiveness. It is
entirely consonant with reason and justice that if the wife freely consents to sexual intercourse after she has
full knowledge of the husband's guilt, her consent should operate as a pardon of his wrong."
In Tiffany's Domestic and Family Relations, section 107 says:
Condonation. Is the forgiveness of a marital offense constituting a ground for divorce and bars the
right to a divorce. But it is on the condition, implied by the law when not express, that the wrongdoer
shall not again commit the offense; and also that he shall thereafter treat the other spouse with
conjugal kindness. A breach of the condition will revive the original offense as a ground for divorce.
Condonation may be express or implied.
It has been held in a long line of decisions of the various supreme courts of the different states of the U. S.
that 'a single voluntary act of sexual intercourse by the innocent spouse after discovery of the offense is
ordinarily sufficient to constitute condonation, especially as against the husband'. (27 Corpus Juris Secundum,
section 61 and cases cited therein).
In the lights of the facts testified to by the plaintiff-husband, of the legal provisions above quoted, and of the
various decisions above-cited, the inevitable conclusion is that the present action is untenable.
Although no acts of infidelity might have been committed by the wife, We agree with the trial judge that the conduct of
the plaintiff-husband above narrated despite his belief that his wife was unfaithful, deprives him, as alleged the
15
offended spouse, of any action for legal separation against the offending wife, because his said conduct comes within
the restriction of Article 100 of the Civil Code.
The only general rule in American jurisprudence is that any cohabitation with the guilty party, after the commission of
the offense, and with the knowledge or belief on the part of the injured party of its commission, will amount to
conclusive evidence of condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73).
If there had been cohabitation, to what extent must it be to constitute condonation?
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 (27 C. J. S., section 6-d).
A divorce suit will not be granted for adultery where the parties continue to live together after it was known
(Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac. 974) or there is sexual intercourse after knowledge of
adultery (Rogers vs. Rogers, 67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50
Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins, 193 So. 702), and many
others. The resumption of marital cohabitation as a basis of condonation will generally be inferred, nothing
appearing to the contrary, from the fact of the living together as husband and wife, especially as against the
husband (Marsh vs. Marsh, 14 N. J. Eq. 315).
There is no ruling on this matter in our jurisprudence but we have no reason to depart from the doctrines laid down in
the decisions of the various supreme courts of the United States above quoted.
There is no merit in the contention of appellant that the lower court erred in entertaining condonation as a ground for
dismissal inasmuch as same was not raised in the answer or in a motion to dismiss, because in the second ground of
the motion to dismiss. It is true that it was filed after the answer and after the hearing had been commenced, yet that
motion serves to supplement the averments of defendant's answer and to adjust the issues to the testimony of plaintiff
himself (section 4, Rule 17 of the Rules of Court).
Wherefore, and on the strength of the foregoing, the order appealed from is hereby affirmed, with costs against
appellant. It is so ordered.
Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L. and Endencia, JJ., concur.
G.R. No. L-30977 January 31, 1972
CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ, petitioner-appellant, vs. EUFEMIO S. EUFEMIO alias
EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner-appellant.
D. G. Eufemio for respondent-appellee.
REYES J.B.L., J.:
Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the
Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for legal separation
on the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the
case, abated the cause of action as well as the action itself. The dismissal order was issued over the objection of
Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to
have the case prosecuted to final judgment.
16
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging, in
the main, that they were married civilly on 21 September 1934 and canonically on 30 September 1934; that they had
lived together as husband and wife continuously until 1943 when her husband abandoned her; that they had no child;
that they acquired properties during their marriage; and that she discovered her husband cohabiting with a Chinese
woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of
legal separation, which, among others, would order that the defendant Eufemio S. Eufemio should be deprived of his
share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged affirmative and special
defenses, and, along with several other claims involving money and other properties, counter-claimed for the
declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting
marriage, celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before the trial could
be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18 June 1969), petitioner
Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for petitioner duly notified the court of her
death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1on two (2) grounds, namely:
that the petition for legal separation was filed beyond the one-year period provided for in Article 102 of the Civil Code;
and that the death of Carmen abated the action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario
Lapuz. Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the case. 2In the body of the order, the court
stated that the motion to dismiss and the motion for substitution had to be resolved on the question of whether or not
the plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider
but the motion was denied on 15 September 1969.
After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and
domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was given due course
and answer thereto was filed by respondent, who prayed for the affirmance of the said order.
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them
after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by praying for the
affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the
Eufemio-Lapuz marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute - for the lower court did not act on the motion
for substitution) stated the principal issue to be as follows:
When an action for legal separation is converted by the counterclaim into one for a declaration of nullity of a marriage,
does the death of a party abate the proceedings?
The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration
of nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has acquiesced to the
dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal separation and the
counterclaim to declare the nullity of the self same marriage can stand independent and separate adjudication. They are
not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the
counterclaim, for legal separation pre-supposes a valid marriage, while the petition for nullity has a voidable marriage
as a pre-condition.
17
The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation,
abate the action? If it does, will abatement also apply if the action involves property rights?
An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there
being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines recognizes this in its
Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by
providing that the spouses can, by their reconciliation, stop or abate the proceedings and even rescind a decree of legal
separation already rendered. Being personal in character, it follows that the death of one party to the action causes the
death of the action itself - actio personalis moritur cum persona.
... When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved. The heirs cannot
even continue the suit, if the death of the spouse takes place during the course of the suit (Article 244, Section 3). The
action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. H. 1933, 332.") 4
Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding
brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence
of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death
has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the
persons of the parties to the action and of the subject-matter of the action itself. For this reason the courts are almost
unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action. 1
Corpus Juris, 208; Wren v. Moss, 2 Gilman, 72; Danforth v. Danforth, 111 Ill. 236; Matter of Grandall, 196 N.Y. 127, 89
N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v. Strickland,
80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac.
667, 49 L.R.A. 141. 5
The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101 SW 412;
1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows that they are solely the effect of the
decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree. On the
point, Article 106 of the Civil Code provides: .
Art. 106. The decree of legal separation shall have the following effects
(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed; .
(2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated,
but the offending spouse shall have no right to any share of the profits earned by the partnership or community,
without prejudice to the provisions of article 176
(3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in
the interest of said minors, for whom said court may appoint a guardian;
(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession.
Moreover, provisions in favor of the offending spouse made in the will of the innocent one shall be revoked by
operation of law.
From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute
community of property), the loss of right by the offending spouse to any share of the profits earned by the partnership
or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of
testamentary provisions in favor of the offending spouse made by the innocent one, are all rights and disabilities that,
by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and
intent, such claims and disabilities are difficult to conceive as assignable or transmissible. Hence, a claim to said rights
18
is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule 3, of the Rules of Court, to
warrant continuation of the action through a substitute of the deceased party.
Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper
notice, the legal representative of the deceased to appear and to be substituted for the deceased, within a period of
thirty (30) days, or within such time as may be granted...
The same result flows from a consideration of the enumeration of the actions that survive for or against administrators
in Section 1, Rule 87, of the Revised Rules of Court:
SECTION 1. Actions which may and which may not be brought against executor or administrator. No action upon a
claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator;
but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and
actions to recover damages for an injury to person or property, real or personal, may be commenced against him.
Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration.
A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are
involved, is that these rights are mere effects of decree of separation, their source being the decree itself; without the
decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in
expectation. If death supervenes during the pendency of the action, no decree can be forthcoming, death producing a
more radical and definitive separation; and the expected consequential rights and claims would necessarily remain
unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to Carmen Lapuz,
it is apparent that such action became moot and academic upon the death of the latter, and there could be no further
interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights
acquired by either party as a result of Article 144 of the Civil Code of the Philippines 6 could be resolved and
determined in a proper action for partition by either the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of
the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven
consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as
soon as one of the three persons involved had died, as provided in Article 87, paragraph 2, of the Code, requiring that
the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the
liquidation of any conjugal partnership that might have resulted from such voidable marriage must be carried out "in
the testate or intestate proceedings of the deceased spouse", as expressly provided in Section 2 of the Revised Rule 73,
and not in the annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed. No
special pronouncement as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.
19
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-33352 December 20, 1974
TEODORO E. LERMA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and CONCEPCION DIAZ, respondents.
Salonga, Ordoñez, Yap, Parlade & Associates for petitioner.
Villareal, Matic & Associates for private respondent.
MAKALINTAL, C.J.:p
Before Us for resolution are: (1) the petition for review by certiorari filed by Teodoro E. Lerma on March 21, 1971 to set
aside the resolution of the respondent Court of Appeals in CA-G.R. No. 44906-R dismissing his petition for certiorari
and prohibition with preliminary injunction filed therein; and (2) the petitioner's motion for reconsideration of our
resolution dated February 8, 1974 denying his urgent motion for the issuance of a writ of preliminary injunction and/or
restraining order to enjoin the enforcement of certain orders of the Juvenile and Domestic Relations Court of Quezon
City (hereinafter referred to as the lower court) ordering the petitioner to pay support pendente lite to Concepcion Diaz,
the private respondent herein.
Petitioner Lerma and respondent Diaz are husband and wife. They married on May 19, 1951. On August 22, 1969 the
petitioner filed a complaint for adultery against the respondent and a certain Teodoro Ramirez (Crim. Case No. 0519 of
the Court of First Instance of Rizal). On November 18, 1969 the respondent filed with the lower court, presided by
Judge Leonor Ines Luciano, a complaint1 against the petitioner for legal separation and/or separation of properties,
custody of their children2 and support, with an urgent petition for support pendente lite for her and their youngest son,
Gregory, who was then and until now is in her custody. The respondent's complaint for legal separation is based on two
grounds: concubinage and attempt against her life.
The petitioner filed his opposition to the respondent's application for support pendente lite, setting up as defense the
adultery charge he had filed against the respondent.
Judge Luciano granted the respondent's application for support pendente lite in an order dated December 24, 1969,
which she amended in an order dated February 15, 1970 to the following effect: (1) the respondent was declared
entitled to support pendente lite from the date of the filing of the complaint; and (2) the amount of such monthly
support was reduced from P2,250.00 to P1,820.00.
On March 12, 1970 the petitioner filed with respondent Court of Appeals a petition for certiorari and prohibition with
preliminary injunction to annul the aforementioned orders on the ground that they were issued with grave abuse of
discretion. The next day the respondent court gave due course to the petition and issued a writ of preliminary
injunction to stop Judge Luciano from enforcing said orders.
20
The respondent court, in its decision of October 8, 1970, set aside the assailed orders and granted the petitioner an
opportunity to present evidence before the lower court in support of his defense against the application for
The respondent moved to reconsider the decision on the ground that the petitioner had not asked that he be allowed to
present evidence in the lower court. The respondent court, in its resolution of January 20, 1971, set aside the decision
of October 8 and rendered another, dismissing the petition. This is now the subject of the instant proceeding for
review.
On January 23, 1974 the petitioner filed an urgent motion for a writ of preliminary injunction and/or restraining order,
alleging (1) that during the pendency of this appeal and until December 5, 1973 the respondent had never sought the
enforcement of the assailed orders of the lower court granting support pendente lite; (2) that on December 5, 1973 the
respondent filed with the lower court an urgent motion praying that the petitioner be ordered to pay the awarded
support pendente lite, both current and in arrears, on the ground that in the absence of an injunction from this Court
the assailed orders should be executed; (3) that the petitioner filed his opposition to the motion, pointing out that for
the previous three years the respondent did not ask for the enforcement of the orders and her belated move came only
"after petitioner had filed new adultery charges against her and her second paramour" and after the petitioner had
sought custody of their son Gregory; (4) that in connection with the first adultery charge, the respondent and her co-
accused, Teddy Ramirez, had been convicted by the Court of First Instance of Rizal in its decision rendered on
September 26, 1972 and said judgment of conviction was pending appeal in the Court of Appeals; (5) that Judge
Luciano issued an order dated January 19, 1974, ordering the petitioner to pay the respondent the awarded
support pendente lite within 15 days; and (6) that unless the lower court was enjoined from enforcing its assailed
orders, the present petition would be rendered moot and academic, to the prejudice of the petitioner.
On January 28, 1974 this Court, acting on the petitioner's motion, resolved "to issue a temporary restraining order
effective immediately and until further orders from this Court." The order was addressed to Judge Luciano, her agents
and representatives.
Required to comment on the petitioner's urgent motion for preliminary injunction, the respondent filed an opposition,
with a prayer for the immediate lifting of the temporary restraining order issued ex-parte. The opposition reiterated the
grounds of her motion dated December 5, 1973 filed in the lower court, to wit: (1) that an order granting
support pendente lite, although interlocutory, is immediately executory even if appealed, unless enjoined; (2) that the
dismissal of the petition by the respondent Court of Appeals rendered functus oficio the writ of preliminary injunction it
had previously issued; and (3) that under Article 292 of the New Civil Code, which provides that "during the
proceedings for legal separation, or for annulment of marriage, the spouses and children shall be supported from the
conjugal partnership property ...," such support is mandatory even if there be a showing that the wife is guilty of
adultery.
In a minute resolution dated February 8, 1974 We denied the petitioner's urgent motion for a writ of preliminary
injunction. On February 28, 1974 the petitioner filed this instant motion for reconsideration. On March 6, 1974 We
issued another resolution setting aside the resolution of February 8, 1974 and reinstated the temporary restraining
order previously issued until further orders. On the same day the respondent filed her opposition to the motion for
reconsideration and later asked that it be set for oral argument. The petitioner's pending motion was set for hearing on
April 22, 1974 and then reset for May 20, 1974. On the latter date counsel for both parties appeared. In lieu, however,
of oral argument the Court allowed them to file memoranda.
The petition assails the resolution of the respondent Court of Appeals on two main grounds:
I. IT IS ERROR FOR THE COURT OF APPEALS TO HOLD THAT THE LOWER COURT, IN GRANTING
SUPPORT PENDENTE LITE TO RESPONDENT CONCEPCION DIAZ, DID NOT COMMIT A GRAVE ABUSE OF
DISCRETION.
21
II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE PROVISIONS OF ARTICLE 292 OF THE CIVIL
CODE MAKE IT MANDATORY DURING THE PENDENCY OF LEGAL SEPARATION PROCEEDINGS TO
GRANT SUPPORT PENDENTE LITE TO HEREIN RESPONDENT.
The foregoing alleged errors refer to the two aspects, procedural and substantive, of the disputed orders granting
As correctly stated by the respondent court in its decision (which was later reconsidered in its resolution under review),
the procedural law on support pendente lite is Rule 61 of the Revised Rules of Court, specifically Section 5 thereof,
which partly provides:
The court shall determine provisionally the pertinent facts, and shall render such order as equity and
justice may require, having due regard to the necessities of the applicant, the means of the adverse
party, the probable outcome of the case, and such other circumstances as may aid in the proper
elucidation of the questions involved. ...
The petitioner maintains that the above-quoted provision was disregarded by the lower court when it issued the
disputed orders without provisionally determining the pertinent facts of the case, particularly insofar as they might have
a bearing on its probable outcome, merely relying on the bare allegations of the complaint. The petitioner also claims
he was deprived of the opportunity to present evidence in support of his defense of adultery against the respondent's
application for support pendente lite.
The question of whether or not the petitioner should be allowed to present evidence in the lower court in support of
that his wife had committed adultery has become academic. The petitioner, in his motion filed February 28, 1974 for
reconsideration of the denial by this Court of his petition for preliminary injunction, manifested that on September 26,
1972 the court of First Instance of Rizal decided the adultery case of the respondent and found her and her co-accused,
Teodoro Ramirez, guilty of the charge, sentencing them to a term of imprisonment. This has not been denied by the
respondent. Neither is it denied that on March 30, 1970, as a result of the adulterous relations with Teodoro Ramirez
for which she was later on convicted, the said respondent gave birth prematurely to a baby boy, who however died the
same day. When the respondent entered the hospital for delivery, she registered under the assumed name of "Gloria
Santos," and when the child died had it falsely identified in the death certificate as the child of one Rosario R. Salita, a
close friend of hers. For the falsification thus committed Rosario E. Salita was criminally charged and convicted,
although the respondent herself was acquitted on reasonable doubt. The petitioner's motion of February 28 also states,
without denial on the part of the respondent, that after Teodoro Ramirez another man, this time a Manila policeman by
the name of Jose Gochangco, became her paramour, as a consequence of which criminal charges of adultery have been
filed against them before the Fiscal of Manila. Photographs of the two, showing them in intimate pose, were submitted
to this Court. Their veracity has not been disputed.
The legal issue posed by the foregoing facts is whether adultery is a good defense against the respondent's claim for
support pendente lite. In Quintana v. Lerma, 24 Phil. 285, which was an action by the wife against the husband for
support, based upon a written contract, this Court held that adultery is a good defense. This ruling was reiterated in the
subsequent cases of Sanchez v. Zulueta, 68 Phil. 110, and Mangoma v. Macadaeg, et al., 90 Phil. 508. See also Olayvar
v. Olayvar, 98 Phil. 52.
The respondent Court of Appeals, in upholding the questioned orders of the lower court, relied on Article 292 of the
Civil Code, which reads:
ART. 292. During the proceedings for legal separation, or for annulment of marriage, the spouses
and children shall be supported from the conjugal partnership property. After the final judgment of
legal separation, or of annulment of marriage, the obligation of mutual support between the spouses
ceases. However, in case of legal separation, the court may order that the guilty spouse shall give
support to the innocent one, the judgment specifying the terms of such order.
22
It is suggested that while adultery may be a defense in an action for personal support, that is, support of the wife by the
husband from his own funds, it is not a defense when the support is to be taken from the conjugal partnership
property.
We do not see that the distinction is material in this case. In the first place Article 292 is not in itself the source of the
legal right to receive support. It merely states that the support, not only of the spouses but also of the children, shall be
taken from the conjugal property during the pendency of the legal separation proceeding. It does not preclude the loss
of such right in certain cases. In the second place, the said article contemplates the pendency of a court action and,
inferentially at least, a prima facie showing that the action will prosper. For if the action is shown to be groundless the
mere filing thereof will not necessarily set Article 292 in operation. This is also the sense of Section 5 of Rule 61, supra,
which requires, among other things, when support pendente lite is applied for, that the court determine provisionally
"the probable outcome of the case."
Article 100 of the 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 ... (and) where both spouses are offenders,
a legal separation cannot be claimed by either of them ..."
In a provisional sense at least, within the meaning of Rule 61 (Section 5), the probable failure of the respondent's suit
for legal separation can be foreseen since she is not an innocent spouse, having been convicted of adultery by the Court
of First Instance. It is true that the judgment of conviction is on appeal in the Court of Appeals, but the same
undoubtedly satisfies the standard of provisional showing set by the aforesaid Rule. If legal separation cannot be
claimed by the guilty spouse in the first place, the fact that an action for that purpose is filed anyway should not be
permitted to be used as a means to obtain support pendente lite, which, without such action, would be denied on the
strength of the decisions of this Court recognizing adultery as a good defense. Otherwise, as pointed out by the
petitioner, all that an erring spouse has to do to circumvent such defense would be to file a suit for legal separation no
matter how groundless.
The right to separate support or maintenance, even from the conjugal partnership property, presupposes the existence
of a justifiable cause for the spouse claiming such right to live separately. This is implicit in Article 104 of the Civil
Code, which states that after the filing of the petition for legal separation the spouses shall be entitled to live separately
from each other. A petition in bad faith, such as that filed by one who is himself or herself guilty of an act which
constitutes a ground for legal separation at the instance of the other spouse, cannot be considered as within the
intendment of the law granting separate support. In fact under Article 303 of the same Code the obligation to give
support shall cease "when the recipient, be he a forced heir or not, has committed some act which gives rise to
disinheritance;" and under Article 921 one of the causes for disinheriting a spouse is "when the spouse has given cause
for legal separation." The loss of the substantive right to support in such a situation is incompatible with any claim for
What has been said above, of course, is not meant to be a prejudgment of either the legal separation proceeding
pending in the lower court or the criminal case for adultery pending in the Court of Appeals. It is to be understood only
in the light of Rule 61, Section 5, of the Rules of Court, which specifically governs the subject of support pendente lite.
WHEREFORE, the resolution of respondent Court of Appeals of January 20, 1971 and the orders of respondent Juvenile
and Domestic Relations Court herein complained of, dated December 24, 1969 and February 15, 1970, all are set aside
and their enforcement enjoined, without prejudice to such judgment as may be rendered in the pending action for legal
separation between the parties. No pronouncement as to costs.
Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.
Esguerra, J., took no part.
23
SUPREME COURT
Manila
EN BANC
G.R. No. L-37720 March 27, 1933
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
URSULA SENSANO and MARCELO RAMOS, defendants-appellants.
Emilio L. Medina for appellants.

Attorney-General Jaranilla for appellee.
BUTTE, J.:
The appellants were sentenced by the Court of First Instance of Ilocos Norte for the crime of adultery to three years, six
months and twenty-one days of prision correccional and appealed to this court, assigning the following error: "The
court below erred in not holding that the offended husband contested to the adultery committed by his wife Ursula
Sensano in that he refused to live with her after she extinguished her previous sentence for the same offense, and by
telling her then that she could go where she wanted to and do what she pleased, and by his silence for seven years
notwithstanding that he was informed of said adultery."
The facts briefly stated as follows:
Ursula Sensano and Mariano Ventura were married on April 29, 1919. They had one child. Shortly after the birth of his
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 (in 1924), he filed a charge
against his wife and Marcelo Ramos for adultery and both were sentenced to four months and one day of 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 this 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 it he would take care her back. He refused to pardon her 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 coaccused 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 she 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 under the provisions of Act No. 2710.
Article 344 of the Revised Penal Code, paragraphs 1 and 2, are as follows:
Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. —
The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse.
The offended party cannot institute criminal prosecution without including both the guilty parties, if they are
both alive, nor, in any case, if he shall have consented or pardoned the offenders.
24
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.
The judgment below is reversed with costs de oficio.
Street and Ostrand, JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. L-10699 October 18, 1957
WILLIAM H. BROWN, plaintiff-appellant,

vs.
JUANITA YAMBAO, defendant-appellee.
Jimenez B. Buendia for appellant.

