Title Ix Parental Authority - Ra 9255

A.M. No. RTJ-12-2326.January 30, 2013.
*
(Formerly A.M. OCA I.P.I. No. 11-3692-RTJ)
GEOFFREY BECKETT, complainant, vs. JUDGE OLEGARIO

R. SARMIENTO, JR., Regional Trial Court, Branch 24, Cebu
City, respondent.
Administrative Law; Court Personnel; Judges; Gross Ignorance of the

Law; Gross ignorance of the law on the part of a judge presupposes an
appalling lack of familiarity with simple rules of law or procedures and
well-established jurisprudence which tends to erode the public trust in the
competence and fairness of the court which he personifies.Gross ignorance
of the law on the part of a judge presupposes an appalling lack of
familiarity with simple rules of law or procedures and well-established
jurisprudence which tends to erode the public trust in the competence and
fairness of the court which he personifies. Not to know the law as basic,
almost elementary, as the Rules of Court, or acting in disregard of
established rule of law as if he were not aware of the same constitutes
gross ignorance whence no one is excused, especially an RTC judge.
Civil Law; Child Custody; Res Judicata; The matter of custody is not
permanent and unalterable and can always be re-examined and adjusted;
In a very real sense, then, a judgment involving the custody of a minor child
cannot be accorded the force and effect of res judicata.Respondent judge,
in granting provisional custody over Geoffrey, Jr. in favor of his mother,
Eltesa, did not disregard the res judicata rule. The more appropriate
description of the legal situation engendered by the March 15, 2011 Order
issued amidst the persistent plea of the child not to be returned to his
father, is that respondent judge exhibited fidelity to jurisprudential
command to accord primacy to the welfare and interest of a minor child. As
it were, the matter of custody, to borrow from Espiritu v. Court of Appeals,
242 SCRA 362 (1995), is not permanent and unalterable [and] can always
be re-examined and adjusted. And as aptly observed in a separate opinion
in Dacasin v. Dacasin, 611 SCRA 657 (2010), a custody agreement can

never be regarded as permanent and un_______________
* THIRD DIVISION.
495
VOL. 689, JANUARY 30, 2013

Beckett vs. Sarmiento, Jr.
495
bending, the simple reason being that the situation of the parents
and even of the child can change, such that sticking to the agreed
arrangement would no longer be to the latters best interest. In a very real
sense, then, a judgment involving the custody of a minor child cannot be
accorded the force and effect ofres judicata.
Same; Same; In disputes concerning post-separation custody over a
minor, the well-settled rule is that no child under seven (7) years of age
shall be separated from the mother, unless the court finds compelling
reasons to order otherwise.In disputes concerning post-separation
custody over a minor, the well-settled rule is that no child under seven (7)
years of age shall be separated from the mother, unless the court finds
compelling reasons to order otherwise. And if already over 7 years of age,
the childs choice as to which of his parents he prefers to be under custody
shall be respected, unless the parent chosen proves to be unfit. Finally,
in Perez v. Court of Appeals, 255 SCRA 661 (1996), We held that in custody
cases, the foremost consideration is always the welfare and best interest of
the child, as reflected in no less than the U.N. Convention on the Rights of
the Child which provides that [i]n all actions concerning children, whether
undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interests of the
child shall be a primary consideration.
ADMINISTRATIVE MATTER in the Supreme Court. Gross

Ignorance of the Law, Manifest Partiality and Dereliction and
Neglect of Duty.
The facts are stated in the opinion of the Court.
VELASCO, JR.,J.:
[I]n all questions relating to the care, custody, education and
property of the children, the latters welfare is paramount. This
means that the best interest of the minor can override
procedural rules and even the rights of parents to the custody
of their children. Since, in this case, the very life and existence
of the minor is at stake and the child is in an age when she can
exercise an intelligent choice,
496
496
SUPREME COURT REPORTS ANNOTATED

the courts can do no less than respect, enforce and give
meaning and substance to that choice and uphold her right to
live in an atmosphere conducive to her physical, moral and
intellectual development.1 x x x
The Case
This case arose from a complaint filed by Geoffrey Beckett

charging Judge Olegario R. Sarmiento, Jr. of the Regional Trial
Court (RTC) of Cebu City, Branch 24, with gross ignorance of the
law, manifest partiality and dereliction and neglect of duty allegedly
committed in relation to Sp. Proc. No. 18182-CEB, entitled Geoffrey
Beckett v. Eltesa Densing Beckett, while pending before that court.
The Antecedent Facts
Geoffrey Beckett (Beckett or Complainant), an Australian

national, was previously married to Eltesa Densing Beckett (Eltesa),
a Filipina. Out of the marriage was born on June 29, 2001, Geoffrey
Beckett, Jr. (Geoffrey, Jr.).
In his Complaint-Affidavit,2 Beckett alleged that their union was,
from the start, far from ideal. In fact, according to him, they
eventually separated and, worse still, they sued each other.
In 2006, Eltesa filed a case against Beckett for violation of
Republic Act No. (RA) 7610, otherwise known as theViolence against
Women and Children Act, followed by a suit for the declaration of
nullity of their marriage, docketed as Civil Case No. CEB-32254.
Both cases ended in the sala of Judge Olegario Sarmiento, Jr.
(respondent or Judge Sarmiento). For his
_______________
1 Luna v. Intermediate Appellate Court, No. L-68374, June 18, 1985, 137 SCRA 7,
16.
2 Docketed as OCA I.P.I. No. 11-3692-RTJ.
497
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497
part, Beckett commenced criminal charges against Eltesa, one of

which was for adultery.
The couples initial legal battle ended when Judge Sarmiento, on
September 25, 2006 in Civil Case No. CEB-32254, rendered
judgment3 based on a compromise agreement in which Eltesa and
Beckett agreed and undertook, among others, to cause the dismissal
of all pending civil and criminal cases each may have filed against
the other. They categorically agreed too that Beckett shall have full
and permanent custody over Geoffrey, Jr., then five (5) years old,
subject to the visitorial rights of Eltesa.
Thereafter, Beckett left for Australia, taking Geoffrey, Jr. with

him. As with his three other children from previous relationships, so
Beckett alleged, he cared and provided well for Geoffrey, Jr.
Moreover, as agreed upon, they would come and see Eltesa in Cebu
every Christmas.
In 2007, Beckett obtained a divorce from Eltesa in Australia. This
notwithstanding, the yearly Christmas visits continued. In the 2010
visit, Beckett consented to have Geoffrey, Jr. stay with Eltesa even
after the holidays, provided she return the child on January 9, 2011.
January 9 came and went but Geoffrey, Jr. remained with Eltesa,
prompting Beckett to file a petition against Eltesa for violation of RA
7610. Docketed as Sp. Proc. No. 18182-CEB,4 this petition was again
raffled to the sala of Judge Sarmiento. And because Geoffrey
remained in the meantime in the custody of Eltesa, Beckett later
applied in Sp. Proc. No. 18182-CEB for the issuance of a writ
ofhabeas corpus.
Beckett further relates that, during the March 1, 2011 conference
on the application for habeas corpus, Geoffrey, Jr., then nine (9)
years old, displayed inside the courtroom hysterical conduct,
shouting and crying, not wanting to let go of
_______________
3 Rollo, pp. 16-18.
4 Referred to in certain pleadings and documents as a Civil Case No. 18182-CEB.
498
498

Eltesa and acting as though, he, the father, was a total stranger.
Despite Geoffrey Jr.s outburst, Judge Sarmiento issued an Order 5,
dated March 1, 2011, directing inter aliathe following: (1) Eltesa to
return Geoffrey, Jr. to Beckett; and (2) Beckett to bring the child in
the pre-trial conference set for March 15, 2001.
For some reason, the turnover of Geoffrey, Jr. to Beckett did not
materialize.
Beckett also alleged that while waiting for the March 15, 2011
pretrial conference to start, he saw one Helen Sy, purportedly a close
friend of Eltesa, enter Judge Sarmientos chambers. Then, during
the conference itself, Eltesa moved for reconsideration of the courts
March 1, 2011 Order, praying that it be set aside insofar as it
directed her to return the custody of Geoffrey, Jr. to Beckett. To this
partial motion, Beckett requested, and was granted, a period of five
(5) days to file his comment/opposition. Additionally, Beckett sought
the immediate implementation of the said March 1, 2011 Order. But
instead of enforcing said order and/or waiting for Becketts comment,
Judge Sarmiento, in open court, issued another order giving Eltesa
provisional custody over Geoffrey, Jr. and at the same time directing
the Department of Social Welfare and Development (DSWD) to
conduct a social case study on the child.
Weeks later, or in the March 30, 2011 setting, Beckett moved for
the reconsideration of the judges March 15, 2011 Order, on the main
contention that Judge Sarmiento can no longer grant provisional
custody to Eltesa in light of the adverted judgment on compromise
agreement. Also, according to him, during this March 30 proceeding,
respondent judge conversed with Eltesa in Cebuano, a dialect which
neither the former nor his counsel understood, and which they
(respondent and Eltesa) persisted on using despite requests that
they communicate in English or Filipino. Becketts lawyer then
_______________
5 Rollo, p. 37.
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VOL. 689, JANUARY 30, 2013

499
asked that he be allowed to confer in private with his client for a few
minutes but when they returned to the courtroom, the proceedings
had already been adjourned.
As his motion for reconsideration had remained unresolved as of
June 13, 2011, Beckett filed on that day an urgent motion to resolve.
Several hearings on the case were postponed because of the belated
submission by the DSWD of the case study report requested by
respondent judge.
It is upon the foregoing factual backdrop that Beckett has
instituted the instant complaint, docketed as A.M. OCA IPI No. 113692-RTJ, later redocketed as A.M. No. RTJ-12-2326. As argued,
respondent is liable for (1) gross ignorance of the law for granting
Eltesa provisional custody over Geoffrey Jr.; and (2) partiality by
committing acts of serious misconduct and irregularities in the
performance of official duties, such as but not limited to allowing one
Helen Sy to enter his chambers before the March 15, 2011 hearing,
his habit of conversing with Eltesa in the local dialect and for
adjourning a hearing while he was conferring with his counsel in
private. Beckett predicates his charge of dereliction and neglect of
duty on respondents alleged failure to resolve his motion for
reconsideration of the March 15, 2011 order giving provisional
custody of his child to his mother.
In his answer in response to the 1st Indorsement dated July 14,
2011 of the Office of the Court of Administrator (OCA), respondent
judge denied complainants allegations of partiality and of being
biased against the latter, particularly describing his order granting
Eltesa provisional custody as proper. In this regard, respondent
judge averred that, per his Order of March 30, 2011, he deferred
action on Becketts motion for reconsideration of the courts March
15, 2011 Order pending submission of the Social Case Study Report,
while the June 21, 2011 Order denying Becketts said motion for
reconsideration was based on that Social Case Study Report 6 of
Social
_______________
6 Dated March 28, 2011.
500
500

Welfare Officer Clavel Saycon, DWSD-Region VII, who recommended

that Geoffrey, Jr. be in the care and custody of the mother. As an
added observation, respondent judge stated that Beckett did not cry
Bias when he (respondent) approved the compromise agreement in
Civil Case CEB 32254 and when he later urged Beckett to
commencehabeas corpus proceedings. Attached to the letter-answer
are the case study reports submitted by the DSWD regional office,
one of which was prepared by psychologist Christine V.
Duhaylungsod,7 who elicited from Geoffrey, Jr. the following
information: that (1) complainant always leaves him to the care of
his older half-brother or his fathers girlfriends; (2) he was at one
time sent out of the house by one of complainants girlfriends and he
had to stay in the garage alone; and (3) he never wanted to stay with
complainant whom he feared and who once locked him in his room
without food. In their respective reports, Dr. Obra and Dr. Saycon, a
psychiatrist, both strongly recommended that custody over Geoffrey,
Jr. be given to Eltesa.
Respondent judge also denied knowing one Helen Sy adverted to

in the basic complaint and explained in some detail why he spoke at
one instance to Eltesa in Cebuano. He closed with a statement that
he issued his assailed Orders in good faith and that he had, as
sought by complainant, inhibited himself from further hearing SP
Proc. No. 18182-CEB.
In the Agenda Report dated March 8, 2012, the OCA regards the
complaint meritorious insofar as the charges for gross ignorance of
the law is concerned given that respondent judge issued his March
15, 2011 Order granting provisional custody in favor of Eltesa
despite the existence of the judicial compromise. The OCA, thus,
recommended that respondent judge be adjudged liable for gross
ignorance of the law and fined with stern warning. The inculpatory
portions of the OCAs evaluation report pertinently read:
_______________
7 Dated June 22, 2011.
501
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501
x x x A compromise agreement that is intended to resolve a matter

already under litigation is normally called a judicial compromise. Once it is
stamped with judicial imprimatur, it becomes more than a mere contract
binding upon the parties. x x x [I]t has the force of and effect of any other
judgment. x x x Thus, a compromise agreement that has been made and
duly approved by the court attains the effect and authority
of resjudicata x x x.
xxxx
The pertinent portion of the judgment on Compromise Agreement x x x,
which granted and transferred permanent custody of Geoffrey, Jr. to the
herein complainant is unequivocal. Moreover, the same order even allowed
complainant to bring with him Geoffrey, Jr. to Australia. Thus, in granting

Geoffrey, Jr.s custody to his mother in an Order issued on 15 March 2011
on a mere Motion for Partial Reconsideration, respondent judge violated a
basic and fundamental principle of res judicata. When the law is
elementary, not to be aware of it constitutes gross ignorance thereof. After
all, judges are expected to have more than just a modicum of acquaintance
with the statutes and procedural rules. Hence, the respondent judge is
guilty of gross ignorance of the law.
8
The OCA, however, effectively recommends the dismissal of the

charge of manifest partiality and other offenses for want of sufficient
substantiation, noting that the complainant has failed to adduce
substantial evidence to overcome the presumption of regularity in
the performance of judicial duties.
Anent the charge of Manifest Partiality, this Office finds the same not
supported by substantial evidence. In administrative proceedings, the
complainant bears the onus of establishing, by substantial evidence, the
averments in his complaint. Complainant failed to present substantial
evidence to show the alleged partiality and ignorance of respondent judge,
Mere suspicion that a judge is biased is not enough. Bare allegations of
partiality will not suffice in the absence of clear showing that will overcome
the presumption that the judge dispensed justice without fear or favor.
9
_______________
8 Rollo, pp. 127-128.
9 Id., at p. 128.
502
502

The Court also notes that, contrary to complainants pretense,

respondent judge had acted on his motion for reconsideration of the
contentious March 15, 2011 Order.
The OCAs recommendation for the dismissal of the complaint

insofar as it charges respondent judge with manifest partiality and
dereliction and neglect of duties is well-taken. The Court cannot
presume partiality and serious misconduct and irregularities based
on circumstances alleged in the complaint. Moreover, for serious
misconduct to obtain, the judicial act/s complained of should be
corrupt or inspired by an intention to violate the law or persistent
disregard of well-known legal precepts.10 Nothing in the records
tends to suggest that respondent judge was actuated by malice or
corrupt motives in issuing his disputed March 15, 2011 order
granting Eltesa custody of Geoffrey, Jr. despite the adverted
compromise agreement.
The Issue
The remaining issue then boils down to whether or not
respondent Judge Sarmiento is guilty of gross ignorance of the law.
The Courts Ruling
Gross ignorance of the law on the part of a judge presupposes an
appalling lack of familiarity with simple rules of law or procedures
and well-established jurisprudence which tends to erode the public
trust in the competence and fairness of the court which he
personifies. Not to know the law as basic, almost elementary, as the
Rules of Court, or acting in disregard of established rule of law as if
he were not aware of the
_______________
10 Francisco v. Cosico, A.M. No. CA-04-37, March 16, 2004, 425 SCRA 521, 525.

same constitutes gross ignorance whence no one is excused,
especially an RTC judge.11
Complainant has charged respondent judge with gross ignorance
of the law. He states in this regard that respondent judge, in
arbitrary defiance of his own Decision of September 25, 2006 which
constitutes res judicata or a bar to him to pass upon the issue of
Geoffrey, Jrs. custody, granted, via his March 15, 2011 Order,
provisional custody over Geoffrey, Jr. to Eltesa. The Decision
adverted to refers to the judgment on compromise agreement.
The Court cannot go along with complainants above posture.
Respondent judge, in granting provisional custody over Geoffrey,
Jr. in favor of his mother, Eltesa, did not disregard
the res judicata rule. The more appropriate description of the legal
situation engendered by the March 15, 2011 Order issued amidst the
persistent plea of the child not to be returned to his father, is that
respondent judge exhibited fidelity to jurisprudential command to
accord primacy to the welfare and interest of a minor child. As it
were, the matter of custody, to borrow from Espiritu v. Court of
Appeals,12 is not permanent and unalterable [and] can always be reexamined and adjusted. And as aptly observed in a separate opinion
in Dacasin v. Dacasin,13 a custody agreement can never be regarded
as permanent and unbending, the simple reason being that the
situation of the parents and even of the child can change, such that
sticking to the agreed arrangement would no longer be to the latters
best interest. In a very real sense, then, a judgment involving the
custody of a minor child cannot be accorded the force and effect
of resjudicata.
_______________
503
VOL. 689, JANUARY 30, 2013
503
11 Tiongco v. Salao, A.M. No. RTJ-06-2009, July 27, 2006, 496 SCRA 575, 585.
12 G.R. No. 115640, March 15, 1995, 242 SCRA 362, 369.
_______________
13 G.R. No. 168785, February 5, 2010, 611 SCRA 657, 675.
14 FAMILY CODE, Art. 213.

