EN BANC

[G.R. No. L-6706. March 29, 1954.]

ALFREDO JAVIER, petitioner, vs. HON. ANTONIO
G. LUCERO, Judge of the Court of First Instance of
Cavite; SALUD R. ARCA and ALFREDO JAVIER, JR.,
respondents.
David F. Barrera for petitioner.
Jacinto, Santillan & Roxas for respondents.
SYLLABUS
1.
JUDGMENT;
IMMEDIATE
EXECUTION
THEREOF PENDING APPEAL. The order of
the court directing petitioner to pay monthly
pensions to his wife and son notwithstanding the
pendency of his appeal having been issued
before the record on appeal was submitted, the
court did not exceed its jurisdiction in issuing the
same.
2. ID.; ID.; GROUNDS FOR IMMEDIATE
EXECUTION. One of the good reasons for the
immediate execution of judgment pending appeal
is where the education of the person to be
supported would be unduly delayed if financial
assistance is to be rendered only at the
termination of the appeal.
3. SUPPORT; ACQUITTAL OF A BIGAMY
CHARGE, NOT GROUND FOR FORFEITURE.
Acquittal of husband of a bigamy charge for lack
of criminal intent is no different from an acquittal
on reasonable doubt which would not be a ground
for forfeiture of his wife's right to support.
DECISION
BENGZON, J p:
In an action for alimony (Civil Case No. 5150,
Cavite), the respondent judge, after hearing the
parties and their evidence, ordered Alfredo Javier
to give a monthly allowance of P60 to his wife
Salud R. Arca and their son Alfredo Javier Jr.
On April 14, 1953 the husband filed a notice of
appeal, and on May 6, 1953, he submitted the
appeal bond and the record on appeal. Meanwhile
the wife and the son presented on April 30, 1953
a motion for "support pendente lite" "even
pending the final determination of the case on
appeal". Whereupon on May 8, 1953, the judge
directed Alfredo Javier to pay the monthly
pensions notwithstanding the pendency of his
appeal.
Here comes Alfredo Javier with a petition for
certiorari challenging such directive and arguing,
in his own words:
"1. The status of Salud R. Arca as wife of the
petitioner is being contested;
"2. Alfredo Javier Jr. is over 21 years on March 31,
1953 and no longer entitled to be supported; and
"3. Even granting that Alfredo Javier, Jr. is entitled
to support even if over 21 years of age to
complete his education or training for some
profession, trade or vocation, the support could
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not be paid because the decision is vague or

silent on that point."
The facts, as found in the action for support, are
these:
"On November 19, 1937, plaintiff Salud R. Arca
and defendant Alfredo Javier had their marriage
solemnized by Judge Mariano Nable of the
Municipal Court of Manila. At the time of their
marriage, they had already begotten a son
named Alfredo Javier Junior who was born on
December 2, 1931. Sometime in 1938, defendant
Alfredo Javier left for the United States on board a
ship of the United States Navy, for it appears that
he had joined the United States Navy since 1927,
such that at the time of his marriage with plaintiff
Salud R. Arca, defendant Alfredo Javier was
already an enlisted man in the United States
Navy. Because of defendant Alfredo Javier's
departure for the United States in 1938. his wife
Salud R. Arca, who is from Tanza, Cavite, chose to
live with defendant's parents at Naic, Cavite. But
for certain incompatibility of character (frictions
having occurred between plaintiff Salud R. Arca
and defendant's folks) plaintiff Salud R. Arca had
found it necessary to leave defendant's parents'
abode and transfer her residence to Tanza, Cavite
her native place. Since then the relation
between plaintiff Salud R. Arca and defendant
Alfredo Javier became strained such that on
August 13, 1940 defendant Alfredo Javier brought
an action for divorce against plaintiff Salud R.
Arca before the Circuit Court of Mobile County,
State of Alabama, USA, docketed as Civil Case
No. 14313 of that Court and marked as Exhibit
2(c) in this case. Having received a copy of the
complaint for divorce on September 23, 1940,
plaintiff Salud R. Arca answering the complaint
alleged in her answer that she received copy of
the complaint on September 23, 1940 although
she was directed to file her answer thereto on or
before September 13, 1940. In that answer she
filed, plaintiff Salud R. Arca averred among other
things that defendant Alfredo Javier was not a
resident of Mobile County, State of Alabama, for
the period of twelve months preceding the
institution of the complaint, but that he was a
resident of Naic, Cavite, Philippines. Another
averment of interest, which is essential to relate
here, is that under paragraph 5 of her answer to
the complaint for divorce, Salud R. Arca alleged
that it was not true that the cause of their
separation was desertion on her part but that if
the defendant Alfredo Javier was in the United
States at that time and she was not with him then
it was because he was in active duty as an
enlisted man of the United States Navy, as a
consequence of which he had to leave for the
United States without her. She further alleged
that since his departure from the Philippines for
the United States, he had always supported her