Assistant City Fiscal Rafel A. Jose for appellee.
REYES, J.B.L., J.:
On July 14, 1955, William H. Brown filed suit in the Court of First Instance of Manila to obtain legal separation from his
lawful wife Juanita Yambao. He alleged under oath that while interned by the Japanese invaders, from 1942 to 1945, at
the University of Sto. Tomas internment camp, his wife engaged in adulterous relations with one Carlos Field of whom
she begot a baby girl that Brown learned of his wifes misconduct only in 1945, upon his release from internment; that
thereafter the spouse lived separately and later executed a document (Annex A ) liquidating their conjugal partnership
and assigning certain properties to the erring wife as her share. The complaint prayed for confirmation of the
liquidation agreement; for custody of the children issued of the marriage; that the defendant be declared disqualified to
succeed the plaintiff; and for their remedy as might be just and equitable.
Upon petition of the plaintiff, the court subsequently declared the wife in default, for failure to answer in due time,
despite service of summons; and directed the City Fiscal or his representatives to—
investigate, in accordance with Article 101 of the Civil Code, whether or not a collusion exists between the
parties and to report to this Court the result of his investigation within fifteen (15) days from receipt of copy of
this order. The City Fiscal or his representative is also directed to intervene in the case in behalf of the State.
(Rec. App. p. 9).
As ordered, Assistant City Fiscal Rafael Jose appeared at the trial, and cross-examined plaintiff Brown. His questions
(strenuously objected to by Brown's counsel) elicited the fact that after liberation, Brown had lived maritally with
another woman and had begotten children by her. Thereafter, the court rendered judgment denying the legal
25
separation asked, on the ground that, while the wife's adultery was established, Brown had incurred in a misconduct of
similar nature that barred his right of action under Article 100 of the new Civil Code, providing:
ART. 100. The legal separation may be claimed only by the innocent spouse, provided there has been no
condonation or of consent to the adultery or concubinage. Where both spouses are offenders, a legal
separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall
cause the dismissal of the petition.
that there had been consent and connivance, and because Brown's action had prescribed under Article 102 of the same
Code:
ART. 102 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 and after date when such cause
occurred.
since the evidence showed that the learned of his wife's infidelity in 1945 but only filed action in 1945.
Brown appeared to this Court, assigning the following errors:
The court erred in permitting the Assistant Fiscal Rafel Jose of Manila to act as counsel for the defendant, who
defaulted.
The court erred in declaring that there was condonation of or consent to the adultery.
The court erred in dismissing the plaintiff's complaint.
Appellant Brown argues that in cross-examining him with regard to his marital relation with Lilia Deito, who was not his
wife, the Assistant Fiscal acted as consel for the defaulting wife, "when the power of the prosecuting officer is limited to
finding out whether or not there is collusion, and if there is no collusion, which is the fact in the case at bar, to
intervene for the state which is not the fact in the instant case, the truth of the matter being that he intervened for
Juanita Yambao, the defendant-appellee, who is private citizen and who is far from being the state.".
The argument is untenable. Collusion in matrimonial cases being "the act of married persons in procuring a divorce by
mutual consent, whether by preconcerted commission by one of a matrimonial offense, or by failure, in pursuance of
agreement to defend divorce proceedings" (Cyclopedia Law Dictionary; Nelson, Divorce and Separation, Section 500), it
was legitimate for the Fiscal to bring to light any circumstances that could give rise to the inference that the wife's
default was calculated, or agreed upon, to enable appellant to obtain the decree of legal separation that he sought
without regard to the legal merits of his case. One such circumstance is obviously the fact of Brown's cohabitation with
a woman other than his wife, since it bars him from claiming legal separation by express provision of Article 100 of the
new Civil Code. Wherefore, such evidence of such misconduct, were proper subject of inquiry as they may justifiably be
considered circumstantial evidence of collusion between the spouses.
The policy of Article 101 of the new Civil Code, calling for the intervention of the state attorneys in case of uncontested
proceedings for legal separation (and of annulment of marriages, under Article 88), is to emphasize that marriage is
more than a mere contract; that it is a social institution in which the state is vitally interested, so that its continuation or
interruption cannot be made depend upon the parties themselves (Civil Code, Article 52; Adong vs, Cheong Gee, 43
Phil, 43; Ramirez vs. Gmur 42 Phil. 855; Goitia vs. Campos, 35 Phil. 252). It is consonant with this policy that the injury
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.
The court below also found, and correctly held that the appellant's action was already barred, because Brown did not
petition for legal separation proceedings until ten years after he learned of his wife's adultery, which was upon his
release from internment in 1945. Under Article 102 of the new Civil Code, action for legal separation can not be filed
26
except within one (1) year from and after the plaintiff became cognizant of the cause and within five years from and
after the date when such cause occurred. Appellant's brief does not even contest the correctness of such findings and
conclusion.
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.
Hence, there being at least two well established statutory grounds for denying the remedy sought (commission of
similar offense by petitioner and prescription of the action), it becomes unnecesary to delve further into the case and
ascertain if Brown's inaction for ten years also evidences condonation or connivance on his part. Even if it did not, his
situation would not be improved. It is thus needless to discuss the second assignment of error.
The third assignment of error being a mere consequence of the others must necessarily fail with them.
The decision appealed from is affirmed, with costs against appellant. So ordered.
Bengzon, Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Endencia and Felix,
JJ., concur.
PATERNITY AND FILIATION
LEGITIMATE CHILDREN

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-28248 March 12, 1975
LEONORA PERIDO, joined by husband MANUEL PIROTE, INOCENCIA PERIDO, ALBENIO PERIDO, PAULINO PERIDO, LETIA
PERIDO, joined by husband BIENVENIDO BALYAO, LETICIA PERIDO, joined by husband FELIX VILLARUZ, EUFEMIA PERIDO,
CONSOLACION PERIDO, ALFREDO PERIDO, GEORGE PERIDO, AMPARO PERIDO, WILFREDO PERIDO, MARGARITA PERIDO,
ROLANDO SALDE and EDUARDO SALDE, petitioners,
vs.
MARIA PERIDO, SOFRONIO PERIDO, JUAN A. PERIDO, GONZALO PERIDO, PACITA PERIDO, MAGDALENA PERIDO, ALICIA
PERIDO, JOSEFINA PERIDO, FE PERIDO, TERESA PERIDO and LUZ PERIDO, respondents.
Januario L. Jison, Jr. for petitioners.
Antonio T. de Jesus for respondents.
MAKALINTAL, C.J.:ñé+.£ªwph!1
This is an appeal by certiorari from the decision of the Court of Appeals in its CA-G.R. No. 37034-R, affirming the
decision of the Court of First Instance of Negros Occidental in Civil Case No. 6529.
27
Lucio Perido of Himamaylan, Negros Occidental, married twice during his lifetime. His first wife was Benita Talorong,
with whom he begot three (3) children: Felix, Ismael, and Margarita. After Benita died Lucio married Marcelina Baliguat,
with whom he had five (5) children: Eusebio, Juan, Maria, Sofronia and Gonzalo. Lucio himself died in 1942, while his
second wife died in 1943.
Of the three (3) children belonging to the first marriage only Margarita Perido is still living. Her deceased brother, Felix
Perido, is survived by his children Inocencia, Leonora, Albinio, Paulino, Letia, Leticia, and Eufemia, all surnamed Perido.
Nicanora Perido, another daughter of Felix, is also deceased, but is survived by two (2) sons, Rolando and Eduardo
Salde.
Margarita's other deceased brother, Ismael Perido, is survived by his children, namely: Consolacion, Alfredo, Wilfredo,
and Amparo. Susano Perido, another son of Ismael, is dead, but survived by his own son George Perido.
Of Lucio Perido's five (5) children by his second wife, two are already dead, namely: Eusebio and Juan. Eusebio is
survived by his children Magdalena Perido, Pacita Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa Perido, and Luz
Perido, while Juan is survived by his only child, Juan A. Perido.
On August 15, 1960 the children and grandchildren of the first and second marriages of Lucio Perido executed a
document denominated as "Declaration of Heirship and Extra-judicial Partition," whereby they partitioned among
themselves Lots Nos. 458, 471, 506, 511, 509, 513-B, 807, and 808, all of the Cadastral Survey of Himamaylan,
Occidental Negros.
Evidently the children belonging to the first marriage of Lucio Perido had second thoughts about the partition. On
March 8, 1962 they filed a complaint in the Court of First Instance of Negros Occidental, which complaint was later
amended on February 22, 1963, against the children of the second marriage, praying for the annulment of the so-
called "Declaration of Heirship and Extra-Judicial Partition" and for another partition of the lots mentioned therein
among the plaintiffs alone. They alleged, among other things, that they had been induced by the defendants to execute
the document in question through misrepresentation, false promises and fraudulent means; that the lots which were
partitioned in said document belonged to the conjugal partnership of the spouses Lucio Perido and Benita Talorong,
and that the five children of Lucio Perido with Marcelina Baliguat were all illegitimate and therefore had no successional
rights to the estate of Lucio Perido, who died in 1942. The defendants denied the foregoing allegations.
After trial the lower court rendered its decision dated July 31, 1965, annulling the "Declaration of Heirship and Extra-
Judicial Partition." However, it did not order the partition of the lots involved among the plaintiffs exclusively in view of
its findings that the five children of Lucio Perido with his second wife, Marcelina Baliguat, were legitimate; that all the
lots, except Lot No. 458, were the exclusive properties of Lucio Perido; and that 11/12 of Lot No. 458 belonged to the
conjugal partnership of Lucio Perido and his second wife, Marcelina Baliguat. The dispositive portion of the decision
reads as follows:têñ.£îhqwâ£
IN VIEW OF ALL THE FOREGOING, the Court renders judgment as follows: declaring the following as
the legitimate children and grandchildren and heirs of Lucio Perido and Benita Talorong: Felix Perido,
deceased; grandchildren: Inocencia Perido, Leonora Perido, Albinio Perido, Paulino Perido, Letia
Perido, Leticia Perido, Eufemia Perido; Nicanora Perido, deceased; great grandchildren: Rolando Salde
and Eduardo Salde; Ismael Perido, deceased; grandchildren: Consolacion Perido, Alfredo Perido,
Susano Perido, deceased; great grandson: George Perido; Amparo Perido and Wilfredo Perido; and,
Margarita Perido; (2) declaring the following as the legitimate children and grandchildren and heirs of
Lucio Perido and Marcelina Baliguat: Eusebio Perido, deceased; grandchildren: Pacita Perido,
Magdalena Perido, Alicia Perido, Josefina Perido, Fe Perido, Teresa Perido, and Luz Perido; Juan B.
Perido, deceased; grandson, Juan A. Perido; Maria Perido; Sofronia Perido; and Gonzalo Perido; (3)
declaring all lots (471, 506, 511, 509, 513-part, 807, and 808) except Lot No. 458 as exclusive
properties of Lucio Perido so that each of them should be divided into eight (8) equal parts: 1/8
belongs to Felix Perido, but because of his death leaving eight (8) children, the same should be
divided and alloted as follows: 1/64 to Inocencia Perido of age, widow; 1/64 to Leonora Perido, of
age, married to Manuel Pirote; 1/64 to Albinio Perido, of age, married to Honorata Villasana; 1/64 to
28
Paulino Perido, of age, married to Norma Villalba 1/64 to Letia Perido, of age, married to Bienvenido
Balyac; 1/64 to Leticia Perido, of age, married to Felix Villaruz; 1/64 to Eufemia Perido, of age,
single; 1/64 to Nicanora Perido, but because she is now dead the same should be divided and alloted
as follows: 1/128 to Rolando Salde, of age, single; and 1/128 to Eduardo Salde, of age, single; 1/8
belongs to Ismael Perido, but because he is already dead leaving five children, the same should be
divided and alloted as follows: 1/40 to Consolacion Perido, of age, widow; 1/40 to Alfredo Perido, of
age married to Trinidad Tamargo; 1/40 to Susano Perido, but he is already dead with one son, the
same goes to George Perido, of age, single; 1/40 to Wilfredo Perido, of age, single; 1/8 belongs to
Margarita Perido, of age, widow; 1/8 belongs to Eusebio Perido, but because he is already dead with
seven children, the same should be divided and alloted as follows: 1/56 goes to Pacita Perido, of age,
single; 1/56 goes to Magdalena Perido, of age, single; 1/56 goes to Alicia Perido, of age, married to
Isaias Ruiz; 1/56 goes to Josefina Perido, of age, married to Leopoldo Doloroso; 1/56 goes to Fe
Perido, of age, single; 1/56 goes to Teresa Perido, of are single; 1/56 goes to Luz Perido, of age,
married to Fidel de la Cruz; 1/8 belongs to Juan B. Perido, but because he is already dead with one
child, the same 1/8 goes to Juan A. Perido, of age, married to Salud Salgado 1/8 goes to Maria
Perido. of age, married to Julio Pirote; 1/8 goes to Sofronia Perido, of age, widow; and, 1/8 goes to
Gonzalo Perido, of age, married to Lacomemoracion Estiller; (4) declaring the 11/12 shares in Lot No.
458 as conjugal partnership property of Lucio Perido and Marcelina Baliguat, which should be divided
and alloted as follows: 11/24 goes to Lucio Perido to be divided into eight (8) equal shares and
11/24 goes to Marcelina Baliguat to be divided into five (5) equal shares or 11/120 for each of the
children and again to be divided by the children of each child now deceased; (6) declaring Fidel
Perido owner of 1/12 share in Lot 458 to be divided among his heirs to be determined accordingly
later; and (6) declaring null and void Exhibit "J" of the plaintiffs which is Exhibit "10" for the
defendants, without costs and without adjudication with respect to the counterclaim and damages,
they being members of the same family, for equity and justice.
The plaintiffs appealed to the Court of Appeals, alleging that the trial court erred: (1) in declaring that Eusebio Perido,
Juan Perido, Maria Perido, Sofronia Perido and Gonzalo Perido, were the legitimate children of Lucio Perido and his
second wife, Marcelina Baliguat; (2) in declaring that Lucio Perido was the exclusive owner of Lots Nos. 471, 506, 511,
509, 513-Part, 807, and 808 of Cadastral Survey of Himamaylan, Negros Occidental, and in not declaring that said lots
were the conjugal partnership property of Lucio Perido and his first wife, Benita Talorong; and (3) in holding that 11/12
of Lot 458 was the conjugal partnership property of Lucio Perido and Marcelina Baliguat.
Finding no reversible error in the decision of the lower court, the Court of Appeals affirmed it in toto. The appellants
moved to reconsider but were turned down. Thereupon they instituted he instant petition for review reiterating in effect
the assignments of error and the arguments in the brief they submitted to the appellate court.
The first issue pertains to the legitimacy of the five children of Lucio Perido with Marcelina Baliguat. The petitioners
insist that said children were illegitimate on the theory that the first three were born out of wedlock even before the
death of Lucio Perido's first wife, while the last two were also born out of wedlock and were not recognized by their
parents before or after their marriage. In support of their contention they allege that Benita Talorong died in 1905, after
the first three children were born, as testified to by petitioner Margarita Perido and corroborated by petitioner Leonora
Perido; that as late as 1923 Lucio Perido was still a widower, as shown on the face of the certificates of title issued to
him in said year; and Lucio Perido married his second wife, Marcelina Baliguat, only in 1925, as allegedly established
through the testimony of petitioner Leonora Perido.
The petition cannot be sustained. The Court of Appeals found that there was evidence to show that Lucio Perido's wife,
Benita Talorong, died during the Spanish regime. This finding conclusive upon us and beyond our power of review.
Under the circumstance, Lucio Perido had no legal impediment to marry Marcelina Baliguat before the birth of their first
child in 1900.
With respect to the civil status of Lucio Perido as stated in the certificates of title issued to him in 1923, the Court of
Appeals correctly held that the statement was not conclusive to show that he was not actually married to Marcelina
Baliguat. Furthermore, it is weak and insufficient to rebut the presumption that persons living together husband and
29
wife are married to each other. This presumption, especially where legitimacy of the issue is involved, as in this case,
may be overcome only by cogent proof on the part of those who allege the illegitimacy. In the case of Adong vs.
Cheong Seng Gee1 this Court explained the rationale behind this presumption, thus: "The basis of human society
throughout the civilized world is that of marriage. Marriage in this jurisdiction is not only a civil contract, but it is a new
relation, an institution in the maintenance of which the public is deeply interested. Consequently, every intendment of
the law leans toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed, in the
absence of any counter-presumption or evidence special to the case, to be in fact married. The reason is that such is
the common order of society, and if the parties were not what they thus hold themselves out as being, they would he
living in the constant violation of decency and of law. A presumption established by our Code of Civil Procedure is "that
a man and woman deporting themselves as husband and wife have entered into a lawful contract of marriage." (Sec.
334, No. 28) Semper praesumitur pro matrimonio — Always presume marriage."
While the alleged marriage ceremony in 1925, if true, might tend to rebut the presumption of marriage arising from
previous cohabitation, it is to be noted that both the trial court and the appellate court did not even pass upon the
uncorroborated testimony of petitioner Leonora Perido on the matter. The reason is obvious. Said witness, when asked
why she knew that Marcelina Baliguat was married to Lucio Perido only in 1925, merely replied that she knew it because
"during the celebration of the marriage by the Aglipayan priest (they) got flowers from (their) garden and placed in the
altar." Evidently she was not even an eyewitness to the ceremony.
In view of the foregoing the Court of Appeals did not err in concluding that the five children of Lucio Perido and
Marcelina Baliguat were born during their marriage and, therefore, legitimate.
The second assignment of error refers to the determination of whether or not Lots Nos. 471, 506, 511, 509-513-Part,
807 and 808 were the exclusive properties of Lucio Perido. In disposing of the contention of the petitioners that said
lots belong to the conjugal partnership of spouses Lucio Perido and Benita Talorong, the Court of Appeals
said:têñ.£îhqwâ£
... We cannot agree again with them on this point. It is to be noted that the lands covered by the
certificates of title (Exhs. B to G) were all declared in the name of Lucio Perido. Then there is evidence
showing that the lands were inherited by Lucio Perido from his grandmother (t.s.n., p. 21, Feb. 20,
1964). In other words, they were the exclusive properties of the late Lucio Perido which he brought
into the first and second marriages. By fiat of law said Properties should be divided accordingly
among his legal heirs.
The petitioners take exception to the finding of the appellate court that the aforementioned lots were inherited by Lucio
Perido from his grandmother and contend that they were able to establish through the testimonies of their witnesses
that the spouses Lucio Perido and Benita Talorong acquired them during their lifetime. Again, the petitioners cannot be
sustained. The question involves appreciation of the evidence, which is within the domain of the Court of Appeals, the
factual findings of which are not reviewable by this Court.
The third assignment of error is with regard to the ruling of the Court of Appeals sustaining the finding of the trial
court that 11/12 of Lot 458 was the conjugal partnership property of Lucio Perido and his second wife, Marcelina
Baliguat. Said the appellate court:têñ.£îhqwâ£
With respect to Lot No. 458 which is now covered by Original Certificate of Title No. 21769 issued in
1925 the same should be considered conjugally owned by Lucio Perido and his second wife,
Marcelina Baliguat. The finding of the lower court on this point need not be disturbed. It is expressly
stated in the certificate of title (Exh. L) that Lucio Perido, the registered owner, was married to
Marcelina Baliguat unlike in the previous land titles. If the law presumes a property registered in the
name of only one of the spouses to be conjugal (Guinguing vs. Abutin, 48 Phil. 144; Flores vs. Flores,
48 Phil. 288, Escutin vs. Escutin, 60 Phil. 922), the presumption becomes stronger when the
document recites that the spouse in whose name the land is registered is married to somebody else,
like in the case at bar. It appearing that the legal presumption that the No. 458 belonged to the
conjugal partnership had not been overcome by clear proofs to the contrary, we are constrained to
30
rule, that the same is the conjugal property of the deceased spouses Lucio Perido and Marcelina
Baliguat.
In impugning the foregoing ruling, the petitioners maintain that they were able to prove that 6/12 of said Lot 458 was
the conjugal property of spouses Lucio Perido and his first wife, Benita Talorong, and that the purchase price of the
additional 5/12 of said lot came from the proceeds of sale of a lot allegedly belonging to Lucio Perido and his three
children of the first marriage. As in the second assignment of error, the issue raised here also involves appreciation of
the evidence and, consequently, the finding of the appellate court on the matter is binding on this Court. Indeed, a
review of that finding would require an examination of all the evidence introduced before the trial court, a consideration
of the credibility of witnesses and of the circumstances surrounding the case, their relevancy or relation to one another
and to the whole, as well as an appraisal of the probabilities of the entire situation. It would thus abolish the distinction
between an ordinary appeal on the one hand and review on certiorari on the other, and thus defeat the purpose for
which the latter procedure has been established.2
WHEREFORE, the decision of the Court of Appeals is hereby affirmed, with costs against the petitioners.
Castro, Teehankee, Makasiar and Esguerra, JJ., concur.
Muñoz Palma, J., is on leave.

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 77867 February 6, 1990
ISABEL DE LA PUERTA, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and CARMELITA DE LA PUERTA, respondents.
Isabel de la Puerta for and in her own behalf.
Gilbert D. Camaligan for private respondent.
CRUZ, J.:
The basic issue involved in this case is the filiation of private respondent Carmelita de la Puerta, who claims
successional lights to the estate of her alleged grandmother.
Dominga Revuelta died on July 3, 1966, at the age of 92, with a will leaving her properties to her three surviving
children, namely, Alfredo, Vicente and Isabel, all surnamed de la Puerta. Isabel was given the free portion in addition to
her legitime and was appointed executrix of the will.1
The petition for the probate of the will filed by Isabel was opposed by her brothers, who averred that their mother was
already senile at the time of the execution of the will and did not fully comprehend its meaning. Moreover, some of the
properties listed in the inventory of her estate belonged to them exclusively. 2
31
Meantime, Isabel was appointed special administratrix by the probate court. 3 Alfredo subsequently died, leaving
Vicente the lone oppositor. 4
On August 1, 1974, Vicente de la Puerta filed with the Court of First Instance of Quezon a petition to adopt Carmelita de
la Puerta. After hearing, the petition was granted. 5 However, the decision was appealed by Isabel to the Court of
Appeals. During the pendency of the appeal, Vicente died, prompting her to move for the dismissal of the case 6
On November 20, 1981, Carmelita, having been allowed to intervene in the probate proceedings, filed a motion for the
payment to her of a monthly allowance as the acknowledged natural child of Vicente de la Puerta.7 At the hearing on her
motion, Carmelita presented evidence to prove her claimed status to which Isabel was allowed to submit counter-
evidence.
On November 12,1982, the probate court granted the motion, declaring that it was satisfied from the evidence at hand
that Carmelita was a natural child of Vicente de la Puerta and was entitled to the amounts claimed for her support. The
court added that "the evidence presented by the petitioner against it (was) too weak to discredit the same.8
On appeal, the order of the lower court was affirmed by the respondent court,9 which is now in turn being challenged in
this petition before us.
The petitioner's main argument is that Carmelita was not the natural child of Vicente de la Puerta, who was married to
Genoveva de la Puerta in 1938 and remained his wife until his death in 1978. Carmelita's real parents are Juanita
Austrial and Gloria Jordan.
Invoking the presumption of legitimacy, she argues that Carmelita was the legitimate child of Juanita Austrial and Gloria
Jordan, who were legally or presumably married. Moreover, Carmelita could not have been a natural child of Vicente de
la Puerta because he was already married at the time of her birth in 1962.
To prove her point, Isabel presented Amado Magpantay, who testified that he was a neighbor of Austrial and Jordan.
According to him, the two were living as husband and wife and had three children, including a girl named "Puti,"
presumably Carmelita. He said though that he was not sure if the couple was legally married.10
Another witness, Genoveva de la Puerta, Identified herself as Vicente de la Puerta's wife but said they separated two
years after their marriage in 1938 and were never reconciled. In 1962, Gloria Jordan started living with Vicente de la
Puerta in his house, which was only five or six houses away from where she herself was staying. Genoveva said that the
relationship between her husband and Gloria was well known in the community.11
In finding for Carmelita, the lower court declared that:
. . . By her evidence, it was shown to the satisfaction of the Court that she was born on December 18,
1962 per her birth certificate (Exh. A); that her father was Vicente de la Puerta and her mother is
Gloria Jordan who were living as common law husband and wife until his death on June 14, 1978;
that Vicente de la Puerta was married to, but was separated from, his legal wife Genoveva de la
Puerta; that upon the death of Vicente de la Puerta on June 14, 1978 without leaving a last will and
testament, she was the only child who survived him together with his spouse Genoveva de la Puerta
with whom he did not beget any child; that she was treated by Vicente de la Puerta as a true child
from the time of her birth until his father died; that the fact that she was treated as a child of Vicente
de la Puerta is shown by the family pictures showing movant with Vicente de la Puerta (Exhs. D, D-1
and D-2) and school records wherein he signed the report cards as her parent (Exh. E and E-1); that
during the hearing of her adoption case in Special Proceeding No. 0041 in Branch V of this Court at
Mauban, Quezon, Vicente de la Puerta categorically stated in court that Carmelita de la Puerta is his
daughter with Gloria Jordan (Exhs. B and B-1); that it was Vicente de la Puerta during his lifetime who
spent for her subsistence, support and education; . . . 12
32
This is a factual finding that we do not see fit to disturb, absent any of those circumstances we have laid down in a long
line of decisions that will justify reversal.13 Among these circumstances are: (1) the conclusion is a finding grounded
entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse
of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the
Court of Appeals went beyond the issues of the case and its findings are contrary to the admissions of both appellant
and appellees; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of
facts are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition
as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (10) the findings of fact of
the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record.
The petitioner insists on the application of the following provisions of the Civil Code to support her thesis that
Carmelita is not the natural child of Vicente de la Puerta but the legitimate child of Juanito Austrial and Gloria Jordan:
Art. 255. Children born after one hundred and eighty days following the celebration of the marriage,
and before three hundred days following its dissolution or the separation of the spouses shall be
presumed to be legitimate.
Against this presumption no evidence shall be admitted other than that of the physical impossibility
of the husband's having access to his wife within the first one hundred and twenty days of the three
hundred which preceded the birth of the child.
This physical impossibility may be caused:
(1) By the impotence of the husband;
(2) By the fact that the husband and wife were living separately in such a way that access was not
possible;
(3) By the serious illness of the husband.
Art. 256. The child shall be presumed legitimate, although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.
These rules are in turn based on the presumption that Juanito and Gloria were married at the time of Carmelita's birth in
1962, pursuant to Rule 131, Sec. 5(bb) of the Rules of Court, providing that:
Sec. 5. Disputable presumptions.—The following presumptions are satisfactory if uncontradicted, but

