VOIDABLE MARRIAGES

G.R. No. L-27930 November 26, 1970

AURORA A. ANAYA, plaintiff-appellant, 
vs.
FERNANDO O. PALAROAN, defendant-appellee.

Appeal from an order of dismissal, issued motu proprio by the Juvenile & Domestic
Relations Court, Manila, of a complaint for annulment of marriage, docketed therein as
Civil Case No. E-00431, entitled "Aurora A. Anaya, plaintiff vs. Fernando O. Palaroan,
defendant."

The complaint in said Civil Case No. E-00431 alleged, inter alia, that plaintiff Aurora and
defendant Fernando were married on 4 December 1953; that defendant Fernando filed an
action for annulment of the marriage on 7 January 1954 on the ground that his consent
was obtained through force and intimidation, which action was docketed in the Court of
First Instance of Manila as Civil Case No. 21589; that judgment was rendered therein on
23 September 1959 dismissing the complaint of Fernando, upholding the validity of the
marriage and granting Aurora's counterclaim; that (per paragraph IV) while the amount of
the counterclaim was being negotiated "to settle the judgment," Fernando had divulged to
Aurora that several months prior to their marriage he had pre-marital relationship with a
close relative of his; and that "the non-divulgement to her of the aforementioned pre-
marital secret on the part of defendant that definitely wrecked their marriage, which
apparently doomed to fail even before it had hardly commenced ... frank disclosure of
which, certitude precisely precluded her, the Plaintiff herein from going thru the marriage
that was solemnized between them constituted 'FRAUD', in obtaining her consent, within
the contemplation of No. 4 of Article 85 of the Civil Code" (sic) (Record on Appeal, page 3).
She prayed for the annulment of the marriage and for moral damages.

Defendant Fernando, in his answer, denied the allegation in paragraph IV of the complaint
and denied having had pre-marital relationship with a close relative; he averred that under
no circumstance would he live with Aurora, as he had escaped from her and from her
relatives the day following their marriage on 4 December 1953; that he denied having
committed any fraud against her. He set up the defenses of lack of cause of action and
estoppel, for her having prayed in Civil Case No. 21589 for the validity of the marriage and
her having enjoyed the support that had been granted her. He counterclaimed for damages
for the malicious filing of the suit. Defendant Fernando did not pray for the dismissal of
the complaint but for its dismissal "with respect to the alleged moral damages."

Plaintiff Aurora filed a reply with answer to the counterclaim, wherein she alleged:

(1) that prior to their marriage on 4 December 1953, he paid court to her,
and pretended to shower her with love and affection not because he really
felt so but because she merely happened to be the first girl available to
marry so he could evade marrying the close relative of his whose immediate
members of her family were threatening him to force him to marry her (the
close relative);

(2) that since he contracted the marriage for the reason intimated by him,
and not because he loved her, he secretly intended from the very beginning
 not to perform the marital duties and obligations appurtenant thereto, and
furthermore, he covertly made up his mind not to live with her;

(3) that the foregoing clandestine intentions intimated by him were

prematurely concretized for him, when in order to placate and appease the
immediate members of the family of the first girl (referent being the close
relative) and to convince them of his intention not to live with plaintiff,
carried on a courtship with a third girl with whom, after gaining the latter's
love cohabited and had several children during the whole range of nine years
that Civil Case No. 21589, had been litigated between them (parties); (Record
on Appeal, pages 10-11)

Failing in its attempt to have the parties reconciled, the court set the case for trial on 26
August 1966 but it was postponed. Thereafter, while reviewing the expendiente, the court
realized that Aurora's allegation of the fraud was legally insufficient to invalidate her
marriage, and, on the authority of Brown vs. Yambao, 102 Phil. 168, holding:

It is true that the wife has not interposed prescription as a defense.

Nevertheless, the courts can take cognizance thereof, because actions
seeking a decree of legal separation, or annulment of marriage, involve
public interest, and it is the policy of our law that no such decree be issued
if any legal obstacles thereto appear upon the record. —

the court a quo required plaintiff to show cause why her complaint should
not be dismissed. Plaintiff Aurora submitted a memorandum in compliance
therewith, but the court found it inadequate and thereby issued an order,
dated 7 October 1966, for the dismissal of the complaint; it also denied
reconsideration.

