SECOND DIVISION

EDUARDO P. MANUEL, G.R. No. 165842

Petitioner,
Present:
PUNO, J., Chairman,
AUSTRIA-MARTINEZ, - versus - CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO,* JJ.
Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. November 29, 2005
x-----------------------------------------------------------------------------------------x
DECISION
CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of

Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision [2] of the Regional
Trial Court (RTC) of Baguio City, Branch 3, convicting Eduardo P. Manuel of
bigamy in Criminal Case No. 19562-R.
Eduardo was charged with bigamy in an Information filed on November 7, 2001,
the accusatory portion of which reads:

That on or about the 22nd day of April, 1996, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused EDUARDO P. MANUEL, being then previously and legally married to
RUBYLUS [GAA] and without the said marriage having been legally dissolved,
did then and there willfully, unlawfully and feloniously contract a second
marriage with TINA GANDALERA-MANUEL, herein complainant, who does

not know the existence of the first marriage of said EDUARDO P. MANUEL to
Rubylus [Gaa].
CONTRARY TO LAW. [3]

The prosecution adduced evidence that on July 28, 1975, Eduardo was married to
Rubylus Gaa before Msgr. Feliciano Santos in Makati, which was then still a
municipality of the Province of Rizal. [4] He met the private complainant Tina B.
Gandalera in Dagupan City sometime in January 1996. She stayed in Bonuan,
Dagupan City for two days looking for a friend. Tina was then 21 years old, a
Computer Secretarial student, while Eduardo was 39. Afterwards, Eduardo went to
Baguio City to visit her. Eventually, as one thing led to another, they went to a
motel where, despite Tinas resistance, Eduardo succeeded in having his way with
her. Eduardo proposed marriage on several occasions, assuring her that he was
single. Eduardo even brought his parents to Baguio City to meet Tinas parents, and
was assured by them that their son was still single.
Tina finally agreed to marry Eduardo sometime in the first week of March
1996. They were married on April 22, 1996 before Judge Antonio C. Reyes, the
Presiding Judge of the RTC of Baguio City, Branch 61.[5] It appeared in their
marriage contract that Eduardo was single.

The couple was happy during the first three years of their married life.
Through their joint efforts, they were able to build their home in Cypress Point,
Irisan, Baguio City. However, starting 1999, Manuel started making himself scarce
and went to their house only twice or thrice a year. Tina was jobless, and whenever
she asked money from Eduardo, he would slap her.[6] Sometime in January 2001,
Eduardo took all his clothes, left, and did not return. Worse, he stopped giving
financial support.
Sometime in August 2001, Tina became curious and made inquiries from the
National Statistics Office (NSO) in Manila where she learned that Eduardo had
2

been previously married. She secured an NSO-certified copy of the marriage

contract.[7] She was so embarrassed and humiliated when she learned that Eduardo
was in fact already married when they exchanged their own vows.[8]
For his part, Eduardo testified that he met Tina sometime in 1995 in a bar where
she worked as a Guest Relations Officer (GRO). He fell in love with her and
married her. He informed Tina of his previous marriage to Rubylus Gaa, but she
nevertheless agreed to marry him. Their marital relationship was in order until this
one time when he noticed that she had a love-bite on her neck. He then abandoned
her. Eduardo further testified that he declared he was single in his marriage
contract with Tina because he believed in good faith that his first marriage was
invalid. He did not know that he had to go to court to seek for the nullification of
his first marriage before marrying Tina.
Eduardo further claimed that he was only forced to marry his first wife
because she threatened to commit suicide unless he did so. Rubylus was charged
withestafa in 1975 and thereafter imprisoned. He visited her in jail after three
months and never saw her again. He insisted that he married Tina believing that his
first marriage was no longer valid because he had not heard from Rubylus for more
than 20 years.
After trial, the court rendered judgment on July 2, 2002 finding Eduardo guilty
beyond reasonable doubt of bigamy. He was sentenced to an indeterminate penalty
of from six (6) years and ten (10) months, as minimum, to ten (10) years, as
maximum, and directed to indemnify the private complainant Tina Gandalera the
amount ofP200,000.00 by way of moral damages, plus costs of suit.[9]
The trial court ruled that the prosecution was able to prove beyond reasonable
doubt all the elements of bigamy under Article 349 of the Revised Penal Code. It
declared that Eduardos belief, that his first marriage had been dissolved because of
his first wifes 20-year absence, even if true, did not exculpate him from liability for
bigamy. Citing the ruling of this Court in People v. Bitdu,[10] the trial court further
3

ruled that even if the private complainant had known that Eduardo had been
previously married, the latter would still be criminally liable for bigamy.
Eduardo appealed the decision to the CA. He alleged that he was not
criminally liable for bigamy because when he married the private complainant, he
did so in good faith and without any malicious intent. He maintained that at the
time that he married the private complainant, he was of the honest belief that his
first marriage no longer subsisted. He insisted that conformably to Article 3 of the
Revised Penal Code, there must be malice for one to be criminally liable for a
felony. He was not motivated by malice in marrying the private complainant
because he did so only out of his overwhelming desire to have a fruitful marriage.
He posited that the trial court should have taken into account Article 390 of the
New Civil Code. To support his view, the appellant cited the rulings of this Court
in United States v. Pealosa[11] and Manahan, Jr. v. Court of Appeals.[12]
The Office of the Solicitor General (OSG) averred that Eduardos defense of
good faith and reliance on the Courts ruling in United States v. Enriquez[13] were
misplaced; what is applicable is Article 41 of the Family Code, which amended
Article 390 of the Civil Code. Citing the ruling of this Court in Republic v.
Nolasco,[14] the OSG further posited that as provided in Article 41 of the Family
Code, there is a need for a judicial declaration of presumptive death of the absent
spouse to enable the present spouse to marry. Even assuming that the first marriage
was void, the parties thereto should not be permitted to judge for themselves the
nullity
of
the
marriage;
the matter should be submitted to the proper court for resolution. Moreover,
the OSG maintained, the private complainants knowledge of the first marriage
would not afford any relief since bigamy is an offense against the State and not just
against the private complainant.
However, the OSG agreed with the appellant that the penalty imposed by the
trial court was erroneous and sought the affirmance of the decision appealed from
with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of

the RTC with modification as to the penalty of the accused. It ruled that the
prosecution was able to prove all the elements of bigamy. Contrary to the
contention of the appellant, Article 41 of the Family Code should apply. Before
Manuel could lawfully marry the private complainant, there should have been a
judicial declaration of Gaas presumptive death as the absent spouse. The appellate
court cited the rulings of this Court in Mercado v. Tan[15] and Domingo v. Court of
Appeals[16] to support its ruling. The dispositive portion of the decision reads:
WHEREFORE, in the light of the foregoing, the Decision promulgated on
July 31, 2002 is hereby MODIFIED to reflect, as it hereby reflects, that accusedappellant is sentenced to an indeterminate penalty of two (2) years, four (4)
months and one (1) day of prision correccional, as minimum, to ten (10) years
of prision mayor as maximum. Said Decision is AFFIRMED in all other
respects.
SO ORDERED.[17]

Eduardo, now the petitioner, filed the instant petition for review on
certiorari, insisting that:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW
WHEN IT RULED THAT PETITIONERS FIRST WIFE CANNOT BE
LEGALLY PRESUMED DEAD UNDER ARTICLE 390 OF THE CIVIL CODE
AS THERE WAS NO JUDICIAL DECLARATION OF PRESUMPTIVE DEATH
AS PROVIDED FOR UNDER ARTICLE 41 OF THE FAMILY CODE.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF LAW
WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS MORAL
DAMAGES AS IT HASNO BASIS IN FACT AND IN LAW.[18]

The petitioner maintains that the prosecution failed to prove the second element of
the felony, i.e., that the marriage has not been legally dissolved or, in case his/her
spouse is absent, the absent spouse could not yet be presumed dead under the Civil
Code. He avers that when he married Gandalera in 1996, Gaa had been absent for
5

21 years since 1975; under Article 390 of the Civil Code, she was presumed dead
as a matter of law. He points out that, under the first paragraph of Article 390 of the
Civil Code, one who has been absent for seven years, whether or not he/she is still
alive, shall be presumed dead for all purposes except for succession, while the
second paragraph refers to the rule on legal presumption of death with respect to
succession.
The petitioner asserts that the presumptive death of the absent spouse arises
by operation of law upon the satisfaction of two requirements: the
specified period and the present spouses reasonable belief that the absentee is dead.
He insists that he was able to prove that he had not heard from his first wife since
1975 and that he had no knowledge of her whereabouts or whether she was still
alive; hence, under Article 41 of the Family Code, the presumptive death of Gaa
had arisen by operation of law, as the two requirements of Article 390 of the Civil
Code are present. The petitioner concludes that he should thus be acquitted of the
crime of bigamy.
The petitioner insists that except for the period of absences provided for in
Article 390 of the Civil Code, the rule therein on legal presumptions remains valid
and effective. Nowhere under Article 390 of the Civil Code does it require that
there must first be a judicial declaration of death before the rule on presumptive
death would apply. He further asserts that contrary to the rulings of the trial and
appellate courts, the requirement of a judicial declaration of presumptive death
under Article 41 of the Family Code is only a requirement for the validity of the
subsequent or second marriage.
The petitioner, likewise, avers that the trial court and the CA erred in awarding
moral damages in favor of the private complainant. The private complainant was a
GRO before he married her, and even knew that he was already married. He
genuinely loved and took care of her and gave her financial support. He also
pointed out that she had an illicit relationship with a lover whom she brought to
their house.
6

In its comment on the petition, the OSG maintains that the decision of the CA
affirming the petitioners conviction is in accord with the law, jurisprudence and the
evidence on record. To bolster its claim, the OSG cited the ruling of this Court
in Republic v. Nolasco.[19]
The petition is denied for lack of merit.
Article 349 of the Revised Penal Code, which defines and penalizes bigamy, reads:
Art. 349. Bigamy. The penalty of prision mayor shall be imposed upon any person
who shall contract a second or subsequent marriage before the former marriage
has been legally dissolved, or before the absent spouse has been declared
presumptively dead by means of a judgment rendered in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code, to wit:
El que contrajere Segundo o ulterior matrimonio sin hallarse legtimamente
disuelto el anterior, ser castigado con la pena de prision mayor. xxx

The reason why bigamy is considered a felony is to preserve and ensure the
juridical tie of marriage established by law.[20] The phrase or before the absent
spouse had been declared presumptively dead by means of a judgment rendered in
the proper proceedings was incorporated in the Revised Penal Code because the
drafters of the law were of the impression that in consonance with the civil law
which provides for the presumption of death after an absence of a number of
years, the judicial declaration of presumed death like annulment of
marriage should be a justification for bigamy.[21]
For the accused to be held guilty of bigamy, the prosecution is burdened to prove
the felony: (a) he/she has been legally married; and (b) he/she contracts a
subsequent marriage without the former marriage having been lawfully dissolved.
The felony is consummated on the celebration of the second marriage or
subsequent marriage.[22] It is essential in the prosecution for bigamy that the alleged
second marriage, having all the essential requirements, would be valid were it not
for the subsistence of the first marriage. [23] Viada avers that a third element of the
7

crime is that the second marriage must be entered into with fraudulent
intent (intencion fraudulente) which is an essential element of a felony by dolo.
[24]
On the other hand, Cuello Calon is of the view that there are only two elements
of bigamy: (1) the existence of a marriage that has not been lawfully dissolved; and
(2) the celebration of a second marriage. It does not matter whether the first
marriage is void or voidable because such marriages have juridical effects until
lawfully dissolved by a court of competent jurisdiction. [25] As the Court ruled
in Domingo v. Court of Appeals[26] andMercado v. Tan,[27] under the Family Code of
the Philippines, the judicial declaration of nullity of a previous marriage is a
defense.