may be contradicted and overcome by other evidence:
xxx xxx xxx
(bb) That a man and woman deporting themselves as husband and wife have entered into a lawful
contract of marriage;
But this last-quoted presumption is merely disputable and may be refuted with evidence to the contrary. As the Court
sees it, such evidence has been sufficiently established in the case at bar.
The cases 14 cited by the petitioner are not exactly in point because they involve situations where the couples lived
continuously as husband and wife and so could be reasonably presumed to be married. In the case before us, there was
testimony from Vicente's own wife that her husband and Gloria lived together as a married couple, thereby rebutting
the presumption that Gloria was herself the lawful wife of Juanita Austrial.
33
Such testimony would for one thing show that Juanito and Gloria did not continuously live together as a married couple.
Moreover, it is not explained why, if he was really married to her, Juanito did not object when Gloria left the conjugal
home and started openly consorting with Vicente, and in the same neighborhood at that. That was unnatural, to say the
least. It was different with Genoveva for she herself swore that she had separated from Vicente two years after their
marriage and had long lost interest in her husband. In fact, she even renounced in open court any claim to Vicente's
estate.15
The presumption of marriage between Juanito and Gloria having been destroyed, it became necessary for the petitioner
to submit additional proof to show that the two were legally married. She did not.
Turning now to the evidence required to prove the private respondent's filiation, we reject the petitioner's contention
that Article 278 of the Civil Code is not available to Carmelita. It is error to contend that as she is not a natural child but
a spurious child (if at all) she cannot prove her status by the record of birth, a will, a statement before a court of record,
or any authentic writing. On the contrary, it has long been settled that:
The so-called spurious children or illegitimate children other than natural children, commonly known
as bastards, include adulterous children or those born out of wedlock to a married woman cohabiting
with a man other than her husband or to a married man cohabiting with a woman other than his wife.
They are entitled to support and successional rights (Art. 287, CC). But their filiation must be duly
proven.(Ibid, Art. 887)
How should their filiation be proven? Article 289 of the Civil Code allows the investigation of the
paternity or maternity of spurious children under the circumstances specified in Articles 283 and 284
of the Civil Code. The implication is that the rules on compulsory recognition of natural children are
applicable to spurious children.
Spurious children should not be in a better position than natural children. The rules on proof of
filiation of natural children or the rule on voluntary and compulsory acknowledgment for natural
children may be applied to spurious children. 16
This being so, we need not rule now on the admissibility of the private respondent's certificate of birth as proof of her
filiation. That status was sufficiently established by the sworn testimony of Vicente de la Puerta at the hearing of the
petition for adoption on September 6, 1976, where he categorically declared as follows:
Q What relation if any do you have with Carmelita de la Puerta?
A She is my daughter. 17
Finally, we move to the most crucial question, to wit: May Carmelita de la Puerta claim support and successional rights
to the estate of Dominga Revuelta?
According to Article 970 of the Civil Code:
Art. 970. Representation is a right created by fiction of law, by virtue of which the representative is
raised to the place and the degree of the person represented, and acquires the rights which the latter
would have if he were living or if he could have inherited.
The answer to the question posed must be in the negative. The first reason is that Vicente de la Puerta did not
predecease his mother; and the second is that Carmelita is a spurious child.
It is settled that —
34
In testamentary succession, the right of representation can take place only in the following cases:
first, when the person represented dies before the testator; second, when the person represented is
incapable of succeeding the testator; and third, when the person represented is disinherited by the
testator. In all of these cases, since there is a vacancy in the inheritance, the law calls the children or
descendants of the person represented to succeed by right of representation. 18
xxx xxx xxx
The law is clear that there is representation only when relatives of a deceased person try to succeed
him in his rights which he would have had if still living. In the present case, however, said deceased
had already succeeded his aunt, the testatrix herein. . . . It is a fact that at the time of the death of
the testatrix, Reynaldo Cuison was still alive. He died two months after her (testatrix's) death. And
upon his death, he transmitted to his heirs, the petitioners herein Elisa Cuison et al., the legacy or
the right to succeed to the legacy. . . . In other words, the herein petitioners-appellants are not trying
to succeed to the right to the property of the testatrix, but rather to the right of the legatee Reynaldo
Cuison in said property. 19
Not having predeceased Dominga Revuelta, her son Vicente had the right to inherit from her directly or in his own right.
No right of representation was involved, nor could it be invoked by Carmelita upon her father's death, which came after
his own mother's death. It would have been different if Vicente was already dead when Dominga Revuelta died.
Carmelita could then have inherited from her in representation of her father Vicente, assuming the private respondent
was a lawful heir.
But herein lies the crux, for she is not. As a spurious child of Vicente, Carmelita is barred from inheriting from Dominga
because of Article 992 of the Civil Code, which lays down the barrier between the legitimate and illegitimate families.
This article provides quite clearly:
Art. 992. An illegitimate child has no right to inherit ab intestato from the legitimate children and
relatives of his father or mother; nor shall such children or relatives inherit in the same manner from
the illegitimate child.
Applying this rule in Leonardo v. Court of Appeals, 20 this Court declared:
. . . even if it is true that petitioner is the child of Sotero Leonardo, still he cannot, by right of
representation, claim a share of the estate left by the deceased Francisca Reyes considering that, as
found again by the Court of Appeals, he was born outside wedlock as shown by the fact that when he
was born, his alleged putative father and mother were not yet married, and what is more, his alleged
father's first marriage was still subsisting. At most, petitioner would be an illegitimate child who has
no right to inherit ab intestato from the legitimate children and relatives of his father, like the
deceased Francisca Reyes.
The reason for this rule was explained in the recent case of Diaz v. Intermediate Appellate Court, 21 thus:
Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits absolutely a
succession ab intestato between the illegitimate child and the legitimate children and relatives of the
father or mother of said legitimate child. They may have a natural tie of blood, but this is not
recognized by law for the purpose of Article 992. Between the legitimate family and the illegitimate
family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child
is disgracefully looked down upon by the legitimate family; the family is in turn, hated by the
illegitimate child the latter considers the privileged condition of the former, and the resources of
which it is thereby deprived; the former in turn sees in the illegitimate child nothing but the product
of sin, palpable evidence of a blemish broken in life; the law does no more than recognize this truth,
by avoiding further ground of resentment. 22
35
Indeed, even as an adopted child, Carmelita would still be barred from inheriting from Dominga Revuelta for there
would be no natural kindred ties between them and consequently, no legal ties to bind them either. As aptly pointed
out by Dr. Arturo M. Tolentino:
If the adopting parent should die before the adopted child, the latter cannot represent the former in
the inheritance from the parents or ascendants of the adopter. The adopted child is not related to the
deceased in that case, because the filiation created by fiction of law is exclusively between the
adopter and the adopted. "By adoption, the adopters can make for themselves an heir, but they
cannot thus make one for their kindred. 23
The result is that Carmelita, as the spurious daughter of Vicente de la Puerta, has successional rights to the intestate
estate of her father but not to the estate of Dominga Revuelta. Her claims for support and inheritance should therefore
be filed in the proceedings for the settlement of her own father's
estate 24 and cannot be considered in the probate of Dominga Revuelta's Will.
WHEREFORE, the petition is GRANTED and the appealed decision is hereby REVERSED and SET ASIDE, with costs against
the private respondent. It is so ordered.
Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
[A.C. No. 2115. November 27, 1990.]
FELICIDAD BARIÑAN TAN, Complainant,

v. ATTY. GALILEO J. TROCIO, Respondent.
Jose A. Tolentino, Jr., for complainant.
SYLLABUS
1. LEGAL ETHICS; DISBARMENT OF LAWYERS; CHARGE OF IMMORALITY, NOT ESTABLISHED IN THE CASE AT BAR. — The
issue for determination is whether or not Respondent should be disbarred for immoral conduct. This, in turn, hinges on
the question of whether he had, in fact, sexually assault the Complainant, as a consequence of which the latter begot a
child by him. We find insufficient basis to sustain Complainant’s charge. The outrage allegedly took place during the
last week of April, 1971. Yet, no criminal charge was filed, and it was only about eight years later, on 5 November 1979,
that an administrative complaint was presented before this Court. Complainant’s explanation that Respondent’s threat
to cause the deportation of her alien husband should she report to anyone made her desist from filing a charge is not
credible as she had admitted having lost contact with her husband when he learned of respondent’s transgression that
very same evening (p. 3, TSN, 16 October 1980, p. 46, Rollo). The fear that she speaks of, therefore, had become
inexistent. Another factor that engenders doubt in the mind of the Court is the fact that after the alleged incident, she
continued having dealings with the Respondent as if nothing had happened. Thus, by Respondent’s own account, which
was left uncontroverted by the Complainant, the former assisted her mother and sisters prosecute a robbery case. Then
in March, 1976, she secured respondent’s services in claiming indemnity from three insurance companies when a fire
burned the school down. Finally, respondent was retained as a collaborating attorney by complainant’s family in an
inheritance case. These subsequent dealings are far from being the normal reaction of a woman who has been
wronged. Complainant’s contention that Respondent continued supporting the child for several years for which reason
she desisted from charging him criminally, has not been substantiated. Truth to tell, the fact that she kept her peace for
so many years can even be construed as a condonation of his alleged "immoral conduct." It is likewise strange that an
unwanted son, as the child would normally have been, should, of all names, be called "Jewel."
2. CIVIL LAW; PATERNITY AND FILIATION; PROOF OF FILIATION; UNUSUAL CLOSENESS AND PHYSICAL LIKENESS,
CONSIDERED INCONCLUSIVE EVIDENCE. — The testimonies of Complainant and witness Marilou Pangandaman, another
maid, to show unusual closeness between Respondent and Jewel, like playing with him and giving him toys, are not
36
convincing enough to prove paternity, as Complainant would want us to believe. The same must be said of Exhibits A,
A1, B and B1, which are pictures of Jewel and the Respondent showing allegedly their physical likeness to each other.
Such evidence is inconclusive to prove paternity, and much less would it prove violation of Complainant’s person and
honor.
3. ID.; ID.; LEGITIMATE CHILDREN; PRESUMPTION OF LEGITIMACY, NOT OVERCOME BY ADEQUATE AND CONVINCING
PROOF IN THE CASE AT BAR. — More importantly, Jewel Tan was born in 1972, during wedlock of Complainant and her
husband and the presumption should be in favor of legitimacy unless physical access between the couple was
impossible. From the evidence on hand, the presumption has not been overcome by adequate and convincing proof. In
fact, Jewel was registered in his birth certificate the legitimate child of the Complainant and her husband, Tan Le Pok.
DECISION
MELENCIO-HERRERA, J.:
In a verified complaint, filed on 9 November 1979, complainant Felicidad Bariñan Tan seeks the disbarment of
respondent Atty. Galileo J. Trocio for immorality and conduct unbecoming of a lawyer.
Complainant, owner and directress of Harlyn Vocational School in Baroy, Lanao del Norte, declares that sometime in
April, 1971, at about 8:30 PM, after classes were dismissed, respondent, who is the legal counsel of the school,
overpowered her inside the office and, against her will, succeeded in having carnal knowledge of her. As a result, she
begot a son on 5 February 1972 whom she named and registered as Jewel Tan. She avers that respondent used to
support Jewel but subsequently lost interest in doing so thereby neglecting to defray the needed expenses for Jewel’s
well-being. Complainant also alleges that the respondent threatened her with the deportation of her alien husband if
she complained to the authorities since she was violating the Anti-Dummy Law in operating the vocational school. This
threat, aside from the fact that Complainant is a married woman with eight children and a school directress at the time
of the sexual assault, made her desist from filing a charge against the Respondent. However, after eight years and
thorough soul-searching, she decided to file this administrative complaint.
Respondent, in his Answer, admits having acted as a lawyer of the vocational school. In fact, he contends that he had
also served as the lawyer of the Complainant, her family and her parents-in-law. Thus, in 1971, he helped prosecute a
case for robbery committed against Complainant’s mother and sisters. Also, in March of 1976, when a fire of unknown
origin gutted the school, he assisted the complainant in collecting P10,000.00 from FGU Insurance Group, and
P40,000.00 from Fortune Insurance Corporation as indemnities. With regard to the same case, he also represented
complainant in a suit involving a P130,000.00 claim against the Workmen’s Insurance Corporation before the then
Court of First Instance of Lanao del Norte. Then in 1978, he was retained as a collaborating attorney by Complainant’s
family in an inheritance case. Further, her father-in-law had always consulted him in matters affecting the former’s
store.
But respondent vehemently denies that he had sexually assaulted the Complainant. He argues that her motivation in
filing this charge was to get even with him after having been humiliated when he declined her request to commit a
"breach of trust." He states that in the inheritance case he handled for her family, Complainant insisted that he report to
her mother and sisters that he had charged a fee of P15,000.00 instead of the P2,500.00 he actually received so that
she could pocket the difference. He refused and told the Complainant to look for another lawyer. She tried twice to
make peace with him but was unsuccessful. Rebuffed, she promised to get even with him. Thus, this complaint.
Another reason why Complainant filed the present case, respondent claims, is to escape her indebtedness to him
representing his services as legal counsel of the school which were unpaid since 1974 and the accumulated honoraria
from her fire insurance claims. These obligations were left unpaid despite demand made when respondent learned that
Complainant had sold a piece of land in Agusan.
On 2 June 1980, the Court, acting upon the Complaint and the Answer already filed, referred the case to the Office of
the Solicitor General for investigation, report and recommendation.
On 19 August 1980, said Office, upon the request of the Complainant that the investigation be held in Lanao del Norte
as she and her witnesses could not afford to come to Manila, referred the case to the Provincial Fiscal of said province
37
for the necessary proceedings.
Between September and October of 1980, hearings were conducted on the case. In a Report and Recommendation,
dated 16 January 1981, the Provincial Fiscal stated that respondent failed to attend the hearing despite the issuance of
subpoena; that there was prima facie evidence showing that respondent had committed acts violative of his
professional decorum; and, that he was recommending disciplinary action against him. The records of the case were
then forwarded to the Office of the Solicitor General.
On 1 September 1982, the Office of the Solicitor General returned the records to the Provincial Fiscal of Lanao del Norte
for re-investigation on the ground that the investigation was conducted in the absence of respondent, who did not
appear despite subpoenas sent to him. Thus, further proceedings were conducted by the Provincial Fiscal wherein
Respondent was allowed to submit a sworn letter, dated 13 December 1985, amplifying on the defenses contained in
his Answer.
On 13 February 1986, the Provincial Fiscal of Lanao del Norte issued a Resolution adopting his previous Report and
Recommendation of 16 January 1981, which found prima facie evidence to hold Respondent administratively liable. On
the same day, the records of the case were referred back to the Office the Solicitor General.
On 16 May 1986, the Office of the Solicitor General came up with its own Report recommending that Respondent be
disbarred for gross immoral conduct. On 17 July 1986, as directed by the Court, the Solicitor General filed a formal
Complaint for disbarment against Respondent. On 29 May 1990, the case was raffled to this Second Division and was
included in the latter’s agenda on 13 June 1990.
Respondent has filed an Answer, Complainant her Reply, while Respondent’s Rejoinder, as required by the Court, was
received on 3 October 1990. The required pleadings being complete, this case is now ripe for resolution.
The issue for determination is whether or not Respondent should be disbarred for immoral conduct. This, in turn,
hinges on the question of whether he had, in fact, sexually assault the Complainant, as a consequence of which the
latter begot a child by him.
We find insufficient basis to sustain Complainant’s charge.
The outrage allegedly took place during the last week of April, 1971. Yet, no criminal charge was filed, and it was only
about eight years later, on 5 November 1979, that an administrative complaint was presented before this Court.
Complainant’s explanation that Respondent’s threat to cause the deportation of her alien husband should she report to
anyone made her desist from filing a charge is not credible as she had admitted having lost contact with her husband
when he learned of respondent’s transgression that very same evening (p. 3, TSN, 16 October 1980, p. 46, Rollo). The
fear that she speaks of, therefore, had become inexistent.
Another factor that engenders doubt in the mind of the Court is the fact that after the alleged incident, she continued
having dealings with the Respondent as if nothing had happened. Thus, by Respondent’s own account, which was left
uncontroverted by the Complainant, the former assisted her mother and sisters prosecute a robbery case. Then in
March, 1976, she secured respondent’s services in claiming indemnity from three insurance companies when a fire
burned the school down. Finally, respondent was retained as a collaborating attorney by complainant’s family in an
inheritance case. These subsequent dealings are far from being the normal reaction of a woman who has been
wronged.
Complainant’s contention that Respondent continued supporting the child for several years for which reason she
desisted from charging him criminally, has not been substantiated. Truth to tell, the fact that she kept her peace for so
many years can even be construed as a condonation of his alleged "immoral conduct." It is likewise strange that an
unwanted son, as the child would normally have been, should, of all names, be called "Jewel."
During the investigation before the Provincial Fiscal, the complainant, aside from herself, presented two other
witnesses, Eleuteria Garcia and Marilou Pangandaman, both her domestic help, to testify. Among the three, it was
Eleuteria who tried to establish the manner in which the sexual assault took place. Thus:chanrobles virtual lawlibrary
38
"x x x
"Q You stated in your affidavit marked Annex A that you heard Felicidad Bariñan Tan shouted (sic) for help on the
evening of last week of April, 1971, can you tell me or do you know why Mrs. Tan shouted for help?
"A Yes sir. When I responded to the shout for help of Tan I noticed that Atty. Galileo Trocio, hurriedly left the office
leaving behind Mrs. Felicidad Bariñan Tan.
"Q Did you ask Mrs. Felicidad Bariñan Tan why she was shouting for help?
"A Before I could ask her the reason why she shouted for help, she told me and Marilou Pangandaman that she was
sexually abused by Atty. Galileo J. Trocio.
"Q What did you notice of Mrs. Felicidad Bariñan Tan when you responded to her shout for help?
"A She was crying and trying to fix her dress.." . . (p. 52-53, Rollo).
However, how near to the crime scene said witness was, considering that it allegedly happened in school premises, has
not been shown. Her credibility is thus also put in issue.
The testimonies of Complainant and witness Marilou Pangandaman, another maid, to show unusual closeness between
Respondent and Jewel, like playing with him and giving him toys, are not convincing enough to prove paternity, as
Complainant would want us to believe. The same must be said of Exhibits A, A1, B and B1, which are pictures of Jewel
and the Respondent showing allegedly their physical likeness to each other. Such evidence is inconclusive to prove
paternity, and much less would it prove violation of Complainant’s person and honor. More importantly, Jewel Tan was
born in 1972, during wedlock of Complainant and her husband and the presumption should be in favor of legitimacy
unless physical access between the couple was impossible. From the evidence on hand, the presumption has not been
overcome by adequate and convincing proof. In fact, Jewel was registered in his birth certificate the legitimate child of
the Complainant and her husband, Tan Le Pok.
WHEREFORE, this Complaint for disbarment must be, and is hereby DISMISSED, for lack of convincing substantiation.
SO ORDERED.
Paras, Padilla, Sarmiento and Regalado, JJ., concur.

SUPREME COURT
Manila
EN BANC
G.R. No. L-18407 June 26, 1963
ELAINE A. MOORE, petitioner-appellant,

vs.
REPUBLIC OF THE PHILIPPINES, oppositor-appellee.
Fidel A. Sandoval for petitioner-appellant.

Office of the Solicitor General for oppositor-appellee.
BAUTISTA ANGELO, J.:
Elaine A. Moore filed a petition before the Court of First Instance of Rizal praying that her child by a former marriage,
William Michael Velarde, be permitted to change his name so as to read William Michael Velarde Moore.
39
After publishing the petition as required by law, trial was held during which the parties submitted a stipulation of facts.
Thereafter, the trial court issued an order denying the petition whereupon petitioner interposed the present appeal.
Petitioner is an American citizen formerly married to Joseph P. Velarde, also an American citizen, out of whose wedlock
a child by the name of William Michael Velarde was born. This child, now 14 years old, was born on January 19, 1947 at
Los Angeles, California, U.S.A.
The marriage of petitioner to Velarde was subsequently dissolved by a decree of divorce issued by the Superior Court of
the State of California on May 31, 1949. After said decree became final, petitioner contracted a second marriage with
Don C. Moore on September 29, 1956 at Los Angeles, California, U.S.A., and thereafter the minor lived continuously
with the spouses up to the present time. He was supported by Moore who has always treated him with love and
affection as if he were his true father. In view of this harmonious relation it is petitioner's desire that the minor be able
to use the name Moore after his family name Velarde.
The government opposes the petition and now poses the following issues: (1) whether under our laws a minor may be
permitted to adopt and use the surname of the second husband of his mother; (2) whether justifiable reasons exist to
allow such change of name; and whether petitioner, as mother of the minor, has the authority or personality to ask for
such a change.
Anent the first issue, the government sustains a negative stand for the reason that our laws do not authorize a
legitimate child to use the surname of a person who is not his father, for, as a matter of fact, Article 364 of Civil Code
specifically provides that legitimate children shall principally use the surname of their father. Mention is also made of
Article 369 of the same Code which provides that in case of annulment of avoidable marriage the children conceived
before the annulment she principally use the surname of the father, and considering by analogy the effect of a decree
of divorce, it concluded that the children who are conceived before such a decree should also be understood as carrying
the surname of the real father, which, in this case, is Velarde.
We find tenable this observation of government's counsel. Indeed, if a child born out of a lawful wedlock be allowed to
bear the surname of the second husband of the mother, should the first husband die or be separated by a decree of
divorce, there may result a confusion to his real paternity. In the long run the change may redound to the prejudice of
the child in the community.
While the purpose which may have animated petitioner is plausible and may run along the feeling of cordiality and
spiritual relationship that pervades among the members of the Moore family, our hand is deferred by a legal barrier
which we cannot at present overlook or brush aside.1äwphï1.ñët
Another factor to be reckoned with is the fact that the child concerned is still a minor who for the present cannot
fathom what would be his feeling when he comes to mature age. Any way, if the time comes, he may decide the matter
for himself and take such action as our law may permit. For the present we deem the action taken by petitioner
premature.
WHEREFORE, the order appealed from is affirmed. No costs.
Bengzon, C.J., Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.
40
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-55538 March 15, 1982
In the Matter of the Change of Names of DIONESIO DIVINAGRACIA, JR., and BOMBI ROBERTO DIVINAGRACIA to DIONESIO
NALDOZA and BOMBI ROBERTO NALDOZA, respectively. ZOSIMA NALDOZA, as natural guardian and guardian ad litem
of said minors, petitioner-appellant,
vs.
REPUBLIC OF THE PHILIPPINES and JUDGE FERNANDO S. RUIZ of the Court of First Instance of Bohol, Branch
IV, respondents-appellees.
AQUINO, J.:
The issue in this case is whether two minors should be allowed to discontinue using their father's surname and should
use only their mother's surname.
Zosima Naldoza was married to Dionesio Divinagracia on May 30, 1970. They begot two children named Dionesio, Jr.
and Bombi Roberto who were born on October 23, 1970 and July 22, 1973, respectively.
Zosima's husband left her after she confronted him with his previous marriage with another woman. He never returned
to the conjugal abode. He allegedly swindled Congressman Maglana in the sum of P50,000.00, one Galagar in the sum
of P10,000.00 also Eloy Gallentes and other persons.
The classmates of Dionesio, Jr. and Bombi Roberto allegedly teased them about their father being a swindler. Two
criminal cases for estafa were filed in court against the father.
Desirous of obliterating any connection between her two minor children and their scapegrace father, Zosima, on August
10, 1978, filed in the Court of First Instance of Bohol a petition wherein she prayed that the surname of her two
children be changed from Divinagracia to Naldoza, her surname (Special Proceeding No. 768). After due publication and
hearing, the trial court dismissed the petition.
The trial court did not consider as sufficient grounds for change of surname the circumstances that the children's father
was a swindler, that he had abandoned them and that his marriage to Zosima was a second marriage which, however,
had not been annulled nor declared bigamous. It reasoned that the children's adoption of their mother's surname would
give a false impression of family relationship.
From that decision, Zosima Naldoza appealed to this Court under Republic Act No. 5440. Appellant's seven assignments
of error may be reduced to the question of whether there is a justification for the two children to drop their father's
surname and use their mother's surname only.
The minors Dionesio, Jr. and Bombi Roberto, who are presumably legitimate, are supposed to bear principally the
surname Divinagracia, their father's surname (Art. 364, Civil Code).
To allow them, at their mother's behest, to bear only their mother's surname (which they are entitled to use together
with their father's surname) and to discard altogether their father's surname thus removing the prima-facie evidence of
their paternal provenance or ancestry, is a serious matter in which, ordinarily, the minors and their father should be
consulted. The mother's desire should not be the sole consideration.
41
The change of name is allowed only when there are proper and reasonable causes for such change (Sec. 5, Rule 103,
Rules of Court). Where, as in this case, the petitioners are minors, the courts should take into account whether the
change of name would redound their welfare or would prejudice them.
Where the petitioner, a legitimate daughter of a Filipino mother and a Japanese, elected Philippine citizenship, and her
older brother and sister were using their mother's surname, and the petitioner felt embarrassed in using her Japanese
father's surname (Oshita) because of the ill-feeling harbored by some Filipinos against the Japanese, and there was no
showing that her desire to use the maternal surname (Bartolome) was motivated by any fraudulent purpose or that the
change of surname would prejudice public interest, her petition to change her surname from Oshita to Bartolome was
granted (Oshita vs. Republic, L-21180, March 31, 1967, 19 SCRA 700).
Where the petitioner's name in the civil registry is Maria Estrella Veronica Primitiva Duterte, Duterte being the surname
of her father Filomeno, who was married to her mother, Estrella Alfon, but the petitioner since infancy has used the
name Estrella S. Alfon, particularly in the school and voting records, there is reasonable ground for allowing her to
change her surname from Duterte to Alfon. Such a change would avoid confusion (Alfon vs. Republic, G.R. No. 51201,
May 29, 1980,97 SCRA 858).
The instant case is easily distinguishable from the Oshita and AIfon cases where the petitioners were already of age.
We hold that the trial court did not err in denying the petition for change of name. The reasons adduced for eliminating
the father's surname are not substantial enough to justify the petition. To allow the change of surname would cause
confusion as to the minors' parentage and might create the impression that the minors are illegitimate since they would
carry the maternal surname only. That would be inconsistent with their legitimate status as indicated in their birth
records (Exh. C and D).
As was said in that In re Epstein 200 N.Y.S. 897, "the child should, and in the course of time must, know of his
parentage. " If, when he fully appreciates the circumstances and is capable of selecting a name for himself, he wants to
use his mother's surname only and to avoid using his father's surname, then he should be the one to apply for a change
of surname. See Anno., 53 ALR2d 914.
WHEREFORE, the lower court's decision is affirmed. No costs.
SO ORDERED.
Concepcion, Jr., Abad Santos, De Castro, Ericta and Escolin JJ., concur.
Separate Opinions
BARREDO, J., concurring:
At the worst, Dionesio Jr. and Bombito should be considered as natural children by legal fiction having the same status,
rights and obligations of acknowledged natural children, (Art. 29, Civil Code). among which is the right to bear the
surname of their father. (Art. 28 (1), Civil Code).
Separate Opinions
BARREDO, J., concurring:
At the worst, Dionesio Jr. and Bombito should be considered as natural children by legal fiction having the same status,
rights and obligations of acknowledged natural children, (Art. 29, Civil Code). among which is the right to bear the
surname of their father. (Art. 28 (1), Civil Code).
42
PATERNITY AND FILIATION
ILLEGITIMATE CHILDREN