The main issue is whether or not the non-disclosure to a wife by her husband of his pre-
marital relationship with another woman is a ground for annulment of marriage.

We must agree with the lower court that it is not. For fraud as a vice of consent in
marriage, which may be a cause for its annulment, comes under Article 85, No. 4, of the
Civil Code, which provides:

ART. 85. A marriage may be annulled for any of the following causes,
existing at the time of the marriage:

xxx xxx xxx

(4) That the consent of either party was obtained by fraud, unless such party
afterwards, with full knowledge of the facts constituting the fraud, freely
cohabited with the other as her husband or his wife, as the case may be;

This fraud, as vice of consent, is limited exclusively by law to those kinds or

species of fraud enumerated in Article 86, as follows:

ART. 86. Any of the following circumstances shall constitute fraud referred
to in number 4 of the preceding article:
 (1) Misrepresentation as to the identity of one of the
contracting parties;

(2) Non-disclosure of the previous conviction of the other party

of a crime involving moral turpitude, and the penalty imposed
was imprisonment for two years or more;

(3) Concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her
husband.

No other misrepresentation or deceit as to character, rank, fortune or

chastity shall constitute such fraud as will give grounds for action for the
annulment of marriage.

The intention of Congress to confine the circumstances that can constitute fraud as
ground for annulment of marriage to the foregoing three cases may be deduced from the
fact that, of all the causes of nullity enumerated in Article 85, fraud is the only one given
special treatment in a subsequent article within the chapter on void and voidable
marriages. If its intention were otherwise, Congress would have stopped at Article 85, for,
anyway, fraud in general is already mentioned therein as a cause for annulment. But
Article 86 was also enacted, expressly and specifically dealing with "fraud referred to in
number 4 of the preceding article," and proceeds by enumerating the specific frauds
(misrepresentation as to identity, non-disclosure of a previous conviction, and
concealment of pregnancy), making it clear that Congress intended to exclude all other
frauds or deceits. To stress further such intention, the enumeration of the specific frauds
was followed by the interdiction: "No other misrepresentation or deceit as to character,
rank, fortune or chastity shall constitute such fraud as will give grounds for action for the
annulment of marriage."

Non-disclosure of a husband's pre-marital relationship with another woman is not one of

the enumerated circumstances that would constitute a ground for annulment; and it is
further excluded by the last paragraph of the article, providing that "no other
misrepresentation or deceit as to ... chastity" shall give ground for an action to annul a
marriage. While a woman may detest such non-disclosure of premarital lewdness or feel
having been thereby cheated into giving her consent to the marriage, nevertheless the law
does not assuage her grief after her consent was solemnly given, for upon marriage she
entered into an institution in which society, and not herself alone, is interested. The
lawmaker's intent being plain, the Court's duty is to give effect to the same, whether it
agrees with the rule or not.

But plaintiff-appellant Anaya emphasizes that not only has she alleged "non-divulgement"
(the word chosen by her) of the pre-marital relationship of her husband with another
woman as her cause of action, but that she has, likewise, alleged in her reply that
defendant Fernando paid court to her without any intention of complying with his marital
duties and obligations and covertly made up his mind not to live with her. Plaintiff-
appellant contends that the lower court erred in ignoring these allegations in her reply.

This second set of averments which were made in the reply (pretended love and absence of
intention to perform duties of consortium) is an entirely new and additional "cause of
action." According to the plaintiff herself, the second set of allegations is "apart, distinct
and separate from that earlier averred in the Complaint ..." (Record on Appeal, page 76).
Said allegations were, therefore, improperly alleged in the reply, because if in a reply a
party-plaintiff is not permitted to amend or change the cause of action as set forth in his
complaint (Calo vs. Roldan, 76 Phil. 445), there is more reason not to allow such party to
allege a new and additional cause of action in the reply. Otherwise, the series of pleadings
of the parties could become interminable.