In his commentary on the Revised Penal Code, Albert is of the same view as
Viada and declared that there are three (3) elements of bigamy: (1) an undissolved
marriage; (2) a new marriage; and (3) fraudulent intention constituting the felony
of the act.[28] He explained that:
This last element is not stated in Article 349, because it is undoubtedly
incorporated in the principle antedating all codes, and, constituting one of the
landmarks of our Penal Code, that, where there is no willfulness there is no crime.
There
is
no
willfulness
if
the
subject
believes that the former marriage has been dissolved; and this must be supported
by very strong evidence, and if this be produced, the act shall be deemed not to
constitute a crime. Thus, a person who contracts a second marriage in the
reasonable and well-founded belief that his first wife is dead, because of the many
years that have elapsed since he has had any news of her whereabouts, in spite of
his endeavors to find her, cannot be deemed guilty of the crime of bigamy,
because there is no fraudulent intent which is one of the essential elements of the
crime.[29]

As gleaned from the Information in the RTC, the petitioner is charged with bigamy,
a felony by dolo (deceit). Article 3, paragraph 2 of the Revised Penal Code
provides that there is deceit when the act is performed with deliberate intent.
Indeed, a felony cannot exist without intent. Since a felony by dolo is classified as
an intentional felony, it is deemed voluntary.[30] Although the words with malice do
8

not appear in Article 3 of the Revised Penal Code, such phrase is included in the
word voluntary.[31]
Malice is a mental state or condition prompting the doing of an overt act
without legal excuse or justification from which another suffers injury.[32] When the
act or omission defined by law as a felony is proved to have been done or
committed by the accused, the law presumes it to have been intentional. [33] Indeed,
it is a legal presumption of law that every man intends the natural or probable
consequence of his voluntary act in the absence of proof to the contrary, and such
presumption must prevail unless a reasonable doubt exists from a consideration of
the whole evidence.[34]
For one to be criminally liable for a felony by dolo, there must be a confluence of
both an evil act and an evil intent. Actus non facit reum, nisi mens sit rea.[35]
In the present case, the prosecution proved that the petitioner was married to Gaa
in 1975, and such marriage was not judicially declared a nullity; hence, the
marriage is presumed to subsist.[36] The prosecution also proved that the petitioner
married the private complainant in 1996, long after the effectivity of the Family
Code.
The petitioner is presumed to have acted with malice or evil intent when he
married the private complainant. As a general rule, mistake of fact or good faith of
the accused is a valid defense in a prosecution for a felony by dolo; such defense
negates malice or criminal intent. However, ignorance of the law is not an excuse
because everyone is presumed to know the law. Ignorantia legis neminem excusat.
It was the burden of the petitioner to prove his defense that when he married
the private complainant in 1996, he was of the well-grounded belief
that his first wife was already dead, as he had not heard from her for more than 20
years since 1975. He should have adduced in evidence a decision of a competent
court declaring the presumptive death of his first wife as required by Article 349 of
the Revised Penal Code, in relation to Article 41 of the Family Code. Such judicial
9

declaration also constitutes proof that the petitioner acted in good faith, and would
negate criminal intent on his part when he married the private complainant and, as
a consequence, he could not be held guilty of bigamy in such case. The petitioner,
however, failed to discharge his burden.
The phrase or before the absent spouse has been declared presumptively
dead by means of a judgment rendered on the proceedings in Article 349 of the
Revised Penal Code was not an aggroupment of empty or useless words. The
requirement for a judgment of the presumptive death of the absent spouse is for the
benefit of the spouse present, as protection from the pains and the consequences of
a second marriage, precisely because he/she could be charged and convicted of
bigamy if the defense of good faith based on mere testimony is found incredible.
The requirement of judicial declaration is also for the benefit of the State.
Under Article II, Section 12 of the Constitution, the State shall protect and
strengthen the family as a basic autonomous social institution. Marriage is a social
institution of the highest importance. Public policy, good morals and the interest of
society require that the marital relation should be surrounded with every safeguard
and its severance only in the manner prescribed and the causes specified by law.
[37]
The laws regulating civil marriages are necessary to serve the interest, safety,
good order, comfort or general welfare of the community and the parties can waive
nothing essential to the validity of the proceedings. A civil marriage anchors an
ordered society by encouraging stable relationships over transient ones; it enhances
the welfare of the community.
In a real sense, there are three parties to every civil marriage; two willing
spouses and an approving State. On marriage, the parties assume new relations to
each other and the State touching nearly on every aspect of life and death. The
consequences of an invalid marriage to the parties, to innocent parties and to
society, are so serious that the law may well take means calculated to ensure the
procurement of the most positive evidence of death of the first spouse or of the
presumptive death of the absent spouse [38] after the lapse of the period provided for
10

under the law. One such means is the requirement of the declaration by a
competent court of the presumptive death of an absent spouse as proof that the
present spouse contracts a subsequent marriage on a well-grounded belief of the
death of the first spouse. Indeed, men readily believe what they wish to be true, is a
maxim of the old jurists. To sustain a second marriage and to vacate a first because
one of the parties believed the other to be dead would make the existence of the
marital relation determinable, not by certain extrinsic facts, easily capable of
forensic ascertainment and proof, but by the subjective condition of individuals.
[39]
Only with such proof can marriage be treated as so dissolved as to permit
second marriages.[40] Thus, Article 349 of the Revised Penal Code has made the
dissolution of marriage dependent not only upon the personal belief of parties, but
upon certain objective facts easily capable of accurate judicial cognizance,
[41]
namely, a judgment of the presumptive death of the absent spouse.
The petitioners sole reliance on Article 390 of the Civil Code as basis for his
acquittal for bigamy is misplaced.
Articles 390 and 391 of the Civil Code provide
Art. 390. After an absence of seven years, it being unknown whether or not, the
absentee still lives, he shall be presumed dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead for the purpose of opening his
succession till after an absence of ten years. If he disappeared after the age of
seventy-five years, an absence of five years shall be sufficient in order that his
succession may be opened.
Art. 391. The following shall be presumed dead for all purposes, including the
division of the estate among the heirs:
(1)

A person on board a vessel lost during a sea voyage, or an aeroplane

which is missing, who has not been heard of for four years since the
loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and has been
missing for four years;
(3) A person who has been in danger of death under other circumstances
and his existence has not been known for four years.
11

The presumption of death of the spouse who had been absent for seven
years, it being unknown whether or not the absentee still lives, is created by law
and arises without any necessity of judicial declaration. [42] However, Article 41 of
the Family Code, which amended the foregoing rules on presumptive death, reads:
Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the
spouse present had a well-founded belief that the absent spouse was already dead.
In case of disappearance where there is danger of death under the circumstances
set forth in the provisions of Article 391 of the Civil Code, an absence of only two
years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided
in this Court for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.[43]

With the effectivity of the Family Code, [44] the period of seven years under
the first paragraph of Article 390 of the Civil Code was reduced to four
consecutive years. Thus, before the spouse present may contract a subsequent
marriage, he or she must institute summary proceedings for the declaration of the
presumptive death of the absentee spouse,[45] without prejudice to the effect of the
reappearance of the absentee spouse. As explained by this Court in Armas v.
Calisterio:[46]
In contrast, under the 1988 Family Code, in order that a subsequent
bigamous marriage may exceptionally be considered valid, the following
conditions must concur, viz.: (a) The prior spouse of the contracting party must
have been absent for four consecutive years, or two years where there is danger of
death under the circumstances stated in Article 391 of the Civil Code at the time
of disappearance; (b) the spouse present has a well-founded belief that the absent
spouse is already dead; and (c) there is, unlike the old rule, a judicial declaration
of presumptive death of the absentee for which purpose the spouse present can
institute a summary proceeding in court to ask for that declaration. The last
condition is consistent and in consonance with the requirement of judicial
intervention in subsequent marriages as so provided in Article 41, in relation to
Article 40, of the Family Code.

12

The Court rejects petitioners contention that the requirement of instituting a

petition for declaration of presumptive death under Article 41 of the Family Code
is designed merely to enable the spouse present to contract a valid second marriage
and not for the acquittal of one charged with bigamy. Such provision was designed
to harmonize civil law and Article 349 of the Revised Penal Code, and put to rest
the confusion spawned by the rulings of this Court and comments of eminent
authorities on Criminal Law.
As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47] that, for
purposes of the marriage law, it is not necessary to have the former spouse
judicially declared an absentee before the spouse present may contract a
subsequent marriage. It held that the declaration of absence made in accordance
with the provisions of the Civil Code has for its sole purpose the taking of the
necessary precautions for the administration of the estate of the absentee. For the
celebration of civil marriage, however, the law only requires that the former spouse
had been absent for seven consecutive years at the time of the second marriage,
that the spouse present does not know his or her former spouse to be living, that
such former spouse is generally reputed to be dead and the spouse present so
believes at the time of the celebration of the marriage. [48] In In Re Szatraw,[49] the
Court declared that a judicial declaration that a person is presumptively dead,
because he or she had been unheard from in seven years, being a presumption juris
tantum only, subject to contrary proof, cannot reach the stage of finality or become
final; and that proof of actual death of the person presumed dead being unheard
from in seven years, would have to be made in another proceeding to have such
particular fact finally determined. The Court ruled that if a judicial decree
declaring a person presumptively dead because he or she had not been heard from
in seven years cannot become final and executory even after the lapse of the
reglementary period within which an appeal may be taken, for such presumption is
still disputable and remains subject to contrary proof, then a petition for such a
declaration is useless, unnecessary, superfluous and of no benefit to the petitioner.
The Court stated that it should not waste its valuable time and be made to perform
a superfluous and meaningless act.[50] The Court also took note that a petition for a
13

declaration of the presumptive death of an absent spouse may even be made in

collusion with the other spouse.
In Lukban v. Republic of the Philippines,[51] the Court declared that the words
proper proceedings in Article 349 of the Revised Penal Code can only refer to
those authorized by law such as Articles 390 and 391 of the Civil Code which refer
to the administration or settlement of the estate of a deceased person. In Gue v.
Republic of the Philippines,[52] the Court rejected the contention of the petitioner
therein that, under Article 390 of the Civil Code, the courts are authorized to
declare the presumptive death of a person after an absence of seven years. The
Court reiterated its rulings in Szatraw, Lukban and Jones.
Former Chief Justice Ramon C. Aquino was of the view that the provision of
Article 349 or before the absent spouse has been declared presumptively dead by
means of a judgment reached in the proper proceedings is erroneous and should be
considered as not written. He opined that such provision presupposes that, if the
prior marriage has not been legally dissolved and the absent first spouse has not
been declared presumptively dead in a proper court proceedings, the subsequent
marriage is bigamous. He maintains that the supposition is not true. [53] A second
marriage is bigamous only when the circumstances in paragraphs 1 and 2 of Article
83 of the Civil Code are not present.[54] Former Senator Ambrosio Padilla was,
likewise, of the view that Article 349 seems to require judicial decree of
dissolution or judicial declaration of absence but even with such decree, a second
marriage in good faith will not constitute bigamy. He posits that a second marriage,
if not illegal, even if it be annullable, should not give rise to bigamy. [55] Former
Justice Luis B. Reyes, on the other hand, was of the view that in the case of an
absent spouse who could not yet be presumed dead according to the Civil Code,
the spouse present cannot be charged and convicted of bigamy in case he/she
contracts a second marriage.[56]
The Committee tasked to prepare the Family Code proposed the
amendments of Articles 390 and 391 of the Civil Code to conform to Article 349 of
14

the Revised Penal Code, in that, in a case where a spouse is absent for the requisite
period, the present spouse may contract a subsequent marriage only after securing
a judgment declaring the presumptive death of the absent spouse to avoid being
charged and convicted of bigamy; the present spouse will have to adduce evidence
that he had a well-founded belief that the absent spouse was already dead. [57] Such
judgment is proof of the good faith of the present spouse who contracted a
subsequent marriage; thus, even if the present spouse is later charged with bigamy
if the absentee spouse reappears, he cannot be convicted of the crime. As explained
by former Justice Alicia Sempio-Diy:
Such rulings, however, conflict with Art. 349 of the Revised Penal Code
providing that the present spouse must first ask for a declaration of presumptive
death of the absent spouse in order not to be guilty of bigamy in case he or she
marries again.
The above Article of the Family Code now clearly provides that for the
purpose of the present spouse contracting a second marriage, he or she must file a
summary proceeding as provided in the Code for the declaration of the
presumptive death of the absentee, without prejudice to the latters reappearance.
This provision is intended to protect the present spouse from a criminal
prosecution for bigamy under Art. 349 of the Revised Penal Code because with
the judicial declaration that the missing spouses presumptively dead, the good
faith of the present spouse in contracting a second marriage is already established.
[58]

Of the same view is former Dean Ernesto L. Pineda (now Undersecretary of

Justice) who wrote that things are now clarified. He says judicial declaration of
presumptive
death
is
now
authorized
for
purposes
of
remarriage. The present spouse must institute a summary proceeding for
declaration of presumptive death of the absentee, where the ordinary rules of
procedure in trial will not be followed. Affidavits will suffice, with possible
clarificatory examinations of affiants if the Judge finds it necessary for a full grasp
of the facts. The judgment declaring an absentee as presumptively dead is without
prejudice to the effect of reappearance of the said absentee.