15 See FAMILY CODE, id.
504
504

Now to another point. In disputes concerning post-separation

custody over a minor, the well-settled rule is that no child under
seven (7) years of age shall be separated from the mother, unless the
court finds compelling reasons to order otherwise. 14 And if already
over 7 years of age, the childs choice as to which of his parents he
prefers to be under custody shall be respected, unless the parent
chosen proves to be unfit.15 Finally, inPerez v. Court of Appeals,16 We
held that in custody cases, the foremost consideration is always the
welfare and best interest of the child, as reflected in no less than the
U.N. Convention on the Rights of the Child which provides that [i]n
all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall
be a primary consideration.17
In the light of the foregoing, respondent judge cannot be held
guilty of the charges hurled by the complainant against him for the
reason that absent a finding of strong reasons to rule otherwise, the
preference of a child over 7 years of age as to whom he desired to live
with shall be respected. Moreover, custody, even if previously
granted by a competent court in favor of a parent, is not, to reiterate,
permanent. In Espiritu,18 We ruled that:
x x x [T]he matter of custody is not permanent and unalterable. If the
parent who was given custody suffers a future character change and
becomes unfit, the matter of custody can always be re-examined and
adjusted x x x. To be sure, the welfare, the best inte-
16 G.R. No. 118870, March 29, 1996, 255 SCRA 661, 669; citations omitted.
17 Id.; citing Article 3, number 1, CONVENTION ON THE RIGHTS OF THE CHILD , Adopted
by the General Assembly of the United Nations on November 20, 1989.
18 Supra note 12, at pp. 369-370; citation omitted.
505
VOL. 689, JANUARY 30, 2013

505
rests, the benefit, and the good of the child must be determined as of the
time that either parent is chosen to be the custodian. x x x
As Rosalind and Reginald Espiritu in Espiritu,19Geoffrey, Jr., at

the time when he persistently refused to be turned over to his father,
was already over 7 years of age. As such, he was very much capable
of deciding, based on his past experiences, with whom he wanted to
stay. Noteworthy too are the results of the interviews which were
reflected in the three reports previously mentioned, excerpts from
which are hereunder quoted, to wit:
x x x In so far as [Geoffrey, Jr.s] account of experience, being with his

fathers custody is something that he is afraid of and something he does
not want to happen again. However, being with his mother is the one (sic)
he is looking to (sic) and aspires.
xxxx
x x x Being in the custody of his mother is something (sic) he feel (sic)
secure and protected and this is manifested in the childs craving for his
mothers presence all the time and the desire to be always with her that
even (sic) he sleeps he wants his mother to embrace and hug him and cries
when he wakes up and he cannot see his mother.
xxxx
20
21
x x x [H]e locked me in the room. He always leave (sic) me. x x x they

keep fighting, Daddy and his girlfriend ... theyll get angry with (sic) me ...
Im scared with (sic) Daddy.
xxxx
Meanwhile, Ms. Barbo (the caregiver or yaya of Geoffrey, Jr.), expressed
peculiarities, Sa Daddy niya, [he] dd (sic) not fear his mom. Sa mommy
niya, [he] fear (sic) his dad.
22
23
_______________
19 Supra note 12.
20 Annex E, p. 5; citing Social Worker Clavel Saycons Report.
21 Id.
22 Id., at p. 6; citing DSWD Psychologist Christine V. Duhaylungsods Observation
Report dated April 22, 2011.
23 Id.
Complaint dismissed.
Notes.A judge, having applied for the position and appointed as
such, is presumed to know the lawwhen the law is so elementary,
not to be aware of it constitutes gross ignorance of the law.
(Ricablanca vs. Barillo, 643 SCRA 1 [2011])
To constitute gross ignorance of the law, it is not enough that the
subject decision, order or actuation of the respondent judge in the
performance of his official duties is contrary to existing law and
jurisprudence but, most importantly, he must be moved by bad faith,
fraud, dishonesty or corruption. (Lago vs. Abul, Jr., 665 SCRA 247
[2012])
o0o
506
506

With these, We see no reason to sustain the charge against

respondent judge for gross ignorance of the law. For clearly, absent
any evidence to the contrary, Geoffrey, Jr. chose to live with his
mother for a reason, which respondent judge, consistent with the
promotion of the best interest of the child, provisionally granted
through the issuance of the disputed March 15, 2011 Order. In fact,
in issuing the disputed Order, respondent judge rectified an error
previously made when he handed out the Judgment on Compromise
Agreement in 2006.
WHEREFORE, premises considered, the complaint is hereby
DISMISSED.
SO ORDERED.
Peralta, Abad, Mendoza and Leonen, JJ., concur.
128
Salientes vs. Abanilla

G.R. No. 162734. August 29, 2006.
MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO

B. SALIENTES,
and
ROSARIO
C.SALIENTES,
petitioners, vs. LORAN S.D. ABANILLA, HONORABLE JUDGE
PEDRO SABUNDAYO, JR., REGIONAL TRIAL COURT, BRANCH
203, MUNTINLUPA CITY, respondents.
Actions; Pleadings and Practice; Interlocutory Orders; Under Rule 41,
Section 1 of the Rules of Court, an interlocutory order is not appealable but
the aggrieved party may file an appropriate special action under Rule 65.
Under Rule 41, Section 1 of the Rules of Court, an interlocutory order is
not appealable but the aggrieved party may file an appropriate special
action under Rule 65. The aggrieved party must show that the court
gravely abused its discretion in issuing the interlocutory order. In the
present case, it is incumbent upon petitioners to show that the trial court
gravely abused its discretion in issuing the order.
Habeas Corpus; In a petition for habeas corpus, the childs welfare is
the supreme consideration.In a petition for habeas corpus, the childs
welfare is the supreme consideration. The Child and Youth Welfare Code
unequivocally provides that in all questions regarding the care and
custody, among others, of the child, his welfare shall be the paramount
consideration.
Same; It bears stressing that the order did not grant custody of the
minor to any of the parties but merely directed petitioners to produce the
minor in court and explain why private respondent is prevented from seeing
his child.It bears stressing that the order did not grant custody of the
minor to any of the parties but merely directed petitioners to produce the
minor in court and explain why private respondent is prevented from
seeing his child. This is in line with the directive in Section 9 of A.M. 0304-04-SC that within fifteen days after the filing of the answer or the
expiration of the period to file answer, the court shall issue an order
requiring the respondent (herein petitioners) to present the minor before
the court. This was exactly what the court did.
_______________
*
THIRD DIVISION.
129
VOL. 500, AUGUST 29, 2006
129

PETITION for review on certiorari of the decision and resolution of
the Court of Appeals.
Sta. Maria Law Office for petitioner.
Guerrero, Omaa, Acyatan, Larga
respondent.
QUISUMBING, J.:
Law
Office for
private
The instant petition assails the Decision dated November 10, 2003
of the Court of Appeals in CA-G.R. SP No. 75680, which dismissed
the petition for certiorari against the orders of the Regional Trial
Court in Special Proceedings No. 03-004. Likewise assailed is the
Court of Appeals Resolution dated March 19, 2004 denying
reconsideration.
1
Id., at pp. 73-80.
130
130

The facts of the case are as follows:

Private respondent Loran S.D. Abanilla and petitioner Marie
Antonette Abigail C. Salientes are the parents of the minor Lorenzo
Emmanuel S. Abanilla. They lived with Marie Antonettes parents,

petitioners Orlando B.Salientes and Rosario C. Salientes. Due to
in-laws problems, private respondent suggested to his wife that they
transfer to their own house, but Marie Antonette refused. So, he
alone left the house of the Salientes. Thereafter, he was prevented
from seeing his son.
Later, Loran S.D. Abanilla in his personal capacity and as the
representative of his son, filed a Petition for Habeas Corpus and
Custody, docketed as Special Proceedings No. 03-004 before the
Regional Trial Court of Muntinlupa City. On January 23, 2003, the
trial court issued the following order:
Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the

Respondents
Marie
Antonette
Abigail
C.Salientes,
Orlando
B. Salientes and Rosario C. Salientes are hereby directed to produce and

bring
before
this
Court
the
body
of
minor
Lorenzo
Emmanuel Salientes Abanilla on January 31, 2003 at 1:00 oclock in the
afternoon and to show cause why the said child should not be discharged
from restraint.
Let this Writ be served by the Sheriff or any authorized representative
of this Court, who is directed to immediately make a return.
SO ORDERED.
_______________
1
Rollo, pp. 11-15. Penned by Associate Justice Eubulo G. Verzola with Associate
Justices Amelita G. Tolentino, and Edgardo F. Sundiam concurring.

2
Id., at pp. 8-9.
Petitioners moved for reconsideration which the court denied.

Consequently, petitioners filed a petition for certiorari with the
Court of Appeals, but the same was dismissed on November 10,
2003. The appellate court affirmed the February 24, 2003 Order of
the trial court holding that its January 23, 2003 Order did not award
the custody of the 2-year-old child to any one but was simply the
standard order issued for the production of restrained persons. The
appellate court held that the trial court was still about to conduct a
full inquiry, in a summary proceeding, on the cause of the minors

detention and the matter of his custody. The Court of Appeals ruled
thus:
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
Petitioners moved for reconsideration, which was denied on March

19, 2004.
Hence, petitioners interposed this appeal by certiorari anchored
on the following grounds:
_______________
4
Id., at pp. 11-12.
Id., at p. 15.
not be discharged from a so-called restraint despite no evidence

at all of restraint and no evidence of compelling reasons of
maternal unfitness to deprive the petitioner-mother of her minor
son of tender years. The assailed orders, resolutions and decisions
of the lower court and the Court of Appeals are clearly void;
2. 2.The Court of Appeals erred in not pronouncing that the
respondent judge gravely abused his discretion in issuing a writ
of habeas corpus which clearly is not warranted considering that
there is no unlawful restraint by the mother and considering
further that the law presumes the fitness of the mother, thereby
negating any notion of such mother illegally restraining or
confining her very own son of tender years. The petition is not even
sufficient in substance to warrant the writ. The assailed orders are
clearly void.
3. 3.Contrary to the Court of Appeals decision, the Sombong vs. CA
case supports rather than negates the position of the petitioners.
4. 4.Contrary to the Court of Appeals decision, summary proceeding
does violence to the tender-years-rule
131
VOL. 500, AUGUST 29, 2006
131
5. 5.The Court of Appeals failed to consider that the private

respondent failed to present prima facieproof of any compelling
reason of the unfitness of the petitioner-mother;
6. 6.The Court of Appeals failed to see that the New Rules on Custody
SUFFICES AS REMEDY.
6
1. 1.The Court of Appeals erred in not pronouncing the respondent
judge gravely abused his discretion, amounting to lack or in excess

of jurisdiction in issuing an order for the petitioner-mother to first
show cause why her own three-year old child in her custody should
Plainly put, the issue is: Did the Court of Appeals err when it
dismissed the petition for certiorari against the trial courts orders
dated January 23, 2003 and February 24, 2003?
Petitioners contend that the order is contrary to Article 213 of the

Family Code, which provides that no child under
There was no need for the mother to show cause and explain the
custody of her very own child.
_______________
Private respondent counters that petitioners argument based on

Article 213 of the Family Code applies only to the second part of his
petition regarding the custody of his son. It does not address the first
part, which pertains to his right as the father to see his son. He
asserts that the writ of habeas corpus is available against any person
who restrains the minors right to see his father and vice versa. He
avers that the instant petition is merely filed for delay, for had
petitioners really intended to bring the child before the court in
accordance with the new rules on custody of minors, they would have
done so on the dates specified in the January 23, 2003 and the
February 24, 2003 orders of the trial court.
Id., at pp. 34-35.
ART. 213. In case of separation of the parents, parental authority shall be
exercised by the parent designated by the Court. The Court shall take into account all
relevant considerations, especially
132
132

seven years of age shall be separated from the mother unless the
court finds compelling reasons to order otherwise. They maintain
that herein respondent Loran had the burden of showing any
compelling reason but failed to present even a prima facie proof
thereof.
Petitioners posit that even assuming that there were compelling
reasons, the proper remedy for private respondent was simply an
action for custody, but nothabeas corpus. Petitioners assert
that habeas corpus is unavailable against the mother who, under the
law, has the right of custody of the minor. They insist there was no
illegal or involuntary restraint of the minor by his own mother.
Private respondent maintains that, under the law, he and

petitioner Marie Antonette have shared custody and parental
authority over their son. He alleges that at times when petitioner
Marie Antonette is out of the country as required of her job as an
international flight stewardess, he, the father,
_______________
the choice of the child over seven years of age, unless the parent chosen is unfit.
No child under seven years of age shall be separated from the mother unless the
court finds compelling reasons to order otherwise.
133
VOL. 500, AUGUST 29, 2006
133
No appeal may be taken from:

xxxx
(c) an interlocutory order;
should have custody of their son and not the maternal grandparents.
xxxx
In all of the above instances where the judgment or final order is not appealable,
As correctly pointed out by the Court of Appeals, the assailed

January 23, 2003 Order of the trial court did not grant custody of
the minor to any of the parties but merely directed petitioners to
produce the minor in court and explain why they are restraining his
liberty. The assailed order was an interlocutory order precedent to
the trial courts full inquiry into the issue of custody, which was still
pending before it.
the aggrieved party may file an appropriate special civil action under Rule 65.
Under Rule 41, Section 1 of the Rules of Court, an interlocutory

order is not appealable but the aggrieved party may file an
appropriate special action under Rule 65. The aggrieved party must
show that the court gravely abused its discretion in issuing the
interlocutory order. In the present case, it is incumbent upon
petitioners to show that the trial court gravely abused its discretion
in issuing the order.
over the persons of their common children. In
Habeas corpus may be resorted to in cases where rightful custody

is withheld from a person entitled thereto. Under Article 211 of the
Family Code, respondent Loran and peti9
_______________
8
SECTION 1. Subject of appeal.. . .
10
RULES OF COURT, Rule 102, Sec. 1. To what habeas corpus extends.Except
as otherwise expressly provided by law, the writ ofhabeas corpus shall extend to all
cases of illegal confinement or detention by which any person is deprived of his liberty,
or by which the rightful custody of any person is withheld from the person entitled
thereto.
10
ART. 211. The father and the mother shall jointly exercise parental authority
134
134

tioner Marie Antonette have joint parental authority over their son
and consequently joint custody. Further, although the couple is
separated de facto, the issue of custody has yet to be adjudicated by
the court. In the absence of a judicial grant of custody to one parent,
both parents are still entitled to the custody of their child. In the
present case, private respondents cause of action is the deprivation

of his right to see his child as alleged in his petition. Hence, the
remedy of habeas corpus is available to him.
11
In a petition for habeas corpus, the childs welfare is the supreme

consideration. The Child and Youth Welfare Code unequivocally
provides that in all questions regarding the care and custody, among
others, of the child, his welfare shall be the paramount
consideration.
12
fixing a date for the pretrial conference; (2) directing the parties to file and serve their
respective pre-trial briefs in such manner as shall ensure receipt thereof by the
adverse party at least three days before the date of pre-trial; and (3) requiring the
respondent to present the minor before the court. [Emphasis supplied.]
15
Rules on Custody of Minors and Writ of Habeas Corpus in Relation to Custody of
Minors.
135
13
Again, it bears stressing that the order did not grant custody of
the minor to any of the parties but merely directed petitioners to
produce the minor in court and explain why private respondent is
prevented from seeing his child. This is in line with the directive in
Section 9 ofA.M. 03-04-04-SC that within fifteen days after the
filing of the answer or the expiration of the period to file answer, the
court shall issue an order requiring the respondent (herein
petitioners) to present
14
15
_______________
cases of disagreement, the fathers decision shall prevail, unless there is a judicial
order to the contrary.
11
Rollo, pp. 75-77.
12
Presidential Decree No. 603, as amended.
13
Id., Article 8.
14
SEC. 9. Notice of mandatory pre-trial.Within fifteen days after the filing of the
answer or the expiration of the period to file answer, the court shall issue an order: (1)
VOL. 500, AUGUST 29, 2006
135

the minor before the court. This was exactly what the court did.
Moreover, Article 213 of the Family Code deals with the judicial
adjudication of custody and serves as a guideline for the proper
award of custody by the court. Petitioners can raise it as a counter
argument for private respondents petition for custody. But it is not a
basis for preventing the father to see his own child. Nothing in the
said provision disallows a father from seeing or visiting his child
under seven years of age.
In sum, the trial court did not err in issuing the orders dated
January 23, 2003 and February 24, 2003. Hence, the Court of
Appeals properly dismissed the petition for certiorari against the
said orders of the trial court.
WHEREFORE, the petition is DENIED. The Decision dated

November 10, 2003 and the Resolution dated March 19, 2004 of the
Court of Appeals in CA-G.R. SP No. 75680 are AFFIRMED. Costs
against petitioners.
SO ORDERED.
Carpio, Carpio-Morales, Tinga and Velasco, Jr., JJ., concur.
Petition denied, judgment and resolution affirmed.
Note.As a general rule, the burden of proving illegal restraint
by the respondents rests on the petitioner who attaches such
restraints. (Jackson vs. Macalino, 416 SCRA 390 [2003])
o0o
Bagtas vs. Santos
G.R. No. 166682.November 27, 2009.*

NOEL B. BAGTAS, petitioner, vs. HON. RUTH C. SANTOS,
Presiding Judge of Regional Trial Court, Branch 72, Antipolo City,
and ANTONIO and ROSITA GALLARDO, respondents.
Civil Law; Special Proceedings; Habeas Corpus; The purpose of a
petition for habeas corpus is not limited to the production of the child before
the court. The main purpose of the petition for habeas corpus is to
determine who has the rightful custody over the child.Section 1, Rule 102,
of the Rules of Court states that the writ of habeas corpus shall extend to
all cases where the rightful custody of any person is withheld from the
persons entitled thereto. In cases involving minors, the purpose of a
petition for habeas corpus is not limited to the production of the child
before the court. The main purpose of the petition for habeas corpus is to
determine who has the rightful custody over the child.
Same; Same; Same; Petitioner is not estopped from questioning the
absence of a trial considering that said psychiatric report, which was the
courts primary basis in awarding custody to respondent, is insufficient to
justify the decision; The funda_______________
* SECOND DIVISION.
102
102
mental policy of the State to promote and protect the welfare of

children shall not be disregarded by mere technicality in resolving disputes
which involve the family and the youth.Mindful of the nature of the
case
at
bar,
the
court
quo
should
have
conducted
trial notwithstanding the agreement of the parties to submit the case for
resolution on the basis, inter alia, of the psychiatric report of Dr. Teresito.
Thus, petitioner is not estopped from questioning the absence of a
trialconsidering that said psychiatric report, which was the
courts primary basis in awarding custody to respondent, is
insufficient to justify the decision. The fundamental policy of the State
to promote and protect the welfare of children shall not be disregarded by
mere technicality in resolving disputes which involve the family and the
youth.
Same; Same; Same; The Court laid down three requisites in petitions
for habeas corpus involving minors: (1) the petitioner has the right of
custody over the minor, (2) the respondent is withholding the rightful
custody over the minor, and (3) the best interest of the minor demands that
he or she be in custody of the petitioner.In Sombong, 252 SCRA 663
(1996), the Court laid down three requisites in petitions for habeas
corpus involving minors: (1) the petitioner has a right of custody over the
minor, (2) the respondent is withholding the rightful custody over the
minor, and (3) the best interest of the minor demands that he or she be in
the custody of the petitioner. In the present case, these requisites are not
clearly established because the RTC hastily dismissed the action and
awarded the custody of Maryl Joy to the Spouses Gallardo without
conducting any trial.

