EN BANC

[G.R. No. L-23482. August 30, 1968.]

ALFONSO LACSON , petitioner, vs . CARMEN SAN JOSE-LACSON and

the COURT OF APPEALS , respondents.

[G.R. No. L-23767. August 30, 1968.]

CARMEN SAN JOSE-LACSON, plaintiff-appellant, vs . ALFONSO

LACSON, defendant-appellee.

[G.R. No. L-24259. August 30, 1968.]

ALFONSO LACSON, petitioner-appellee, vs . CARMEN SAN JOSE-

LACSON, petitioner-appellant.

Paredes, Poblador, Cruz & Nazareno for respondent-appellant Carmen San Jose-
Lacson.
Norberto Quisumbing for petitioner-appellee Alfonso Lacson.

SYLLABUS

1. CIVIL LAW; HUSBAND AND WIFE; SEPARATION OF SPOUSES;

SEPARATION OF PROPERTY AND DISSOLUTION OF THE CONJUGAL PARTNERSHIP;
PROPRIETY OF THE COMPROMISE AGREEMENT RELATIVE THERETO IN INSTANT
CASE. — The law allows separation of property of the spouses and the dissolution of
their conjugal partnership provided judicial sanction is secured before hand. In the case
at bar, the spouses obtained judicial imprimatur of their separation of property and the
dissolution of their conjugal partnership. It does not appear that they have creditors
who will be prejudiced by the said agreements. It is likewise undisputed that the couple
have been separated in fact for at least ve years. Inasmuch as a lengthy separation
has supervened between them, the propriety of severing their nancial and propriety
interests is manifest.
2. ID.; ID.; ID.; ID.; EFFECT THEREOF ON DE FACTO SEPARATION OF
SPOUSES. — In so approving the regime of separation of property of the spouses and
the dissolution of their conjugal partnership, this Court does not thereby accord
recognition to nor legalize the de facto separation of the spouses, which — in the
language of Arroyo v. Vasquez de Arroyo, 42 Phil. 54. 60) — is a "state which is
abnormal and fraught with grave danger to all concerned."
3. ID.; ID.; ID.; CUSTODY OF CHILDREN; CHILD BELOW THE AGE OF 7
CANNOT BE SEPARATED FROM ITS MOTHER; RATIONALE. — The Civil Code
speci cally commands in the second sentence of its article 363 that "No mother shall
be separated from her child under seven years of age, unless the court nds compelling
reasons for such measure." The rationale of this new provision was explained by the
Code Commission thus: "The general rule is recommended in order to avoid many a
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 tragedy where a mother has seen her baby torn away from her. No man can sound the
deep sorrows of a mother who is deprived of her child of tender age. The exception
allowed by the rule has to be for `compelling reasons' for the good of the child: those
cases must indeed be rare, if the mother's heart is not to be unduly hurt. If she has
erred, as in cases of adultery, the penalty of imprisonment and the (relative) divorce
decree will ordinarily be su cient punishment for her. Moreover, her moral dereliction
will not have any effect upon the baby who is as yet unable to understand the situation."
(Report of the Code Commission, p. 12)
4. ID.; ID.; ID.; ID.; ID.; CFI ORDER AWARDING CUSTODY OF TWO CHILDREN
BELOW THE AGE OF 7 TO THEIR FATHER, VOID. — The order dated April 27, 1963 of
the CFI, in so far as it awarded custody of the two older children who were 6 and 5
years old, respectively, to the father, in effect sought to separate them from their
mother. To that extent therefore, it was null and void because it was clearly violative of
Art. 363 of the Civil Code. Neither does the said award of custody fall within the
exception because the record is bereft of any compelling reason to support the lower
court's order depriving the wife of her minor children's company.
5. ID.; ID.; ID.; ID.; COURTS TO DETERMINE WHICH SPOUSE HAS BETTER
RIGHT TO CUSTODY OF THE CHILDREN; CASE AT BAR. — It is clear that Art. 356 of the
Civil Code grants to every child rights which are not and should not be dependent solely
on the wishes, much less the whims and caprices, of his parents. His welfare should not
be subject to the parents' say-so or mutual agreement alone. Where, as in this case, the
parents are already separated in fact, the courts must step in to determine in whose
custody the child can better be assured the rights granted to him by law. The need,
therefore, to present evidence regarding this matter, becomes imperative. A careful
scrutiny of the records reveals that no such evidence was introduced in the CFI. This
latter court relied merely on the mutual agreement of the spouses — parents. To be
sure, this was not a su cient basis to determine the tness of each parent to be the
custodian of the children.
6. ID.; ID.; ID.; ID.; CHILD OVER 10 CAN CHOOSE PARENT; EXCEPTION. — In
the case at bar, at least one of the children - Enrique, the eldest — is now eleven years of
age and should be given the choice of the parent he wishes to live with. This is the clear
mandate of Sec. 6, Rule 99 of the Rules of Court which permits a child, in case its
mother and lather divorced or are living separately, "to choose which parent it prefers to
live with if it be over ten years of age, unless the parent so chosen be un t to take
charge of the child by reason of moral depravity, habitual drunkenness, incapacity, or
poverty . . ."
7. ID.; ID.; ID.; ID.; SUPPORT OF P150.00 PER CHILD, INSUFFICIENT. —
Although the spouses have agreed upon the monthly support of P150.00 to be given by
the petitioner spouse for each child, still this Court must speak out its mind on the
insu ciency of this amount. We take judicial notice of the devaluation of the peso in
1962 and the steady skyrocketing of prices of all commodities, goods, and services,
not to mention the fact that all the children are already of school age. We believe,
therefore, that the CFI may increase this amount of P150.00 according to the needs of
each child.

