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BERNABE vs. ALEJO G.R. No. 140500. January 21, 2002

BERNABE vs. ALEJO

ERNESTINA BERNABE, petitioner, vs. CAROLINA ALEJO as guardian ad litem for the minor ADRIAN BERNABE, respondent.

SUMMARY:

The right to seek recognition granted by the Civil Code to illegitimate children who were still minors at the time the Family Code took effect cannot be impaired or taken away. The minors have up to four years from attaining majority age within which to file an action for recognition.

FACTS:

1.      The late Fiscal Ernesto A. Bernabe allegedly fathered a son with his secretary, Carolina Alejo, of 23 years.

2.    The son, Adrian Bernabe was born on September 18, 1981. Fiscal Bernabe died on August 13, 1993, and his wife Rosalina died on December 3 of the same year, leaving Ernestina as the sole surviving heir.

3.    May 16, 1994, Carolina, in behalf of Adrian, filed complaint that Adrian be declared an acknowledged a legitimate son of Fiscal Bernabe and be given share in Fiscal Bernabes estate.

4.    RTC dismissed the complaint, ruling that under the provisions of the Family Code (took effect on 1988) as well as the case of Uyguangco vs. CA, the complaint is now barred.

5.    RTC granted Ernestina’s Motion for Reconsideration and ordered the dismissal of the Complaint for recognition. Citing Article 175 of the Family Code, the RTC held that the death of the putative father had barred the action.

6.    the trial court added that since the putative father had not acknowledged or recognized Adrian Bernabe in writing, the action for recognition should have been filed during the lifetime of the alleged father to give him the opportunity to either affirm or deny the childs filiation.

ISSUES:

1.      W/N Family Code should be applied retroactively

W/N Adrian Bernabe, an illegitimate son, has a right to be recognized

HELD:

1.      NO. FC should not be applied retroactively

a.    Because the boy was born in 1981, his rights are governed by Article 285 of the Civil Code, which allows an action for recognition to be filed within four years after the child has attained the age of majority.

ART. 285. The action for the recognition of natural children may be brought only during the lifetime of the presumed parents, except in the following cases:

(1) If the father or mother died during the minority of the child, in which case the latter may file the action before the expiration of four years from the attainment of his majority;

(2) If after the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child.

a.    Article 285 of the Civil Code is a substantive law, it gives Adrian the right to file his petition for recognition within four years from attaining majority age.

b.    The subsequent enactment of the Family Code did not take away that right. (FC did not apply retroactively because it will impair this vested right)

2.      RTC said that the father had not acknowledged or recognized Adrian Bernabe in writing. The action for recognition should have been filed during the lifetime of the alleged father to give him the opportunity to either affirm or deny the child’s filiation.

Illegitimate children who were still minors at the time the Family Code took effect and whose putative parent died during their minority are thus given the right to seek recognition (under Article 285 of the Civil Code) for a period of up to four years from attaining majority age. This vested right was not impaired or taken away by the passage of the Family Code.

Adrian was only 7 y/o when the Family Code took effect and only 12 when his alleged father died in 1993. The minor must be given his chance to exercise his right.

ART. 172. The filiation of legitimate children is established by any of the following:

(1) The record of birth appearing in the civil register or a final judgment; or

(2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

In the absence of the foregoing evidence, the legitimate filiation shall be proved by:

(1) The open and continuous possession of the status of a legitimate child; or

(2) Any other means allowed by the Rules of Court and special laws.

ART. 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.