15

Dean Pineda further states that before, the weight of authority is that the
clause before the absent spouse has been declared presumptively dead x x x should
be disregarded because of Article 83, paragraph 3 of the Civil Code. With the new
law, there is a need to institute a summary proceeding for the declaration of the
presumptive death of the absentee, otherwise, there is bigamy.[59]
According to Retired Supreme Court Justice Florenz D. Regalado, an eminent
authority on Criminal Law, in some cases where an absentee spouse is believed to
be dead, there must be a judicial declaration of presumptive death, which could
then be made only in the proceedings for the settlement of his estate. [60] Before
such declaration, it was held that the remarriage of the other spouse is bigamous
even if done in good faith.[61] Justice Regalado opined that there were contrary
views because of the ruling in Jones and the provisions of Article 83(2) of the Civil
Code, which, however, appears to have been set to rest by Article 41 of the Family
Code, which requires a summary hearing for the declaration of presumptive death
of the absent spouse before the other spouse can remarry.
Under Article 238 of the Family Code, a petition for a declaration of the
presumptive death of an absent spouse under Article 41 of the Family Code may be
filed under Articles 239 to 247 of the same Code.[62]
On the second issue, the petitioner, likewise, faults the trial court and the CA for
awarding moral damages in favor of the private complainant. The petitioner
maintains that moral damages may be awarded only in any of the cases provided in
Article 2219 of the Civil Code, and bigamy is not one of them. The petitioner
asserts that the appellate court failed to apply its ruling in People v. Bondoc,
[63]
where an award of moral damages for bigamy was disallowed. In any case, the
petitioner maintains, the private complainant failed to adduce evidence to prove
moral damages.
The appellate court awarded moral damages to the private complainant on its
finding that she adduced evidence to prove the same. The appellate court ruled that
while bigamy is not included in those cases enumerated in Article 2219 of the Civil
16

Code, it is not proscribed from awarding moral damages against the petitioner. The
appellate court ruled that it is not bound by the following ruling in People v.
Bondoc:
... Pero si en dichos asuntos se adjudicaron daos, ello se debi indedublamente
porque el articulo 2219 del Cdigo Civil de Filipinas autoriza la adjudicacin de
daos morales en los delitos de estupro, rapto, violacin, adulterio o concubinato, y
otros actos lascivos, sin incluir en esta enumeracin el delito de bigamia. No
existe, por consiguiente, base legal para adjudicar aqu los daos de P5,000.00
arriba mencionados.[64]

The OSG posits that the findings and ruling of the CA are based on the
evidence and the law. The OSG, likewise, avers that the CA was not bound by its
ruling in People v. Rodeo.
The Court rules against the petitioner.
Moral damages include physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation,
and similar injury. Though incapable of pecuniary computation, moral damages
may be recovered if they are the proximate result of the defendants wrongful act or
omission.[65] An award for moral damages requires the confluence of the following
conditions: first, there must be an injury, whether physical, mental or
psychological, clearly sustained by the claimant; second, there must be culpable act
or omission factually established; third, the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the claimant;
and fourth, the award of damages is predicated on any of the cases stated in Article
2219 or Article 2220 of the Civil Code.[66]
Moral damages may be awarded in favor of the offended party only in
criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the Civil
Code and analogous cases, viz.:
Art. 2219. Moral damages may be recovered in the following and analogous
cases.
(1) A criminal offense resulting in physical injuries;
17

(2) Quasi-delicts causing physical injuries;

(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29, 30, 32, 34
and 35.
The parents of the female seduced, abducted, raped, or abused, referred to
in No. 3 of this article, may also recover moral damages.
The spouse, descendants, ascendants, and brothers and sisters may bring
the action mentioned in No. 9 of this article in the order named.

Thus, the law does not intend that moral damages should be awarded in all cases
where the aggrieved party has suffered mental anguish, fright, moral anxieties,
besmirched reputation, wounded feelings, moral shock, social humiliation and
similar injury arising out of an act or omission of another, otherwise, there would
not have been any reason for the inclusion of specific acts in Article 2219 [67] and
analogous cases (which refer to those cases bearing analogy or resemblance,
corresponds to some others or resembling, in other respects, as in form, proportion,
relation, etc.)[68]
Indeed, bigamy is not one of those specifically mentioned in Article 2219 of
the Civil Code in which the offender may be ordered to pay moral damages to the
private complainant/offended party. Nevertheless, the petitioner is liable to the
private complainant for moral damages under Article 2219 in relation to Articles
19, 20 and 21 of the Civil Code.
According to Article 19, every person must, in the exercise of his rights and
in the performance of his act with justice, give everyone his due, and observe
honesty and good faith. This provision contains what is commonly referred to as
the principle of abuse of rights, and sets certain standards which must be observed
not only in the exercise of ones rights but also in the performance of ones duties.
18

The standards are the following: act with justice; give everyone his due; and
observe honesty and good faith. The elements for abuse of rights are: (a) there is a
legal right or duty; (b) exercised in bad faith; and (c) for the sole intent of
prejudicing or injuring another.[69]
Article 20 speaks of the general sanctions of all other provisions of law
which do not especially provide for its own sanction. When a right is exercised in a
manner which does not conform to the standards set forth in the said provision and
results in damage to another, a legal wrong is thereby committed for which the
wrongdoer must be responsible.[70] If the provision does not provide a remedy for
its violation, an action for damages under either Article 20 or Article 21 of the
Civil Code would be proper. Article 20 provides that every person who, contrary to
law, willfully or negligently causes damage to another shall indemnify the latter for
the same. On the other hand, Article 21 provides that any person who willfully
causes loss or injury to another in a manner that is contrary to morals, good
customs or public policy shall compensate the latter for damages. The latter
provision
is adopted to remedy the countless gaps in the statutes which leave so many
victims of moral wrongs helpless, even though they have actually suffered material
and moral injury should vouchsafe adequate legal remedy for that untold number
of moral wrongs which it is impossible for human foresight to prove for
specifically in the statutes. Whether or not the principle of abuse of rights has been
violated resulting in damages under Article 20 or Article 21 of the Civil Code or
other applicable provisions of law depends upon the circumstances of each case.[71]
In the present case, the petitioner courted the private complainant and proposed to
marry her. He assured her that he was single. He even brought his parents to the
house of the private complainant where he and his parents made the same
assurance that he was single. Thus, the private complainant agreed to marry the
petitioner, who even stated in the certificate of marriage that he was single. She
lived with the petitioner and dutifully performed her duties as his wife, believing
all the while that he was her lawful husband. For two years or so until the
19

petitioner heartlessly abandoned her, the private complainant had no inkling that he
was already married to another before they were married.
Thus, the private complainant was an innocent victim of the petitioners
chicanery and heartless deception, the fraud consisting not of a single act alone, but
a continuous series of acts. Day by day, he maintained the appearance of being a
lawful
husband
to
the
private
complainant,
who
changed her status from a single woman to a married woman, lost the consortium,
attributes and support of a single man she could have married lawfully and endured
mental pain and humiliation, being bound to a man who it turned out was not her
lawful husband.[72]
The Court rules that the petitioners collective acts of fraud and deceit before,
during and after his marriage with the private complainant were willful, deliberate
and with malice and caused injury to the latter. That she did not sustain any
physical injuries is not a bar to an award for moral damages. Indeed, in Morris v.
Macnab,[73] the New Jersey Supreme Court ruled:
xxx The defendant cites authorities which indicate that, absent physical
injuries, damages for shame, humiliation, and mental anguish are not recoverable
where the actor is simply negligent. See Prosser, supra, at p. 180; 2 Harper &
James, Torts, 1031 (1956). But the authorities all recognize that where the wrong
is willful rather than negligent, recovery may be had for the ordinary, natural, and
proximate consequences though they consist of shame, humiliation, and mental
anguish. See Spiegel v. Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585
(Sup. Ct. 1936); Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579,
591, 99 A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendants
conduct was not merely negligent, but was willfully and maliciously wrongful. It
was bound to result in shame, humiliation, and mental anguish for the plaintiff,
and when such result did ensue the plaintiff became entitled not only to
compensatory but also to punitive damages. See Spiegel v. Evergreen Cemetery
Co., supra; Kuzma v Millinery Workers, etc., Local 24, supra. CF. Note,
Exemplary Damages in the Law of Torts, 70 Harv. L. Rev. 517 (1957). The
plaintiff testified that because of the defendants bigamous marriage to her and the
attendant publicity she not only was embarrassed and ashamed to go out but
couldnt sleep but couldnt eat, had terrific headaches and lost quite a lot of weight.
No just basis appears for judicial interference with the jurys reasonable allowance
of $1,000 punitive damages on the first count. See Cabakov v. Thatcher, 37 N.J.
Super 249, 117 A.2d 298 (App. Div.[74] 1955).
20

The Court thus declares that the petitioners acts are against public policy as they
undermine and subvert the family as a social institution, good morals and the
interest and general welfare of society.
Because the private complainant was an innocent victim of the petitioners
perfidy, she is not barred from claiming moral damages. Besides, even
considerations of public policy would not prevent her from recovery. As held
in Jekshewitz v. Groswald:[75]
Where a person is induced by the fraudulent representation of another to do an act
which, in consequence of such misrepresentation, he believes to be neither illegal
nor immoral, but which is in fact a criminal offense, he has a right of action
against the person so inducing him for damages sustained by him in consequence
of his having done such act. Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v.
Cooper, 147 Mass. 370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a
false representation by the defendant that he was divorced from his former wife,
whereby the plaintiff was induced to marry him, gave her a remedy in tort for
deceit. It seems to have been assumed that the fact that she had unintentionally
violated the law or innocently committed a crime by cohabiting with him would
be no bar to the action, but rather that it might be a ground for enhancing her
damages. The injury to the plaintiff was said to be in her being led by the promise
to give the fellowship and assistance of a wife to one who was not her husband
and to assume and act in a relation and condition that proved to be false and
ignominious. Damages for such an injury were held to be recoverable in Sherman
v. Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am. Rep.
336.
Furthermore, in the case at bar the plaintiff does not base her cause of action upon
any transgression of the law by herself but upon the defendants misrepresentation.
The criminal relations which followed, innocently on her part, were but one of the
incidental results of the defendants fraud for which damages may be assessed.
[7] Actions for deceit for fraudulently inducing a woman to enter into the
marriage relation have been maintained in other jurisdictions. Sears v. Wegner,
150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819; Larson v. McMillan, 99
Wash. 626, 170 P. 324; Blossom v. Barrett, 37 N.Y. 434, 97 Am. Dec. 747; Morril
v. Palmer, 68 Vt. 1, 33 A. 829, 33 L.R.A. 411. Considerations of public policy
would not prevent recovery where the circumstances are such that the plaintiff
was conscious of no moral turpitude, that her illegal action was induced solely by
the defendants misrepresentation, and that she does not base her cause of action
upon any transgression of the law by herself. Such considerations
distinguish this case from cases in which the court has refused to lend its aid to
21

the enforcement of a contract illegal on its face or to one who has consciously and
voluntarily become a party to an illegal act upon which the cause of action is
founded. Szadiwicz v. Cantor, 257 Mass. 518, 520, 154 N.E. 251, 49 A. L. R. 958.
[76]

Considering the attendant circumstances of the case, the Court finds the award
of P200,000.00 for moral damages to be just and reasonable.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The
assailed decision of the Court of Appeals is AFFIRMED. Costs against the
petitioner.
SO ORDERED.

