161548342 fc-art-63

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FIRST DIVISION
[G.R. No. 137590. March 26, 2001.]
FLORENCE MALCAMPO-SIN, petitioner, vs. PHILIPP
T. SIN, respondent.
D E C I S I O N
PARDO, J p:
The Family Code emphasizes the permanent nature of marriage, hailing it as the
foundation of the family. 1 It is this inviolability which is central to our
traditional and religious concepts of morality and provides the very bedrock on
which our society finds stability. 2 Marriage is immutable and when both
spouses give their consent to enter it, their consent becomes irrevocable,
unchanged even by their independent wills.
However, this inviolability depends on whether the marriage exists and is valid.
If it is void ab initio, the "permanence" of the union becomes irrelevant, and the
Court can step in to declare it so. Article 36 of the Family Code is the
justification. 3 Where it applies and is duly proven, a judicial declaration can free
the parties from the rights, obligations, burdens and consequences stemming
from their marriage.
A declaration of nullity of marriage under Article 36 of the Family Code requires
the application of proceduraland substantive guidelines. While compliance with
these requirements mostly devolves upon petitioner, the State is likewise
mandated to actively intervene in the procedure. Should there be non-compliance
by the State with its statutory duty, there is a need to remand the case to the
lower court for proper trial.
The Case
What is before the Court 4 is an appeal from a decision of the Court of
Appeals 5 which affirmed the decision of the Regional Trial Court, Branch 158,
Pasig City 6dismissing petitioner Florence Malcampo-Sin's (hereafter
"Florence") petition for declaration of nullity of marriage due to psychological
incapacity for insufficiency of evidence.
The Facts
On January 4, 1987, after a two-year courtship and engagement, Florence and
respondent Philipp T. Sin (hereafter "Philipp"), a Portugese citizen, were married
at St. Jude Catholic Parish in San Miguel, Manila. 7
On September 20, 1994, Florence filed with the Regional Trial Court, Branch
158, Pasig City, a complaint for "declaration of nullity of marriage" against
Philipp. 8 Trial ensued and the parties presented their respective documentary
and testimonial evidence. cSTHAC

On June 16, 1995, the trial court dismissed Florence's petition. 9
On December 19, 1995, Florence filed with the trial court a notice of appeal to
the Court of Appeals. 10
After due proceedings, on April 30, 1998, the Court of Appeals promulgated its
decision, the dispositive portion of which reads:
"IN THE LIGHT OF ALL THE FOREGOING, the Appeal is
DISMISSED. The Decision appealed from is AFFIRMED.
Cost against the Appellant." 11
On June 23, 1998, petitioner filed with the Court of Appeals a motion for
reconsideration of the aforequoted decision. 12
On January 19, 1999, the Court of Appeals denied petitioner's motion for
reconsideration. 13
Hence, this appeal. 14
The Court's Ruling
We note that throughout the trial in the lower court, the State did not participate
in the proceedings. While Fiscal Jose Danilo C. Jabson 15 filed with the trial
court a manifestation dated November 16, 1994, stating that he found no
collusion between the parties, 16 he did not actively participate therein. Other
than entering his appearance at certain hearings of the case, nothing more was
heard from him. Neither did the presiding Judge take any step to encourage the
fiscal to contribute to the proceedings.
The Family Code mandates:
"ARTICLE 48.In all cases of annulment or declaration of
absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on
behalf of the State to take steps to prevent collusion between
the parties and to take care that evidence is not fabricated or
suppressed(underscoring ours).
"In the cases referred to in the preceding paragraph, no
judgment shall be based upon a stipulation of facts or
confession of judgment."
It can be argued that since the lower court dismissed the petition, the evil sought
to be prevented (i.e., dissolution of the marriage) did not come about, hence, the
lack of participation of the State was cured. Not so. The task of protecting
marriage as an inviolable social institution requires vigilant and zealous
participation and not mere pro-forma compliance. The protection of marriage as
a sacred institution requires not just the defense of a true and genuine union but
the exposure of an invalid one as well. This is made clear by the following
pronouncement:
"(8)The trial court must order the prosecuting attorney or
fiscal and the Solicitor General to appear as counselfor the
state. No decision shall be handed down unless the Solicitor
General issues a certification, which will be quoted in the
decision, 17 briefly stating therein his reasons for
his agreement or opposition as the case may be, to the
petition. The Solicitor-General shall discharge the equivalent
function of the defensor vinculi contemplated under Canon
1095 (undescoring ours)." 18
The records are bereft of any evidence that the State participated in the
prosecution of the case not just at the trial level but on appeal with the Court of
Appeals as well. Other than the "manifestation" filed with the trial court on
November 16, 1994, the State did not file any pleading, motion or position
paper, at any stage of the proceedings.
In Republic of the Philippines v. Erlinda Matias Dagdag, 19 while we upheld the
validity of the marriage, we nevertheless characterized the decision of the trial
court as "prematurely rendered" since the investigating prosecutor was not given
an opportunity to present controverting evidence before the judgment was
rendered. This stresses the importance of the participation of the State.
Having so ruled, we decline to rule on the factual disputes of the case, this being
within the province of the trial court upon proper re-trial.