On the merits of this second fraud charge, it is enough to point out that any secret
intention on the husband's part not to perform his marital duties must have been
discovered by the wife soon after the marriage: hence her action for annulment based on
that fraud should have been brought within four years after the marriage. Since
appellant's wedding was celebrated in December of 1953, and this ground was only
pleaded in 1966, it must be declared already barred.

FOR THE FOREGOING REASONS, the appealed order is hereby affirmed. No costs.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo and Villamor,
JJ., concur.

Dizon and Makasiar, JJ., are on leave.

G.R. No. L-15853             July 27, 1960

FERNANDO AQUINO, petitioner, 
vs.
CONCHITA DELIZO, respondent.

GUTIERREZ DAVID, J.:

This is a petition for certiorari to review a decision of the Court of Appeals affirming that of
the Court of First Instance of Rizal which dismissed petitioner's complaint for annulment
of his marriage with respondent Conchita Delizo.

The dismissed complaint, which was filed on September 6, 1955, was based on the ground
of fraud, it being alleged, among other things, that defendant Conchita Delizo, herein
respondent, at the date of her marriage to plaintiff, herein petitioner Fernando Aquino, on
December 27, 1954, concealed from the latter that fact that she was pregnant by another
man, and sometime in April, 1955, or about four months after their marriage, gave birth to
a child. In her answer, defendant claimed that the child was conceived out of lawful
wedlock between her and the plaintiff.

At the trial, the attorney's for both parties appeared and the court a quo ordered Assistant
Provincial Fiscal Jose Goco to represent the State in the proceedings to prevent collusion.
Only the plaintiff however, testified and the only documentary evidence presented was the
marriage contract between the parties. Defendant neither appeared nor presented any
evidence despite the reservation made by her counsel that he would present evidence on a
later date.

On June 16, 1956, the trial court — noting that no birth certificate was presented to show
that the child was born within 180 days after the marriage between the parties, and
holding that concealment of pregnancy as alleged by the plaintiff does not constitute such
fraud sa would annul a marriage — dismissed the complaint. Through a verified "petition
to reopen for reception of additional evidence", plaintiff tried to present the certificates of
birth and delivery of the child born of the defendant on April 26, 1955, which documents,
according to him, he had failed to secure earlier and produce before the trial court thru
excusable negligence. The petition, however, was denied.

On appeal to the Court of Appeals, that court held that there has been excusable neglect
in plaintiff's inability to present the proof of the child's birth, through her birth certificate,
and for that reason the court a quo erred in denying the motion for reception of additional
evidence. On the theory, however, that it was not impossible for plaintiff and defendant to
have had sexual intercourse during their engagement so that the child could be their own,
and finding unbelievable plaintiff's claim that he did not notice or even suspect that
defendant was pregnant when he married her, the appellate court, nevertheless, affirmed
the dismissal of the complaint.

On March 17, 1959, plaintiff filed a motion praying that the decision be reconsidered, or, if
such reconsideration be denied, that the case be remanded to the lower court for new trial.
In support of the motion, plaintiff attached as annexes thereof the following documents:
 1. Affidavit of Cesar Aquino (Annex A) (defendant's brother-in-law and plaintiff's
brother, with whom defendant was living at the time plaintiff met, courted and
married her, and with whom defendant has begotten two more children, aside from
her first born, in common-law relationship) admitting that he is the father of
defendant's first born, Catherine Bess Aquino, and that he and defendant hid her
pregnancy from plaintiff at the time of plaintiff's marriage to defendant;

2. Affidavit of defendant, Conchita Delizo (Annex "B") admitting her pregnancy by

Cesar Aquino, her brother-in-law and plaintiff's own brother, at the time of her
marriage to plaintiff and her having hidden this fact from plaintiff before and up to
the time of their marriage;

3. Affidavit of Albert Powell (Annex "C") stating that he knew Cesar Aquino and
defendant lived together as husband and wife before December 27, 1954, the date
of plaintiff's marriage to defendant;

4. Birth Certificate of defendant's first born, Catherine Bess Aquino showing her
date of birth to be April 26, 1955;

5. Birth Certificate (Annex "D") of Carolle Ann Aquino, the second child of defendant
with Cesar Aquino, her brother-in-law;

6. Birth Certificate (Annex "E") of Chris Charibel Aquino, the third child of Cesar
Aquino and defendant; and

7. Pictures of defendant showing her natural plumpness as early as 1952 to as late

as November, 1954, the November, 1954 photo itself does not show defendant's
pregnancy which must have been almost four months old at the time the picture
was taken.