BOBIS v BOBIS G.R. No. 138509. July 31, 2000

IMELDA MARBELLA-BOBIS, petitioner, vs. ISAGANI D. BOBIS, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B. Javier. Without said marriage having been annulled, nullified or terminated, the same respondent contracted a second marriage with petitioner Imelda Marbella-Bobis on January 25, 1996 and allegedly a third marriage with a certain Julia Sally Hernandez. Based on petitioners complaint-affidavit, an information for bigamy was filed against respondent on February 25, 1998, which was docketed as Criminal Case No. Q98-75611 of the Regional Trial Court, Branch 226, Quezon City. Sometime thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity of his first marriage on the ground that it was celebrated without a marriage license. Respondent then filed a motion to suspend the proceedings in the criminal case for bigamy invoking the pending civil case for nullity of the first marriage as a prejudicial question to the criminal case. The trial judge granted the motion to suspend the criminal case in an Order dated December 29, 1998.[1][1] Petitioner filed a motion for reconsideration, but the same was denied.

Hence, this petition for review on certiorari. Petitioner argues that respondent should have first obtained a judicial declaration of nullity of his first marriage before entering into the second marriage, inasmuch as the alleged prejudicial question justifying suspension of the bigamy case is no longer a legal truism pursuant to Article 40 of the Family Code.[2][2]

The issue to be resolved in this petition is whether the subsequent filing of a civil action for declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for bigamy.

A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of the issue involved therein.[3][3] It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused.[4][4] It must appear not only that the civil case involves facts upon which the criminal action is based, but also that the resolution of the issues raised in the civil action would necessarily be determinative of the criminal case.[5][5] Consequently, the defense must involve an issue similar or intimately related to the same issue raised in the criminal action and its resolution determinative of whether or not the latter action may proceed.[6][6] Its two essential elements are:[7][7]

(a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and

(b) the resolution of such issue determines whether or not the criminal action may proceed.

A prejudicial question does not conclusively resolve the guilt or innocence of the accused but simply tests the sufficiency of the allegations in the information in order to sustain the further prosecution of the criminal case. A party who raises a prejudicial question is deemed to have hypothetically admitted that all the essential elements of a crime have been adequately alleged in the information, considering that the prosecution has not yet presented a single evidence on the indictment or may not yet have rested its case. A challenge of the allegations in the information on the ground of prejudicial question is in effect a question on the merits of the criminal charge through a non-criminal suit.

Article 40 of the Family Code, which was effective at the time of celebration of the second marriage, requires a prior judicial declaration of nullity of a previous marriage before a party may remarry. The clear implication of this is that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage.[8][8] Whether or not the first marriage was void for lack of a license is a matter of defense because there is still no judicial declaration of its nullity at the time the second marriage was contracted. It should be remembered that bigamy can successfully be prosecuted provided all its elements concur two of which are a previous marriage and a subsequent marriage which would have been valid had it not been for the existence at the material time of the first marriage.[9][9]

In the case at bar, respondents clear intent is to obtain a judicial declaration of nullity of his first marriage and thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is to disregard Article 40 of the Family Code, contract a subsequent marriage and escape a bigamy charge by simply claiming that the first marriage is void and that the subsequent marriage is equally void for lack of a prior judicial declaration of nullity of the first. A party may even enter into a marriage aware of the absence of a requisite - usually the marriage license - and thereafter contract a subsequent marriage without obtaining a declaration of nullity of the first on the assumption that the first marriage is void. Such scenario would render nugatory the provisions on bigamy. As succinctly held in Landicho v. Relova:[10][10]

(P)arties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question. A party who contracts a second marriage then assumes the risk of being prosecuted for bigamy.