Obiter Dictum
For purposes of re-trial, we guide the parties thus: In Republic vs. Court of
Appeals, 20 the guidelines in the interpretation and application of Article 36 of
the Family Code are as follows (omitting guideline (8) in the enumeration as it
was already earlier quoted):
"(1)The burden of proof to show the nullity of the marriage
belongs to the plaintiff. Any doubt should be resolved in

favor of the existence and continuation of the marriage and
against its dissolution and nullity. This is rooted in the fact
that both our Constitution and our laws cherish the validity of
marriage and unity of the family. Thus, our Constitution
devotes an entire Article on the Family, recognizing it "as the
foundation of the nation." It decrees marriage as legally
"inviolable," thereby protecting it from dissolution at the
whim of the parties. Both the family and marriage are to be
"protected" by the state. The Family Code echoes this
constitutional edict on marriage and the family and
emphasizes their permanence, inviolability and solidarity.
"(2)The root cause of the psychological incapacity must be:
a) medically or clinically identified, b) alleged in the
complaint, c) sufficiently proven by experts and d) clearly
explained in the decision. Article 36 of the Family Code
requires that the incapacity must be psychological — not
physical, although its manifestations and/or symptoms may
be physical. The evidence must convince the court that the
parties, or one of them, was mentally or psychically (sic) ill to
such an extent that the person could not have known the
obligations he was assuming, or knowing them, could not
have given valid assumption thereof. Although no example of
such incapacity need be given here so as not to limit the
application of the provision under the principle of ejusdem
generis, nevertheless such root cause must be identified as a
psychological illness and its incapacitating nature fully
explained. Expert evidence may be given by qualified
psychiatrists and clinical psychologists. SADECI
"(3)The incapacity must be proven to be existing at "the time
of the celebration" of the marriage. The evidence must show
that the illness was existing when the parties exchanged their
"I do's." The manifestation of the illness need not be
perceivable at such time, but the illness itself must have
attached at such moment, or prior thereto.
"(4)Such incapacity must also be shown to be medically or
clinically permanent or incurable. Such incurability may be
absolute or even relative only in regard to the other spouse,
not necessarily absolutely against everyone of the same sex.
Furthermore, such incapacity must be relevant to the
assumption of marriage obligations, not necessarily to those
not related to marriage, like the exercise of a profession or
employment in a job. Hence, a pediatrician may be effective
in diagnosing illnesses of children and prescribing medicine
to cure them but may not be psychologically capacitated to
procreate, bear and raise his/her own children as an essential
obligation of marriage.
"(5)Such illness must be grave enough to bring about the
disability of the party to assume the essential obligations of
marriage. Thus, "mild characteriological peculiarities, mood
changes, occasionalemotional outbursts" cannot be accepted
as root causes. The illness must be shown as downright
incapacity or inability, not refusal, neglect or difficulty, much
less ill will. In other words, there is a natal or supervening
disabling factor in the person, an adverse integral element in
the personality structure that effectively incapacitates the
person from really accepting and thereby complying with the
obligations essential to marriage.
"(6)The essential marital obligations must be those embraced
by Articles 68 up to 71 of the Family Code as regards the
husband and wife as well as Articles 220, 221 and 225 of the
same Code in regard to parents and their children. Such non-
complied marital obligation(s) must also be stated in the
petition, proven by evidence and included in the text of the
decision.
"(7)Interpretations given by the National Appellate
Matrimonial Tribunal of the Catholic Church in the
Philippines, while not controlling or decisive, should be given
great respect by our courts."
The Fallo
WHEREFORE, the Court REVERSES and SETS ASIDE the appealed decision
of the Court of Appeals in CA-G.R. CV No. 51304, promulgated on April 30,
1998 and the decision of the Regional Trial Court, Branch 158, Pasig City in
Civil Case No. 3190, dated June 16, 1995.
Let the case be REMANDED to the trial court for proper trial.
No costs.

SO ORDERED. TAIEcS
Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.
EN BANC
[G.R. No. L-13553. February 23, 1960.]
JOSE DE OCAMPO, petitioner, vs. SERAFINA
FLORENCIANO, respondent.
Joselito J. Coloma for petitioner.
No appearance for respondent.
SYLLABUS
1.LEGAL SEPARATION; CONFESSION OF JUDGMENT;
EXISTENCE OF EVIDENCE OF ADULTERY INDEPENDENTLY OF
CONFESSION. — Where there is evidence of the adultery independently of
the defendant's statement agreeing to the legal separation, the decree of
separation should be granted, since it would not be based on the confession
but upon the evidence presented by the plaintiff. What the law prohibits is a
judgment based exclusively on defendant's confession.
2.ID.; ID.; ADMISSIBILITY OF CONFESSION MADE
OUTSIDE OF COURT. — Article 101 of the new Civil Code does not
exclude, as evidence, any admission or confession made by the defendant
outside of the court.
3.ID.; ID.; COLLUSION MAY NOT BE INFERRED FROM
CONFESSION. — Collusion may not be inferred from the mere fact that the
guilty party confesses to the offense of adultery, desires the divorce and
makes no defense.
4.ID.; CONDONATION; FAILURE OF HUSBAND TO SEARCH
FOR ERRING WIFE. — In the case at bar, the wife left her husband after
the latter discovered her dates with other men. Held: The failure of the
husband actively to search for his wife and take her home does not constitute
condonation or consent to the adultery. It was not his duty to search for her.