William F. De Los Santos for petitioner.
Public Attorneys Office for private respondents.
103
VOL. 606, NOVEMBER 27, 2009
103
Bagtas vs. Santos
Antonio and Rosita S. Gallardo (Spouses Gallardo) are the

parents of Maricel S. Gallardo (Maricel). Two weeks after
graduating from high school in April 2000, Maricel ran away to live
with her boyfriend. Maricel became pregnant and gave birth to
Maryl Joy S. Gallardo (Maryl Joy). Maricels boyfriend left her.
In February 2002, Maricel returned to her parents. On the same
day, Maricel ran away again and lived with Noel B. Bagtas (Bagtas)
and
Lydia
B.
Sioson
(Sioson)
at
Ma.
Corazon,
Unirock, Barangay Sta. Cruz, Antipolo City. Maricel went to Negros
Occidental and left Maryl Joy in the custody of Bagtas and Sioson.
In a letter5 dated 5 February 2001, Maricel relinquished her rights
over Maryl Joy to Bagtas and his wife. She stated:
_______________
1 Rollo, pp. 3-15.
CARPIO,J.:
The Case
This is a petition1 for review on certiorari under Rule 45 of the
Rules of Court. The petition challenges the 11 June 2004
Decision2 and 5 January 2005 Resolution3 of the Court of Appeals in
CA-G.R. SP No. 77751. The Court of Appeals affirmed the 9
December 20024 and 21 April 2003 Orders of the Regional Trial
Court (RTC), Judicial Region 4, Branch 72, Antipolo City, in Special
Proceeding Case No. 02-1128.
The Facts
2Id., at pp. 19-27. Penned by Associate Justice Rebecca De Guia-Salvador, with

Associate Justices Salvador J. Valdez, Jr. and Aurora Santiago-Lagman, concurring.
3 Id., at p. 29.
4 Id., at pp. 85-86. Penned by Judge Ruth Cruz-Santos.
5 Id., at p. 39.
104
104
Bagtas vs. Santos

Ako po si Maricel S. Gallardo 18 taong gulang ay kusang ipinagkaloob
ang aking anak sa pagkadalaga sa mag-asawangNoel B. Bagtas at Neneth
A. Bagtas sa kadahilanan pong itinakwil ako ng sarili kong mga
magulang at hindi ko po kayang buhayin at dahil po sa tinakbuhan ako ng
aking boyfriend kaya wala na pong ibang paraan para ako makabangon o
makapagsimula ng panibagong buhay kaya para mabigyan ng magandang
buhay ang aking anak inisip ko po na ito na ang pinaka madaling paraan
para po sa pagbabago ng aking buhay.
Kaya mula sa araw na ito ay wala na akong karapatan sa aking anak.
Sila ang tatayo bilang magulang ng aking anak.
In April 2002, the Spouses Gallardo tried to obtain the custody of

Maryl Joy from Bagtas and Sioson. Bagtas and Sioson refused.
Unable to settle the matter, the Spouses Gallardo filed with the RTC
a petition6 for habeas corpus.
In its Order7 dated 10 July 2002, the RTC issued a writ
of habeas8 corpus directing the deputy sheriff to produce Maryl Joy
before it and to summon Bagtas and Sioson to explain why they were
withholding the custody of Maryl Joy.
The Spouses Gallardo, Bagtas and Sioson entered into a
compromise agreement. In its Order9 dated 13 September 2002, the
RTC stated:
In todays hearing, both parties appeared with their respective
counsels and have agreed on the following:
1.that the child should be placed in custody of the petitioners on

Friday, Saturday and Sunday;
2.that the child should be returned to the respondents by the
petitioners on Sunday at 8:00 oclock in the
_______________
6 Id., at pp. 42-44.
7 Id., at p. 45.
8 Id., at p. 46.
9 Id., at p. 60.
105
105
Bagtas vs. Santos

evening subject to visitorial rights of the petitioners anytime of the day;
and
3.that the child can be brought by the respondents to

Valenzuela but should be returned to the petitioners on Friday
morning.
The above agreement shall take effect today and parties are
ordered to comply strictly with the said agreement under pain of
contempt in case of violation thereof.
On 29 September 2002, Bagtas and Sioson learned that Rosita S.
Gallardo brought Maryl Joy to Samar. In their motion 10 dated 30
September 2002, Bagtas and Sioson prayed that the Spouses
Gallardo be directed to produce Maryl Joy before the RTC, that they
be directed to explain why they violated the RTCs 13 September
2002 Order, and that they be cited in contempt. In their motion 11 to
dismiss dated 11 October 2002, Bagtas and Sioson prayed that the
Spouses Gallardos action be dismissed pursuant to Section 3, Rule
17, of the Rules of Court. Section 3 states that If, for no justifiable
cause, the plaintiff fails x x x to comply with x x x any order of the
court, the complaint may be dismissed upon motion of the defendant
or upon the courts own motion. Bagtas and Sioson claimed that the
Spouses Gallardo failed to comply with the RTCs 13 September
2002 Order.
In its Order12 dated 15 October 2002, the RTC cited the Spouses
Gallardo in contempt, fined them P500, and ordered them to produce
Maryl Joy before the trial court.
_______________
10 Id., at pp. 63-65.
11 Id., at pp. 67-71.
12 Id., at pp. 74-76.
106
106

Bagtas vs. Santos
The RTCs Ruling
In its Order13 dated 9 December 2002, the RTC dismissed the

action for having become moot. The RTC stated:
In this petition, the prayer of the petitioners is to produce the person of
Meryl [sic] Joy S. Gallardo before this court to be turned over to herein
petitioners who are the maternal [grandparents] of said minor.
Since
the
person
subject
of
the
petition
has
already
produced [sic] to this court and has been turned over to the
petitioners, the issue on the petition for habeas corpus is now
moot and academic without prejudice to the filing of the proper action to
determine as to the rightful custody over the minor child.
In view thereof, xxx the Motion to Dismiss is hereby granted but
without prejudice on the petitioners to file proper action for custody of the
minor. (Emphasis supplied)
In their motion14 for reconsideration dated 27 December 2002,

Bagtas and Sioson alleged that the ground for the dismissal of the
action was erroneous. The action should have been dismissed
pursuant to Section 3, Rule 17, of the Rules of Court. They prayed
that Maryl Joy be returned to them to preserve the status quo ante.
Bagtas and Sioson stated:
5.Thus, the Honorable Court very clearly issued a conflicting Order
because It has cited the [Spouses Gallardo] in contempt of court for
violating the previous September 13, 2002 Order that the child should be
returned to the respondents in the evening of September 29, 2002
(Sunday), and yet the Honorable Court has dismissed the petition for being
moot and academic.
_______________
13 Id., at pp. 85-86.
14 Id., at pp. 87-90.
107
107
Bagtas vs. Santos
would the petitioners still file the proper action for custody if they now
have the custody of the minor?
PRAYER
WHEREFORE, premises considered, it is most respectfully prayed that
the December 9, 2002 Order of the Honorable Court be partially
reconsidered so that the dismissal of the case will not be based on the
ground of being moot and academic but based on failure to comply with the
September 13, 2002 pursuant [sic] to Section 3, Rule 17 of the 1997 Rules
of Civil Procedure and that petitioners be consequently directed to return
the person subject of the petition to the respondents to preserve the
status quo ante.
In its Order15 dated 21 April 2003, the RTC denied the motion for
reconsideration. The RTC held that the sole purpose of the petition
for habeas corpus was the production of Maryl Joy and that the
Spouses Gallardo exercised substitute parental authority over Maryl
Joy. The RTC stated that:
The allegations in the Petition show that the sole purpose for
the filing of the Petition is to cause the production before the
Court of the person of minor Meryl[sic] Joy S. Gallardo, not a
This is in effect giving premium to the act of the petitioners of not turning
over the child to respondents on September 29, 2002. Likewise, this is
tantamount to rewarding them for not producing the child in court in
violation of the aforesaid September 13, 2002 Order;
6.Moreover, the Honorable Court has issued an unreasonable Order
by stating that the dismissal of the instant case is without prejudice to the
filing of the proper action for custody of the minor by the petitioners. Why
determination of the legality or illegality of respondents custody

of the child, petitioners
_______________
15 Id., at pp. 98-99.
108
108

Bagtas vs. Santos
being aware of the fact that the child was left by their (petitioners)
daughter to [sic] the custody of the respondents, as stated in par. no. 10 of
the Petition.
The instant Petition is therefore, essentially not a petition forHabeas
Corpus as contemplated in Rule 102, Revised Rules of Court which is
resorted to in all cases of illegal confinement by which any person is
deprived of his liberty (Cruz vs. CA, 322 SCRA 518), but is resorted to also
where the rightful custody of any person is withheld from the person
entitled thereto as contemplated in Rule 102, Revised Rules of Court. In
order that the special remedy of Habeas Corpus maybe [sic] invoked, it is
necessary that there should be an actual and effective restraint or
deprivation of liberty. A nominal or moral restraint is not sufficient
(Gonzales vs. Viola, et al., 61 Phil. 824).
Since therefore, the purpose of the instant Petition has already
been served, as the child has been produced and delivered to the
petitioners, the instant Petition logically has become moot and
academic. Petitioners are, under the law (Art. 214, Family Code),
authorized to exercise substitute parental authority over the child
in case of death, absence or unsuitability of the parents, the
entitlement to the legal custody of the child being necessarily
included therein to make possible and/or enable the petitioners to
discharge their duties as substitute parents.
There is no inconsistency between the Order dated December 9, 2002

sought to be reconsidered, and the Order dated October 15, 2002, as the
latter was issued pursuant to an incident, an interlocutory matter, that is,
the failure of the petitioners to comply with the agreement reached
between the parties in open court on September 13, 2002. The said Order
dated October 15, 2002 is not a resolution of the case in the main, as it did
not terminate the case. The Order dated December 9, 2002, on the other
hand, terminated the case, and considering that the dismissal of the case
was unqualified, the same amounted to an adjudication on the merits
pursuant to Sec. 3, Rule 17 of the Revised Rules of Court Procedure,
therefore, the agreement earlier entered by and between the herein parties
is deemed terminated. (Emphasis supplied)
109
109
Bagtas vs. Santos

Bagtas
filed
with
the
Court
of
Appeals
a
petition16 forcertiorari under Rule 65 of the Rules of Court. Bagtas
alleged that (1) the RTC erred when it ruled that the sole purpose of
the 1 August 2002 petition was the production of Maryl Joy before
the trial court, (2) the RTC erred when it ruled that the petition was
essentially not a petition forHabeas Corpus as contemplated in Rule
102, (3) the RTC erred when it ruled that there must be actual and
effective deprivation of liberty, (4) the RTC erred when it ruled that
the action had become moot, (5) the RTC erred when it ruled that
the Spouses Gallardo had substitute parental authority over Maryl
Joy, and (6) the RTC erred when it ruled that there was no
inconsistency between the 15 October and 9 December 2002 Orders.
The Court of Appeals Ruling
In its Decision dated 11 June 2004, the Court of Appeals
dismissed the petition and affirmed the 9 December 2002 and 23
April 2003 Orders of the RTC. The Court of Appeals held that:
In the second part of [Section 1, Rule 102, of the Rules of Court], xx
x habeas corpus may be resorted to in cases where the rightful custody of
any person is withheld from the person entitled thereto. Accordingly, the
writ of habeas corpus is the proper remedy to enable herein private
respondents to regain the custody of their minor grand daughter Maryl Joy
who was admittedly left by her natural mother in the care of petitioner and
Lydia Sioson.
Significantly, in custody cases involving minors, the question of illegal
or involuntary restraint is not the underlying rationale for the availability
of the writ of habeas corpus as a remedy; rather, the writ is prosecuted for
the purpose of determining the right of custody of a child. By dismissing
the petition a quo,
_______________
16 CA Rollo, pp. 2-55.
110
110
Bagtas vs. Santos

the trial court in effect upheld private respondents right of custody over
the minor involved as against that of petitioner.
While it cannot be gainsaid that private respondents obtained initial
custody of the minor in violation of a valid court order, we nonetheless
sustain the judgment a quo dismissing the petition and validating such
rightful custody over Maryl Joy. This is because private respondents are
the grandparents of Maryl Joy, hence, lawfully authorized to exercise
substitute parental authority over her in the absence of her parents. What
is more, in awarding custody to private respondents, the best welfare of the
child was taken into consideration inasmuch as, per report of the Court
Social Worker, the implementation of the parties agreement would cause
more psychological damage and traumatic experience to Maryl Joy. To our
mind, therefore, the violation of a court order pales in significance when
considered alongside the best interest of the minor whose welfare requires
that she be in the custody of her grandparents rather than petitioners. x x
x
Under the factual and legal milieux of the case, there is no question
that as grandparents of the minor, Maryl Joy, private respondents have a
far superior right of custody over her than petitioner.
17
The Issues
In his petition dated 1 February 2005, Bagtas raised as issues
that:
THE COURT OF APPEALS ERRED AND GRAVELY ABUSED ITS
DISCRETION IN NOT FINDING THAT TRIAL COURT COMMITTED
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF

JURISDICTION IN FINDING THAT THE ALLEGATION IN THE
PETITION FOR HABEAS CORPUSSHOW THAT THE SOLE PURPOSE
FOR THE FILING THEREOF IS TO CAUSE THE PRODUCTION
BEFORE THE COURT OF THE PERSON IN WHOSE FAVOR IT WAS
FILED.
_______________
17 Rollo, pp. 25-26.
111
111
Bagtas vs. Santos

THE COURT OF APPEALS GRAVELY ERRED AND ABUSED ITS
DISCRETION IN NOT FINDING THAT THE TRIAL COURT GRAVELY
ABUSED
ITS
DISCRETION
AMOUNTING
TO
LACK
OF
JURISDICTION IN RULING THAT WITH THE DELIVERY OF THE
CHILD FOR WHOM THE PETITION WAS FILED, THE PETITION
FOR HABEAS CORPUS HAS BECOME MOOT AND ACADEMIC.
The Courts Ruling

The Court of Appeals erred when it affirmed the RTCs 9
December 2002 and 21 April 2003 Orders. In its Orders, the RTC
ruled that, since the sole purpose of the petition for habeas
corpus was the production of Maryl Joy before the trial court, the
action became moot when Maryl Joy was produced. The Court
disagrees.
Section 1, Rule 102, of the Rules of Court states that the writ
of habeas corpus shall extend to all cases where the rightful custody
of any person is withheld from the persons entitled thereto. In cases
involving minors, the purpose of a petition for habeas corpus is not
limited to the production of the child before the court. The main
purpose of the petition for habeas corpus is to determine who has the
rightful custody over the child. In Tijing v. Court of Appeals,18 the
Court held that:
The writ of habeas corpus extends to all cases of illegal confinement or
detention by which any person is deprived of his liberty, or by which the
rightful custody of any person is withheld from the person entitled thereto.
Thus, it is the proper legal remedy to enable parents to regain the custody
of a minor child even if the latter be in the custody of a third person of his
own free will. It may even be said that in custody cases involving minors,
the question of illegal and involuntary restraint of liberty is not the
underlying rationale for the availability of the writ as a
_______________
18 406 Phil. 449, 458; 354 SCRA 17, 23-24 (2001).
112
112

Bagtas vs. Santos
remedy. Rather, it is prosecuted for the purpose of determining the

right of custody over a child. (Emphasis supplied)
113
The RTC erred when it hastily dismissed the action for having
become moot after Maryl Joy was produced before the trial court. It
should have conducted a trial to determine who had the rightful
custody over Maryl Joy. In dismissing the action, the RTC, in effect,
granted the petition for habeas corpus and awarded the custody of
Maryl Joy to the Spouses Gallardo without sufficient basis.
In Laxamana v. Laxamana,19 the Court held that:
Mindful of the nature of the case at bar, the court a quoshould
have conducted a trial notwithstanding the agreement of the parties to
submit the case for resolution on the basis, inter alia, of the psychiatric
report of Dr. Teresito. Thus, petitioner is not estopped from
questioning the absence of a trialconsidering that said psychiatric
report, which was the courts primary basis in awarding custody
to
respondent,
is
insufficient
to
justify
the
decision. The
fundamental policy of the State to promote and protect the welfare of

children shall not be disregarded by mere technicality in resolving disputes
which involve the family and the youth. (Emphasis supplied)
Article 214 of the Civil Code states that in case of absence or

unsuitability of the parents, substitute parental authority shall be
exercised by the surviving grandparent. Article 216 states that in
default of parents or a judicially appointed guardian, the surviving
grandparent shall exercise substitute parental authority over the
child. Accordingly, in its 21 April 2003 Order, the RTC held that:
_______________
19 437 Phil. 104, 114-115; 388 SCRA 296, 305 (2002).
113
Bagtas vs. Santos

Petitioners are, under the law (Art. 214, Family Code), authorized to
exercise substitute parental authority over the child in case of death,
absence or unsuitability of the parents, the entitlement to the legal
custody of the child being necessarily included therein to make possible
and/or enable the petitioners to discharge their duties as substitute
parents.
20
In its 11 June 2004 Decision, the Court of Appeals held that:

While it cannot be gainsaid that private respondents obtained initial
custody of the minor in violation of a valid court order, we nonetheless
sustain the judgment a quo dismissing the petition and validating such
rightful custody over Maryl Joy. This is because private respondents are
the grandparents of Maryl Joy, hence, lawfully authorized to exercise
substitute parental authority over her in the absence of her parents.
21
In determining who has the rightful custody over a child, the

childs welfare is the most important consideration. The court is not
bound by any legal right of a person over the child. In Sombong v.
Court of Appeals,22the Court held that:
The controversy does not involve the question of personal freedom,

because an infant is presumed to be in the custody of someone until he
attains majority age. In passing on the writ in a child custody case, the
court deals with a matter of an equitable nature. Not bound by any
mere legal right of parent or guardian, the court gives his or her
claim to the custody ofthe child due weight as a claim founded on
human
nature
and
considered
generally
equitable
and
just. Therefore, these cases are decided, not on the legal right of the
the time appears to require. In short, the childs welfare is the

supreme consideration.
Considering that the childs welfare is an all-important factor in custody
cases, the Child and Youth Welfare Code unequivocally provides that in all
questions regarding the care and custody, among others, of the
child, his welfare shall be the paramount consideration. In the same
vein, the Family Code authorizes the courts to, if the welfare of the
petitioner to be relieved from unlawful imprisonment or detention,
child so demands, deprive the parents concerned of parental
_______________
under the circumstances. (Emphasis supplied)
20 Rollo, p. 99.
21 Id., at p. 25.
22 322 Phil. 737, 750-751; 252 SCRA 663, 674-675 (1996).
114
114

Bagtas vs. Santos
as in the case of adults, but on the courts view of the best interests of
those whose welfare requires that they be in custody of one person or
another. Hence, the court is not bound to deliver a child into the
custody of any claimant or of any person, but should, in the
consideration of the facts, leave it in such custody as its welfare at
authority over the child or adopt such measures as may be proper
In Sombong,23 the Court laid down three requisites in petitions for

habeas corpus involving minors: (1) the petitioner has a right of
custody over the minor, (2) the respondent is withholding the
rightful custody over the minor, and (3) the best interest of the minor
demands that he or she be in the custody of the petitioner. In the
present case, these requisites are not clearly established because the
RTC hastily dismissed the action and awarded the custody of Maryl
Joy to the Spouses Gallardo without conducting any trial.
The proceedings before the RTC leave so much to be desired.
While a remand of the case would mean further delay, Maryl Joys
best interest demands that proper proceedings be conducted to
determine the fitness of the Spouses Gallardo to take care of her.
_______________
23 Id., at p. 751; p. 675.
115
115
Bagtas vs. Santos