DECISION

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 CASTRO , J : p

These three cases (G.R. L-23482, L-23767 and L-24259) involving the same
parties pose a common fundamental issue the resolution of which will necessarily and
inescapably resolve all the other issues. Thus their joinder in this decision.

The antecedent facts are not disputed.

Alfonso Lacson (hereinafter referred to as the petitioner spouse) and Carmen
San Jose-Lacson (hereinafter referred to as the respondent spouse) were married on
February 14, 1953. To them were born four children, all alive.
On January 9, 1963 the respondent spouse left the conjugal home in Santa Clara
Subdivision, Bacolod City, and commenced to reside in Manila. She led on March 12,
1963 a complaint docketed as civil case E-00030 in the Juvenile and Domestic
Relations Court of Manila (hereinafter referred to as the JDRC) for custody of all their
children as well as support for them and herself.
However, the spouses, thru the assistance of their respective attorneys,
succeeded in reaching an amicable settlement respecting custody of the children,
support, and separation of property. On April 27, 1963 they led a joint petition dated
April 21, 1963, docketed as special proceeding 6978 of the Court of First Instance of
Negros Occidental (hereinafter referred to as the CFI).
The important and pertinent portions of the petition, embodying their amicable
settlement, read as follows:
"3. Petitioners have separated last January 9, 1963, when petitioner
Carmen San Jose-Lacson left their conjugal home at the Santa Clara Subdivision,
Bacolod City, did not return, and decided to reside in Manila.

"4. Petitioners have mutually agreed upon the dissolution of their

conjugal partnership subject to judicial approval as required by Article 191 of the
Civil Code of the Philippines — the particular terms and conditions of their mutual
agreement being as follows:

"(a) There will be separation of property — petitioner Carmen

San Jose Lacson hereby waiving any and all claims for a share in property
that may be held by petitioner Alfonso Lacson since they have acquired no
property of any consequence.
"(b) Hereafter, each of them shall own, dispose of, possess,
administer and enjoy such separate estate as they may acquire without the
consent of the other and all earnings from any profession, business or
industry as may be derived by each petitioner shall belong to that petitioner
exclusively.

"(c) The custody of the two elder children named Enrique and
Maria Teresa shall be awarded to petitioner Alfonso Lacson and the
custody of the younger children named Gerrard and Ramon shall be
awarded to petitioner Carmen San Jose-Lacson.
"(d) Petitioner Alfonso Lacson shall pay petitioner Carmen San
Jose-Lacson a monthly allowance of P300.00 for the support of the
children in her custody.

"(e) Each petitioner shall have reciprocal rights of visitation of

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 the children in the custody of the other at their respective residences and,
during the summer months, the two children in the custody of each
petitioner shall be given to the other except that, for this year's summer
months, all four children shall be delivered to and remain with petitioner
Carmen San Jose-Lacson until June 15, 1963 — on which date, she shall
return the two elder children Enrique and Maria Teresa to petitioner Alfonso
Lacson — this judgment of course being subject to enforcement by
execution writ and contempt.
"5. Petitioners have no creditors.