Acting upon the motion, the Court of Appeals ordered the defendant Conchita Delizo and
Assistant Provincial Fiscal of Rizal, who was representing the Government, to answer the
motion for reconsideration, and deferred action on the prayer for new trial until after the
case is disposed of. As both the defendant and the fiscal failed to file an answer, and
stating that it "does not believe the veracity of the contents of the motion and its annexes",
the Court of Appeals, on August 6, 1959, denied the motion. From that order, the plaintiff
brought the case to this Court thru the present petition for certiorari.

After going over the record of the case, we find that the dismissal of plaintiff's complaint
cannot be sustained.

Under the new Civil Code, concealment by the wife of the fact that at the time of the
marriage, she was pregnant by a man other than her husband constitutes fraud and is
ground for annulment of marriage. (Art. 85, par. (4) in relation to Art. 86, par. (3). In the
case of Buccat vs. Buccat (72 Phil., 19) cited in the decision sought to be reviewed, which
was also an action for the annulment of marriage on the ground of fraud, plaintiff's claim
that he did not even suspect the pregnancy of the defendant was held to be unbelievable,
it having been proven that the latter was already in an advanced stage of pregnancy (7th
month) at the time of their marriage. That pronouncement, however, cannot apply to the
case at bar. Here the defendant wife was alleged to be only more than four months
pregnant at the time of her marriage to plaintiff. At that stage, we are not prepared to say
that her pregnancy was readily apparent, especially since she was "naturally plump" or fat
as alleged by plaintiff. According to medical authorities, even on the 5th month of
pregnancy, the enlargement of a woman's abdomen is still below the umbilicus, that is to
say, the enlargement is limited to the lower part of the abdomen so that it is hardly
noticeable and may, if noticed, be attributed only to fat formation on the lower part of the
abdomen. It is only on the 6th month of pregnancy that the enlargement of the woman's
abdomen reaches a height above the umbilicus, making the roundness of the abdomen
more general and apparent. (See Lull, Clinical Obstetrics, p. 122) If, as claimed by plaintiff,
defendant is "naturally plump", he could hardly be expected to know, merely by looking,
whether or not she was pregnant at the time of their marriage more so because she must
have attempted to conceal the true state of affairs. Even physicians and surgeons, with the
aid of the woman herself who shows and gives her subjective and objective symptoms, can
only claim positive diagnosis of pregnancy in 33% at five months. and 50% at six months.
(XI Cyclopedia of Medicine, Surgery, etc. Pregnancy, p. 10).

The appellate court also said that it was not impossible for plaintiff and defendant to have
had sexual intercourse before they got married and therefore the child could be their own.
This statement, however, is purely conjectural and finds no support or justification in the
record.

Upon the other hand, the evidence sought to be introduced at the new trial, taken together
with what has already been adduced would, in our opinion, be sufficient to sustain the
fraud alleged by plaintiff. The Court of Appeals should, therefore, not have denied the
motion praying for new trial simply because defendant failed to file her answer thereto.
Such failure of the defendant cannot be taken as evidence of collusion, especially since a
provincial fiscal has been ordered of represent the Government precisely to prevent such
collusion. As to the veracity of the contents of the motion and its annexes, the same can
best be determined only after hearing evidence. In the circumstance, we think that justice
would be better served if a new trial were ordered.

Wherefore, the decision complained of is set aside and the case remanded to the court a
quo for new trial. Without costs.
G.R. No. L-12790             August 31, 1960

JOEL JIMENEZ, plaintiff-appellee, 
vs.
REMEDIOS CAÑIZARES, defendant. 
Republic of the Philippines, intervenor-appellant.

Acting Solicitor General Guillermo E. Torres and Solicitor Pacifico P. de Castro for appellant.
Climaco, Ascarraga and Silang for appellee.

