11/6/2019 G.R. No.

L-34132

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Republic of the Philippines

EN BANC

G.R. No. L-34132 July 29, 1972

LUCY SOMOSA-RAMOS, petitioner,

T. R. Reyes & Associates for petitioner.

Soleto J. Erames for respondents.

FERNANDO, J.:p
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 separation before the
lapse of six months from the filing of the petition, would likewise preclude the court from acting on a motion for preliminary mandatory injunction applied for as an
ancillary remedy to such a suit. Respondent Cipriano Vamenta, Jr., of the Court of First Instance of Negros Oriental, answered the question in the affirmative, in
view of the absolute tenor of such Civil Code provision, which reads thus: "An action for legal separation shall in no case be tried before six months shall have
elapsed since the filing of the petition." He therefore ordered the suspension, upon the plea of the other respondent the husband Clemente G. Ramos, of the
hearing on a motion for a writ of preliminary mandatory injunction filed by petitioner at the same time the suit for legal separation was instituted. Petitioner, Lucy
Somosa-Ramos, the wife who brought the action for legal separation would dispute such a ruling. Hence, this certiorari proceeding. As will be shown later there is
justification for such a move on the part of petitioner. The respondent Judge ought to have acted differently. The plea for a writ of certiorari must be granted.

The pleadings show that on June 18, 1971, petitioner filed Civil Case No. 5274 in the sala of respondent Judge
against respondent Clemente Ramos for legal separation, on concubinage on the respondent's part and an attempt
by him against her life being alleged. She likewise sought the issuance of a writ of preliminary mandatory injunction
for the return to her of what she claimed to be her paraphernal and exclusive property, then under the administration
and management of respondent Clemente Ramos. There was an opposition to the hearing of such a motion, dated
July 3, 1971, based on Article 103 of the Civil Code. It was further manifested by him in a pleading dated July 16,
1971, that if the motion asking for preliminary mandatory injunction were heard, the prospect of the reconciliation of
the spouses would become even more dim. Respondent Judge ordered the 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 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 a manifestation from parties in the case submitting the matter without further
arguments.

After a careful consideration of the legal question presented, it is the holding of this Court that Article 103 the Civil
Code is not an absolute bar to the hearing motion for preliminary injunction prior to the expiration of the six-month
period.

1. It is understandable why there should be a period during which the court is precluded from acting. Ordinarily of
course, no such delay is permissible. Justice to parties would not thereby be served. The sooner the dispute is
resolved, the better for all concerned. A suit for legal separation, however, is something else again. It involves a
relationship on which the law for the best reasons would attach the quality of permanence. That there are times
when domestic felicity is much less than it ought to be is not of course to be denied. Grievances, whether fancied or
real, may be entertained by one or both of the spouses. There may be constant bickering. The loss affection on the
part of one or both may be discernible. Nonetheless, it will not serve public interest, much less the welfare of the
husband or the wife, to allow 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 realism of the law that for certain cases, adultery on the
part of the wife and concubinage on the part of the husband, or an attempt of one spouse against the life of the
other,1 it recognizes, albeit reluctantly, that the couple is 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 healing balm of time may
aid in the process. Hopefully, the guilty parties may mend his or her ways, and the offended party may in turn exhibit
magnanimity. Hence, the interposition of a six-month period before an action for legal separation is to be tried.

The court where the action is pending according to Article 103 is to remain passive. It must let the parties alone in
the meanwhile. It is precluded from hearing the suit. There is then some plausibility for the view of the lower court
that an ancillary motion such as one for preliminary mandatory injunction is not to be acted on. If it were otherwise,
there would be a 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 to assert itself is discernible from what is set forth in the
following article. It reads thus: "After the filing of the petition for legal separation, the spouse shall be entitled to live
separately from each other and manage their respective property. The husband shall continue to manage the
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conjugal partnership property but if the court deems it proper, it may appoint another 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 the income or of the capital except in accordance with the orders of the 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, 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 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 between the spouses. The
recital of their grievances against each other in court may only fan their already inflamed passions against one
another, and the lawmaker has imposed the period to give them opportunity for dispassionate reflection. But this
practical expedient, necessary to carry out legislative policy, does not have the effect of overriding other provisions
such as the determination of the custody of the children and alimony and support pendente lite according to the
circumstance ... The law expressly 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 facts, rank injustice may be caused."4 At
any rate, from the time of the issuance of the order complained of on August 4, 1971, more than six months certainly
had elapsed. Thus there can be no more impediment for the lower court acting on the motion of petitioner for the
issuance of a writ of preliminary mandatory injunction.

WHEREFORE, the plea of petitioner for a writ of certiorari is granted, and the order of respondent Court of August 4,
1971, suspending the hearing on the petition for a writ of preliminary mandatory injunction is set aside. Respondent
Judge is directed to proceed without delay to hear the motion for preliminary mandatory injunction. Costs against
respondent Clemente G. Ramos.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, Makasiar, Antonio and Esguerra, JJ., concur.

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.

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.

Footnotes

1 Article 97 of the Civil Code reads: "A petition for legal separation may be filed: (1) For adultery on the
part of the wife and for concubinage on the part of the husband as defined in the Penal Code; or (2) An
attempt by one spouse against the life of the other."

2 Art. 104, Civil Code.

3 99 Phil. 709 (1956).

4 Ibid., p. 712.

The Lawphil Project - Arellano Law Foundation

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