"WHEREFORE, they respectfully pray that notice of this petition be given to

creditors and third parties pursuant to Article 191 of the Civil Code of the
Philippines and thereafter that the Court enter its judicial approval of the
foregoing agreement for the dissolution of then conjugal partnership and for
separation of property, except that the Court shall immediately approve the terms
set out in paragraph 4 above and embody the same in a judgment immediately
binding on the parties hereto to the end that any non-compliance or violation of
its terms by one party shall entitle the other to enforcement by execution writ and
contempt even though the proceedings as to creditors have not been terminated."

Finding the foregoing joint petition to be "conformable to law," the CFI (Judge
Jose F. Fernandez, presiding) issued an order on April 27, 1963, rendering judgment
(hereinafter referred to as the compromise judgment) approving and incorporating in
toto their compromise agreement. In compliance with paragraph 4(e) of their mutual
agreement (par. 3[e] of the compromise judgment), the petitioner spouse delivered all
the four children to the respondent spouse and remitted money for their support.
On May 7, 1963 the respondent spouse led in the JDRC a motion wherein she
alleged that she "entered into and signed the . . . Joint Petition as the only means by
which she could have immediate custody of the . . . minor children who are all below the
age of 7," and thereafter prayed that she "be considered relieved of the . . . agreement
pertaining to the custody and visitation of her minor children . . . and that since all the
children are now in her custody, the said custody in her favor be con rmed pendente
lite." On May 24, 1963 the petitioner spouse opposed the said motion and moved to
dismiss the complaint based, among other things, on the grounds of res judicata and lis
pendens. The JDRC, on May 28, 1963, issued an order which sustained the petitioner
spouse's plea of bar by prior judgment and lis pendens, and dismissed the case. After
the denial of her motion for reconsideration, the respondent spouse interposed an
appeal to the Court of Appeals (CA-C.R. No. 32608-R) wherein she raised, among
others, the issue of validity or legality of the compromise agreement in connection only
with the custody of their minor children. On October 14, 1964 the Court of Appeals
certi ed the said appeal to the Supreme Court (G.R. No. L-23767), since "no hearing on
the facts was ever held in the court below — no evidence, testimonial or documentary,
presented — only a question of law pends resolution in the appeal."
The respondent spouse likewise led a motion dated May 15, 1963 for
reconsideration of the compromise judgment dated April 27, 1963 rendered in special
proceedings 6978 of the CFI, wherein she also alleged, among others, that she entered
into the joint petition as the only means by which she could have immediate custody of
her minor children, and thereafter prayed the CFI to reconsider its judgment pertaining
to the custody and visitation of her minor children and to relieve her from the said
agreement. The petitioner spouse opposed the said motion and, on June 1, 1963, led
a motion for execution of the compromise judgment and a charge for contempt. The
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 CFI (Judge Jose R. Querubin, presiding), in its order dated June 22, 1963, denied the
respondent spouse's motion for reconsideration, granted the petitioner spouse's
motion for execution, and ordered that upon "failure on the part of Carmen San Jose-
Lacson to deliver the said children [i.e., to return the two older children Enrique and
Maria Teresa in accordance with her agreement with Alfonso Lacson] to the special
sheriff on or before June 29, 1963, she may be held for contempt pursuant to the
provisions of Rule 39 Sections 9 and 10, and Rule 64 Section 7 of the (old) Rules of
Court." From the aforesaid compromise judgment dated April 27, 1963 and execution
order dated June 22, 1963, the respondent spouse interposed an appeal to the Court of
Appeals (CA-G.R. No. 32798-R) wherein she likewise questioned the validity or legality
of her agreement with the petitioner spouse respecting custody of their children. On
February 11, 1965 the Court of Appeals also certi ed the said appeal to the Supreme
Court (G.R. No. L-24259), since "no evidence of any kind was introduced before the trial
court and . . . appellant did not speci cally ask to be allowed to present evidence on her
behalf."
The respondent spouse also instituted certiorari proceedings before the Court of
Appeals (CA-G.R. No. 32384-R), now the subject of an appeal by certiorari to this Court
(G.R. No. L-23482). In her position certiorari dated June 27, 1963, she averred that the
CFI (thru Judge Querubin) committed grave abuse of discretion and acted in excess of
jurisdiction in ordering the immediate execution of the compromise judgment in its
order of June 22, 1963, thus in effect depriving her of the right to appeal. She prayed for
(1) the issuance of a writ of preliminary injunction enjoining the respondents therein and
any person acting under them from enforcing, by contempt proceedings and other
means, the writ of execution issued pursuant to the order of the respondent Judge
Querubin dated June 22, 1963 in special proceeding 6978 of the CFI, (2) the setting
aside, after hearing, of the compromise judgment dated April 27, 1963 and the order
dated June 22, 1963, and (3) the awarding of the custody of Enrique and Maria Teresa
to her, their mother. As prayed for, the Court of Appeals issued ex parte a writ of
preliminary injunction enjoining the enforcement of the order dated June 22, 1963 for
execution of the compromise judgment rendered in special proceeding 6978. The
petitioner spouse led an urgent motion dated July 5, 1963 for the dissolution of the
writ of preliminary injunction ex parte, which urgent motion was denied by the Court of
Appeals in its resolution dated July 9, 1963. The petitioner spouse likewise led his
answer. After hearing, the Court of Appeals on May 11, 1964 promulgated in said
certiorari case (CA-G.R. No. 32384-R) its decision granting the petition for certiorari and
declaring null and void both (a) the compromise judgment dated April 27, 1963 in so far
as it relates to the custody and right of visitation over the two children, Enrique and
Teresa and (b) the order dated June 22, 1963 for execution of said judgment. The
petitioner spouse moved to reconsider, but his motion for reconsideration was denied
by the Court of Appeals in its resolution dated July 31, 1964. From the decision dated
May 11, 1964 and the resolution dated July 31, 1964, the petitioner spouse interposed
an appeal to this Court, as abovestated, and assigned the following errors:
(1) The Court of Appeals erred in annulling thru certiorari the lower court's
order of execution of the compromise judgment.

