Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-17014 August 11, 1921

MARIANO B. ARROYO, plaintiff-appellant,

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

Fisher & DeWitt for appellant.

Powell & Hill for appellee.

STREET, J.:

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

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

1
In examining the legal questions involved, it will be found convenient to dispose first of the
defendant's cross-complaint. To begin with, the obligation which the law imposes on the husband to
maintain the wife is a duty universally recognized in civil society and is clearly expressed in articles
142 and 143 of the Civil code. The enforcement of this obligation by the wife against the husband is
not conditioned upon the procurance of a divorce by her, nor even upon the existence of a cause for
divorce. Accordingly it had been determined that where the wife is forced to leave the matrimonial
abode and to live apart from her husband, she can, in this jurisdiction, compel him to make provision
for her separate maintenance (Goitia vs. Campos Rueda, 35 Phil., 252); and he may be required to
pay the expenses, including attorney's fees, necessarily incurred in enforcing such obligation,
(Mercado vs.Ostrand and Ruiz, 37 Phil., 179.) Nevertheless, the interests of both parties as well as
of society at large require that the courts should move with caution in enforcing the duty to provide
for the separate maintenance of the wife, for this step involves a recognition of the de
facto separation of the spouses — a state which is abnormal and fraught with grave danger to all
concerned. From this consideration it follows that provision should not be made for separate
maintenance in favor of the wife unless it appears that the continued cohabitation of the pair has
become impossible and separation necessary from the fault of the husband.

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

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

That the duty of cohabitation is released by the cruelty of one of the parties is admitted, but
the question occurs, What is cruelty? . . .

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

The humanity of the court has been loudly and repeatedly invoked. Humanity is the second
virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply,

2
 and of humanity which confined its views merely to the happiness of the present parties, it
would be a question easily decided upon first impressions. Every body must feel a wish to
sever those who wish to live separate from each other, who cannot live together with any
degree of harmony, and consequently with any degree of happiness; but my situation does
not allow me to indulge the feelings, much less the first feelings of an individual. The law has
said that married persons shall not be legally separated upon the mere disinclination of one
or both to cohabit together. . . .

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

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

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

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

Upon examination of the authorities we are convinced that it is not within the province of the courts
of this country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to,
the other. Of course where the property rights of one of the pair are invaled, an action for restitution
of such rights can be maintained. But we are disinclined to sanction the doctrine that an order,
enforcible by process of contempt, may be entered to compel the restitution of the purely personal
rights of consortium. At best such an order can be effective for no other purpose than to compel the
spouses to live under the same roof; and the experience of these countries where the court of justice
have assumed to compel the cohabitation of married people shows that the policy of the practice is
extremely questionable. Thus in England, formerly the Ecclesiastical Court entertained suits for the
restitution of conjugal rights at the instance of either husband or wife; and if the facts were found to
warrant it that court would make a mandatory decree, enforcible by process of contempt in case of
disobedience, requiring the delinquent party to live with the other and render conjugal rights. Yet this
practice was sometimes criticized even by the judges who felt bound to enforce such orders, and in

3
Weldon vs. Weldon (9 P. D., 52), decided in 1883, Sir James Hannen, President in the Probate,
Divorce and Admiralty Division of the High Court of Justice, expressed his regret that the English law
on the subject was not the same as that which prevailed in Scotland, where a decree of adherence,
equivalent to the decree for the restitution of conjugal rights in England, could be obtained by the
injured spouse, but could not be enforced by imprisonment. Accordingly, in obedience to the growing
sentiment against the practice, the Matrimonial Causes Act (1884) abolished the remedy of
imprisonment; though a decree for the restitution of conjugal rights can still be procured, and in case
of disobedience may serve in appropriate cases as the basis of an order for the periodical payment
of a stipend in the character of alimony.

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

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

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

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

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

4
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-19671 November 29, 1965

PASTOR B. TENCHAVEZ, plaintiff-appellant,

vs.
VICENTA F. ESCAÑO, ET AL., defendants-appellees.

I. V. Binamira & F. B. Barria for plaintiff-appellant.

Jalandoni & Jarnir for defendants-appellees.

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

Direct appeal, on factual and legal questions, from the judgment of the Court of First Instance of
Cebu, in its Civil Case No. R-4177, denying the claim of the plaintiff-appellant, Pastor B. Tenchavez,
for legal separation and one million pesos in damages against his wife and parents-in-law, the
defendants-appellees, Vicente, Mamerto and Mena,1 all surnamed "Escaño," respectively.2

The facts, supported by the evidence of record, are the following:

Missing her late afternoon classes on 24 February 1948 in the University of San Carlos, Cebu City,
where she was then enrolled as a second year student of commerce, Vicenta Escaño, 27 years of
age (scion of a well-to-do and socially prominent Filipino family of Spanish ancestry and a "sheltered
colegiala"), exchanged marriage vows with Pastor Tenchavez, 32 years of age, an engineer, ex-army
officer and of undistinguished stock, without the knowledge of her parents, before a Catholic
chaplain, Lt. Moises Lavares, in the house of one Juan Alburo in the said city. The marriage was the
culmination of a previous love affair and was duly registered with the local civil register.

Vicenta's letters to Pastor, and his to her, before the marriage, indicate that the couple were deeply
in love. Together with a friend, Pacita Noel, their matchmaker and go-between, they had planned out
their marital future whereby Pacita would be the governess of their first-born; they started saving
money in a piggy bank. A few weeks before their secret marriage, their engagement was broken;
Vicenta returned the engagement ring and accepted another suitor, Joseling Lao. Her love for Pastor
beckoned; she pleaded for his return, and they reconciled. This time they planned to get married and
then elope. To facilitate the elopement, Vicenta had brought some of her clothes to the room of
Pacita Noel in St. Mary's Hall, which was their usual trysting place.

Although planned for the midnight following their marriage, the elopement did not, however,
materialize because when Vicente went back to her classes after the marriage, her mother, who got
wind of the intended nuptials, was already waiting for her at the college. Vicenta was taken home
where she admitted that she had already married Pastor. Mamerto and Mena Escaño were
surprised, because Pastor never asked for the hand of Vicente, and were disgusted because of the
great scandal that the clandestine marriage would provoke (t.s.n., vol. III, pp. 1105-06). The following
morning, the Escaño spouses sought priestly advice. Father Reynes suggested a recelebration to
validate what he believed to be an invalid marriage, from the standpoint of the Church, due to the

5
lack of authority from the Archbishop or the parish priest for the officiating chaplain to celebrate the
marriage. The recelebration did not take place, because on 26 February 1948 Mamerto Escaño was
handed by a maid, whose name he claims he does not remember, a letter purportedly coming from
San Carlos college students and disclosing an amorous relationship between Pastor Tenchavez and
Pacita Noel; Vicenta translated the letter to her father, and thereafter would not agree to a new
marriage. Vicenta and Pastor met that day in the house of Mrs. Pilar Mendezona. Thereafter, Vicenta
continued living with her parents while Pastor returned to his job in Manila. Her letter of 22 March
1948 (Exh. "M"), while still solicitous of her husband's welfare, was not as endearing as her previous
letters when their love was aflame.

Vicenta was bred in Catholic ways but is of a changeable disposition, and Pastor knew it. She fondly
accepted her being called a "jellyfish." She was not prevented by her parents from communicating
with Pastor (Exh. "1-Escaño"), but her letters became less frequent as the days passed. As of June,
1948 the newlyweds were already estranged (Exh. "2-Escaño"). Vicenta had gone to Jimenez,
Misamis Occidental, to escape from the scandal that her marriage stirred in Cebu society. There, a
lawyer filed for her a petition, drafted by then Senator Emmanuel Pelaez, to annul her marriage. She
did not sign the petition (Exh. "B-5"). The case was dismissed without prejudice because of her non-
appearance at the hearing (Exh. "B-4").

On 24 June 1950, without informing her husband, she applied for a passport, indicating in her
application that she was single, that her purpose was to study, and she was domiciled in Cebu City,
and that she intended to return after two years. The application was approved, and she left for the
United States. On 22 August 1950, she filed a verified complaint for divorce against the herein
plaintiff in the Second Judicial District Court of the State of Nevada in and for the County of Washoe,
on the ground of "extreme cruelty, entirely mental in character." On 21 October 1950, a decree of
divorce, "final and absolute", was issued in open court by the said tribunal.

In 1951 Mamerto and Mena Escaño filed a petition with the Archbishop of Cebu to annul their
daughter's marriage to Pastor (Exh. "D"). On 10 September 1954, Vicenta sought papal dispensation
of her marriage (Exh. "D"-2).

On 13 September 1954, Vicenta married an American, Russell Leo Moran, in Nevada. She now lives
with him in California, and, by him, has begotten children. She acquired American citizenship on 8
August 1958.

But on 30 July 1955, Tenchavez had initiated the proceedings at bar by a complaint in the Court of
First Instance of Cebu, and amended on 31 May 1956, against Vicenta F. Escaño, her parents,
Mamerto and Mena Escaño, whom he charged with having dissuaded and discouraged Vicenta from
joining her husband, and alienating her affections, and against the Roman Catholic Church, for
having, through its Diocesan Tribunal, decreed the annulment of the marriage, and asked for legal
separation and one million pesos in damages. Vicenta claimed a valid divorce from plaintiff and an
equally valid marriage to her present husband, Russell Leo Moran; while her parents denied that
they had in any way influenced their daughter's acts, and counterclaimed for moral damages.

The appealed judgment did not decree a legal separation, but freed the plaintiff from supporting his
wife and to acquire property to the exclusion of his wife. It allowed the counterclaim of Mamerto
Escaño and Mena Escaño for moral and exemplary damages and attorney's fees against the
plaintiff-appellant, to the extent of P45,000.00, and plaintiff resorted directly to this Court.

The appellant ascribes, as errors of the trial court, the following:

6
 1. In not declaring legal separation; in not holding defendant Vicenta F. Escaño liable for
damages and in dismissing the complaint;.

2. In not holding the defendant parents Mamerto Escano and the heirs of Doña Mena
Escaño liable for damages;.

3 In holding the plaintiff liable for and requiring him to pay the damages to the defendant
parents on their counterclaims; and.

4. In dismissing the complaint and in denying the relief sought by the plaintiff.

That on 24 February 1948 the plaintiff-appellant, Pastor Tenchavez, and the defendant-appellee,
Vicenta Escaño, were validly married to each other, from the standpoint of our civil law, is clearly
established by the record before us. Both parties were then above the age of majority, and otherwise
qualified; and both consented to the marriage, which was performed by a Catholic priest (army
chaplain Lavares) in the presence of competent witnesses. It is nowhere shown that said priest was
not duly authorized under civil law to solemnize marriages.

The chaplain's alleged lack of ecclesiastical authorization from the parish priest and the Ordinary, as
required by Canon law, is irrelevant in our civil law, not only because of the separation of Church and
State but also because Act 3613 of the Philippine Legislature (which was the marriage law in force at
the time) expressly provided that —

SEC. 1. Essential requisites. Essential requisites for marriage are the legal capacity of the
contracting parties and consent. (Emphasis supplied)

The actual authority of the solemnizing officer was thus only a formal requirement, and, therefore,
not essential to give the marriage civil effects,3 and this is emphasized by section 27 of said marriage
act, which provided the following:

SEC. 27. Failure to comply with formal requirements. No marriage shall be declared invalid
because of the absence of one or several of the formal requirements of this Act if, when it
was performed, the spouses or one of them believed in good faith that the person who
solemnized the marriage was actually empowered to do so, and that the marriage was
perfectly legal.

The good faith of all the parties to the marriage (and hence the validity of their marriage) will be
presumed until the contrary is positively proved (Lao vs. Dee Tim, 45 Phil. 739, 745; Francisco vs.
Jason, 60 Phil. 442, 448). It is well to note here that in the case at bar, doubts as to the authority of
the solemnizing priest arose only after the marriage, when Vicenta's parents consulted Father
Reynes and the archbishop of Cebu. Moreover, the very act of Vicenta in abandoning her original
action for annulment and subsequently suing for divorce implies an admission that her marriage to
plaintiff was valid and binding.

Defendant Vicenta Escaño argues that when she contracted the marriage she was under the undue
influence of Pacita Noel, whom she charges to have been in conspiracy with appellant Tenchavez.
Even granting, for argument's sake, the truth of that contention, and assuming that Vicenta's consent
was vitiated by fraud and undue influence, such vices did not render her marriage ab initio void, but
merely voidable, and the marriage remained valid until annulled by a competent civil court. This was
never done, and admittedly, Vicenta's suit for annulment in the Court of First Instance of Misamis
was dismissed for non-prosecution.

7
It is equally clear from the record that the valid marriage between Pastor Tenchavez and Vicenta
Escaño remained subsisting and undissolved under Philippine law, notwithstanding the decree of
absolute divorce that the wife sought and obtained on 21 October 1950 from the Second Judicial
District Court of Washoe County, State of Nevada, on grounds of "extreme cruelty, entirely mental in
character." At the time the divorce decree was issued, Vicenta Escaño, like her husband, was still a
Filipino citizen.4 She was then subject to Philippine law, and Article 15 of the Civil Code of the
Philippines (Rep. Act No. 386), already in force at the time, expressly provided:

Laws relating to family rights and duties or to the status, condition and legal capacity of
persons are binding upon the citizens of the Philippines, even though living abroad.

The Civil Code of the Philippines, now in force, does not admit absolute divorce, quo ad vinculo
matrimonii; and in fact does not even use that term, to further emphasize its restrictive policy on the
matter, in contrast to the preceding legislation that admitted absolute divorce on grounds of adultery
of the wife or concubinage of the husband (Act 2710). Instead of divorce, the present Civil Code only
provides for legal separation (Title IV, Book 1, Arts. 97 to 108), and, even in that case, it expressly
prescribes that "the marriage bonds shall not be severed" (Art. 106, subpar. 1).

For the Philippine courts to recognize and give recognition or effect to a foreign decree of absolute
divorce betiveen Filipino citizens could be a patent violation of the declared public policy of the state,
specially in view of the third paragraph of Article 17 of the Civil Code that prescribes the following:

Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, policy and good customs, shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.