D E C I S I O N
BENGZON, J p:
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 fiscalexamined
the defendant under oath, and then reported to the Court that there was no
collusion. The plaintiff presented his evidence consisting of the testimony of
Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de
Ocampo and Capt. Serafin Gubat.
According to the Court of Appeals, the evidence thus presented
shows that "plaintiff and defendant were married in April 5, 1938 by a
religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as
husband and wife. They begot several children who are now living with
plaintiff. In March, 1951, plaintiff discovered on several occasions that his
wife was betraying his trust by maintaining illicit relations with one Jose
Arcalas. Having found the defendant carrying marital relations with another
man plaintiff sent her to Manila in June 1951 to study beauty culture, where
she stayed for one year. Again, plaintiff discovered that while in the said city
defendant was going out with several other men, aside from Jose Arcalas.
Towards the end of June, 1952, when defendant had finished studying her
course, she left plaintiff and since then they had lived separately.
"On June 18, 1955, plaintiff surprised his wife in the
act of having illicit relations with another man by the name of
Nelson Orzame. Plaintiff signified his intention of filing a
petition for legal separation, to which defendant manifested
her conformity provided she is not charged with adultery in a
criminal action. Accordingly, plaintiff filed on July 5, 1955, a
petition for legal separation."
The Court of Appeals held that the husband's right to legal
separation on account of the defendant's adultery with Jose Arcalas had
prescribed, because his action was got 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 did not occur.
Yet, even supposing that the above statement of defendant
constituted practically a confession of judgment, inasmuch as there is
evidence of the adulteryindependently 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 defendant told the Fiscal that she "liked
also" to be legally separated from her husband, is no obstacle to the
successfulprosecution 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 taken 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.
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
decisions 3 are cited wherein from apparently similar circumstances, this
Court inferred the husband's consent to or condonation of his wife's
misconduct. However, upon carefulexamination, 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 spouses, with all the consequent effects. Costs of allinstances
against Serafina Florenciano. So ordered.
Parás, C. J., Padilla, Montemayor, Labrador, Concepción, Reyes,
J. B. L., Endencia, Barrera and Gutiérrez David, JJ., concur.
FIRST DIVISION
[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 and appellant.
Deogracias C. Eufemio for respondent and appellee.
SYLLABUS
1.CIVIL LAW; ACTION FOR LEGAL SEPARATION; NATURE OF
ACTION; EFFECT OF DEATH OF PLAINTIFF BEFORE FINAL DECREE.
— The death of the plaintiff before final decree in an action for legal separation
abates the action. 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 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.
2.ID.; ID.; ID.; EFFECT OF DEATH OF PLAINTIFF BEFORE FINAL
DECREE ON PROPERTY RELATIONS. — 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.
3.ID.; ID.; ID.; ID.; CLAIM TO RIGHTS UNDER ART. 106, CIVIL CODE OF
THE PHILIPPINES, EXTINGUISHED UPON THE DEATH OF THE SPOUSE
INVOLVED. — From Art. 106 of the Civil Code of the Philippines it is apparent
that the right to the dissolution of the conjugal partnership or 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
revocation testamentary provisions in favor of the offending spouse made by the
innocent one, are all rights and disabilities that, by the very terms of Civil Code
article, are vested exclusively in the persons of the spouses; and by their nature
and intent, such claims and disabilities are difficult to conceive as assignable or
transmissible. Hence, a claim to said rights is not a claim that "is not thereby
extinguished" after a party dies, under section 17 Rule 3 of the Rules of Court, to
warrant continuation of the action through a substitute of the deceased party. The
same result flows from a consideration of the enumeration of the actions that
survive for or against administrators in Section 1, Rule 67, of the Revised Rules

of Court which shows that neither action for legal separation or for annulment of
marriage can be deemed fairly included therein.
4.ID.; ID.; ID.; ID.; ID.; REASON. — The reason why an action is abated by the
death of the plaintiff, even if property rights are involved, is that these rights are
mere effects of a 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.
5.ID.; ID.; ID.; ACTION FOR DECLARATION OF NULLITY AB INITIO OF
MARRIAGE; EFFECT OF DEATH OF PLAINTIFF UPON DEFENDANT'S
PROPERTY RIGHTS. — A petition for a declaration of nullity ab initio of
marriage becomes moot and academic upon the death of the wife, 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 Art. 144 of the Civil Code of the Philippines could be
resolved and determined in a proper action for partition by either the appellee or
by the heirs of the appellant.
6.ID.; ID.; ID.; ACTION FOR ANNULMENT OF BIGAMOUS VOIDABLE
MARRIAGE; EFFECT OF DEATH OF ONE PARTY; PROPER
PROCEEDINGS FOR LIQUIDATION CONJUGAL PARTNERSHIP. — Even
if the bigamous marriage had not been void ab initio but only voidable under
Article 83, par. 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, par. 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 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 3
of the Revised Rule 73, and not in the annulment proceedings.