WHEREFORE, the Court REMANDS the case to the Regional
Trial Court, Judicial Region 4, Branch 72, Antipolo City, for the
purpose of receiving evidence to determine the fitness of the Spouses
Antonio and Rosita S. Gallardo to have custody of Maryl Joy
Gallardo.
SO ORDERED.
Leonardo-De Castro,** Brion, Del Castillo and Abad, JJ., concur.
Case remanded to Regional Trial Court of Antipolo City, Br. 72.
Note.RA 8369 did not divest the Court of Appeals and the
Supreme Court of their jurisdiction over habeas corpuscases
involving the custody of the minorsthe provisions of RA 8369 must
be read in harmony with RA No. 7029 and BP 129, i.e., family courts
have concurrent jurisdiction with the Court of Appeals and the
Supreme Court in petitions for habeas corpus where the custody of
minors is at issue. (Madrian vs. Madrian, 527 SCRA 487 [2007])
o0o
Civil Law; Guardianship; Respondent, being the natural mother of the

minor, has the preferential right over that of petitioner to be his guardian.
We agree with the ruling of the Court of Appeals that respondent, being
the natural mother of the minor, has the preferential right over that of
petitioner to be his guardian. This ruling finds support in Article 211 of the
Family Code which provides: Art. 211. The father and the mother shall
jointly exercise parental authority over the persons of their common
children. In case of disagreement, the fathers decision shall prevail, unless
there is a judicial order to the contrary, x x x.
________________
25
People vs. Pugong, G.R. No. 119013, March 6, 1998, 287 SCRA 158.
THIRD DIVISION.
708
708
VOL. 358, JUNE 19, 2001
707
Vancil vs. Belmes

G.R. No. 132223. June 19, 2001.
BONIFACIA
respondent.
P. VANCIL,
petitioner, vs. HELEN
G.BELMES,

Vancil vs. Belmes
Same; Same; Petitioner, as the surviving grandparent, can exercise

substitute parental authority only in case of death, absence or unsuitability
of respondent.Petitioner, as the surviving grandparent, can exercise
substitute parental authority only in case of death, absence or
unsuitability of respondent. Considering that respondent is very much
alive and has exercised continuously parental authority over Vincent,
petitioner has to prove, in asserting her right to be the minors guardian,
respondents unsuitability. Petitioner, however, has not proffered
convincing evidence showing that respondent is not suited to be the

guardian of Vincent.
PETITION for review on certiorari of a decision of the Court of

Appeals.
Same; Same; Courts should not appoint persons as guardians who are
not within the jurisdiction of our courts.Significantly, this Court has held
that courts should not appoint persons as guardians who are not within
the jurisdiction of our courts for they will find it difficult to protect the
wards.

709
VOL. 358, JUNE 19, 2001
709
VITUG, J., Concurring Opinion:

Civil Law; Guardianship; Parents are placed first in rank in matters of
parental authority.There is in law and jurisprudence a recognition, of the
deep ties that bind parent and child. Parents are thus placed first in rank
in matters of parental authority. Substitute parental authority may be
exercised by the grandparents only in case the parents have died or are
absent or declared unfit in proper proceedings for that purpose. Parental
authority stands to include the right and duty to the custody of the child,
excepting only, of course, what might otherwise be best for the childs
welfare.
Same; Same; The childs illegitimacy does not in any way affect the
order of priority in the exercise of parental authority.When the law
speaks of family relations, it must be deemed to refer, unless the contrary
is there indicated or the context of the law otherwise clearly conveys, to
both legitimate and illegitimate ties. The childs illegitimacy does not in
any way affect the order of priority in the exercise of parental authority.
Indeed, Article 176 of the Family Code states that an illegitimate child
shall be under the parental authority of the mother who, consequentially,
should also be entitled to the custody of the child.
Vancil vs. Belmes

Democrito C. Barcenas for petitioner.
Manuel P. Legaspi for respondent.
SANDOVAL-GUTIERREZ, J.:
Petition for review on certiorari of the Decision of the Court of
Appeals in CA-G.R. CV No. 45650, In the Matter of Guardianship of
Minors Valerie Vancil and VincentVancilBonifacia P. Vancil,
Petitioner-Appellee, vs. Helen G. Belmes, Oppositor-Appellant,
promulgated on July 29, 1997, and its Resolution dated December
18, 1997 denying the motion for reconsideration of the said Decision.
The facts of the case as summarized by the Court of Appeals in its
Decision are:
Petitioner, Bonifacia Vancil, is the mother of Reeder C. Vancil, a Navy
serviceman of the United States of America who died in the said country
on December 22, 1986. During his lifetime, Reeder had two (2) children
named Valerie and Vincent by his common-law wife, Helen G. Belmes.
Sometime in May of 1987, Bonifacia Vancil commenced before the
Regional Trial Court of Cebu City a guardianship proceedings over the
persons and properties of minors Valerie and Vincent docketed as Special
Proceedings No. 1618-CEB. At the time, Valerie was only 6 years old while
Vincent was a 2-year old child. It is claimed in the petition that the minors
are residents of Cebu City, Philippines and have an estate consisting of
proceeds from their fathers death pension benefits with a probable value
of P100,000.00.
Finding sufficiency in form and in substance, the case was set for
hearing after a 3-consecutive-weekly publications with the Sunstar Daily.
On July 15, 1987, petitioner, Bonifacia Vancilwas appointed legal and
judicial guardian over the persons and estate of Valerie Vancil and
Vincent Vancil, Jr.
On August 13, 1987, the natural mother of the minors, HelenBelmes,
submitted an opposition to the subject guardianship proceedings
asseverating that she had already filed a similar petition for guardianship
under Special Proceedings No. 2819 before the Regional Trial Court of
Pagadian City.
710
710

Vancil vs. Belmes
Thereafter, on June 21, 1988, Helen Belmes followed her opposition with
a motion for the Removal of Guardian and Appointment of a New One,
asserting that she is the natural mother in actual custody of and exercising
parental authority over the subject minors at Maralag, Dumingag,
Zamboanga del Sur where they are permanently residing; that the petition
was filed under an improper venue; and that at the time the petition was
filed Bonifacia Vancil was a resident of 140 Hurliman Court, Canon City,
Colorado, U.S.A. being a naturalized American citizen.
On October 12, 1988, after due proceedings, the trial court rejected and
denied Belmes motion to remove and/or to disqualify Bonifacia as
guardian of Valerie and Vincent, Jr. and instead ordered petitioner
Bonifacia Vancil to enter the office and perform her duties as such
guardian upon the posting of a bond of P50,000.00. The subsequent
attempt for a reconsideration was likewise dismissed in an Order dated
November 24, 1988.
1
On appeal, the Court of Appeals rendered its assailed Decision

reversing the RTC order of October 12, 1988 and dismissing Special
Proceedings No. 1618-CEB.
The Court of Appeals held:
Stress should likewise be made that our Civil Code considers parents, the
father, or in the absence, the mother, as natural guardian of her minor
children. The law on parental authority under the Civil Code or P.D. 603
and now the New Family Code, (Article 225 of the Family Code) ascribe to
the same legal pronouncements. Section 7 of Rule 93 of the Revised Rules
of Court confirms the designation of the parents as ipso factoguardian of
their minor children without need of a court appointment and only for good
reason may another person be named. Ironically, for the petitioner, there is
nothing on record of any reason at all why Helen Belmes, the biological
mother, should be deprived of her legal rights as natural guardian of her

minor children. To give away such privilege from Helen would be an
abdication and grave violation of the very basic fundamental tenets in civil
law and the constitution on family solidarity.
2
On March 10, 1998, Bonifacia Vancil filed with this Court the
present petition, raising the following legal points:
Rollo, pp. 43-44.
Rollo, p. 47.
disqualified petitioner Bonifacia P. Vancil to be appointed as

judicial guardian over the persons and estate of subject minors
despite the fact that she has all the qualifications and none of the
disqualifications as judicial guardian, merely on the basis of her
U.S. citizenship which is clearly not a statutory requirement to
become guardian.
At the outset, let it be stressed that in her Manifestation/ Motion,

dated September 15, 1998, respondent HelenBelmes stated that her
______________
1
3. 3.The respondent (sic) Court of Appeals gravely erred when it
daughter Valerie turned eighteen on September 2, 1998 as shown by

her Birth Certificate. Respondent thus prayed that this case be
dismissed with respect to Valerie, she being no longer a proper
subject
of
guardianship
proceedings.
The
said
Manifestation/Motion was noted by this Court in its Resolution
dated November 11, 1998.
3
711
VOL. 358, JUNE 19, 2001
711
Vancil vs. Belmes

1. 1.The Court of Appeals gravely erred in ruling that the preferential
right of a parent to be appointed guardian over the persons and
estate of the minors is absolute, contrary to existing
jurisprudence.
2. 2.The Court of Appeals gravely erred in ruling that Oppositor
Helen G. Belmes, the biological mother, should be appointed the
guardian of the minors despite the undisputed proof that under
her custody, her daughter minor Valerie Vancil was raped seven
times by Oppositors livein partner.
Considering that Valerie is already of major age, this petition has

become moot with respect to her. Thus, only the first and third legal
points raised by petitioner should be resolved.
The basic issue for our resolution is who between the mother and
grandmother of minor Vincent should be his guardian.
We agree with the ruling of the Court of Appeals that respondent,
being the natural mother of the minor, has the preferential right
over that of petitioner to be his guardian. This ruling finds support
in Article 211 of the Family Code which provides:
Art. 211. The father and the mother shall jointly exercise parental
authority over the persons of their common children. In case of
disagreement, the fathers decision shall prevail, unless there is a judicial

order to the contrary, x x x.
_________________
Art. 214. In case of death, absence or unsuitability of the parents,

substitute parental authority shall be exercised by the surviving
grandparent, x x x.
In Santos, Sr. vs. Court of Appeals, this Court ruled:

5
Rollo, p. 127.
712
712

Vancil vs. Belmes
Indeed, being the natural mother of minor Vincent, respondent has

the corresponding natural and legal right to his custody. In SagalaEslao vs. Court of Appeals, this Court held:
4
Of considerable importance is the rule long accepted by the courts that

the right of parents to the custody of their minor children is one of the
natural rights incident to parenthood, a right supported by law and sound
public policy. The right is an inherent one, which is not created by the state
or decisions of the courts, but derives from the nature of the parental
relationship.
Petitioner contends that she is more qualified as guardian of

Vincent.
Petitioners claim to be the guardian of said minor can only be
realized by way of substitute parental authoritypursuant to Article
214 of the Family Code, thus:
The law vests on the father and mother joint parental authority over the
persons of their common children. In case of absence or death of either
parent, the parent present shall continue exercising parental
authority. Only in case of the parents death, absence or unsuitability may
substitute parental authority be exercised by the surviving grandparent.
Petitioner, as the surviving grandparent, can exercise substitute

parental authority only in case of death, absence or unsuitability of
respondent. Considering that respondent is very much alive and has
exercised continuously parental authority over Vincent, petitioner
has to prove, in asserting her right to be the minors guardian,
respondents unsuitability. Petitioner, however, has not proffered
convincing evidence showing that respondent is not suited to be the
guardian of Vincent. Petitioner merely insists that respon_________________
4
266 SCRA 317 (1997).
242 SCRA 407 (1995).
713
VOL. 358, JUNE 19, 2001
713
Vancil vs. Belmes

dent is morally unfit as guardian of Valerie considering that her
(respondents) live-in partner raped Valerie several times. But
Valerie, being now of major age, is no longer a subject of this
guardianship proceeding.
Even assuming that respondent is unfit as guardian of minor
Vincent, still petitioner cannot qualify as a substitute guardian. It
bears stressing that she is an American citizen and a resident of
Colorado. Obviously, she will not be able to perform the
responsibilities and obligations required of a guardian. In fact, in
her petition, she admitted the difficulty of discharging the duties of a
guardian by an expatriate, like her. To be sure, she will merely
delegate those duties to someone else who may not also qualify as a
guardian.
Moreover, we observe that respondents allegation that petitioner
has not set foot in the Philippines since 1987 has not been
controverted by her. Besides, petitioners old age and her conviction
of libel by the Regional Trial Court, Branch 6, Cebu City in Criminal
Case No. CBU-16884 filed by one Danilo R. Deen, will give her a
second thought of staying here. Indeed, her coming back to this
country just to fulfill the duties of a guardian to Vincent for only two
years is not certain.
6
Significantly, this Court has held that courts should not appoint
persons as guardians who are not within the jurisdiction of our
courts for they will find it difficult to protect the wards.

In Guerrero vs. Teran, this Court held:
7
Doa Maria Muoz y Gomez was, as above indicated, removed upon the
theory that her appointment was void because she did not reside in the
Philippine Islands. There is nothing in the law which requires the courts to
appoint residents only as administrators or guardians. However,
notwithstanding the fact that there are no statutory requirements upon
this question, the courts, charged with the responsibilities of protecting the
estates of deceased persons, wards of the estate, etc., will find much
_________________
6
Sentenced to suffer the penalty of imprisonment from 4 months and 1 day ofprision
correccional as maximum and a fine of P3,000.00 with subsidiary imprisonment in case of

insolvency and to indemnify offended party in the sum of P200,000.00 as moral damages.
See p. 118, Rollo.
7
13 Phils. 212, 217 (1909).
714
714

Vancil vs. Belmes
difficulty in complying with this duty by appointing administrators and

guardians who are not personally subject to their jurisdiction.
Notwithstanding that there is no statutory requirement, the courts should
not consent to the appointment of persons as administrators and
guardians who are not personally subject to the jurisdiction of our courts
here.
the custody of the child, excepting only, of course, what might

otherwise be best for the childs welfare.
WHEREFORE, the appealed Decision is hereby AFFIRMED, with

modification in the sense that Valerie, who has attained the age of
majority, will no longer be under the guardianship of respondent
Helen Belmes.
When the law speaks of family relations, it must be deemed to

refer, unless the contrary is there indicated or the context of the law
otherwise clearly conveys, to both legitimate and illegitimate ties.
The childs illegitimacy does not in any way affect the order of
priority in the exercise of parental authority. Indeed, Article 176 of
Costs against petitioner.

SO ORDERED.
_____________
1
Melo (Chairman), Panganiban and Gonzaga-Reyes,

JJ., concur.
Vitug, J., Please see Concurring Opinion.
Article 214, Family Code.
715
VOL. 358, JUNE 19, 2001
715
CONCURRING OPINION
VITUG, J.:
I share the opinion very well expressed by Madame Justice Angelina
Sandoval-Gutierrez in her ponencia.
Sta. Lucia Realty and Development, Inc. vs. Cabrigas

the Family Code states that an illegitimate child shall be under the
parental authority of the mother who, consequentially, should also
be entitled to the custody of the child.
2
There is in law and jurisprudence a recognition of the deep ties

that bind parent and child. Parents are thus placed first in rank in
matters of parental authority. Substitute parental authority may be
exercised by the grandparents only in case the parents have died or
are absent or declared unfit in proper proceedings for that
purpose. Parental authority stands to include the right and duty to
1
Judgment affirmed with modification.
Republic of the Philippines
Supreme Court
DECISION
Manila
NACHURA, J.:
SECOND DIVISION
ST. JOSEPHS COLLEGE, SR. JOSEPHINI

AMBATALI, SFIC, and ROSALINDA
TABUGO,
G.R. No. 182353
Petitioners,
Present:
This petition for review on certiorari seeks to set aside

the Decision[1] of the Court of Appeals (CA) in CA-G.R.
CV No. 68367, which affirmed in toto the decision[2] of
the Regional Trial Court (RTC), Branch 221, Quezon
City, in Civil Case No. Q-95-22889.
CARPIO, J.,
Chairperson,
- versus -
The facts, as found by the CA, follow:
NACHURA,
PERALTA,
ABAD, and
JAYSON MIRANDA, represented by his
father, RODOLFO S. MIRANDA,
Respondent.
MENDOZA, JJ.
Promulgated:
June 29, 2010
x------------------------------------------------------------------------------------x
On November 17, 1994, at around 1:30 in the

afternoon inside St. Joseph Colleges [SJCs]
premises, the class to which [respondent
Jayson Val Miranda] belonged was conducting
a science experiment about fusion of sulphur
powder and iron fillings under the tutelage of
[petitioner] Rosalinda Tabugo, she being the
subject teacher and employee of [petitioner]
SJC. The adviser of [Jaysons] class is x x x

Estefania Abdan.
Tabugo left her class while it was doing the

experiment without having adequately
secured it from any untoward incident or
occurrence. In the middle of the experiment,
[Jayson], who was the assistant leader of one
of the class groups, checked the result of the
experiment by looking into the test tube with
magnifying glass. The test tube was being
held by one of his group mates who moved it
close and towards the eye of [Jayson]. At that
instance, the compound in the test tube
spurted out and several particles of which hit
[Jaysons] eye and the different parts of the
bodies of some of his group mates. As a
result
thereof,
[Jaysons]
eyes
were
chemically burned, particularly his left eye,
for which he had to undergo surgery and had
to spend for his medication. Upon filing of
this case [in] the lower court, [Jaysons]
wound had not completely healed and still
had to undergo another surgery.
Upon learning of the incident and because of

the need for finances, [Jaysons] mother, who
was working abroad, had to rush back home
for which she spent P36,070.00 for her fares

and had to forego her salary from November
23, 1994 to December 26, 1994, in the
amount of at least P40,000.00.
Then, too, [Jayson] and his parents suffered

sleepless nights, mental anguish and
wounded feelings as a result of his injury due
to [petitioners] fault and failure to exercise
the degree of care and diligence incumbent
upon each one of them. Thus, they should be
held liable for moral damages. Also, [Jayson]
sent a demand letter to [petitioners] for the
payment of his medical expenses as well as
other expenses incidental thereto, which the
latter failed to heed. Hence, [Jayson] was
constrained to file the complaint for
damages. [Petitioners], therefore, should
likewise compensate [Jayson] for litigation
expenses, including attorneys fees.
On the other hand, [petitioners SJC, Sr.