PADILLA, J.:

In a complaint filed on 7 June 1955 in the Court of First Instance of Zamboanga the
plaintiff Joel Jimenez prays for a decree annulling his marriage to the defendant Remedios
Cañizares contracted on 3 August 1950 before a judge of the municipal court of
Zamboanga City, upon the ground that the office of her genitals or vagina was to small to
allow the penetration of a male organ or penis for copulation; that the condition of her
genitals as described above existed at the time of marriage and continues to exist; and that
for that reason he left the conjugal home two nights and one day after they had been
married. On 14 June 1955 the wife was summoned and served a copy of the complaint.
She did not file an answer. On 29 September 1956, pursuant to the provisions of article 88
of the Civil Code, the Court directed the city attorney of Zamboanga to inquire whether
there was a collusion, to intervene for the State to see that the evidence for the plaintiff is
not a frame-up, concocted or fabricated. On 17 December 1956 the Court entered an order
requiring the defendant to submit to a physical examination by a competent lady
physician to determine her physical capacity for copulation and to submit, within ten days
from receipt of the order, a medical certificate on the result thereof. On 14 March 1957 the
defendant was granted additional five days from notice to comply with the order of 17
December 1956 with warning that her failure to undergo medical examination and submit
the required doctor's certificate would be deemed lack of interest on her part in the case
and that judgment upon the evidence presented by her husband would be rendered.

After hearing, at which the defendant was not present, on 11 April 1957 the Court entered
a decree annulling the marriage between the plaintiff and the defendant. On 26 April 1957
the city attorney filed a motion for reconsideration of the decree thus entered, upon the
ground, among others, that the defendant's impotency has not been satisfactorily
established as required by law; that she had not been physically examined because she
had refused to be examined; that instead of annulling the marriage the Court should have
punished her for contempt of court and compelled her to undergo a physical examination
and submit a medical certificate; and that the decree sought to be reconsidered would
open the door to married couples, who want to end their marriage to collude or connive
with each other by just alleging impotency of one of them. He prayed that the complaint be
dismissed or that the wife be subjected to a physical examination. Pending resolution of
his motion, the city attorney timely appealed from the decree. On 13 May 1957 the motion
for reconsideration was denied.

The question to determine is whether the marriage in question may be annulled on the
strength only of the lone testimony of the husband who claimed and testified that his wife
was and is impotent. The latter did not answer the complaint, was absent during the
hearing, and refused to submit to a medical examination.
Marriage in this country is an institution in which the community is deeply interested. The
state has surrounded it with safeguards to maintain its purity, continuity and
permanence. The security and stability of the state are largely dependent upon it. It is the
interest of each and every member of the community to prevent the bringing about of a
condition that would shake its foundation and ultimately lead to its destruction. The
incidents of the status are governed by law, not by will of the parties. The law specifically
enumerates the legal grounds, that must be proved to exist by indubitable evidence, to
annul a marriage. In the case at bar, the annulment of the marriage in question was
decreed upon the sole testimony of the husband who was expected to give testimony
tending or aiming at securing the annulment of his marriage he sought and seeks.
Whether the wife is really impotent cannot be deemed to have been satisfactorily
established, becase from the commencement of the proceedings until the entry of the
decree she had abstained from taking part therein. Although her refusal to be examined or
failure to appear in court show indifference on her part, yet from such attitude the
presumption arising out of the suppression of evidence could not arise or be inferred
because women of this country are by nature coy, bashful and shy and would not submit
to a physical examination unless compelled to by competent authority. This the Court may
do without doing violence to and infringing in this case is not self-incrimination. She is not
charged with any offense. She is not being compelled to be a witness against
herself.1 "Impotency being an abnormal condition should not be presumed. The
presumption is in favor of potency."2 The lone testimony of the husband that his wife is
physically incapable of sexual intercourse is insufficient to tear asunder the ties that have
bound them together as husband and wife.

The decree appealed from is set aside and the case remanded to the lower court for further
proceedings in accordance with this decision, without pronouncement as to costs.

Paras, C.J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera,
Gutierrez David, and Dizon, JJ. concur.