Even more, the grant of effectivity in this jurisdiction to such foreign divorce decrees would, in effect,
give rise to an irritating and scandalous discrimination in favor of wealthy citizens, to the detriment of
those members of our polity whose means do not permit them to sojourn abroad and obtain absolute
divorces outside the Philippines.

From this point of view, it is irrelevant that appellant Pastor Tenchavez should have appeared in the
Nevada divorce court. Primarily because the policy of our law cannot be nullified by acts of private
parties (Civil Code,Art. 17, jam quot.); and additionally, because the mere appearance of a non-
resident consort cannot confer jurisdiction where the court originally had none (Area vs. Javier, 95
Phil. 579).

From the preceding facts and considerations, there flows as a necessary consequence that in this
jurisdiction Vicenta Escaño's divorce and second marriage are not entitled to recognition as valid; for
her previous union to plaintiff Tenchavez must be declared to be existent and undissolved. It follows,
likewise, that her refusal to perform her wifely duties, and her denial of consortium and her desertion
of her husband constitute in law a wrong caused through her fault, for which the husband is entitled
to the corresponding indemnity (Civil Code, Art. 2176). Neither an unsubstantiated charge of deceit
nor an anonymous letter charging immorality against the husband constitute, contrary to her claim,
adequate excuse. Wherefore, her marriage and cohabitation with Russell Leo Moran is technically
"intercourse with a person not her husband" from the standpoint of Philippine Law, and entitles
plaintiff-appellant Tenchavez to a decree of "legal separation under our law, on the basis of adultery"
(Revised Penal Code, Art. 333).

The foregoing conclusions as to the untoward effect of a marriage after an invalid divorce are in
accord with the previous doctrines and rulings of this court on the subject, particularly those that

8
were rendered under our laws prior to the approval of the absolute divorce act (Act 2710 of the
Philippine Legislature). As a matter of legal history, our statutes did not recognize divorces a
vinculo before 1917, when Act 2710 became effective; and the present Civil Code of the Philippines,
in disregarding absolute divorces, in effect merely reverted to the policies on the subject prevailing
before Act 2710. The rulings, therefore, under the Civil Code of 1889, prior to the Act above-
mentioned, are now, fully applicable. Of these, the decision in Ramirez vs. Gmur, 42 Phil. 855, is of
particular interest. Said this Court in that case:

As the divorce granted by the French Court must be ignored, it results that the marriage of
Dr. Mory and Leona Castro, celebrated in London in 1905, could not legalize their relations;
and the circumstance that they afterwards passed for husband and wife in Switzerland until
her death is wholly without legal significance. The claims of the very children to participate in
the estate of Samuel Bishop must therefore be rejected. The right to inherit is limited to
legitimate, legitimated and acknowledged natural children. The children of adulterous
relations are wholly excluded. The word "descendants" as used in Article 941 of the Civil
Code cannot be interpreted to include illegitimates born of adulterous relations. (Emphasis
supplied)

Except for the fact that the successional rights of the children, begotten from Vicenta's marriage to
Leo Moran after the invalid divorce, are not involved in the case at bar, the Gmur case is authority for
the proposition that such union is adulterous in this jurisdiction, and, therefore, justifies an action for
legal separation on the part of the innocent consort of the first marriage, that stands undissolved in
Philippine law. In not so declaring, the trial court committed error.

True it is that our ruling gives rise to anomalous situations where the status of a person (whether
divorced or not) would depend on the territory where the question arises. Anomalies of this kind are
not new in the Philippines, and the answer to them was given in Barretto vs. Gonzales, 58 Phil. 667:

The hardship of the existing divorce laws in the Philippine Islands are well known to the
members of the Legislature. It is the duty of the Courts to enforce the laws of divorce as
written by Legislature if they are constitutional. Courts have no right to say that such laws are
too strict or too liberal. (p. 72)

The appellant's first assignment of error is, therefore, sustained.

However, the plaintiff-appellant's charge that his wife's parents, Dr. Mamerto Escaño and his wife,
the late Doña Mena Escaño, alienated the affections of their daughter and influenced her conduct
toward her husband are not supported by credible evidence. The testimony of Pastor Tenchavez
about the Escaño's animosity toward him strikes us to be merely conjecture and exaggeration, and
are belied by Pastor's own letters written before this suit was begun (Exh. "2-Escaño" and "Vicenta,"
Rec. on App., pp. 270-274). In these letters he expressly apologized to the defendants for
"misjudging them" and for the "great unhappiness" caused by his "impulsive blunders" and "sinful
pride," "effrontery and audacity" [sic]. Plaintiff was admitted to the Escaño house to visit and court
Vicenta, and the record shows nothing to prove that he would not have been accepted to marry
Vicente had he openly asked for her hand, as good manners and breeding demanded. Even after
learning of the clandestine marriage, and despite their shock at such unexpected event, the parents
of Vicenta proposed and arranged that the marriage be recelebrated in strict conformity with the
canons of their religion upon advice that the previous one was canonically defective. If no
recelebration of the marriage ceremony was had it was not due to defendants Mamerto Escaño and
his wife, but to the refusal of Vicenta to proceed with it. That the spouses Escaño did not seek to
compel or induce their daughter to assent to the recelebration but respected her decision, or that
they abided by her resolve, does not constitute in law an alienation of affections. Neither does the

9
fact that Vicenta's parents sent her money while she was in the United States; for it was natural that
they should not wish their daughter to live in penury even if they did not concur in her decision to
divorce Tenchavez (27 Am. Jur. 130-132).

There is no evidence that the parents of Vicenta, out of improper motives, aided and abetted her
original suit for annulment, or her subsequent divorce; she appears to have acted independently,
and being of age, she was entitled to judge what was best for her and ask that her decisions be
respected. Her parents, in so doing, certainly cannot be charged with alienation of affections in the
absence of malice or unworthy motives, which have not been shown, good faith being always
presumed until the contrary is proved.

SEC. 529. Liability of Parents, Guardians or Kin. — The law distinguishes between the right
of a parent to interest himself in the marital affairs of his child and the absence of rights in a
stranger to intermeddle in such affairs. However, such distinction between the liability of
parents and that of strangers is only in regard to what will justify interference. A parent
isliable for alienation of affections resulting from his own malicious conduct, as where he
wrongfully entices his son or daughter to leave his or her spouse, but he is not liable unless
he acts maliciously, without justification and from unworthy motives. He is not liable where he
acts and advises his child in good faith with respect to his child's marital relations in the
interest of his child as he sees it, the marriage of his child not terminating his right and liberty
to interest himself in, and be extremely solicitous for, his child's welfare and happiness, even
where his conduct and advice suggest or result in the separation of the spouses or the
obtaining of a divorce or annulment, or where he acts under mistake or misinformation, or
where his advice or interference are indiscreet or unfortunate, although it has been held that
the parent is liable for consequences resulting from recklessness. He may in good faith take
his child into his home and afford him or her protection and support, so long as he has not
maliciously enticed his child away, or does not maliciously entice or cause him or her to stay
away, from his or her spouse. This rule has more frequently been applied in the case of
advice given to a married daughter, but it is equally applicable in the case of advice given to
a son.

Plaintiff Tenchavez, in falsely charging Vicenta's aged parents with racial or social discrimination and
with having exerted efforts and pressured her to seek annulment and divorce, unquestionably
caused them unrest and anxiety, entitling them to recover damages. While this suit may not have
been impelled by actual malice, the charges were certainly reckless in the face of the proven facts
and circumstances. Court actions are not established for parties to give vent to their prejudices or
spleen.

In the assessment of the moral damages recoverable by appellant Pastor Tenchavez from defendant
Vicente Escaño, it is proper to take into account, against his patently unreasonable claim for a million
pesos in damages, that (a) the marriage was celebrated in secret, and its failure was not
characterized by publicity or undue humiliation on appellant's part; (b) that the parties never lived
together; and (c) that there is evidence that appellant had originally agreed to the annulment of the
marriage, although such a promise was legally invalid, being against public policy (cf. Art. 88, Civ.
Code). While appellant is unable to remarry under our law, this fact is a consequence of the
indissoluble character of the union that appellant entered into voluntarily and with open eyes rather
than of her divorce and her second marriage. All told, we are of the opinion that appellant should
recover P25,000 only by way of moral damages and attorney's fees.

With regard to the P45,000 damages awarded to the defendants, Dr. Mamerto Escaño and Mena
Escaño, by the court below, we opine that the same are excessive. While the filing of this unfounded
suit must have wounded said defendants' feelings and caused them anxiety, the same could in no

10
way have seriously injured their reputation, or otherwise prejudiced them, lawsuits having become a
common occurrence in present society. What is important, and has been correctly established in the
decision of the court below, is that said defendants were not guilty of any improper conduct in the
whole deplorable affair. This Court, therefore, reduces the damages awarded to P5,000 only.

Summing up, the Court rules:

(1) That a foreign divorce between Filipino citizens, sought and decreed after the effectivity of the
present Civil Code (Rep. Act 386), is not entitled to recognition as valid in this jurisdiction; and
neither is the marriage contracted with another party by the divorced consort, subsequently to the
foreign decree of divorce, entitled to validity in the country;

(2) That the remarriage of divorced wife and her co-habitation with a person other than the lawful
husband entitle the latter to a decree of legal separation conformably to Philippine law;

(3) That the desertion and securing of an invalid divorce decree by one consort entitles the other to
recover damages;

(4) That an action for alienation of affections against the parents of one consort does not lie in the
absence of proof of malice or unworthy motives on their part.

WHEREFORE, the decision under appeal is hereby modified as follows;

(1) Adjudging plaintiff-appellant Pastor Tenchavez entitled to a decree of legal separation from
defendant Vicenta F. Escaño;

(2) Sentencing defendant-appellee Vicenta Escaño to pay plaintiff-appellant Tenchavez the amount
of P25,000 for damages and attorneys' fees;

(3) Sentencing appellant Pastor Tenchavez to pay the appellee, Mamerto Escaño and the estate of
his wife, the deceased Mena Escaño, P5,000 by way of damages and attorneys' fees.

Neither party to recover costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar,
JJ., concur.

11
 Republic of the Philippines
SUPREME COURT
Baguio City

FIRST DIVISION

G.R. No. 187495 April 21, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,

vs.
EDGAR JUMAWAN, Accused-Appellant.

DECISION

"Among the duties assumed by the husband are his duties to love, cherish and protect his wife, to
give her a home, to provide her with the comforts and the necessities of life within his means, to treat
her kindly and not cruelly or inhumanely. He is bound to honor her x x x; it is his duty not only to
maintain and support her, but also to protect her from oppression and wrong." 1

REYES, J.:

Husbands do not have property rights over their wives' bodies. Sexual intercourse, albeit within the
realm of marriage, if not consensual, is rape. This is the clear State policy expressly legislated in
Section 266-A of the Revised Penal Code (RPC), as amended by Republic Act (R.A.) No. 8353 or
the Anti-Rape Law of 1997.

The Case

This is an automatic review of the Decision dated July 9, 2008 of the Court of Appeals (CA) in CA-
2 3

G.R. CR-HC No. 00353, which affirmed the Judgment dated April 1, 2002 of the Regional Trial Court
4

(RTC) of Cagayan de Oro City, Branch 19, in Criminal Case Nos. 99-668 and 99-669 convicting him
to suffer the penalty of reclusion perpetua for each count.

The Facts

Accused-appellant and his wife, KKK, were married on October 18, 1975. They Ii ved together since
5

then and raised their four (4) children as they put up several businesses over the years.
6

On February 19, 1999, KKK executed a Complaint-Affidavit, alleging that her husband, the accused-
7

appellant, raped her at 3 :00 a.m. of December 3, 1998 at their residence in Phase 2, Villa Ernesto,
Gusa, Cagayan de Oro City, and that on December 12, 1998, the accused-appellant boxed her
shoulder for refusing to have sex with him.

On June 11, 1999, the Office of the City Prosecutor of Cagayan de Oro City issued a Joint
Resolution, finding probable cause for grave threats, less serious physical injuries and rape and
8

recommending that the appropriate criminal information be filed against the accused-appellant.

12
On July 16, 1999, two Informations for rape were filed before the RTC respectively docketed as
Criminal Case No. 99-668 and Criminal Case No. 99-669. The Information in Criminal Case No.
9 10

99-668 charged the accused-appellant as follows:

That on or about 10:30 in the evening more or less, of October 9, 1998, at Gusa, Cagayan de Oro
City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by
means of force upon person did then and there wilfully, unlawfully and feloniously have carnal
knowledge with the private complainant, her [sic] wife, against the latter[']s will.

Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997.

Meanwhile the Information in Criminal Case No. 99-669 reads:

That on or about 10:30 in the evening more or less, of October 10, 1998, at Gusa, Cagayan de Oro
City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by
means of force upon person did then and there wilfully, unlawfully and feloniously have carnal
knowledge with the private complainant, her [sic] wife, against the latter's will.

Contrary to and in Violation of R.A. 8353, the Anti-Rape Law of 1997.

The accused-appellant was arrested upon a warrant issued on July 21, 1999. On August 18, 1999,
11

the accused-appellant filed a Motion for Reinvestigation, which was denied by the trial court in an
12

Order dated August 19, 1999. On even date, the accused-appellant was arraigned and he entered
13

a plea of not guilty to both charges.

14

On January 10, 2000, the prosecution filed a Motion to Admit Amended Information averring that
15

the name of the private complainant was omitted in the original informations for rape. The motion
also stated that KKK, thru a Supplemental Affidavit dated November 15, 1999, attested that the true
16

dates of commission of the crime are October 16, 1998 and October 1 7, 1998 thereby modifying the
dates stated in her previous complaint-affidavit. The motion was granted on January 18,
2000. Accordingly, the criminal informations were amended as follows:
17

Criminal Case No. 99-668:

That on or about October 16, 1998 at Gusa, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused by means of force upon person did
then and there wilfully, unlawfully and feloniously have carnal knowledge with the private
complainant, his wife, [KKK], against the latter's will.

Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997. 18

Criminal Case No. 99-669:

That on or about October 17, 1998 at Gusa, Cagayan de Oro City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused by means of force upon person did
then and there wilfully, unlawfully and feloniously have carnal knowledge with the private
complainant, his wife, [KKK], against the latter's will.