Josephini Ambatali, SFIC, and Tabugo] alleged
that [Jayson] was a grade six pupil of SJC in
the school year 1994-1995. On November 17,
1994, at about 1:30 in the afternoon, the
class to which [Jayson] belong[s] was
conducting a science experiment under the
guidance and supervision of Tabugo, the

class science teacher, about fusion of sulphur
powder and iron fillings by combining these
elements in a test tube and heating the
same. Before the science experiment was
conducted, [Jayson] and his classmates were
given strict instructions to follow the written
procedure for the experiment and not to look
into the test tube until the heated compound
had cooled off. [Jayson], however, a person
of sufficient age and discretion and
completely capable of understanding the
English language and the instructions of his
teacher, without waiting for the heated
compound to cool off, as required in the
written procedure for the experiment and as
repeatedly explained by the teacher, violated
such instructions and took a magnifying glass
and looked at the compound, which at that
moment spurted out of the test tube, a small
particle hitting one of [Jaysons] eyes.
Jayson was rushed by the school employees

to the school clinic and thereafter transferred
to St. Lukes Medical Center for treatment. At
the hospital, when Tabago visited [Jayson],
the latter cried and apologized to his teacher
for violating her instructions not to look into
the test tube until the compound had cooled
off.
After the treatment, [Jayson] was pronounced

ready for discharge and an eye test showed
that his vision had not been impaired or
affected. In order to avoid additional hospital
charges due to the delay in [Jaysons]
discharge, Rodolfo S. Miranda, [Jaysons]
father, requested SJC to advance the amount
of P26,176.35 representing [Jaysons] hospital
bill until his wife could arrive from abroad
and pay back the money. SJC acceded to the
request.
On December 6, 1994, however, the parents

of [Jayson], through counsel, wrote SJC a
letter demanding that it should shoulder all
the medical expenses of [Jayson] that had
been incurred and will be incurred further
arising from the accident caused by the
science experiment. In a letter dated
December 14, 1994, the counsel for SJC,

represented by Sr. Josephini Ambatali, SFIC,
explained that the school cannot accede to
the demand because the accident occurred
by reason of [Jaysons] failure to comply with
the written procedure for the experiment and
his
teachers
repeated
warnings
and
instruction that no student must face, much
less look into, the opening of the test tube
until the heated compound has cooled.[3]
Since SJC did not accede to the demand,

Rodolfo, Jaysons father, on Jaysons behalf, sued
petitioners for damages.
After trial, the RTC rendered judgment, to wit:
WHEREFORE,
premises
considered,
judgment is hereby rendered in favor of
[Jayson] and against [petitioners]. This Court
orders and holds the [petitioners] joint[ly]
and solidarily liable to pay [Jayson] the
following amount:
1. To pay [Jayson] the amount

of P77,338.25 as actual damages;
However, [Jayson] is ordered to
reimburse [petitioner] St. Joseph
College the amount of P26,176.36

representing the advances given
to pay [Jaysons] initial hospital
expenses or in the alternative to
deduct said amount of P26,176.36
from
the P77,338.25
actual
damages herein awarded by way
of legal compensation;
2. To pay [Jayson] the sum

of P50,000.00
as
mitigated
moral damages;
3. To pay [Jayson] the sum

of P30,000.00
as
reasonable
attorneys fees;
4. To pay the costs of suit.
SO ORDERED.[4]
Aggrieved, petitioners appealed to the CA. However,

as previously adverted to, the CA affirmed in toto the
ruling of the RTC, thus:
WHEREFORE, in view of the foregoing, the

assailed decision of the RTC of Quezon City,
Branch 221 dated September 6, 2000 is
hereby AFFIRMED IN TOTO. Costs against
[petitioners].[5]
Undaunted, petitioners appealed` by certiorari to this

Court, adamant that the CA grievously erred, thus:
I. THE COURT OF APPEALS GRIEVOUSLY
ERRED
IN
NOT
FINDING
THAT
THE
PROXIMATE CAUSE OF JAYSONS INJURY WAS
HIS OWN ACT OF LOOKING AT THE HEATED
TEST TUBE BEFORE THE COMPOUND HAD
COOLED IN COMPLETE DISREGARD OF
INSTRUCTIONS GIVEN PRIOR TO THE
EXPERIMENT.
THE PETITIONERS SHOULD NOT BE HELD

LIABLE.
III. THE COURT OF APPEALS GRIEVOUSLY

ERRED IN AFFIRMING THE AWARD OF ACTUAL
DAMAGES DESPITE THE ABSENCE OF PROOF
TO SUPPORT THE SAME.
IV. THE LOWER COURT GRIEVOUSLY ERRED IN

AWARDING MORAL DAMAGES TO [JAYSON].
V. THE COURT OF APPEALS

ERRED IN AFFIRMING THE
ATTORNEYS FEES TO [JAYSON].
GRIEVOUSLY
AWARD OF
VI. THE LOWER COURT GRIEVOUSLY ERRED IN

DENYING THE PETITIONERS COUNTERCLAIM.
[6]
II. THE COURT OF APPEALS FAILED TO

APPRECIATE THAT, IN LIGHT OF THE RULING
IN THE CASE OF ST. MARYS COLLEGE V.
WILLIAM CARPITANOS, x x x JAYSONS
CONTRIBUTORY NEGLIGENCE OF PEEKING
INTO THE TEST TUBE WAS IN FACT THE
PROXIMATE CAUSE OF HIS INJURY FOR WHICH
We find no reason to depart from the uniform rulings

of the lower courts that petitioners were negligent
since they all failed to exercise the required
reasonable care, prudence, caution and foresight to
prevent or avoid injuries to the students.
Jurisprudence dictates that factual findings of

the trial court, especially when affirmed by the
appellate court, are accorded the highest degree of
respect and are considered conclusive between the
parties.[7] A review of such findings by this Court is not
warranted
except
for
highly
meritorious
circumstances when: (1) the findings of a trial court
are grounded entirely on speculation, surmises or
conjectures; (2) a lower courts inference from its
factual findings is manifestly mistaken, absurd or
impossible; (3) there is grave abuse of discretion in
the appreciation of facts; (4) the findings of the
appellate court go beyond the issues of the case, or
fail to notice certain relevant facts which, if properly
considered, will justify a different conclusion; (5) there
is a misappreciation of facts; (6) the findings of fact
are conclusions without mention of the specific
evidence on which they are based, are premised on
the absence of evidence, or are contradicted by
evidence on record.[8] None of the foregoing
exceptions which would warrant a reversal of the
assailed decision obtains in this instance.
Yet, petitioners maintain that the proximate cause of
Jaysons injury was his own negligence in disregarding
the instructions given by Tabugo prior to the
experiment and peeking into the test tube. Petitioners
invoke our ruling in St. Marys Academy v.
Carpitanos[9] which absolved St. Marys Academy from
liability for the untimely death of its student during a

school sanctioned activity, declaring that the
negligence of petitioner St. Marys Academy was only
a remote cause of the accident.
We are not convinced.
Contrary to petitioners assertions, the lower courts

conclusions are borne out by the records of this case.
Both courts correctly concluded that the immediate
and proximate cause of the accident which caused
injury to Jayson was the sudden and unexpected
explosion of the chemicals, independent of any
intervening cause. The assailed Decision of the CA
quotes with favor the RTC decision, thus:
In this case, [petitioners] failed to show that
the negligence of [Jayson] was the proximate
cause of the latters injury. We find that the
immediate cause of the accident was not the
negligence of [Jayson] when he curiously
looked into the test tube when the chemicals
suddenly exploded which caused his injury,
but the sudden and unexpected explosion of
the
chemicals
independent
of
any
intervening cause. [Petitioners] could have
prevented the mishap if they exercised a
higher degree of care, caution and foresight.

The court a quo correctly ruled that:
All of the [petitioners] are equally

at fault and are liable for
negligence because all of them are
responsible for exercising the
required
reasonable
care,
prudence, caution and foresight to
prevent or avoid injuries to the
students.
The
individual
[petitioners] are persons charged
with the teaching and vigilance
over their students as well as the
supervision and ensuring of their
well-being. Based on the facts
presented before this Court, these
[petitioners] were remiss in their
responsibilities and lacking in the
degree of vigilance expected of
them. [Petitioner] subject teacher
Rosalinda Tabugo was inside the
classroom
when
the
class
undertook the science experiment
although [Jayson] insisted that
said [petitioner] left the classroom.
No
evidence,
however,
was
presented
to
establish
that
[petitioner] Tabugo was inside the
classroom for the whole duration

of
the
experiment.
It
was
unnatural in the ordinary course of
events that [Jayson] was brought
to the school clinic for immediate
treatment not by [petitioner]
subject teacher Rosalinda Tabugo
but by somebody else. The Court
is
inclined
to
believe
that
[petitioner] subject teacher Tabugo
was not inside the classroom at
the time the accident happened.
The Court is also perplexed why
none of the other students (who
were eyewitnesses to the incident)
testified in Court to corroborate
the story of the [petitioners]. The
Court, however, understands that
these other students cannot testify
for [Jayson] because [Jayson] is no
longer enrolled in said school and
testifying for [Jayson] would incur
the ire of school authorities.
Estefania Abdan is equally at fault
as the subject adviser or teacher
in charge because she exercised
control and supervision over
[petitioner]
Tabugo
and
the
students themselves. It was her
obligation to insure that nothing
would go wrong and that the

science experiment would be
conducted safely and without any
harm or injury to the students.
[Petitioner] Sr. Josephini Ambatali
is likewise culpable under the
doctrine
of
command
responsibility because the other
individual [petitioners] were under
her direct control and supervision.
The negligent acts of the other
individual [petitioners] were done
within the scope of their assigned
tasks.
xxxx
The defense of due diligence of a

good father of a family raised by
[petitioner] St. Joseph College will
not exculpate it from liability
because it has been shown that it
was guilty of inexcusable laxity in
the supervision of its teachers
(despite
an
apparent
rigid
screening process for hiring) and
in the maintenance of what should
have been a safe and secured
environment
for
conducting
dangerous
experiments.
[Petitioner] school is still liable for
the wrongful acts of the teachers
and employees because it had full
information on the nature of
dangerous science experiments
but did not take affirmative steps
to avert damage and injury to
students. The fact that there has
never been any accident in the
past during the conduct of science
experiments is not a justification
to
be
complacent
in
just
preserving the status quo and do
away with creative foresight to
install safety measures to protect
the students. Schools should not
simply install safety reminders and
distribute
safety
instructional
manuals.
More
importantly,
schools should provide protective
gears and devices to shield
students from expected risks and
anticipated dangers.
Ordinarily, the liability of teachers
does not extend to the school or
university itself, although an
educational institution may be
held liable under the principle of
RESPONDENT SUPERIOR. It has

also been held that the liability of
the employer for the [tortuous]
acts
or
negligence
of
its
employees is primary and solidary,
direct and immediate and not
conditioned upon the insolvency of
or prior recourse against the
negligent employee.[10]
Under the foregoing circumstances, we are hard

pressed to disturb the findings of the RTC, which the
CA affirmed.
Nonetheless, petitioners make much of the fact that

Tabugo specifically instructed her students, including
Jayson, at the start of the experiment, not to look into
the heated test tube before the compound had cooled
off. Petitioners would allocate all liability and place all
blame for the accident on a twelve (12)-year-old
student, herein respondent Jayson.
We disagree.
As found by both lower courts, the proximate cause of

Jaysons injury was the concurrent failure of
petitioners to prevent the foreseeable mishap that
occurred during the conduct of the science
experiment. Petitioners were negligent by failing to
exercise the higher degree of care, caution and
foresight
incumbent
upon
the
school,
its
administrators and teachers.
Article 218 of the Family Code, in relation to Article

2180 of the Civil Code, bestows special parental
authority on the following persons with the
corresponding obligation, thus:
Art. 218. The school, its administrators and
teachers, or the individual, entity or
institution engaged in child care shall have
special parental authority and responsibility
over the minor child while under their
supervision, instruction or custody.
Authority and responsibility shall apply to all

authorized activities whether inside or
outside the premises of the school, entity or
institution.
Art. 2180. The obligation imposed by Article

2176 is demandable not only for ones own
acts or omissions, but also for those of
persons for whom one is responsible.
xxxx
2. Petitioner school did not install safety

measures to protect the students who conduct
experiments in class;
3. Petitioner school did not provide protective

gears and devices, specifically goggles, to shield
students from expected risks and dangers; and
Lastly, teachers or heads of establishments

of arts and trades shall be liable for damages
caused by their pupils and students or
apprentices, so long as they remain in their
custody.
4. Petitioner Tabugo was not inside the

classroom the whole time her class conducted the
experiment, specifically, when the accident involving
Jayson occurred. In any event, the size of the
classfifty (50) students conducting the experiment is
difficult to monitor.
Petitioners negligence and failure to exercise the

requisite degree of care and caution is demonstrated
by the following:
Moreover, petitioners cannot simply deflect their

negligence and liability by insisting that petitioner
Tabugo gave specific instructions to her science class
not to look directly into the heated compound.
Neither does our ruling in St. Marys preclude their
liability in this case.
1. Petitioner school did not take affirmative steps

to avert damage and injury to its students although it
had full information on the nature of dangerous
science experiments conducted by the students
during class;
Unfortunately for petitioners, St. Marys is not in point.

In that case, respondents thereat admitted the
documentary exhibits establishing that the cause of
the accident was a mechanical defect and not the

recklessness of the minor, James Daniel II, in driving
the jeep. We held, thus:
Significantly, respondents did not present
any evidence to show that the proximate
cause of the accident was the negligence of
the school authorities, or the reckless driving
of James Daniel II. x x x.
Further, there was no evidence that

petitioner school allowed the minor James
Daniel II to drive the jeep of respondent
Vivencio Villanueva. It was Ched Villanueva,
grandson of respondent Vivencio Villanueva,
who had possession and control of the jeep.
He was driving the vehicle and he allowed
James Daniel II, a minor, to drive the jeep at
the time of the accident.
Hence, liability for the accident, whether

caused by the negligence of the minor driver
or mechanical detachment of the steering
wheel guide of the jeep, must be pinned on
the minors parents primarily. The negligence
of petitioner St. Marys Academy was only a
remote cause of the accident. Between the
remote cause and the injury, there

intervened the negligence of the minors
parents or the detachment of the steering
wheel guide of the jeep.[11]
In marked contrast, both the lower courts similarly

concluded that the mishap which happened during
the science experiment was foreseeable by the
school, its officials and teachers. This neglect in
preventing a foreseeable injury and damage equates
to neglect in exercising the utmost degree of
diligence required of schools, its administrators and
teachers, and, ultimately, was the proximate cause of
the damage and injury to Jayson. As we have held
in St. Marys, for petitioner [St. Marys Academy] to be
liable, there must be a finding that the act or
omission considered as negligent was the proximate
cause of the injury caused because the negligence
must have a causal connection to the accident. [12]
As regards the contributory negligence of Jayson, we

see no need to disturb the lower courts identical
rulings thereon:
As earlier discussed, the proximate cause of

[Jaysons] injury was the explosion of the
heated compound independent of any
efficient intervening cause. The negligence
on the part of [petitioner] Tabugo in not
making sure that the science experiment was
correctly conducted was the proximate cause
or reason why the heated compound
exploded and injured not only [Jayson] but
his classmates as well. However, [Jayson] is
partly responsible for his own injury, hence,
he should not be entitled to recover damages
in full but must likewise bear the
consequences of his own negligence.
[Petitioners], therefore, should be held liable
only for the damages actually caused by
their negligence.[13]
SO ORDERED.
o0o
G.R. No. 187512.June 13, 2012.*

REPUBLIC OF THE PHILIPPINES, petitioner, vs.YOLANDA
CADACIO GRANADA, respondent.
Lastly, given our foregoing ruling, we likewise

affirm the lower courts award of actual and moral
damages, and grant of attorneys fees. The denial of
petitioners counterclaim is also in order.
WHEREFORE, the petition is DENIED. The Decision

of the Court of Appeals in CA-G.R. CV No. 68367
is AFFIRMED. Costs against petitioners.
Civil Law; Family Code; Declaration of Presumptive Death; Articles 41,

238, 247 and 253 of the Family Code provide that since a petition for
declaration of presumptive death is a summary proceeding, the judgment of
the court therein shall be immediately final and executory.Taken together,
Articles 41, 238, 247 and 253 of the Family Code provide that since a
petition for declaration of presumptive death is a summary proceeding, the
judgment of the court therein shall be immediately final and executory.
Civil Procedure; Appeals; Under Article 41 of the Family Code, the
losing party in a summary proceeding for the declaration of presumptive
death may file a petition for certiorari with the Court of Appeals on the
ground that, in rendering judgment thereon, the trial court committed
grave abuse of discretion amounting to lack of jurisdiction.In sum, under

Article 41 of the Family Code, the losing
_______________
* SECOND DIVISION.
433
VOL. 672, JUNE 13, 2012

Republic vs. Granada
433
party in a summary proceeding for the declaration of presumptive

death may file a petition for certiorari with the CA on the ground that, in
rendering judgment thereon, the trial court committed grave abuse of
discretion amounting to lack of jurisdiction. From the decision of the CA,
the aggrieved party may elevate the matter to this Court via a petition for
review on certiorari under Rule 45 of the Rules of Court. Evidently then,
the CA did not commit any error in dismissing the Republics Notice of
Appeal on the ground that the RTC judgment on the Petition for
Declaration of Presumptive Death of respondents spouse was immediately
final and executory and, hence, not subject to ordinary appeal.
Civil Law; Family Code; Declaration of Presumptive Death; Requisites
for the declaration of presumptive death under the Family Code.The four
requisites for the declaration of presumptive death under the Family Code
are as follows: 1. That the absent spouse has been missing for four
consecutive years, or two consecutive years if the disappearance occurred
where there is danger of death under the circumstances laid down in
Article 391, Civil Code; 2. That the present spouse wishes to remarry; 3.
That the present spouse has a well-founded belief that the absentee is
dead; and 4. That the present spouse files a summary proceeding for the
declaration of presumptive death of the absentee.
Civil Procedure; Immutability of Final Judgments; Nothing is more
settled in law than that when a judgment becomes final and executory, it
becomes immutable and unalterable.The RTC ruling on the issue of
whether respondent was able to prove her well-founded belief that her
absent spouse was already dead prior to her filing of the Petition to declare
him presumptively dead is already final and can no longer be modified or
reversed. Indeed, [n]othing is more settled in law than that when a
judgment becomes final and executory, it becomes immutable and
unalterable. The same may no longer be modified in any respect, even if
the modification is meant to correct what is perceived to be an erroneous
conclusion of fact or law.
PETITION for review on certiorari of the resolutions of the Court of

Appeals.
The facts are stated in the opinion of the Court.434
434

Office of the Solicitor General for petitioner.
Ramoncito M. Chavez for respondent.
SERENO,J.:
This is a Rule 45 Petition seeking the reversal of the Resolutions
dated 23 January 20091 and 3 April 20092issued by the Court of
Appeals (CA), which affirmed the grant by the Regional Trial Court
(RTC) of the Petition for Declaration of Presumptive Death of the
absent spouse of respondent.
In May 1991, respondent Yolanda Cadacio Granada (Yolanda) met
Cyrus Granada (Cyrus) at Sumida Electric Philippines, an
electronics company in Paraaque where both were then working.
The two eventually got married at the Manila City Hall on 3 March
1993. Their marriage resulted in the birth of their son, Cyborg Dean
Cadacio Granada.
Sometime in May 1994, when Sumida Electric Philippines closed
down, Cyrus went to Taiwan to seek employment. Yolanda claimed
that from that time, she had not received any communication from
her husband, notwithstanding efforts to locate him. Her brother

testified that he had asked the relatives of Cyrus regarding the
latters whereabouts, to no avail.
After nine (9) years of waiting, Yolanda filed a Petition to have
Cyrus declared presumptively dead. The Petition was raffled to
Presiding Judge Avelino Demetria of RTC Branch 85, Lipa City, and
was docketed as Sp. Proc. No. 2002-0530.
On 7 February 2005, the RTC rendered a Decision declaring
Cyrus as presumptively dead.
_______________
1 Rollo, pp. 30-33. The Court of Appeals Fifth Division Decision in CA-G.R. CV No.
90165 was penned by Justice Remedios A. Salazar-Fernando and concurred in by
Code, was a summary judicial proceeding, in which the judgment is

immediately final and executory and, thus, not appealable.
In its 23 January 2009 Resolution, the appellate court granted
Yolandas Motion to Dismiss on the ground of lack of jurisdiction.
Citing Republic v. Bermudez-Lorino,3 the CA ruled that a petition for
declaration of presumptive death under Rule 41 of the Family Code
is a summary proceeding. Thus, judgment thereon is immediately
final and executory upon notice to the parties.
Petitioner moved for reconsideration, but its motion was likewise
denied by the CA in a Resolution dated 3 April 2009.4
Hence, the present Rule 45 Petition.
Justices Jose C. Reyes, Jr. and Normandie B. Pizarro.
Issues
2 Rollo, pp. 35-36.

