G.R. No.

L-34132 July 29, 1972 writ of preliminary mandatory injunction for the return to her of what she
claimed to be her paraphernal and exclusive property, then under the
LUCY SOMOSA-RAMOS, petitioner,  administration and management of respondent Clemente Ramos. There was
vs. an opposition to the hearing of such a motion, dated July 3, 1971, based on
THE HONORABLE CIPRIANO VAMENTA, JR., Presiding Judge of Article 103 of the Civil Code. It was further manifested by him in a
the Court of First Instance of Negros Oriental and CLEMEN G. pleading dated July 16, 1971, that if the motion asking for preliminary
RAMOS, respondents. mandatory injunction were heard, the prospect of the reconciliation of the
spouses would become even more dim. Respondent Judge ordered the
T. R. Reyes & Associates for petitioner. parties to submit their respective memoranda on the matter. Then on
September 3, 1971, petitioner received an order dated August 4, 1971 of
respondent Judge granting the motion of respondent Ramos to suspend the
Soleto J. Erames for respondents. hearing of the petition for a writ of mandatory preliminary injunction. That
is the order complained of in this petition for certiorari. Respondents were
required to answer according to our resolution of October 5, 1971. The
answer was filed December 2 of that year. Then on January 12, 1972 came
FERNANDO, J.:p a manifestation from parties in the case submitting the matter without
further arguments.
The question raised in this petition for certiorari is whether or not Article
103 of the Civil Code prohibiting the hearing of an action for legal After a careful consideration of the legal question presented, it is the
separation before the lapse of six months from the filing of the petition, holding of this Court that Article 103 the Civil Code is not an absolute bar
would likewise preclude the court from acting on a motion for preliminary to the hearing motion for preliminary injunction prior to the expiration of
mandatory injunction applied for as an ancillary remedy to such a suit. the six-month period.
Respondent Cipriano Vamenta, Jr., of the Court of First Instance of Negros
Oriental, answered the question in the affirmative, in view of the absolute 1. It is understandable why there should be a period during which the court
tenor of such Civil Code provision, which reads thus: "An action for legal is precluded from acting. Ordinarily of course, no such delay is permissible.
separation shall in no case be tried before six months shall have elapsed Justice to parties would not thereby be served. The sooner the dispute is
since the filing of the petition." He therefore ordered the suspension, upon resolved, the better for all concerned. A suit for legal separation, however,
the plea of the other respondent the husband Clemente G. Ramos, of the is something else again. It involves a relationship on which the law for the
hearing on a motion for a writ of preliminary mandatory injunction filed by best reasons would attach the quality of permanence. That there are times
petitioner at the same time the suit for legal separation was instituted. when domestic felicity is much less than it ought to be is not of course to be
Petitioner, Lucy Somosa-Ramos, the wife who brought the action for legal denied. Grievances, whether fancied or real, may be entertained by one or
separation would dispute such a ruling. Hence, this certiorari proceeding. both of the spouses. There may be constant bickering. The loss affection on
As will be shown later there is justification for such a move on the part of the part of one or both may be discernible. Nonetheless, it will not serve
petitioner. The respondent Judge ought to have acted differently. The plea public interest, much less the welfare of the husband or the wife, to allow
for a writ of certiorari must be granted. them to go their respective ways. Where there are offspring, the reason for
maintaining the conjugal union is even more imperative. It is a mark of
The pleadings show that on June 18, 1971, petitioner filed Civil Case No. realism of the law that for certain cases, adultery on the part of the wife and
5274 in the sala of respondent Judge against respondent Clemente Ramos concubinage on the part of the husband, or an attempt of one spouse against
for legal separation, on concubinage on the respondent's part and an attempt the life of the other,1 it recognizes, albeit reluctantly, that the couple is
by him against her life being alleged. She likewise sought the issuance of a better off apart. A suit for legal separation lies. Even then, the hope that the
parties may settle their differences is not all together abandoned. The dispassionate reflection. But this practical expedient, necessary to carry out
healing balm of time may aid in the process. Hopefully, the guilty parties legislative policy, does not have the effect of overriding other provisions
may mend his or her ways, and the offended party may in turn exhibit such as the determination of the custody of the children and alimony and
magnanimity. Hence, the interposition of a six-month period before an support pendente lite according to the circumstance ... The law expressly
action for legal separation is to be tried. enjoins that these should be determined by the court according to the
circumstances. If these are ignored or the courts close their eyes to actual
The court where the action is pending according to Article 103 is to remain facts, rank injustice may be caused."4 At any rate, from the time of the
passive. It must let the parties alone in the meanwhile. It is precluded from issuance of the order complained of on August 4, 1971, more than six
hearing the suit. There is then some plausibility for the view of the lower months certainly had elapsed. Thus there can be no more impediment for
court that an ancillary motion such as one for preliminary mandatory the lower court acting on the motion of petitioner for the issuance of a writ
injunction is not to be acted on. If it were otherwise, there would be a of preliminary mandatory injunction.
failure to abide by the literal language of such codal provision. That the law,
however, remains cognizant of the need in certain cases for judicial power WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and
to assert itself is discernible from what is set forth in the following article. It the order of respondent Court of August 4, 1971, suspending the hearing on
reads thus: "After the filing of the petition for legal separation, the spouse the petition for a writ of preliminary mandatory injunction is set aside.
shall be entitled to live separately from each other and manage their Respondent Judge is directed to proceed without delay to hear the motion
respective property. The husband shall continue to manage the conjugal for preliminary mandatory injunction. Costs against respondent Clemente
partnership property but if the court deems it proper, it may appoint another G. Ramos.
to manage said property, in which case the administrator shall have the
same rights and duties as a guardian and shall not be allowed to dispose of Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo,
the income or of the capital except in accordance with the orders of the Makasiar, Antonio and Esguerra, JJ., concur.
court."2 There would appear to be then a recognition that the question of
management of their respective property need not be left unresolved even  
during such six-month period. An administrator may even be appointed for
the management of the property of the conjugal partnership. The absolute
limitation from which the court suffers under the preceding article is  
thereby eased. The parties may in the meanwhile be heard. There is
justification then for the petitioner's insistence that her motion for  
preliminary mandatory injunction should not be ignored by the lower court.
There is all the more reason for this response from respondent Judge, Separate Opinions
considering that the husband whom she accused of concubinage and an
attempt against her life would in the meanwhile continue in the  
management of what she claimed to be her paraphernal property, an
assertion that was not specifically denied by him. What was held by this
Reyes, J.B.L.,. J., concurring:
Court in Araneta v. Concepcion,3 thus possesses relevance: "It is conceded
that the period of six months fixed therein Article 103 (Civil Code) is
evidently intended as a cooling off period to make possible a reconciliation Concurs, specially in view of the ruling in De la Viña vs. Villareal, 41 Phil.
between the spouses. The recital of their grievances against each other in 13, 24.
court may only fan their already inflamed passions against one another, and
the lawmaker has imposed the period to give them opportunity for  
 