D E C I S I O N
REYES, J.B.L., J p:
Petition, filed after the effectivity of Republic Act 5440, for review by certiorari
of an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of
Manila, in its Civil Case No. 20387, dismissing said case for legal separation on
the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which
occurred during the pendency of the case, abated the cause of action as well as
the action itself. The dismissal order was issued over the objection of Macario
Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to
substitute the deceased and to have the case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation
against Eufemio S. Eufemio, alleging, in the main, that they were married civilly
on 21 September 1934 and canonically on 30 September 1934; that they had
lived together as husband and wife continuously until 1943 when her husband
abandoned her; that they had no child; that they acquired properties during their
marriage; and that she discovered her husband cohabiting with a Chinese woman
named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She
prayed for the issuance of a decree of legal separation, which, among others,
would order that the defendant Eufemio S. Eufemio should be deprived of his
share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S.
Eufemio alleged affirmative and special defenses, and, along with several other
claims involving money and other properties, counterclaimed 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 surrebuttalevidence on 9 and 18 June 1969),
petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969.
Counsel for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal
separation" 1 on two (2) grounds, namely: that the petition for legal separation
was filed beyond the one-year period provided for in Article 102 of the Civil
Code; and that the death of Carmen abated the action for legal separation.

On 26 June 1969, counsel for deceased petitioner moved to substitute the
deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed
the motion.
On 29 July 1969, the court issued the order under review, dismissing the
case. 2 In the body of the order, the court stated that the motion to dismiss and
the motion for substitution had to be resolved on the question of whether or not
the plaintiff's cause of action has survived, which the court resolved in the
negative. Petitioner's moved to reconsider but the motion was denied on 15
September 1969.
After first securing an extension of time to file a petition for review of the order
of dismissal issued by the juvenile and domestic relations court, the petitioner
filed the present petition on 14 October 1969. The same was given due course
and answer thereto was filed by respondent, who prayed for the affirmance of the
said order. 3
Although the defendant below, the herein respondent Eufemio S. Eufemio, filed
counterclaims, he did not pursue them after the court below dismissed the case.
He acquiesced in the dismissal of said counterclaims by praying for the
affirmance of the order that dismissed not only the petition for legal separation
but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and
void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute — for
the lower court did not act on the motion for substitution) stated the principal
issue to be as follows:
"When an action for legal separation is
converted by the counterclaim into one for a
declaration of nullity of a marriage, does the death of a
party abate the proceedings?"
The issue as framed by petitioner injects into it a supposed conversion of a legal
separation suit to one for declaration of nullity of a marriage, which is without
basis, for even petitioner asserted that "the respondent has acquiesced to the
dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The
petition for legal separation and the counterclaim to declare the nullity of the self
same marriage can stand independent and separate adjudication. They are not
inseparable nor was the action for legal separation converted into one for a
declaration of nullity by the counterclaim, for legal separation presupposes a
valid marriage, while the petition for nullity has a voidable marriage as a
precondition.
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. D. 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 III.
236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578;
134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v.
Wilson, 73 Mich, 620, 41 N.W. 817; Strickland v.
Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v.
McCurley, 60 Md. 185. 45 Am. Rep. 717; Begbie v.
Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141." 5

The same rule is true of causes of action and suits for separation and
maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows
that they are solely the effect of the decree of legal separation; hence, they can
not survive the death of the plaintiff if it occurs prior to the decree. On the point,
Article 106 of the Civil Code provides:
"Art. 106.The decree of legal separation shall
have the following effects:
"(1)The spouses shall be entitled to live
separately from each other, but the marriage bonds
shall not be severed;
"(2)The conjugal partnership of gains or the
absolute conjugal community of property shall be
dissolved and liquidated, but the offending spouse
shall have no right to any share of the profits earned by
the partnership or community, without prejudice to the
provisions of article 176;
"(3)The custody of the minor children shall be
awarded to the innocent spouse, unless otherwise
directed by the court in the interest of said minors, for
whom said court may appoint a guardian;
"(4)The offending spouse shall be disqualified
from inheriting from the innocent spouse by intestate
succession. Moreover, provisions in favor of the
offending spouse made in the will of the innocent one
shall be revoked by operation of law." . . .
From this article it is apparent that the right to the dissolution of the conjugal
partnership of gains (or of the absolute community of property), the loss of right
by the offending spouse to any share of the profits earned by the partnership or
community, or his disqualification to inherit by intestacy from the innocent
spouse as well as the revocation of testamentary provisions in favor of the
offending spouse made by the innocent one, are all rights and disabilities that, by
the very terms of the Civil Code article, are vested exclusively in the persons of
the spouses; and by their nature and intent, such claims and disabilities are
difficult to conceive as assignable or transmissible. Hence, a claim to said rights
is not a claim that "is not thereby extinguished" after a party dies, under Section
17, Rule 3, of the Rules of Court, to warrant continuation of the action through a
substitute of the deceased party.
"Sec. 17.Death of party.After a party dies and
the claim is not thereby extinguished, the court shall
order, upon proper notice, the legal representative of
the deceased to appear and to be substituted for the
deceased, within a period of thirty (30) days, or within
such time as may be granted. . . ."