SECOND DIVISION
REPUBLIC OF THE PHILIPPINES, G.R. No. 159614
Petitioner,
Present:
- versus - PUNO, J., Chairman,
AUSTRIA-MARTINEZ,
CALLEJO, SR.,
THE HONORABLE COURT OF TINGA, and
APPEALS (TENTH DIVISION) CHICO-NAZARIO, JJ.
and ALAN B. ALEGRO,
Respondents.
Promulgated:
December 9, 2005
x--------------------------------------------------x

22

DECISION
CALLEJO, SR., J.:

On March 29, 2001, Alan B. Alegro filed a petition in the Regional Trial Court
(RTC) of Catbalogan, Samar, Branch 27, for the declaration of presumptive death
of his wife, Rosalia (Lea) A. Julaton.
In an Order[1] dated April 16, 2001, the court set the petition for hearing on
May 30, 2001 at 8:30 a.m. and directed that a copy of the said order be published
once a week for three (3) consecutive weeks in the Samar Reporter, a newspaper of
general
circulation
in
the
Province
of
Samar,
and
that a copy be posted in the courts bulletin board for at least three weeks before the
next scheduled hearing. The court also directed that copies of the order be served
on the Solicitor General, the Provincial Prosecutor of Samar, and Alan, through
counsel, and that copies be sent to Lea by registered mail. Alan complied with all
the foregoing jurisdictional requirements.[2]
On May 28, 2001, the Republic of the Philippines, through the Office of the
Solicitor General (OSG), filed a Motion to Dismiss [3] the petition, which was,
however, denied by the court for failure to comply with Rule 15 of the Rules of
Court.[4]
At the hearing, Alan adduced evidence that he and Lea were married on
January 20, 1995 in Catbalogan, Samar.[5] He testified that, on February 6, 1995,
Lea arrived home late in the evening and he berated her for being always out of
their house. He told her that if she enjoyed the life of a single person, it would be
better for her to go back to her parents.[6] Lea did not reply. Alan narrated that,
when he reported for work the following day, Lea was still in the house, but when
he arrived home later in the day, Lea was nowhere to be found. [7] Alan thought that
Lea merely went to her parents house in Bliss, Sto. Nio, Catbalogan, Samar.
[8]
However, Lea did not return to their house anymore.
23

Alan further testified that, on February 14, 1995, after his work, he went to
the house of Leas parents to see if she was there, but he was told that she was not
there. He also went to the house of Leas friend, Janeth Bautista,
at Barangay Canlapwas, but he was informed by Janettes brother-in-law, Nelson
Abaenza, that Janeth had left for Manila. [9] When Alan went back to the house of
his parents-in-law, he learned from his father-in-law that Lea had been to their
house but that she left without notice. [10] Alan sought the help of Barangay Captain
Juan Magat, who promised to help him locate his wife. He also inquired from his
friends of Leas whereabouts but to no avail.[11]
Sometime in June 1995, he decided to go to Manila to look for Lea, but his
mother asked him to leave after the town fiesta of Catbalogan, hoping that Lea may
come home for the fiesta. Alan agreed.[12] However, Lea did not show up. Alan then
left for Manila on August 27, 1995. He went to a house in Navotas where Janeth,
Leas friend, was staying. When asked where Lea was, Janeth told him that she had
not seen her.[13] He failed to find out Leas whereabouts despite his repeated talks
with Janeth. Alan decided to work as a part-time taxi driver. On his free time, he
would look for Lea in the malls but still to no avail. He returned to Catbalogan in
1997 and again looked for his wife but failed.[14]
On June 20, 2001, Alan reported Leas disappearance to the local police
station.[15] The police authorities issued an Alarm Notice on July 4, 2001.[16] Alan
also reported Leas disappearance to the National Bureau of Investigation (NBI) on
July 9, 2001.[17]
Barangay Captain Juan Magat corroborated the testimony of Alan. He
declared that on February 14, 1995, at 2:00 p.m., Alan inquired from him if Lea
passed by his house and he told Alan that she did not. Alan also told him that Lea
had disappeared. He had not seen Lea in the barangay ever since.[18] Leas father,
who was his compadre and the owner of Radio DYMS, told him that he did not
know where Lea was.[19]
24

After Alan rested his case, neither the Office of the Provincial Prosecutor nor
the Solicitor General adduced evidence in opposition to the petition.
On January 8, 2002, the court rendered judgment granting the petition.
The fallo of the decision reads:
WHEREFORE, and in view of all the foregoing, petitioners absent spouse
ROSALIA JULATON is hereby declared PRESUMPTIVELY DEAD for the
purpose of the petitioners subsequent marriage under Article 41 of the Family
Code of the Philippines, without prejudice to the effect of reappearance of the said
absent spouse.
SO ORDERED.[20]

The OSG appealed the decision to the Court of Appeals (CA) which rendered
judgment on August 4, 2003, affirming the decision of the RTC. [21] The CA cited
the ruling of this Court in Republic v. Nolasco.[22]
The OSG filed a petition for review on certiorari of the CAs decision alleging that
respondent Alan B. Alegro failed to prove that he had a well-founded belief that
Lea was already dead.[23] It averred that the respondent failed to exercise reasonable
and diligent efforts to locate his wife. The respondent even admitted that Leas
father told him on February 14, 1995 that Lea had been to their house but left
without notice. The OSG pointed out that the respondent reported his wifes
disappearance to the local police and also to the NBI only after the petitioner filed
a motion to dismiss the petition. The petitioner avers that, as gleaned from the
evidence, the respondent did not really want to find and locate Lea. Finally, the
petitioner averred:
In view of the summary nature of proceedings under Article 41 of the
Family Code for the declaration of presumptive death of ones spouse, the degree
of due diligence set by this Honorable Court in the above-mentioned cases in
locating the whereabouts of a missing spouse must be strictly complied with.
There have been times when Article 41 of the Family Code had been resorted to
by parties wishing to remarry knowing fully well that their alleged missing
spouses are alive and well. It is even possible that those who cannot have their
marriages x x x declared null and void under Article 36 of the Family Code resort
to Article 41 of the Family Code for relief because of the x x x summary nature of
its proceedings.
25

It is the policy of the State to protect and strengthen the family as a basic
social institution. Marriage is the foundation of the family. Since marriage is an
inviolable social institution that the 1987 Constitution seeks to protect from
dissolution at the whim of the parties. For respondents failure to prove that he had
a
well-founded
belief
that
his
wife
is
already
dead and that he exerted the required amount of diligence in searching for his
missing wife, the petition for declaration of presumptive death should have been
denied by the trial court and the Honorable Court of Appeals.[24]

The petition is meritorious.

Article 41 of the Family Code of the Philippines reads:
Art. 41. A marriage contracted by any person during the subsistence of a previous
marriage shall be null and void, unless before the celebration of the subsequent
marriage, the prior spouse had been absent for four consecutive years and the
spouse present had a well-founded belief that the absent spouse was already dead.
In case of disappearance where there is danger under the circumstances set forth
in the provisions of Article 391 of the Civil Code, an absence of only two years
shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding
paragraph, the spouse present must institute a summary proceeding as provided
in this Code for the declaration of presumptive death of the absentee, without
prejudice to the effect of reappearance of the absent spouse.[25]

The spouse present is, thus, burdened to prove that his spouse has been absent and
that he has a well-founded belief that the absent spouse is already dead before the
present spouse may contract a subsequent marriage. The law does not define what
is meant by a well-grounded belief. Cuello Callon writes that es menester que su
creencia sea firme se funde en motivos racionales.[26]
Belief is a state of the mind or condition prompting the doing of an overt act.
It may be proved by direct evidence or circumstantial evidence which may tend,
even in a slight degree, to elucidate the inquiry or assist to a determination
probably founded in truth. Any fact or circumstance relating to the character,
habits, conditions, attachments, prosperity and objects of life which usually control
the conduct of men, and are the motives of their actions, was, so far as it tends to
explain or characterize their disappearance or throw light on their intentions,
[27]
competence evidence on the ultimate question of his death.
26

The belief of the present spouse must be the result of proper and honest to
goodness inquiries and efforts to ascertain the whereabouts of the absent spouse
and whether the absent spouse is still alive or is already dead. Whether or not the
spouse present acted on a well-founded belief of death of the absent spouse
depends upon the inquiries to be drawn from a great many circumstances occurring
before and after the disappearance of the absent spouse and the nature and extent
of the inquiries made by present spouse.[28]
Although testimonial evidence may suffice to prove the well-founded belief of the
present spouse that the absent spouse is already dead, in Republic v. Nolasco,[29]the
Court warned against collusion between the parties when they find it impossible to
dissolve the marital bonds through existing legal means. It is also the maxim that
men readily believe what they wish to be true.
In this case, the respondent failed to present a witness other than Barangay Captain
Juan Magat. The respondent even failed to present Janeth Bautista or Nelson
Abaenza or any other person from whom he allegedly made inquiries about Lea to
corroborate his testimony. On the other hand, the respondent admitted that when he
returned to the house of his parents-in-law on February 14, 1995, his father-in-law
told him that Lea had just been there but that she left without notice.
The respondent declared that Lea left their abode on February 7, 1995 after he
chided her for coming home late and for being always out of their house, and told
her that it would be better for her to go home to her parents if she enjoyed the life
of a single person. Lea, thus, left their conjugal abode and never returned. Neither
did she communicate with the respondent after leaving the conjugal abode because
of her resentment to the chastisement she received from him barely a month after
their marriage. What is so worrisome is that, the respondent failed to make
inquiries from his parents-in-law regarding Leas whereabouts before filing his
petition in the RTC. It could have enhanced the credibility of the respondent had he
made inquiries from his parents-in-law about Leas whereabouts considering that
Leas father was the owner of Radio DYMS.