Respondent alleges that the first marriage in the case before us was void for lack of a marriage license. Petitioner, on the other hand, argues that her marriage to respondent was exempt from the requirement of a marriage license. More specifically, petitioner claims that prior to their marriage, they had already attained the age of majority and had been living together as husband and wife for at least five years.[11][11] The issue in this case is limited to the existence of a prejudicial question, and we are not called upon to resolve the validity of the first marriage. Be that as it may, suffice it to state that the Civil Code, under which the first marriage was celebrated, provides that "every intendment of law or fact leans toward the validity of marriage, the indissolubility of the marriage bonds."[12][12] Hence, parties should not be permitted to judge for themselves the nullity of their marriage, for the same must be submitted to the determination of competent courts. Only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists.[13][13] No matter how obvious, manifest or patent the absence of an element is, the intervention of the courts must always be resorted to. That is why Article 40 of the Family Code requires a "final judgment," which only the courts can render. Thus, as ruled in Landicho v. Relova,[14][14] he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not be suspended on the ground of the pendency of a civil case for declaration of nullity. In a recent case for concubinage, we held that the pendency of a civil case for declaration of nullity of marriage is not a prejudicial question.[15][15] This ruling applies here by analogy since both crimes presuppose the subsistence of a marriage.

Ignorance of the existence of Article 40 of the Family Code cannot even be successfully invoked as an excuse.[16][16] The contracting of a marriage knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment is an act penalized by the Revised Penal Code.[17][17] The legality of a marriage is a matter of law and every person is presumed to know the law. As respondent did not obtain the judicial declaration of nullity when he entered into the second marriage, why should he be allowed to belatedly obtain that judicial declaration in order to delay his criminal prosecution and subsequently defeat it by his own disobedience of the law? If he wants to raise the nullity of the previous marriage, he can do it as a matter of defense when he presents his evidence during the trial proper in the criminal case.

The burden of proof to show the dissolution of the first marriage before the second marriage was contracted rests upon the defense,[18][18] but that is a matter that can be raised in the trial of the bigamy case. In the meantime, it should be stressed that not every defense raised in the civil action may be used as a prejudicial question to obtain the suspension of the criminal action. The lower court, therefore, erred in suspending the criminal case for bigamy. Moreover, when respondent was indicted for bigamy, the fact that he entered into two marriage ceremonies appeared indubitable. It was only after he was sued by petitioner for bigamy that he thought of seeking a judicial declaration of nullity of his first marriage. The obvious intent, therefore, is that respondent merely resorted to the civil action as a potential prejudicial question for the purpose of frustrating or delaying his criminal prosecution. As has been discussed above, this cannot be done.

In the light of Article 40 of the Family Code, respondent, without first having obtained the judicial declaration of nullity of the first marriage, can not be said to have validly entered into the second marriage. Per current jurisprudence, a marriage though void still needs a judicial declaration of such fact before any party can marry again; otherwise the second marriage will also be void.[19][19] The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. In the case at bar, respondent was for all legal intents and purposes regarded as a married man at the time he contracted his second marriage with petitioner.[20][20] Against this legal backdrop, any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. As stated above, respondent cannot be permitted to use his own malfeasance to defeat the criminal action against him.[21][21]

WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the Regional Trial Court, Branch 226 of Quezon City is REVERSED and SET ASIDE and the trial court is ordered to IMMEDIATELY proceed with Criminal Case No. Q98-75611.

SO ORDERED.

REPUBLIC v DE GRACIA G.R. No. 171557, February 12, 2014

PERLAS–BERNABE, J.:

Assailed in this petition for review on certiorari¹ are the Decision² dated June 2, 2005 and Resolution³ dated February 3, 2006 of the Court of Appeals (CA) in CA–G.R. CV No. 69103 which affirmed the Decision⁴ dated October 17, 2000 of the Regional Trial Court of Zamboanga del Norte, Branch 11 (RTC) in Civil Case No. S–665 declaring the marriage of respondent Rodolfo O. De Gracia (Rodolfo) and Natividad N. Rosalem (Natividad) void on the ground of psychological incapacity pursuant to Article 36 of the Family Code of the Philippines⁵ (Family Code).