Contrary to and in violation of R.A. 8353, the Anti-Rape Law of 1997. 19

13
The accused-appellant was thereafter re-arraigned. He maintained his not guilty plea to both
indictments and a joint trial of the two cases forthwith ensued.

Version of the prosecution

The prosecution's theory was anchored on the testimonies of KKK, and her daughters MMM and
000, which, together with pertinent physical evidence, depicted the following events:

KKK met the accused-appellant at the farm of her parents where his father was one of the laborers.
They got married after a year of courtship. When their first child, MMM, was born, KKK and the
20

accused-appellant put up a sari-sari store. Later on, they engaged in several other businesses
21

-trucking, rice mill and hardware. KKK managed the businesses except for the rice mill, which,
ideally, was under the accused-appellant's supervision with the help of a trusted employee. In reality,
however, he merely assisted in the rice mill business by occasionally driving one of the trucks to haul
goods. 22

Accused-appellant's keenness to make the businesses flourish was not as fervent as KKK's
dedication. Even the daughters observed the disproportionate labors of their parents. He would
23

drive the trucks sometimes but KKK was the one who actively managed the businesses. 24

She wanted to provide a comfortable life for their children; he, on the other hand, did not acquiesce
with that objective.
25

In 1994, KKK and the accused-appellant bought a lot and built a house in Villa Ernesto, Gusa,
Cagayan de Oro City. Three of the children transferred residence therein while KKK, the accused-
26

appellant and one of their sons stayed in Dangcagan, Bukidnon. She shuttled between the two
places regularly and sometimes he accompanied her. In 1998, KKK stayed in Gusa, Cagayan De
27

Oro City most of the days of the week. On Wednesdays, she went to Dangcagan, Bukidnon to
28

procure supplies for the family store and then returned to Cagayan de Oro City on the same day. 29

Conjugal intimacy did not really cause marital problems between KKK and the accused-appellant. It
was, in fact, both frequent and fulfilling. He treated her well and she, of course, responded with equal
degree of enthusiasm. However, in 1997, he started to be brutal in bed. He would immediately
30

remove her panties and, sans any foreplay, insert her penis in her vagina. His abridged method of
lovemaking was physically painful for her so she would resist his sexual ambush but he would
threaten her into submission. 31

In 1998, KKK and the accused-appellant started quarrelling usually upon his complaint that she
failed to attend to him. She was preoccupied with financial problems in their businesses and a bank
loan. He wanted KKK to stay at home because "a woman must stay in the house and only good in
bed (sic) x x x." She disobeyed his wishes and focused on her goal of providing a good future for the
children. 32

Four days before the subject rape incidents or on October 12, 1998, KKK and the accused-appellant
slept together in Cebu City where the graduation rites of their eldest daughter were held. By October
14, 1998, the three of them were already back in Cagayan de Oro City. 33

On October 16, 1998, the accused-appellant, his wife KKK and their children went about their nightly
routine. The family store in their residence was closed at about 9:00 p.m. before supper was taken.
Afterwards, KKK and the children went to the girls' bedroom at the mezzanine of the house to pray
the rosary while the accused-appellant watched television in the living room. OOO and MMM then
34

14
prepared their beds. Soon after, the accused-appellant fetched KKK and bid her to come with him to
their conjugal bedroom in the third floor of the house. KKK complied. 35

Once in the bedroom, KKK changed into a daster and fixed the matrimonial bed but she did not lie
thereon with the accused-appellant and instead, rested separately in a cot near the bed. Her
reclusive behavior prompted him to ask angrily: "[W]hy are you lying on the c{o]t[?]", and to
instantaneously order: "You transfer here [to] our bed."36

KKK insisted to stay on the cot and explained that she had headache and abdominal pain due to her
forthcoming menstruation. Her reasons did not appease him and he got angrier. He rose from the
bed, lifted the cot and threw it against the wall causing KKK to fall on the floor. Terrified, KKK stood
up from where she fell, took her pillow and transferred to the bed.37

The accused-appellant then lay beside KKK and not before long, expressed his desire to copulate
with her by tapping his fingers on her lap. She politely declined by warding off his hand and
reiterating that she was not feeling well.
38

The accused-appellant again asserted his sexual yearning and when KKK tried to resist by holding
on to her panties, he pulled them down so forcefully they tore on the sides. KKK stayed defiant by
39

refusing to bend her legs. 40

The accused-appellant then raised KKK's daster, stretched her legs apart and rested his own legs
41

on them. She tried to wrestle him away but he held her hands and succeeded in penetrating her. As
he was carrying out his carnal desires, KKK continued to protest by desperately shouting: "[D]on 't
do that to me because I'm not feeling well." 42

With a concrete wall on one side and a mere wooden partition on the other enclosing the spouses'
bedroom, KKK's pleas were audible in the children's bedroom where MMM lay awake.
43

Upon hearing her mother crying and hysterically shouting: "Eddie, don't do that to me, have pity on
me," MMM woke up 000 who prodded her to go to their parents' room. MMM hurriedly climbed
44 45

upstairs, vigorously knocked on the door of her parents' bedroom and inquired: "Pa, why is it that
Mama is crying?" The accused-appellant then quickly put on his briefs and shirt, partly opened the
46

door and said: "[D]on 't interfere because this is a family trouble," before closing it again. Since she
47

heard her mother continue to cry, MMM ignored his father's admonition, knocked at the bedroom
door again, and then kicked it. A furious accused-appellant opened the door wider and rebuked
48

MMM once more: "Don't interfere us. Go downstairs because this is family trouble!" Upon seeing
KKK crouching and crying on top of the bed, MMM boldly entered the room, approached her mother
and asked: "Ma, why are you crying?" before asking her father: "Pa, what happened to Mama why is
it that her underwear is torn[?]" 49

When MMM received no definite answers to her questions, she helped her mother get up in order to
bring her to the girls' bedroom. KKK then picked up her tom underwear and covered herself with a
blanket. However, their breakout from the room was not easy. To prevent KKK from leaving, the
50

accused-appellant blocked the doorway by extending his arm towards the knob. He commanded
KKK to "[S]tay here, you sleep in our room," when the trembling KKK pleaded: "Eddie, allow me to
go out." He then held KKK's hands but she pulled them back. Determined to get away, MMM leaned
against door and embraced her mother tightly as they pushed their way out. 51

In their bedroom, the girls gave their mother some water and queried her as to what
happened. KKK relayed: "[Y]our father is an animal, a beast; he forced me to have sex with him
52

when I'm not feeling well." The girls then locked the door and let her rest." 53

15
The accused-appellant's aggression recurred the following night. After closing the family store on
October 17, 1998, KKK and the children took their supper. The accused-appellant did not join them
since, according to him, he already ate dinner elsewhere. After resting for a short while, KKK and the
children proceeded to the girls' bedroom and prayed the rosary. KKK decided to spend the night in
the room's small bed and the girls were already fixing the beddings when the accused-appellant
entered.

"Why are you sleeping in the room of our children", he asked KKK, who responded that she
preferred to sleep with the children. He then scoffed: "Its alright if you will not go with me, anyway,
54

there are women that could be paid [P] 1,000.00." She dismissed his comment by turning her head
away after retorting: "So be it." After that, he left the room. 55

He returned 15 minutes later and when KKK still refused to go with him, he became infuriated. He
56

lifted her from the bed and attempted to carry her out of the room as he exclaimed: "Why will you
sleep here[?] Lets go to our bedroom." When she defied him, he grabbed her short pants causing
them to tear apart. At this point, MMM interfered, "Pa, don't do that to Mama because we are in
57

front of you."
58

The presence of his children apparently did not pacify the accused-appellant who yelled, "[E]ven in
front of you, I can have sex of your mother [sic J because I'm the head of the family." He then
ordered his daughters to leave the room. Frightened, the girls obliged and went to the staircase
where they subsequently heard the pleas of their helpless mother resonate with the creaking bed. 59

The episodes in the bedroom were no less disturbing. The accused-appellant forcibly pulled KKK's
short pants and panties. He paid no heed as she begged, "[D]on 't do that to me, my body is still
aching and also my abdomen and I cannot do what you wanted me to do [sic]. I cannot withstand
sex."60

After removing his own short pants and briefs, he flexed her legs, held her hands, mounted her and
forced himself inside her. Once gratified, the accused-appellant put on his short pants and briefs,
stood up, and went out of the room laughing as he conceitedly uttered: "[I]t s nice, that is what you
deserve because you are [a] flirt or fond of sex." He then retreated to the masters' bedroom. 61

Sensing that the commotion in their bedroom has ceased, MMM and OOO scurried upstairs but
found the door locked. MMM pulled out a jalousie window, inserted her arm, reached for the
doorknob inside and disengaged its lock. Upon entering the room, MMM and OOO found their
mother crouched on the bed with her hair disheveled. The girls asked: "Ma, what happened to you,
why are you crying?" KKK replied: "[Y}our father is a beast and animal, he again forced me to have
sex with him even if I don't feel well. "62

Version of the defense

The defense spun a different tale. The accused-appellant's father owned a land adjacent to that of
KKK's father. He came to know KKK because she brought food for her father's laborers. When they
got married on October 18, 1975, he was a high school graduate while she was an elementary
graduate.

Their humble educational background did not deter them from pursuing a comfortable life. Through
their joint hard work and efforts, the couple gradually acquired personal properties and established
their own businesses that included a rice mill managed by the accused-appellant. He also drove
their trucks that hauled coffee, copra, or com. 63

16
The accused-appellant denied raping his wife on October 16 and 17, 1998. He claimed that on those
dates he was in Dangcagan, Bukidnon, peeling com. On October 7, his truck met an accident
somewhere in Angeles Ranch, Maluko, Manolo Fortich, Bukidnon. He left the truck by the roadside
because he had to attend MMM's graduation in Cebu on October 12 with KKK. When they returned
to Bukidnon on October 14, he asked KKK and MMM to proceed to Cagayan de Oro City and just
leave him behind so he can take care of the truck and buy some com. 64

Ryle Equia (Equia), the spouses' driver from January 1996 until June 1999 corroborated the above
claims. According to him, on October 16, 1998, the accused-appellant was within the vicinity of the
rice mill's loading area in Dangcagan, Bukidnon, cleaning a pick-up truck. On October 17, 1998, he
and the accused-appellant were in Dangcagan, Bukidnon, loading sacks of com into the truck. They
finished loading at 3 :00 p.m. The accused-appellant then instructed Equia to proceed to Maluko,
Manolo Fortich, Bukidnon while the former attended a fiesta in New Cebu, Kianggat, Dangcagan,
Bukidnon. At around 4:00 p.m., Equia, together with a helper and a mechanic, left for Maluko in
order to tow the stalled truck left there by the accused-appellant in October 7 and thereafter, bring it
to Cagayan de Oro City together with the separate truck loaded with com.

They arrived in Maluko at 7:00 p.m. and it took them three hours to turn the truck around and hoist it
to the towing bar of the other truck. At around 10:00 p.m., the accused-appellant arrived in Maluko.
The four of them then proceeded to Cagayan de Oro City where they arrived at 3 :00 a.m. of
October 18, 1998. The accused-appellant went to Gusa while the other three men brought the
damaged truck to Cugman. 65

The accused-appellant asserted that KKK merely fabricated the rape charges as her revenge
because he took over the control and management of their businesses as well as the possession of
their pick-up truck in January 1999. The accused-appellant was provoked to do so when she failed
to account for their bank deposits and business earnings. The entries in their bank account showed
the balance of ₱3,190,539.83 on October 31, 1996 but after only a month or on November 30, 1996,
the amount dwindled to a measly ₱9,894.88. Her failure to immediately report to the police also
66

belies her rape allegations.67

KKK wanted to cover-up her extra-marital affairs, which the accused-appellant gradually detected
from her odd behavior. While in Cebu on October 12, 1998 for MMM's graduation rites, the accused-
appellant and KKK had sexual intercourse. He was surprised when his wife asked him to get a
napkin to wipe her after having sex. He tagged her request as "high-tech," because they did not do
the same when they had sex in the past. KKK had also become increasingly indifferent to him. When
he arrives home, it was an employee, not her, who opened the door and welcomed him. She prettied
herself and would no longer ask for his permission whenever she went out. 68

Bebs, KKK's cousin and a cashier in their Bukidnon store, gave the accused-appellant several love
69

letters purportedly addressed to Bebs but were actually intended for KKK. 70

KKK had more than ten paramours some of whom the accused-appellant came to know as: Arsenio,
Jong-Jong, Joy or Joey, somebody from the military or the Philippine National Police, another one is
a government employee, a certain Fernandez and three other priests. Several persons told him
71

about the paramours of his wife but he never confronted her or them about it because he trusted
her.
72

What further confirmed his suspicions was the statement made by OOO on November 2, 1998. At
that time, OOO was listening loudly to a cassette player. Since he wanted to watch a television
program, he asked OOO to tum down the volume of the cassette player. She got annoyed,
unplugged the player, spinned around and hit the accused-appellant's head with the socket. His

17
head bled. An altercation between the accused-appellant and KKK thereafter followed because the
latter took OOO's side. During the argument, OOO blurted out that KKK was better off without the
accused-appellant because she had somebody young, handsome, and a businessman unlike the
accused-appellant who smelled bad, and was old, and ugly. 73

KKK also wanted their property divided between them with three-fourths thereof going to her and
one-fourth to the accused-appellant. However, the separation did not push through because the
accused-appellant's parents intervened. Thereafter, KKK pursued legal separation from the
74

accused-appellant by initiating Barangay Case No. 00588-99 before the Office of Lupong
Tagapamayapa of Gusa, Cagayan de Oro City and thereafter obtaining a Certificate to File Action
dated February 18, 1999. 75

Ruling of the RTC

In its Judgment dated April 1, 2002, the RTC sustained the version proffered by the prosecution by
76

giving greater weight and credence to the spontaneous and straightforward testimonies of the
prosecution's witnesses. The trial court also upheld as sincere and genuine the two daughters'
testimonies, as it is not natural in our culture for daughters to testify against their own father for a
crime such as rape if the same was not truly committed.