Separate Opinions

Reyes, J.B.L.,. J., concurring:

Concurs, specially in view of the ruling in De la Viña vs. Villareal, 41 Phil.

13, 24.

G.R. No. L-29138 May 29, 1970chanrobles virtual law library

ELENA CONTRERAS, Plaintiff-Appellant, v. CESAR J.
MACARAIG, Defendant-Appellee.

Jose T. Nery for plaintiff-appellee.chanroblesvirtualawlibrarychanrobles

virtual law library
The City fiscal for defendant- In September, 1962, Avelino Lubos, driver of the family car, told plaintiff
appellant.chanroblesvirtualawlibrarychanrobles virtual law library that defendant was living in Singalong with Lily Ann Alcala. When
defendant, the following October, returned to the conjugal home, plaintiff
Cesar J. Macaraig in his own behalf. refrained from verifying Lubos' report from defendant in her desire not to
anger nor drive defendant away. Although plaintiff, in April 1963, also
DIZON, J.: received rumors that defendant was seen with a woman who was on the
family way on Dasmariñas St., she was so happy that defendant again return
to the family home in May, 1963 that she once more desisted from
Appeal taken by Elena Contreras from a decision of the Juvenile and discussing the matter with him because she did not wish to precipitate a
Domestic Relations Court of Manila in Civil Case No. 00138 dismissing her quarrel and drive him away. All this while, defendant, if and whenever he
complaint upon the ground that the same was filed more than one year from returned to the family fold, would only stay for two or three days but would
and after the date on which she had become cognizant of the cause for legal be gone for a period of about a month.chanroblesvirtualawlibrarychanrobles
separation.chanroblesvirtualawlibrarychanrobles virtual law library virtual law library