The Facts

Rodolfo and Natividad were married on February 15, 1969 at the Parish of St. Vincent Ferrer in Salug, Zamboanga del Norte.⁶ They lived in Dapaon, Sindangan, Zamboanga del Norte and have two (2) children, namely, Ma. Reynilda R. De Gracia (Ma. Reynilda) and Ma. Rizza R. De Gracia (Ma. Rizza), who were born on August 20, 1969 and January 15, 1972, respectively.⁷

On December 28, 1998, Rodolfo filed a verified complaint for declaration of nullity of marriage (complaint) before the RTC, docketed as Civil Case No. S–665, alleging that Natividad was psychologically incapacitated to comply with her essential marital obligations. In compliance with the Order⁸ dated January 5, 1999 of the RTC, the public prosecutor conducted an investigation to determine if collusion exists between Rodolfo and Natividad and found that there was none.⁹ Trial on the merits then ensued.

In support of his complaint, Rodolfo testified, among others, that he first met Natividad when they were students at the Barangay High School of Sindangan,¹⁰ and he was forced to marry her barely three (3) months into their courtship in light of her accidental pregnancy.¹¹ At the time of their marriage, he was 21 years old, while Natividad was 18 years of age. He had no stable job and merely worked in the gambling cockpits as “kristo” and “bangkero sa hantak.” When he decided to join and train with the army,¹² Natividad left their conjugal home and sold their house without his consent.¹³ Thereafter, Natividad moved to Dipolog City where she lived with a certain Engineer Terez (Terez), and bore him a child named Julie Ann Terez.¹⁴ After cohabiting with Terez, Natividad contracted a second marriage on January 11, 1991 with another man named Antonio Mondarez and has lived since then with the latter in Cagayan de Oro City.¹⁵ From the time Natividad abandoned them in 1972, Rodolfo was left to take care of Ma. Reynilda and Ma. Rizza¹⁶ and he exerted earnest efforts to save their marriage which, however, proved futile because of Natividad’s psychological incapacity that appeared to be incurable.¹⁷

For her part, Natividad failed to file her answer, as well as appear during trial, despite service of summons.¹⁸ Nonetheless, she informed the court that she submitted herself for psychiatric examination to Dr. Cheryl T. Zalsos (Dr. Zalsos) in response to Rodolfo’s claims.¹⁹ Rodolfo also underwent the same examination.²⁰

In her two–page psychiatric evaluation report,²¹ Dr. Zalsos stated that both Rodolfo and Natividad were psychologically incapacitated to comply with the essential marital obligations, finding that both parties suffered from “utter emotional immaturity [which] is unusual and unacceptable behavior considered [as] deviant from persons who abide by established norms of conduct.”²² As for Natividad, Dr. Zalsos also observed that she lacked the willful cooperation of being a wife and a mother to her two daughters. Similarly, Rodolfo failed to perform his obligations as a husband, adding too that he sired a son with another woman. Further, Dr. Zalsos noted that the mental condition of both parties already existed at the time of the celebration of marriage, although it only manifested after. Based on the foregoing, Dr. Zalsos concluded that the “couple’s union was bereft of the mind, will and heart for the obligations of marriage.”²³

On February 10, 1999, the Office of the Solicitor General (OSG), representing petitioner Republic of the Philippines (Republic), filed an opposition²⁴ to the complaint, contending that the acts committed by Natividad did not demonstrate psychological incapacity as contemplated by law, but are mere grounds for legal separation under the Family Code.²⁵

The RTC Ruling

In a Decision²⁶ dated October 17, 2000, the RTC declared the marriage between Rodolfo and Natividad void on the ground of psychological incapacity. It relied on the findings and testimony of Dr. Zalsos, holding that Natividad’s emotional immaturity exhibited a behavioral pattern which in psychiatry constitutes a form of personality disorder that existed at the time of the parties’ marriage but manifested only thereafter. It likewise concurred with Dr. Zalsos’s observation that Natividad’s condition is incurable since it is deeply rooted within the make–up of her personality. Accordingly, it concluded that Natividad could not have known, much more comprehend the marital obligations she was assuming, or, knowing them, could not have given a valid assumption thereof.²⁷