The trial court rejected the version of the defense and found unbelievable the accused-appellant's
accusations of extra-marital affairs and money squandering against KKK. The trial court shelved the
accused-appellant's alibi for being premised on inconsistent testimonies and the contradicting
declarations of the other defense witness, Equia, as to the accused-appellant's actual whereabouts
on October 16, 1998. Accordingly, the RTC ruling disposed as follows:

WHEREFORE, the Court hereby finds accused Edgar Jumawan "GUILTY" beyond reasonable doubt
of the two (2) separate charges of rape and hereby sentences him to suffer the penalty of reclusion
perpetua for each, to pay complainant [P]50,000.00 in each case as moral damages, indemnify
complainant the sum of (P]75,000.00 in each case, [P]50,000.00 as exemplary damages and to pay
the costs.

SO ORDERED. 77

Ruling of the CA

In its Decision dated July 9, 2008, the CA affirmed in toto the RTC ruling. The CA held that Section
78

14, Rule 110 of the Rules of Criminal Procedure, sanctioned the amendment of the original
informations. Further, the accused-appellant was not prejudiced by the amendment because he was
re-arraigned with respect to the amended informations.

The CA found that the prosecution, through the straightforward testimony of the victim herself and
the corroborative declarations of MMM and OOO, was able to establish, beyond reasonable doubt,
all the elements of rape under R.A. No. 8353. The accused-appellant had carnal knowledge of KKK
by using force and intimidation.

The CA also ruled that KKK's failure to submit herself to medical examination did not negate the
commission of the crime because a medical certificate is not necessary to prove rape.

The CA rejected the accused-appellant's argument that since he and KKK are husband and wife with
mutual obligations of and right to sexual intercourse, there must be convincing physical evidence or

18
manifestations of the alleged force and intimidation used upon KKK such as bruises. The CA
explained that physical showing of external injures is not indispensable to prosecute and convict a
person for rape; what is necessary is that the victim was forced to have sexual intercourse with the
accused.

In addition, the CA noted that the fact that KKK and the accused-appellant are spouses only
reinforces the truthfulness of KKK's accusations because no wife in her right mind would accuse her
husband of having raped her if it were not true.

The delay in the filing of the rape complaint was sufficiently explained by KKK when she stated that
she only found out that a wife may charge his husband with rape when the fiscal investigating her
separate complaint for grave threats and physical injuries told her about it.

Finally, the CA dismissed the accused-appellant's alibi for lack of convincing evidence that it was
physically impossible for him to be at his residence in Cagayan de Oro City at the time of the
commission of the crimes, considering that Dangcagan, Bukidnon, the place where he allegedly
was, is only about four or five hours away. Accordingly, the decretal portion of the decision read:

WHEREFORE, in the light of the foregoing, the appealed Judgment is hereby AFFIRMED.

SO ORDERED. 79

Hence, the present review. In the Court Resolution dated July 6, 2009, the Court notified the parties
80

that, if they so desire, they may file their respective supplemental briefs. In a Manifestation and
Motion dated September 4, 2009, the appellee, through the Office of the Solicitor General,
81

expressed that it intends to adopt its Brief before the CA. On April 16, 2012, the accused-appellant,
through counsel, filed his Supplemental Brief, arguing that he was not in Cagayan de Oro City when
the alleged rape incidents took place, and the presence of force, threat or intimidation is negated by:
(a) KKK's voluntary act of going with him to the conjugal bedroom on October 16, 1998; (b) KKK's
failure to put up resistance or seek help from police authorities; and ( c) the absence of a medical
certificate and of blood traces in KKK's panties. 82

Our Ruling

I. Rape and marriage: the historical connection

The evolution of rape laws is actually traced to two ancient English practices of 'bride capture'
whereby a man conquered a woman through rape and 'stealing an heiress' whereby a man
abducted a woman and married her. 83

The rape laws then were intended not to redress the violation of the woman's chastity but rather to
punish the act of obtaining the heiress' property by forcible marriage or to protect a man's valuable
84

interest in his wife's chastity or her daughter's virginity. 85

If a man raped an unmarried virgin, he was guilty of stealing her father's property and if a man raped
his wife, he was merely using his property. 86

Women were subjugated in laws and society as objects or goods and such treatment was justified
under three ideologies.

19
Under the chattel theory prevalent during the 6th century, a woman was the property of her father
until she marries to become the property of her husband. If a man abducted an unmarried woman,
87

he had to pay the owner, and later buy her from the owner; buying and marrying a wife were
synonymous. 88

From the 11th century to the 16th century, a woman lost her identity upon marriage and the law
denied her political power and status under the feudal doctrine of coverture.89

A husband had the right to chastise his wife and beat her if she misbehaved, allowing him to bring
order within the family.
90

This was supplanted by the marital unity theory, which espoused a similar concept. Upon marrying,
the woman becomes one with her husband. She had no right to make a contract, sue another, own
personal property or write a will.
91

II. The marital exemption rule

In the 17th century, Sir Matthew Hale (Hale), a Chief Justice in England, conceived the irrevocable
implied consent theory that would later on emerge as the marital exemption rule in rape. He stated
that:

[T]he husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their
mutual matrimonial consent and contract the wife hath given up herself in this kind unto her
husband, which she cannot retract. 92

The rule was observed in common law countries such as the United States of America (USA) and
England. It gives legal immunity to a man who forcibly sexually assaults his wife, an act which would
be rape if committed against a woman not his wife. In those jurisdictions, rape is traditionally
93

defined as "the forcible penetration of the body of a woman who is not the wife of the perpetrator." 94

The first case in the USA that applied the marital exemption rule was Commonwealth v.
Fogerty promulgated in 1857. The Supreme Judicial Court of Massachusetts pronounced that it
95

would always be a defense in rape to show marriage to the victim. Several other courts adhered to a
similar rationale with all of them citing Hale's theory as basis. 96

The rule was formally codified in the Penal Code of New York in 1909. A husband was endowed with
absolute immunity from prosecution for the rape of his wife. The privilege was personal and
97

pertained to him alone. He had the marital right to rape his wife but he will be liable when he aids or
abets another person in raping her. 98

In the 1970s, the rule was challenged by women's movements in the USA demanding for its abolition
for being violative of married women's right to be equally protected under rape laws. 99

In 1978, the rule was qualified by the Legislature in New York by proscribing the application of the
rule in cases where the husband and wife are living apart pursuant to a court order "which by its
terms or in its effects requires such living apart," or a decree, judgment or written agreement of
separation. 100

In 1983, the marital exemption rule was abandoned in New York when the Court of Appeals of New
York declared the same unconstitutional in People v. Liberta for lack of rational basis in
101

20
distinguishing between marital rape and non-marital rape. The decision, which also renounced
Hale's irrevocable implied consent theory, ratiocinated as follows:

We find that there is no rational basis for distinguishing between marital rape and nonmarital rape.
The various rationales which have been asserted in defense of the exemption are either based upon
archaic notions about the consent and property rights incident to marriage or are simply unable to
withstand even the slightest scrutiny. We therefore declare the marital exemption for rape in the New
York statute to be unconstitutional.

Lord Hale's notion of an irrevocable implied consent by a married woman to sexual intercourse has
been cited most frequently in support of the marital exemption. x x x Any argument based on a
supposed consent, however, is untenable. Rape is not simply a sexual act to which one party does
not consent. Rather, it is a degrading, violent act which violates the bodily integrity of the victim and
frequently causes severe, long-lasting physical and psychic harm x x x. To ever imply consent to
such an act is irrational and absurd. Other than in the context of rape statutes, marriage has never
been viewed as giving a husband the right to coerced intercourse on demand x x x. Certainly, then, a
marriage license should not be viewed as a license for a husband to forcibly rape his wife with
impunity. A married woman has the same right to control her own body as does an unmarried woman
x x x. If a husband feels "aggrieved" by his wife's refusal to engage in sexual intercourse, he should
seek relief in the courts governing domestic relations, not in "violent or forceful self-help x x x."

The other traditional justifications for the marital exemption were the common-law doctrines that a
woman was the property of her husband and that the legal existence of the woman was
"incorporated and consolidated into that of the husband x x x." Both these doctrines, of course, have
long been rejected in this State. Indeed, "[nowhere] in the common-law world - [or] in any modem
society - is a woman regarded as chattel or demeaned by denial of a separate legal identity and the
dignity associated with recognition as a whole human being x x x." (Citations omitted)
102

By 1993, marital rape was a crime in all 50 states, with 17 of them, as well as the District of
Columbia, outlawing the act without exemptions. Meanwhile, the 33 other states granted some
exemptions to a husband from prosecution such as when the wife is mentally or physically impaired,
unconscious, asleep, or legally unable to consent. 103

III. Marital Rape in the Philippines

Interestingly, no documented case on marital rape has ever reached this Court until now. It appears,
however, that the old provisions of rape under Article 335 of the RPC adhered to Hale's irrevocable
implied consent theory, albeit in a limited form. According to Chief Justice Ramon C. Aquino, a104

husband may not be guilty of rape under Article 335 of Act No. 3815 but, in case there is legal
separation, the husband should be held guilty of rape if he forces his wife to submit to sexual
intercourse.105

In 1981, the Philippines joined 180 countries in ratifying the United Nations Convention on the
Elimination of all Forms of Discrimination Against Women (UN-CEDAW). Hailed as the first
106

international women's bill of rights, the CEDAW is the first major instrument that contains a ban on all
forms of discrimination against women. The Philippines assumed the role of promoting gender
equality and women's empowerment as a vital element in addressing global concerns. The country
107

also committed, among others, to condemn discrimination against women in all its forms, and
agreed to pursue, by all appropriate means and without delay, a policy of eliminating discrimination
against women and, to this end, undertook:

21
 (a) To embody the principle of the equality of men and women in their national constitutions
or other appropriate legislation if not yet incorporated therein and to ensure, through law and
other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where
appropriate, prohibiting all discrimination against women;

xxxx

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws,
regulations, customs and practices which constitute discrimination against women;

(g) To repeal all national penal provisions which constitute discrimination against women. 108

In compliance with the foregoing international commitments, the Philippines enshrined the principle
of gender equality in the 1987 Constitution specifically in Sections 11 and 14 of Article II thereof,
thus:

Sec. 11. The State values the dignity of every human person and guarantees full respect for human
rights.

xxxx

Sec. 14. The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men. The Philippines also acceded to adopt and
implement the generally accepted principles of international law such as the CEDA W and its allied
issuances, viz:

Article II, Section 2. The Philippines renounces war as an instrument of national policy, and adopts
the generally accepted principles of international law as part of the law of the land and adheres to
the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. (Emphasis
ours)

The Legislature then pursued the enactment of laws to propagate gender equality. In 1997, R.A. No.
8353 eradicated the stereotype concept of rape in Article 335 of the RPC. The law reclassified rape
109

as a crime against person and removed it from the ambit of crimes against chastity. More particular
to the present case, and perhaps the law's most progressive proviso is the 2nd paragraph of Section
2 thereof recognizing the reality of marital rape and criminalizing its perpetration, viz:

Article 266-C. Effect of Pardon. - The subsequent valid marriage between the offended party shall
extinguish the criminal action or the penalty imposed.

In case it is the legal husband who is the offender, the subsequent forgiveness by the wife as the
offended party shall extinguish the criminal action or the penalty: Provided, That the crime shall not
be extinguished or the penalty shall not be abated if the marriage is void ab initio.

Read together with Section 1 of the law, which unqualifiedly uses the term "man" in defining rape, it
is unmistakable that R.A. No. 8353 penalizes the crime without regard to the rapist's legal
relationship with his victim, thus:

Article 266-A. Rape: When And How Committed. - Rape is committed:

22
1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though
none of the circumstances mentioned above be present.

The explicit intent to outlaw marital rape is deducible from the records of the deliberations of the 10th
Congress on the law's progenitor's, House Bill No. 6265 and Senate Bill No. 650. In spite of qualms
on tagging the crime as 'marital rape' due to conservative Filipino impressions on marriage, the
consensus of our lawmakers was clearly to include and penalize marital rape under the general
definition of 'rape,' viz:

MR. DAMASING: Madam Speaker, Your Honor, one more point

of clarification in the House version on Anti-Rape Bill, House Bill No. 6265, we never agreed to
marital rape. But under Article 266-C, it says here: "In case it is the legal husband who is the
offender... " Does this presuppose that there is now marital rape? x x x.

MR. LARA: x x x [I]n this jurisdiction, well, I only have a limited, very limited 17 years of private
practice in the legal profession, Madam Speaker, and I believe that I can put at stake my license as
a lawyer in this jurisdiction there is no law that prohibits a husband from being sued by the wife for
rape. Even jurisprudence, we don't have any jurisprudence that prohibits a wife from suing a
husband. That is why even if we don't provide in this bill expanding the definition of crime that is now
being presented for approval, Madam Speaker, even if we don't provide here for marital rape, even if
we don't provide for sexual rape, there is the right of the wife to go against the husband. The wife
can sue the husband for marital rape and she cannot be prevented from doing so because in this
jurisdiction there is no law that prohibits her from doing so. This is why we had to put second
paragraph of 266-C because it is the belief of many of us. x x x, that if it is true that in this jurisdiction
there is marital rape even if we don't provide it here, then we must provide for something that will
unify and keep the cohesion of the family together that is why we have the second paragraph.

MR. DAMASING: Madam Speaker, Your Honor, under the House version specifically House Bill No.
6265 our provision on a husband forcing the wife is not marital rape, it is marital sexual assault.

MR. LARA: That is correct, Madam Speaker.

MR. DAMASING: But here it is marital rape because there is no crime of sexual assault. So, Your
Honor, direct to the point, under Article 266-C, is it our understanding that in the second paragraph,
quote: "In case it is the legal husband who is the offender, this refers to marital rape filed against the
husband? Is that correct?

MR. LARA: No, Madam Speaker, not entirely, no. The answer is no.

MR. DAMASING: So if the husband is guilty of sexual assault, what do you call- it?

MR. LARA: Sexual assault, Madam Speaker.