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 71994 May 31, 1990
EDNA PADILLA MANGULABNAN as guardian ad litem for minor ALFIE ANGELO ACERO, petitioner,
vs.
THE HONORABLE INTERMEDIATE APPELLATE COURT AND AMBROCIO TAN CHEW ACERO, respondents.
GANCAYCO, J.:
This is a case of an illegitimate child who was denied support pendente lite by the appellate court. The child is confused
as to what he is supposed to do. Petitioner pictured a big man eating a small child which will not fail to repel and
horrify all decent men. She contends that this very image readily forms itself in the mind when we consider this case.
Petitioner filed in the Regional Trial Court of Quezon City an action for actual, compensatory and moral damages and
support for her child Alfie Angelo. Pending the litigation an application for support pendente lite was filed to which an
opposition was filed by private respondent. On November 2, 1984 the trial court ordered private respondent to pay
monthly support in the amount of P1,500.00 to the minor child, Alfie. Private respondent moved for a reconsideration
but his motion was denied on December 5, 1984.
Hence, a petition for certiorari was filed in the Court of Appeals questioning the said order of the trial court.
In a decision dated March 29, 1984 1 the petition was granted and the orders of the trial court dated November 2, 1984
were annulled without pronouncement as to costs. A motion for reconsideration thereof filed by petitioner was denied
on September 12, 1985.
Hence, the herein appeal by way of certiorari wherein petitioner raises the following issues:
THE QUESTIONED JUDGMENT INSISTED IN IGNORING THE STATUTORY DISTINCTION BETWEEN A

NATURAL CHILD AND OTHER ILLEGITIMATE CHILDREN;
II
THE APPELLATE COURT REFUSED TO ACCEPT THAT THE BIRTH CERTIFICATE IN THIS CASE
CONSTITUTED VOLUNTARY RECOGNITION;
III
43
THE APPELLATE COURT IN ONE STROKE PUT TO NAUGHT THE REMEDY OR RELIEF PROVIDED BY
SUPPORT PENDENTE LITE. 2
The petition is impressed with merit.
In the questioned decision of the appellate court, the following disquisitions were made:
The petitioner's contention is well taken. While the child's paternity appears to have been established
by the affidavits of the respondent Edna Padilla Mangulabnan as well as by the affidavits of her two
witnesses, this fact alone would not be sufficient to order the petitioner to pay support to the child.
In addition, it is necessary to prove that the petitioner has recognized the child. For these are two
distinct questions. (Crisolo v. Macadaeg, 94 Phil. 862 [1954]; Cruz v. Castillo, 28 SCRA 719 [1969]).
As the civil status of the child is the source from which the right to support is derived, there must be
a declaration to that effect before support can be ordered. Such a declaration may be provisional, it
being sufficient that affidavits are considered. (Crisolo v. Macadaeg, supra; Mangoma v. Macadaeg,
90 Phil. 508 [1951]; Sanchez v. Francisco, 68 Phil. 110 [1939]). But the question must nevertheless
be squarely resolved. It may be that the birth certificate is prima facie evidence of acknowledgment
of the child, so that until it is finally shown to be spurious it must be upheld. (Civil Code, Art. 410;
Art. No. 3753, sec. 13). On the other hand, it may be that its probative value is impaired by the
verified opposition of the petitioner. These are, however questions for the trial court to resolve in
passing on the application for support pendente lite
In the subsequent resolution dated September 12, 1985, the appellate court also made the following observations:
The contention has no merit. Although Art. 291, in enumerating those entitled to support, refers in
paragraph 3 to 'acknowledged natural children,' and in paragraph 5 simply to 'illegitimate children
who are not natural' nonetheless there is a need for the latter class of children (spurious) to be
recognized either voluntarily or by judicial decree, otherwise they cannot demand support. The
private respondent contends that the cases cited in the decision (Crisolo v. Macadaeg, 94 Phil. 862
[1954]; Cruz v. Castillo, 28 SCRA 719 [l969]) refer to the right of natural children to support. The
principle, however, is the same. Thus in Paulino v. Paulino, 113 Phil. 697 [1961], which involves a
claim to inheritance by a spurious child, it was held:
An illegitimate (spurious) child to be entitled to support and successional rights from his putative or
presumed parents must prove his filiation to them. Filiation may be established by the voluntary or
compulsory recognition of the illegitimate (spurious) child. Recognition is voluntary when made in
the record of birth, a will, a statement before a court of record, or in any authentic writing.' It is
compulsory when by court action the child brings about his recognition.
Article 291 of the Civil Code provides as follows:
ART 291. The following are obliged to support each other to the whole extent set forth in the
preceding article:
(1) The spouses;
(2) Legitimate ascendants and descendants;
(3) Parents and acknowledged natural children and the legitimate descendants of
the latter;
44
(4) Parents and natural children by legal fiction and the legitimate and illegitimate
descendants of the latter;
(5) Parents and illegitimate children who are not natural.
Brothers and sisters owe their legitimate and natural brothers and sisters, although they are only of the half blood, the
necessaries of life when by a physical or mental defect, or any other cause not imputable to the recipients, the latter
cannot secure their subsistence. This assistance includes, in a proper case, expenses necessary for elementary
education and for professional or vocational training.
From the foregoing provision it is clear that parents and illegitimate children who are not natural children are also
obliged to support each other as specified in paragraph No. 5 abovecited. It is to be distinguished from the obligation
to support each other as between the parents and acknowledged natural children and the legitimate or illegitimate
children of the latter; and that between parents and natural children by legal fiction and the legitimate and illegitimate
descendants of the latter under paragraphs (3) and (4) abovecited.
Under Article 287 of the Civil Code it is provided:
ART. 287. Illegitimate children other than natural in accordance with Article 269 and other than
natural children by legal fiction are entitled to support and such successional rights as are granted in
this Code.
In this case petitioner established the paternity of the child, Alfie not only by her own affidavit but also by the affidavits
of two (2) witnesses. In addition thereto petitioner submitted a birth certificate of the child. The private respondent
claims that the same is spurious as it was sworn before a notary public in Manila when the child was born in Cavite
Maternity Clinic in Las Pinas Rizal.
There must be a declaration of the status of the child from which the right to support is derived and before support can
be ordered. Such a declaration may be provisional, that is, by affidavits. 3
While the appellate court claims that the birth certificate is prima facie evidence of acknowledgment of the child, and
that until it is finally proved to be spurious it must be upheld, 4 it nevertheless observed that its probative value is
impaired by the verified opposition of the private respondent.
Petitioner contends, however, that the child is entitled to support upon proof of filiation to private respondent without
need of acknowledgment.
The appellate court disagrees and holds that even as to illegitimate children who are not natural children, there is a
need for the latter class of children (spurious children) to be recognized either voluntarily or by judicial decree,
otherwise they cannot demand support, as in the case of an acknowledged natural child.
The Court disagrees. The requirement for recognition by the father or mother jointly or by only one of them as provided
by law refers in particular to a natural child under Article 276 of the Civil Code. Such a child is presumed to be the
natural child of the parents recognizing it who had the legal capacity to contract marriage at the time of
conception. 5 Thus, an illegitimate child like the minor Alfie in this case whose father, the private respondent herein, is
married and had no legal capacity to contract marriage at the time of his conception is not a natural child but an
illegitimate child or spurious child in which case recognition is not required before support may be granted. 6
However, under Article 887 of the Civil Code, in all cases of illegitimate children, their filiation must be proved. Such
filiation may be proved by the voluntary or compulsory recognition of the illegitimate (spurious child). Recognition is
voluntary when made in the record of birth, a will, a statement before a court of record or in any authentic writing. 7 It
is compulsory when by court action the child brings out his recognition. 8
45
As above related the affidavits of petitioner and the two (2) witnesses were presented to prove the paternity of the child,
and a birth certificate was also presented to corroborate the same. The Court agrees with the court a quo that the
status of the minor child had been provisionally established.
Indeed, in response to the resolution of this Court dated February 14, 1989, if the parties are still interested in
prosecuting this case, petitioner in a manifestation filed on March 22, 1990, asserted that she is still interested and that
in fact the Regional Trial Court in Civil Case No. A-39985 has rendered a decision dated April 9, 1987 granting to
petitioner-appellant minor a monthly support of P5,000.00 to be paid on or before the fifth day of every month. 9
WHEREFORE, the petition is GRANTED. The questioned decision of the appellate court dated March 29, 1985 and its
resolution dated September 12, 1985 are hereby REVERSED AND SET ASIDE and the order of the trial court dated
November 2, 1984 granting a monthly support pendente lite in favor of the minor child, Alfie in the amount of
P1,500.00 is reinstated and AFFIRMED with costs against private respondent.
SO ORDERED.

SUPREME COURT
Manila
EN BANC
G.R. No. L-1261 August 2, 1949
CATALINA OSMEÑA DE VALENCIA, ET AL., plaintiffs-appellants,

vs.
EMILIA RODRIGUEZ, ET AL., defendants-appellees.
Sato and Repollo for appellants.

Filemon Sotto for appellees.
PARAS, J.:
In an action instituted in the Court of First Instance of Cebu, the plaintiffs prayed for an injunction restraining the
defendants, from using the surname "Valencia." The defendants filed a motion to dismiss, and this sustained by the
lower court. Hence this appeal by the plaintiffs.
The plaintiffs allege, on the hand, that they (except Catalina Osmeña) are the legitimate children of the defendant Pio E.
Valencia in the latter's lawful wedlock with plaintiff Catalina Osmeña; and, upon the other hand, that the defendants,
(except Emilia Rodriguez and Pio E. Valencia) are the illegitimate children of Pio E. Valencia with his common-law-wife,
defendant Emilia Rodriguez. It is accordingly contended by the plaintiffs that they alone have the right to bear the
surname "Valencia," in accordance with article 114 of the Civil Code which provides that legitimate children have the
right to bear the surname of the father. To complete their argument, the plaintiffs point out that, under articles 139 and
845 of the Civil Code, illegitimate children (who are not natural) are entitled only to support.
We concede that the plaintiffs may use the surname of their farther as a matter of right by reason of the mere fact that
they are legitimate children; but we cannot agree to the view that article 114 of the Civil Code, without more, grants
monopolistic proprietary control to legitimate children over the surname of their father. In other words, said article has
marked a right of which legitimate children may not be deprived, but it cannot be interpreted as a prohibition against
the use by others of what may happen to be the surname of their father. If plaintiff's theory were correct, they can stop
countless inhabitants from bearing the surname "Valencia."
46
The defendants' case becomes the stronger when it is remembered that, from all appearances, Pio E. Valencia (the
father) acquiesces in the adoption of his surname by the defendants. But even if he objects, the defendants can still use
the surname "Valencia," in the absence of any law granting exclusive ownership over a surname.
The appealed order is affirmed, and it is so ordered with costs against the plaintiffs and appellants.
Moran, C.J., Perfecto, Bengzon, Padilla, Tuason, Montemayor and Reyes, JJ., concur.
Feria, J., concurs in the result.
Separate Opinions
OZAETA,. J., concurring and dissenting:
I concur in the affirmance of the order appealed from on the following ground: It appears from paragraph 5 of the
complaint that the defendant Pio E. Valencia has allowed his illegitimate children by his codefendant Emilia Rodriguez
to bear his surname even after they had reached the age of reason. From this allegation it may be inferred that since
their birth these illegitimate children have been given and have borne the surname of their father with the latter's
consent. The plaintiffs predicate their case upon Articles 114, 139, and 845 of the Civil Code and Rule 103 of the Rules
of Court. Article 114 says that legitimate children shall have the right to bear the surnames of their father and mother;
and articles 139 and 845 say that illegitimate children who have not the status of natural children shall be entitled only
to support. Rule 103 of the Rules of Court prescribes the procedure for change of name. Upon the facts alleged in the
complaint, these statutory provisions are not sufficient, in my opinion, to entitle the plaintiffs to the relief sought by
their complaint. The mere fact that legitimate children have the right to bear the surnames of their parents and
illegitimate children are entitled only to support, does not necessarily imply that the father may not voluntarily permit
his illegitimate children to bear his surname. Rule 103 is not applicable because it is not alleged in the complaint that
the twelve defendants who are alleged to be illegitimate children of their codefendant Pio E. Valencia have illegally
changed their surname from some other to that of Valencia. On the contrary we infer from the complaint that since
their birth they have always borne that surname with the knowledge and consent of their putative father.
I dissent from so much of the majority opinion a may convey the idea (1) that a person who claims to be the illegitimate
child of another may use or adopt the surname of the latter even against his will and without his consent, and without
authorization from the court; and (2) that any person is free to use any surname he may have a fancy for without the
authorization of the court even though he may not have originally borne that surname. Concerning the first idea, I am
of the opinion that a person cannot adjudicate to himself a status which adversely affects another without the latter's
consent or without the intervention of the court. And as to the second idea, it is clear from Rule 103 that a person
cannot adopt a new name, or use one other than that he has originally borne, without complying with the requisites
provided for in said rule.

SUPREME COURT
Manila
47
EN BANC
G.R. No. L-2474 May 30, 1951
MARIANO ANDAL, assisted by mother Maria Dueñas as guardian ad litem, and MARIA DUEÑAS, plaintiffs,
vs.
EDUVIGIS MACARAIG, defendant.
Reyes and Dy-Liaco for appellants.

Tible, Tena and Borja for appellees.
BAUTISTA ANGELO, J.:
Mariano Andal, a minor, assisted by his mother Maria Dueñas, as guardian ad litem, brought an action in the Court of
First Instance of Camarines Sur for the recovery of the ownership and possession of a parcel of land situated in the
barrio of Talacop, Calabanga, Camarines Sur.
The complaint alleges that Mariano Andal is the surviving son of Emiliano Andal and Maria Dueñas; that Emiliano Andal
died on September 24, 1942; that Emiliano Andal was the owner of the parcel of land in question having acquired it
from his mother Eduvigis Macaraig by virtue of a donation propter nuptias executed by the latter in favor of the former;
that Emiliano Andal had been in possession of the land from 1938 up to 1942, when Eduvigis Macaraig, taking
advantage of the abnormal situation then prevailing, entered the land in question.
The lower court rendered judgment in favor of the plaintiffs (a) declaring Mariano Andal the legitimate son of Emiliano
Andal and such entitled to inherit the land in question; (b) declaring Mariano Andal owner of said land; and (c) ordering
the defendant to pay the costs of suit. Defendant took the case to this Court upon the plea that only question of law are
involved.
It appears undisputed that the land in question was given by Eduvigis Macaraig to her son Emiliano Andal by virtue of a
donation propter nuptias she has executed in his favor on the occasion of his marriage to Maria Dueñas. If the son born
to the couple is deemed legitimate, then he is entitled to inherit the land in question. If otherwise, then the land should
revert back to Eduvigis Macaraig as the next of kin entitled to succeed him under the law. The main issue, therefore, to
be determined hinges on the legitimacy of Mariano Andal in so far as his relation to Emiliano Andal is concerned. The
determination of this issue much depends upon the relationship that had existed between Emiliano Andal and his wife
during the period of conception of the child up to the date of his birth in connection with the death of the alleged father
Emiliano Andal.
The following facts appear to have been proven: Emiliano Andal became sick of tuberculosis in January 1941. Sometime
thereafter, his brother, Felix, went to live in his house to help him work his house to help him work his farm. His
sickness became worse that on or about September 10, 1942, he became so weak that he could hardly move and get up
from his bed. On September 10, 1942, Maria Duenas, his wife, eloped with Felix, and both went to live in the house of
Maria's father, until the middle of 1943. Since May, 1942, Felix and Maria had sexual intercourse and treated each other
as husband and wife. On January 1, 1943, Emiliano died without the presence of his wife, who did not even attend his
funeral. On June 17, 1943, Maria Dueñas gave birth to a boy, who was given the name of Mariano Andal. Under these
facts, can the child be considered as the legitimate son of Emiliano?
Article 108 of the Civil Code provides:
Children born after the one hundred and eighty days next following that of the celebration of marriage or
within the three hundred days next following its dissolution or the separation of the spouses shall be
48
This presumption may be rebutted only by proof that it was physically impossible for the husband to have had
access to his wife during the first one hundred and twenty days of the three hundred next preceding the birth
of the child.
Since the boy was born on June 17, 1943, and Emiliano Andal died on January 1, 1943, that boy is presumed to be the
legitimate son of Emiliano and his wife, he having been born within three hundred (300) days following the dissolution
of the marriage. This presumption can only be rebutted by proof that it was physically impossible for the husband to
have had access to his wife during the first 120 days of the 300 next preceding the birth of the child. Is there any
evidence to prove that it was physically impossible for Emiliano to have such access? Is the fact that Emiliano was sick
of tuberculosis and was so weak that he could hardly move and get up from his bed sufficient to overcome this
presumption?
Manresa on this point says:
Impossibility of access by husband to wife would include (1) absence during the initial period of conception,
(2) impotence which is patent, continuing and incurable, and (3) imprisonment, unless it can be shown that
cohabitation took place through corrupt violation of prison regulations. Manresa, 492-500, Vol. I, cited by Dr.
Arturo Tolentino in his book "Commentaries and Jurisprudence on the Civil Code, Vol. 1, p.90)."
There was no evidence presented that Emiliano Andal was absent during the initial period of conception, specially
during the period comprised between August 21, 1942 and September 10, 1942, which is included in the 120 days of
the 300 next preceding the birth of the child Mariano Andal. On the contrary, there is enough evidence to show that
during that initial period, Emiliano Andal and his wife were still living under the marital roof. Even if Felix, the brother,
was living in the same house, and he and the wife were indulging in illicit intercourse since May, 1942, that does not
preclude cohabitation between Emiliano and his wife. We admit that Emiliano was already suffering from tuberculosis
and his condition then was so serious that he could hardly move and get up from bed, his feet were swollen and his
voice hoarse. But experience shows that this does not prevent carnal intercourse. There are cases where persons
suffering from this sickness can do the carnal act even in the most crucial stage because they are more inclined to
sexual intercourse. As an author has said, "the reputation of the tuberculosis towards eroticism (sexual propensity) is
probably dependent more upon confinement to bed than the consequences of the disease." (An Integrated Practice of
Medicine, by Hyman, Vol. 3, p.2202). There is neither evidence to show that Emiliano was suffering from impotency,
patent, continuous and incurable, nor was there evidence that he was imprisoned. The presumption of legitimacy under
the Civil Code in favor of the child has not, therefore, been overcome.
We can obtain the same result viewing this case under section 68, par. (c) of Rule 123, of the Rules of Court, which is
practically based upon the same rai'son d'etre underlying the Civil Code. Said section provides:
The issue of a wife cohabiting with the husband who is not impotent, is indisputably presumed to be
legitimate, if not born within one hundred eighty days immediately succeeding the marriage, or after the
expiration of three hundred days following its dissolution.
We have already seen that Emiliano and his wife were living together, or at least had access one to the other, and
Emiliano was not impotent, and the child was born within three (300) days following the dissolution of the marriage.
Under these facts no other presumption can be drawn than that the issue is legitimate. We have also seen that this
presumption can only be rebutted by clear proof that it was physically or naturally impossible for them to indulge in
carnal intercourse. And here there is no such proof. The fact that Maria Dueñas has committed adultery can not also
overcome this presumption (Tolentino's Commentaries on the Civil Code, Vol. I, p. 92).
In view of all the foregoing, we are constrained to hold that the lower court did not err in declaring Mariano Andal as
the legitimate son of the spouses Emiliano Andal and Maria Dueñas.
Wherefore, the decision appealed from is affirmed, without pronouncement as to costs.
49
Paras, C. J., Feria, Pablo, Tuason, Montemayor, Reyes and Jugo, JJ., concur.

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-49542 September 12, 1980
ANTONIO MACADANGDANG, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and ELIZABETH MEJIAS, respondents.
MAKASIAR, J.:
This petition for review seeks to set aside the decision of the Court of Appeals in CA-G.R. No. 54618-R which reversed
the decision of the Court of First Instance of Davao, Branch IX dismissing the action for recognition and support filed by
respondent Elizabeth Mejias against petitioner Antonio Macadangdang, and which found minor Rolando to be the
illegitimate son of petitioner who was ordered to give a monthly support of P350.00 until his alleged son reaches the
age of majority (p. 47, rec.; p. 10, ROA).
The records show that respondent Elizabeth Mejias is a married woman, her husband being Crispin Anahaw (pp. 61-62,
t.s.n., Sept. 21, 1972; pp. 10-11, Brief for Respondent [P. 198, rec.]) She allegedly had intercourse with petitioner
Antonio Macadangdang sometime in March, 1967 (p. 38, t.s.n., June 7, 1972 in CC No. 109). She also alleges that due
to the affair, she and her husband separated in 1967 (p. 63, t.s.n., Sept. 21, 1972). On October 30, 1967 (7 months or
210 days following the illicit encounter), she gave birth to a baby boy who was named Rolando Macadangdang in
baptismal rites held on December 24,1967 (Annex "A", List of Exhibits).
The records also disclose that on April 25, 1972, respondent (then plaintiff) filed a complaint for recognition and
support against petitioner (then defendant) with the Court of First Instance of Davao, Branch IX. This case was docketed
as Civil Case No. 263 (p. 1, ROA).
Defendant (now petitioner) Macadangdang filed his answer on June 30, 1972, opposing plaintiff's claim and praying for
its dismissal (p. 3, ROA).
On August 9, 1972, the lower court in a pre-trial conference, issued a Pre-trial Order formalizing certain stipulations,
admissions and factual issues on which both parties agreed (pp. 4, 5, and 6, ROA). Correspondingly, upon agreement of
the parties, an amended complaint was filed by plaintiff on October 17, 1972 (pp. 7,8 and 9, ROA).
In its decision rendered on February 27, 1973, the lower court dismissed the complaint,. The decision invoked positive
provisions of the Civil Code and Rules of Court and authorities (pp. 10-18, ROA).
On April 18, 1973, plaintiff appealed the CFI decision to the Court of Appeals (p. 59, In her appeal, appellant assigned
these errors:
1. The Honorable Trial Court erred in applying in the instant case the provisions of Arts. 255 and 256
of the Civil Code and Secs. 4[a], 4[b] and 4[c], Rule 131, of the Revised Rules of Court (p. 18, rec.);
50
2. The Honorable Trial Court erred in holding that plaintiff-appellant cannot validly question the
legitimacy of her son, Rolando Macadangdang, by a collateral attack without joining her legal
husband as a party in the instant case (p. 18, rec.).
In its decision handed down on June 2, 1978, the Court of Appeals reversed the lower court's decision (p. 47, and thus
declared minor Rolando to be an illegitimate son of Antonio Macadangdang (p. 52, rec.).
On November 6, 1978, the Court of Appeals denied appellant's motions for reconsideration for lack of merit. (p. 56,
rec.).
Hence, petitioner filed this petition on January 12, 1979.
The issues boil down to:
1. Whether or not the child Rolando is conclusively presumed the legitimate issue of the spouses
Elizabeth Mejias and Crispin Anahaw; and
2. Whether or not the wife may institute an action that would bastardize her child without giving her
husband, the legally presumed father, an opportunity to be heard.
The crucial point that should be emphasized and should be straightened out from the very beginning is the fact that
respondent's initial illicit affair with petitioner occurred sometime in March, 1967 and that by reason thereof, she and
her husband separated. This fact surfaced from the testimony of respondent herself in the hearing of September 21,
1972 when this case was still in the lower court. The pertinent portions of her testimony are thus quoted:
By Atty. Fernandez:
Q — What did you feel as a result of the incident where Antonio Macadangdang used pill
and took advantage of your womanhood?
A — I felt worried, mentally shocked and humiliated.
Q — If these feelings: worries, mental shock and humiliation, if estimated in monetary