and her co-plaintiff Alfredo Javier Junior through

allotments made by the Navy Department of the
United
States
Government.
She
denied,
furthermore, the allegation that she had
abandoned defendant's home at Naic, Cavite, and
their separation was due to physical impossibility
for they were separated by about 10,000 miles
from each other. At this juncture, under the Old
Civil Code, the wife is not bound to live with her
husband if the latter has gone to ultra-marine
colonies. Plaintiff Salud R. Arca, in her answer to
the complaint for divorce by defendant Alfredo
Javier, prayed that the complaint for divorce be
dismissed. However, notwithstanding Salud R.
Arca's averments in her answer, contesting the
jurisdiction of the Circuit Court of Mobile County,
State of Alabama, to take cognizance of the
divorce proceeding filed by defendant Alfredo
Javier, as shown by her answer marked Exhibit
2(d), nevertheless the Circuit Court of Mobile
County rendered judgment decreeing dissolution
of the marriage of Salud R. Arca end Alfredo
Javier, and granting the latter a decree of divorce
dated April 9, 1941, a certified copy of which is
marked Exhibit 2(f). Thereupon, the evidence
discloses that some time in 1946 defendant
Alfredo Javier returned to the Philippines but went
back to the United States.
In July 1941 that is after securing a divorce
from plaintiff Salud R. Arca on April 9, 1941
defendant Alfredo Javier married Thelma Francis,
an American citizen, and bought a house and lot
at 248 Brooklyn, New York City. In 1940, Thelma
Francis, defendant's American wife, obtained a
divorce from him for reasons not disclosed by the
evidence, and, later on, having retired from the
United States Navy, defendant Alfredo Javier
returned to the Philippines, arriving here on
February 13, 1950. After his arrival in the
Philippines, armed with two decrees of divorce
one against his first wife Salud R. Arca and the
other against him by his second wife Thelma
Francis issued by the Circuit Court of Mobile
County, State of Alabama, USA, defendant Alfredo
Javier married Maria Odvina before Judge
Natividad Almeda Lopez of the Municipal Court
of Manila on April 19, 1950, marked Exhibit 2(b).
At the instance of plaintiff Salud R. Arca an
information for bigamy was filed by the City Fiscal
of Manila on July 25, 1950 against defendant
Alfredo Javier with the Court of First Instance of
Manila, docketed as Criminal Case No. 13310 and
marked Exhibit 2(a). However, defendant Alfredo
Javier was acquitted of the charge of bigamy in a
decision rendered by the Court of First Instance of
Manila through Judge Alejandro J. Panlilio, dated
August 10, 1951, predicated on the proposition
that the marriage of defendant Alfredo Javier with
Maria Odvina was made in all good faith and in
the honest belief that his marriage with plaintiff
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Salud R. Arca had been legally dissolved by the

decree of divorce obtained by him from the
Circuit Court of Mobile County, State of Alabama,
USA, which had the legal effect of dissolving the
marital ties between defendant Alfredo Javier and
plaintiff Salud R. Arca. At this juncture, again, it is
this Court's opinion that defendant Alfredo
Javier's acquittal in that Criminal Case No. 13310
of the Court of First Instance of Manila by Judge
Panlilio was due to the fact that the accused had
no criminal intent in contracting a second or
subsequent marriage while his first marriage was
still subsisting."
Turning now to the petition for certiorari, we
perceive that, as to its first ground the
respondent judge declared in his decision that
Alfredo Javier and Salud Arca were married on
November 19, 1937 when they had already a
natural son named Alfredo Javier Junior, born
December 2, 1931, and that, notwithstanding a
decree of divorce which the husband Alfredo
obtained in the United States in 1941, their
marriage still subsists. Such being the situation,
the principle in Francisco vs. Zandueta, 61 Phil.,
752 on which petitioner entirely relies is not
controlling, inasmuch as the existence of the
married relation and the paternity had been
established at least prima facie (cf. Sanchez vs.
Zulueta, 68 Phil., 112.) Besides, as respondents
point out, this is strictly not alimony pendente
lite, under Rule 63, but execution of judgment
pending appeal, under Rule 39. 1
In connection with the second ground of the
petition, respondents observe that under the new
Civil Code, article 290 support also includes the
education of the person to be supported "until he
complete his education or training for some
profession, trade or vocation even beyond the
age of majority" and on the basis of this article
support was granted to Alfredo Javier Junior. Said
the Court, "while it is true that plaintiff Alfredo
Javier Junior, who was born on December 2, 1931,
has reached the age of majority on December 2,
1952, yet, under the last part of article 290 of the
new Civil Code, support may be given him even
beyond the age of majority in order to enable him
to complete his education, for some trade or
profession.".
Now then, was the order issued in excess of
jurisdiction or with grave abuse of discretion? The
court undoubtedly had jurisdiction, inasmuch as it
was issued before the record on appeal was
submitted. (Sumulong vs. Imperial, 51 Phil., 251;
Syquia vs. Concepcion, 60 Phil., 186). Did the
judge abuse his discretion?
Unquestionably, Alfredo Javier Jr. is the son of
petitioner Alfredo Javier, and if financial
assistance is to be rendered only at the
termination of the appeal his education, or the

completion thereof, would be unduly delayed.

That is good reason for immediate execution.
Petitioner claims that according to the records
Alfredo Javier Jr. "is no longer studying". Yet
probably he stopped going to school due to lack
of means, since the petitioner himself admits that
his son is just a pre-law graduate.
But the real grievance of petitioner is contained
in the last portion of his pleading, which says,
"What Alfredo Javier now tries to avoid is to
support a woman who has desperately tried to
put him in jail, when she accused him of bigamy."
Such disgust is easily understandable. But
compliance with legal and contractual duties is
not always pleasant.
Under the New Civil Code articles 303 and 921
the wife forfeits her husband's support after "she
has accused (him) of a crime for which the law
prescribes imprisonment for six years or more,
and the accusation has been found to be false." If
bigamy is such a crime, and if her accusation had
been found to be false, Salud Arca would lose her
privilege. But the accusation was not "found to be
false". Admittedly, he married a third time
without the first marriage having been dissolved;
but he was cleared of the bigamy charge for lack
of criminal intent, inasmuch as he believed his
divorce obtained in the U. S., had already ended
his first marriage to Salud R. Arca. Such acquittal
is no different from an acquittal on reasonable
doubt, which in our opinion, and in the opinion of
a member of the Code Commission that framed
the New Civil Code, would not be ground to forfeit
her right to support. 2
Of course, the question whether Alfredo Javier's
prosecution for bigamy and subsequent acquittal
extinguished his obligation to maintain his
complaining spouse will definitely be decided
when the main case (No. 5150) is reviewed on
appeal. Other aspects of the issue could then
undoubtedly be the subject of research and
elucidation 3 . Nevertheless we briefly explain our
first impressions or provisional conclusion in the
task of examining the alleged misuse by
respondent judge of his prerogatives. It is
markworthy that the son has not forfeited his
right to support.
As the issues are presently framed, petitioner has
failed to sustain the burden of demonstrating the
judge's clear error or grievous mistake in ordering
execution of his judgment pending appeal. Costs
against petitioner.
Paras, C. J., Pablo, Montemayor, Reyes, Jugo,
Bautista Angelo, Labrador, Concepcion and
Diokno, JJ., concur.
||| (Javier v. Lucero, G.R. No. L-6706, March 29,
1954)
SECOND DIVISION
[G.R. No. 11263. November 2, 1916.]
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ELOISA GOITIA Y DE LA CAMARA, plaintiffappellant, vs. JOSE CAMPOS RUEDA, defendantappellee.