27

The respondent did report and seek the help of the local police authorities and the
NBI to locate Lea, but it was only an afterthought. He did so only after the OSG
filed its notice to dismiss his petition in the RTC.
In sum, the Court finds and so holds that the respondent failed to prove that
he had a well-founded belief, before he filed his petition in the RTC, that his
spouse Rosalia (Lea) Julaton was already dead.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
Decision of the Court of Appeals in CA-G.R. CV No. 73749
is REVERSED and SET ASIDE. Consequently, the Regional Trial Court of
Catbalogan, Samar, Branch 27, is ORDERED to DISMISS the respondents
petition.
SO ORDERED.
ROMEO J. CALLEJO, SR.
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice
Chairman

MA. ALICIA AUSTRIA-MARTINEZ DANTE O. TINGA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

28

ATTESTATION
I attest that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion of the Courts
Division.
REYNATO S. PUNO
Associate Justice
Chairman, Second Division
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairmans Attestation, it is hereby certified that the conclusions in the above
decision were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.
HILARIO G. DAVIDE, JR.
Chief Justice

SECOND DIVISION
[G.R. No. 116607. April 10, 1996]

EMILIO TUASON, petitioner, vs. COURT OF APPEALS and MARIA

VICTORIA L. TUASON, respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; RELIEF FROM JUDGMENT;
ALLOWED ONLY IN EXCEPTIONAL CASES WHERE THERE IS NO
OTHER AVAILABLE OR ADEQUATE REMEDY. - A petition for relief from
judgment is an equitable remedy; it is allowed only in exceptional cases
where there is no other available or adequate remedy. When a party has
another remedy available to him, which may be either a motion for new
29

trial or appeal from an adverse decision of the trial court, and he was not
prevented by fraud, accident, mistake or excusable negligence from filing
such motion or taking such appeal, he cannot avail himself of this
petition. Indeed, relief will not be granted to a party who seeks avoidance
from the effects of the judgment when the loss of the remedy at law was
due to his own negligence; otherwise the petition for relief can be used to
revive the right to appeal which have been lost thru inexcusable
negligence.
2. ID.; ID.; ID.; WHEN AVAILED MUST BE BASED ON THE GROUND OF
FRAUD, ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE AND
THAT IT IS SHOWN THAT PETITIONER HAS A GOOD, SUBSTANTIAL
AND MERITORIOUS DEFENSE OR CAUSE OF ACTION. - A petition for
relief from judgment is governed by Rule 38, Section 2 of the Revised
Rules of Court. A final and executory judgment or order of the Regional
Trial Court may be set aside on the ground of fraud, accident, mistake or
excusable negligence. In addition, the petitioner must assert facts showing
that he has a good, substantial and meritorious defense or cause of
action. If the petition is granted, the court shall proceed to hear and
determine the case as if a timely motion for new trial had been granted
therein.
3. ID.; ID.; ID.; NOTICES SENT TO COUNSEL OF RECORD, BINDING
UPON THE CLIENT. The failure of petitioners counsel to notify him on
time of the adverse judgment to enable him to appeal therefrom is
negligence which is not excusable. Notice sent to counsel of record is
binding upon the client and the neglect or failure of counsel to inform him
of an adverse judgment resulting in the loss of this right to appeal is not a
ground for setting aside a judgment valid and regular on its face.
4. ID.; ID.; ID.; COUNSEL REQUIRED TO INFORM THE TRIAL COURT
THE REASON FOR HIS CLIENTS NON-APPEARANCE AT THE
SCHEDULED HEARINGS. -Similarly inexcusable was the failure of his
former counsel to inform the trial court of petitioners confinement and
medical treatment as the reason for his non-appearance at the scheduled
hearings. Petitioner has not given any reason why his former counsel,
intentionally or unintentionally, did not inform the court of this fact. This led
the trial court to order the case deemed submitted for decision on the
basis of the evidence presented by the private respondent alone. To
30

compound the negligence of petitioners counsel, the order of the trial court
was never assailed via a motion for reconsideration.
5. ID.; EVIDENCE; CREDIBILITY OF WITNESSES; FACTUAL FINDINGS
OF THE TRIAL COURT UPHELD ABSENT PROOF THAT THE
WITNESSES TESTIMONIES ARE CLEARLY AND MANIFESTLY
ERRONEOUS. - Suffice it to state that the finding of the trial court as to
the existence or non-existence of petitioners psychological incapacity at
the time of the marriage is final and binding on us. Petitioner has not
sufficiently shown that the trial courts factual findings and evaluation of the
testimonies of private respondents witnesses vis-a-vis petitioners
defenses are clearly and manifestly erroneous.
6. CONSTITUTIONAL LAW; BILL OF RIGHTS; PROCEDURAL DUE
PROCESS; NOT VIOLATED IF PETITIONER WAS GIVEN
OPPORTUNITY TO BE HEARD. - Petitioner cannot now claim that he
was deprived of due process. He may have lost his right to present
evidence but he was not denied his day in court. As the records show,
petitioner, through counsel, actively participated in the proceedings
below. He filed his answer to the petition, cross-examined private
respondents witnesses and even submitted his opposition to private
respondents motion for dissolution of the conjugal partnership of gains.
7. CIVIL LAW; FAMILY CODE; ANNULMENT, DECLARATION OF NULLITY
AND LEGAL SEPARATION; PROSECUTING ATTORNEY OR FISCAL
MAY BE ORDERED BY THE COURT TO INTERVENE ON BEHALF OF
THE STATE TO PREVENT COLLUSION BETWEEN THE PARTIES. - A
grant of annulment of marriage or legal separation by default is fraught
with the danger of collusion. Hence, in all cases for annulment, declaration
of nullity of marriage and legal separation, the prosecuting attorney or
fiscal is ordered to appear on behalf of the state for the purpose of
preventing any collusion between the parties and to take care that their
evidence is not fabricated or suppressed. If the defendant spouse fails to
answer the complaint, the court cannot declare him or her in default but
instead, should order the prosecuting attorney to determine if collusion
exists between the parties. The prosecuting attorney or fiscal may oppose
the application for legal separation or annulment through the presentation
of his own evidence, if in his opinion, the proof adduced is dubious and
fabricated.
31

8. ID.; ID.; ID.; NON-INTERFERENCE OF A PROSECUTING ATTORNEY IS

NOT FATAL TO THE VALIDITY OF THE PROCEEDINGS IN THE TRIAL
COURT IF PETITIONER VEHEMENTLY OPPOSED THE ANNULMENT
OF THEIR MARRIAGE IN THE SAID COURT. - The role of the
prosecuting attorney or fiscal in annulment of marriage and legal
separation proceedings is to determine whether collusion exists between
the parties and to take care that the evidence is not suppressed or
fabricated.Petitioners vehement opposition to the annulment proceedings
negates the conclusion that collusion existed between the parties. There is
no allegation by the petitioner that evidence was suppressed or fabricated
by any of the parties. Under these circumstances, we are convinced that
the non-intervention of a prosecuting attorney to assure lack of collusion
between the contending parties is not fatal to the validity of the
proceedings in the trial court.
APPEARANCES OF COUNSEL
Seguion Reyna, Montecillo & Ongsiako for petitioner.
Salonga, Hernandez & Allado for private respondent.

DECISION
PUNO, J.:

This petition for review on certiorari seeks to annul and set aside the
decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No.
37925 denying petitioners appeal from an order of the Regional Trial Court,
Branch 149, Makati in Civil Case No. 3769.
This case arose from the following facts:
In 1989, private respondent Maria Victoria Lopez Tuason filed with the
Regional Trial Court, Branch 149, Makati a petition for annulment or
declaration of nullity of her marriage to petitioner Emilio R. Tuason. In her
complaint, private respondent alleged that she and petitioner were married on
June 3, 1972 and from this union, begot two children; that at the time of the
marriage, petitioner was already psychologically incapacitated to comply with
his essential marital obligations which became manifest afterward and
resulted in violent fights between husband and wife; that in one of their fights,
32

petitioner inflicted physical injuries on private respondent which impelled her

to file a criminal case for physical injuries against him; that petitioner used
prohibited drugs, was apprehended by the authorities and sentenced to a oneyear suspended penalty and has not been rehabilitated; that petitioner was a
womanizer, and in 1984, he left the conjugal home and cohabited with three
women in succession, one of whom he presented to the public as his wife;
that after he left the conjugal dwelling, petitioner gave minimal support to the
family and even refused to pay for the tuition fees of their children compelling
private respondent to accept donations and dole-outs from her family and
friends; that petitioner likewise became a spendthrift and abused his
administration of the conjugal partnership by alienating some of their assets
and incurring large obligations with banks, credit card companies and other
financial institutions, without private respondents consent; that attempts at
reconciliation were made but they all failed because of petitioners refusal to
reform. In addition to her prayer for annulment of marriage, private respondent
prayed for powers of administration to save the conjugal properties from
further dissipation.
[1]

Petitioner answered denying the imputations against him. As affirmative

defense, he claimed that he and private respondent were a normal married
couple during the first ten years of their marriage and actually begot two
children during this period; that it was only in 1982 that they began to have
serious personal differences when his wife did not accord the respect and
dignity due him as a husband but treated him like a persona non grata; that
due to the extreme animosities between them, he temporarily left the conjugal
home for a cooling-off period in 1984; that it is private respondent who had
been taking prohibited drugs and had a serious affair with another man; that
petitioners work as owner and operator of a radio and television station
exposed him to malicious gossip linking him to various women in media and
the entertainment world; and that since 1984, he experienced financial
reverses in his business and was compelled, with the knowledge of his wife,
to dispose of some of the conjugal shares in exclusive golf and country
clubs. Petitioner petitioned the court to allow him to return to the conjugal
home and continue his administration of the conjugal partnership.
After the issues were joined, trial commenced on March 30, 1990. Private
respondent presented four witnesses, namely, herself; Dr. Samuel Wiley, a
Canon Law expert and marriage counselor of both private respondent and
petitioner; Ms. Adelita Prieto, a close friend of the spouses, and Any. Jose F.
33

Racela IV, private respondents counsel. Private respondent likewise submitted

documentary evidence consisting of newspaper articles of her husbands
relationship with other women, his apprehension by the authorities for illegal
possession of drugs; and copies of a prior church annulment decree. The
parties marriage was clerically annulled by the Tribunal Metropolitanum
Matrimoniale which was affirmed by the National Appellate Matrimonial
Tribunal in 1986.
[2]

[3]

During presentation of private respondents evidence, petitioner, on April

18, 1990, filed his Opposition to private respondents petition for appointment
as administratrix of the conjugal partnership of gains.
After private respondent rested her case, the trial court scheduled the
reception of petitioners evidence on May 11, 1990.
On May 8, 1990, two days before the scheduled hearing, a counsel for
petitioner moved for a postponement on the ground that the principal counsel
was out of the country and due to return on the first week of June. The court
granted the motion and reset the hearing to June 8, 1990.
[4]

[5]

On June 8, 1990, petitioner failed to appear. On oral motion of private

respondent, the court declared petitioner to have waived his right to present
evidence and deemed the case submitted for decision on the basis of the
evidence presented.
On June 29, 1990, the trial court rendered judgment declaring the nullity of
private respondents marriage to petitioner and awarding custody of the
children to private respondent. The court ruled:
WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L.
Tuason and Emilio R. Tuason on June 3, 1972 is declared null and void oh initio on
the ground of psychological incapacity on the part of the defendant under Sec. 36 of
the Family Code. Let herein judgment of annulment be recorded in the registry of
Mandaluyong, Metro Manila where the marriage was contracted and in the registry of
Makati, Metro Manila where the marriage is annulled.
The custody of the two (2) legitimate children of the plaintiff and the
defendant is hereby awarded to the plaintiff.

34

The foregoing judgment is without prejudice to the application of the other

effects of annulment as provided for under Arts. 50 and 51 of the Family Code
of the Philippines.
[6]

Counsel for petitioner received a copy of this decision on August 24, 1990.
No appeal was taken from the decision.
On September 24, 1990, private respondent filed a Motion for Dissolution
of Conjugal Partnership of Gains and Adjudication to Plaintiff of the Conjugal
Properties. Petitioner opposed the motion on October 17, 1990
[7]

[8]

Also on the same day, October 17, 1990, petitioner, through new counsel,
filed with the trial court a petition for relief from judgment of the June 29, 1990
decision.
The trial court denied the petition on August 8, 1991.