The Republic appealed to the CA, averring that there was no showing that Natividad’s personality traits constituted psychological incapacity as envisaged under Article 36 of the Family Code, and that the testimony of the expert witness was not conclusive upon the court.²⁸

The CA Ruling

In a Decision²⁹ dated June 2, 2005, the CA affirmed the ruling of the RTC, finding that while Natividad’s emotional immaturity, irresponsibility and promiscuity by themselves do not necessarily equate to psychological incapacity, “their degree or severity, as duly testified to by Dr. Zalsos, has sufficiently established a case of psychological disorder so profound as to render [Natividad] incapacitated to perform her essential marital obligations.”³⁰

The Republic moved for reconsideration which was, however, denied in a Resolution³¹ dated February 3, 2006, hence, the instant petition.

The Issue Before the Court

The primordial issue in this case is whether or not the CA erred in sustaining the RTC’s finding of psychological incapacity.

The Ruling of the Court

The petition is meritorious.

“Psychological incapacity,” as a ground to nullify a marriage under Article 36³² of the Family Code, should refer to no less than a mental – not merely physical – incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed in Article 68³³ of the Family Code, among others,³⁴ include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of “psychological incapacity” to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.³⁵ In Santos v. CA³⁶ (Santos), the Court first declared that psychological incapacity must be characterized by: (a) gravity (i.e., it must be grave and serious such that the party would be incapable of carrying out the ordinary duties required in a marriage); (b) juridical antecedence (i.e., it must be rooted in the history of the party antedating the marriage, although the overt manifestations may emerge only after the marriage); and (c) incurability (i.e., it must be incurable, or even if it were otherwise, the cure would be beyond the means of the party involved).³⁷ The Court laid down more definitive guidelines in the interpretation and application of Article 36 of the Family Code in Republic of the Phils. v. CA,³⁸ whose salient points are footnoted hereunder.³⁹ These guidelines incorporate the basic requirements that the Court established in Santos.⁴⁰

Keeping with these principles, the Court, in Dedel v. CA,⁴¹ held that therein respondent’s emotional immaturity and irresponsibility could not be equated with psychological incapacity as it was not shown that these acts are manifestations of a disordered personality which make her completely unable to discharge the essential marital obligations of the marital state, not merely due to her youth, immaturity or sexual promiscuity.⁴² In the same light, the Court, in the case of Pesca v. Pesca⁴³ (Pesca), ruled against a declaration of nullity, as petitioner therein “utterly failed, both in her allegations in the complaint and in her evidence, to make out a case of psychological incapacity on the part of respondent, let alone at the time of solemnization of the contract, so as to warrant a declaration of nullity of the marriage,” significantly noting that the “[e]motional immaturity and irresponsibility, invoked by her, cannot be equated with psychological incapacity.” In Pesca, the Court upheld the appellate court’s finding that the petitioner therein had not established that her husband “showed signs of mental incapacity as would cause him to be truly incognitive of the basic marital covenant, as so provided for in Article 68 of the Family Code; that the incapacity is grave, has preceded the marriage and is incurable; that his incapacity to meet his marital responsibility is because of a psychological, not physical illness; that the root cause of the incapacity has been identified medically or clinically, and has been proven by an expert; and that the incapacity is permanent and incurable in nature.”⁴⁴

The Court maintains a similar view in this case. Based on the evidence presented, there exists insufficient factual or legal basis to conclude that Natividad’s emotional immaturity, irresponsibility, or even sexual promiscuity, can be equated with psychological incapacity.