Eduardo Gutierrez Repide and Felix Socias for
appellant.
Sanz, Opisso & Luzuriaga for appellee.
SYLLABUS
1. MARRIAGE; NATURE OF THE OBLIGATION.
Marriage is something more than a contract,
though founded upon the agreement of the
parties. When once formed a relation is created
between the parties which they cannot change by
agreement, and the rights and obligations of
which depend not upon their agreement but upon
the law. The spouses must be faithful to, assist,
support, and live with each other.
2. HUSBAND AND WIFE; ACTION FOR
SEPARATE MAINTENANCE. The wife, who is
forced to leave the conjugal abode by her
husband without fault on her part, may maintain
an action against the husband for separate
maintenance when he has no other remedy,
notwithstanding the provisions of article 149 of
the Civil Code giving the person who is obliged to
furnish support the option to satisfy it either by
paying a fixed pension or by receiving and
maintaining in his own home the one having the
right to the same.
3. ID.; ID.; SUFFICIENCY OF COMPLAINT.
The complaint of the wife which alleges
unbearable conduct and treatment on the part of
the husband is sufficient to constitute a cause of
action for separate maintenance.
DECISION
TRENT, J p:
This is an action by the wife against her husband
for support outside of the conjugal domicile. From
a judgment sustaining the defendants demurrer
upon the ground that the facts alleged in the
complaint do not state a cause of action, followed
by an order dismissing the case after the plaintiff
declined to amend, the latter appealed.
It was urged in the first instance, and the court so
held, that the defendants' cannot be compelled to
support the plaintiff, except in his own house,
unless it be by virtue of a judicial decree granting
her a divorce or separation from the defendant.
The parties were legally married in the city of
Manila on January 7, 1915, and immediately
thereafter established their residence at 115
Calle San Marcelino, where they lived together for
about a month, when the plaintiff returned to the
home of her parents. The pertinent allegations of
the complaint are as follows:
"That the defendant, one month after he had
contracted marriage with the plaintiff, demanded
of her that she perform unchaste and lascivious
acts on his genital organs; that the plaintiff

spurned the obscene demands of the defendant

and refused to perform any act other than legal
and valid cohabitation; that the defendant, since
that date had continually on other successive
dates, made similar lewd and indecorous
demands on his wife, the plaintiff, who always
spurned them, which just refusals of the plaintiff
exasperated the defendant and induced him to
maltreat her by word and deed and inflict injuries
upon her lips, her face and different parts of her
body; and that, as the plaintiff was unable by any
means to induce the defendant to desist from his
repugnant desires and cease from maltreating
her, she was obliged to leave the conjugal abode
and take refuge in the home of her parents."
Marriage in this jurisdiction is a contract entered
into in the manner and with the solmenities
established by General Orders No. 68, in so far as
its civil effects are concerned requiring the
consent of the parties. (Garcia vs. Montague, 12
Phil. Rep., 480, citing article 1261 of Civil Code.)
Upon the termination of the marriage ceremony,
a conjugal partnership is formed between the
parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil.
Rep., 137.) To this extent a marriage partakes of
the nature of an ordinary contract. But it is
something more than a mere contract. It is a new
relation, the rights, duties, and obligations of
which rest not upon the agreement of the parties
but upon the general law which defines and
prescribes those rights, duties, and obligations.
Marriage is an institution, in the maintenance of
which in its purity the public is deeply interested.
It is a relation for life and the parties cannot
terminate it at any shorter period by virtue of any
contract they may make. The reciprocal rights
arising from this relation, so long as it continues,
are such as the law determines from time to time,
and none other. When the legal existence of the
parties is merged into one by marriage, the new
relation is regulated and controlled by the state
or government upon principles of public policy for
the benefit of society as well as the parties. And
when the object of a marriage is defeated by
rendering its continuance intolerable to one of
the parties and productive of no possible good to
the community, relief in some way should be
obtainable. With these principles to guide us, we
will inquire into the status of the law touching and
governing the question under consideration.
Articles 42 to 107 of the Civil Code are not in
force in the Philippine Islands (Benedicto vs. De la
Rama, 3 Phil. Rep., 34). Articles 44 to 79 of the
Law of Civil Marriage of 1870, in force in the
Peninsula, were extended to the Philippine Islands
by royal decree on April 13, 1883 (Ebreo vs.
Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48
of this law read:
"ART. 44. The spouses are obliged to be faithful to
each other and to mutually assist each other.
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"ART. 45. The husband must live with and protect