The same result flows from a consideration of the enumeration of the actions that
survive for or against administrators in Section 1, Rule 87, of the Revised Rules
of Court:
"SECTION 1.Actions which may and which
may not be brought against executor or
administrator.No action upon a claim for the recovery
of money or debt or interest thereon shall be
commenced against the executor or administrator; but
actions to recover real or personal property, or an
interest therein, from the estate, or to enforce a lien
thereon, and actions to recover damages for an injury
to person or property, real or personal, may be
commenced against him."
Neither actions for legal separation or for annulment of marriage can be deemed
fairly included in the enumeration.
A further reason why an action for legal separation is abated by the death of the
plaintiff, even if property rights are involved, is that these rights are mere effects
of a 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.
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.
D E C I S I O N
PADILLA, J p:
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. 15437-111. 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, the application for support pendente
lite, should be suspended in view of the criminal case for concubinage filed
against him by the private respondent. In support of his contention, petitioner
cites Art. 111, Sec. 3 of the 1985 Rules on Criminal Procedure, which states:
"SECTION 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 paragraph of Section 1 hereof, the
following rules shall be observed:
(a)After a criminal action has been commenced, the pending
civil action arising from the same offense shall be suspended,

in whatever stage it may be found, until final judgment in the
criminal proceeding has been rendered. . . ."
The civil action for legal separation, grounded as it is on concubinage, it is
petitioner's position that such civil action arises from, or is inextricably tied to
the criminal action for concubinage, so that all proceedings related to legal
separation will have to be suspended to await conviction or acquittal for
concubinage in the criminal case. Authority for this position is this Court's
decision in the case of Jerusalem vs. Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an action for
legal separation would be proper if an allegation of concubinage is made therein,
relied solely on Sec. 1 of Rule 107 of the then provisions of the Rules of Court
on criminal procedure, to wit: Cdpr
"SECTION 1.Rules governing civil actions arising from
offenses. — Except as otherwise provided by law, the
following rules shall be 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. Cdpr
Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon
proof by preponderance of evidence in the action for legal separation. 3 No
criminal proceeding or conviction is necessary. To this end, the doctrine
in Francisco vs. Tayao 4 has been modified, as that case was decided under Act.
No. 2710, when absolute divorce was then allowed and had for its grounds the
same grounds for legal separation under the New Civil Code, with the
requirement, under such former law, that the guilt of defendant spouses had to be
established by final judgment in a criminal action. That requirement has not been
reproduced or adopted by the framers of the present Civil Code, and the
omission has been uniformly accepted as a modification of the stringent rule
in Francisco v. Tayao. 5
Petitioner's attempt to resist payment of support pendente lite to his wife must
also fail, as we find no proof of grave abuse of discretion on the part of the
respondent Judge in ordering the same. Support pendente lite, as a remedy, can
be availed of in an action for legal separation, and granted at the discretion of the
judge. 6 If petitioner finds the amount of support pendente lite ordered as too
onerous, he can always file a motion to modify or reduce the same. 7
Petitioner lastly seeks to have the respondent Judge disqualified from hearing the
case, as the grant of 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, Melencio-Herrera, Paras and Sarmiento, JJ ., concur.
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.
SYLLABUS
1.HUSBAND AND WIFE; INFIDELITIES AMOUNTING TO
ADULTERY; CONDONATION DEPRIVES OFFENDED SPOUSE OF
ACTION FOR LEGAL SEPARATION. — Granting that the infidelities
amounting to adultery were committed by the wife, the act of the husband in
persuading her to come along with him, and the fact that she went with him
and together they slept as husband and wife, deprives him, as the alleged
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.
2.ID.; ID.; ID.; EXTENT OF COHABITATION TO
CONSTITUTE CONDONATION. — 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).
D E C I S I O N
FELIX, J p:
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 this 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.
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
the sisters of the husband in said municipality, but before the latter left to
report back to duty, he and his wife came to an agreement that Leonila
would stay with his sisters who later moved to Sampaloc, Manila. After
some time, or about July, 1951, Leonila Ginez left the dwelling of her
sisters-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 he 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 counselannounced
that he was to present 6 witnesses but after plaintiff-husband finished
testifying in his favor, counselfor 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 predicated 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
acts 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 counselmaintaining that the
lower court erred:
(a)In so prematurely dismissing the case;
(b)In finding that there was 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 this Superiority.
The Civil Code provides:
ART. 97.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.
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. 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 Bouvier'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 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.).
'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.)
'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 sleep 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 in the
Penal Code.'
and in its Art. 100 it says:
'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 can not 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 these 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. This 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 necessarily implied forgiveness. It is entirely
consonant with reason and justice that if the wife freely
consents to sexualintercourse 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 light 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 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
case at bar, the question of condonation was raised 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.
THIRD DIVISION
[G.R. No. L-53880. March 17, 1994.]
ENRICO L. PACETE, CLARITA DE LA
CONCEPCION, EMELDA C. PACETE, EVELINA C.
PACETE and EDUARDO C.
PACETE, petitioners, vs.HON. GLICERIO V.
CARRIAGA, JR. and CONCEPCION (CONCHITA)
ALANIS PACETE, respondents.