(2) The Court of Appeals erred in resolving in the certiorari case the issue of
the legality of the compromise judgment which is involved in two appeals,
instead of the issue of grave abuse of discretion in ordering its execution.
(3) The Court of Appeals erred in ruling that the compromise agreement upon
which the judgment is based violates Article 363 of the Civil Code.
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 As heretofore adverted, the aforecited three appeals converge on one focal
issue: whether the compromise agreement entered into by the parties and the
judgment of the CFI grounded on the said agreement, are conformable to law.
We hold that the compromise agreement and the judgment of the CFI grounded
on the said agreement are valid with respect to the separation of property of the
spouses and the dissolution of the conjugal partnership.
The law allows separation of property of the spouses and the dissolution of their
conjugal partnership provided judicial sanction is secured beforehand. Thus the new
Civil Code provides:
"In the absence of an express declaration in the marriage settlements, the
separation of property between spouses during the marriage shall not take place
save in virtue of a judicial order." (Art. 190, italics supplied)
"The husband and the wife may agree upon the dissolution of the conjugal
partnership during the marriage, subject to judicial approval. All the creditors of
the husband and of the wife, as well as of the conjugal partnership, shall be
noti ed of any petition for judicial approval of the voluntary dissolution of the
conjugal partnership, so that any such creditors may appear at the hearing to
safeguard his interests. Upon approval of the petition for dissolution of the
conjugal partnership, the court shall take such measures as may protect the
creditors and other third persons." (Art. 191., par. 4, italics supplied)

In the case at bar, the spouses obtained judicial imprimatur of their separation of
property and the dissolution of their conjugal partnership. It does not appear that they
have creditors who will be prejudiced by the said arrangements.
It is likewise undisputed that the couple have been separated in fact for at least
ve years — the wife's residence being in Manila, and the husband's in the conjugal
home in Bacolod City. Therefore, inasmuch as a lengthy separation has supervened
between them, the propriety of severing their nancial and proprietary interests is
manifest.
Besides, this Court cannot constrain the spouses to live together, as
"[I]t 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 . . . 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 those
countries where the courts of justice have assumed to compel the cohabitation of
married couple shows that the policy of the practice is extremely questionable."
(Arroyo v. Vasquez de Arroyo, 42 Phil. 54, 60)

However, in so approving the regime of separation of property of the spouses

and the dissolution of their conjugal partnership, this Court does not thereby accord
recognition to nor legalize the de facto separation of the spouses, which — again in the
language of Arroyo v. Vasquez de Arroyo, supra is a "state which is abnormal and
fraught with grave danger to all concerned." We would like to douse the momentary
seething emotions of couples who, at the slightest ru ing of domestic tranquillity —
brought about by "mere austerity of temper, petulance of manners, rudeness of
language, a want of civil attention and accommodation, even occasional sallies of
passion" without more — would be minded to separate from each other. In this
jurisdiction, the husband and the wife are obliged to live together, observe mutual
respect and delity, and render mutual help and support (art. 109 New Civil Code).
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 There is, therefore, virtue in making it as di cult as possible for married couples —
impelled by no better cause than their whims and caprices — to abandon each other's
company.
". . . For though in particular cases the repugnance of the law to dissolve
the obligations of matrimonial cohabitation may operate with great severity upon
individuals, 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 they cannot shake
off; they become good husbands and wives from the necessity of remaining
husbands and good wives; for necessity is a powerful master in teaching the
duties which it imposes . . .' (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint,
466, 467.)" (Arroyo vs. Vasquez de Arroyo, Id., pp. 58-59).