23
MR. DAMASING: There is no crime of sexual assault, Your Honor, we have already stated that.
Because under 1 and 2 it is all denominated as rape, there is no crime of sexual assault. That is why
I am sorry that our House version which provided for sexual assault was not carried by the Senate
version because all sexual crimes under this bicameral conference committee report are all now
denominated as rape whether the penalty is from reclusion perpetua to death or whether the penalty
is only prision mayor. So there is marital rape, Your Honor, is that correct?

xxxx

MR. DAMASING: Madam Speaker, Your Honor, I am in favor of this. I am in favor of punishing the
husband who forces the wife even to 30 years imprisonment. But please do not call it marital rape,
call it marital sexual assault because of the sanctity of marriage. x x x. (Emphasis ours)
110

HON. APOSTOL: In our version, we did not mention marital rape but marital rape is not excluded.

HON. ROCO: Yeah. No. But I think there is also no specific mention.

HON. APOSTOL: No. No. No. Silent lang 'yung marital rape.

xxxx

HON. ROCO: xx x [I]f we can retain the effect of pardon, then this marital rape can be implicitly
contained in the second paragraph. x x x So marital rape actually was in the House version x x x.
But it was not another definition of rape. You will notice, it only says, that because you are the lawful
husband does not mean that you cannot commit rape. Theoretically, I mean, you can beat up your
wife until she's blue. And if the wife complains she was raped, I guess that, I mean, you just cannot
raise the defense x x x[:] I am the husband. But where in the marriage contract does it say that I can
beat you up? That's all it means. That is why if we stop referring to it as marital rape, acceptance is
easy. Because parang ang marital rape, married na nga kami. I cannot have sex. No, what it is
saying is you're [the] husband but you cannot beat me up. x x x. That's why to me it's not alarming. It
was just a way of saying you're [the] husband, you cannot say when I am charged with rape x x x.

PRESIDING OFFICER SHAHAN!: All right, so how do you propose it if we put it in[?]

HON. ROCO: x x x [A]ll we are saying [is] that if you are the lawful husband does not mean you can
have carnal knowledge by force[,] threat or intimidation or by depriving your wife reason, a grave
abuse of authority, I don't know how that cannot apply. Di ba yung, or putting an instrument into the,
yun ang sinasabi ko lang, it is not meant to have another classification of rape. It is all the same
definition x x x.

xxxx

HON.ROCO: What is 266-F? x x x. Now if we can retain 266-F x x x, we can say that this rule is
implicit already in the first proviso. It implies na there is an instance when a husband can be charged
[with] rape x x x.

HON. ROXAS: Otherwise, silent na.

HON. ROCO: Otherwise, we are silent na. So parang i-delete natin ito. But it is understood that this
rule of evidence is now transport[ed], put into 266-F, the effect of pardon.

24
PRESIDING OFFICER APOSTOL: We will retain this effect of pardon. We will remove marital rape.

HON. ROCO: No, yun ang, oo we will remove this one on page 3 but we will retain the one on page
8, the effect of pardon. x x x [I]t is inferred but we leave it because after all it is just a rule of
evidence. But I think we should understand that a husband cannot beat at his wife to have sex. Di
ha? I think that should be made clear. x x x.

xxxx

HON. ROCO: x x x [W]e are not defining a crime of marital rape. All we are saying is that if you're
[the] legal husband, Jesus Christ, don't beat up to have sex. I almost want, you are my wife, why do
you have to beat me up.

So, ganoon. So, if we both justify it that way in the Report as inferred in proviso, I mean, we can face
up, I hope, to the women and they would understand that it is half achieved.

HON. ZAMORA: I think, Raul, as long as we understand that we are not defining or creating a new
crime but instead, we are just defining a rule of evidence. x x x.

HON. ROCO: Then, in which case we may just want to clarify as a rule of evidence the fact that he is
husband is not, does not negate. 111

CHAIRMAN LARA: x x x We all agree on the substance of the point in discussion. The only
disagreement now is where to place it. Let us clear this matter. There are two suggestions now on
marital rape. One is that it is rape if it is done with force or intimidation or any of the circumstances
that would define rape x x x immaterial. The fact that the husband and wife are separated does not
come into the picture. So even if they are living under one roof x x x for as long as the attendant
circumstances of the traditional rape is present, then that is rape. 112

PRESIDING OFFICER ANGARA-CASTILLO: Mr. Chairman, x x x [t]his provision on marital rape, it

does not actually change the meaning of rape. It merely erases the doubt in anybody's mind,
whether or not rape can indeed be committed by the husband against the wife. So the bill really
says, you having been married to one another is not a legal impediment. So I don't really think there
is any need to change the concept of rape as defined presently under the revised penal code. This
do[es] not actually add anything to the definition of rape. It merely says, it is merely clarificatory. That
if indeed the wife has evidence to show that she was really brow beaten, or whatever or forced or
intimidated into having sexual intercourse against her will, then the crime of rape has been
committed against her by the husband, notwithstanding the fact that they have been legally married.
It does not change anything at all, Mr. Chairman.

PRESIDING OFFICER APOSTOL: Yes, I think, there is no change on this x x x. 113

The paradigm shift on marital rape in the Philippine jurisdiction is further affirmed by R.A. No.
9262, which regards rape within marriage as a form of sexual violence that may be committed by a
114

man against his wife within or outside the family abode, viz:

Violence against women and their children refers to any act or a series of acts committed by any
person against a woman who is his wife, former wife, or against a woman with whom the person has
or had a sexual or dating relationship, or with whom he has a common child, or against her child
whether legitimate or illegitimate, within or without the family abode, which result in or is likely to
result in. physical, sexual, psychological harm or suffering, or economic abuse including threats of

25
such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. It includes, but is
not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman
or her child. It includes, but is not limited to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as

a sex object, making demeaning and sexually suggestive remarks, physically
attacking the sexual parts of the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the
conjugal home or sleep together in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by
force, threat of force, physical or other harm or threat of physical or other harm or
coercion;

c) Prostituting the woman or child.

Statistical figures confirm the above characterization. Emotional and other forms of non-personal
violence are the most common type of spousal violence accounting for 23% incidence among ever-
married women. One in seven ever-married women experienced physical violence by their husbands
while eight percent (8%) experienced sexual violence. 115

IV. Refutation of the accused-appellant's arguments

The crux of the accused-appellant's plea for acquittal mirrors the irrevocable implied consent theory.
In his appeal brief before the CA, he posits that the two incidents of sexual intercourse, which gave
rise to the criminal charges for rape, were theoretically consensual, obligatory even, because he and
the victim, KKK, were a legally married and cohabiting couple. He argues that consent to copulation
is presumed between cohabiting husband and wife unless the contrary is proved.

The accused-appellant further claims that this case should be viewed and treated differently from
ordinary rape cases and that the standards for determining the presence of consent or lack thereof
must be adjusted on the ground that sexual community is a mutual right and obligation between
husband and wife. 116

The contentions failed to muster legal and rational merit.

The ancient customs and ideologies from which the irrevocable implied consent theory evolved have
already been superseded by modem global principles on the equality of rights between men and
women and respect for human dignity established in various international conventions, such as the
CEDAW. The Philippines, as State Party to the CEDAW, recognized that a change in the traditional
role of men as well as the role of women in society and in the family is needed to achieve full
equality between them. Accordingly, the country vowed to take all appropriate measures to modify
the social and cultural patterns of conduct of men and women, with a view to achieving the
elimination of prejudices, customs and all other practices which are based on the idea of the
inferiority or the superiority of either of the sexes or on stereotyped roles for men and women. One
117

of such measures is R.A. No 8353 insofar as it eradicated the archaic notion that marital rape cannot

26
exist because a husband has absolute proprietary rights over his wife's body and thus her consent to
every act of sexual intimacy with him is always obligatory or at least, presumed.

Another important international instrument on gender equality is the UN Declaration on the

Elimination of Violence Against Women, which was Promulgated by the UN General Assembly
118

subsequent to the CEDA W. The Declaration, in enumerating the forms of gender-based violence
that constitute acts of discrimination against women, identified 'marital rape' as a species of sexual
violence, viz:

Article 1

For the purposes of this Declaration, the term "violence against women" means any act of gender-
based violence that results in, or is likely to result in, physical, sexual or psychological harm or
suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty,
whether occurring in public or in private life.

Article 2

Violence against women shall be understood to encompass, but not be limited to, the following:

(a) Physical, sexual and psychological violence occurring in the family, including battering, sexual
abuse of female children in the household, dowry-related violence, marital rape, female genital
mutilation and other traditional practices harmful to women, non-spousal violence and violence
related to exploitation; (Emphasis ours)
119

Clearly, it is now acknowledged that rape, as a form of sexual violence, exists within marriage. A man
who penetrates her wife without her consent or against her will commits sexual violence upon her,
and the Philippines, as a State Party to the CEDA W and its accompanying Declaration, defines and
penalizes the act as rape under R.A. No. 8353.

A woman is no longer the chattel-antiquated practices labeled her to be. A husband who has sexual
intercourse with his wife is not merely using a property, he is fulfilling a marital consortium with a
fellow human being with dignity equal to that he accords himself. He cannot be permitted to violate
120

this dignity by coercing her to engage in a sexual act without her full and free consent. Surely, the
Philippines cannot renege on its international commitments and accommodate conservative yet
irrational notions on marital activities that have lost their relevance in a progressive society.
121

It is true that the Family Code, obligates the spouses to love one another but this rule sanctions
122

affection and sexual intimacy, as expressions of love, that are both spontaneous and mutual and 123

not the kind which is unilaterally exacted by force or coercion.

Further, the delicate and reverent nature of sexual intimacy between a husband and wife excludes
cruelty and coercion. Sexual intimacy brings spouses wholeness and oneness. It is a gift and a
participation in the mystery of creation. It is a deep sense of spiritual communion. It is a function
which enlivens the hope of procreation and ensures the continuation of family relations. It is an
expressive interest in each other's feelings at a time it is needed by the other and it can go a long
way in deepening marital relationship. When it is egoistically utilized to despoil marital union in
124

order to advance a felonious urge for coitus by force, violence or intimidation, the Court will step in to
protect its lofty purpose, vindicate justice and protect our laws and State policies. Besides, a
husband who feels aggrieved by his indifferent or uninterested wife's absolute refusal to engage in
sexual intimacy may legally seek the court's intervention to declare her psychologically incapacitated

27
to fulfill an essential marital obligation. But he cannot and should not demand sexual intimacy from
125

her coercively or violently.

Moreover, to treat marital rape cases differently from non-marital rape cases in terms of the elements
that constitute the crime and in the rules for their proof, infringes on the equal protection clause. The
Constitutional right to equal protection of the laws ordains that similar subjects should not be
126

treated differently, so as to give undue favor to some and unjustly discriminate against others; no
person or class of persons shall be denied the same protection of laws, which is enjoyed, by other
persons or other classes in like circumstances. 127

As above discussed, the definition of rape in Section 1 of R.A. No. 8353 pertains to: (a) rape, as
traditionally known; (b) sexual assault; and (c) marital rape or that where the victim is the
perpetrator's own spouse. The single definition for all three forms of the crime shows that the law
does not distinguish between rape committed in wedlock and those committed without a marriage.
Hence, the law affords protection to women raped by their husband and those raped by any other
man alike.

The posture advanced by the accused-appellant arbitrarily discriminates against married rape
victims over unmarried rape victims because it withholds from married women raped by their
husbands the penal redress equally granted by law to all rape victims.

Further, the Court adheres to and hereby adopts the rationale in Liberta in rejecting the argument
akin to those raised by herein accused-appellant. A marriage license should not be viewed as a
license for a husband to forcibly rape his wife with impunity. A married woman has the same right to
control her own body, as does an unmarried woman. She can give or withhold her consent to a
128

sexual intercourse with her husband and he cannot unlawfully wrestle such consent from her in case
she refuses.

Lastly, the human rights of women include their right to have control over and decide freely and
responsibly on matters related to their sexuality, including sexual and reproductive health, free of
coercion, discrimination and violence. Women do not divest themselves of such right by contracting
129

marriage for the simple reason that human rights are inalienable. 130

In fine, since the law does not separately categorize marital rape and non-marital rape nor provide
for different definition or elements for either, the Court, tasked to interpret and apply what the law
dictates, cannot trudge the forbidden sphere of judicial legislation and unlawfully divert from what the
law sets forth. Neither can the Court frame distinct or stricter evidentiary rules for marital rape cases
as it would inequitably burden its victims and unreasonably and irrationally classify them differently
from the victims of non-marital rape.

Indeed, there exists no legal or rational reason for the Court to apply the law and the evidentiary
rules on rape any differently if the aggressor is the woman's own legal husband. The elements and
quantum of proof that support a moral certainty of guilt in rape cases should apply uniformly
regardless of the legal relationship between the accused and his accuser.

Thus, the Court meticulously reviewed the present case in accordance with the established legal
principles and evidentiary policies in the prosecution and resolution of rape cases and found that no
reversible error can be imputed to the conviction meted the accused-appellant.

The evidence for the prosecution was

based on credible witnesses who gave
equally credible testimonies

28
In rape cases, the conviction of the accused rests heavily on the credibility of the victim. Hence, the
strict mandate that all courts must examine thoroughly the testimony of the offended party. While the
accused in a rape case may be convicted solely on the testimony of the complaining witness, courts
are, nonetheless, duty-bound to establish that their reliance on the victim's testimony is justified.
Courts must ensure that the testimony is credible, convincing, and otherwise consistent with human
nature. If the testimony of the complainant meets the test of credibility, the accused may be
convicted on the basis thereof. 131

It is settled that the evaluation by the trial court of the credibility of witnesses and their testimonies
are entitled to the highest respect. This is in view of its inimitable opportunity to directly observe the
witnesses and their deportment, conduct and attitude, especially during cross-examination. Thus,
unless it is shown that its evaluation was tainted with arbitrariness or certain facts of substance and
value have been plainly overlooked, misunderstood, or misapplied, the same will not be disturbed on
appeal.132

After approximating the perspective of the trial court thru a meticulous scrutiny of the entire records
of the trial proceedings and the transcript of each witnesses' testimony, the Court found no
justification to disturb its findings.

Rather, the Court observed that KKK and her testimony were both credible and spontaneous. Hailed
to the witness stand on six separate occasions, KKK never wavered neither did her statements
vacillate between uncertainty and certitude. She remained consistent, categorical, straightforward,
and candid during the rigorous cross-examination and on rebuttal examination, she was able to
convincingly explain and debunk the allegations of the defense.