The following, facts found by the trial court are not in dispute: After plaintiff received reports that Lily Ann Alcala had given birth to a
baby, she sent Mrs. Felicisima Antioquia, her father's employee, to verify
Plaintiff and defendant were married on March 16, 1952 in the Catholic the reports. The latter was driven by Lubos to the house in Singalong and
Church of Quiapo, Manila. Out of their Marriage, three children were born: between 5:00 and 6:00 o'clock that afternoon, she saw defendant was
Eusebio C. Macaraig, on January 11, 1953; Victoria C. Macaraig, on March carrying a baby in his arms. Mrs. Antioquia then went to the parish priest of
26, 1956; and Alexander C. Macaraig, on August 4, 1958. All the children Singalong where she inquired about the child of Cesar Macaraig and Lily
are in the care of plaintiff wife.chanroblesvirtualawlibrarychanrobles virtual Ann Alcala and she was given a copy of the baptismal certificate of Maria
law library Vivien Mageline Macaraig (Exh. G) which she gave to plaintiff sometime
in October, 1963.chanroblesvirtualawlibrarychanrobles virtual law library
Sometime in 1958, the couple acquired rights, as lessee and purchaser under
a conditional sale agreement, to own a house and lot, known as Lot 4, Block Plaintiff then entreated her father-in-law, Lucilo Macaraig, to intercede with
8 of the Philamlife Homes in Quezon City which they transferred in favor defendant and to convince him to return to his family. Mr. Macaraig, after
of their three children on October 29, 1958 (Exh. F). Installment payments talking to his son and seeking him with the latter's child told plaintiff that he
are being made by plaintiff's father. The spouses own no other conjugal could not do anything.chanroblesvirtualawlibrarychanrobles virtual law
property.chanroblesvirtualawlibrarychanrobles virtual law library library