435
VOL. 672, JUNE 13, 2012

435
On 10 March 2005, petitioner Republic of the Philippines,

represented by the Office of the Solicitor General (OSG), filed a
Motion for Reconsideration of this Decision. Petitioner argued that
Yolanda had failed to exert earnest efforts to locate Cyrus and thus
failed to prove her well-founded belief that he was already dead.
However, in an Order dated 29 June 2007, the RTC denied the
motion.
Petitioner filed a Notice of Appeal to elevate the case to the CA,
presumably under Rule 41, Section 2(a) of the Rules of Court.
Yolanda filed a Motion to Dismiss on the ground that the CA had no
jurisdiction over the appeal. She argued that her Petition for
Declaration of Presumptive Death, based on Article 41 of the Family
1.Whether the CA seriously erred in dismissing the Petition on

the ground that the Decision of the RTC in a summary proceeding
for the declaration of presumptive death is immediately final and
executory upon notice to the parties and, hence, is not subject to
ordinary appeal.
_______________
3 489 Phil. 761; 449 SCRA 57 (2005).
4 Rollo, pp. 35-36.
436
436

2.Whether the CA seriously erred in affirming the RTCs grant

of the Petition for Declaration of Presumptive Death under Article
41 of the Family Code based on the evidence that respondent
presented
Our Ruling
1.On
erred
on
the
for
whether
in
the
RTC
executory
and,
that
declaration
is
upon
ordinary appeal
CA
dismissing
in
the
death
ties
ground
the
the
Petition
Decision
summary
immediately
hence,
the
seriously
notice
is
proceeding
of
to
not
of
presumptive
final
the
subject
and
parto
In the assailed Resolution dated 23 January 2009, the CA

dismissed the Petition assailing the RTCs grant of the Petition for
Declaration of Presumptive Death of the absent spouse under Article
41 of the Family Code. CitingRepublic v. Bermudez-Lorino,5 the
appellate court noted that a petition for declaration of presumptive
death for the purpose of remarriage is a summary judicial
proceeding under the Family Code. Hence, the RTC Decision therein
is immediately final and executory upon notice to the parties, by
express provision of Article 247 of the same Code. The decision is
therefore not subject to ordinary appeal, and the attempt to question
it through a Notice of Appeal is unavailing.
We affirm the CA ruling.
Article 41 of the Family Code provides:
Art.41.A marriage contracted by any person during the subsistence of a
previous marriage shall be null and void, unless before the
_______________
Clearly, a petition for declaration of presumptive death of an

absent spouse for the purpose of contracting a subsequent marriage
under Article 41 of the Family Code is a summary proceeding as
provided for under the Family Code.
Further, Title XI of the Family Code is entitled Summary
Judicial Proceedings in the Family Law. Subsumed thereunder are
Articles 238 and 247, which provide:
Art.238.Until modified by the Supreme Court, the procedural rules in
this Title shall apply in all cases provided for in this Code requiring
summary court proceedings. Such cases shall be decided in an expeditious
manner without regard to technical rules.
xxxxxxxxx
Art.247.The judgment of the court shall be immediately final and
executory.
Further, Article 253 of the Family Code reads:
5 Supra note 3.
437
VOL. 672, JUNE 13, 2012

celebration of the subsequent marriage, the prior spouse had been absent
for four consecutive years and the spouse present has a well-founded belief
that the absent spouse was already dead. In case of disappearance where
there is danger of death under the circumstances set forth in the provisions
of Article 391 of the Civil Code, an absence of only two years shall be
sufficient.
For the purpose of contracting the subsequent marriage under the
preceding paragraph the spouse present must institute asummary
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of the
absent spouse. (Underscoring supplied.)
437
ART.253.The foregoing rules in Chapters 2 and 3 hereof shall likewise

govern summary proceedings filed under Articles 41, 51, 69, 73, 96, 124
and 217, insofar as they are applicable.
Taken together, Articles 41, 238, 247 and 253 of the Family Code
provide that since a petition for declaration of presumptive death is a
summary proceeding, the judgment of the court therein shall be
immediately final and executory.438
438

In Republic v. Bermudez-Lorino, the Republic likewise appealed

the CAs affirmation of the RTCs grant of respondents Petition for
Declaration of Presumptive Death of her absent spouse. The Court
therein held that it was an error for the Republic to file a Notice of
Appeal when the latter elevated the matter to the CA, to wit:
6
In Summary Judicial Proceedings under the Family Code, there is no

reglementary period within which to perfect an appeal, precisely because
judgments rendered thereunder, by express provision of Section 247,
Family Code, supra, are immediately final and executory.
xxxxxxxxx
But, if only to set the records straight and for the future guidance of the
bench and the bar, let it be stated that the RTCs decision dated November
7, 2001, was immediately final and executory upon notice to the parties. It
was erroneous for the OSG to file a notice of appeal, and for the RTC to
give due course thereto. The Court of Appeals acquired no jurisdiction over
the case, and should have dismissed the appeal outright on that ground.
Justice (later Chief Justice) Artemio Panganiban, who concurred

in the result reached by the Court in Republic v. Bermudez-Lorino,
additionally opined that what the OSG should have filed was a
petition for certiorari under Rule 65, not a petition for review under
Rule 45.
In the present case, the Republic argues that BermudezLorino has been superseded by the subsequent Decision of the Court
in Republic v. Jomoc,7 issued a few months later.
In Jomoc, the RTC granted respondents Petition for Declaration

of Presumptive Death of her absent husband for the purpose of
remarriage. Petitioner Republic appealed the RTC Decision by filing
a Notice of Appeal. The trial court disapproved the Notice of Appeal
on the ground that, under the
_______________
6 Supra note 3.
7 497 Phil. 528; 458 SCRA 200 (2005).
439
VOL. 672, JUNE 13, 2012

439
Rules of Court,8 a record on appeal is required to be filed when

appealing special proceedings cases. The CA affirmed the RTC
ruling. In reversing the CA, this Court clarified that while an action
for declaration of death or absence under Rule 72, Section 1(m),
expressly falls under the category of special proceedings, a petition
for declaration of presumptive death under Article 41 of the Family
Code is a summary proceeding, as provided for by Article 238 of the
same Code. Since its purpose was to enable her to contract a
subsequent valid marriage, petitioners action was a summary
proceeding based on Article 41 of the Family Code, rather than a
special proceeding under Rule 72 of the Rules of Court. Considering
that this action was not a special proceeding, petitioner
was not required to file a record on appeal when it appealed the RTC
Decision to the CA.
We do not agree with the Republics argument thatRepublic v.
Jomoc superseded our ruling in Republic v. Bermudez-Lorino. As
observed by the CA, the Supreme Court in Jomoc did not expound on
the characteristics of a summary proceeding under the Family
Code. In contrast,the Court in Bermudez-Lorino expressly stated
that its ruling on the impropriety of an ordinary appeal as a vehicle

for questioning the trial courts Decision in a summary proceeding
for declaration of presumptive death under Article 41 of the Family
Code was
_______________
8 The case cited Rule 41, Sec. 2(a), which reads:
SEC.2.Modes of appeal.
(a)Ordinary appeal.The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by filing a
notice of appeal with the court which rendered the judgment or final order appealed
from and serving a copy thereof upon the adverse party. No record on appeal shall be
required except in special proceedings and other cases of multiple or separate appeals
where the law or these Rules so require. In such cases, the record on appeal shall be
filed and served in like manner. (Underscoring supplied.)
440
440

intended to set the records straight and for the future guidance of
the bench and the bar.
At any rate, four years after Jomoc, this Court settled the rule
regarding appeal of judgments rendered in summary proceedings
under the Family Code when it ruled in Republic v. Tango:9
This case presents an opportunity for us to settle the rule on appeal of

judgments rendered in summary proceedings under the Family Code and
accordingly, refine our previous decisions thereon.
Article 238 of the Family Code, under Title XI: SUMMARY JUDICIAL
PROCEEDINGS IN THE FAMILY LAW, establishes the rules that govern
summary court proceedings in the Family Code:
ART.238.Until modified by the Supreme Court, the procedural
rules in this Title shall apply in all cases provided for in this Code
requiring summary court proceedings. Such cases shall be decided in

an expeditious manner without regard to technical rules.
In turn, Article 253 of the Family Code specifies the cases covered by
the rules in chapters two and three of the same title. It states:
ART.253.The foregoing rules in Chapters 2 and 3 hereof shall
likewise govern summary proceedings filed under Articles 41, 51, 69,
73, 96, 124 and 217, insofar as they are applicable. (Emphasis
supplied.)
In plain text, Article 247 in Chapter 2 of the same title reads:
ART.247.The judgment of the court shall be immediately final and
executory.
By express provision of law, the judgment of the court in a summary
proceeding shall be immediately final and executory. As a matter of course,
it follows that no appeal can be had of the trial courts judgment in a
summary proceeding for the declaration of presumptive death of an absent
spouse under Article 41 of the Family Code. It goes without saying,
however, that an aggrieved party may file a petition for certiorari to
question abuse of discretion
_______________
9 G.R. No. 161062, 31 July 2009, 594 SCRA 560.
441
VOL. 672, JUNE 13, 2012

441
amounting to lack of jurisdiction. Such petition should be filed in the Court

of Appeals in accordance with the Doctrine of Hierarchy of Courts. To be
sure, even if the Courts original jurisdiction to issue a writ of certiorari is
concurrent with the RTCs and the Court of Appeals in certain cases, such
concurrence does not sanction an unrestricted freedom of choice of court
forum. From the decision of the Court of Appeals, the losing party may
then file a petition for review on certiorari under Rule 45 of the Rules of
Court with the Supreme Court. This is because the errors which the court
may commit in the exercise of jurisdiction are merely errors of judgment

which are the proper subject of an appeal.
In sum, under Article 41 of the Family Code, the losing party in a

summary proceeding for the declaration of presumptive death may
file a petition for certiorari with the CA on the ground that, in
rendering judgment thereon, the trial court committed grave abuse
of discretion amounting to lack of jurisdiction. From the decision of
the CA, the aggrieved party may elevate the matter to this
Court via a petition for review on certiorari under Rule 45 of the
Rules of Court.
Evidently then, the CA did not commit any error in dismissing the
Republics Notice of Appeal on the ground that the RTC judgment on
the Petition for Declaration of Presumptive Death of respondents
spouse was immediately final and executory and, hence, not subject
to ordinary appeal.
2.On
whether
the
CA
seriously
erred
the
in
Petition
sumptive
the
affirming
for
Death
Family
Code
the
RTCs
grant
Article
41
Declaration
under
based
on
of
the
of
Preof
evi-
dence that respondent had presented

Petitioner also assails the RTCs grant of the Petition for
Declaration of Presumptive Death of the absent spouse of
respondent on the ground that she had not adduced the evidence
required to establish a well-founded belief that her absent spouse
was already dead, as expressly required by
442
442

Article 41 of the Family Code. Petitioner cites Republic v.

Nolasco,10 United States v. Biasbas11 and Republic v. Court of Appeals
and Alegro12 as authorities on the subject.
In Nolasco, petitioner Republic sought the reversal of the CAs
affirmation of the RTCs grant of respondents Petition for
Declaration of Presumptive Death of his absent spouse, a British
subject who left their home in the Philippines soon after giving birth
to their son while respondent was on board a vessel working as a
seafarer. Petitioner Republic sought the reversal of the ruling on the
ground that respondent was not able to establish his well-founded
belief that the absentee is already dead, as required by Article 41 of
the Family Code. In ruling thereon, this Court recognized that this
provision imposes more stringent requirements than does Article 83
of the Civil Code.13 The Civil Code provision merely requires either
that there be no news that the absentee is still alive; or that the
absentee is generally considered to be dead and is believed to be so
by the spouse present, or is presumed dead under Articles 390 and
391 of the Civil Code. In comparison,
_______________
10 G.R. No. 94053, 17 March 1993, 220 SCRA 20.
11 25 Phil. 71 (1913).
12 513 Phil. 391; 477 SCRA 277 (2005).
13 Art.83.Any marriage subsequently contracted by any person during the
lifetime of the first spouse of such person with any person other than such first spouse
shall be illegal and void from its performance, unless:
(1)The first marriage was annulled or dissolved; or
(2) The first spouse had been absent for seven consecutive years at the time of the
second marriage without the spouse present having news of the absentee being alive,
or if the absentee, though he has been absent for less than seven years, is generally
considered as dead and believed to be so by the spouse present at the time of
contracting such subsequent marriage, or if the absentee is presumed dead according
to Articles 390 and 391. The marriage so contracted shall be valid in any of the three
cases until declared null and void by a competent court.
443
VOL. 672, JUNE 13, 2012

443
the Family Code provision prescribes a well-founded belief that the

absentee is already dead before a petition for declaration of
presumptive death can be granted. As noted by the Court in that
case, the four requisites for the declaration of presumptive death
under the Family Code are as follows:
1.That the absent spouse has been missing for four consecutive years, or two
consecutive years if the disappearance occurred where there is danger of death
under the circumstances laid down in Article 391, Civil Code;
2.That the present spouse wishes to remarry;
3.That the present spouse has a well-founded belief that the absentee is dead; and
4.That the present spouse files a summary proceeding for the declaration of
presumptive death of the absentee.
In evaluating whether the present spouse has been able to prove

the existence of a well-founded belief that the absent spouse is
already dead, the Court in Nolasco citedUnited States v.
Biasbas,14 which it found to be instructive as to the diligence
required in searching for a missing spouse.
In Biasbas, the Court held that defendant Biasbas failed to
exercise due diligence in ascertaining the whereabouts of his first
wife, considering his admission that that he only had a suspicion
that she was dead, and that the only basis of that suspicion was the
fact of her absence.
Similarly, in Republic v. Court of Appeals and Alegro, petitioner
Republic sought the reversal of the CA ruling affirming the RTCs
grant of the Petition for Declaration of Presumptive Death of the
absent spouse on the ground that the respondent therein had not
been able to prove a well-founded belief that his spouse was
already dead. The Court reversed the CA, granted the Petition, and
provided the following criteria for
_______________
14 The case originated from a bigamy suit against defendant Biasbas, whose
defense was that he contracted a second marriage on the good faith belief that his first
wife was already dead.
444
444

determining the existence of a well-founded belief under Article 41

of the Family Code:
For the purpose of contracting the subsequent marriage under the

preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Code for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of the
absent spouse.
The spouse present is, thus, burdened to prove that his spouse has been
absent and that he has a well-founded belief that the absent spouse is
already dead before the present spouse may contract a subsequent
marriage. The law does not define what is meant by a well-grounded belief.
Cuello Callon writes that es menester que su creencia sea firme se funde en
motivos racionales.
Belief is a state of the mind or condition prompting the doing of an overt
act. It may be proved by direct evidence or circumstantial evidence which
may tend, even in a slight degree, to elucidate the inquiry or assist to a
determination probably founded in truth. Any fact or circumstance relating
to the character, habits, conditions, attachments, prosperity and objects of
life which usually control the conduct of men, and are the motives of their
actions, was, so far as it tends to explain or characterize their
disappearance or throw light on their intentions, competence [sic] evidence

on the ultimate question of his death.
The belief of the present spouse must be the result of proper and honest
to goodness inquiries and efforts to ascertain the whereabouts of the
absent spouse and whether the absent spouse is still alive or is already
dead. Whether or not the spouse present acted on a well-founded belief of
death of the absent spouse depends upon the inquiries to be drawn from a
great many circumstances occurring before and after the disappearance of
the absent spouse and the nature and extent of the inquiries made by
present spouse. (Footnotes omitted, underscoring supplied.)
Applying the foregoing standards to the present case, petitioner

points out that respondent Yolanda did not initiate a diligent search
to locate her absent husband. While her brother Diosdado Cadacio
testified to having inquired about the whereabouts of Cyrus from the
latters relatives, these relatives were not presented to corroborate
Diosdados testi445
VOL. 672, JUNE 13, 2012

445
mony. In short, respondent was allegedly not diligent in her search

for her husband. Petitioner argues that if she were, she would have
sought information from the Taiwanese Consular Office or
assistance from other government agencies in Taiwan or the
Philippines. She could have also utilized mass media for this end,
but she did not. Worse, she failed to explain these omissions.
The Republics arguments are well-taken. Nevertheless, we are
constrained to deny the Petition.
The RTC ruling on the issue of whether respondent was able to
prove her well-founded belief that her absent spouse was already
dead prior to her filing of the Petition to declare him presumptively
dead is already final and can no longer be modified or reversed.