figures, how much win be the amount?
A — Ten thousand pesos, sir.
Q — And because of the incidental what happened to your with Crispin Anahaw.
xxx xxx xxx
WITNESS:
A — We separate, sir. (pp. 61-63, T.s.n., Civil Case No. 263, Sept. 21, 1972; emphasis
supplied).
From the foregoing line of questions and answers, it can be gleaned that respondent's answers were given with
spontaneity and with a clear understanding of the questions posed. There cannot be any other meaning or
interpretation of the word "incident" other than that of the initial contact between petitioner and respondent. Even a
layman would understand the clear sense of the question posed before respondent and her categorical and
spontaneous answer which does not leave any room for interpretation. It must be noted that the very question of her
counsel conveys the assumption of an existing between respondent and her husband.
51
The finding of the Court of Appeals that respondent and her husband were separated in 1965 cannot therefore be
considered conclusive and binding on this Court. It is based solely on the testimony of respondent which is self-
serving. Nothing in the records shows that her statement was confirmed or corroborated by another witness and the
same cannot be treated as borne out by the record or that which is based on substantial evidence. It is not even
confirmed by her own husband, who was not impleaded.
In the case of Tolentino vs. De Jesus (L-32797, 56 SCRA 167 [1974], this Court restated that the findings of facts of the
Court of Appeals are conclusive on the parties and on the Supreme Court, unless (1) the conclusion is a finding
grounded entirely on speculation, surmise, and conjectures; (2) the inference made is manifestly mistaken; (3) there is
grave abuse of discretion; (4) the judgment is based on misapprehension of facts; (5) the Court of Appeals went beyond
the issues of the case and its findings are contrary to the admission of both appellant and appellee; (6) the findings of
facts of the Court of Appeals are contrary to those of the trial court; (7) said findings of facts are conclusions without
citation of specific evidence on which they are based; (8) the facts set forth in the petition as well as in the petitioner's
main and reply briefs are not disputed by the respondent; and (9) when the finding of facts of the Court of Appeals is
premised on the absence of evidence and is contradicted by evidence on record [Pioneer Insurance and Surety
Corporation vs. Yap, L-36232, December 19, 1974; Roque vs. Buan, L-22459, 21 SCRA 642 (1967); Ramos vs. Pepsi-
cola Bottling Company of the Philippines, L-225533, 19 SCRA 289 (1967); emphasis supplied].
Again, in Roque vs. Buan, supra, this Court reiterated the aforestated doctrine adding four more exceptions to the
general rule. This case invoked the same ruling in the previous case of Ramos vs. Pepsi-Cola Bottling Company, etc.,
supra.
In the recent case of Francisca Alsua-Betts, et al. vs. Court of Appeals, et al. (L-46430-31, July 30, 1979), which
petitioner aptly invokes, this Court thus emphasized:
... But what should not be ignored by lawyers and litigants alike is the more basic principle that the
"findings of fact" described as "final" or "conclusive" are those borne out by the record or those which
are based upon substantial evidence. The general rule laid down by the Supreme Court does not
declare the absolute correctness of all the findings of fact made by the Court of Appeals. There are
exceptions to the general rule, where we have reviewed the findings of fact of the Court of Appeals ...
(emphasis supplied).
The following provisions of the Civil Code and the Rules of Court should be borne in mind:
Art. 255. Children born after one hundred and eighty days following the celebration of the marriage,
and before three hundred days following its dissolution or the separation of the spouses shall be
Against this presumption, no evidence shall be admitted other than that of the physical impossibility
of the husband's having access to his wife within the first one hundred and twenty days of the three
(1) By the impotence of the husband;
(2) By the fact that the husband and wife were separately, in such a way that access was not possible;
(3) By the serious illness of the husband.
Art. 256. The child shall be presumed legitimate, although the mother may have declared against its
52
Art. 257. Should the wife commit adultery at or about the time of the conception of the child, but
there was no physical impossibility of access between her and her husband as set forth in article 255,
the child is prima facie presumed to be illegitimate if it appears highly improbable, for ethnic
reasons, that the child is that of the husband. For the purposes of this article, the wife's adultery
need not be proved in a criminal case.
xxx xxx xxx
Sec. 4. Quasi-conclusive presumptions of legitimacy —
(a) Children born after one hundred eighty days following the celebration of the marriage, and before
three hundred days following its dissolution or the separation of the spouses shall be presumed
legitimate.
Against presumption no evidence be admitted other than that of the physical impossibility of the
husband's having access to his wife within the first one hundred and twenty days of the three
[1] By the impotence of the husband
[2] By the fact that the husband and the wife were living separately, in such a way that access was not
possible;
[3] By the serious illness of the husband;
(b) The child shall be presumed legitimate although the mother may have declared against its
(c) Should the wife commit adultery at or about the time of the conception of the child, but there was
no physical impossibility of access between her and her husband as set forth above, the child is
presumed legitimate, unless it appears highly improbable, for ethnic reasons, that the child is that of
the husband. For the purpose of the rule, the wife's adultery need not be proved in a criminal case. ...
(Rule 131, Rules of Court).
Whether or not respondent and her husband were separated would be immaterial to the resolution of the status of the
child Rolando. What should really matter is the fact that during the initial one hundred twenty days of the three hundred
which preceded the birth of the renamed child, no concrete or even substantial proof was presented to establish
physical impossibility of access between respondent and her spouse. From her very revealing testimony, respondent
declared that she was bringing two sacks of rice to Samal for her children; that her four children by her husband in her
mother's house in the said town; that her alleged estranged husband also lived in her mother's place (p. 73, pp. 21 &
22, 64 & 65, t.s.n., Sept. 21, 1972). It should also be noted that even during her affair with petitioner and right after her
delivery, respondent went to her mother's house in Samal for treatment. Thus, in the direct examination of Patrocinia
Avila (the boy's yaya), the following came out:
Q — Why were you taking care of the child Rolando, where was Elizabeth Mejias?
A — Because Elizabeth went to her parents in Same Davao del Norte for treatment because
she had a relapse (p. 13, t.s.n., of Sept. 21, 1972).
53
From the foregoing and since respondent and her husband continued to live in the same province, the fact remains that
there was always the possibility of access to each other. As has already been pointed out, respondent's self-serving
statements were never corroborated nor confirmed by any other evidence, more particularly that of her husband.
The baby boy subject of this controversy was born on October 30, 1967, only seven (7) months after March, 1967 when
the "incident" or first illicit intercourse between respondent and petitioner took place, and also, seven months from
their separation (if there really was a separation). It must be noted that as of March, 1967, respondent and Crispin
Anahaw had already four children; hence, they had been married years before such date (t.s.n., pp. 21-22, Sept. 21,
1972). The birth of Rolando came more than one hundred eighty 180 days following the celebration of the said
marriage and before 300 days following the alleged separation between aforenamed spouses.
Under the aforequoted Article 255 of the Civil Code, the child Rolando is conclusively presumed to be the legitimate son
of respondent and her husband.
The fact that the child was born a mere seven (7) months after the initial sexual contact between petitioner and
respondent is another proof that the said child was not of petitioner since, from indications, he came out as a normal
full-term baby.
It must be stressed that the child under question has no birth certificate of Baptism (attached in the List of Exhibits)
which was prepared in the absence of the alleged father [petitioner]. Note again that he was born on October 30, 1967.
Between March, 1967 and October 30, 1967, the time difference is clearly 7 months. The baby Rolando could have been
born prematurely. But such is not the case. Respondent underwent a normal nine-month pregnancy. Respondent
herself and the yaya, Patrocinia Avila, declared that the baby was born in the rented house at Carpenter Street, which
birth was obvisouly normal; that he was such a healthy baby that barely 5 days after his birth, he was already cared for
by said yaya when respondent became sick (pp. 28, 29 & 43, t.s.n., Sept. 21, 1972); and that when he was between 15
days and 2 months of age, respondent left him to the care of the yaya when the former left for Samal for treatment and
returned only in February, 1968 (pp. 30-32, t.s.n., Sept. 21, 1972). From the aforestated facts, it can be indubitably
said that the child was a full-term baby at birth, normally delivered, and raised normally by the yaya. If it were
otherwise or if he were born prematurely, he would have needed special care like being placed in an incubator in a clinic
or hospital and attended to by a physician, not just a mere yaya. These all point to the fact that the baby who was born
on October 30, 1967 or 7 months from the first sexual encounter between petitioner and respondent was conceived as
early as January, 1967. How then could he be the child of petitioner?
In Our jurisprudence, this Court has been more definite in its pronouncements on the value of baptismal certificates. It
thus ruled that while baptismal and marriage certificates may be considered public documents, they are evidence only
to prove the administration of the sacraments on the dates therein specified — but not the veracity of the states or
declarations made therein with respect to his kinsfolk and/or citizenship (Paa vs. Chan, L-25945, Oct. 31, 1967). Again,
in the case of Fortus vs. Novero (L-22378, 23 SCRA 1331 [1968]), this Court held that a baptismal administered, in
conformity with the rites of the Catholic Church by the priest who baptized the child, but it does not prove the veracity
of the declarations and statements contained in the certificate that concern the relationship of the person baptized.
Such declarations and statements, in order that their truth may be admitted, must indispensably be shown by proof
recognized by law.
The child Rolando is presumed to be the legitimate son of respondent and her spouse. This presumption becomes
conclusive in the absence of proof that there was physical impossibility of access between the spouses in the first 120
days of the 300 which preceded the birth of the child. This presumption is actually quasi-conclusive and may be
rebutted or refuted by only one evidence — the physical impossibility of access between husband and wife within the
first 120 days of the 300 which preceded the birth of the child. This physical impossibility of access may be caused by
any of these:
1. Impotence of the husband;

2. Living separately in such a way that access was impossible and
3. Serious illness of the husband.
54
This presumption of legitimacy is based on the assumption that there is sexual union in marriage, particularly during
the period of conception. Hence, proof of the physical impossibility of such sexual union prevents the application of the
presumption (Tolentino, Commentaries & Jurisprudence on the Civil Code, Vol. 1, p. 513 citing Bevilaqua, Familia p.
311).
The modern rule is that, in order to overthrow the presumption of legitimacy, it must be shown beyond reasonable
doubt that there was no access as could have enabled the husband to be the father of the child. Sexual intercourse is to
be presumed where personal access is not disproved, unless such presumption is rebutted by evidence to the contrary;
where sexual intercourse is presumed or proved, the husband must be taken to be the father of the child (Tolentino,
citing Madden, Persons and Domestic Relations, pp. 340-341).
To defeat the presumption of legitimacy, therefore, there must be physical impossibility of access by the husband to
the wife during the period of conception. The law expressly refers to physical impossibility. Hence, a circumstance
which makes sexual relations improbable, cannot defeat the presumption of legitimacy; but it may be proved as a
circumstance to corroborate proof of physical impossibility of access (Tolentino, citing Bonet 352; 4 Valverde 408).
Impotence refers to the inability of the male organ to copulation, to perform its proper function (Bouvier's Law
Dictionary 514). As defined in the celebrated case of Menciano vs. San Jose (89 Phil. 63), impotency is the physical
inability to have sexual intercourse. It is not synonymous with sterility. Sterility refers to the inability to procreate,
whereas, impotence refers to the physical inability to perform the act of sexual intercourse. In respect of the impotency
of the husband of the mother of a child, to overcome the presumption of legitimacy on conception or birth in wedlock
or to show illegitimacy, it has been held or recognized that the evidence or proof must be clear or satisfactory: clear,
satisfactory and convincing, irresistible or positive (S.C. — Tarleton vs. Thompson, 118 S.E. 421, 125 SC 182, cited in
10 C.J.S. 50).
The separation between the spouses must be such as to make sexual access impossible. This may take place when they
reside in different countries or provinces, and they have never been together during the period of conception (Estate of
Benito Marcelo, 60 Phil. 442). Or, the husband may be in prison during the period of conception, unless it appears that
sexual union took place through corrupt violation of or allowed by prison regulations (1 Manresa 492-500).
The illness of the husband must be of such a nature as to exclude the possibility of his having sexual intercourse with
his wife; such as, when because of a injury, he was placed in a plaster cast, and it was inconceivable to have sexual
intercourse without the most severe pain (Tolentino, citing Commissioner vs. Hotel 256 App. Div. 352, 9 N.Y. Supp. p.
515); or the illness produced temporary or permanent impotence, making copulation impossible (Tolentino, citing Q.
Bonet 352).
Thus, in the case of Andal vs. Macaraig (89 Phil. 165), this Court ruled that just because tuberculosis is advanced in a
man does not necessarily mean that he is incapable of sexual intercourse. There are cases where persons suffering
from tuberculosis can do the carnal act even in the most crucial stage of health because then they seemed to be more
inclined to sexual intercourse. The fact that the wife had illicit intercourse with a man other than her husband during
the initial period, does not preclude cohabitation between said husband and wife.
Significantly American courts have made definite pronouncements or rulings on the issues under consideration. The
policy of the law is to confer legitimacy upon children born in wedlock when access of the husband at the time of
conception was not impossible (N.Y. Milone vs. Milone, 290 N.Y. S. 863, 160 Misc. 830) and there is the presumption
that a child so born is the child of the husband and is legitimate even though the wife was guilty of infidelity during the
possible period of conception (N.Y. Dieterich vs. Dieterich, 278 N.Y. S. 645, Misc. 714; both cited in 10 C.J.S., pp. 18,19
& 20).
So firm was this presumption originally that it cannot be rebutted unless the husband was incapable of procreation or
was absent beyond the four seas, that is, absent from the realm, during the whole period of the wife's pregnancy (10
C.J.S. p. 20).
55
The presumption of legitimacy of children born during wedlock obtains, notwithstanding the husband and wife
voluntarily separate and live apart, unless the contrary is shown (Ala. Franks vs. State, 161 So. 549, 26 . App. 430) and
this includes children born after the separation [10 C.J.S. pp. 23 & 24; emphasis supplied].
It must be stressed that Article 256 of the Civil Code which provides that the child is presumed legitimate although the
mother may have declared against its legitimacy or may have been sentenced as an adulteress has been adopted for
two solid reasons. First, in a fit of anger, or to arouse jealousy in the husband, the wife may have made this declaration
(Power vs. State, 95 N.E., 660). Second, the article is established as a guaranty in favor of the children whose condition
should not be under the mercy of the passions of their parents. The husband whose honor if offended, that is, being
aware of his wife's adultery, may obtain from the guilty spouse by means of coercion, a confession against the
legitimacy of the child which may really be only a confession of her guilt. Or the wife, out of vengeance and spite, may
declare the as not her husband's although the statement be false. But there is another reason which is more powerful,
demanding the exclusion of proof of confession or adultery, and it is, that at the moment of conception, it cannot be
determined when a woman cohabits during the same period with two men, by whom the child was begotten, it being
possible that it be the husband himself (Manresa, Vol. I, pp. 503-504).
Hence, in general, good morals and public policy require that a mother should not be permitted to assert the
illegitimacy of a child born in wedlock in order to obtain some benefit for herself (N.Y. — Flint vs. Pierce, 136 N.Y. S.
1056, cited in 10 C.J.S. 77).
The law is not willing that the child be declared illegitimate to suit the whims and purposes of either parent, nor Merely
upon evidence that no actual act of sexual intercourse occurred between husband and wife at or about the time the wife
became pregnant. Thus, where the husband denies having any intercourse with his wife, the child was still presumed
legitimate (Lynn vs. State, 47 Ohio App. 158,191 N.E. 100).
With respect to Article 257 aforequoted, it must be emphasized that adultery on the part of the wife, in itself, cannot
destroy the presumption of legitimacy of her child, because it is still possible that the child is that of the husband
(Tolentino, citing 1 Vera 170; 4 Borja 23-24).
It has, therefore, been held that the admission of the wife's testimony on the point would be unseemly and scandalous,
not only because it reveals immoral conduct on her part, but also because of the effect it may have on the child, who is
in no fault, but who nevertheless must be the chief sufferer thereby (7 Am. Jur. Sec. 21, pp. 641-642).
In the case of a child born or conceived in wedlock, evidence of the infidelity or adultery of the wife and mother is not
admissible to show illegitimacy, if there is no proof of the husband's impotency or non-access to his wife (Iowa —
Craven vs. Selway, 246 N.W. 821, cited in 10 C.J.S. 36).
At this juncture, it must be pointed out that only the husband can contest the legitimacy of a child born to his wife. He
is the one directly confronted with the scandal and ridicule which the infidelity of his wife produces; and he should
decide whether to conceal that infidelity or expose it, in view of the moral or economic interest involved (Tolentino,
citing Bevilaqua, Familia, p. 314).
The right to repudiate or contest the legitimacy of a child born in wedlock belongs only to the alleged father, who is the
husband of the mother and can be exercised only by him or his heirs, within a fixed time, and in certain cases, and only
in a direct suit brought for the purpose (La — Ducasse vs. Ducasse, 45 So. 565, 120 La. 731; Saloy's Succ. 10 So. 872,
44 La. Ann., cited in 10 C.J.S. 77; emphasis supplied).
Thus the mother has no right to disavow a child because maternity is never uncertain; she can only contest the Identity
of the child (La — Eloi vs. Mader, 1 Rollo. 581, 38 Am. D. 192).
Formerly, declarations of a wife that her husband was not the father of a child in wedlock were held to be admissible in
evidence; but the general rule now is that they are inadmissible to bastardize the child, regardless of statutory
provisions obviating incompetency on the ground of interest, or the fact that the conception was antenuptial. The rule
56
is said to be founded in decency, morality and public policy (Wallace vs. Wallace 137 Iowa 37,114 N.W. 527,14 L.R.A.
[N.S.] 544,126 Am. St. Rep. 253,15 Ann. Cas. 761, Am. Jur. 26).
From the foregoing, particularly the testimony of respondent and her witnesses, this Court has every reason to believe
that Crispin Anahaw was not actually separated from Elizabeth Mejias; that he was a very potent man, having had four
children with his wife; that even if he and were even separately (which the latter failed to prove anyway) and assuming,
for argument's sake, that they were really separated, there was the possibility of physical access to each other
considering their proximity to each other and considering further that respondent still visited and recuperated in her
mother's house in Samal where her spouse resided with her children. Moreover, Crispin Anahaw did not have any
serious illness or any illness whatsoever which would have rendered him incapable of having sexual act with his wife.
No substantial evidence whatsoever was brought out to negate the aforestated facts.
Crispin Anahaw served as a refuge after respondent's reckless and immoral pursuits or a "buffer" after her flings. And
she deliberately did not include nor present her husband in this case because she could not risk her scheme. She had to
be certain that such scheme to bastardize her own son for her selfish motives would not be thwarted.
This Court finds no other recourse except to deny respondent's claim to declare her son Rolando the illegitimate child
of petitioner. From all indications, respondent has paraded herself as a woman of highly questionable character. A
married woman who, on first meeting, rides with a total stranger who is married towards nightfall, sleeps in his house
in the presence of his children, then lives with him after their initial sexual contact — the atmosphere for which she
herself provided — is patently immoral and hedonistic. Although her husband was a very potent man, she readily
indulged in an instant illicit relationship with a married man she had never known before.
Respondent had shown total lack of or genuine concern for her child (Rolando) for, even after birth, she left him in the
care of a yaya for several months. This is not the normal instinct and behavior of a mother who has the safety and
welfare of her child foremost in her mind. The filing of this case itself shows how she is capable of sacrificing the
psycho-social future (reputation) of the child in exchange for some monetary consideration. This is blatant
shamelessness.
It also appears that her claim against petitioner is a disguised attempt to evade the responsibility and consequence of
her reckless behavior at the expense of her husband, her illicit lover and above all — her own son. For this Court to
allow, much less consent to, the bastardization of respondent's son would give rise to serious and far-reaching
consequences on society. This Court will not tolerate scheming married women who would indulge in illicit affairs with
married men and then exploit the children born during such immoral relations by using them to collect from such
moneyed paramours. This would be the form of wrecking the stability of two families. This would be a severe assault on
morality.
And as between the paternity by the husband and the paternity by the paramour, all the circumstances being equal, the
law is inclined to follow the former; hence, the child is thus given the benefit of legitimacy.
Finally, Article 220 of the Civil Code reinforces the aforesaid principle when it provides thus:
Art. 220. In case of doubt, an presumptions favor the solidarity of the family. Thus, every of law or
facts leans toward the validity of marriage, the indissolubility of the marriage bonds, the legitimacy
of children the community of property during marriage, the authority of parents over their children,
and the validity of defense for any member of the family in case of unlawful aggression.
WHEREFORE, THE DECISION OF THE COURT OF APPEALS DATED JUNE 2, 1978, AND ITS RESOLUTION DATED NOVEMBER
6, 1978 ARE HEREBY REVERSED AND SET ASIDE. COSTS AGAINST PRIVATE RESPONDENT.
SO ORDERED.
Teehankee (Chairman), Fernandez, Guerrero, De Castro and Melencio-Herrera, JJ., concur.
57
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-49162 July 28, 1987
JANICE MARIE JAO, represented by her mother and guardian ad litem, ARLENE S. SALGADO, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and PERICO V. JAO, respondents.
PADILLA, J.:
Appeal by certiorari from the decision* of the Court of Appeals in CA-G.R. No. 51078-R, dated 29 August 1978, which
dismissed petitioner"s action for recognition and support against private respondent, and from the respondent Court"s
resolution, dated 11 October 1978, denying petitioner"s motion for reconsideration of said decision.
On 28 October 1968, petitioner Janice Marie Jao, then a minor, represented by her mother and guardian-ad-
litem Arlene Salgado, filed a case for recognition and support with the Juvenile and Domestic Relations Court against
private respondent Perico V. Jao. The latter denied paternity so the parties agreed to a blood grouping test which was in
due course conducted by the National Bureau of Investigation (NBI) upon order of the trial court. The result of the blood
grouping test, held 21 January 1969, indicated that Janice could not have been the possible offspring of Perico V. Jao
and Arlene S. Salgado.1
The trial court initially found the result of the tests legally conclusive but upon plaintiff"s (herein petitioner"s) second
motion for reconsideration, it ordered a trial on the merits, after which, Janice was declared the child of Jao, thus
entitling her to his monthly support.
Jao appealed to the Court of Appeals, questioning the trial court"s failure to appreciate the result of the blood grouping
tests. As there was no showing whatsoever that there was any irregularity or mistake in the conduct of the tests, Jao
argued that the result of the tests should have been conclusive and indisputable evidence of his non-paternity.
The Court of Appeals upheld Jao"s contentions and reversed the trial court"s decision. In its decision, the Court of
Appeals held:
From the evidence of the contending parties, it appears undisputed that JAO was introduced to ARLENE at the
Saddle and Sirloin, Bay Side Club, by Melvin Yabut. After this meeting, JAO dated and courted ARLENE. Not
long thereafter, they had their first sexual intercourse and subsequently, they lived together as husband and
wife. ...
It further appears undisputed that in April 1968, JAO accompanied ARLENE to the Marian General Hospital for
medical check-up and her confinement was with JAO"s consent. JAO paid the rentals where they lived, the
salaries of the maids, and other household expenses. ...
The record discloses that ARLENE gave birth to JANICE on August 16, 1968, after completing 36 weeks of
pregnancy, which indicates that ARLENE must have conceived JANICE on or about the first week of December,
1967. "Thus, one issue to be resolved in this appeal is whether on or about that time, JAO and ARLENE had
sexual intercourse and were already living with one another as husband and wife.
In this connection, ARLENE contends that she first met JAO sometime in the third or fourth week of November,
1967 at the Saddle and Sirloin, Bayside Club; that after several dates, she had carnal knowledge with him at
her house at 30 Long beach, Merville, Paranaque. Rizal in the evening of November 30, 1967, and that he
58
started to live with her at her dwelling after December 16, 1967, the date they finished their cruise to Mindoro
Island.
On the other hand, JAO, albeit admitting that he met ARLENE at the Saddle and Sirloin, Bayside Club, however,
maintains that this was on December 14, 1967 because the day following, he and his guests: ARLENE, Melvin
Yabut, Didi Crescini and Charlie Litonjua went to Mindoro by boat. He dated ARLENE four times in January,
1968. He remembered he had carnal knowledge of her for the first time on January 18, 1968, because that
was a week after his birthday and it was only in May, 1968 that he started cohabiting with her at the Excelsior
Apartments on Roxas Boulevard.
These conflicting versions of the parties emphasize, in resolving the paternity of JANICE, the role of the blood
grouping tests conducted by the NBI and which resulted in the negative finding that in a union with ARLENE,
JAO could not be the father of JANICE.
We cannot sustain the conclusion of the trial court that the NBI is not in a position to determine with
mathematical precision the issue of parentage by blood grouping test, considering the rulings of this Court ...
where the blood grouping tests of the NBI were admitted; especially where, in the latter case, it was Dr.
Lorenzo Sunico who conducted the test and it appears that in the present case, the same Dr. Sunico approved
the findings and report. ... In Co Tao vs. Court of Appeals, 101 Phil. 188, the Supreme Court had given weight
to the findings of the NBI in its blood grouping test. Thus, it cannot be gainsaid that the competency of the
NBI to conduct blood grouping tests has been recognized as early as the 1950"s.
The views of the Court on blood grouping tests may be stated as follows:
Paternity — Science has demonstrated that by the analysis of blood samples of the mother, the child,
and the alleged father, it can be established conclusively that the man is not the father of the child.
But group blood testing cannot show that a man is the father of a particular child, but at least can
show only a possibility that he is. Statutes in many states, and courts in others, have recognized the
value and the limitations of such tests. Some of the decisions have recognized the conclusive
presumption of non-paternity where the results of the test, made in the prescribed manner, show the
impossibility of the alleged paternity. This is one of the few cases in which the judgment of the Court
may scientifically be completely accurate, and intolerable results avoided, such as have occurred
where the finding is allowed to turn on oral testimony conflicting with the results of the test.
The findings of such blood tests are not admissible to prove the fact of paternity as they show only a
possibility that the alleged father or any one of many others with the same blood type may have been
the father of the child. But the Uniform Act recognizes that the tests may have some probative value
to establish paternity where the blood type and the combination in the child is shown to be rare, in
which case the judge is given discretion to let it in (I Jones on Evidence, 5th Ed., pp. 193-194).
In one specific biological trait, viz, blood groups, scientific opinion is now in accord in accepting the
fact that there is a causative relation between the trait of the progenitor and the trait of the progeny.
In other words, the blood composition of a child may be some evidence as to the child"s paternity.
But thus far this trait (in the present state of scientific discovery as generally accepted) can be used
only negatively i.e. to evidence that a particular man F is not the father of a particular child C. (I
Wigmore on Evidence 3rd Ed., pp. 610-611).
In a last ditch effort to bar the admissibility and competency of the blood test, JANICE claims that probative
value was given to blood tests only in cases where they tended to establish paternity; and that there has been
no case where the blood test was invoked to establish non-paternity, thereby implying that blood tests have
probative value only when the result is a possible affirmative and not when in the negative. This contention is
fallacious and must be rejected. To sustain her contention, in effect, would be recognizing only the possible
affirmative finding but not the blood grouping test itself for if the result were negative, the test is regarded
59
worthless. Indeed, this is illogical. .... As an admitted test, it is admissible in subsequent similar proceedings
whether the result be in the negative or in the affirmative. ...
The Court of Appeals also found other facts that ran contrary to petitioner"s contention that JAO"s actions before and
after JANICE was born were tantamount to recognition. Said the respondent appellate court:
On the contrary, after JANICE was born, JAO did not recognize her as his own. In fact, he filed a petition that
his name as father of JANICE in the latter"s certificate of live birth be deleted, evidencing his repudiation,
rather than recognition. The mere acts of JAO in cohabiting with ARLENE, the attention given to her during her
pregnancy and the financial assistance extended to her cannot overcome the result of the blood grouping test.
These acts of JAO cannot be evaluated as recognizing the unborn JANICE as his own as the possession of such
status cannot be founded on conjectures and presumptions, especially so that, We have earlier said, JAO
refused to acknowledge JANICE after the latter"s birth.
JAO cannot be compelled to recognize JANICE based on paragraph 2 of Article 283 in relation to Article 289 of
the New Civil Code which provides: "When the child is in continuous possession of status of a child of the
alleged father by the direct acts of the latter.
Nor can there be compulsory recognition under paragraphs 3 or 4 of said article which states:
(3) When the child was conceived during the time when the mother cohabited with the supposed
father;
(4) When the child has in his favor any evidence or proof that the defendant is his father.
As aptly appreciated by the court below, JANICE could have been conceived from November 20, 1967 to
December 4, 1967. Indeed, ARLENE claims that her first sexual intercourse with JAO was on November 30,
1967 while the latter avers it was one week after January 18, 1968. However, to satisfy paragraph 3 as above-
quoted, JANICE must have been conceived when ARLENE and JAO started to cohabit with one another. Since
ARLENE herself testified that their cohabitation started only after December 16, 1967, then it cannot be
gainsaid that JANICE was not conceived during this cohabitation. Hence, no recognition will lie. Necessarily,
recognition cannot be had under paragraph 4 as JANICE has no other evidence or proof of her alleged
paternity.
Apart from these, there is the claim of JAO that, at the critical time of conception, ARLENE had carnal
knowledge with two other men: "Oying" Fernandez and Melvin Yabut, which was not even rebutted; and
considering that it was Melvin Yabut, who introduced ARLENE to JAO at the Bayside Club. Moreover, the
testimony of ARLENE is not wholly reliable. When the trial court said that "the Court is further convinced of
plaintiff"s cause by ARLENE"s manner of testifying in a most straight-forward and candid manner," the fact
that ARLENE was admittedly a movie actress may have been overlooked so that not even the trial court could
detect, by her acts, whether she was lying or not.
WHEREFORE, the judgment appealed from is hereby set aside and a new one entered dismissing plaintiff-
appellee"s complaint. Without pronouncement as to costs. SO ORDERED.
The petitioner now brings before this Court the issue of admissibility and conclusiveness of the result of blood
grouping tests to prove non-paternity.
In this jurisdiction, the result of blood tests, among other evidence, to, affirm paternity was dealt with in Co Tao v.
Court of Appeals,2 an action for declaration of filiation, support and damages. In said case, the NBI expert"s report of
the blood tests stated that "from their blood groups and types, the defendant Co Tao is a possible father of the child."
From this statement the defendant contended that the child must have been the child of another man. The Court noted:
"For obvious reasons, the NBI expert cannot give assurance that the appellant was the father of the child; he can only
60
give his opinion that he is a "possible father." This possibility, coupled with the other facts and circumstances brought
out during the trial, tends to definitely establish that appellant Co Tao is the father of the child Manuel."3
Where the issue is admissibility and conclusiveness of blood grouping tests to disprove paternity, rulings have been
much more definite in their conclusions. For the past three decades, the use of blood typing in cases of disputed
parentage has already become an important legal procedure. There is now almost universal scientific agreement that
blood grouping tests are conclusive as to non-paternity, although inconclusive as to paternity — that is, the fact that
the blood type of the child is a possible product of the mother and alleged father does not conclusively prove that the
child is born by such parents; but, if the blood type of the child is not the possible blood type when the blood of the
mother and that of the alleged father are crossmatched, then the child cannot possibly be that of the alleged father.4
In jurisdictions like the United States, the admissibility of blood tests results to prove non-paternity has already been
passed upon in several cases. In Gilpin v. Gilpin5 the positive results of blood tests excluding paternity, in a case in
which it was shown that proper safeguards were drawn around the testing procedures, were recognized as final on the
question of paternity. In Cuneo v. Cuneo6 evidence of non-paternity consisting of the result of blood grouping tests was
admitted despite a finding that the alleged father had cohabited with the mother within the period of gestation. The
Court said that the competent medical testimony was overwhelmingly in favor of the plaintiff, and to reject such
testimony would be tantamount to rejecting scientific fact. Courts, it was stated, should apply the results of science
when competently obtained in aid of situations presented, since to reject said result was to deny progress.7 This ruling
was also echoed in Clark v. Rysedorph,8 a filiation proceeding where an uncontradicted blood grouping test evidence,
excluding paternity, was held conclusive.9 Legislation expressly recognizing the use of blood tests is also in force in
several states.10 Tolentino,11 affirms this rule on blood tests as proof of non-paternity, thus —
Medical science has shown that there are four types of blood in man which can be transmitted through
heredity. Although the presence of the same type of blood in two persons does not indicate that one was
begotten by the other, yet the fact that they are of different types will indicate the impossibility of one being
the child of the other. Thus, when the supposed father and the alleged child are not in the same blood group,
they cannot be father and child by consanguinity. The Courts of Europe today regard a blood test exclusion as
an unanswerable and indisputable proof of non-paternity. 12
Moreover,
The cohabitation between the mother and the supposed father cannot be a ground for compulsory recognition
if such cohabitation could not have produced the conception of the child. This would be the case, for instance,
if the cohabitation took place outside of the period of conception of the child. Likewise, if it can be proved by
blood tests that the child and the supposed father belong to different blood groups, the cohabitation by itself
cannot be a ground for recognition. 13
Petitioner has attempted to discredit the result of the blood grouping tests in the instant case by impugning the
qualifications of the NBI personnel who performed the tests and the conduct of the tests themselves. Her allegations, in
this regard, appear to be without merit. The NBI"s forensic chemist who conducted the tests is also a serologist, and has
had extensive practice in this area for several years. The blood tests were conducted six (6) times using two (2)
scientifically recognized blood grouping systems, the MN Test and the ABO System,14 under witness and supervision.15
Even the allegation that Janice was too young at five months to have been a proper subject for accurate blood tests
must fall, since nearly two years after the first blood test, she, represented by her mother, declined to undergo the
same blood test to prove or disprove their allegations, even as Jao was willing to undergo such a test again.16 1avvphi1
Accordingly, the Court affirms the decision of the Court of Appeals and holds that the result of the blood grouping tests
involved in the case at bar, are admissible and conclusive on the non-paternity of respondent Jao vis-a-vis petitioner
Janice. No evidence has been presented showing any defect in the testing methods employed or failure to provide
adequate safeguards for the proper conduct of the tests. The result of such tests is to be accepted therefore as
accurately reflecting a scientific fact.
61
In view of the findings of fact made by the Court of Appeals, as heretofore quoted, which are binding on this Court, we
do not find it necessary to further pass upon the issue of recognition raised by petitioner.
WHEREFORE, the instant petition for review is hereby denied. Without pronouncement as to costs.
SO ORDERED.
Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-83942 December 29, 1988
ROMEO S. AMURAO, petitioner,