She vividly recounted how the accused-appellant forced her to have sex with him despite her refusal
on October 16, 1998. He initially ordered her to sleep beside him in their conjugal bed by violently
throwing the cot where she was resting. In order not to aggravate his temper, KKK obeyed. On the
bed, he insinuated for them to have sex. When she rejected his advances due to abdominal pain
and headache, his request for intimacy transformed into a stubborn demand. Unyielding, KKK held
her panties but the accused-appellant forcibly pulled them down. The tug caused the small clothing
to tear apart. She reiterated that she was not feeling well and begged him to stop. But no amount of
resistance or begging subdued him. He flexed her two legs apart, gripped her hands, mounted her,
rested his own legs on hers and inserted his penis into her vagina. She continued pleading but he
never desisted. 133

Her accurate recollection of the second rape incident on October 1 7, 1998 is likewise unmistakable.
After the appalling episode in the conjugal bedroom the previous night, KKK decided to sleep in the
children's bedroom. While her daughters were fixing the beddings, the accused-appellant barged
into the room and berated her for refusing to go with him to their conjugal bedroom. When KKK
insisted to stay in the children's bedroom, the accused-appellant got angry and pulled her up.
MMM's attempt to pacify the accused-appellant further enraged him. He reminded them that as the
head of the family he could do whatever he wants with his wife. To demonstrate his role as patriarch,
he ordered the children to go out of the room and thereafter proceeded to force KKK into sexual
intercourse. He forcibly pulled down her short pants and panties as KKK begged "Dont do that to
me, my body is still aching and also my abdomen and I cannot do what you wanted me to do. I
cannot withstand sex." But her pleas fell on deaf ears. The accused-appellant removed his shorts
134

and briefs, spread KKK's legs apart, held her hands, mounted her and inserted his penis into her
vagina. After gratifying himself, he got dressed, left the room as he chuckled: "Its nice, that is what
you deserve because you are [a] flirt or fond of sex." 135

29
Entrenched is the rule that in the prosecution of rape cases, the essential element that must be
proved is the absence of the victim's consent to the sexual congress. 136

Under the law, consent is absent when: (a) it was wrestled from the victim by force, threat or
intimidation, fraudulent machinations or grave abuse of authority; or (b) the victim is incapable of
giving free and voluntary consent because he/she is deprived of reason or otherwise unconscious or
that the offended party is under 12 years of age or is demented.

Contrary to the accused-appellant's asseverations, KKK's consent was wrestled from her through
force and intimidation both of which were established beyond moral certainty by the prosecution
through the pertinent testimony of KKK, viz:

On the October 16, 1998 rape incident:

(Direct Examination)

ATTY. LARGO:

Q So, while you were already lying on the bed together with your husband, do you remember what
happened?

A He lie down beside me and asked me to have sex with him.

Q How did he manifest that he wanted to have sex with you?

A He put his hand on my lap and asked me to have sex with him but I warded off his hand.

Q Can you demonstrate to this Court how did he use his hand?

A Yes. "witness demonstrating on how the accused used his finger by touching or knocking her lap
which means that he wanted to have sex."

Q So, what did you do after that?

A I warded off his hand and refused because I was not feeling well. (at this juncture the witness is
sobbing)

Q So, what did your husband do when you refused him to have sex with you?

A He insisted and he pulled my pantie forcibly, that is why my pantie [sic] was tom.

Q Why, what did you do when he started to pull your pantie [sic]?

A I resisted and tried to hold my pantie [sic] but I failed, because he is so strong.

xx xx

Q So, when your pantie [sic] was tom by your husband, what else did he do?

A He flexed my two legs and rested his two legs on my legs.

30
Q So after that what else did he do?

A He succeeded in having sex with me because he held my two hands no matter how I wrestled but
I failed because he is stronger than me.

COURT: Make it of record that the witness is sobbing while she is giving her testimony.

ATTY. LARGO: (To the witness cont'ng.)

Q So, what did you do when your husband already stretched your two legs and rode on you and
held your two hands?

A I told him, "don't do that because I'm not feeling well and my whole body is aching."

Q How did you say that to your husband?

A I told him, "don't do that to me because I'm not feeling well."

Q Did you say that in the manner you are saying now?

xxxx

A I shouted when I uttered that words.

xxxx

Q Was your husband able to consummate his desire?

xxxx

A Yes, sir, because I cannot do anything. 137

(Cross-Examination)

ATTY. AMARGA;

Q Every time you have sex with your husband it was your husband normally remove your panty?

A Yes, Sir.

Q It was not unusual for your husband then to remove your panty because according to you he
normally do that if he have sex with you?

A Yes, Sir.

Q And finally according to you your husband have sex with you?

A Yes, Sir because he forcibly used me in spite of holding my panty because I don't want to have sex
with him at that time.

31
Q You did not spread your legs at that time when he removed your panty?

A Yes, Sir.

Q Meaning, your position of your legs was normal during that time?

A I tried to resist by not flexing my legs.

xxxx

Q At that time when your husband allegedly removed your panty he also remove your nightgown?

A No, Sir.

Q And he did pull out your duster [sic] towards your face?

A He raised my duster [sic] up.

Q In other words your face was covered when he raised your duster [sic]?

A No, only on the breast level. 138

On the October 17, 1998 rape incident:

(Direct Examination)

ATTY. LARGO

Q So, after your children went out of the room, what transpired?

A He successfully having sex with me because he pulled my short pant and pantie forcible.

Q So, what did you say when he forcibly pulled your short and pantie?

A I told him, "don't do that to me, my body is still aching and also my abdomen and I cannot do what
you wanted me to do. I cannot withstand sex."

Q So, what happened to your short when he forcibly pulled it down?

A It was tom.

Q And after your short and pantie was pulled down by your husband, what did he do?

A He also removed his short and brief and flexed my two legs and mounted on me and succeeded in
having sex with me. 139

The accused-appellant forced his wife when he knowingly overpowered her by gripping her hands,
flexing her legs and then resting his own legs thereon in order to facilitate the consummation of his
much-desired non-consensual sexual intercourse.

32
Records also show that the accused-appellant employed sufficient intimidation upon KKK. His
actuations prior to the actual moment of the felonious coitus revealed that he imposed his distorted
sense of moral authority on his wife. He furiously demanded for her to lay with him on the bed and
thereafter coerced her to indulge his sexual craving.

The fury the accused-appellant exhibited when KKK refused to sleep with him on their bed, when
she insisted to sleep in the children's bedroom and the fact that he exercises dominance over her as
husband all cowed KKK into submission.

The fact that KKK voluntarily went with the accused-appellant to their conjugal bedroom on October
16, 1998 cannot be stretched to mean that she consented to the forced sexual intercourse that
ensued. The accused-appellant was KKK's husband and hence it was customary for her to sleep in
the conjugal bedroom. No consent can be deduced from such act of KKK because at that juncture
there were no indications that sexual intercourse was about to take place. The issue of consent was
still irrelevant since the act for which the same is legally required did not exist yet or at least unclear
to the person from whom the consent was desired. The significant point when consent must be given
is at that time when it is clear to the victim that her aggressor is soliciting sexual congress. In this
case, that point is when the accused-appellant tapped his fingers on her lap, a gesture KKK
comprehended to be an invitation for a sexual intercourse, which she refused.

Resistance, medical certificate and blood traces.

We cannot give credence to the accused-appellant's argument that KKK should have hit him to
convey that she was resisting his sexual onslaught. Resistance is not an element of rape and the
law does not impose upon the victim the burden to prove resistance much more requires her to
140

raise a specific kind thereof.

At any rate, KKK put up persistent, audible and intelligible resistance for the accused-appellant to
recognize that she seriously did not assent to a sexual congress. She held on to her panties to
prevent him from undressing her, she refused to bend her legs and she repeatedly shouted and
begged for him to stop.

Moreover, as an element of rape, force or intimidation need not be irresistible; it may be just enough
to bring about the desired result. What is necessary is that the force or intimidation be sufficient to
consummate the purpose that the accused had in mind or is of such a degree as to impel the
141

defenseless and hapless victim to bow into submission. 142

Contrary to the accused-appellant's allusions, the absence of blood traces in KKK's panties or the
lack of a medical certificate do not negate rape. It is not the presence or absence of blood on the
victim's underwear that determines the fact of rape inasmuch as a medical certificate is
143

dispensable evidence that is not necessary to prove rape. These details do not pertain to the
144

elements that produce the gravamen of the offense that is -sexual intercourse with a woman against
her will or without her consent.145

The accused-appellant harps on the acquittal ruling in People v. Godoy, the evidentiary
146

circumstances of which are, however, disparate from those in the present case. In Godoy, the
testimony of the complainant was inherently weak, inconsistent, and was controverted by the
prosecution's medico-legal expert witness who stated that force was not applied based on the
position of her hymenal laceration. This led the Court to conclude that the absence of any sign of
physical violence on the victim's body is an indication of consent. Here, however, KKK's testimony
147

is, as discussed earlier, credible, spontaneous and forthright.

33
The corroborative testimonies of
MMM and OOO are worthy of credence.

The accused-appellant's assertion that MMM and OOO's testimonies lacked probative value as they
did not witness the actual rape is bereft of merit. It must be stressed that rape is essentially
committed in relative isolation, thus, it is usually only the victim who can testify with regard to the fact
of the forced sexual intercourse. Hence, the probative value of MMM and OOO's testimonies rest
148

not on whether they actually witnessed the rape but on whether their declarations were in harmony
with KKK's narration of the circumstances, preceding, subsequent to and concurrent with, the rape
incidents.

MMM and OOO's testimonies substantiated significant points in KKK's narration. MMM heard KKK
shouting and crying: "Eddie, don’t do that to me, have pity on me" on the night of October 16, 1998
149

shortly after KKK and the accused-appellant went to their conjugal bedroom. When MMM went
upstairs to check on her mother, the accused-appellant admonished her for meddling. Frustrated to
aid her mother who persistently cried, MMM kicked the door so hard the accused-appellant was
prompted to open it and rebuke MMM once more. OOO heard all these commotion from the room
downstairs.

MMM then saw her mother crouched on the bed, crying, with her hair disheveled while her tom panty
lay on the floor. After a brief struggle with the accused-appellant, MMM and KKK were finally able to
escape and retreat to the children's bedroom where KKK narrated to her daughters: "[Y]our father is
an animal, a beast; he forced me to have sex with him when I'm not feeling well. "

KKK gave a similar narration to MMM and OOO the following night after the accused-appellant
barged inside the children's bedroom. The couple had an argument and when MMM tried to
interfere, the accused-appellant ordered her and OOO to get out after bragging that he can have sex
with his wife even in front of the children because he is the head of the family. The girls then stayed
by the staircase where they afterwards heard their mother helplessly crying and shouting for the
accused-appellant to stop.

Indeed, the testimonies of KKK, MMM and OOO coherently depicted that the accused-appellant,
through the use of force and intimidation, had non-consensual and forced carnal knowledge of his
wife, KKK on the nights of October 16 and 17, 1998.

KKK's helpless screams and pleas from inside the bedroom coupled with her verbal and physical
resistance were clear manifestations of coercion. Her appearance when MMM saw her on the bed
after the accused appellant opened the door on October 16, 1998, her conduct towards the accused-
appellant on her way out of the room, and her categorical outcry to her children after the two
bedroom episodes - all generate the conclusion that the sexual acts that occurred were against her
will.

Failure to immediately report to the

police authorities, if satisfactorily
explained, is not fatal to the
credibility of a witness.

The testimonies of KKK and her daughters cannot be discredited merely because they failed to
report the rape incidents to the police authorities or that KKK belatedly filed the rape charges. Delay
or vacillation by the victims in reporting sexual assaults does not necessarily impair their credibility if
such delay is satisfactorily explained. 150

34
At that time, KKK and her daughters were not aware that a husband forcing his wife to submit to
sexual intercourse is considered rape. In fact, KKK only found out that she could sue his husband for
rape when Prosecutor Benjamin Tabique, Jr. (Prosecutor Tabique) told her about it when she filed
the separate charges for grave threats and physical injuries against the accused-appellant. 151

It must be noted that the incidents occurred a year into the effectivity of R.A. No. 8353 abolishing
marital exemption in rape cases hence it is understandable that it was not yet known to a layman as
opposed to legal professionals like Prosecutor Tabique. In addition, fear of reprisal thru social
humiliation which is the common factor that deter rape victims from reporting the crime to the
authorities is more cumbersome in marital rape cases. This is in view of the popular yet outdated
belief that it is the wife's absolute obligation to submit to her husband's carnal desires. A husband
raping his own wife is often dismissed as a peculiar occurrence or trivialized as simple domestic
trouble.

Unfamiliarity with or lack of knowledge of the law criminalizing marital rape, the stigma and public
scrutiny that could have befallen KKK and her family had the intervention of police authorities or
even the neighbors been sought, are acceptable explanations for the failure or delay in reporting the
subject rape incidents.

The victim -S testimony on the

witness stand rendered
unnecessary the presentation of her
complaint-affidavit as evidence.

The failure of the prosecution to present KKK's complaint-affidavit for rape is not fatal in view of the
credible, candid and positive testimony of KKK on the witness stand. Testimonial evidence carries
more weight than the affidavit since it underwent the rudiments of a direct, cross, re-direct and re-
cross examinations. Affidavits or statements taken ex parte are generally considered incomplete and
inaccurate. Thus, by nature, they are inferior to testimony given in court.
152

Ill motive imputed to the victim

The ill motive, which the accused-appellant imputed to KKK, does not inspire belief as it is riddled
with loopholes generated by incongruent and flimsy evidence. The prosecution was able to establish
that the ₱3 Million deposit in the spouses' bank account was the proceeds of their loan from the
Bank of Philippine Islands (BPI). Exhibit J, which is a BPI ML instruction sheet dated October 31,
1996 in the amount of ₱3,149,840.63 is the same amount the accused-appellant claimed to have
entrusted to her wife. Although the accused-appellant denied being aware of such loan, he admitted
that approximately ₱3 Million was spent for the construction of their house. These pieces of evidence
effectively belie the accused appellant's allegation that KKK could not account for the money
deposited in the bank. 153

Anent, KKK's alleged extra-marital affairs, the accused-appellant failed to explain how Bebs could be
his wife KKK when the letter-sender greeted Bebs a "happy birthday" on October 28 while KKK's
birthday is June 23. The accused-appellant also did not present Bebs herself, being a more
competent witness to the existence of the alleged love letters for KKK. He likewise failed, despite
promise to do so, to present the original copies of such love letters neither did he substantiate KKK's
supposed extra-marital affairs by presenting witnesses who could corroborate his claims. Further,
the Court finds it unbelievable that an able man would not have the temerity to confront his wife who
has fooled around with 10 men - some of whom he has even met. The accused-appellant's erratic
statements on the witness stand are inconsistent with the theory of extra-marital romance making it

35
reasonable to infer that he merely made up those malicious stories as a desperate ploy to extricate
himself out of this legal quandary.