[9]

Petitioner appealed before the Court of Appeals the order of the trial court
denying his petition for relief from judgment. On July 29, 1994, the Court of
Appeals dismissed the appeal and affirmed the order of the trial court.
[10]

Hence this petition.

The threshold issue is whether a petition for relief from judgment is
warranted under the circumstances of the case.
We rule in the negative.
A petition for relief from judgment is governed by Rule 38, Section 2 of the
Revised Rules of Court which provides:
Section 2. Petition to Court of First Instance for relief from judgment or other
proceedings thereof. - When a judgment or order is entered, or any other proceeding is
taken, against a party in a court of first instance through fraud, accident, mistake, or
excusable negligence, he may file a petition in such court and in the same cause
praying that the judgment, order or proceeding be set aside.
Under the rules, a final and executory judgment or order of the Regional
Trial Court may be set aside on the ground of fraud, accident, mistake or
excusable negligence. In addition, the petitioner must assert facts showing
35

that he has a good, substantial and meritorious defense or cause of action. If

the petition is granted, the court shall proceed to hear and determine the case
as if a timely motion for new trial had been granted therein.
[11]

[12]

In the case at bar, the decision annulling petitioners marriage to private

respondent had already become final and executory when petitioner failed to
appeal during the reglementary period. Petitioner however claims that the
decision of the trial court was null and void for violation of his right to due
process. He contends he was denied due process when, after failing to
appear on two scheduled hearings, the trial court deemed him to have waived
his right to present evidence and rendered judgment on the basis of the
evidence for private respondent. Petitioner justifies his absence at the
hearings on the ground that he was then confined for medical and/or
rehabilitation reasons. In his affidavit of merit before the trial court, he
attached a certification by Lt. Col. Plaridel F. Vidal, Director of the Narcotics
Command, Drug Rehabilitation Center which states that on March 27, 1990
petitioner was admitted for treatment of drug dependency at the Drug
Rehabilitation Center at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of
the Philippine Constabulary-Integrated National Police. The records,
however, show that the former counsel of petitioner did not inform the trial
court of this confinement. And when the court rendered its decision, the same
counsel was out of the country for which reason the decision became final and
executory as no appeal was taken therefrom.
[13]

[14]

[15]

The failure of petitioners counsel to notify him on time of the adverse

judgment to enable him to appeal therefrom is negligence which is not
excusable. Notice sent to counsel of record is binding upon the client and the
neglect or failure of counsel to inform him of an adverse judgment resulting in
the loss of his right to appeal is not a ground for setting aside a judgment valid
and regular on its face.
[16]

Similarly inexcusable was the failure of his former counsel to inform the
trial court of petitioners confinement and medical treatment as the reason for
his non-appearance at the scheduled hearings. Petitioner has not given any
reason why his former counsel, intentionally or unintentionally, did not inform
the court of this fact. This led the trial court to order the case deemed
submitted for decision on the basis of the evidence presented by the private
respondent alone. To compound the negligence of petitioners counsel, the
order of the trial court was never assailed via a motion for reconsideration.
36

Clearly, petitioner cannot now claim that he was deprived of due

process. He may have lost his right to present evidence but he was not denied
his day in court. As the records show, petitioner, through counsel, actively
participated in the proceedings below. He filed his answer to the petition,
cross-examined private respondents witnesses and even submitted his
opposition to private respondents motion for dissolution of the conjugal
partnership of gains.
[17]

A petition for relief from judgment is an equitable remedy; it is allowed only

in exceptional cases where there is no other available or adequate remedy.
When a party has another remedy available to him, which may be either a
motion for new trial or appeal from an adverse decision of the trial court, and
he was not prevented by fraud, accident, mistake or excusable negligence
from filing such motion or taking such appeal, he cannot avail himself of this
petition. Indeed, relief will not be granted to a party who seeks avoidance
from the effects of the judgment when the loss of the remedy at law was due
to his own negligence; otherwise the petition for relief can be used to revive
the right to appeal which had been lost thru inexcusable negligence.
[18]

[19]

Petitioner also insists that he has a valid and meritorious defense. He cites
the Family Code which provides that in actions for annulment of marriage or
legal separation, the prosecuting officer should intervene for the state
because the law looks with disfavor upon the haphazard declaration of
annulment of marriages by default. He contends that when he failed to appear
at the scheduled hearings, the trial court should have ordered the prosecuting
officer to intervene for the state and inquire as to the reason for his nonappearance.
[20]

Articles 48 and 60 of the Family Code read as follows:

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the
Court shall order the prosecution 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.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment.
xxxxxxxxx
37

Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.
In any case, the Court shall order the prosecuting attorney or fiscal
assigned to it to take steps to prevent collusion between the parties and to
take care that the evidence is not fabricated or suppressed.
[21]

A grant of annulment of marriage or legal separation by default is fraught

with the danger of collusion. Hence, in all cases for annulment, declaration of
nullity of marriage and legal separation, the prosecuting attorney or fiscal is
ordered to appear on behalf of the state for the purpose of preventing any
collusion between the parties and to take care that their evidence is not
fabricated or suppressed. If the defendant spouse fails to answer the
complaint, the court cannot declare him or her in default but instead, should
order the prosecuting attorney to determine if collusion exists between the
parties. The prosecuting attorney or fiscal may oppose the application for
legal separation or annulment through the presentation of his own evidence, if
in his opinion, the proof adduced is dubious and fabricated. Our Constitution
is committed to the policy of strengthening the family as a basic social
institution. Our family law is based on the policy that marriage is not a mere
contract, but a social institution in which the state is vitally interested. The
state can find no stronger anchor than on good, solid and happy families. The
break up of families weakens our social and moral fabric and, hence, their
preservation is not the concern alone of the family members.
[22]

[23]

[24]

[25]

The facts in the case at bar do not call for the strict application of Articles
48 and 60 of the Family Code. For one, petitioner was not declared in default
by the trial court for failure to answer. Petitioner filed his answer to the
complaint and contested the cause of action alleged by private
respondent. He actively participated in the proceedings below by filing several
pleadings and cross-examining the witnesses of private respondent. It is
crystal clear that every stage of the litigation was characterized by a no-holds
barred contest and not by collusion.
The role of the prosecuting attorney or fiscal in annulment of marriage and
legal separation proceedings is to determine whether collusion exists between
the parties and to take care that the evidence is not suppressed or
fabricated. Petitioners vehement opposition to the annulment proceedings
negates the conclusion that collusion existed between the parties. There is no
38

allegation by the petitioner that evidence was suppressed or fabricated by any

of the parties. Under these circumstances, we are convinced that the nonintervention of a prosecuting attorney to assure lack of collusion between the
contending parties is not fatal to the validity of the proceedings in the trial
court.
Petitioner also refutes the testimonies of private respondents witnesses,
particularly Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and
hearsay. Petitioner alleges that if he were able to present his evidence, he
could have testified that he was not psychologically incapacitated at the time
of the marriage as indicated by the fact that during their first ten years, he and
private respondent lived together with their children as one normal and happy
family, that he continued supporting his family even after he left the conjugal
dwelling and that his work as owner and operator of a radio and television
corporation places him in the public eye and makes him a good subject for
malicious gossip linking him with various women. These facts, according to
petitioner, should disprove the ground for annulment of his marriage to
petitioner.
Suffice it to state that the finding of the trial court as to the existence or
non-existence of petitioners psychological incapacity at the time of the
marriage is final and binding on us. Petitioner has not sufficiently shown that
the trial courts factual findings and evaluation of the testimonies of private
respondents witnesses vis-a-vis petitioners defenses are clearly and
manifestly erroneous.
[26]

[27]

IN VIEW WHEREOF, the petition is denied and the decision dated July 29,
1994 of the Court of Appeals in CA-G.R. CV No. 37925 is affirmed.

FIRST DIVISION
[G.R. No. 139789. May 12, 2000]
ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA
K. ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm
[G.R. No. 139808. May 12, 2000]
39

POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA

ILUSORIO, petitioners, vs. COURT OF APPEALS and ERLINDA K.
ILUSORIO,respondents.
DECISION
PARDO, J.:
May a wife secure a writ of habeas corpus to compel her husband to live with
her in conjugal bliss? The answer is no. Marital rights including coverture and
living in conjugal dwelling may not be enforced by the extra-ordinary writ
of habeas corpus.
A writ of habeas corpus extends to all cases of illegal confinement or
detention, or by which the rightful custody of a person is withheld from the
one entitled thereto. Slx
[1]

[2]

"Habeas corpus is a writ directed to the person detaining another,

commanding him to produce the body of the prisoner at a designated time and
place, with the day and cause of his capture and detention, to do, submit to,
and receive whatsoever the court or judge awarding the writ shall consider in
that behalf."
[3]

It is a high prerogative, common-law writ, of ancient origin, the great object of

which is the liberation of those who may be imprisoned without sufficient
cause. It is issued when one is deprived of liberty or is wrongfully prevented
from exercising legal custody over another person.
[4]

[5]

The petition of Erlinda K. Ilusorio is to reverse the decision of the Court of

Appeals and its resolution dismissing the application for habeas corpus to
have the custody of her husband, lawyer Potenciano Ilusorio and enforce
consortium as the wife.
[6]

[7]

[8]

On the other hand, the petition of Potenciano Ilusorio is to annul that portion
of the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation
rights to her husband and to enjoin Erlinda and the Court of Appeals from
enforcing the visitation rights.
[9]

The undisputed facts are as follows: Scslx

40

Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.

Potenciano Ilusorio is about 86 years of age possessed of extensive property
valued at millions of pesos. For many years, lawyer Potenciano Ilusorio was
Chairman of the Board and President of Baguio Country Club.
On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted
matrimony and lived together for a period of thirty (30) years. In 1972, they
separated from bed and board for undisclosed reasons. Potenciano lived at
Urdaneta Condominium, Ayala Ave., Makati City when he was in Manila and
at Ilusorio Penthouse, Baguio Country Club when he was in Baguio City. On
the other hand, Erlinda lived in Antipolo City.
Out of their marriage, the spouses had six (6) children, namely: Ramon
Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia
(age 49); Marietta (age 48); and Shereen (age 39).
On December 30, 1997, upon Potencianos arrival from the United States, he
stayed with Erlinda for about five (5) months in Antipolo City. The children,
Sylvia and Erlinda (Lin), alleged that during this time, their mother gave
Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an
antidepressant drug prescribed by his doctor in New York, U.S.A. As a
consequence, Potencianos health deteriorated.
On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City
a petition for guardianship over the person and property of Potenciano
Ilusorio due to the latters advanced age, frail health, poor eyesight and
impaired judgment.
[10]

On May 31, 1998, after attending a corporate meeting in Baguio City,

Potenciano Ilusorio did not return to Antipolo City and instead lived at
Cleveland Condominium, Makati. Slxsc
On March 11, 1999, Erlinda filed with the Court of Appeals a petition
for habeas corpus to have the custody of lawyer Potenciano Ilusorio. She
alleged that respondents refused petitioners demands to see and visit her
husband and prohibited Potenciano from returning to Antipolo City.
[11]

After due hearing, on April 5, 1999, the Court of Appeals rendered decision
the dispositive portion of which reads:
41

"WHEREFORE, in the light of the foregoing disquisitions,

judgment is hereby rendered:
"(1) Ordering, for humanitarian consideration and upon petitioners
manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia
Ilusorio-Yap, the administrator of Cleveland Condominium or
anywhere in its place, his guards and Potenciano Ilusorios staff
especially Ms. Aurora Montemayor to allow visitation rights to
Potenciano Ilusorios wife, Erlinda Ilusorio and all her children,
notwithstanding any list limiting visitors thereof, under penalty of
contempt in case of violation of refusal thereof; xxx
"(2) ORDERING that the writ of habeas corpus previously issued
be recalled and the herein petition for habeas corpus be DENIED
DUE COURSE, as it is hereby DISMISSED for lack of unlawful
restraint or detention of the subject of the petition.
"SO ORDERED."