Indeed, [n]othing is more settled in law than that when a judgment
becomes final and executory, it becomes immutable and unalterable.
The same may no longer be modified in any respect, even if the
modification is meant to correct what is perceived to be an erroneous
conclusion of fact or law.15
WHEREFORE, premises considered, the assailed Resolutions of
the Court of Appeals dated 23 January 2009 and 3 April 2009 in CAG.R. CV No. 90165 are AFFIRMED.
SO ORDERED.
Carpio (Chairperson), Brion, Perez and Reyes, JJ., concur.
Resolutions affirmed.
Notes.No appeal can be had of the trial courts judgment in a
summary proceeding for the declaration of presumptive death of an
absent spouse under Article 41 of the Family Code. (Republic vs.
Tango, 594 SCRA 560 [2009])
_______________
15 Chan-Tan v. Tan, G.R. No. 167139, 25 February 2010, 613 SCRA 592.
446
446

The doctrine of immutability of decisions applies only to final and

executory decisionssince the present cases may involve a
modification or reversal of a Court-ordained doctrine or principle,
the judgment rendered by the Special Third Division may be
considered unconstitutional, hence, it can never become final; A
decision rendered by a Division of the Supreme Court in violation of
Section 4(3), Art. VIII of the Constitution would be in excess of
jurisdiction and, therefore, invalidany entry of judgment may thus

be said to be inefficacious since the decision is void for being
unconstitutional. (Lu vs. Lu Ym, Sr., 643 SCRA 23 [2011])
o0o
VOL. 537, OCTOBER 19, 2007
373
Silverio vs. Republic

G.R. No. 174689. October 19, 2007.
ROMMEL JACINTO DANTES SILVERIO, petitioner, vs.REPUBLIC

OF THE PHILIPPINES, respondent.
Change of Name; The State has an interest in the names borne by
individuals and entities for purposes of identification; A change of name is
a privilege, not a right.The State has an interest in the names borne by
individuals and entities for purposes of identification. A change of name is
a privilege, not a right. Petitions for change of name are controlled by
statutes. In this connection, Article 376 of the Civil Code provides: ART.
376. No person can change his name or surname without judicial authority.
Same; Clerical
Error
Law
(RA
9048); Administrative
Law;Jurisdictions; RA 9048 now governs the change of first name, and vests
the power and authority to entertain petitions for change of first name to the
city or municipal civil registrar or consul general concerned; The intent and
effect of the law is to exclude the change of first name from the coverage of
Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries
in the Civil Registry) of the Rules of Court, until and unless an
administrative petition for change of name is first filed and subsequently
deniedin sum, the remedy and the proceedings regulating change of first
name are primarily administrative in nature, not judicial.RA 9048 now
governs the change of first name. It vests the power and authority to
entertain petitions for change of first name to the city or municipal civil
registrar or consul general concerned. Under the law, therefore,
jurisdiction over applications for change of first name is now primarily
lodged with the aforementioned administrative officers. The intent and
effect of the law is to exclude the change of first name from the coverage of
Rules 103 (Change of Name) and 108 (Cancellation or Correction of Entries
in the Civil Registry) of the Rules of Court, until and unless an
administrative petition for change of name is first filed and subsequently
denied. It likewise lays down the corresponding venue, form and procedure.
In sum, the remedy and the proceedings regulating change of first name
are primarily administrative in nature, not judicial.
_______________
*
FIRST DIVISION.
374
374

Same; Same; Same; Same; Sex Change; A change of name does not
alter ones legal capacity or civil statusRA 9048 does not sanction a
change of first name on the ground of sex reassignment. Petitioners basis
in praying for the change of his first name was his sex reassignment. He
intended to make his first name compatible with the sex he thought he
transformed himself into through surgery. However, a change of name does
not alter ones legal capacity or civil status. RA 9048 does not sanction a
change of first name on the ground of sex reassignment. Rather than
avoiding confusion, changing petitioners first name for his declared
purpose may only create grave complications in the civil registry and the
public interest. Before a person can legally change his given name, he must
present proper or reasonable cause or any compelling reason justifying
such change. In addition, he must show that he will be prejudiced by the
use of his true and official name. In this case, he failed to show, or even
allege, any prejudice that he might suffer as a result of using his true and
official name.
Same; Same; A petition in the trial court in so far as it prays for
change of first name is not within that courts primary jurisdiction as the
petition should be filed with the local civil registrar concerned, namely,
where the birth certificate is kept.The petition in the trial court in so far
as it prayed for the change of petitioners first name was not within that
courts primary jurisdiction as the petition should have been filed with the
local civil registrar concerned, assuming it could be legally done. It was an
improper remedy because the proper remedy was administrative, that is,
that provided under RA 9048. It was also filed in the wrong venue as the
proper venue was in the Office of the Civil Registrar of Manila where his
birth certificate is kept. More importantly, it had no merit since the use of
his true and official name does not prejudice him at all. For all these
reasons, the Court of Appeals correctly dismissed petitioners petition in so
far as the change of his first name was concerned.
Same; Same; Sex Change; No law allows the change of entry in the
birth certificate as to sex on the ground of sex reassignment; Under RA
9048, a correction in the civil registry involving the change of sex is not a
mere clerical or typographical errorit is a substantial change for which
the applicable procedure is Rule 108 of the Rules of Court.Section 2(c) of
RA 9048 defines what a clerical or typographical error is: SECTION
2. Definition of Terms.As used in
375
VOL. 537, OCTOBER 19, 2007
375

this Act, the following terms shall mean: x x x
x x x
x x x (3)
Clerical or typographical error refers to a mistake committed in the
performance of clerical work in writing, copying, transcribing or typing an
entry in the civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the like, which is visible to
the eyes or obvious to the understanding, and can be corrected or changed
only by reference to other existing record or records: Provided, however,
That nocorrection must involve the change of nationality, age, status
or sex of the petitioner. (emphasis supplied) Under RA 9048, a correction
in the civil registry involving the change of sex is not a mere clerical or
typographical error. It is a substantial change for which the applicable
procedure is Rule 108 of the Rules of Court. The entries envisaged in
Article 412 of the Civil Code and correctable under Rule 108 of the Rules of
Court are those provided in Articles 407 and 408 of the Civil Code.
Same; Same; Same; Words and Phrases; Statutory Construction; No

reasonable interpretation of Art. 407 of the Civil Code can justify the
conclusion that it covers the correction on the ground of sex reassignment;
To correct simply means to make or set aright; to remove the faults or error
from while to change means to replace something with something else of
the same kind or with something that serves as a substitute.The acts,
events or factual errors contemplated under Article 407 of the Civil Code
include even those that occur after birth. However, no reasonable
interpretation of the provision can justify the conclusion that it covers the
correction on the ground of sex reassignment. To correct simply means to
make or set aright; to remove the faults or error from while to change
means to replace something with something else of the same kind or with
something that serves as a substitute. The birth certificate of petitioner
contained no error. All entries therein, including those corresponding to
his first name and sex, were all correct. No correction is necessary.
Same; Same; Same; Same; Status refers to the circumstances
affecting the legal situation (that is, the sum total of capacities and
incapacities) of a person in view of his age, nationality and his family
membership.Status refers to the circumstances affecting the legal
situation (that is, the sum total of capacities and incapacities) of a person
in view of his age, nationality and his family membership. The status of a
person in law includes all his personal qualities
376
376

and relations, more or less permanent in nature, not ordinarily

terminable at his own will, such as his being legitimate or illegitimate,
or his being married or not. The comprehensive term status include such
matters as the beginning and end of legal personality, capacity to have
rights in general, family relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage, divorce, and sometimes
even succession. (emphasis supplied)
Same; Same; Same; Same; A persons sex is an essential factor in
marriage and family relationsit is a part of a persons legal capacity and
civil status; There is no such special law in the Philippines governing sex
reassignment and its effects.A persons sex is an essential factor in
marriage and family relations. It is a part of a persons legal capacity and
civil status. In this connection, Article 413 of the Civil Code provides: ART.
413. All other matters pertaining to the registration of civil status shall be
governed by special laws. But there is no such special law in the
Philippines governing sex reassignment and its effects. This is fatal to
petitioners cause.
Same; Same; Same; Same; Civil Register Law (Act 3753);Under the
Civil Register Law, a birth certificate is a historical record of the facts as
they existed at the time of birththus, the sex of a person is determined at
birth, visually done by the birth attendant (the physician or midwife) by
examining the genitals of the infant; Considering that there is no law
legally recognizing sex reassignment, the determination of a persons sex
made at the time of his or her birth, if not attended by error, is immutable.
Under the Civil Register Law, a birth certificate is a historical record of
the facts as they existed at the time of birth. Thus, the sex of a person is
determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is
no law legally recognizing sex reassignment, the determination of a
persons sex made at the time of his or her birth, if not attended by error, is
immutable.
Same; Same; Same; Same; Same; Statutory Construction;When words
are not defined in a statute they are to be given their common and ordinary
meaning in the absence of a contrary legislative intent; The words sex,
male and female as used in the Civil Register Law and laws concerning
the civil registry (and even all
377
VOL. 537, OCTOBER 19, 2007
377

other laws) should therefore be understood in their common and
ordinary usage, there being no legislative intent to the contrary; Sex is
defined as the sum of peculiarities of structure and function that
distinguish a male from a female or the distinction between male and

female; The words male and female in everyday understanding do not
include persons who have undergone sex reassignment; While a person may
have succeeded in altering his body and appearance through the
intervention of modern surgery, no law authorizes the change of entry as to
sex in the civil registry for that reason. When words are not defined in a
statute they are to be given their common and ordinary meaning in the
absence of a contrary legislative intent. The words sex, male and
female as used in the Civil Register Law and laws concerning the civil
registry (and even all other laws) should therefore be understood in their
common and ordinary usage, there being no legislative intent to the
contrary. In this connection, sex is defined as the sum of peculiarities of
structure and function that distinguish a male from a female or the
distinction between male and female. Female is the sex that produces ova
or bears young and male is the sex that has organs to produce
spermatozoa for fertilizing ova. Thus, the words male and female in
everyday understanding do not include persons who have undergone sex
reassignment. Furthermore, words that are employed in a statute which
had at the time a well-known meaning are presumed to have been used in
that sense unless the context compels to the contrary. Since the statutory
language of the Civil Register Law was enacted in the early 1900s and
remains unchanged, it cannot be argued that the term sex as used then is
something alterable through surgery or something that allows a postoperative male-to-female transsexual to be included in the category
female. For these reasons, while petitioner may have succeeded in
altering his body and appearance through the intervention of modern
surgery, no law authorizes the change of entry as to sex in the civil registry
for that reason. Thus, there is no legal basis for his petition for the
correction or change of the entries in his birth certificate.
on marriage and family relationsit will allow the union of a man with
another man who has undergone sex reassignment (a male-to-female postoperative transsexual).The changes sought by petitioner will have serious
and wide-ranging legal and
Same; Same; Same; Marriage; To grant the changes in name and sex
sought by petitioner will substantially reconfigure and greatly alter the laws
Same; Same; Same; Separation of Powers; Judicial Legislation; Article

9 of the Civil Code which mandates that [n]o judge or court shall decline to
378
378

public policy consequences. First, even the trial court itself found that
the petition was but petitioners first step towards his eventual marriage to
his male fianc. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a
woman. One of its essential requisites is the legal capacity of the
contracting parties who must be a male and a female. To grant the changes
sought by petitioner will substantially reconfigure and greatly alter the
laws on marriage and family relations. It will allow the union of a man
with another man who has undergone sex reassignment (a male-to-female
post-operative transsexual). Second, there are various laws which apply
particularly to women such as the provisions of the Labor Code on
employment of women, certain felonies under the Revised Penal Code and
the presumption of survivorship in case of calamities under Rule 131 of the
Rules of Court, among others. These laws underscore the public policy in
relation to women which could be substantially affected if petitioners
petition were to be granted.
render judgment by reason of the silence, obscurity or insufficiency of the

law is not a license for courts to engage in judicial legislation; In our
system of government, it is for the legislature, should it choose to do so, to
determine what guidelines should govern the recognition of the effects of sex
reassignment.It is true that Article 9 of the Civil Code mandates that
[n]o judge or court shall decline to render judgment by reason of the
silence, obscurity or insufficiency of the law. However, it is not a license for
courts to engage in judicial legislation. The duty of the courts is to apply or
interpret the law, not to make or amend it. In our system of government, it
is for the legislature, should it choose to do so, to determine what
guidelines should govern the recognition of the effects of sex reassignment.
The need for legislative guidelines becomes particularly important in this
case where the claims asserted are statutebased.
Same; Same; Same; Same; Same; If the legislature intends to confer on
a person who has undergone sex reassignment the privilege to change his
name and sex to conform with his reassigned sex, it has to enact legislation
laying down the guidelines in turn governing the conferment of that
privilege; The Supreme Court cannot enact a law
379
VOL. 537, OCTOBER 19, 2007
379

where no law exists.To reiterate, the statutes define who may file
petitions for change of first name and for correction or change of entries in
the civil registry, where they may be filed, what grounds may be invoked,
what proof must be presented and what procedures shall be observed. If
the legislature intends to confer on a person who has undergone sex

reassignment the privilege to change his name and sex to conform with his
reassigned sex, it has to enact legislation laying down the guidelines in
turn governing the conferment of that privilege. It might be theoretically
possible for this Court to write a protocol on when a person may be
recognized as having successfully changed his sex. However, this Court has
no authority to fashion a law on that matter, or on anything else. The
Court cannot enact a law where no law exists. It can only apply or
interpret the written word of its co-equal branch of government, Congress.
Same; Same; Same; Same; The Court recognizes that there are people
whose preferences and orientation do not fit neatly into the commonly
recognized parameters of social convention and that, at least for them, life is
indeed an ordeal, but the remedies involve questions of public policy to be
addressed solely by the legislature, not by the courts.Petitioner pleads
that [t]he unfortunates are also entitled to a life of happiness,
contentment and [the] realization of their dreams. No argument about
that. The Court recognizes that there are people whose preferences and
orientation do not fit neatly into the commonly recognized parameters of
social convention and that, at least for them, life is indeed an ordeal.
However, the remedies petitioner seeks involve questions of public policy to
be addressed solely by the legislature, not by the courts.
PETITION for review on certiorari of a decision of the Court of

Appeals.
Benito R. Cuesta for petitioner.
The Solicitor General for respondent.
The petition, docketed as SP Case No. 02-105207, impleaded the civil
380
registrar of Manila as respondent.
380

CORONA, J.:
When God created man, He made him in the likeness of God; He created
them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard
voices coming from inside the bamboo. Oh North Wind! North Wind!
Please let us out!, the voices said. She pecked the reed once, then twice. All
of a sudden, the bamboo cracked and slit open. Out came two human
beings; one was a male and the other was a female. Amihan named the
man Malakas (Strong) and the woman Maganda (Beautiful). (The
Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular,

does the law recognize the changes made by a physician using
scalpel, drugs and counseling with regard to a persons sex? May a
person successfully petition for a change of name and sex appearing
in the birth certificate to reflect the result of a sex reassignment
surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes
Silverio filed a petition for the change of his first name and sex in his
birth certificate in the Regional Trial Court of Manila, Branch 8.
Petitioner alleged in his petition that he was born in the City of

Manila to the spouses Melecio Petines Silverio and Anita Aquino
Dantes on April 4, 1962. His name was registered as Rommel
Jacinto Dantes Silverio in his certificate of live birth (birth
certificate). His sex was registered as male.
He further alleged that he is a male transsexual, that is,
anatomically male but feels, thinks and acts as a female and that
he had always identified himself with girls since childhood. Feeling
trapped in a mans body, he consulted several
1
_______________
1
Petitioner went for his elementary and high school, as well as his Bachelor of
Science in Statistics and Master of Arts, in the University of the Philippines. He took
up Population Studies Program,
381
VOL. 537, OCTOBER 19, 2007
381

doctors in the United States. He underwent psychological
examination, hormone treatment and breast augmentation. His
attempts to transform himself to a woman culminated on January
27, 2001 when he underwent sex reassignment surgery in Bangkok,

Thailand. He was thereafter examined by Dr. Marcelino ReysioCruz, Jr., a plastic and reconstruction surgeon in the Philippines,
who issued a medical certificate attesting that he (petitioner) had in
fact undergone the procedure.
2
From then on, petitioner lived as a female and was in fact

engaged to be married. He then sought to have his name in his birth
certificate changed from Rommel Jacinto to Mely, and his sex
from male to female.
An order setting the case for initial hearing was published in the
Peoples Journal Tonight, a newspaper of general circulation in
Metro Manila, for three consecutive weeks. Copies of the order were
sent to the Office of the Solicitor General (OSG) and the civil
registrar of Manila.
3
On the scheduled initial hearing, jurisdictional requirements

were established. No opposition to the petition was made.
During trial, petitioner testified for himself. He also presented Dr.
Reysio-Cruz, Jr. and his American fianc, Richard P. Edel, as
witnesses.
_______________
Master of Arts in Sociology and Doctor of Philosophy in Sociology at the University
of Hawaii, in Manoa, Hawaii, U.S.A. Rollo, p. 48.
2
This consisted of penectomy [surgical removal of penis] bilateral oschiectomy [or
orchiectomy which is the surgical excision of the testes] penile skin inversion
vaginoplasty [plastic surgery of the vagina] clitoral hood reconstruction and

augmentation mammoplasty [surgical enhancement of the size and shape of the
breasts]. Id.
3
On January 23, 2003, January 30, 2003 and February 6, 2003.
382
382

On June 4, 2003, the trial court rendered a decision in favor of

petitioner. Its relevant portions read:
4
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the purpose
of making his birth records compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief
asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be
more in consonance with the principles of justice and equity. With his
sexual [re-assignment], petitioner, who has always felt, thought and acted
like a woman, now possesses the physique of a female. Petitioners
misfortune to be trapped in a mans body is not his own doing and should
not be in any way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be
caused to anybody or the community in granting the petition. On the
contrary, granting the petition would bring the much-awaited happiness on
the part of the petitioner and her [fianc] and the realization of their
dreams.
Finally, no evidence was presented to show any cause or ground to deny
the present petition despite due notice and publication thereof. Even the
State, through the [OSG] has not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition
and ordering the Civil Registrar of Manila to change the entries appearing
in the Certificate of Birth of [p]etitioner, specifically for petitioners first
name from Rommel Jacinto toMELY and petitioners gender from Male
to FEMALE.
On August 18, 2003, the Republic of the Philippines (Republic), thru

the OSG, filed a petition for certiorari in the Court of Appeals. It
6
alleged that there is no law allowing the
Id., pp. 52-53 (citations omitted).
Docketed as CA-G.R. SP No. 78824.
decision lacked legal basis. There is no law allowing the change of

either name or sex in the certificate of birth on the ground of sex
reassignment through surgery. Thus, the Court of Appeals granted
the Republics petition, set aside the decision of the trial court and
ordered the dismissal of SP Case No. 02-105207. Petitioner moved
for reconsideration but it was denied. Hence, this petition.
9
Petitioner essentially claims that the change of his name and sex
in his birth certificate is allowed under Articles 407 to 413 of the
Civil Code, Rules 103 and 108 of the Rules of Court and RA 9048.
10
First
Changed
On
Name
the
Petitioner invoked his sex reassignment as the ground for his

petition for change of name and sex. As found by the trial court:
383
VOL. 537, OCTOBER 19, 2007
On February 23, 2006, the Court of Appeals rendered a

decision in favor of the Republic. It ruled that the trial courts
A
Persons
Cannot
Be
Ground of Sex Reassignment
Penned by Judge Felixberto T. Olalia, Jr. Rollo, pp. 51-53.
change of entries in the birth certificate by reason of sex alteration.
The petition lacks merit.
_______________
4
383
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but
_______________
Special Sixth Division.
Penned by Associate Justice Arcangelita M. Romilla-Lontok with Associate Justices
Marina L. Buzon and Aurora Santiago-Lagman concurring. Rollo, pp. 25-33.