his wife. (The second paragraph deals with the
management of the wife's property.)
"ART. 48. The wife must obey her husband, live
with him, and follow him when he changes his
domicile or residence.
"Notwithstanding the provisions of the foregoing
paragraph, the court may for just cause relieve
her from this duty when the husband removes his
residence to a foreign country.
And articles 143 and 149 of the Civil Code are as
follows:
"ART. 143. The following are obliged to support
each other reciprocally to the whole extent
specified in the preceding article.
xxx xxx xxx
"1. The consorts.
"ART. (149) 49. The person obliged to give
support may, at his option, satisfy it, either by
paying the pension that may be fixed or by
receiving and maintaining in his own home the
person having the right to the same."
Article 152 of the Civil Code gives the instances
when the obligation to give support shall cease.
The failure of the wife to live with her husband is
not one of them.
The above quoted provisions of the Law of Civil
Marriage and the Civil Code fix the duties and
obligations of the spouses. The spouses must be
faithful to assist, and support each other. the
husband must live with and protect his wife. The
wife must obey and live with her husband and
follow him when he changes his domicile or
residence, except when he removes to a foreign
country. But the husband who is obliged to
support his wife may, at his option, do so by
paying her a fixed pension or by receiving and
maintaining her in his own home. May the
husband, on account of his conduct toward his
wife, lose this option and be compelled to pay the
pension? Is the rule established by article 149 of
the Civil Code absolute? The supreme court of
Spain in its decision of December 5, 1903, held:
"That in accordance with the ruling of the
supreme court of Spain in its decisions dated May
11, 1897, November 25, 1899, and July 5, 1901,
the option which article 149 grants the person,
obliged to furnished subsistence, between paying
the pension fixed or receiving and keeping in his
own house the party who is entitled to the same,
is not so absolute as to prevent cases being
considered wherein, either because this right
would be opposed to the exercise of a preferential
right or because of the existence of some
justifiable cause morally opposed to the removal
of the party enjoying the maintenance, the right
of selection must be understood as being thereby
restricted.
"Whereas the only question discussed in the case
which gave rise to this appeal was whether there

was any reason to prevent the exercise of the

option granted by article 149 of the Civil Code to
the person obliged to furnish subsistence, to
receive and maintain in his own house the one
who is entitled to revive it; and inasmuch as
nothing has been alleged or discussed with
regard to the parental authority of Pedro
Alcantara Calvo, which he has not exercised, and
it having been set forth that the natural father
simply claims his child for the purpose of thus
better attending to her maintenance, no action
having been taken by him toward providing the
support until, owing to such negligence, the
mother was obliged to demand it; it is seen that
these circumstances, together with the fact of the
marriage of Pedro Alcantara, and that it would be
difficult for the mother to maintain relations with
her daughter, all constitute an impediment of
such a nature as to prevent the exercise of the
option in the present case, without prejudice to
such decision as may be deemed proper with
regard to the other questions previously cited in
respect to which no opinion should be expressed
at this time."
The above was quoted with approval in United
States and De Jesus vs. Alvir (9 Phil. Rep., 576),
wherein the Code "is not absolute." But it is
insisted that there existed a preexisting or
preferential right in each of these cases which
was opposed to the removal of the one entitled to
support. It is true that in the first the person
claiming the option was the natural father of the
child and had married a woman other than the
child's mother, and in the second the right to
support had already been established by a final
judgment in a criminal case. Notwithstanding
these facts, the two cases clearly established the
proposition that the option given by article 149 of
the Civil Code may not be exercised in any and all
cases.
Counsel for the defendant cite, in support of their
contention, the decision of the supreme court of
Spain, dated November 3, 1905. In this case Don
Benso comas, as a result of certain business
reverses and in order not to prejudice his wife
conferred upon her powers to administer and
dispose of her property. When she left him he
gave her all the muniments of title, mortgage
credits, notes, P10,000 in accounts receivable,
and the key to the safe in which he kept a large
amount of jewels, thus depriving himself of all his
possessions and being reduced in consequence to
want. Subsequently he instituted this civil action
against his wife, who was then living in opulence,
for support and the revocation of the powers
heretofore
granted
in
reference
to
the
administration and disposal of her property. In her
answer the wife claimed that the plaintiff (her
husband) was not legally in a situation to claim
support and that the powers voluntarily conferred
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and accepted by her were bilateral and could not

be canceled by the plaintiff. From a judgment in
favor of the plaintiff the defendant wife appealed
to the Audiencia Territorial wherein, after due
trial, judgment was rendered in her favor
dismissing the action upon the merits. The
plaintiff appealed to the supreme court and that
high tribunal, in affirming the judgment of the
Audiencia Teritorial, said:
"Considering that article 143, No. 1, of the Civil
Code, providing that the spouses are mutually
obliged to provide each other with support,
cannot but be subordinate to the other provisions
of said Code which regulates the family
organization and the duties of spouses not legally
separated, among which duties are those of their
living together and mutually helping each other,
as provided in article 56 of the aforementioned
code; and taking this for granted, the obligation
of the spouse who has property to furnish support
to the one who has no property and is in need of
it for subsistence, is to be understood as limited
to the case where, in accordance with law, their
separation has been decreed, either temporarily
or finally and this case, with respect to the
husband, cannot occur until a judgment of
divorce is rendered, since, until then, if he is
culpable, he is not deprived of the management
of his wife's property and of the product of the
other property belonging to the conjugal
partnership; and
"Considering that, should the doctrine maintained
in the appeal prevail, it would allow married
persons to disregard the marriage bond and
separate from each other of their the marriage
bond and separate from each other of their own
free will, thus establishing, contrary to the legal
provision contained in said article 56 of the Civil
Code, a legal status entirely incompatible with
the nature and effects of marriage in disregard of
the duties inherent therein and disturbing the
unity of the family, in opposition to what the law,
in conformity with good morals, has established;
and
"Considering that, as the spouses D. Ramon
Benso and Dona Adela Galindo are not legally
separated, it is their duty to live together and
afford each other help and support; and for this
reason, it cannot be held that the former has
need of support from his wife so that he may live
apart from her without the conjugal abode where
it is his place to be, nor of her conferring power
upon him to dispose even of the fruits of her
property in order therewith to pay the
matrimonial expenses and, consequently, those
of his own support without need of going to his
wife; wherefore the judgment appealed from,
denying the petition of D. Ramon Benso for
support, has not violated the articles of the Civil