Immediately before the election of 1961, defendant was employed as In November, 1963, plaintiff requested the cooperation of defendant's older
manager of the printing establishment owned by plaintiff's father known as sister, Mrs. Enriqueta Majul, and the latter obliged and arranged a meeting
the MICO Offset. In that capacity, defendant met and came to know Lily at her home in Buendia between plaintiff and Lily Ann Alcala. Lily Ann
Ann Alcala, who place orders with MICO Offset for propaganda materials said she was willing to give up defendant as she had no desire to be accused
for Mr. Sergio Osmeña, who was then a Vice-Presidential candidate. After criminally but it was defendant who refused to break relationship with
the elections of 1961, defendant resigned from MICO Offset to be a special her.chanroblesvirtualawlibrarychanrobles virtual law library
agent at Malacañang. He began to be away so often and to come home very
late. Upon plaintiff's inquiry, defendant explained that he was out on a In the early part of December, 1963, plaintiff, accompanied by her two
series of confidential missions.chanroblesvirtualawlibrarychanrobles virtual children, Victoria and Alexander, and by Mrs. Leticia Lagronio went to talk
law library
to defendant at his place of work on España Extension in front of Quezon The Court believes that the correct rule lies between the two extremes. At
Institute. They repaired to Victoria Peak, a nearby restaurant, where the time a wife acquired information, which can be reasonably relied upon
plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to as true, that her husband is living in concubinage with another woman, the
the conjugal home, assuring him that she was willing to forgive him. one-year period should be deemed to have started even if the wife shall not
Defendant informed plaintiff that he could no longer leave Lily Ann and then be in possession of proof sufficient to establish the concubinage before
refused to return to his legitimate a court of law. The one-year period may be viewed, inter alia, as an alloted
family.chanroblesvirtualawlibrarychanrobles virtual law library time within which proof should be secured. It is in the light of this rule that
the Court will determine whether or not plaintiff's action for legal separation
On December 14, 1963, plaintiff instituted the present action for legal has prescribed.chanroblesvirtualawlibrarychanrobles virtual law library
separation. When defendant did not interpose any answer after he was
served summons, the case was referred to the Office of the City Fiscal of After her husband resigned from MICO Offset to be a special agent in
Manila pursuant to the provisions of Article 101 of the Civil Code. After a Malacañan, subsequent to the elections of 1961, he would seldom come
report was received from Asst. Fiscal Primitivo M. Peñaranda that he home. He allayed plaintiff's suspicions with the explanation that he had
believed that there was no collusion present, plaintiff was allowed to been away on 'confidential missions.' However, in September, 1962,
present her evidence. Defendant has never appeared in this case. Avelino Lubos, plaintiff's driver, reported to plaintiff that defendant was
living in Singalong with Lily Ann Alcala. As a matter of fact, it was also
The reasons relied upon by the trial court in dismissing the complaint are set Lubos who brought Mrs. F. Antioquia (when plaintiff had asked to verify
forth in the appealed decision as follows: the reports) to the house in Singalong where she saw defendant, Lily Ann
and the baby.chanroblesvirtualawlibrarychanrobles virtual law library
Under the facts established by plaintiff's evidence, although the infidelity of
the husband is apparent, yet the case will have to be dismissed. Article 102 The requirement of the law that a complaint for legal separation be filed
provides that, an action for legal separation cannot be instituted except within one year after the date plaintiff become cognizant of the cause is not
within one year after plaintiff "became cognizant of the cause." In the of prescriptive nature, but is of the essence of the cause of action. It is
absence of a clear-cut decision of the Supreme Court as to the exact import consonant with the philosophy that marriage is an inviolable social
of the term "cognizant," the practical application of said Article can be institution so that the law provides strict requirements before it will allow a
attended with difficulty. For one thing; that rules might be different in case disruption of its status.chanroblesvirtualawlibrarychanrobles virtual law
of adultery, which is an act, and for concubinage, which may be a situation library
or a relationship.chanroblesvirtualawlibrarychanrobles virtual law library
In the instant action, the Court has to find that plaintiff became cognizant of
In respect of concubinage, the word 'cognizant' may not connote the date defendant's infidelity in September, 1962. Plaintiff made successive
when proof thereof sufficient to establish the cause before a court of law is attempts to induce the husband to amend his erring ways but failed. Her
possessed. Otherwise, the one year period would be meaningless for desire to bring defendant back to the connubial fold and to preserve family
practical purposes because all a wife would have to do would be to claim solidarity deterred her from taking timely legal action.
that the necessary proof was secured only within one year before the filing
of the complaint. On the other hand, it should be hard to concede that what The only question to be resolved is whether the period of one year provided
the law envisages (and, in a way, encourages) is the filing of a complaint for in Article 102 of the Civil Code should be counted, as far as the instant
within one year after the innocent spouses has received information of the case is concerned from September 1962 or from December 1963.
other's infidelity, howsoever baseless the report might Computing the period of one year from the former date, it is clear that
be.chanroblesvirtualawlibrarychanrobles virtual law library plaintiff's complaint filed on December 14, 1963 came a little too late, while
the reverse would be true if said period is deemed to have commenced only infidelity of her husband was in the early part of December 1963 when,
in the month of December 1963.chanroblesvirtualawlibrarychanrobles quoting from the appealed decision, the following happened -
virtual law library
In the early part of December, 1963, plaintiff, accompanied by her two
The period of "five years from after the date when such cause occurred" is children, Victoria and Alexander, and by Mrs. Leticia Lagronio went to talk
not here involved.chanroblesvirtualawlibrarychanrobles virtual law library to defendant at his place of work on España Extension in front of Quezon
Institute. They repaired to Victoria Peak, a nearby restaurant, where
Upon the undisputed facts it seems clear that, in the month of September plaintiff pleaded with defendant to give up Lily Ann Alcala and to return to
1962, whatever knowledge appellant had acquired regarding the infidelity the conjugal home, assuring him that she was willing to forgive him.
of her husband, that is, of the fact that he was then living in Singalong with Defendant informed plaintiff that he could no longer leave Lily Ann and
Lily Ann Alcala, was only through the information given to her by Avelino refused to return to his legitimate
Lubos, driver of the family car. Much as such hearsay information had family.chanroblesvirtualawlibrarychanrobles virtual law library
pained and anguished her, she apparently thought it best - and no reasonable
person may justifiably blame her for it - not to go deeper into the matter From all the foregoing We conclude that it was only on the occasion
herself because in all probability even up to that time, notwithstanding her mentioned in the preceding paragraph when her husband admitted to her
husband's obvious neglect of his entire family, appellant still cherished the that he was living with and would no longer leave Lily Ann to return to his
hope - however forlorn - of his coming back home to them. Indeed, when legitimate family that appellant must be deemed to be under obligation to
her husband returned to the conjugal home the following October, she decide whether to sue or not to sue for legal separation, and it was only then
purposely refrained from bringing up the matter of his marital infidelity "in that the legal period of one year must be deemed to have commenced.
her desire not to anger nor drive defendant away" - quoting the very words
of the trial court. True, appellant likewise heard in April 1963 rumors that WHEREFORE, the decision appealed from is set aside and another is
her husband was seen with a woman on the family way on Dasmariñas hereby rendered holding that appellant is entitled to legal separation as
Street, but failed again to either bring up the matter with her husband or prayed for in her complaint; and the case is hereby remanded to the lower
make attempts to verify the truth of said rumors, but this was due, as the court for appropriate proceedings in accordance with law.
lower court itself believed, because "she was so happy that defendant again
returned to the family home in May 1963 that she once more desisted from Reyes, J.B.L., Makalintal, Zaldivar, Fernando, Teehankee, Barredo and
discussing the matter with him because she did not wish to precipitate a Villamor, JJ., concur.chanroblesvirtualawlibrarychanrobles virtual law
quarrel and drive him away." As a matter of fact, notwithstanding all these library
painful informations which would not have been legally sufficient to make a
case for legal separation - appellant still made brave if desperate attempts to
persuade her husband to come back home. In the words of the lower court, Concepcion, C.J., concurs in the
she "entreated her father-in-law, Lucilo Macaraig, to intercede with result.chanroblesvirtualawlibrarychanrobles virtual law library
defendant and to convince him to return to his family" and also "requested
the cooperation of defendant's older sister, Mrs. Enriqueta Majul" for the Castro, J., is on leave.
same purpose, but all that was of no avail. Her husband remained
obdurate.chanroblesvirtualawlibrarychanrobles virtual law library

After a careful review of the record, We are persuaded that, in the eyes of
the law, the only time when appellant really became cognizant of the