D E C I S I O N
VITUG, J p:
The issue in this petition for certiorari is whether or not the Court of First
Instance (now Regional Trial Court) of Cotabato, Branch I, in Cotabato City,
gravely abused its discretion in denying petitioners' motion for extension of time
to file their answer in Civil Case No. 2518, in declaring petitioners in default and
in rendering its decision of 17 March 1980 which, among other things, decreed
the legal separation of petitioner Enrico L. Pacete and private respondent
Concepcion Alanis and held to be null and void ab initio the marriage of Enrico
L. Pacete to Clarita de la Concepcion. cdrep
On 29 October 1979, Concepcion Alanis filed with the court below a complaint
for the declaration of nullity of the marriage between her erstwhile husband
Enrico L. Pacete and one Clarita de la Concepcion, as well as for legal separation
(between Alanis and Pacete), accounting and separation of property. In her
complaint, she averred that she was married to Pacete on 30 April 1938 before
the Justice of the Peace of Cotabato, Cotabato; that they had a child named
Consuelo who was born on 11 March 1943; that Pacete subsequently contracted
(in 1948) a second marriage with Clarita de la Concepcion in Kidapawan, North
Cotabato; that she learned of such marriage only on 01 August 1979; that during
her marriage to Pacete, the latter acquired vast property consisting of large tracts
of land, fishponds and several motor vehicles; that he fraudulently placed the
several pieces of property either in his name and Clarita or in the names of his
children with Clarita and other "dummies;" that Pacete ignored overtures for an
amicable settlement; and that reconciliation between her and Pacete was
impossible since he evidently preferred to continue living with Clarita. LibLex
The defendants were each served with summons on 15 November 1979. They
filed a motion for an extension of twenty (20) days from 30 November 1979
within which to file an answer. The court granted the motion. On 18 December
1979, appearing through a new counsel, the defendants filed a second motion for
an extension of another thirty (30) days from 20 December 1979. On 07 January
1980, the lower court granted the motion but only for twenty (20) days to be

counted from 20 December 1979 or until 09 January 1980. The Order of the
court was mailed to defendants' counselon 11 January 1980. Likely still unaware
of the court order, the defendants, on 05 February 1980, again filed another
motion (dated 18 January 1980) for an extension of "fifteen (15) days counted
from the expiration of the 30-day period previously sought" within which to file
an answer. The following day, or on 06 February 1980, the court denied this last
motion on the ground that it was "filed after the original period given . . . as first
extension had expired." 1
The plaintiff thereupon filed a motion to declare the defendants in default, which
the court forthwith granted. The plaintiff was then directed to present her
evidence.2 The court received plaintiff's evidence during the hearings held on
15, 20, 21 and 22 February 1980. prcd
On 17 March 1980, the court 3 promulgated the herein questioned decision,
disposing of the case, thus —
"WHEREFORE, order is hereby issued ordering:
"1. The issuance of a Decree of Legal Separation of
the marriage between, the plaintiff, Concepcion (Conchita)
Alanis Pacete and the herein defendants, Enrico L. Pacete, in
accordance with the Philippine laws and with consequences,
as provided for by our laws; cdrep
"2. That the following properties are hereby declared
as the conjugal properties of the partnership of the plaintiff,
Concepcion (Conchita) Alanis Pacete and the defendant,
Enrico L. Pacete, half and half, to wit:
"1.The parcelof land covered by TCT No. V-815
which is a parcel of land situated in the barrio of
Langcong, Municipality of Matanog (previously of
Parang), province of Maguindanao (previously of
Cotabato province) with an area of 45,256 square
meters registered in the name of Enrico Pacete,
Filipino, of legal age, married to Conchita Alanis as
shown in Exhibits 'B' and 'B-1' for the plaintiff.
"2.A parcel of land covered by Transfer Certificate
of Title No. T-20442, with an area of 538 square
meters and covered by Tax Declaration No. 2650
(74) in the name of Enrico Pacete, situated in the
Poblacion of Kidapawan, North Cotabato, together
with all its improvements, which parcelof land, as
shown by Exhibits 'K-1' was acquired by way of
absolute deed of sale executed by Amrosio Mondog
on January 14, 1965.
of Title No. T-20424 and covered by Tax
Declaration No. 803 (74), with an area of 5.1670
hectares, more or less, as shown by Exhibit 'R', the
same was registered in the name of Enrico Pacete
and the same was acquired by Enrico Pacete last
February 17, 1967 from Ambag Ampoy, as shown
by Exhibit 'R-1', situated at Musan, Kidapawan,
North Cotabato.
"4.A parcel of land situated at Lanao, Kidapawan,
North Cotabato, with an area of 5.0567 hectares,
covered by Tax Declaration No. 4332 (74), as shown
by Exhibit 'S', and registered in the name of Enrico
Pacete.
of Title No. T-9750, situated at Lika, Mlanng, North
Cotabato, with an area of 4.9841 hectares and the
same is covered by Tax Declaration No. 803 (74)
and registered in the name of Enrico Pacete and
which land was acquired by Enrico Pacete from
Salvador Pacete on September 24, 1962, as shown by
Exhibit 'Q-1'.
of Title No. T-9944, with an area of 9.9566 and also
covered by Tax Declaration No. 8608 (74) and
registered in the name of the defendant Enrico L.