Code and the doctrine invoked in the

assignments of error 1 and 5 of the appeal."
From a careful reading of the case just cited and
quoted from it appears quite clearly that the
spouses separated voluntarily in accordance with
an agreement previously made. At least there are
strong indications to this effect, for the court
says, "Should the doctrine maintained in the
appeal prevail, it would allow married person to
disregard the marriage bond and separate from
each other of their own free will." If this be the
true basis upon which the supreme court of Spain
rested its decision, then the doctrine therein
enunciated would not be controlling in cases
where one of the spouses was compelled to leave
the conjugal abode by the other or where the
husband voluntarily abandons such abode and
the wife seeks to force him to furnish support.
That this is true appears from the decision of the
same high tribunal, dated October 16, 1903. In
this case the wife brought an action for support
against her husband who had willfully and
voluntarily abandoned the conjugal abode
without any cause whatever. The supreme court,
in reversing the judgment absolving the
defendant upon the ground that no action for
divorce, etc., had been instituted, said:
"In the case at bar, it has been proven that it was
Don Teodoro Exposito who left the conjugal
abode, although he claims, without however
proving his contention, that the person
responsible for this situation was his wife, as she
turned him out of the house. From this state of
affairs it results that it is the wife who is the party
abandoned, the husband not having prosecuted
any action to keep her in his company and he
therefore finds himself, as long as he consents to
the situation, under the ineluctable obligation to
support his wife in fulfillment of the natural duty
sanctioned in article 56 of the code in relation
with paragraph 1 of article 143. In not so holding,
the trial court, on the mistaken ground that for
the fulfillment of this duty the situation or relation
of the spouses should be regulated in the manner
it indicates, has made the errors of law assigned
in the first three grounds alleged, because the
nature of the duty of affording mutual support is
compatible and enforceable in all situations, so
long as the needy spouse does not create any
illicit situation of the sort above described."
If we are in error as to the doctrine enunciated by
the supreme court of Spain in its decision of
November 3, 1905, and if the court did hold, as
contended by counsel for the defendant in the
case under consideration, that neither spouse can
be compelled to support the other outside of the
conjugal abode, unless it be by virtue of a final
judgment granting the injured one a divorce or
separation from the other, still such doctrine or
holding would not necessarily control in this
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jurisdiction for the reason that the substantive

law is not in every particular the same here as it
is in Spain. As we have already stated, articles 42
to 107 of the Civil Code in force in the Peninsula
are not in force in the Philippine Islands. The law
governing the duties and obligations of husband
and wife in this country are articles 44 to 78 of
the Law of Civil Marriage of 1870. In Spain the
complaining spouse has, under article 105 of the
Civil Code, various causes for divorce, such as
adultery on the part of the wife in every case and
on the part of the husband when public scandal
or disgrace of the wife results therefrom; personal
violence actually inflicted or grave insults:
violence exercised by the husband toward the
wife in order to force her to change her religion;
the proposal of the husband to prostitute his wife;
the attempts of the husband or wife to corrupt
their sons or to prostitute their daughters; the
connivance in their corruption or prostitution; and
the condemnation of a spouse to perpetual
chains or hard labor, while in this jurisdiction the
only ground for a divorce is adultery. (Benedicto
vs. De la Rama, 3 Phil. Rep., 34, 45.) This positive
and absolute doctrine was announced by this
court in the case just cited after an exhaustive
examination of the entire subject. Although the
case was appealed to the Supreme Court of the
United States and the judgment rendered by this
court was there reversed, the reversal did not
affect in any way or weaken the doctrine in
reference to adultery being the only ground for a
divorce. And since the decision was promulgated
by this court in that case in December, 1903, no
change or modification of the rule has been
announced. It is, therefore, the well settled and
accepted doctrine in this jurisdiction.
But it is argued that to grant support in an
independent suit is equivalent to granting divorce
or separation, as it necessitates a determination
of the question whether the wife has a good and
sufficient cause for living separate from her
husband; and, consequently, if a court lacks
power to decree a divorce, as in the instant case,
power to grant a separate maintenance must also
be lacking. The weakness of this argument lies in
the assumption that the power to grant support in
a separate action is dependent upon a power to
grant a divorce. That the one is not dependent
upon the other is apparent from the very nature
of the marital obligations of the spouses. The
mere act of marriage creates an obligation on the
part of the husband to support his wife. This
obligation is founded not so much on the express
or implied terms of the contract of marriage as on
the natural and legal duty of the husband; an
obligation, the enforcement of which is of such
vital concern to the state itself that the law will
not permit him to terminate it by his own
wrongful acts in driving his wife to seek

protection in the parental home. A judgment for

separate maintenance is not due and payable
either as damages or as a penalty; nor is it a debt
in the strict legal sense of that term, but rather a
judgment calling for the performance of a duty
made specific by the mandate of the sovereign.
This is done from necessity and with a view to
preserve the public peace and the purity of the
wife; as where the husband makes so base
demands upon his wife and indulges in the habit
of assaulting her. the pro tanto separation
resulting from a decree for separate support is
not an impeachment of that public policy by
which marriage is regarded as so sacred and
inviolable in its nature; it is merely a stronger
policy overruling a weaker one; and except in so
far only as such separation is tolerated as a
means of preserving the public peace and morals
may be considered, it does not in any respect
whatever impair the marriage contract or for any
purpose place the wife in the situation of a feme
sole.
The foregoing are the grounds upon which our
short opinion and order for judgment, heretofore
filed in this case, rest.
Torres, Johnson, and Carson, JJ., concur.
THIRD DIVISION
[G.R. No. 127578. February 15, 1999.]
MANUEL DE ASIS, petitioner, vs. COURT OF
APPEALS, HON. JAIME T. HAMOY, Branch 130, RTC,
Kalookan City and GLEN CAMIL ANDRES DE ASIS
represented by her mother/guardian VIRCEL D.
ANDRES, respondents.
Romualdo C. delos Santos for petitioner.
Ismael J. Andres for private respondents.
SYNOPSIS
Private respondent, in her capacity as the legal
guardian of the Minor, Glen Camil Andres de Asis,
brought an action for maintenance and support
against petitioner before the Regional Trial Court
of Quezon City, alleging that petitioner is the
father of subject minor, and the former refused
and/or failed to provide for the maintenance of
the latter, despite repeated demands. In his
answer, petitioner denied his paternity of the said
minor alleged and that he cannot be required to
provide support for him. Subsequently, private
respondent sent in a manifestation stating that
because of petitioner's judicial declarations, it
was futile and a useless exercise to claim support
from him. Hence, she was withdrawing her
complaint against petitioner subject to the
condition that the latter should not pursue his
counterclaim. By virtue of the said manifestation,
the parties mutually agreed to move for the
dismissal of the complaint. The motion was
granted by the trial court, which then dismissed
the case with prejudice. Subsequently, another
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Complaint for maintenance and support was