We now come to the question of the custody and support of the children.
It is not disputed that it was the JDRC which rst acquired jurisdiction over the
matter of custody and support of the children. The complaint docketed as civil case E-
00030 in the JDRC was led by the respondent spouse on March 12, 1963, whereas the
joint petition of the parties docketed as special proceedings 6978 in the CFI was led
on April 27, 1963. However, when the respondent spouse signed the joint petition on
the same matter of custody and support of the children and led the same with the CFI
of Negros Occidental, she in effect abandoned her action in the JDRC. The petitioner
spouse — who could have raised the issue of lis pendens in abatement of the case led
in the CFI, but did not do so — had the right, therefore, to cite the decision of the CFI and
to ask for the dismissal of the action led by the respondent spouse in the JDRC, on the
grounds of res judicata and lis pendens. And the JDRC acted correctly and justi ably in
dismissing the case for custody and support of the children based on those grounds.
For it is no defense against the dismissal of the action that the case before the CFI was
filed later than the action before the JDRC, considering:
". . . [T]hat Rules do not require as a ground for dismissal of a complaint
that there is a prior pending action. They provide only that there is a pending
action, not a pending prior action." 1

We agree with the Court of Appeals, however, that the CFI erred in depriving the
mother, the respondent spouse, of the custody of the two older children (both then
below the age of 7).
The Civil Code speci cally commands in the second sentence of its article 363
that "No mother shall be separated from her child under seven years of age, unless the
court nds compelling reasons for such measure." The rationale of this new provision
was explained by the Code Commission, thus:
"The general rule is recommended in order to avoid many a tragedy where
a mother has seen her baby torn away from her. No man can sound the deep
sorrows of a mother who is deprived of her child of tender age. The exception
allowed by the rule has to be for 'compelling reasons' for the good of the child:
those cases must indeed be rare, if the mother's heart is not to be unduly hurt. If
she has erred, as in cases of adultery, the penalty of imprisonment and the
(relative) divorce decree will ordinarily be su cient punishment for her. Moreover,
her moral dereliction will not have any effect upon the baby who is as yet unable
to understand the situation." (Report of the Code Commission, p. 12)

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 The use of the word shall 2 in article 363 of the Civil Code, coupled with the
observations made by the Code Commission in respect to the said legal provision,
underscores its mandatory character. It prohibits in no uncertain terms the separation
of a mother and her child below seven years, unless such a separation is grounded
upon compelling reasons as determined by a court.
The order dated April 27, 1963 of the CFI, in so far as it awarded custody of the
two older children who were 6 and 5 years old, respectively, to the father, in effect
sought to separate them from their mother. To that extent therefore, it was null and
void because clearly violative of article 363 of the Civil Code.
Neither does the said award of custody fall within the exception because the
record is bereft of any compelling reason to support the lower court's order depriving
the wife of her minor children's company. True, the CFI stated in its order dated June
22, 1963, denying the respondent spouse's motion for reconsideration of its order
dated April 27, 1963, that
". . . If the parties have agreed to le a joint petition, it was because they
wanted to avoid the exposure of the bitter truths which serve as succulent morsel
for scandal mongers and idle gossipers and to save their children from
embarrassment and inferiority complex which may inevitably stain their lives . . .
If the parties agreed to submit the matter of custody of the minor children to the
Court for incorporation in the nal judgment, they purposely suppressed the
'compelling reasons for such measure' from appearing in the public records. This
is for the sake and for the welfare of the minor children."