vs.
HON. COURT OF APPEALS and ROMUEL JEROME BUENAVENTURA, represented by her natural mother and guardian ad
litem FE ROSARIO BUENAVENTURA, respondents.
GRINO-AQUINO, J.:
The petitioner was sued for support by the offspring of his illicit relations with a 19-year old college student. The
petitioner denied paternity and refused to give support.
At the commencement of the trial on July 25, 1977, the trial court made a
last-minute effort to simplify the issues by calling the parties and their counsel to a conference in her chambers. The
result was an agreement of the parties, a gist of which was written down in the minutes of the hearing, duly signed by
the parties and their counsel, attested by the Deputy Clerk of Court, and embodied in the court's order of September
26, 1977 as follows:
When this case was called for trial this morning, parties jointly moved for a conference in chambers.
The same was granted. After said conference, parties agreed to submit themselves to a blood-
grouping test to determine the paternity of plaintiff before the National Bureau of Investigation; and
to be bound by the results of the said government agency in the following manner: a) if the finding is
to the effect that herein plaintiff may be the offspring of defendant, paternity shall be admitted and
this case will proceed for trial only on the issue of amount of support; and b) if the finding is
negative, then this case shall be dismissed without further trial. The Court finds the same well taken.
WHEREFORE, plaintiff-minor. his natural mother and defendant are hereby ordered to submit
themselves to a blood-grouping test before the National Bureau of Investigation on or before
October 17, 1977 at 10:00 o'clock in the morning for a determination of plaintiffs paternity.
(Emphasis supplied.) (pp. 29-30, Original Records; p. 20, Rollo.)
On the basis of the blood grouping tests performed by the National Bureau of Investigation (NBI), the NBI submitted to
the Court Report No. 77-100 dated October 17, 1977, finding that:
The said child (Romuel Jerome Buenaventura) is a possible offspring of the alleged father Romeo
Amurao with Fe Rosario Buenaventura as the natural mother. (p. 20, Rollo.)
62
Exactly one year later, on September 26, 1978, the petitioner filed a motion for reconsideration of the court's order
dated September 26, 1977, impugning its validity. The motion was denied by the trial court. The petitioner sought a
review of the order by the Supreme Court through a petition for certiorari (G.R. No. 51407). The petition was denied by
this Court on May 4, 1980.
A motion to declare the petitioner in contempt of court for failure to pay support pendente lite was filed by the private
respondent minor. At the hearing of the contempt motion the parties presented evidence on the petitioner's capability
to give support. After the hearing on the contempt motion, the case was set for trial on July 8, 1983, with due notice to
both parties, for the presentation of further evidence by the petitioner (defendant) on the main case. However, neither
the petitioner, nor his counsel, appeared at the hearing. The court declared the case submitted for decision. On August
8, 1985, it rendered judgment for the private respondent ordering the petitioner to pay the former support of P500 per
month plus attorney's fees of P3,000, and costs.
Petitioner appealed to the Court of Appeals (CA-G.R. No. CV 07645) which rendered judgment on March 7, 1988, as
follows:
WHEREFORE, judgment appealed from is hereby AFFIRMED with the modification that the support
fixed in the judgment appealed from is increased to One Thousand Five Hundred (P1,500.00) Pesos,
payable within the first five days of each month at the plaintiffs residence. Defendant-appellant is
hereby ordered to pay support pendente lite of P200.00 in arrears since October 1978 up to the
termination of this appeal. Costs against defendant-appellant. (p. 24, Rollo.)
Once more, the case is before Us for review upon a petition alleging that the Court of Appeals erred:
1. in finding that the petitioner had admitted his paternity in relation to the minor Romuel Jerome
Buenaventura and that hence said minor is entitled to receive support from him;
2. in upholding the trial court's decision based on the evidence (consisting among others of the
petitioner's balance sheets, audit reports and admissions regarding his income) presented by the
parties at the hearing of the plaintiffs contempt motion;
3. in increasing the amount of support granted by the trial court; and
4. in applying Article 290 of the Civil Code instead of Articles 296 and 297 of the same Code.
The petition for review is devoid of merit.
The first, second, third, and fourth issues raised by the petition are factual issues which this Court may not review
under Rule 45 of the Rules of Court.
Whether or not the petitioner made an admission of paternity under the terms of the trial court's order dated September
26, 1977, thereby binding himself to give support to his child, the private respondent herein, is a finding of fact.
So is the Court's determination of the amount of support payable to the private respondent. It was perfectly proper for
the Court to consider the evidence presented by the parties at the hearing of the plaintiff s contempt motion against the
defendant, as evidence also on the merits of the main case. The parties did not have to repeat the ritual of presenting
the same evidence all over again to the court. The defendant (herein petitioner), by failing to appear at the hearing of
the main case on July 8, 1983 (p. 17, Rollo), waived his right to adduce additional evidence. Hence, he may not be heard
to complain that he was denied due process.
Whether or not the Court of Appeals correctly determined that the minor, who filed his action for support in 1977 when
he was only an infant five (5) months old, is now (as an 11-year old student) entitled to an increase in the amount of
support awarded to him by the trial court, is also a factual issue which We may not re-examine and review.
63
In any event, We find no reversible error in the decision of the Court of Appeals. The increase in the child's support is
proper and is sanctioned by the provisions of Articles 290, 296 and 297 of the Civil Code.
WHEREFORE, the petition is denied for lack of merit. This decision is immediately executory.
SO ORDERED.
Cruz, * Gancayco and Medialdea, JJ., concur.
Narvasa, J., is on leave.

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-75377 February 17, 1988
CHUA KENG GIAP, petitioner,

vs.
HON. INTERMEDIATE APPELLATE COURT and CHUA LIAN KING respondents.
CRUZ, J.:
We are faced once again with still another bid by petitioner for the status of a legitimate heir. He has failed before, and
he will fail again.
In this case, the petitioner insists that he is the son of the deceased Sy Kao and that it was error for the respondent
court to reject his claim. He also says his motion for reconsideration should not have been denied for tardiness because
it was in fact filed on time under the Habaluyas ruling. 1
This case arose when Chua Keng Giap filed on May 19, 1983, a petition for the settlement of the estate of the late Sy
Kao in the regional trial court of Quezon City. The private respondent moved to dismiss for lack of a cause of action
and of the petitioner's capacity to file the petition. The latter, it was claimed, had been declared as not the son of the
spouses Chua Bing Guan and Sy Kao in S.P. No. Q-12592, for the settlement of the estate of the late Chua Bing Guan.
The decision in that case had long become final and executory.2
The motion was denied by Judge Jose P. Castro, who held that the case invoked decided the paternity and not the
maternity of the petitioner. 3 Holding that this was mere quibbling, the respondent court reversed the trial judge in a
petition for certiorari filed by the private respondent.4 The motion for reconsideration was denied for late filing.5 The
petitioner then came to this Court to challenge these rulings.
The petitioner argues at length that the question to be settled in a motion to dismiss based on lack of a cause of action
is the sufficiency of the allegation itself and not whether these allegations are true or not, for their truth is
hypothetically admitted. 6 That is correct. He also submits that an order denying a motion to dismiss is merely
interlocutory and therefore reversible not in a petition for certiorari but on appeal.7 That is also correct Even so, the
petition must be and is hereby denied.
64
The petitioner is beating a dead horse. The issue of his claimed filiation has long been settled, and with finality, by no
less than this Court. That issue cannot be resurrected now because it has been laid to rest in Sy Kao v. Court of
Appeals, 8 decided on September 28, 1984. In that case, Sy Kao flatly and unequivocally declared that she was not the
petitioner's mother.
The Court observed through Justice Hugo E. Gutierrez, Jr.
Petitioner Sy Kao denies that respondent Chua Keng Giap is her son by the deceased Chua Bing Guan.
Thus, petitioner's opposition filed on December 19, 1968, is based principally on the ground that the
respondent was not the son of Sy Kao and the deceased but of a certain Chua Eng Kun and his wife
Tan Kuy.
After hearing on the merits which lasted for ten years, the court dismissed the respondent's petition
on March 2, 1979 on a finding that he is not a son of petitioner Sy Kao and the deceased, and
therefore, had no lawful interest in the estate of the latter and no right to institute the intestacy
proceedings.
The respondent tried to appeal the court's resolution but his appeal was denied by the lower court
for having been filed out of time. He then filed a mandamus case with the Court of appeals but the
same was dismissed. Respondent, therefore, sought relief by filing a petition for certiorari, G.R. No.
54992, before this Court but his petition was likewise dismissed on January 30, 1982, for lack of
merit. His subsequent motions for reconsideration met a similar fate.
xxx xxx xxx
To allow the parties to go on with the trial on the merits would not only subject the petitioners to the
expense and ordeal of obligation which might take them another ten years, only to prove a point
already decided in Special Proceeding No. Q-12592, but more importantly, such would violate the
doctrine of res judicata which is expressly provided for in Section 49, Rule 39 of the Rules of Court.
There is no point in prolonging these proceedings with an examination of the procedural objections to the grant of the
motion to dismiss. In the end, assuming denial of the motion, the resolution of the merits would have to be the same
anyway as in the aforesaid case. The petitioner's claim of filiation would still have to be rejected.
Discussion of the seasonableness of the motion for reconsideration is also unnecessary as the motion would have been
validly denied just the same even if filed on time.
Who better than Sy Kao herself would know if Chua Keng Giap was really her son? More than any one else, it was Sy Kao
who could say — as indeed she has said these many years--that Chua Keng Giap was not begotten of her womb.
WHEREFORE, the petition is DENIED, with costs against the petitioner. It is so ordered.
Teehankee, C.J., Narvasa, Gancayco and Griño-Aquino, JJ., concur.
65
PRESUMPTIONS

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-69679 October 18, 1988
VIOLETA CABATBAT LIM, LIM BIAK CHIAO and CALASIAO BIJON FACTORY, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, CONSORCIA FRIANEZA GOLEA, MARIA FRIANEZA VERGARA, BENEDICTA FRIANEZA
MAYUGBA BONIFACIA FRIANEZA HEIRS OF DOMINGO FRIANEZA namely, DECIDERIA Q. VDA. DE FRIANEZA FRANCISCO,
DONA, VILMA and DECIDERIA, all surnamed FRIANEZA HEIRS OF DANIEL FRIANEZA namely, ADELA V. VDA. DE FRIANEZA
in her behalf and as Guardian ad litem of Minors, DARLENE, DANIEL JR., DUSSEL and DAISY GLEN, all surnamed
FRIANEZA respondents.
Ethelwoldo R. de Guzman for petitioners.
Tomas B. Tadeo, Sr. for private respondents.
GRIÑO-AQUINO, J.:
This case involves a contest over the estate of the late Dra. Esperanza Cabatbat wherein the protagonists are her sisters
and the children of her deceased brothers on one hand, and the petitioner Violeta Cabatbat Lim who claims to be her
only child.
Petitioners Violeta Cabatbat Lim, her husband Liam Biak Chiao, and the Calasiao Bijon Factory assail the decision dated
October 25, 1984 of the Intermediate Appellate Court, now Court of Appeals (AC-G.R. No. CV 67055), which affirmed
the trial court's decision finding that petitioner Violeta Cabatbat Lim is not the off-spring, hence, not a legal heir of the
late Esperanza Cabatbat.
The private respondents, sisters of the late Esperanza Frianeza-Cabatbat, filed a complaint in the Court of First Instance
of Pangasinan (Civil Case No. D-3841), praying for the partition of the estate of Esperanza Frianeza Cabatbat, who died
without issue on April 23, 1977. Part of her estate was her interest in the business partnership known as Calasiao Bijon
Factory, now in the possession of Violeta Cabatbat Lim who claims to be the child of the spouses Esperanza and
Proceso Cabatbat.
Esperanza Frianeza-Cabatbat was survived by her husband, Proceso Cabatbat, her sisters, Consorcia Maria, Benedicta,
Bonifacia, all surnamed Frianeza and the children of her deceased brothers Daniel and Domingo. In their complaint, the
private respondents alleged that Violeta Cabatbat Lim is not a child of Esperanza, but was only a ward (ampon) of the
spouses Esperanza and Proceso Cabatbat who sheltered and supported her from childhood, without benefit of formal
adoption proceedings.
Private respondents' evidence on the non-filiation of Violeta to Esperanza Cabatbat were: 1) the absence of any record
that Esperanza Cabatbat was admitted in the hospital where Violeta was born and that she gave birth to Violeta on the
day the latter was born; 2) the absence of the birth certificate of Violeta Cabatbat in the files of certificates of live births
of the Pangasinan Provincial Hospital for the years 1947 and 1948, when Violeta was supposedly born; 3) certification
dated March 9, 1977, of the Civil Registry coordinator Eugenio Venal of the Office of the Civil Registrar General, that his
office has no birth record of Violeta Cabatbat alleged to have been born on May 26, 1948 or 1949 in Calasiao,
Pangasinan; 4) certification dated June 16, 1977 of Romeo Gabriana, Principal II, that when Violeta studied in the
Calasiao Pilot Central School, Proceso Cabatbat and Esperanza Cabatbat were listed as her guardians only, not as her
66
parents; 5) testimony of Amparo Reside that she was in the Pangasinan Provincial Hospital on May 21,1948 to watch a
cousin who delivered a child there and that she became acquianted with a patient named Benita Lastimosa who gave
birth on May 26, 1948 to a baby girl who grew up to be known as Violeta Cabatbat.
Pitted against the evidence of the plaintiffs are the evidence of herein petitioners consisting of. 1) Violeta Cabatbat's
birth record which was filed on June 15,1948 showing that she was born on May 26, 1948 at the Pangasinan Provincial
Hospital and that she is a legitimate child of the spouses Proceso and Esperanza Cabatbat; 2) testimony of Proceso
Cabatbat that Violeta is his child with the deceased Esperanza Frianeza; 3) testimony of Benita Lastimosa denying that
she delivered a child in the Pangasinan Provincial Hospital and that Violeta Cabatbat Lim is that child; 4) the marriage
contract of Violeta and Lim Biak Chiao where Esperanza appeared as the mother of the bride; 5) Deed of Sale dated May
14, 1960, wherein the vendee Violeta Cabatbat, then a minor, was represented and assisted by her "mother," Dra.
Esperanza Cabatbat; and 6) another Deed of Absolute Sale dated April 21, 1961, wherein Violeta Cabatbat was assisted
and represented by her "father," Proceso Cabatbat.
Upon the evidence, the trial court held on August 10, 1979 that Violeta Cabatbat is not a child by nature of the spouses
Esperanza and Proceso Cabatbat and that hence, she is not a legal heir of the deceased Esperanza Cabatbat. The
dispositive portion of the trial court's decision reads:
WHEREFORE, judgment is hereby rendered as follows:
(1) Finding that defendant VIOLETA CABATBAT LIM is not a child by nature of the spouses, decedent
Esperanza Frianeza and defendant Proceso Cabatbat, and not a compulsory heir of the said decedent;
(2) Declaring that the heirs of the decedent are her surviving husband, defendant Proceso Cabatbat
and her sisters, plaintiffs Consorcia MARIA, BENEDICTA alias JOVITA, and BONIFACIA alias
ANASTACIA, all surnamed FRIANEZA her brothers deceased DANIEL FRIANEZA represented by his
surviving spouse, Adela Vda. de Frianeza, and their children, Darlene, Daniel, Jr., Dussel and Daisy
Glen, all surnamed FRIANEZA and deceased DOMINGO FRIANEZA represented by his surviving spouse
Decideria Q. Vda. de Frianeza and their children, Francisco, Dona, Vilma and Decideria, all surnamed
FRIANEZA
(3) Finding that the estate left by the decedent are the thirty properties enumerated and described at
pages 13 to 19 supra and an equity in the Calasiao Bijon Factory in the sum of P37,961.69 of which
P13,221.69 remains after advances obtained by the deceased during her lifetime and lawful
deductions made after her death;
(4) That of the real properties adverted to above, three-fourth (3/4) pro- indiviso is the share of
defendant Proceso Cabatbat, as the surviving spouse, one-half (½) as his share of the conjugal estate
and one-half (½) of the remaining one-half as share as heir from his wife (decedent's) estate, while
the remaining one-half (½) of the other half is the group share of the heirs of the brothers and sisters
of his wife and of the children of the latter if deceased, whose names are already enumerated
hereinbefore in the following proportions: one-sixth (1/6) each pro-indiviso to Consorcia Maria,
Benedicta alias Jovita, and Bonifacia alias Anastacia; one-sixth (1/6) to Adela B. Vda. de Fraineza
Darlene, Daniel, Jr., Dussel and Daisy Glen, as a group in representation of deceased brother DANIEL
FRIANEZA and one. sixth (1/6) to Decideria Q. Vda. de Frianeza, Francisco, Dona, Vilma and Decideria
as a group in representation of deceased brother DOMINGO FRIANEZA
(5) That of the balance of the equity of the deceased in the CALASIAO BIJON FACTORY in the sum of
P13,221.69, three-fourths (3/4) or P9,916.29 is the share of Proceso Cabatbat as surviving spouse
and as heir of his deceased wife, and the remaining one-fourth (1/4) to the plaintiffs under the
sharing already stated in the preceding paragraph; (a) but because defendant Proceso Cabatbat has
overdrawn his share he is ordered to return to the estate the sum of P796.34 by depositing the same
with the Clark of Court; and (b) defendant Violeta Cabatbat Lim, not being an heir, is ordered to
67
return to the estate the sum of P2,931.13 half of what she and her codefendant Proceso Cabatbat
withdrew from the equity of the deceased under Exhibit 29, receipt dated April 30, 1977;
(6) Ordering jointly defendant a Proceso Cabatbat and Violeta Cabatbat Lim to pay attorney's fees in
the sum of P5,000.00, the sum of P4,000.00 from defendant Proceso Cabatbat and Pl,000.00 from
defendant Violeta Cabatbat Lim, and litigation expenses in the sum of Pl,000.00 from defendant
Proceso Cabatbat and P200.00 from defendant Violeta Cabatbat Lim, to the plaintiffs, and to pay the
costs.
SO ORDERED. (pp. 236-239, Record on Appeal.)