brought against petitioner, this time in the name
of Glen Camil Andres de Asis, represented by her
legal guardian, herein private respondent.
Petitioner moved to dismiss the complaint on the
ground of res judicata. The trial court denied the
motion, ruling that res judicata is inapplicable in
an action for support for the reason that
renunciation or waiver of future support is
prohibited by law. The trial court likewise denied
petitioner's motion for reconsideration. Petitioner
filed with the Court of Appeals a petition for
certiorari. The Court of Appeals dismissed the
same. Hence, this petition. aIcDCH
The right to receive support can neither be
renounced nor transmitted to a third person.
Furthermore, future support cannot be the
subject of a compromise. The manifestation sent
by private respondent amounted to renunciation
as it severed the vinculum that gives the subject
minor, the right to claim support from his
putative parent, the petitioner. Furthermore, the
agreement entered into between the petitioner
and private respondent for the dismissal of the
counterclaim was in the nature of a compromise,
which cannot be countenanced. It violated the
prohibition against any compromise of the right
to support. Moreover, it is true that that in order
to claim support, filiation and/or paternity must
first be shown between the claimant and the
parent. However, paternity and filiation or the
lack of the same is a relationship that must be
judicially established and it is for the court to
declare its existence or absence. It cannot be left
to the will or agreement of the parties. Hence, the
Supreme Court ruled that the dismissal with
prejudice of the first case cannot bar the
subsequent case for support. The second action
for support may still prosper. The Court therefore
affirmed the decision of the Court of Appeals.
SYLLABUS
1. CIVIL LAW; SUPPORT; RIGHT TO RECEIVE
SUPPORT;
CANNOT
BE
RENOUNCED,
TRANSMITTED AND/OR SUBJECT OF A
COMPROMISE; REASON. The right to receive
support
can
neither
be
renounced
nor
transmitted to a third person. Furthermore, future
support cannot be the subject of a compromise.
The raison d' etre behind the proscription against
renunciation, transmission and/or compromise of
the right to support is stated, thus: "The right to
support being founded upon the need of the
recipient to maintain his existence, he is not
entitled to renounce or transfer the right for this
would mean sanctioning the voluntary giving up
of life itself. The right to life cannot be renounced;
hence, support, which is the means to attain the
former, cannot be renounced. . . . To allow

renunciation or transmission or compensation of

the family right of a person to support is virtually
to allow either suicide or the conversion of the
recipient to a public burden. This is contrary to
public policy.
2. ID.; ID.; ID.; ID.; CASE AT BAR. The
manifestation sent in by respondent's mother in
the first case, which acknowledged that it would
be useless to pursue its complaint for support,
amounted to renunciation as it severed the
vinculum that gives the minor, Glen Camil, the
right to claim support from his putative parent,
the petitioner. Furthermore, the agreement
entered into between the petitioner and
respondent's mother for the dismissal of the
complaint
for
maintenance
and
support
conditioned
upon
the
dismissal
of
the
counterclaim is in the nature of a compromise
which cannot be countenanced. It violates the
prohibition against any compromise of the right
to support. CaDATc
3. ID.; ID.; ID.; PATERNITY AND FILIATION;
DECLARATION OF THE EXISTENCE OR
ABSENCE THEREOF CANNOT BE LEFT TO THE
WILL OF THE PARTIES. It is true that in order
to claim support, filiation and/or paternity must
first be shown between the claimant and the
parent. However, paternity and filiation or the
lack of the same is a relationship that must be
judicially established and it is for the court to
declare its existence or absence. It cannot be left
to the will or agreement of the parties. "The civil
status of a son having been denied, and this civil
status, from which the right to support is derived
being in issue, it is apparent that no effect can be
given to such a claim until an authoritative
declaration has been made as to the existence of
the cause." Although in the case under scrutiny,
the admission may be binding upon the
respondent, such an admission is at most
evidentiary and does not conclusively establish
the lack of filiation.
4. REMEDIAL LAW; JUDGMENT; DOCTRINE OF
RES JUDICATA; NOT APPLICABLE IN CASE AT
BAR; RULING IN ADVINCULA CASE (10 SCRA
189), CITED. Neither are we persuaded by
petitioner's theory that the dismissal with
prejudice of Civil Case Q-88-935 has the effect of
res judicata on the subsequent case for support.
The case of Advincula vs. Advincula comes to the
fore. In disposing such case, this Court ruled,
thus: It appears that the former dismissal was
predicated upon a compromise. Acknowledgment,
affecting as it does the civil status of persons and
future support, cannot be the subject of
compromise. (pars. 1 & 4, Art. 2035, Civil Code)
Hence, the first dismissal cannot have force and
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effect and cannot bar the filing of another action,