At best, the basis of the alleged illicit affairs of KKK were the accused-appellant's unfounded
suspicions that hold no evidentiary weight in law and thus incompetent to destroy KKK's credibility
and that of her testimony. In sum, the defense failed to present sufficiently convincing evidence that
KKK is a mere vindictive wife who is harassing the accused-appellant with fabricated rape charges.

Alibi

It must be stressed that in raising the irrevocable implied consent theory as defense, the accused-
appellant has essentially admitted the facts of sexual intercourse embodied in the two criminal
informations for rape. This admission is inconsistent with the defense of alibi and any discussion
thereon will thus be irrelevant.

At any rate, the courts a quo correctly rejected his alibi.

Alibi is one of the weakest defenses not only because it is inherently frail and unreliable, but also
because it is easy to fabricate and difficult to check or rebut. It cannot prevail over the positive
identification of the accused by eyewitnesses who had no improper motive to testify falsely. 154

For the defense of alibi to prosper, the accused must prove not only that he was at some other place
at the time of the commission of the crime, but also that it was physically impossible for him to be at
the locus delicti or within its immediate vicinity. Physical impossibility refers not only to the
geographical distance between the place where the accused was and the place where the crime
was committed when the crime transpired, but more importantly, the facility of access between the
two places. 155

Even granting in arguendo that the accused-appellant had indeed attended a fiesta in Dangcagan,
Bukidnon or was hauling com with Equia on the dates of commission of the crime, the same will not
easily exonerate him. The accused-appellant failed to adduce clear and convincing evidence that it
was physically impossible for him to be at his residence in Cagayan de Oro City at the time of the
commission of the crime. Dangcagan, Bukidnon can be traversed by about four or five hours from
Cagayan de Oro City, and even less by private vehicle which was available to the accused appellant
at any time. Thus, it was not physically impossible for him to be at the situs criminis at the dates
156

and times when the two rape incidents were committed.

Between the accused-appellant's alibi and denial, and the positive identification and credible
testimony of the victim, and her two daughters, the Court must give weight to the latter, especially in
the absence of ill motive on their part to falsely testify against the accused-appellant.

Conclusion

All told, the presumption of innocence endowed an accused-appellant was sufficiently overcome by
KKK's clear, straightforward, credible, and truthful declaration that on two separate occasions, he
succeeded in having sexual intercourse with her, without her consent and against her will. Evidence
of overwhelming force and intimidation to consummate rape is extant from KKK's narration as
believably corroborated by the testimonies of MMM and OOO and the physical evidence of KKK's
tom panties and short pants. Based thereon, the reason and conscience of the Court is morally
certain that the accused-appellant is guilty of raping his wife on the nights of October 16 and 17,
1998.

36
 Penalties

The Court affirms the penalty of reclusion perpetua, for each count of rape, meted upon the
accused-appellant for being in accord with Article 266-A in relation to 266-B of the RPC. Further, he
shall not be eligible for parole pursuant to Section 3 of R.A. No. 9346, which states that "persons
convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to
reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4180,
otherwise known as the Indeterminate Sentence Law, as amended." 157

The Court sustains the moral damages awarded in the amount of ₱50,000.00. Moral damages are
granted to rape victims without need of proof other than the fact of rape under the assumption that
the victim suffered moral injuries from the experience she underwent. 158

The award of civil indemnity is proper; it is mandatory upon the finding that rape took
place. Considering that the crime committed is simple rape, there being no qualifying circumstances
1âwphi1

attendant in its commission, the appropriate amount is ₱50,000.00 and not ₱75,000.00 as awarded
159

by the RTC.

To serve as an example for public good and in order to deter a similar form of domestic violence, an
award of ₱30,000.00 as exemplary damages is imperative. 160

The damages awarded shall earn legal interest at the rate of six percent (6%) per annum to be
reckoned from the date of finality of this judgment until fully paid.
161

A Final Note

Rape is a crime that evokes global condemnation because it is an abhorrence to a woman's value
and dignity as a human being. It respects no time, place, age, physical condition or social status. It
can happen anywhere and it can happen to anyone. Even, as shown in the present case, to a wife,
inside her time-honored fortress, the family home, committed against her by her husband who
vowed to be her refuge from cruelty. The herein pronouncement is an affirmation to wives that our
rape laws provide the atonement they seek from their sexually coercive husbands.

Husbands are once again reminded that marriage is not a license to forcibly rape their wives. A
husband does not own his wife's body by reason of marriage. By marrying, she does not divest
herself of the human right to an exclusive autonomy over her own body and thus, she can lawfully
opt to give or withhold her consent to marital coitus. A husband aggrieved by his wife's unremitting
refusal to engage in sexual intercourse cannot resort to felonious force or coercion to make her
yield. He can seek succor before the Family Courts that can determine whether her refusal
constitutes psychological incapacity justifying an annulment of the marriage.

Sexual intimacy is an integral part of marriage because it is the spiritual and biological communion
that achieves the marital purpose of procreation. It entails mutual love and self-giving and as such it
contemplates only mutual sexual cooperation and never sexual coercion or imposition.

The Court is aware that despite the noble intentions of the herein pronouncement, menacing
personalities may use this as a tool to harass innocent husbands. In this regard, let it be stressed
that safeguards in the criminal justice system are in place to spot and scrutinize fabricated or false
marital rape complaints and any person who institutes untrue and malicious charges will be made
answerable under the pertinent provisions of the RPC and/or other laws.

37
WHEREFORE, all the foregoing considered, the Decision dated July 9, 2008 of the Court of Appeals
in CA-G.R. CR-HC No. 00353 is hereby AFFIRMED with MODIFICATIONS. Accused-appellant
Edgar Jumawan is found GUILTY beyond reasonable doubt of two (2) counts of RAPE and is
sentenced to suffer the penalty of reclusion perpetua for each count, without eligibility for parole. He
is further ordered to pay the victim, KKK, the amounts of PS0,000.00 as civil indemnity, ₱50,000.00
as moral damages, and ₱30,000.00 as exemplary damages, for each count of rape. The award of
damages shall earn legal interest at the rate of six percent (6%) per annum from the finality of this
judgment until fully paid.

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice
Chairperson

TERESITA J. LEONARDO-DE CASTRO LUCAS P. BERSMAIN

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice

C E RTI F I CATI O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

38
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 11263 November 2, 1916

ELOISA GOITIA DE LA CAMARA, plaintiff-appellant,

vs.
JOSE CAMPOS RUEDA, defendant-appellee.

Eduardo Gutierrez Repide and Felix Socias for appellant.

Sanz, Opisso and Luzuriaga for appellee.

TRENT, J.:

This is an action by the wife against her husband for support outside of the conjugal domicile. From
a judgment sustaining the defendant's demurrer upon the ground that the facts alleged in the
complaint do not state a cause of action, followed by an order dismissing the case after the plaintiff
declined to amend, the latter appealed.

It was urged in the first instance, and the court so held, that the defendant cannot be compelled to
support the plaintiff, except in his own house, unless it be by virtue of a judicial decree granting her a
divorce or separation from the defendant.

The parties were legally married in the city of Manila on January 7, 1915, and immediately thereafter
established their residence at 115 Calle San Marcelino, where they lived together for about a month,
when the plaintiff returned to the home of her parents. The pertinent allegations of the complaint are
as follows:

That the defendant, one month after he had contracted marriage with the plaintiff, demanded
of her that she perform unchaste and lascivious acts on his genital organs; that the plaintiff
spurned the obscene demands of the defendant and refused to perform any act other than
legal and valid cohabitation; that the defendant, since that date had continually on other
successive dates, made similar lewd and indecorous demands on his wife, the plaintiff, who
always spurned them, which just refusals of the plaintiff exasperated the defendant and
induce him to maltreat her by word and deed and inflict injuries upon her lips, her face and
different parts of her body; and that, as the plaintiff was unable by any means to induce the
defendant to desist from his repugnant desires and cease from maltreating her, she was
obliged to leave the conjugal abode and take refuge in the home of her parents.

Marriage in this jurisdiction is a contract entered into in the manner and with the solemnities
established by General Orders No. 68, in so far as its civil effects are concerned requiring the

39
consent of the parties. (Garcia vs. Montague, 12 Phil. Rep., 480, citing article 1261 of Civil Code.)
Upon the termination of the marriage ceremony, a conjugal partnership is formed between the
parties. (Sy Joc Lieng vs. Encarnacion, 16 Phil. Rep., 137.) To this extent a marriage partakes of the
nature of an ordinary contract. But it is something more than a mere contract. It is a new relation, the
rights, duties, and obligations of which rest not upon the agreement of the parties but upon the
general law which defines and prescribes those rights, duties, and obligations .Marriage is an
institution, in the maintenance of which in its purity the public is deeply interested. It is a relation for
life and the parties cannot terminate it at any shorter period by virtue of any contract they may
make .The reciprocal rights arising from this relation, so long as it continues, are such as the law
determines from time to time, and none other. When the legal existence of the parties is merged into
one by marriage, the new relation is regulated and controlled by the state or government upon
principles of public policy for the benefit of society as well as the parties. And when the object of a
marriage is defeated by rendering its continuance intolerable to one of the parties and productive of
no possible good to the community, relief in some way should be obtainable. With these principles to
guide us, we will inquire into the status of the law touching and governing the question under
consideration.

Articles 42 to 107 of the Civil Code are not in force in the Philippine Islands (Benedicto vs. De la
Rama, 3 Phil .Rep., 34). Articles 44 to 78 of the Law of Civil Marriage of 1870, in force in the
Peninsula, were extended to the Philippine Islands by royal decree on April 13, 1883 (Ebreo vs.
Sichon, 4 Phil. Rep., 705). Articles 44, 45, and 48 of this law read:

ART. 44. The spouses are obliged to be faithful to each other and to mutually assist each
other.

ART. 45. The husband must live with and protect his wife. (The second paragraph deals with
the management of the wife's property.)

ART. 48. The wife must obey her husband, live with him, and follow him when he charges his
domicile or residence.

Notwithstanding the provisions of the foregoing paragraph, the court may for just cause
relieve her from this duty when the husband removes his residence to a foreign country.

And articles 143 and 149 of the Civil Code are as follows:

ART. 143. The following are obliged to support each other reciprocally to the whole extent
specified in the preceding article.

1. The consorts.

xxx xxx xxx

ART. (149) 49. The person obliged to give support may, at his option, satisfy it, either by
paying the pension that may be fixed or by receiving and maintaining in his own home the
person having the right to the same.

Article 152 of the Civil Code gives the instances when the obligation to give support shall cease. The
failure of the wife to live with her husband is not one of them.

40
The above quoted provisions of the Law of Civil Marriage and the Civil Code fix the duties and
obligations of the spouses. The spouses must be faithful to, assist, and support each other. The
husband must live with and protect his wife. The wife must obey and live with her husband and
follow him when he changes his domicile or residence, except when he removes to a foreign country.
But the husband who is obliged to support his wife may, at his option, do so by paying her a fixed
pension or by receiving and maintaining her in his own home. May the husband, on account of his
conduct toward his wife, lose this option and be compelled to pay the pension? Is the rule
established by article 149 of the Civil Code absolute? The supreme court of Spain in its decision of
December 5, 1903, held:.

That in accordance with the ruling of the supreme court of Spain in its decisions dated May
11, 1897, November 25, 1899, and July 5, 1901, the option which article 149 grants the
person, obliged to furnish subsistence, between paying the pension fixed or receiving and
keeping in his own house the party who is entitled to the same, is not so absolute as to
prevent cases being considered wherein, either because this right would be opposed to the
exercise of a preferential right or because of the existence of some justifiable cause morally
opposed to the removal of the party enjoying the maintenance, the right of selection must be
understood as being thereby restricted.

Whereas the only question discussed in the case which gave rise to this appeal was whether
there was any reason to prevent the exercise of the option granted by article 149 of the Civil
Code to the person obliged to furnish subsistence, to receive and maintain in his own house
the one who is entitled to receive it; and inasmuch as nothing has been alleged or discussed
with regard to the parental authority of Pedro Alcantara Calvo, which he ha not exercised,
and it having been set forth that the natural father simply claims his child for the purpose of
thus better attending to her maintenance, no action having been taken by him toward
providing the support until, owing to such negligence, the mother was obliged to demand it; it
is seen that these circumstances, together with the fact of the marriage of Pedro Alcantara,
and that it would be difficult for the mother to maintain relations with her daughter, all
constitute an impediment of such a nature as to prevent the exercise of the option in the
present case, without prejudice to such decision as may be deemed proper with regard to
the other questions previously cited in respect to which no opinion should be expressed at
this time.

The above was quoted with approval in United States and De Jesus vs. Alvir (9 Phil. Rep., 576),
wherein the court held that the rule laid down in article 149 of the Civil Code "is not absolute." but it
is insisted that there existed a preexisting or preferential right in each of these cases which was
opposed to the removal of the one entitled to support. It is true that in the first the person claiming
the option was the natural father of the child and had married a woman other than the child's mother,
and in the second the right to support had already been established by a final judgment in a criminal
case. Notwithstanding these facts the two cases clearly established the proposition that the option
given by article 149 of the Civil Code may not be exercised in any and all cases.