Petitioners appealed to the Intermediate Appellate Court which affirmed the decision of the trial court on October 25,
1984.
A motion for reconsideration filed by the petitioners was denied by the Intermediate Appellate Court.
Petitioners have elevated the decision to Us for review on certiorari, alleging that the Intermediate Appellate Court
erred:
1. In finding that petitioner is not the child of Prospers and Esperanza Cabatbat;
2. In ignoring the provisions of Section 22 of Rule 132, Rules of Court;
3. In not considering the provision of Article 263 of the New Civil Code;
4. In disregarding Exhibits 8, 9, 10, and 11 of petitioner Violeta Cabatbat Lim
Petitioners' first and fourth assignments of error raise factual issues. The finding of the trial court and the Court of
Appeals that Violeta Cabatbat was not born of Esperanza Cabatbat is a factual finding based on the evidence presented
at the trial, hence, it is conclusive upon Us. Well entrenched is the rule that "factual findings of the trial court and the
Court of Appeals are entitled to great respect" (Vda. de Roxas vs. IAC, 143 SCRA 77; Republic vs. IAC, 144 SCRA 705).
Section 22, Rule 132 of the Rules of Court which provides that: "Where a private writing is more than thirty years old, is
produced from a custody in which it would naturally be found if genuine, and is unblemished by any alterations or
circumstances of suspicion, no other evidence of its execution and authenticity need be given" does not apply to
petitioners' Exhibit "5," the supposed birth registry record of defendant Violeta Cabatbat showing that she was born on
May 26,1948, at the Pangasinan Provincial Hospital in Dagupan City, and that her father and mother are Proceso
Cabatbat and Esperanza Frianeza, respectively. In rejecting that document, the trial court pointedly observed:
This is very strange and odd because the Registry Book of admission of the hospital does not show
that Esperanza Frianeza was ever a patient on May 26, 1948. Indeed, Esperanza Frianeza was never
admitted in the hospital as an obstetrics case before or after May 26, 1948, that is from December 1,
1947 to June 15, 1948 (Stipulation of Facts, Pre-Trial Order of May 23, 1977, Record on Appeal, p.
117).
On May 26, 1948, the day defendant Violeta Cabatbat was alleged to have been delivered by
Esperanza Frianeza in the Pangasinan Provincial Hospital, the records of the hospital show that only
one woman by the same of the Benita Lastimosa of Tagudin, Ilocos Sur, not Esperanza Frianeza, gave
birth to an illegitimate child who was named by her mother Benita Lastimosa as Baby Girl Lastimosa
(Exhibit S. Plaintiffs' Folder of Exhibits, p. 39, Record on Appeal, pp. 117-118). Furthermore, the
record of birth certificates of Pangasinan Provincial Hospital for the years 1947 and 1948 does not
carry the birth certificate of defendant Violeta Cabatbat and the only birth certificate in the file of
birth certificates of the hospital for May 26, 1948 is that of Baby Girl Lastimosa whose mother's name
is Benita Lastimosa. (pp. 3-4, CA Decision, pp. 13-14, Record on Appeal.)
Furthermore, the absence of a record of the birth of petitioner Violeta Cabatbat in the Office of the Civil Registrar
General, puts a cloud on the genuineness of her Exhibit 5.
Petitioners' recourse to Article 263 of the New Civil Code is not well-taken. This legal provision refers to an action to
impugn legitimacy. It is inapplicable to this case because this is not an action to impugn the legitimacy of a child, but
an action of the private respondents to claim their inheritance as legal heirs of their childless deceased aunt. They do
not claim that petitioner Violeta Cabatbat Lim is an illegitimate child of the deceased, but that she is not the decedent's
68
child at all. Being neither a legally adopted child, nor an acknowledged natural child, nor a child by legal fiction of
Esperanza Cabatbat, Violeta is not a legal heir of the deceased.
WHEREFORE, the petition is denied for lack of merit. The appealed decision is affirmed, but with modification of
paragraphs 2 and 4 of the dispositive portion thereof, by excluding the widows Adela B. Vda. de Frianeza and Decideria
Q. Vda. de Frianeza, who are not legal heirs of Esperanza Frianeza Cabatbat from participating with their children and
the surviving sisters of the deceased in the one-fourth share of the estate pertaining to the latter under Article 1001 of
the Civil Code.
SO ORDERED.
Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.
WHO MAY IMPUGN
[G.R. No. 138961. March 7, 2002.]
WILLIAM LIYAO, JR., represented by his mother Corazon Garcia, Petitioner, v. JUANITA TANHOTI-LIYAO, PEARL
MARGARET L. TAN, TITA ROSE L. TAN AND LINDA CHRISTINA LIYAO, Respondents.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari assailing the decision dated June 4, 1999 of the Court of Appeals in CA-
G.R. C.V. No. 45394 1 which reversed the decision of the Regional Trial Court (RTC) of Pasig, Metro Manila, Branch 167
in declaring William Liyao, Jr. as the illegitimate (spurious) son of the deceased William Liyao and ordering Juanita
Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao to recognize and acknowledge William
Liyao, Jr. as a compulsory heir of the deceased William Liyao and entitled to all successional rights as such and to pay
the costs of the suit.
On November 29, 1976, William Liyao, Jr., represented by his mother Corazon G. Garcia, filed Civil Case No. 24943
before the RTC of Pasig, Branch 167 which is an action for compulsory recognition as "the illegitimate (spurious) child
of the late William Liyao" against herein respondents, Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and
Linda Christina Liyao. 2 The complaint was later amended to include the allegation that petitioner "was in continuous
possession and enjoyment of the status of the child of said William Liyao," petitioner having been "recognized and
acknowledged as such child by the decedent during his lifetime." 3
The facts as alleged by petitioner are as follows:
Corazon G. Garcia is legally married to but living separately from Ramon M. Yulo for more than ten (10) years at the
time of the institution of the said civil case. Corazon cohabited with the late William Liyao from 1965 up to the time of
William’s untimely demise on December 2, 1975. They lived together in the company of Corazon’s two (2) children from
her subsisting marriage, namely: Enrique and Bernadette, both surnamed Yulo, in a succession of rented houses in
Quezon City and Manila. This was with the knowledge of William Liyao’s legitimate children, Tita Rose L. Tan and Linda
Christina Liyao-Ortiga, from his subsisting marriage with Juanita Tanhoti Liyao. Tita Rose and Christina were both
employed at the Far East Realty Investment, Inc. of which Corazon and William were then vice president and president,
respectively.
Sometime in 1974, Corazon bought a lot from Ortigas and Co. which required the signature of her husband, Ramon
Yulo, to show his consent to the aforesaid sale. She failed to secure his signature and, had never been in touch with him
69
despite the necessity to meet him. Upon the advice of William Liyao, the sale of the parcel of land located at the Valle
Verde Subdivision was registered under the name of Far East Realty Investment, Inc.
On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the Cardinal Santos Memorial Hospital. During her three (3)
day stay at the hospital, William Liyao visited and stayed with her and the new born baby, William, Jr. (Billy). All the
medical and hospital expenses, food and clothing were paid under the account of William Liyao. William Liyao even
asked his confidential secretary, Mrs. Virginia Rodriguez, to secure a copy of Billy’s birth certificate. He likewise
instructed Corazon to open a bank account for Billy with the Consolidated Bank and Trust Company 4 and gave weekly
amounts to be deposited therein.
5 William Liyao would bring Billy to the office, introduce him as his good looking son and had their pictures taken
together.6 During the lifetime of William Liyao, several pictures were taken showing, among others, William Liyao and
Corazon together with Billy’s godfather, Fr. Julian Ruiz, William Liyao’s legal staff and their wives while on vacation in
Baguio. 7 Corazon also presented pictures in court to prove that she usually accompanied William Liyao while attending
various social gatherings and other important meetings. 8 During the occasion of William Liyao’s last birthday on
November 22, 1975 held at the Republic Supermarket, William Liyao expressly acknowledged Billy as his son in the
presence of Fr. Ruiz, Maurita Pasion and other friends and said, "Hey, look I am still young, I can still make a good
looking son." 9 Since birth, Billy had been in continuous possession and enjoyment of the status of a recognized and/or
acknowledged child of William Liyao by the latter’s direct and overt acts. William Liyao supported Billy and paid for his
food, clothing and other material needs. However, after William Liyao’s death, it was Corazon who provided sole
support to Billy and took care of his tuition fees at La Salle, Greenhills. William Liyao left his personal belongings,
collections, clothing, old newspaper clippings and laminations at the house in White Plains where he shared his last
moments with Corazon.
Testifying for the petitioner, Maurita Pasion declared that she knew both Corazon G. Garcia and William Liyao who were
godparents to her children. She used to visit Corazon and William Liyao from 1965-1975. The two children of Corazon
from her marriage to Ramon Yulo, namely, Bernadette and Enrique (Ike), together with some housemaids lived with
Corazon and William Liyao as one family. On some occasions like birthdays or some other celebrations, Maurita would
sleep in the couple’s residence and cook for the family. During these occasions, she would usually see William Liyao in
sleeping clothes. When Corazon, during the latter part of 1974, was pregnant with her child Billy, Maurita often visited
her three (3) to four (4) times a week in Greenhills and later on in White Plains where she would often see William Liyao.
Being a close friend of Corazon, she was at the Cardinal Santos Memorial Hospital during the birth of Billy. She
continuously visited them at White Plains and knew that William Liyao, while living with her friend Corazon, gave
support by way of grocery supplies, money for household expenses and matriculation fees for the two (2) older
children, Bernadette and Enrique. During William Liyao’s birthday on November 22, 1975 held at the Republic
Supermarket Office, he was carrying Billy and told everybody present, including his two (2) daughters from his legal
marriage, "Look, this is my son, very guapo and healthy." 10 He then talked about his plan for the baptism of Billy
before Christmas. He intended to make it "engrande" and "make the bells of San Sebastian Church ring." 11
Unfortunately, this did not happen since William Liyao passed away on December 2, 1975. Maurita attended Mr. Liyao’s
funeral and helped Corazon pack his clothes. She even recognized a short sleeved shirt of blue and gray 12 which Mr.
Liyao wore in a photograph 13 as well as another shirt of lime green 14 as belonging to the deceased. A note was also
presented with the following inscriptions: "To Cora, Love From William. 15 Maurita remembered having invited the
couple during her mother’s birthday where the couple had their pictures taken while exhibiting affectionate poses with
one another. Maurita knew that Corazon is still married to Ramon Yulo since her marriage has not been annulled nor is
Corazon legally separated from her said husband. However, during the entire cohabitation of William Liyao with
Corazon Garcia, Maurita had not seen Ramon Yulo or any other man in the house when she usually visited Corazon.
Gloria Panopio testified that she is the owner of a beauty parlor and that she knew that Billy is the son of her neighbors,
William Liyao and Corazon Garcia, the latter being one of her customers. Gloria met Mr. Liyao at Corazon’s house in
Scout Delgado, Quezon City in the Christmas of 1965. Gloria had numerous occasions to see Mr. Liyao from 1966 to
1974 and even more so when the couple transferred to White Plains, Quezon City from 1974-1975. At the time
Corazon was conceiving, Mr. Liyao was worried that Corazon might have another miscarriage so he insisted that she
just stay in the house, play mahjong and not be bored. Gloria taught Corazon how to play mahjong and together with
Atty. Brillantes’ wife and sister-in-law, had mahjong sessions among themselves. Gloria knew that Mr. Liyao provided
Corazon with a rented house, paid the salary of the maids and food for Billy. He also gave Corazon financial support.
Gloria knew that Corazon is married but is separated from Ramon Yulo although Gloria never had any occasion to see
Mr. Yulo with Corazon in the house where Mr. Liyao and Corazon lived.
70
Enrique Garcia Yulo testified that he had not heard from his father, Ramon Yulo, from the time that the latter
abandoned and separated from his family. Enrique was about six (6) years old when William Liyao started to live with
them up to the time of the latter’s death on December 2, 1975. Mr. Liyao was very supportive and fond of Enrique’s half
brother, Billy. He identified several pictures showing Mr. Liyao carrying Billy at the house as well as in the office.
Enrique’s testimony was corroborated by his sister, Bernadette Yulo, who testified that the various pictures showing Mr.
Liyao carrying Billy could not have been superimposed and that the negatives were in the possession of her mother,
Corazon Garcia.
Respondents, on the other hand, painted a different picture of the story.
Linda Christina Liyao-Ortiga stated that her parents, William Liyao and Juanita Tanhoti-Liyao, were legally married. 16
Linda grew up and lived with her parents at San Lorenzo Village, Makati, Metro Manila until she got married; that her
parents were not separated legally or in fact and that there was no reason why any of her parents would institute legal
separation proceedings in court. Her father lived at their house in San Lorenzo Village and came home regularly. Even
during out of town business trips or for conferences with the lawyers at the office, her father would change his clothes
at home because of his personal hygiene and habits. Her father reportedly had trouble sleeping in other people’s
homes. Linda described him as very conservative and a strict disciplinarian. He believed that no amount of success
would compensate for failure of a home. As a businessman, he was very tough, strong, fought for what he believed in
and did not give up easily. He suffered two strokes before the fatal attack which led to his death on December 2, 1975.
He suffered a stroke at the office sometime in April-May 1974 and was attended by Dr. Santiago Co. He then stayed in
the house for two (2) to three (3) months for his therapy and acupuncture treatment. He could not talk, move, walk,
write or sign his name. In the meantime, Linda and her sister, Tita Rose Liyao-Tan, ran the office. She handled the
collection of rents while her sister referred legal matters to their lawyers. William Liyao was bedridden and had
personally changed. He was not active in business and had dietary restrictions. Mr. Liyao also suffered a milder stroke
during the latter part of September to October 1974. He stayed home for two (2) to three (3) days and went back to
work. He felt depressed, however, and was easily bored. He did not put in long hours in the office unlike before and
tried to spend more time with his family.
Linda testified that she knew Corazon Garcia is still married to Ramon Yulo. Corazon was not legally separated from her
husband and the records from the Local Civil Registrar do not indicate that the couple obtained any annulment 17 of
their marriage. Once in 1973, Linda chanced upon Ramon Yulo picking up Corazon Garcia at the company garage.
Immediately after the death of Linda’s father, Corazon went to Linda’s office for the return of the former’s alleged
investments with the Far East Realty Investment, Inc. including a parcel of land sold by Ortigas and Company. Linda
added that Corazon, while still a vice-president of the company, was able to take out documents, clothes and several
laminated pictures of William Liyao from the office. There was one instance when she was told by the guards, "Mrs. Yulo
is leaving and taking out things again." 18 Linda then instructed the guards to bring Mrs. Yulo to the office upstairs but
her sister, Tita Rose, decided to let Corazon Garcia go. Linda did not recognize any article of clothing which belonged
to her father after having been shown three (3) large suit cases full of men’s clothes, underwear, sweaters, shorts and
pajamas.chanrob1es virtua1 1aw 1ibrary
Tita Rose Liyao-Tan testified that her parents were legally married and had never been separated. They resided at No.
21 Hernandez Street, San Lorenzo Village, Makati up to the time of her father’s death on December 2, 1975. 19 Her
father suffered two (2) minor cardio-vascular arrests (CVA) prior to his death. During the first heart attack sometime
between April and May 1974, his speech and hands were affected and he had to stay home for two (2) to three (3)
months under strict medication, taking aldomet, serpacil and cifromet which were prescribed by Dr. Bonifacio Yap, for
high blood pressure and cholesterol level control. 20 Tita Rose testified that after the death of Mr. Liyao, Corazon
Garcia was paid the amount of One Hundred Thousand Pesos (P100,000.00) representing her investment in the Far East
Realty Investment Inc. Tita Rose also stated that her family never received any formal demand that they recognize a
certain William Liyao, Jr. as an illegitimate son of her father, William Liyao. After assuming the position of President of
the company, Tita Rose did not come across any check signed by her late father representing payment to lessors as
rentals for the house occupied by Corazon Garcia. Tita Rose added that the laminated photographs presented by
Corazon Garcia are the personal collection of the deceased which were displayed at the latter’s office.
The last witness who testified for the respondents was Ramon Pineda, driver and bodyguard of William Liyao from 1962
71
to 1974, who said that he usually reported for work at San Lorenzo Village, Makati to pick up his boss at 8:00 o’clock in
the morning. At past 7:00 o’clock in the evening, either Carlos Palamigan or Serafin Villacillo took over as night shift
driver. Sometime between April and May 1974, Mr. Liyao got sick. It was only after a month that he was able to report
to the office. Thereafter, Mr. Liyao was not able to report to the office regularly. Sometime in September 1974, Mr. Liyao
suffered from another heart attack. Mr. Pineda added that as a driver and bodyguard of Mr. Liyao, he ran errands for the
latter among which was buying medicine for him like capasid and aldomet. On December 2, 1975, Mr. Pineda was called
inside the office of Mr. Liyao. Mr. Pineda saw his employer leaning on the table. He tried to massage Mr. Liyao’s breast
and decided later to carry and bring him to the hospital but Mr. Liyao died upon arrival thereat. Mrs. Liyao and her
daughter, Linda Liyao-Ortiga were the first to arrive at the hospital.
Mr. Pineda also declared that he knew Corazon Garcia to be one of the employees of the Republic Supermarket. People
in the office knew that she was married. Her husband, Ramon Yulo, would sometimes go to the office. One time, in
1974, Mr. Pineda saw Ramon Yulo at the office garage as if to fetch Corazon Garcia. Mr. Yulo who was also asking
about cars for sale, represented himself as car dealer.
Witness Pineda declared that he did not know anything about the claim of Corazon. He freely relayed the information
that he saw Mr. Yulo in the garage of Republic Supermarket once in 1973 and then in 1974 to Atty. Quisumbing when
he went to the latter’s law office. Being the driver of Mr. Liyao for a number of years, Pineda said that he remembered
having driven the group of Mr. Liyao, Atty. Astraquillo, Atty. Brillantes, Atty. Magno and Atty. Laguio to Baguio for a
vacation together with the lawyers’ wives. During his employment, as driver of Mr. Liyao, he does not remember driving
for Corazon Garcia on a trip to Baguio or for activities like shopping.
On August 31, 1993, the trial court rendered a decision, the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants as follows:
(a) Confirming the appointment of Corazon G. Garcia as the guardian ad litem of the minor William Liyao, Jr.;
(b) Declaring the minor William Liyao, Jr. as the illegitimate (spurious) son of the deceased William Liyao;
(c) Ordering the defendants Juanita Tanhoti Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Christian Liyao, to
recognize, and acknowledge the minor William Liyao, Jr. as a compulsory heir of the deceased William Liyao, entitled to
all successional rights as such; and
(d) Costs of suit. 21
In ruling for herein petitioner, the trial court said it was convinced by preponderance of evidence that the deceased
William Liyao sired William Liyao, Jr. since the latter was conceived at the time when Corazon Garcia cohabited with the
deceased. The trial court observed that herein petitioner had been in continuous possession and enjoyment of the
status of a child of the deceased by direct and overt acts of the latter such as securing the birth certificate of petitioner
through his confidential secretary, Mrs. Virginia Rodriguez; openly and publicly acknowledging petitioner as his son;
providing sustenance and even introducing herein petitioner to his legitimate children.
The Court of Appeals, however, reversed the ruling of the trial court saying that the law favors the legitimacy rather
than the illegitimacy of the child and "the presumption of legitimacy is thwarted only on ethnic ground and by proof
that marital intimacy between husband and wife was physically impossible at the period cited in Article 257 in relation
to Article 255 of the Civil Code." The appellate court gave weight to the testimonies of some witnesses for the
respondents that Corazon Garcia and Ramon Yulo who were still legally married and have not secured legal separation,
were seen in each other’s company during the supposed time that Corazon cohabited with the deceased William Liyao.
The appellate court further noted that the birth certificate and the baptismal certificate of William Liyao, Jr. which were
presented by petitioner are not sufficient to establish proof ,of paternity in the absence of any evidence that the
deceased, William Liyao, had a hand in the preparation of said certificates and considering that his signature does not
appear thereon. The Court of Appeals stated that neither do family pictures constitute competent proof of filiation. With
regard to the passbook which was presented as evidence for petitioner, the appellate court observed that there was
nothing in it to prove that the same was opened by William Liyao for either petitioner or Corazon Garcia since William
Liyao’s signature and name do not appear thereon.
72
His motion for reconsideration having been denied, petitioner filed the present petition.
It must be stated at the outset that both petitioner and respondents have raised a number of issues which relate solely
to the sufficiency of evidence presented by petitioner to establish his claim of filiation with the late William Liyao.
Unfortunately, both parties have consistently overlooked the real crux of this litigation: May petitioner impugn his own
legitimacy to be able to claim from the estate of his supposed father, William Liyao?
We deny the present petition.
Under the New Civil Code, a child born and conceived during a valid marriage is presumed to be legitimate. 22 The
presumption of legitimacy of children does not only flow out from a declaration contained in the statute but is based on
the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded in a policy
to protect innocent offspring from the odium of illegitimacy. 23
The presumption of legitimacy of the child, however, is not conclusive and consequently, may be overthrown by
evidence to the contrary. Hence, Article 255 of the New Civil Code 24 provides:
Article 255. Children born after one hundred and eighty days following the celebration of the marriage, and before
three hundred days following its dissolution or the separation of the spouses shall be presumed to be legitimate.
Against this presumption no evidence shall be admitted other than that of the physical impossibility of the husband’s
having access to his wife within the first one hundred and twenty days of the three hundred which preceded the birth of
the child.

1) By the impotence of the husband;
2) By the fact that husband and wife were living separately in such a way that access was not possible;
3) By the serious illness of the husband.
Petitioner insists that his mother, Corazon Garcia, had been living separately for ten (10) years from her husband,
Ramon Yulo, at the time that she cohabited with the late William Liyao and it was physically impossible for her to have
sexual relations with Ramon Yulo when petitioner was conceived and born. To bolster his claim, petitioner presented a
document entitled, "Contract of Separation," 25 executed and signed by Ramon Yulo indicating a waiver of rights to any
and all claims on any property that Corazon Garcia might acquire in the future. 26
The fact that Corazon Garcia had been living separately from her husband, Ramon Yulo, at the time petitioner was
conceived and born is of no moment. While physical impossibility for the husband to have sexual intercourse with his
wife is one of the grounds for impugning the legitimacy of the child, it bears emphasis that the grounds for impugning
the legitimacy of the child mentioned in Article 255 of the Civil Code may only be invoked by the husband, or in proper
cases, his heirs under the conditions set forth under Article 262 of the Civil Code. 27 Impugning the legitimacy of the
child is a strictly personal right of the husband, or in exceptional cases, his heirs for the simple reason that he is the
one directly confronted with the scandal and ridicule which the infidelity of his wife produces and he should be the one
to decide whether to conceal that infidelity or expose it in view of the moral and economic interest involved. 28 It is
only in exceptional cases that his heirs are allowed to contest such legitimacy. Outside of these cases, none — even his
heirs — can impugn legitimacy; that would amount to an insult to his memory. 29
It is therefor clear that the present petition initiated by Corazon G. Garcia as guardian ad litem of the then minor, herein
petitioner, to compel recognition by respondents of petitioner William Liyao, Jr, as the illegitimate son of the late
William Liyao cannot prosper. It is settled that a child born within a valid marriage is presumed legitimate even though
the mother may have declared against its legitimacy or may have been sentenced as an adulteress. 30 We cannot allow
petitioner to maintain his present petition and subvert the clear mandate of the law that only the husband, or in
exceptional circumstances, his heirs, could impugn the legitimacy of a child born in a valid and subsisting marriage.
The child himself cannot choose his own filiation. If the husband, presumed to be the father does not impugn the
legitimacy of the child, then the status of the child is fixed, and the latter cannot choose to be the child of his mother’s
alleged paramour. On the other hand, if the presumption of legitimacy is overthrown, the child cannot elect the
paternity of the husband who successfully defeated the presumption. 31
73
Do the acts of Enrique and Bernadette Yulo, the undisputed children of Corazon Garcia with Ramon Yulo, in testifying
for herein petitioner amount to impugnation of the legitimacy of the latter?
We think not. As earlier stated, it is only in exceptional cases that the heirs of the husband are allowed to contest the
legitimacy of the child. There is nothing on the records to indicate that Ramon Yulo has already passed away at the time
of the birth of the petitioner nor at the time of the initiation of this proceedings. Notably, the case at bar was initiated
by petitioner himself through his mother, Corazon Garcia, and not through Enrique and Bernadette Yulo. It is settled
that the legitimacy of the child can be impugned only in a direct action brought for that purpose, by the proper parties
and within the period limited by law. Considering the foregoing, we find no reason to discuss the sufficiency of the
evidence presented by both parties on the petitioner’s claim of alleged filiation with the late William Liyao. In any event,
there is no clear, competent and positive evidence presented by the petitioner that his alleged father had admitted or
recognized his paternity.
WHEREFORE, the instant petition is DENIED. The assailed decision of the Court of Appeals in CA-G.R. CV No. 45394 is
hereby AFFIRMED. No costs.
SO ORDERED.
Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.
SUPPORT
WHO ARE OBLIGED TO PROVIDE SUPPORT?