asking for the same relief against the same
defendant."
(italics
supplied)
Conformably,
notwithstanding the dismissal of Civil Case Q-88
935 and the lower court's pronouncement that
such dismissal was with prejudice, the second
action for support may still prosper. aIcETS
DECISION
PURISIMA, J p:
Petition for certiorari under Rule 65 of the Revised
Rules of Court seeking to nullify the decision of
the Court of Appeals which affirmed the trial
court's Orders, dated November 25, 1993 and
February
4,
1994,
respectively,
denying
petitioner's Motion to Dismiss the Complaint in
Civil Case No. C-16107, entitled "Glen Camil
Andres de Asis, etc. vs. Manuel de Asis", and the
motion for reconsideration. LLphil
The pertinent facts leading to the filing of the
petition at bar are, as follows:
On October 14, 1988, Vircel D. Andres, (the
herein private respondent) in her capacity as the
legal guardian of the minor, Glen Camil Andres de
Asis, brought an action for maintenance and
support against Manuel de Asis, docketed as Civil
Case No. Q-88-935 before the Regional Trial Court
of Quezon City, Branch 94, alleging that the
defendant Manuel de Asis (the petitioner here) is
the father of subject minor Glen Camil Andres de
Asis, and the former refused and/or failed to
provide for the maintenance of the latter, despite
repeated demands.
In his Answer, petitioner denied his paternity of
the said minor and theorized that he cannot
therefore be required to provide support for him.
On July 4, 1989, private respondent Vircel D.
Andres, through counsel, sent in a manifestation
the pertinent portion of which, reads;
"1. That in his proposed Amended Answer,
defendant (herein petitioner) has made a judicial
admission/declaration that "1) defendant denies
that the said minor child (Glen Camil) is his child;
2) he (petitioner) has no obligation to the plaintiff
Glen Camil . . . ."
2.
That
with
the
aforesaid
judicial
admissions/declarations by the defendant, it
seems futile and a useless exercise to claim
support from said defendant."
3. That under the foregoing circumstances it
would be more practical that plaintiff withdraws
the complaint against the defendant subject to
the condition that the defendant should not
pursue his counterclaim in the above-entitled
case, . . . ." 1
By virtue of the said manifestation, both the
plaintiff and the defendant agreed to move for

the dismissal of the case. Acting thereupon, the

Regional Trial Court a quo issued the following
Order of August 8, 1989, dismissing Civil Case No.
Q-88-935 with prejudice, to wit:
"Acting on the manifestation of Atty. Romualdo C.
delos Santos, counsel for the defendant, that
counsel for the plaintiff Atty. Ismael J. Andres has
no objection that this case be withdrawn provided
that
the
defendant
will
withdraw
the
counterclaim, as prayed for, let the case be
dismissed with prejudice.
SO ORDERED." 2
On September 7, 1995, another Complaint for
maintenance and support was brought against
Manuel A. de Asis, this time in the name of Glen
Camil Andres de Asis, represented by her legal
guardian/mother, Vircel D. Andres. Docketed as
Civil Case No. C-16107 before Branch 130 of the
Regional Trial Court of Kalookan, the said
Complaint prayed, thus:
"WHEREFORE,
premises
considered,
it
is
respectfully prayed that judgment be rendered
ordering defendant:
1. To pay plaintiff the sum of not less than
P2,000.00 per month for every month since June
1, 1987 as support in arrears which defendant
failed to provide plaintiff shortly after her birth in
June 1987 up to the present;
2. To give plaintiff a monthly allowance of
P5,000.00 to be paid in advance on or before the
5th of each and every month;
3. To give plaintiff by way of support pendente
lite, a monthly allowance of P5,000.00 per month,
the first monthly allowance to start retroactively
from the first day of this month and the
subsequent ones to be paid in advance on or
before the 5th of each succeeding month;
4. to pay the costs of suit.
Plaintiff prays for such other relief just and
equitable under the premises." 3
On October 8, 1993, petitioner moved to dismiss
the Complaint on the ground of res judicata,
alleging that Civil Case C-16107 is barred by the
prior judgment which dismissed with prejudice
Civil Case Q-88-935.
In the Order dated November 25, 1993 denying
subject motion to dismiss, the trial court ruled
that res judicata is inapplicable in an action for
support for the reason that renunciation or waiver
of future support is prohibited by law. Petitioner's
motion for reconsideration of the said Order met
the same fate. It was likewise denied. cdphil
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Petitioner filed with the Court of Appeals a

Petition for Certiorari. But on June 7, 1996, the
Court of Appeals found the said Petition devoid of
merit and dismissed the same.
Undaunted, petitioner found his way to this court
via the present petition, posing the question
whether or not the public respondent acted with
grave abuse of discretion amounting to lack or
excess of jurisdiction in upholding the denial of
the motion to dismiss by the trial court, and
holding that an action for support cannot be
barred by res judicata.
To buttress his submission, petitioner invokes the
previous dismissal of the Complaint for
maintenance and support, Civil Case Q-88-935,
filed by the mother and guardian of the minor,
Glen Camil Andres de Asis, (the herein private
respondent). In said case, the complainant
manifested that because of the defendant's
judicial declaration denying that he is the father
of subject minor child, it was " futile and a useless
exercise to claim support from defendant".
Because of such manifestation, and defendant's
assurance that he would not pursue his
counterclaim anymore, the parties mutually
agreed to move for the dismissal of the
complaint. The motion was granted by the
Quezon City Regional Trial Court, which then
dismissed the case with prejudice.
Petitioner
contends
that
the
aforecited
manifestation, in effect, admitted the lack of
filiation between him and the minor child, which
admission binds the complainant, and since the
obligation to give support is based on the
existence of paternity and filiation between the
child and the putative parent, the lack thereof
negates the right to claim for support. Thus,
petitioner maintains that the dismissal of the
Complaint by the lower court on the basis of the
said manifestation bars the present action for
support, especially so because the order of the
trial court explicitly stated that the dismissal of
the case was with prejudice.
The petition is not impressed with merit.
The right to receive support can neither be
renounced nor transmitted to a third person.
Article 301 of the Civil Code, the law in point,
reads:
ARTICLE 301. The right to receive support cannot
be renounced, nor can it be transmitted to a third
person. Neither can it be compensated with what
the recipient owes the obligor. . . .
Furthermore, future support cannot be the
subject of a compromise.
Article 2035, ibid, provides, that:
"No compromise upon the following questions
shall be valid:
(1) The civil status of persons;