Pacete which Enrico L. Pacete acquired from Sancho
Balingcos last October 22, 1962, as shown by
Exhibit 'L-1' and which parcel of land is situated at
(Kialab), Kiab, Matalam, North Cotabato.
of Title No. T-9227, situated at Kiab, Matalam,
more or less, and also covered by Tax Declaration
No. 8607 (74) both in the name of the defendant
Enrico L. Pacete which he acquired last October 15,

1962 from Minda Bernardino, as shown by Exhibit
'M-1'.
of Title No. T-9228, situated at Kiab, Matalam,
registered in the name of Enrico Pacete and also
covered by Tax Declaration No. 5781(74) in the
name of Enrico Pacete and which parcelof land he
acquired last September 25, 1962 from Conchita dela
Torre, as shown by Exhibit 'P-1'.
of Title No. T-10301, situated at Linao, Matalam,
registered in the name of Enrico Pacete and also
covered by Tax Declaration No. 8716(74) also in the
name of Enrico Pacete which Enrico Pacete acquired
from Agustin Bijo last July 16, 1963, as shown by
Exhibit 'N-1'.
of Title No. 12728 in the name of the defendant,
Enrico L. Pacete, with an area of 10.9006 hectares,
situated at Linao, Matalam, North Cotabato and is
also covered by Tax Declaration No. 5745(74) in the
name of Enrico Pacete, as shown on Exhibit 'O' and
which Enrico Pacete acquired last December 31,
1963 from Eliseo Pugni, as shown on Exhibit '0-
1'. LexLib
"3.Ordering the Cancellation of Original Certificate of Title
No. P-34243 covering Lot No. 1066, issued in the name of
Evelina Pacete, situated at Kiab, Matalam, North Cotabato,
and ordering the registration of the same in the joint name of
Concepcion (Conchita) Alanis Pacete and Enrico L. Pacete as
their conjugal property, with address on the part of
Concepcion (Conchita) Alanis Pacete at Parang,
Maguindanao and on the part of Enrico L. Pacete at
Kidapawan, North Cotabato.
"4.Ordering likewise the cancellation of Original Certificate
of Title No. V-20101, covering Lot No. 77, in the name of
Eduardo C. Pacete, situated at New Lawaan, Mlang, North
Cotabato, and the issuance of a new Transfer Certificate of
Title in the joint name of (half and half) Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete.
"5.Ordering likewise the cancellation of Original Certificate
of Title No. P-29890, covering Lot 1068, situated at Kiab,
Matalam, North Cotabato, with an area of 12.1031 hectares,
in the name of Emelda C. Pacete and the issuance of a new
Transfer Certificate of Title in the joint name (half and half)
of Concepcion (Conchita) Alanis Pacete and Enrico L.
Pacete; and declaring that the fishpond situated at Barrio
Tumanan, Bislig, Surigao Del Sur, with an area of 48 hectares
and covered by Fishpond Lease Agreement of Emelda C.
Pacete, dated July 29, 1977 be cancelled and in lieu thereof,
the joint name of Concepcion (Conchita) Alanis Pacete and
her husband, Enrico L. Pacete, be registered as their joint
property, including the 50 hectares fishpond situated in the
same place, Barrio Timanan, Bislig, Surigao del Sur.
"6.Ordering the following motor vehicles to be the joint
properties of the conjugal partnership of Concepcion
(Conchita) Alanis Pacete and Enrico L. Pacete, viz:
"a.Motor vehicle with Plate No. T-RG-783; Make,
Dodge; Motor No. T137-20561; Chassis No.
83920393, and Type, Mcarrier;
"b.Motor vehicle with Plate No. T-RG-784; Make,
Dodge; Motor No. T214-229547; Chassis No. 10D-
1302-C; and Type, Mcarrier;
"c.Motor vehicle with Plate No. J-PR-818; Make,
Ford; Motor No. GPW-116188; Chassis No. HOCC-
GPW-1161-88-C; Type, Jeep;
"d.Motor vehicle with Plate No. TH-5J-583; Make,
Ford: Motor No. F70MU5-11111; Chassis No.
HOCC-GPW-1161188-G; Type, Stake; llcd

"e.Motor vehicle with Plate No. TH-5J-584; Make,
Hino; Motor No. ED300-45758; Chassis No.
KB222-22044; Type, Stake; and
"f.Motor vehicle with Plate No. TH-5J-585; Make,
Ford: Motor No. LTC-780-Dv; Chassis No. 10F-
13582-K; Type, Stake.
"7.Ordering the defendant Enrico L. Pacete to pay the
plaintiff the sum of P46,950.00 which is the share of the
plaintiff in the unaccounted income of the ricemill and corn
sheller for three years from 1971 to 1973.
"8.Ordering the defendant, Enrico L. Pacete, to reimburse the
plaintiff the monetary equipment of 30% of whatever the
plaintiff has recovered as attorney's fees;
"9.Declaring the subsequent marriage between defendant
Enrico L. Pacete and Clarita de la Concepcion to be void ab
initio; and
"10.Ordering the defendants to pay the costs of this suit." 4
Hence, the instant special civil action of certiorari. LexLib
Under ordinary circumstances, the petition would have outrightly been
dismissed, for, as also pointed out by private respondents, the proper remedy of
petitioners should have instead been either to appeal from the judgment by
default or to file a petition for relief from judgment. 5 This rule, however, is not
inflexible; a petition for certiorari is allowed when the default order
is improperly declared, or even when it is properly declared, where grave abuse
of discretion attended such declaration. 6 In these exceptional instances, the
special civil action of certiorari to declare the nullity of a judgment by default is
available. 7 In the case at bench, the default order unquestionably is not legally
sanctioned. The Civil Code provides:
"Art. 101.No decree of legal separation shall be promulgated
upon a stipulation of facts or by confession of judgment.