[12]

Hence, the two petitions, which were consolidated and are herein jointly
decided.
As heretofore stated, a writ of habeas corpus extends to all cases of illegal
confinement or detention, or by which the rightful custody of a person is
withheld from the one entitled thereto. It is available where a person continues
to be unlawfully denied of one or more of his constitutional freedoms, where
there is denial of due process, where the restraints are not merely involuntary
but are unnecessary, and where a deprivation of freedom originally valid has
later become arbitrary. It is devised as a speedy and effectual remedy to
relieve persons from unlawful restraint, as the best and only sufficient defense
of personal freedom. Jksm
[13]

[14]

[15]

The essential object and purpose of the writ of habeas corpus is to inquire into
all manner of involuntary restraint, and to relieve a person therefrom if such
restraint is illegal.
[16]

To justify the grant of the petition, the restraint of liberty must be an illegal and
involuntary deprivation of freedom of action. The illegal restraint of liberty
must be actual and effective, not merely nominal or moral.
[17]

[18]

42

The evidence shows that there was no actual and effective detention or
deprivation of lawyer Potenciano Ilusorios liberty that would justify the
issuance of the writ. The fact that lawyer Potenciano Ilusorio is about 86 years
of age, or under medication does not necessarily render him mentally
incapacitated. Soundness of mind does not hinge on age or medical condition
but on the capacity of the individual to discern his actions.
After due hearing, the Court of Appeals concluded that there was no unlawful
restraint on his liberty.
The Court of Appeals also observed that lawyer Potenciano Ilusorio did not
request the administrator of the Cleveland Condominium not to allow his wife
and other children from seeing or visiting him. He made it clear that he did not
object to seeing them.
As to lawyer Potenciano Ilusorios mental state, the Court of Appeals observed
that he was of sound and alert mind, having answered all the relevant
questions to the satisfaction of the court.
Being of sound mind, he is thus possessed with the capacity to make choices.
In this case, the crucial choices revolve on his residence and the people he
opts to see or live with. The choices he made may not appeal to some of his
family members but these are choices which exclusively belong to
Potenciano. He made it clear before the Court of Appeals that he was not
prevented from leaving his house or seeing people. With that declaration, and
absent any true restraint on his liberty, we have no reason to reverse the
findings of the Court of Appeals.
With his full mental capacity coupled with the right of choice, Potenciano
Ilusorio may not be the subject of visitation rights against his free choice.
Otherwise, we will deprive him of his right to privacy. Needless to say, this will
run against his fundamental constitutional right. Es m
The Court of Appeals exceeded its authority when it awarded visitation rights
in a petition for habeas corpus where Erlinda never even prayed for such
right. The ruling is not consistent with the finding of subjects sanity.

43

When the court ordered the grant of visitation rights, it also emphasized that
the same shall be enforced under penalty of contempt in case of violation or
refusal to comply. Such assertion of raw, naked power is unnecessary.
The Court of Appeals missed the fact that the case did not involve the right of
a parent to visit a minor child but the right of a wife to visit a husband. In case
the husband refuses to see his wife for private reasons, he is at liberty to do
so without threat of any penalty attached to the exercise of his right.
No court is empowered as a judicial authority to compel a husband to live with
his wife. Coverture cannot be enforced by compulsion of a writ of habeas
corpus carried out by sheriffs or by any other mesne process. That is a matter
beyond judicial authority and is best left to the man and womans free choice.
WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for
lack of merit. No costs.
In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision
of the Court of Appeals insofar as it gives visitation rights to respondent
Erlinda K. Ilusorio. No costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago,
JJ., concur. 5/31/00 10:

FIRST DIVISION
44

[G.R. No. 146504. April 9, 2002]

HONORIO
L.
CARLOS, petitioner,
ABELARDO, respondent.

vs. MANUEL

T.

DECISION
KAPUNAN, J.:
Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court is the
decision of the Court of Appeals dated November 10, 2000 in CA-G.R. CV No. 54464 which
reversed and set aside the decision of the Regional Trial Court of Valenzuela, Branch 172, and
dismissed for insufficiency of evidence the complaint for a sum of money and damages filed by
herein petitioner Honorio Carlos against respondent Manuel Abelardo, his son-in-law, and the
latters wife, Maria Theresa Carlos-Abelardo.
Petitioner averred in his complaint filed on October 13, 1994 that in October 1989,
respondent and his wife Maria Theresa Carlos-Abelardo approached him and requested him to
advance the amount of US$25,000.00 for the purchase of a house and lot located at #19952
Chestnut Street, Executive Heights Village, Paranaque, Metro Manila. To enable and assist the
spouses conduct their married life independently and on their own, petitioner, in October 31,
1989, issued a check in the name of a certain Pura Vallejo, seller of the property, who
acknowledged receipt thereof.[1]
When petitioner inquired from the spouses in July 1991 as to the status of the amount he
loaned to them, the latter acknowledged their obligation but pleaded that they were not yet in a
position to make a definite settlement of the same.[2] Thereafter, respondent expressed violent
resistance to petitioners inquiries on the amount to the extent of making various death threats
against petitioner.[3]
On August 24, 1994, petitioner made a formal demand for the payment of the amount of
US$25,000.00 but the spouses failed to comply with their obligation. [4] Thus, on October 13,
1994, petitioner filed a complaint for collection of a sum of money and damages against
respondent and his wife before the Regional Trial Court of Valenzuela, Branch 172, docketed as
Civil Case No. 4490-V-94. In the complaint, petitioner asked for the payment of the
US$25,000.00 or P625,000.00, its equivalent in Philippine currency plus legal interest from date
of extra-judicial demand.[5]Petitioner likewise claimed moral and exemplary damages, attorneys
fees and costs of suit from respondent.[6]
As they were separated in fact for more than a year prior to the filing of the complaint,
respondent and his wife filed separate answers. Maria Theresa Carlos-Abelardo admitted
securing a loan together with her husband, from petitioner.[7] She claimed, however, that said loan

45

was payable on a staggered basis so she was surprised when petitioner demanded immediate
payment of the full amount.[8]
In his separate Answer, respondent admitted receiving the amount of US$25,000.00 but
claimed that:
xxx
a. Defendant (respondent) xxx revived that otherwise dormant construction firm H.L. CARLOS
CONSTRUCTION of herein plaintiff which suffered tremendous setback after the
assassination of Senator Benigno Aquino;
b. Working day and night and almost beyond human endurance, defendant devoted all his
efforts and skill, used all his business and personal connection to be able to revive the
construction business of plaintiff;
c. Little-by-little, starting with small construction business, defendant was able to obtain various
construction jobs using the name H.L. CARLOS CONSTRUCTION and the income derived
therefrom were deposited in the name of such firm of plaintiff,
d. Defendant xxx was made to believe that the earnings derived from such construction will be
for him and his family since he was the one working to secure the contract and its
completion, he was allowed to use the facilities of the plaintiff;
e. The plaintiff seeing the progress brought about by defendant xxx to his company proposed a
profit sharing scheme to the effect that all projects amounting to more than P10 million shall
be for the account of plaintiff; lower amount shall be for defendants account but still using
H.L. CARLOS CONSTRUCTION.
f. But, to clear account on previous construction contracts that brought income to H.L.CARLOS
CONSTRUCTION, out of which defendant derived his income, plaintiff gave the amount of
US$25,000.00 to defendant to square off account and to start the arrangement in paragraph
(e) supra;
g. That, the said US$25,000.00 was never intended as loan of defendant. It was his share of
income on contracts obtained by defendant;

xxx [9]
Respondent denied having made death threats to petitioner and by way of compulsory
counterclaim, he asked for moral damages from petitioner for causing the alienation of his wifes
love and affection, attorneys fees and costs of suit. [10]
On June 26, 1996, the Regional Trial Court rendered a decision in favor of petitioner, the
dispositive portion of which reads:
46

WHEREFORE, judgment is hereby rendered as follows:

1. Ordering the defendants to pay plaintiff the amount of US$25,000.00 or its equivalent in
Philippine Currency at the time of its payment, plus legal interest thereon from August 24,
1994 until fully paid;
2. Ordering the defendant Manuel T.Abelardo to pay the plaintiff the amount of P500,000.00
representing moral damages and the further amount of P50,000.00 as exemplary damages;
and
3. Ordering the defendants to pay the plaintiff the amount of P100,000.00 as attorneys fees, plus
the costs of suit.

SO ORDERED. [11]
Respondent appealed the decision of the trial court to the Court of Appeals. On November
10, 2000, the Court of Appeals reversed and set aside the trial courts decision and dismissed the
complaint for insufficiency of evidence to show that the subject amount was indeed loaned by
petitioner to respondent and his wife. The Court of Appeals found that the amount of
US$25,000.00 was respondents share in the profits of H.L. Carlos Construction. The dispositive
portion of the Court of Appeals decision states:

WHEREFORE, premises considered, the Decision of the Regional Trial Court of

Valenzuela, Branch 172 in Civil Case No. 4490-V-94 is hereby REVERSED and SET
ASIDE and a new one entered DISMISSING the Complaint for insufficiency of
evidence.
The claim for damages by defendant-appellant is likewise DISMISSED, also for
insufficiency of evidence, because of his failure to present substantial evidence to
prove that plaintiff-appellee caused the defendant-spouses separation.
Costs against the plaintiff-appellee.
SO ORDERED. [12]
A motion for reconsideration of the above decision having been denied on, petitioner
brought this appeal assigning the following errors:

THE COURT OF APPEALS ERRED IN FINDING INSUFFICIENT

EVIDENCE TO PROVE THAT THE AMOUNT OF US$25,000.00 WAS A
LOAN OBTAINED BY PRIVATE RESPONDENT AND HIS WIFE FROM
PETITIONER.
47