(2) The validity of a marriage or legal separation;

(3) Any ground for legal separation;
(4) Future support;
(5) The jurisdiction of courts;
(6) Future legitime.
The raison d' etre behind the proscription against
renunciation, transmission and/or compromise of
the right to support is stated, thus:
"The right to support being founded upon the
need of the recipient to maintain his existence,
he is not entitled to renounce or transfer the right
for this would mean sanctioning the voluntary
giving up of life itself. The right to life cannot be
renounced; hence, support, which is the means to
attain the former, cannot be renounced.
xxx xxx xxx
To allow renunciation or transmission or
compensation of the family right of a person to
support is virtually to allow either suicide or the
conversion of the recipient to a public burden.
This is contrary to public policy. 4
In the case at bar, respondent minor's mother,
who was the plaintiff in the first case, manifested
that she was withdrawing the case as it seemed
futile to claim support from petitioner who denied
his paternity over the child. Since the right to
claim for support is predicated on the existence
of filiation between the minor child and the
putative parent, petitioner would like us to
believe that such manifestation admitting the
futility of claiming support from him puts the
issue to rest and bars any and all future
complaint for support.
The manifestation sent in by respondent's mother
in the first case, which acknowledged that it
would be useless to pursue its complaint for
support, amounted to renunciation as it severed
the vinculum that gives the minor, Glen Camil,
the right to claim support from his putative
parent,
the
petitioner.
Furthermore,
the
agreement entered into between the petitioner
and respondent's mother for the dismissal of the
complaint
for
maintenance
and
support
conditioned
upon
the
dismissal
of
the
counterclaim is in the nature of a compromise
which cannot be countenanced. It violates the
prohibition against any compromise of the right
to support. cda
"Thus, the admission made by counsel for the
wife of the facts alleged in a motion of the
husband, in which the latter prayed that his
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obligation to support be extinguished cannot be

considered as an assent to the prayer, and much
less, as a waiver of the right to claim for support."
5
It is true that in order to claim support, filiation
and/or paternity must first be shown between the
claimant and the parent. However, paternity and
filiation or the lack of the same is a relationship
that must be judicially established and it is for the
court to declare its existence or absence. It
cannot be left to the will or agreement of the
parties.
"The civil status of a son having been denied, and
this civil status, from which the right to support is
derived being in issue, it is apparent that no
effect can be given to such a claim until an
authoritative declaration has been made as to the
existence of the cause." 6
Although in the case under scrutiny, the
admission may be binding upon the respondent,
such an admission is at most evidentiary and
does not conclusively establish the lack of
filiation.
Neither are we persuaded by petitioner's theory
that the dismissal with prejudice of Civil Case Q88-935 has the effect of res judicata on the
subsequent case for support. The case of
Advincula vs. Advincula 7 comes to the fore. In
Advincula, the minor, Manuela Advincula,
instituted a case for acknowledgment and
support against her putative father, Manuel
Advincula. On motion of both parties and for the
reason that the "plaintiff has lost interest and is
no longer interested in continuing the case
against the defendant and has no further
evidence to introduce in support of the
complaint", the case was dismissed. Thereafter, a
similar case was instituted by Manuela, which the
defendant moved to dismiss, theorizing that the
dismissal of the first case precluded the filing of
the second case.
In disposing such case, this Court ruled, thus:
"The new Civil Code provides that the allowance
for support is provisional because the amount
may be increased or decreased depending upon
the means of the giver and the needs of the
recipient (Art. 297); and that the right to receive
support cannot be renounced nor can it be
transmitted to a third person; neither can it be
compensated with what the recipient owes the
obligator (Art. 301). Furthermore, the right to
support can not be waived or transferred to third
parties and future support cannot be the subject
of compromise (Art. 2035; Coral v. Gallego, 38
O.G. 3135, cited in IV Civil Code by Padilla, p.
648, 1956 Ed.). This being true, it is indisputable
that the present action for support can be
brought, notwithstanding the fact the previous

case filed against the same defendant was

dismissed. And it also appearing that the
dismissal of Civil Case No. 3553, was not an
adjudication upon the merits, as heretofore
shown, the right of herein plaintiff-appellant to
reiterate
her
suit
for
support
and
acknowledgment is available, as her needs arise.
Once the needs of plaintiff arise, she has the right
to bring an action for support, for it is only then
that her cause of action accrues. . . .
xxx xxx xxx
It appears that the former dismissal was
predicated upon a compromise. Acknowledgment,
affecting as it does the civil status of persons and
future support, cannot be the subject of
compromise. (pars. 1 & 4, Art. 2035, Civil Code).
Hence, the first dismissal cannot have force and

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effect and can not bar the filing of another action,

asking for the same relief against the same
defendant." (emphasis supplied)
Conformably, notwithstanding the dismissal of
Civil Case Q-88-935 and the lower court's
pronouncement that such dismissal was with
prejudice, the second action for support may still
prosper.
WHEREFORE, the petition under consideration is
hereby DISMISSED and the decision of the Court
of Appeals AFFIRMED. No pronouncement as to
costs. LLphil
SO ORDERED.
Romero, Vitug, Panganiban and Gonzaga-Reyes,
JJ., concur.
||| (De Asis v. Court of Appeals, G.R. No. 127578,
February 15, 1999)