The RTC, as affirmed by the CA, heavily relied on the psychiatric evaluation report of Dr. Zalsos which does not, however, explain in reasonable detail how Natividad’s condition could be characterized as grave, deeply–rooted, and incurable within the parameters of psychological incapacity jurisprudence. Aside from failing to disclose the types of psychological tests which she administered on Natividad, Dr. Zalsos failed to identify in her report the root cause of Natividad’s condition and to show that it existed at the time of the parties’ marriage. Neither was the gravity or seriousness of Natividad’s behavior in relation to her failure to perform the essential marital obligations sufficiently described in Dr. Zalsos’s report. Further, the finding contained therein on the incurability of Natividad’s condition remains unsupported by any factual or scientific basis and, hence, appears to be drawn out as a bare conclusion and even self–serving. In the same vein, Dr. Zalsos’s testimony during trial, which is essentially a reiteration of her report, also fails to convince the Court of her conclusion that Natividad was psychologically incapacitated. Verily, although expert opinions furnished by psychologists regarding the psychological temperament of parties are usually given considerable weight by the courts, the existence of psychological incapacity must still be proven by independent evidence.⁴⁵ After poring over the records, the Court, however, does not find any such evidence sufficient enough to uphold the court a quo’s nullity declaration. To the Court’s mind, Natividad’s refusal to live with Rodolfo and to assume her duties as wife and mother as well as her emotional immaturity, irresponsibility and infidelity do not rise to the level of psychological incapacity that would justify the nullification of the parties’ marriage. Indeed, to be declared clinically or medically incurable is one thing; to refuse or be reluctant to perform one’s duties is another. To hark back to what has been earlier discussed, psychological incapacity refers only to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage.⁴⁶ In the final analysis, the Court does not perceive a disorder of this nature to exist in the present case. Thus, for these reasons, coupled too with the recognition that marriage is an inviolable social institution and the foundation of the family,⁴⁷ the instant petition is hereby granted.

WHEREFORE, the petition is GRANTED. The Decision dated June 2, 2005 and Resolution dated February 3, 2006 of the Court of Appeals in CA–GR. CV No. 69103 are REVERSED and SET ASIDE. Accordingly, the complaint for declaration of nullity of marriage filed under Article 36 of the Family Code is DISMISSED.

SO ORDERED.

GELUZ v CA G.R. No. L-16439

NATURAL PERSONS

A.    BIRTH

NCC

Article 40.

Birth determines personality; but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. (29a)

Article 41.

For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a)

1987 PC ART 2

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government.

Presidential Decree No. 603

Article 5. Commencement of Civil Personality. - The civil personality of the child shall commence from the time of his conception, for all purposes favorable to him, subject to the requirements of Article 41 of the Civil Code.

2^nd PAR TFC

Art. 164. Children conceived or born during the marriage of the parents are legitimate.

Children conceived as a result of artificial insemination of the wife with the sperm of the husband or that of a donor or both are likewise legitimate children of the husband and his wife, provided, that both of them authorized or ratified such insemination in a written instrument executed and signed by them before the birth of the child. The instrument shall be recorded in the civil registry together with the birth certificate of the child. (55a, 258a)

Art. 180. The effects of legitimation shall retroact to the time of the child's birth. (273a)

RPC

Art. 256. Intentional abortion. — Any person who shall intentionally cause an abortion shall suffer:

1. The penalty of reclusion temporal, if he shall use any violence upon the person of the pregnant woman.chanrobles virtual law library

2. The penalty of prision mayor if, without using violence, he shall act without the consent of the woman.chanrobles virtual law library

3. The penalty of prision correccional in its medium and maximum periods, if the woman shall have consented.chanrobles virtual law library

Art. 257. Unintentional abortion. — The penalty of prision correccional in its minimum and medium period shall be imposed upon any person who shall cause an abortion by violence, but unintentionally.