"In case of non-appearance of the defendant, the court shall
order the prosecuting attorney to inquire whether or not a
collusion between the parties exists. If there is no collusion,
the prosecuting attorney shall intervene for the State in order
to take care that the evidence for the plaintiff is not
fabricated."
The provision has been taken from Article 30 of the California Civil
Code, 8 and it is, in substance, reproduced in Article 60 of the Family
Code. 9
Article 101 reflects the public policy on marriages, and it should easily explain
the mandatory tenor of the law. In Brown v. Yambao, 10 the Court has observed:
"The policy of Article 101 of the new Civil Code,
calling for the intervention of the state attorneys in case of
uncontested proceedings for legal separation (and of
annulment of marriages, under Article 88), is to emphasize
that marriage is more than a mere contract; that it is a social
institution in which the state is vitally interested, so that its
continuation or interruption can not be made to depend upon
the parties themselves (Civil Code, Article 52; Adong vs.
Cheong Gee, 43 Phil. 43; Ramirez v. Gmur, 42 Phil. 855;
Goitia v. Campos, 35 Phil. 252). It is consonant with this
policy that the inquiry by the Fiscal should be allowed to
focus upon any relevant matter that may indicate whether the
proceedings for separation or annulment are fully justified or
not."
Article 103 of the Civil Code, now Article 58 of the Family Code, further
mandates that an action for legal separation must "in no case be tried before six
months shall have elapsed since the filing of the petition," obviously in order to
provide the parties a "cooling-off" period. In this interim, the court should take
steps toward getting the parties to reconcile. Cdpr
The significance of the above substantive provisions of the law is further
underscored by the inclusion of the following provision in Rule 18 of the Rules
of Court:
"Sec. 6.No defaults in actions for annulments of marriage or
for legal separation. — If the defendant in an action for
annulment of marriage or for legal separation fails to answer,
the court shall order the prosecuting attorney to investigate
whether or not a collusion between the parties exists, and if
there is no collusion, to intervene for the State in order to see
to it that the evidence submitted is not fabricated." llcd

The special prescriptions on actions that can put the integrity of marriage to
possible jeopardy are impelled by no less than the State's interest in the marriage
relation and its avowed intention not to leave the matter within the exclusive
domain and the vagaries of the parties to alone dictate.
It is clear that the petitioner did, in fact, specifically pray for legal
separation. 11 That other remedies, whether principal or incidental, have
likewise been sought in the same action cannot dispense, nor excuse compliance,
with any of the statutory requirements aforequoted.
WHEREFORE, the petition for certiorariis hereby GRANTED and the
proceedings below, including the Decision of 17 March 1980 appealed from, are
NULLIFIED and SET ASIDE. No costs. cdphil
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
FIRST DIVISION
[G.R. No. L-49542. September 12, 1980.]
ANTONIO MACADANGDANG, petitioner, vs. THE
HONORABLE COURT OF APPEALS and ELIZABETH
MEJIAS, respondents.
D E C I S I O N
MAKASIAR, J p:
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 factualissues 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, rec.). 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.);
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, rec.) 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 a pill and took
advantage of your womanhood?
"A — I felt worried, mentally shocked and humiliated.
"Q — If these feelings: worries, mentalshock and
humiliation, if estimated in monetary figures, how
much will be the amount?
"A — Ten thousand pesos, sir.
"Q — And because of the incident, what happened to your
marriage with Crispin Anahaw?
xxx xxx xxx
WITNESS:
A — We separated, 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 categoricaland 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 marriage between respondent
and her husband.
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. Respondent's testimony, by itself, is
insufficient without further 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 respondents; 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-22533, 19 SCRA 289
(1967); italics 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' arethose 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 allthe 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 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.
"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 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 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 legitimacy or may have
been sentenced as an adulteress.
"(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 aforenamed 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 lived in her mother's house in the said town;
that her alleged estranged husband also lived in her mother's place (p. 73, rec.:
pp. 21 & 22, 64 & 66, 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:
"QWhy were you taking care of the child Rolando, where
was Elizabeth Mejias?
"ABecause Elizabeth went to her parents in Samal Davao del
Norte for treatment because she had a relapse" (p. 13,
t.s.n., of Sept. 21, 1972).
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. Cdpr
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 all indications, he came out as a normal, full
term baby.
It must be stressed that the child under question has no birth certificate nor any
other official record of birth. His birth is attested to merely by oral declarations
of witnesses and by a 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 obviously 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 physicalimpossibility 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.
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 sexualunion prevents the application of the
presumption (Tolentino, Commentaries & Jurisprudence on the Civil Code, Vol.
I, p. 513 citing Bevilaqua, Familia. 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 sexualintercourse is presumed or
proved, the husband must be taken 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 sexualrelations 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 based 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
sacroiliac 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. Kotel, 256 App. Div. 352, 9 N.Y. Supp. p. 515); or the illness produced

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