SUPREME COURT
Manila
EN BANC
G.R. No. L-4089 January 12, 1909
ARTURO PELAYO, plaintiff-appellant,

vs.
MARCELO LAURON, ET AL., defendants-appellees.
J.H. Junquera, for appellant.

Filemon Sotto, for appellee.
TORRES, J.:
On the 23rd of November, 1906, Arturo Pelayo, a physician residing in Cebu, filed a complaint against Marcelo Lauron
and Juana Abella setting forth that on or about the 13th of October of said year, at night, the plaintiff was called to the
house of the defendants, situated in San Nicolas, and that upon arrival he was requested by them to render medical
assistance to their daughter-in-law who was about to give birth to a child; that therefore, and after consultation with
the attending physician, Dr. Escaño, it was found necessary, on account of the difficult birth, to remove the fetus by
means of forceps which operation was performed by the plaintiff, who also had to remove the afterbirth, in which
services he was occupied until the following morning, and that afterwards, on the same day, he visited the patient
several times; that the just and equitable value of the services rendered by him was P500, which the defendants refuse
to pay without alleging any good reason therefor; that for said reason he prayed that the judgment be entered in his
favor as against the defendants, or any of them, for the sum of P500 and costs, together with any other relief that
might be deemed proper.
74
In answer to the complaint counsel for the defendants denied all of the allegation therein contained and alleged as a
special defense, that their daughter-in-law had died in consequence of the said childbirth, and that when she was alive
she lived with her husband independently and in a separate house without any relation whatever with them, and that, if
on the day when she gave birth she was in the house of the defendants, her stay their was accidental and due to
fortuitous circumstances; therefore, he prayed that the defendants be absolved of the complaint with costs against the
plaintiff.
The plaintiff demurred to the above answer, and the court below sustained the demurrer, directing the defendants, on
the 23rd of January, 1907, to amend their answer. In compliance with this order the defendants presented, on the same
date, their amended answer, denying each and every one of the allegations contained in the complaint, and requesting
that the same be dismissed with costs.
As a result of the evidence adduced by both parties, judgment was entered by the court below on the 5th of April,
1907, whereby the defendants were absolved from the former complaint, on account of the lack of sufficient evidence
to establish a right of action against the defendants, with costs against the plaintiff, who excepted to the said judgment
and in addition moved for a new trial on the ground that the judgment was contrary to law; the motion was overruled
and the plaintiff excepted and in due course presented the corresponding bill of exceptions. The motion of the
defendants requesting that the declaration contained in the judgment that the defendants had demanded therefrom, for
the reason that, according to the evidence, no such request had been made, was also denied, and to the decision the
defendants excepted.
Assuming that it is a real fact of knowledge by the defendants that the plaintiff, by virtue of having been sent for by the
former, attended a physician and rendered professional services to a daughter-in-law of the said defendants during a
difficult and laborious childbirth, in order to decide the claim of the said physician regarding the recovery of his fees, it
becomes necessary to decide who is bound to pay the bill, whether the father and mother-in-law of the patient, or the
husband of the latter.
According to article 1089 of the Civil Code, obligations are created by law, by contracts, by quasi-contracts, and by
illicit acts and omissions or by those in which any kind of fault or negligence occurs.
Obligations arising from law are not presumed. Those expressly determined in the code or in special laws, etc., are the
only demandable ones. Obligations arising from contracts have legal force between the contracting parties and must be
fulfilled in accordance with their stipulations. (Arts. 1090 and 1091.)
The rendering of medical assistance in case of illness is comprised among the mutual obligations to which the spouses
are bound by way of mutual support. (Arts. 142 and 143.)
If every obligation consists in giving, doing or not doing something (art. 1088), and spouses are mutually bound to
support each other, there can be no question but that, when either of them by reason of illness should be in need of
medical assistance, the other is under the unavoidable obligation to furnish the necessary services of a physician in
order that health may be restored, and he or she may be freed from the sickness by which life is jeopardized; the party
bound to furnish such support is therefore liable for all expenses, including the fees of the medical expert for his
professional services. This liability originates from the above-cited mutual obligation which the law has expressly
established between the married couple.
In the face of the above legal precepts it is unquestionable that the person bound to pay the fees due to the plaintiff for
the professional services that he rendered to the daughter-in-law of the defendants during her childbirth, is the
husband of the patient and not her father and mother- in-law, the defendants herein. The fact that it was not the
husband who called the plaintiff and requested his assistance for his wife is no bar to the fulfillment of the said
obligation, as the defendants, in view of the imminent danger, to which the life of the patient was at that moment
exposed, considered that medical assistance was urgently needed, and the obligation of the husband to furnish his wife
in the indispensable services of a physician at such critical moments is specially established by the law, as has been
seen, and compliance therewith is unavoidable; therefore, the plaintiff, who believes that he is entitled to recover his
75
fees, must direct his action against the husband who is under obligation to furnish medical assistance to his lawful wife
in such an emergency.
From the foregoing it may readily be understood that it was improper to have brought an action against the defendants
simply because they were the parties who called the plaintiff and requested him to assist the patient during her difficult
confinement, and also, possibly, because they were her father and mother-in-law and the sickness occurred in their
house. The defendants were not, nor are they now, under any obligation by virtue of any legal provision, to pay the fees
claimed, nor in consequence of any contract entered into between them and the plaintiff from which such obligation
might have arisen.
In applying the provisions of the Civil Code in an action for support, the supreme court of Spain, while recognizing the
validity and efficiency of a contract to furnish support wherein a person bound himself to support another who was not
his relative, established the rule that the law does impose the obligation to pay for the support of a stranger, but as the
liability arose out of a contract, the stipulations of the agreement must be held. (Decision of May 11, 1897.)
Within the meaning of the law, the father and mother-in-law are strangers with respect to the obligation that devolves
upon the husband to provide support, among which is the furnishing of medical assistance to his wife at the time of her
confinement; and, on the other hand, it does not appear that a contract existed between the defendants and the
plaintiff physician, for which reason it is obvious that the former can not be compelled to pay fees which they are under
no liability to pay because it does not appear that they consented to bind themselves.
The foregoing suffices to demonstrate that the first and second errors assigned to the judgment below are unfounded,
because, if the plaintiff has no right of action against the defendants, it is needless to declare whether or not the use of
forceps is a surgical operation.
Therefore, in view of the consideration hereinbefore set forth, it is our opinion that the judgment appealed from should
be affirmed with the costs against the appellant. So ordered.
Mapa and Tracey, JJ., concur.

Arellano, C.J., and Carson, J., concurs in the result.
Willard, J., dissents.

SUPREME COURT
Manila
EN BANC
G.R. No. L-45616 May 16, 1939
FELICIANO SANCHEZ, petitioner-appellant,

vs.
FRANCISCO ZULUETA, Judge of First Instance of Cavite,
JOSEFA DIEGO and MARIANO SANCHEZ, assisted by his mother,
JOSEFA DIEGO, as guardian ad litem, respondents-appellees.
Mariano P. Duldulao for petitioner-appellant.

H.B. Arandia for respondents-appellees.
AVANCEÑA, C.J.:
76
In civil case No. 3199 of the Court of First Instance of Cavite, wherein Josefa Diego and Mario Sanchez are plaintiffs and
Feliciano Sanchez is defendant, the plaintiffs ask that the defendant be sentenced to pay them a monthly allowance for
support.
The complaint alleges that the plaintiffs are the wife and child, respectively, of the defendant; that the latter, since
1932, refused and still refuses to support the plaintiffs; that the latter have no means of subsistence, while the
defendant receives from the United States Army a monthly pension of P174.20; that the defendant abandoned the
plaintiffs without any justifiable cause and now refuses to allow them to live with him.
The defendant alleges, as special defense, that the plaintiff Josefa Diego abandoned the conjugal home on October 27,
1930, without his knowledge or consent, because she committed adultery with Macario Sanchez, with whom she had, as
a result of the illicit relations, a child which is the other plaintiff Mario Sanchez.
The month following the filing of the complaint, the plaintiffs asked the court to compel the defendant to give them, by
way of allowance pendente lite, the sum of P50 a month. In opposition to his petition, the defendant alleged that Mario
Sanchez is not his legitimate child but is the adulterous child of the plaintiff with Macario Sanchez, and he asked for an
oppurtunity to adduce evidence in support of this defense. The court, without acceding to this petition of the defendant
to adduce evidence, favorably acted upon the application of the plaintiffs and ordered the defendant to pay a monthly
allowance pendente lite of P50 to the plaintiffs, from July 1, 1936. In view of these facts, the defendant filed a petition
for prohibition before the Court of Appeals against the judge of the Court of First Instance and the plaintiffs. The Court
of Appeals denied the petition, and from this resolution, the defendant comes to this court on certiorari.
We are of the opinion that the Court of Appeals erred in not allowing the defendant to present his evidence for the
purpose of determining whether it is sufficient prima facie to overcome the application. Adultery on the part of the wife
is a valid defense against an action for support (Quintana vs. Lerma, 24 Phil., 285). Consequently, as to the child, it is
also a defense that it is the fruit of such adulterous relations, for in that case, it would not be the child of the defendant
and, hence, would not be entitled to support as such. But as this defense should be established, and not merely alleged,
it would be unavailing if proof thereof is not permitted. It is not of course necessary to go fully into the merits of the
case, it being sufficient the court ascertain the kind and amount of evidence which it may deem sufficient to enable it to
justly resolve the application, one way or the other, in view of the merely provisional character of the resolution to be
entered.
Although mere affidavits may satisfy the court to pass upon the application, nevertheless, the failure to accompany the
opposition therewith did not justify the court in ignoring said opposition, just because of this omission, inasmuch as an
opportunity to present evidence has been asked. It may be that the defendant could not get hold of affidavits in support
of his opposition, but he may have on hand other evidence of greater weight.
If the defendant has a valid defense which calls for proof, and he asks for an opportunity to present evidence, it is error
to deny him this opportunity.
The decision rendered by the Court Appeals is reversed, and it is ordered that the petitioner be given an opportunity to
present evidence in support of his defense against the application for support pendente lite, to the extent which the
court determine, without special pronouncement as to the costs. So ordered.
Villa-Real, Imperial, Diaz, Laurel, and Conception, JJ., concur.
77
G.R. No. L-48219 February 28, 1979
MANUEL J. C. REYES, Petitioner, vs. HON. LEONOR INES-LUCIANO, as Judge of the Juvenile & Domestic Relations Court,
Quezon City, COURT OF APPEALS and CELIA ILUSTRE-REYES, Respondents.
Eriberto D. Ignacio for petitioner.
Gonzalo D. David for private respondent.
FERNANDEZ, J.:
This is a petition for certiorari to review the decision of the Court of Appeals in CA-G.R. No. 06928-SP entitled "Manuel
J. C. Reyes, petitioner, versus, The Hon. Leonor Ines-Luciano as Judge of the Juvenile & Domestic Relations Court
(Quezon City) and Celia Ilustre-Reyes, Respondents", dismissing the petition to annul the order of the respondent Judge
directing the petitioner to give support pendente lite to his wife, Celia Ilustre-Reyes, private respondent herein, in the
amount of P40,000.00 a month. 1
The private petitioner, Celia Ilustre-Reyes, filed in the Juvenile and Domestic Relations Court of Quezon City a complaint
dated June 3, 1976 against her husband, Manuel J. C. Reyes, for legal separation on the ground that the defendant had
attempted to kill plaintiff. The pertinent allegations of the complaint are:
6.8 On March 10, 1976, defendant went to V. Ilustre and attacked plaintiff. He pummeled her with fist blows that
floored her, then held her head and, with intent to kill, bumped it several times against the cement floor. When she ran
upstairs to her father for protection, he pushed her at the stairway of 13 flights and she fell sliding to the ground floor.
Determined to finish her off, he again gave her a strong swing at her abdomen which floored her half unconscious.
Were it not for plaintiff's father, he would have succeeded killing her;
6.9. On May 26, 1976, although on May 11 previous she ceased holding office with defendant at Bel-Air Apartments
elsewhere adverted to, she went thereto to get her overnight bag. Upon seeing her, defendant yelled at her to get out of
the office. When he did not mind him, he suddenly doused her with a glass of grape juice, kicked her several times that
landed at her back and nape, and was going to hit her with a steel tray as her driver, Ricardo Mancera, came due to her
screams for help. For fear of further injury and for life, she rushed to Precinct 5 at united Nations Avenue, Manila
Metropolitan Police, for assistance and protection; 2
The plaintiff asked for support pendente lite for her and her three children. The defendant, petitioner herein, opposed
the application for support pendente lite on the ground that his wife had committed adultery with her physician.
The application for support pendente lite was set for hearing and submitted for resolution on the basis of the pleadings
and the documents attached thereto by the parties.
The respondent Judge issued an order dated March 15, 1977 granting plaintiff's prayer for alimony pendente lite in the
amount of P5,000.00 a month commencing from June 1976. 3
The petitioner filed a motion for reconsideration reiterating that his wife is not entitled to support during the pendency
of the case, and, alleging that even if she entitled, the amount awarded was excessive. The respondent Judge reduced
the amount from P5,000.00 to P44,00.00 a month in an order dated June 17, 1977. 4
Manuel J. C. Reyes filed a petition for certiorari in the Court of Appeals dated July 25, 1977 asking that the order
granting support pendente lite to private respondent. Celia Ilustre-Reyes, be annulled on the ground that the
respondent Judge, Leonor Ines-Luciano, had committed a grave abuse of discretion or that said order be modified
inasmuch as the amount awarded as support pendente lite is excessive.
The Court of Appeals dismissed the petition because:
78
Considering the plight of the wife during the pendency of the case for legal separation and that the husband appears to
be financially capable of giving the support, We believe that the petitioner has not presented a clear case of grave abuse
of discretion on the part of the respondent in issuing the questioned orders. We see no compelling reason to give it due
course. 5
The petitioner contends that the Court of Appeal committed the following error:
THE HON. COURT OF APPEALS GRIEVOUSLY ERRED IN A MANNER AMOUNTING IT CAN ERROR OF LAW AND A DEPARTURE
FROM THE ACCEPTED NORMS LAID DOWN BY THIS HON. COURT IN THE CASES WE SHALL LATER ON DISCUSS, IN
REFUSING TO GIVE DUE COURSE TO THE ORIGINAL PETITION FOR certiorari HEREIN AGAINST RESPONDENTS-APPELLEES,
AND IN AFFIRMING THE ORDERS FOR SUPPORT PENDENTE LITE ANNEXES "F" AND "H" OF THIS PETITION WHEN HELD
THAT RESPONDENT-APPELLEE JUDGE DID NOT COMMIT ANY ABUSE OF DISCRETION IN ISSUING SAID ORDERS, FOR THE
REASONS THAT:
A. IN ACTIONS FOR LEGAL SEPARATION THE WIFE IS ENTITLED TO SUPPORT FROM THE HUSBAND DESPITE THE FACT
THAT A CASE FOR ADULTERY HAD BEEN FILED BY THE HUSBAND AGAINST HER; AND
B. IN DETERMINING THE AMOUNT OF SUPPORT PENDENTE LITE, IT IS ENOUGH THAT THE COURT ASCERTAIN THE KIND
AND AMOUNT OF EVIDENCE EVEN BY AFFIDAVITS ONLY OR OTHER DOCUMENTARY EVIDENCE APPEARING IN THE
RECORDS. 6
It is true that the adultery of the wife is a defense in an action for support however, the alleged adultery of wife must be
established by competent evidence. The allegation that the wife has committed adultery will not bar her from the right
receive support pendente lite. Adultery is a good defense and if properly proved and sustained wig defeat the action. 7
In the instant case, at the hearing of the application for support pendente lite before the Juvenile and Domestic
Relations Court presided by the respondent Judge, Hon. Leonor Ines-Luciano the petitioner did not present any
evidence to prove the allegation that his wife, private respondent Celia Ilustre-Reyes, had committed adultery with any
person.
The petitioner has still the opportunity to adduce evidence on the alleged adultery of his wife when the action for legal
separation is heard on the merits before the Juvenile and Domestic Relations Court of Quezon City. It is to be noted
however, that as pointed out by the respondents in their comment, the "private respondent was not asking support to
be taken from petitioner's personal funds or wherewithal, but from the conjugal property-which, was her documentary
evidence ...". 8It is, therefore, doubtful whether adultery will affect her right to alimony pendente lite. In Quintana vs.
Lerma, 9the action for support was based on the obligation of the husband to support his wife.
The contention of the petitioner that the order of the respondent Judge granting the private respondent support
pendente lite in the amount of P4,000.00 a month is not supported by the allegations of the complaint for legal
separation and by competent evidence has no merit.
The complaint or legal separation contains allegations showing that on at least two occasions the defendant, petitioner
herein, had made attempts to kill the private respondent. Thus it is alleged that on March 10, 1976, the defendant
attacked plaintiff, pummeled her with fist blows that floored her, held her head and with intent to kill, bumped it
several times against the cement floor and when she ran upstairs to her father for protection, the petitioner pushed her
at the stairway of thirteen (13) flights and she fell sliding to the ground floor and defendant gave her a strong swing at
her abdomen which floored her half unconscious and were it not for plaintiff's father, defendant would have succeeded
in killing her. 10 It is also alleged that on May 26, 1976, the defendant doused Celia Ilustre-Reyes with a glass of grape
juice, kicked her several times at her back and nape and was going to hit her with a steel tray if it were not for her
driver who came due to her creams for help." 11
79
In fixing the amount of monthly support pendente lite of P4,000,00, the respondent judge did not act capriciously and
whimsically. When she originally fixed the amount of P5,000.00 a month, the respondent Judge considered the
following:
On record for plaintiff's cause are the following: that she and defendant were married on January 18, 1958; that she is
presently unemployed and without funds, thus, she is being supported by her father with whom she resides: that
defendant had been maltreating her and Cried to kill her; that all their conjugal properties are in the possession of
defendant who is also president, Manager and Treasurer of their corporation namely:
1. Standard Mineral Products, which was incorporated on February 9, 1959: presently with paid-in capital of
P295,670.00; assets and liabilities of P757,108.52; Retained Earnings of P85,654.61: and majority stockholder is
defendant;
2. Development and Technology Consultant Inc. incorporated on July 12, 1971, with paid-in capital of P200,000.00;
Assets and liabilities of P831,669.34; defendant owns 99% of the stocks; and last Retained Earnings is P98,879.84
3. The Contra-Prop Marine Philippines, Inc. which was incorporated on October 3, 1975, with paid-in capital of
P100,000 defendant owns 99% of the stocks.
To secure some of the of said Agreement of Counter-Guaranty Mortgage with Real Estate, and Real Estate Mortgage
were undertaken by plaintiff of their properties outside of other accommodations; and that she needs of P5,000.00 a
month for her support in accordance with their station in life. 12
The amount of support pendente lite was reduced to P4,000.00 inasmuch as the children are in the custody of the
petitioner and are being supported by him.
It is thus seen that the respondent judge acted with due deliberation before fixing the amount of support pendente lite
in the amount of P4,000.00 a month.
In determining the amount to be awarded as support pendente lite it is not necessary to go fully into the merits of the
case, it being sufficient that the court ascertain the kind and amount of evidence which it may deem sufficient to enable
it to justly resolve the application, one way or the other, in view of the merely provisional character of the resolution to
be entered. Mere affidavits may satisfy the court to pass upon the application for support pendente lite. 13It is enough
the the facts be established by affidavits or other documentary evidence appearing in the record. 14
The private respondent has submitted documents showing that the corporations controlled by the petitioner have
entered into multi-million contracts in projects of the Ministry of Public Highways.
Considering the high cost of living due to inflation and the financial ability of the petitioner as shown by the documents
of record, We find that the amount of P4,000.00 a month granted by the respondent Judge as alimony pendente lite to
the private respondent is not excessive. There is no showing that the respondent Judge has committed a grave abuse of
discretion in granting said support.
In a resolution dated July 31, 1978, this Court issued a temporary restraining order effective immediately against the
enforcement of the lower court's order giving support pendente lite to private respondent in the sum of P4,000.00
monthly commencing June 1976 and in lieu thereof to allow such support only to the extent of P1,000.00 a month. 15
Later the petitioner was required to pay the support at the rate of P1,000.00 a month which had accumulated since June
1976 within ten (10) days from notice of the resolution: 16
The private respondent acknowledged on November 20, 1978 having received from the petitioner, through his counsel
a check in the amount of P30,000.00 as payment of support for the period from June 1976 to November 1978 or thirty
(30) months at P1,000.00 a month in compliance with the resolution of this Court dated October 9, 1978.
80
In view of the foregoing, the support of P4,000.00 should be made to commence or, March 1, 1979.
WHEREFORE, the petition for certiorari is hereby denied and the decision of the Council of Appeals sought to be
reviewed is affirmed with the modification that the support pendente lite at the rate of Four Thousand Pesos
(P4.000.00) a month should commence from March 1, 1979 without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Guerrero, De Castro and Melencio-Herrera, JJ., concur.
81

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LEGAL SEPARATION

Republic of the Philippines

G.R. No. L-13553 February 23, 1960

JOSE DE OCAMPO, petitioner,

Joselito J. Coloma for petitioner.

Collusion in divorce or legal separation means the agreement.

Republic of the Philippines

G.R. No. L-3047 May 16, 1951

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

Feria, Pablo, Tuason and Jugo, JJ., concur.

G.R. No. 79284 November 27, 1987

FROILAN C. GANDIONCO, petitioner,

Petitioner's contention is not correct.

Petitioner's assumption is erroneous.

WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

1 G.R. No. L- 11935, 24 April 1959, 105 Phil. 1277 (1959),Unrep.

6 Araneta v. Concepcion, et al., 99 Phil. 709 (1956).

7 Sec. 5, Rule 61 of the Rules of Court states:

Republic of the Philippines

G.R. No. L-34132 July 29, 1972

LUCY SOMOSA-RAMOS, petitioner,

T. R. Reyes & Associates for petitioner.

Soleto J. Erames for respondents.

Republic of the Philippines

G.R. No. L-11766 October 25, 1960

SOCORRO MATUBIS, plaintiff-appellant,

Luis N. de Leon for appellant.

Republic of the Philippines

G.R. No. L-10033 December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant,

Florencio Dumapias for appellant.

(a) In so prematurely dismissing the case;

The Civil Code provides:

(2) An attempt by one spouse against the life of the other.

In the hearing of the case, the plaintiff further testified as follows:

In Tiffany's Domestic and Family Relations, section 107 says:

If there had been cohabitation, to what extent must it be to constitute condonation?

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

Jose W. Diokno for petitioner-appellant.

D. G. Eufemio for respondent-appellee.

REYES J.B.L., J.:

G.R. No. L-33352 December 20, 1974

TEODORO E. LERMA, petitioner,

Salonga, Ordoñez, Yap, Parlade & Associates for petitioner.

Villareal, Matic & Associates for private respondent.

Castro, Teehankee, Makasiar and Muñoz Palma, JJ., concur.

Esguerra, J., took no part.

G.R. No. L-37720 March 27, 1933

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

Emilio L. Medina for appellants.

The facts briefly stated as follows:

The judgment below is reversed with costs de oficio.

Street and Ostrand, JJ., concur.

Republic of the Philippines

G.R. No. L-10699 October 18, 1957

WILLIAM H. BROWN, plaintiff-appellant,

Jimenez B. Buendia for appellant.

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

Brown appeared to this Court, assigning the following errors:

The court erred in dismissing the plaintiff's complaint.

PATERNITY AND FILIATION

Republic of the Philippines

G.R. No. L-28248 March 12, 1975