Counsel for the defendant cite, in support of their contention, the decision of the supreme court of
Spain, dated November 3, 1905. In this case Don Berno Comas, as a result of certain business
reverses and in order no to prejudice his wife, conferred upon her powers to administer and dispose
of her property. When she left him he gave her all the muniments of title, mortgage credits, notes,
P10,000 in accounts receivable, and the key to the safe in which he kept a large amount of jewels,
thus depriving himself of all his possessions and being reduced in consequence to want.
Subsequently he instituted this civil action against his wife, who was then living in opulence, for
support and the revocation of the powers heretofore granted in reference to the administration and
disposal of her property. In her answer the wife claimed that the plaintiff (her husband) was not

41
legally in a situation to claim support and that the powers voluntarily conferred and accepted by her
were bilateral and could not be canceled by the plaintiff. From a judgment in favor of the plaintiff the
defendant wife appealed to the Audencia Territorial wherein, after due trial, judgment was rendered
in her favor dismissing the action upon the merits. The plaintiff appealed to the supreme court and
that high tribunal, in affirming the judgment of the Audencia Territorial, said:

Considering that article 143, No. 1, of the Civil Code, providing that the spouses are mutually
obliged to provide each other with support, cannot but be subordinate to the other provisions
of said Code which regulates the family organization and the duties of spouses not legally
separated, among which duties are those of their living together and mutually helping each
other, as provided in article 56 of the aforementioned code; and taking this for granted, the
obligation of the spouse who has property to furnish support to the one who has no property
and is in need of it for subsistence, is to be understood as limited to the case where, in
accordance with law, their separation has been decreed, either temporarily or finally and this
case, with respect to the husband, cannot occur until a judgment of divorce is rendered,
since, until then, if he is culpable, he is not deprived of the management of his wife's property
and of the product of the other property belonging to the conjugal partnership; and

Considering that, should the doctrine maintained in the appeal prevail, it would allow married
persons to disregard the marriage bond and separate from each other of their own free will,
thus establishing, contrary to the legal provision contained in said article 56 of the Civil Code,
a legal status entirely incompatible with the nature and effects of marriage in disregard of the
duties inherent therein and disturbing the unity of the family, in opposition to what the law, in
conformity with good morals, has established; and.

Considering that, as the spouses D. Ramon Benso and Doña Adela Galindo are not legally
separated, it is their duty to live together and afford each other help and support; and for this
reason, it cannot be held that the former has need of support from his wife so that he may
live apart from her without the conjugal abode where it is his place to be, nor of her
conferring power upon him to dispose even of the fruits of her property in order therewith to
pay the matrimonial expenses and, consequently, those of his own support without need of
going to his wife; wherefore the judgment appealed from, denying the petition of D. Ramon
Benso for support, has not violated the articles of the Civil Code and the doctrine invoked in
the assignments of error 1 and 5 of the appeal.

From a careful reading of the case just cited and quoted from it appears quite clearly that the
spouses separated voluntarily in accordance with an agreement previously made. At least there are
strong indications to this effect, for the court says, "should the doctrine maintained in the appeal
prevail, it would allow married persons to disregard the marriage bond and separate from each other
of their own free will." If this be the true basis upon which the supreme court of Spain rested its
decision, then the doctrine therein enunciated would not be controlling in cases where one of the
spouses was compelled to leave the conjugal abode by the other or where the husband voluntarily
abandons such abode and the wife seeks to force him to furnish support. That this is true appears
from the decision of the same high tribunal, dated October 16, 1903. In this case the wife brought an
action for support against her husband who had willfully and voluntarily abandoned the conjugal
abode without any cause whatever. The supreme court, reversing the judgment absolving the
defendant upon the ground that no action for divorce, etc., had been instituted, said:

In the case at bar, it has been proven that it was Don Teodoro Exposito who left the conjugal
abode, although he claims, without however proving his contention, that the person
responsible for this situation was his wife, as she turned him out of the house. From this
state of affairs it results that it is the wife who is party abandoned, the husband not having

42
 prosecuted any action to keep her in his company and he therefore finds himself, as long as
he consents to the situation, under the ineluctable obligation to support his wife in fulfillment
of the natural duty sanctioned in article 56 of the Code in relation with paragraph 1 of article
143. In not so holding, the trial court, on the mistaken ground that for the fulfillment of this
duty the situation or relation of the spouses should be regulated in the manner it indicates,
has made the errors of law assigned in the first three grounds alleged, because the nature of
the duty of affording mutual support is compatible and enforcible in all situations, so long as
the needy spouse does not create any illicit situation of the court above described. lawphil.net

If we are in error as to the doctrine enunciated by the supreme court of Spain in its decision of
November 3, 1905, and if the court did hold, as contended by counsel for the defendant in the case
under consideration, that neither spouse can be compelled to support the other outside of the
conjugal abode, unless it be by virtue of a final judgment granting the injured one a divorce or
separation from the other, still such doctrine or holding would not necessarily control in this
jurisdiction for the reason that the substantive law is not in every particular the same here as it is in
Spain. As we have already stated, articles 42 to 107 of the Civil Code in force in the Peninsula are
not in force in the Philippine Islands. The law governing the duties and obligations of husband and
wife in this country are articles 44 to 78 of the Law of Civil Marriage of 1870 .In Spain the
complaining spouse has, under article 105 of the Civil Code, various causes for divorce, such as
adultery on the part of the wife in every case and on the part of the husband when public scandal or
disgrace of the wife results therefrom; personal violence actually inflicted or grave insults: violence
exercised by the husband toward the wife in order to force her to change her religion; the proposal of
the husband to prostitute his wife; the attempts of the husband or wife to corrupt their sons or to
prostitute their daughters; the connivance in their corruption or prostitution; and the condemnation of
a spouse to perpetual chains or hard labor, while in this jurisdiction the only ground for a divorce is
adultery. (Benedicto vs. De la Rama, 3 Phil .Rep., 34, 45.) This positive and absolute doctrine was
announced by this court in the case just cited after an exhaustive examination of the entire subject.
Although the case was appealed to the Supreme Court of the United States and the judgment
rendered by this court was there reversed, the reversal did not affect in any way or weaken the
doctrine in reference to adultery being the only ground for a divorce. And since the decision was
promulgated by this court in that case in December, 1903, no change or modification of the rule has
been announced. It is, therefore, the well settled and accepted doctrine in this jurisdiction.

But it is argued that to grant support in an independent suit is equivalent to granting divorce or
separation, as it necessitates a determination of the question whether the wife has a good and
sufficient cause for living separate from her husband; and, consequently, if a court lacks power to
decree a divorce, as in the instant case, power to grant a separate maintenance must also be
lacking. The weakness of this argument lies in the assumption that the power to grant support in a
separate action is dependent upon a power to grant a divorce. That the one is not dependent upon
the other is apparent from the very nature of the marital obligations of the spouses. The mere act of
marriage creates an obligation on the part of the husband to support his wife. This obligation is
founded not so much on the express or implied terms of the contract of marriage as on the natural
and legal duty of the husband; an obligation, the enforcement of which is of such vital concern to the
state itself that the laws will not permit him to terminate it by his own wrongful acts in driving his wife
to seek protection in the parental home. A judgment for separate maintenance is not due and
payable either as damages or as a penalty; nor is it a debt in the strict legal sense of the term, but
rather a judgment calling for the performance of a duty made specific by the mandate of the
sovereign. This is done from necessity and with a view to preserve the public peace and the purity of
the wife; as where the husband makes so base demands upon his wife and indulges in the habit of
assaulting her. The pro tanto separation resulting from a decree for separate support is not an
impeachment of that public policy by which marriage is regarded as so sacred and inviolable in its
nature; it is merely a stronger policy overruling a weaker one; and except in so far only as such
separation is tolerated as a means of preserving the public peace and morals may be considered, it

43
does not in any respect whatever impair the marriage contract or for any purpose place the wife in
the situation of a feme sole.

The foregoing are the grounds upon which our short opinion and order for judgment, heretofore filed
in this case, rest.

Torres, Johnson and Carson, JJ., concur.

Separate Opinions

MORELAND, J., concurring:

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

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

44
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-4089 January 12, 1909

ARTURO PELAYO, plaintiff-appellant,

vs.
MARCELO LAURON, ET AL., defendants-appellees.

J.H. Junquera, for appellant.

Filemon Sotto, for appellee.

TORRES, J.:

On the 23rd of November, 1906, Arturo Pelayo, a physician residing in Cebu, filed a complaint
against Marcelo Lauron and Juana Abella setting forth that on or about the 13th of October of said
year, at night, the plaintiff was called to the house of the defendants, situated in San Nicolas, and
that upon arrival he was requested by them to render medical assistance to their daughter-in-law
who was about to give birth to a child; that therefore, and after consultation with the attending
physician, Dr. Escaño, it was found necessary, on account of the difficult birth, to remove the fetus by
means of forceps which operation was performed by the plaintiff, who also had to remove the
afterbirth, in which services he was occupied until the following morning, and that afterwards, on the
same day, he visited the patient several times; that the just and equitable value of the services
rendered by him was P500, which the defendants refuse to pay without alleging any good reason
therefor; that for said reason he prayed that the judgment be entered in his favor as against the
defendants, or any of them, for the sum of P500 and costs, together with any other relief that might
be deemed proper.

In answer to the complaint counsel for the defendants denied all of the allegation therein contained
and alleged as a special defense, that their daughter-in-law had died in consequence of the said
childbirth, and that when she was alive she lived with her husband independently and in a separate
house without any relation whatever with them, and that, if on the day when she gave birth she was
in the house of the defendants, her stay their was accidental and due to fortuitous circumstances;
therefore, he prayed that the defendants be absolved of the complaint with costs against the plaintiff.

The plaintiff demurred to the above answer, and the court below sustained the demurrer, directing
the defendants, on the 23rd of January, 1907, to amend their answer. In compliance with this order
the defendants presented, on the same date, their amended answer, denying each and every one of
the allegations contained in the complaint, and requesting that the same be dismissed with costs.

As a result of the evidence adduced by both parties, judgment was entered by the court below on
the 5th of April, 1907, whereby the defendants were absolved from the former complaint, on account

45
of the lack of sufficient evidence to establish a right of action against the defendants, with costs
against the plaintiff, who excepted to the said judgment and in addition moved for a new trial on the
ground that the judgment was contrary to law; the motion was overruled and the plaintiff excepted
and in due course presented the corresponding bill of exceptions. The motion of the defendants
requesting that the declaration contained in the judgment that the defendants had demanded
therefrom, for the reason that, according to the evidence, no such request had been made, was also
denied, and to the decision the defendants excepted.

Assuming that it is a real fact of knowledge by the defendants that the plaintiff, by virtue of having
been sent for by the former, attended a physician and rendered professional services to a daughter-
in-law of the said defendants during a difficult and laborious childbirth, in order to decide the claim of
the said physician regarding the recovery of his fees, it becomes necessary to decide who is bound
to pay the bill, whether the father and mother-in-law of the patient, or the husband of the latter.

According to article 1089 of the Civil Code, obligations are created by law, by contracts, by quasi-
contracts, and by illicit acts and omissions or by those in which any kind of fault or negligence
occurs.

Obligations arising from law are not presumed. Those expressly determined in the code or in special
laws, etc., are the only demandable ones. Obligations arising from contracts have legal force
between the contracting parties and must be fulfilled in accordance with their stipulations. (Arts.
1090 and 1091.)

The rendering of medical assistance in case of illness is comprised among the mutual obligations to
which the spouses are bound by way of mutual support. (Arts. 142 and 143.)

If every obligation consists in giving, doing or not doing something (art. 1088), and spouses are
mutually bound to support each other, there can be no question but that, when either of them by
reason of illness should be in need of medical assistance, the other is under the unavoidable
obligation to furnish the necessary services of a physician in order that health may be restored, and
he or she may be freed from the sickness by which life is jeopardized; the party bound to furnish
such support is therefore liable for all expenses, including the fees of the medical expert for his
professional services. This liability originates from the above-cited mutual obligation which the law
has expressly established between the married couple.

In the face of the above legal precepts it is unquestionable that the person bound to pay the fees
due to the plaintiff for the professional services that he rendered to the daughter-in-law of the
defendants during her childbirth, is the husband of the patient and not her father and mother- in-law,
the defendants herein. The fact that it was not the husband who called the plaintiff and requested his
assistance for his wife is no bar to the fulfillment of the said obligation, as the defendants, in view of
the imminent danger, to which the life of the patient was at that moment exposed, considered that
medical assistance was urgently needed, and the obligation of the husband to furnish his wife in the
indispensable services of a physician at such critical moments is specially established by the law, as
has been seen, and compliance therewith is unavoidable; therefore, the plaintiff, who believes that
he is entitled to recover his fees, must direct his action against the husband who is under obligation
to furnish medical assistance to his lawful wife in such an emergency.

From the foregoing it may readily be understood that it was improper to have brought an action
against the defendants simply because they were the parties who called the plaintiff and requested
him to assist the patient during her difficult confinement, and also, possibly, because they were her
father and mother-in-law and the sickness occurred in their house. The defendants were not, nor are
they now, under any obligation by virtue of any legal provision, to pay the fees claimed, nor in

46
consequence of any contract entered into between them and the plaintiff from which such obligation
might have arisen.

In applying the provisions of the Civil Code in an action for support, the supreme court of Spain,
while recognizing the validity and efficiency of a contract to furnish support wherein a person bound
himself to support another who was not his relative, established the rule that the law does impose
the obligation to pay for the support of a stranger, but as the liability arose out of a contract, the
stipulations of the agreement must be held. (Decision of May 11, 1897.)

Within the meaning of the law, the father and mother-in-law are strangers with respect to the
obligation that devolves upon the husband to provide support, among which is the furnishing of
medical assistance to his wife at the time of her confinement; and, on the other hand, it does not
appear that a contract existed between the defendants and the plaintiff physician, for which reason it
is obvious that the former can not be compelled to pay fees which they are under no liability to pay
because it does not appear that they consented to bind themselves.

The foregoing suffices to demonstrate that the first and second errors assigned to the judgment
below are unfounded, because, if the plaintiff has no right of action against the defendants, it is
needless to declare whether or not the use of forceps is a surgical operation.

Therefore, in view of the consideration hereinbefore set forth, it is our opinion that the judgment
appealed from should be affirmed with the costs against the appellant. So ordered.

Mapa and Tracey, JJ., concur.

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

47