Art. 258. Abortion practiced by the woman herself of by her parents. — The penalty of prision correccional in its medium and maximum periods shall be imposed upon a woman who shall practice abortion upon herself or shall consent that any other person should do so.chanrobles virtual law library

Any woman who shall commit this offense to conceal her dishonor, shall suffer the penalty of prision correccional in its minimum and medium periods.chanrobles virtual law library

If this crime be committed by the parents of the pregnant woman or either of them, and they act with the consent of said woman for the purpose of concealing her dishonor, the offenders shall suffer the penalty of prision correccional in its medium and maximum periods.chanrobles virtual law library

Art. 259. Abortion practiced by a physician or midwife and dispensing of abortives. — The penalties provided in Article 256 shall be imposed in its maximum period, respectively, upon any physician or midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist in causing the same.chanrobles virtual law library

Any pharmacist who, without the proper prescription from a physician, shall dispense any abortive shall suffer arresto mayor and a fine not exceeding 1,000 pesos.c

GELUZ V. CA

Nita Villanueva came to know the defendant (Antonio Geluz) for the first time in 1948 — through her aunt Paula Yambot. In 1950 she became pregnant by her present husband before they were legally married. Desiring to conceal her pregnancy from her parent, and acting on the advice of her aunt, she had herself aborted by the defendant. After her marriage with the plaintiff, she again became pregnant. As she was then employed in the Commission on Elections and her pregnancy proved to be inconvenient, she had herself aborted again by the defendant in October 1953. Less than two years later, she again became pregnant. On February 21, 1955, accompanied by her sister Purificacion and the latter's daughter Lucida, she again repaired to the defendant's clinic on Carriedo and P. Gomez streets in Manila, where the three met the defendant and his wife. Nita was again aborted, of a two-month old foetus, in consideration of the sum of fifty pesos, Philippine currency. The plaintiff was at this time in the province of Cagayan, campaigning for his election to the provincial board; he did not know of, nor gave his consent, to the abortion.

FACTS:
1. Her present husband impregnated Nita Villanueva before they were legally married.

2. Desiring to conceal her pregnancy from the parent, she had herself aborted by petitioner Antonio Geluz.

3. After her marriage, she again became pregnant. As she was then employed in the COMELEC and her pregnancy proved to be inconvenient, she had herself aborted again by Geluz.

4. Less than 2 years later, Nita incurred a third abortion of a two-month old fetus, in consideration of the sum of P50.00.

5. Her husband did not know of, nor consented to the abortion.

6. Hence Oscar Lazo, private respondent, sued petitioner for damages based on the third and last abortion.

7. The trial court rendered judgment ordering Antonio Geluz to pay P3,000.00 as damages, P700.00 as attorney’s fee and the cost of the suit. Court of Appeals affirmed the decision.

ISSUE:
Is an unborn child covered with personality so that if the unborn child incurs injury, his parents may recover damages from the ones who caused the damage to the unborn child?

RULING:

1. Personality begins at conception. This personality is called presumptive personality. It is, of course, essential that birth should occur later, otherwise the fetus will be considered as never having possessed legal personality.

2. Since an action for pecuniary damages on account of injury or death pertains primarily to the one injured, it is easy to see that if no action for damages could be instituted on behalf of the unborn child on account of injuries it received, no such right of action could derivatively accrue to its parents or heirs.

3. In fact, even if a cause of action did accrue on behalf of the unborn child, the same was extinguished by its pre-natal death, since no transmission to anyone can take place from one that lacked juridical personality.

4. It is no answer to invoke the presumptive personality of a conceived child under Article 40 of the Civil Code because that same article expressly limits such provisional personality by imposing the condition that the child should be subsequently born alive.

5. In the present case, the child was dead when separated from its mother’s womb.
This is not to say that the parents are not entitled to damages. However, such damages must be those inflicted directly upon them, as distinguished from injury or violation of the rights of the deceased child.

It is unquestionable that the appellant's act in provoking the abortion of appellee's wife, without medical necessity to warrant it, was a criminal and morally reprehensible act, that can not be too severely condemned; and the consent of the woman or that of her husband does not excuse it. But the immorality or illegality of the act does not justify an award of damage that, under the circumstances on record, have no factual or legal basis.

The decision appealed from is reversed, and the complaint ordered dismissed. Without costs.