THE COURT OF APPEALS ERRED IN HOLDING THAT THE

US$25,000.00 WAS GIVEN AS PRIVATE RESPONDENTS SHARE IN
THE PROFITS OF H.L. CARLOS CONSTRUCTION, INC. AND THAT
THE FILING OF THE COMPLAINT IS A HOAX.
THE COURT OF APPEALS ERRED IN NULLIFYING THE AWARD OF
DAMAGES FOR LACK OF PROOF THEREOF.
We find merit in the petition.
As gleaned from the records, the following facts are undisputed: (1) there was a check in the
amount of US$25,000.00 issued by petitioner; (2) this amount was received by respondent and
his wife and given to a certain Pura Vallejo for the full payment of a house and lot located at
#19952 Chestnut Street, Executive Heights Village, Paranaque, Metro Manila; (3) this house and
lot became the conjugal dwelling of respondent and his wife; and (4) respondents wife executed
an instrument acknowledging the loan but which respondent did not sign.
To prove his claim that the amount was in the nature of a loan or an advance he extended to
respondent and his wife, petitioner presented Bankers Trust Check No. 337 in the amount of
US$25,000.00 he issued on October 31, 1989 to Pura Vallejo. [13] He also introduced in evidence
an instrument executed by respondents wife on July 31, 1991 acknowledging her and her
husbands accountability to petitioner for the said amount which was advanced in payment of a
house and lot located at #19952 Chestnut Street, Executive Heights Subdivision, Paranaque. [14] A
formal demand letter by counsel for petitioner dated August 24, 1994 sent to and received by
respondent was also on record. [15]
All these pieces of evidence, taken together with respondents admission that he and his wife
received the subject amount and used the same to purchase their house and lot, sufficiently prove
by a preponderance of evidence petitioners claim that the amount of US$25,000.00 was really in
the nature of a loan.
Respondent tried to rebut petitioners evidence by claiming that the US$25,000.00 was not a
loan but his share in the profits of H.L. Carlos Construction. He alleged that he received money
from petitioner amounting to almost P3 million as his share in the profits of the corporation. To
prove this, he presented ten (10) Bank of the Philippine Islands (BPI) checks allegedly given to
him by petitioner.[16] He argued that if indeed, he and his wife were indebted to petitioner, the
latter could have easily deducted the amount of the said loan from his share of the profits.
Respondent fails to convince this Court.
All the checks presented by respondent, which he claims to be his share in the profits of
petitioners company, were all in the account of H.L. Carlos Construction.[17] On the other hand,
the Bankers Trust Check in the amount of US$25,000.00 was drawn from the personal account
48

of petitioner.[18] Assuming to be true that the checks presented by respondent were his profits from
the corporation, then all the more does this prove that the amount of US$25,000.00 was not part
of such profits because it was issued by petitioner from his own account. Indeed, if such amount
was respondents share of the profits, then the same should have been issued under the account of
H.L. Carlos Construction.
Moreover, respondent failed to substantiate his claim that he is entitled to the profits and
income of the corporation. There was no showing that respondent was a stockholder of H.L.
Carlos Construction. His name does not appear in the Articles of Incorporation as well as the
Organizational Profile of said company either as stockholder or officer.[19] Not being a
stockholder, he cannot be entitled to the profits or income of said corporation. Neither did
respondent prove that he was an employee or an agent so as to be entitled to salaries or
commissions from the corporation.
We quote with favor the disquisition of the trial court on this point:

Early in time, it must be noted that payment of personal debts contracted by the
husband or the wife before or during the marriage shall not be charged to the conjugal
partnership except insofar as they redounded to the benefit of the family. The
defendants never denied that the check of US$25,000.00 was used to purchase the
subject house and lot. They do not deny that the same served as their conjugal home,
thus benefiting the family. On the same principle, acknowledgment of the loan made
by the defendant-wife binds the conjugal partnership since its proceeds redounded to
the benefit of the family. Hence, defendant-husband and defendant-wife are jointly
and severally liable in the payment of the loan.
Defendant-husband cannot allege as a defense that the amount of US $25,000.00 was
received as his share in the income or profits of the corporation and not as a loan.
Firstly, defendant-husband does not appear to be a stockholder nor an employee nor
an agent of the corporation, H. L. Carlos Construction, Inc. Since he is not a
stockholder, he has no right to participate in the income or profits thereof. In the same
manner that as he is not an employee nor an agent of H. L. Carlos Construction, Inc.,
he has no right to receive any salary or commission therefrom. Secondly, the amount
advanced for the purchase of the house and lot came from the personal account of the
plaintiff. If, indeed, it was to be construed as defendant-husbands share in the profits
of the corporation, the checks should come from the corporations account and not
from the plaintiffs personal account, considering that the corporation has a personality
separate and distinct from that of its stockholders and officers.
Even granting that the checks amount to US $3,000.000.00 given by the plaintiff to
the defendant-spouses was their share in the profits of the corporation, still there is no
49

sufficient evidence to establish that the US $25,000.00 is to be treated similarly.

Defendant-husband in invoking the defense of compensation argued that if indeed
they were indebted to the plaintiff, the latter could have applied their share in the
proceeds or income of the corporation to the concurrent amount of the alleged loan,
instead of giving the amount of P3,000,000.00 to them. This argument is untenable.
Article 1278 of the Civil Code provides that compensation shall take place when two
persons, in their own right, are debtors and creditors of each other. As its indicates,
compensation is a sort of balancing between two obligations. In the instant case, the
plaintiff and the defendant-husband are not debtors and creditors of each other. Even
granting that the defendant-husbands claim to the profits of the corporation is
justified, still compensation cannot extinguish his loan obligation to the plaintiff
because under such assumption, the defendant is dealing with the corporation and not
with the plaintiff in his personal capacity. Hence, compensation cannot take place.
The Court of Appeals, thus, erred in finding that respondents liability was not proved by
preponderance of evidence. On the contrary, the evidence adduced by petitioner sufficiently
established his claim that the US$25,000.00 he advanced to respondent and his wife was a loan.
The loan is the liability of the conjugal partnership pursuant to Article 121 of the Family
Code:

Article 121. The conjugal partnership shall be liable for:

xxx
(2) All debts and obligations contracted during the marriage by the designated
administrator-spouse for the benefit of the conjugal partnership of gains, or by both
spouses or by one of them with the consent of the other;
(3) Debts and obligations contracted by either spouse without the consent of the other
to the extent that the family may have been benefited;
If the conjugal partnership is insufficient to cover the foregoing liabilities, the spouses
shall be solidarily liable for the unpaid balance with their separate properties.
xxx
While respondent did not and refused to sign the acknowledgment executed and signed by
his wife, undoubtedly, the loan redounded to the benefit of the family because it was used to
purchase the house and lot which became the conjugal home of respondent and his family.

50

Hence, notwithstanding the alleged lack of consent of respondent, under Art. 21 of the Family
Code, he shall be solidarily liable for such loan together with his wife.
We also find sufficient basis for the award of damages to petitioner, contrary to the findings
of the Court of Appeals that petitioner is not entitled thereto.
Petitioners allegations of verbal and written threats directed against him by respondent is
duly supported by evidence on record. He presented two witnesses, Irineo Pajarin and Randy
Rosal, who testified on separate incidents where threats were made by respondent against
petitioner.
Randy Rosal, driver of petitioner, declared that around three o clock in the afternoon of
September 15, 1991, he was sent by respondents wife on an errand to deliver the
acknowledgment letter to respondent for him to sign. Respondent did not sign the
acknowledgment and instead, wrote a letter addressed to petitioner threatening him. He narrated
what took place thereafter:
xxx

Q When you were requested by Ma. Theresa C. Abelardo to bring a letter to

herein defendant Manuel Abelardo for him to sign the same, do you
know whether that letter was actually signed by Manuel Abelardo?
A No, sir.
xxx

Q And what happened when Manuel Abelardo refused to sign that letter
coming from the other defendant?
A He made me wait and he prepared a letter to Mr. Honorio Carlos, sir.
xxx

Q Where were you at the time when this defendant Manuel Abelardo prepared
this letter?
A In his house, sir.
Q And where did he actually prepare that letter?
A At the dining table, sir.
51

Q How far were you from Manuel Abelardo from the dining table at the time
when he was preparing a letter.
A Around 1 meter, sir.
Q And do you know where in, what particular paper did Mr. Abelardo prepare
or write this letter?
A He wrote it in a Manila envelope, sir.
xxx

Q What happened after Manuel Abelardo prepared this letter in a Manila

envelope?
A He got a small envelope and placed there the name of Mr. Carlos as the
addressee, sir.
xxx

Q After preparing this letter on a Manila envelope and then getting another
envelope and writing on it the address of herein plaintiff, what did the
defendant Manuel Abelardo do, if any?
A He instructed me to mail the letter which he prepared, sir.
xxx

Q And did you actually accede to the request of herein defendant Manuel
Abelardo for you to mail that letter to Engr. Carlos?
A I got the envelope but I did not mail it, sir.
xxx

Q May we know from you the reason why you did not mail said letter?
A Because Engr. Carlos might become frightened, sir.
Q What did you do with that letter, although you did not mail it?
A I kept it, sir.
52

xxx

Q And what did you do next after keeping the letter for several days?
A I gave the letter personally to Engr. Carlos, sir.
Q What prompted you to give that letter to Engr. Carlos instead of mailing it?
A So that Engr. Carlos can prepare, sir.
xxx [20]
This incident was duly entered and recorded in the Police Blotter on October 7, 1991 by a
certain Sgt. Casile of the Valenzuela Police Station. [21] A photocopy of this written threat was
also attached to the Police Report and presented in evidence. [22]
Another witness, Irineo Pajarin, recounted an incident which occurred in the afternoon of
May 25, 1994, to wit:
xxx

Q Now Mr. Witness, on May 25, 1994 at around 2:30 in the afternoon do you
recall where you were on that particular date and time?
A I was at B.F. Homes, Paranaque, sir.
Q What were you doing at that time?
A I was waiting for Sargie Cornista, sir.
xxx

Q Will you please narrate to this Honorable Court that unusual incident?
A Manuel Abelardo passed by and when he saw me he called me. I
approached him while he was then on board his car and asked me who
was my companion, sir.
Q And what was your answer to him?
A I told him it was Sargie, sir.

53

Q And what was his reply if any?

A He again asked me if I have in my company one of his children, sir.
Q What was your reply?
A I answered none, sir.
Q Incidentally Mr. Witness, where or in what particular place did this
conversation between you and Manuel T. Abelardo take place?
A Parking Area of Academy I, Gov. Santos corner Aguirre St., sir.
Q Now, what else happened after you talk[ed] with this Manuel T. Abelardo?
A He said I may be fooling him because he said I once fooled him when I ran
away with his children which he is going to take back, sir.
Q And what was your reply to that?
A I answered I did not do that and he said that once he discovered that I did it
he would box me, sir.
Q What else if any did he tell you at that time?
A He asked me who instructed me, sir.
Q Instructed you about what?
A To run away with the children, sir.
Q And what was your reply?
A None, he was the one who said was it your Ate Puppet? But I did not
answer, sir.
Q What happened next when you failed to answer?
A Or my father in law?
Q And when he said his father in law to whom was he referring at that time?
54

A Mr. Honorio Carlos, sir.

Q After mentioning the name of his father-in-law Mr. Honorio Carlos what
happened next?
A He told me Sabihin mo sa biyenan ko babarilin ko siya pag nakita ko siya.
Q Where was Manuel Abelardo at that particular time when he told this
threatening remark against Honorio Carlos?
A He was inside his car in Aguirre St., sir.
Q How about you where were you approximately at that particular time when
he narrated that message to you threatening the herein plaintiff?
A I was outside looking in his vehicle at Aguirre St., sir.
xxx

Q And what was your reply or reaction when he made this threatening
remarks?
A None, because he left. I was left behind, sir. [23]
This testimony was in part corroborated by an entry dated May 28, 1994 in the Police
Blotter of the Paranaque Police Station narrating the aforementioned incident. [24]
The testimonies of these witnesses on the two separate incidents of threat are positive, direct
and straightforward. Petitioner also declared on the witness stand that on several occasions, he
received telephone calls from respondent cursing and threatening him. [25] These incidents of
threat were also evidenced by a letter written by respondents wife and addressed to her father-inlaw (father of respondent).[26] The letter recounted the instances when threats were made by her
husband against petitioner, particularly, the incident reported by Pajarin and the threats made by
respondent through the telephone. [27]
All these circumstances sufficiently establish that threats were directed by respondent
against petitioner justifying the award of moral damages in favor of petitioner. However, the
Court finds the amount of P500,000.00 as moral damages too exorbitant under the circumstances
and the same is reduced to P50,000.00. The exemplary damages and attorneys fees are likewise
reduced to P20,000.00 and P50,000.00, respectively.

55

WHEREFORE, the petition is hereby GRANTED and the decision of the Court of Appeals
in CA GR-CV No. 54464 is MODIFIED in that respondent is ordered to pay petitioner the
amounts of (1) US$25,000 or its equivalent in Philippine currency at the time of payment, plus
legal interest from August 4, 1994, until fully paid; (2) P50,000.00 as moral damages;
(3)P20,000.00 as exemplary damages; and (4) P50,000.00 as attorneys fees.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago, JJ., concur.

56