But the foregoing statement is at best a mere hint that there were compelling reasons.
The lower court's order is eloquently silent on what these compelling reasons are.
Needless to state, courts cannot proceed on mere insinuations; they must be
confronted with facts before they can properly adjudicate.
It might be argued — and correctly that since ve years have elapsed since the
ling of these cases in 1963, the ages of the four children should now be as follows:
Enrique — 11, Maria Teresa — 10, Gerrard — 9, and Ramon — 5. Therefore, the issue
regarding the award of the custody of Enrique and Maria Teresa to the petitioner
spouse has become moot and academic. The passage of time has removed the prop
which supports the respondent spouse's position.
Nonetheless, this Court is loath to uphold the couple's agreement regarding the
custody of the children.
Article 356 of the new Civil Code provides;
"Every child:

(1) Is entitled to parental care;

(2) Shall receive at least elementary education;
(3) Shall be given moral and civic training by the parents or
guardian;
(4) Has a right to live in an atmosphere conducive to his
physical, moral and intellectual development."

It is clear that the abovequoted legal provision grants to every child rights which are not
and should not be dependent solely on the wishes, much less the whims and caprices,
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 of his parents. His welfare should not be subject to the parents' say-so or mutual
agreement alone. Where, as in this case, the parents are already separated in fact, the
courts must step in to determine in whose custody the child can better be assured the
rights granted to him by law. The need, therefore, to present evidence regarding this
matter, becomes imperative. A careful scrutiny of the records reveals that no such
evidence was introduced in the CFI. This latter court relied merely on the mutual
agreement of the spouses parents. To be sure, this was not su cient basis to
determine the fitness of each parent to be the custodian of the children.
Besides, at least one of the children — Enrique, the eldest — is now eleven years
of age and should be given the choice of the parent he wishes to live with. This is the
clear mandate of sec. 6, Rule 99 of the Rules of Court which states, inter alia:
". . . When husband and wife are divorced or living separately and apart
from each other, and the question as to the care, custody, and control of a child or
children of their marriage is brought before a Court of First Instance by petition or
as an incident to any other proceeding, the court, upon hearing testimony as may
be pertinent, shall award the care, custody, and control of each child as will be for
its best interest, permitting the child to choose which parent it prefers to live with
if it be over ten years of age, unless the parent so chosen be un t to take charge
of the child by reason of moral depravity, habitual drunkenness, incapacity, or
poverty . . ." (italics supplied)

One last point regarding the matter of support for the children — assuming that
the custody of any or more of the children will be nally awarded to the mother.
Although the spouses have agreed upon the monthly support of P150.00 to be given by
the petitioner spouse for each child, still this Court must speak out its mind on the
insu ciency of this amount. We take judicial notice of the devaluation of the peso in
1962 and the steady skyrocketing of prices of all commodities, goods, and services,
not to mention the fact that all the children are already of school age. We believe,
therefore, that the CFI may increase this amount of P150 according to the needs of
each child.
With the view that we take of this case, we nd it unnecessary to pass upon the
other errors assigned in the three appeals.
ACCORDINGLY, the decision dated May 11, 1964 and the resolution dated July
31, 1964 of the Court of Appeals in C.A G.R. 32384-R (subject-matter of G.R. L-23482),
and the orders dated May 28, 1963 and June 24, 1963 of the Juvenile and Domestic
Relations Court (subject-matter of G.R. No. 23767) are a rmed. G.R. L-24259 is hereby
remanded to the Court of First Instance of Negros Occidental for further proceedings in
accordance with this decision. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar and Angeles, JJ.,
concur.
Sanchez and Fernando, JJ., did not take part.

Footnotes
1. Teodoro vs. Mirasol, 99 Phil. 150, 153.
2. "In common or ordinary parlance and in its ordinary significance, the term "shall" is a
word of command, and one which has always or which must be given a compulsory
meaning, and it is generally imperative or mandatory. It has the invariable significance
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 of operating to impose a duty which may be enforced particularly if public policy is in
favor of this meaning or when public interest is involved, or where the public persons
have rights which ought to be exercised or enforced, unless a contrary intent appears.
People v. O'Rourke, 13 P. 2d, 989, 992, 124 Cal. App. 752, (30 Words and Phrases,
Permanent Ed., p. 90).
"The presumption is that the word 'shall' in a statute is used in an imperative, and
not in a directory, sense. If a different interpretation is sought, it must rest upon
something in the character of the legislation or in the context which will justify a
different meaning. Haythron v. Van Keuren & Son, 74 A. 502, 504, 79 N.J.L. 101; Board of
Finance of School City of Aurora v. People's Nat. Bank Lawrenceburg, 89 N.E. 904, 905,
44 Ind. App. 578, (39 Words and Phrases, Permanent Ed., p. 93.)" Diokno v.
Rehabilitation Finance Corporation, G.R. No. L-4712, July 11, 1952, 91 Phil. 608) (Italics
supplied)

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