9
10
Resolution dated September 14, 2006, id., pp. 45-46.

An Act Authorizing the City or Municipal Civil Registrar or the Consul General to
Correct a Clerical or Typographical Error in an Entry and/or Change of First Name or

Nickname in the Civil Register Without Need of a Judicial Order, Amending for the
Purpose Articles 376 and 412 of the Civil Code of the Philippines.
384
384

This Civil Code provision was amended by RA 9048 (Clerical Error

Law). In particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and
Change of First Name or Nickname.No entry in a civil register shall be
changed or corrected without a judicial order, except for clerical or
typographical errors and change of first name or nickname which can be
corrected or changed by the concerned city or municipal civil registrar or
consul general in accordance with the provisions of this Act and its
implementing rules and regulations.
RA 9048 now governs the change of first name. It vests the power
and authority to entertain petitions for change of
14
_______________
solely for the purpose of making his birth records compatible with
his present sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features

of a female, he became entitled to the civil registry changes sought.
We disagree.
The State has an interest in the names borne by individuals and
entities for purposes of identification. A change of name is a
privilege, not a right. Petitions for change of name are controlled by
statutes. In this connection, Article 376 of the Civil Code provides:
11
12
ART. 376. No person can change his name or surname without judicial
authority.
11
Wang v. Cebu City Civil Registrar, G.R. No. 159966, 30 March 2005,454 SCRA
155.
12
Id.
13
K v. Health Division, Department of Human Resources, 277 Or. 371, 560 P.2d 1070
(1977).
14
Under Section 2 (6) of RA 9048, first name refers to a name or nickname given
to a person which may consist of one or more names in addition to the middle names
and last names. Thus, the term first name will be used here to refer both to first
name and nickname.
13
385
VOL. 537, OCTOBER 19, 2007
385
In case the petitioner has already migrated to another place in the country and it
would not be practical for such party, in terms of transportation expenses, time and
effort to appear in person before the local civil registrar keeping the documents to be
corrected or changed, the petition may be filed, in person, with the local civil registrar
of the place where the interested party is presently residing or domiciled. The two (2)
local civil registrars concerned will then communicate to facilitate the processing of the
first name to the city or municipal civil registrar or consul general

concerned. Under the law, therefore, jurisdiction over applications
for change of first name is now primarily lodged with the
aforementioned administrative officers. The intent and effect of the
law is to exclude the change of first name from the coverage of Rules
103 (Change of Name) and 108 (Cancellation or Correction of
Entries in the Civil Registry) of the Rules of Court, until and unless
an administrative petition for change of name is first filed and
subsequently denied. It likewise lays down the corresponding
venue,
petition.
Citizens of the Philippines who are presently residing or domiciledin foreign
countries may file their petition, in person, with the nearest Philippine Consulates.
The petitions filed with the city or municipal civil registrar or the consul general
shall be processed in accordance with this Act and its implementing rules and
regulations.
386
15
16
386
_______________
15
The last paragraph of Section 7 of RA 9048 provides:
SECTION 7. Duties and Powers of the Civil Registrar General.x x x
xxx
xxx
Where the petition is denied by the city or municipal civil registrar or the consul general, the
petitioner may either appealthe decision to the civil registrar general or file the appropriate
petition with the proper court.
16
SECTION 3. Who May File the Petition and Where.Any person having direct
and personal interest in the correction of a clerical or typographical error in an entry

and/or change of first name or nickname in the civil register may file, in person, a
verified petition with the local civil registry office of the city or municipality where the
record being sought to be corrected or changed is kept.
form and procedure. In sum, the remedy and the proceedings

regulating change of first name are primarily administrative in
nature, not judicial.
17
RA 9048 likewise provides the grounds for which change of first

name may be allowed:
SECTION 4. Grounds for Change of First Name or Nickname.The
petition for change of first name or nickname may be allowed in any of the
following cases:
_______________
All petitions for the clerical or typographical errors and/or change of first names or
nicknames may be availed of only once.
17
SECTION 5. Form and Contents of the Petition.The petition shall be in the form
of an affidavit, subscribed and sworn to before any person authorized by the law to
administer oaths. The affidavit shall set forth facts necessary to establish the merits of
the petition and shall show affirmatively that the petitioner is competent to testify to
the matters stated. The petitioner shall state the particular erroneous entry or entries,
1. (1)The petitioner finds the first name or nickname to be ridiculous,

tainted with dishonor or extremely difficult to write or pronounce;
2. (2)The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that first name or nickname in the community; or
which are sought to be corrected and/or the change sought to be made.

The petition shall be supported with the following documents:
1. (1)A certified true machine copy of the certificate or of the page of the registry
book containing the entry or entries sought to be corrected or changed;
2. (2)At least two (2) public or private documents showing the correct entry or
entries upon which the correction or change shall be based; and
3. (3)Other documents which the petitioner or the city or municipal civil registrar
or the consul general may consider relevant and necessary for the approval of
the petition.
In case of change of first name or nickname, the petition shall likewise be
supported with the documents mentioned in the immediately preceding paragraph. In
addition, the petition shall be published at least once a week for two (2) consecutive
weeks in a newspaper of general circulation. Furthermore, the petitioner shall submit
a certification from the appropriate law enforcement agencies that he has no pending
case or no criminal record.
3. (3)The change will avoid confusion.
Petitioners basis in praying for the change of his first name was his
sex reassignment. He intended to make his first name compatible
with the sex he thought he transformed himself into through
surgery. However, a change of name does not alter ones legal
capacity or civil status. RA 9048 does not sanction a change of first
name on the ground of sex reassignment. Rather than avoiding
confusion, changing petitioners first name for his declared purpose
may only create grave complications in the civil registry and the
public interest.
18
Before a person can legally change his given name, he must

present proper or reasonable cause or any compelling reason
justifying such change. In addition, he must show that he will be
prejudiced by the use of his true and official name. In this case, he
failed to show, or even allege, any prejudice that he might suffer as a
result of using his true and official name.
19
387
20
VOL. 537, OCTOBER 19, 2007
387
In sum, the petition in the trial court in so far as it prayed for the
change of petitioners first name was not within that courts primary
jurisdiction as the petition should have been filed with the local civil
registrar concerned, assuming it could be legally done. It was an
improper remedy because the proper remedy was administrative,
that is, that provided under RA 9048. It was also filed in the wrong
venue as the
No
Law
Allows
The
In
The
Birth
Certificate
the Ground of Sex Reassignment
Change
As
To
of
Entry
On
Sex
The determination of a persons sex appearing in his birth certificate

is a legal issue and the court must look to the statutes. In this
connection, Article 412 of the Civil Code provides:
21
ART. 412. No entry in the civil register shall be changed or corrected

without a judicial order.
_______________
18
Republic v. Court of Appeals, G.R. No. 97906, 21 May 1992, 209 SCRA 189.
19
Supra note 11.
20
Id.
388
Together with Article 376 of the Civil Code, this provision was
amended by RA 9048 in so far as clerical or typographical errors are
involved. The correction or change of such matters can now be made
through administrative proceedings and without the need for a
judicial order. In effect, RA 9048 removedfrom the ambit of Rule 108
of the Rules of Court the correction of such errors. Rule 108 now
applies only to substantialchanges and corrections in entries in the
civil register.
22
388

proper venue was in the Office of the Civil Registrar of Manila where
his birth certificate is kept. More importantly, it had no merit since
the use of his true and official name doe snot prejudice him at all.
For all these reasons, the Court of Appeals correctly dismissed
petitioners petition in so far as the change of his first name was
concerned.
23
Section 2(c) of RA
typographicalerror is:
9048
defines
what
clerical
or
SECTION 2. Definition of Terms.As used in this Act, the following

terms shall mean:
xxx
xxx
xxx
_______________
21
In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (1987).
22
Lee v. Court of Appeals, 419 Phil. 392; 367 SCRA 110 (2001).
23
Id.
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5)
annulments of marriage; (6) judgments declaring marriages void from the
beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural
children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13)
civil interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
389
VOL. 537, OCTOBER 19, 2007
389
The acts, events or factual errors contemplated under Article 407 of

the Civil Code include even those that occur after birth. However, no
reasonable interpretation of the provision can justify the conclusion
that it covers the correction on the ground of sex reassignment.
25

(3) Clerical or typographical error refers to a mistake committed in the
performance of clerical work in writing, copying, transcribing or typing an entry in
the civil register that is harmless and innocuous, such as misspelled name or
misspelled place of birth or the like, which is visible to the eyes or obvious to the
understanding, and can be corrected or changed only by reference to other existing
_______________
24
Co v. Civil Register of Manila, G.R. No. 138496, 23 February 2004,423 SCRA 420.
25
Id.
record or records: Provided, however, That no correction must involve the

change of nationality, age, status or sex of the petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the

change of sex is not a mere clerical or typographical error. It is a
substantial change for which the applicable procedure is Rule 108 of
the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are those provided
in Articles 407 and 408 of the Civil Code:
24
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
390
390

To correct simply means to make or set aright; to remove the faults

or error from while to change means to replace something with
something else of the same kind or with something that serves as a
substitute. The birth certificate of petitioner contained no error. All
entries therein, including those corresponding to his first name and
sex, were all correct. No correction is necessary.
26
Article 407 of the Civil Code authorizes the entry in the civil
registry of certain acts (such as legitimations, acknowledgments of
illegitimate children and naturalization), events (such as births,
marriages, naturalization and deaths) and judicial decrees (such as
legal separations, annulments of marriage, declarations of nullity of
marriages, adoptions, naturalization, loss or recovery of citizenship,
civil interdiction, judicial determination of filiation and changes of
name). These acts, events and judicial decrees produce legal
consequences that touch upon the legal capacity, status and
nationality of a person. Their effects are expressly sanctioned by the
laws. In contrast, sex reassignment is not among those acts or events
mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.
Status refers to the circumstances affecting the legal situation
(that is, the sum total of capacities and incapacities) of a person in
view of his age, nationality and his family membership.
27
The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or illegitimate,
or his being married or not. The comprehensive term status include such
matters as the beginning and end of legal personality, capacity to have
rights in general, family relations, and its various aspects, such as birth,
legitimation, adoption, emancipa_______________
26
Id.
27
Beduya v. Republic, 120 Phil. 114; 11 SCRA 109 (1964).
391
VOL. 537, OCTOBER 19, 2007
391

tion, marriage, divorce, and sometimes even succession. (emphasis
supplied)
28
A persons sex is an essential factor in marriage and family

relations. It is a part of a persons legal capacity and civil status. In
this connection, Article 413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status
shall be governed by special laws.
But there is no such special law in the Philippines governingsex

reassignment and its effects. This is fatal to petitionerscause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:
SEC. 5. Registration and certification of births.The declarationof the
physician or midwife in attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration shall be exempt
from documentary stamp tax and shall be sent to the local civil registrar
not later than thirty days after the birth, by the physician or midwife in
attendance at the birth or by either parent of the newborn child.
In such declaration, the person above mentioned shall certify to the

following facts: (a) date and hour of birth; (b) sex and nationality of infant;
(c) names, citizenship and religion of parents or, in case the father is not
known, of the mother alone; (d) civil status of parents; (e) place where the
infant was born; and (f) such other data as may be required in the
regulations to be issued.
xxx
xxx
x x x (emphasis supplied)
Salonga,
32
33
_______________
28
legislative intent. The words sex, male and female as used in

the Civil Register Law and laws concerning the civil registry (and
even all other laws) should therefore be understood in their common
and ordinary usage, there being no legislative intent to the contrary.
In this connection, sex is defined as the sum of peculiarities of
structure and function that distinguish a male from a female or
the distinction between male and female. Female is the sex that
produces
_______________
Jovito, PRIVATE
INTERNATIONAL
LAW, 1995
Edition,
Rex
Bookstore, p. 238.
29
This, of course, should be taken in conjunction with Articles 407 and 412 of the
Civil Code which authorizes the recording of acts, events and judicial decrees or the
correction or change of errors including those that occur after birth. Nonetheless, in
392
such cases, the entries in the certificates of birth are not be corrected or changed. The
392
decision of the court granting the petition shall be annotated in the certificates of birth
and shall form part of the civil register in the Office of the Local Civil Registrar. (Co v.
Civil Register of Manila, supra note 24)
30
The error pertains to one where the birth attendant writes male or female but
the genitals of the child are that of the opposite sex.
Under the Civil Register Law, a birth certificate is a historical record

of the facts as they existed at the time of birth. Thus, the sex of a
person is determined at birth,visually done by the birth attendant
(the physician or midwife) by examining the genitals of the infant.
Considering that there is no law legally recognizing sex
reassignment, the determination of a persons sex made at the time
of his or her birth, if not attended by error, is immutable.
29
30
31
When words are not defined in a statute they are to be given their
common and ordinary meaning in the absence of a contrary
31
Moreover, petitioners female anatomy is all man-made. The body that he inhabits
is a male body in all aspects other than what the physicians have supplied.
32
Blacks Law Dictionary, 8th edition (2004), p. 1406.
33
Words and Phrases, volume 39, Permanent Edition, p. 106.
393
VOL. 537, OCTOBER 19, 2007
393
allowing the petition would cause no harm, injury or prejudice to

anyone. This is wrong.

ova or bears young and male is the sex that has organs to produce
spermatozoa for fertilizing ova. Thus, the words male and
female in everyday understanding do not include persons who have
undergone sex reassignment. Furthermore, words that are
employed in a statute which had at the time a well-known meaning
are presumed to have been used in that sense unless the context
compels to the contrary. Since the statutory language of the Civil
Register Law was enacted in the early 1900s and remains
unchanged, it cannot be argued that the term sex as used then is
something alterable through surgery or something that allows a
post-operative male-to-female transsexual to be included in the
category female.
34
35
36
For these reasons, while petitioner may have succeeded in

altering his body and appearance through the intervention of
modern surgery, no law authorizes the change of entry as to sex in
the civil registry for that reason. Thus, there is no legal basis for his
petition for the correction or change of the entries in his birth
certificate.
Neither
May
Entries
Certificate
As
to
First
Be Changed on the Ground of Equity
in
the
Name
or
Birth
Sex
The trial court opined that its grant of the petition was in
consonance with the principles of justice and equity. It believed that
The changes sought by petitioner will have serious and wideranging legal and public policy consequences. First, even
_______________
34
In re Application for Marriage License for Nash, 2003-Ohio7221 (No. 2002-T-0149,
slip op., Not Reported in N.E.2d, 2003 WL 23097095 (Ohio App. 11 Dist., December 31,
2003), citing Websters II New College Dictionary (1999).
35
Id.
36
Standard Oil Co. v. United States, 221 U.S. 1 (1911), 31 S.Ct. 502, 55 L.Ed. 619.
394
394

the trial court itself found that the petition was but petitioners first
step towards his eventual marriage to his male fianc. However,
marriage, one of the most sacred social institutions, is a special
contract of permanent unionbetween a man and a woman. One of its
essential requisites is the legal capacity of the contracting parties
who must be a male and a female. To grant the changes sought by
petitioner will substantially reconfigure and greatly alter the laws on
marriage and family relations. It will allow the union of a man with
37
38
another man who has undergone sex reassignment (a male-to-female

post-operative transsexual). Second, there are various laws which
apply particularly to women such as the provisions of the Labor Code
on employment of women, certain felonies under the Revised Penal
Code and the presumption of survivorship in case of calamities
under Rule 131 of the Rules of Court, among others. These laws
underscore the public policy in relation to women which could be
substantially affected if petitioners petition were to be granted.
41
Section 3(jj)(4).
395
39
40
VOL. 537, OCTOBER 19, 2007
395
41
It is true that Article 9 of the Civil Code mandates that [n]o

judge or court shall decline to render judgment by reason of the
silence, obscurity or insufficiency of the law. However, it is not a
license for courts to engage in judicial legislation. The duty of the
courts is to apply or interpret the law, not to make or amend it.
In our system of government, it is for the legislature, should it
choose to do so, to determine what guidelines should
_______________
37
Article 1, Family Code.
38
Article 2(1), Id.
39
These are Articles 130 to 138 of the Labor Code which include nightwork
prohibition, facilities for women, prohibition on discrimination and stipulation against

marriage, among others.
40
These include Article 333 on adultery, Articles 337 to 339 on qualified seduction,
simple seduction and acts of lasciviousness with the consent of the offended party and
Articles 342 and 343 on forcible and consented abduction, among others.

govern the recognition of the effects of sex reassignment. The need
for legislative guidelines becomes particularly important in this case
where the claims asserted are statute-based.
To reiterate, the statutes define who may file petitions for change
of first name and for correction or change of entries in the civil
registry, where they may be filed, what grounds may be invoked,
what proof must be presented and what procedures shall be
observed. If the legislature intends to confer on a person who has
undergone sex reassignment the privilege to change his name and
sex to conform with his reassigned sex, it has to enact legislation
laying down the guidelines in turn governing the conferment of that
privilege.
It might be theoretically possible for this Court to write a protocol
on when a person may be recognized as having successfully changed
his sex. However, this Court has no authority to fashion a law on
that matter, or on anything else. The Court cannot enact a law
where no law exists. It can only apply or interpret the written word
of its co-equal branch of government, Congress.
Petitioner pleads that [t]he unfortunates are also entitled to a

life of happiness, contentment and [the] realization of their dreams.
No argument about that. The Court recognizes that there are people
whose preferences and orientation do not fit neatly into the
commonly recognized parameters of social convention and that, at
least for them, life is indeed an ordeal. However, the remedies
petitioner seeks involve questions of public policy to be addressed
solely by the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.
SO ORDERED.
Puno (C.J.,
Gutierrez,Azcuna and Garcia, JJ., concur.
Chairperson), Sandoval-
396
396
Land Bank of the Philippines vs. Ascot Holdings and Equities,

Inc.
Petition denied.
Notes.Petitions for adoption and change of name have no
relation to each other, nor are they of the same nature or character,
much less do they present any common question of fact or lawin

short, they do not rightly meet the underlying test of conceptual
unity demanded to sanction their joinder under the Rules. (Republic
vs. Hernandez, 253 SCRA 509 [1996])
The touchstone for the grant of a change of name is that there be
proper and reasonable cause for which the change is sought.
Legitimate children shall principally use the surname of their father.
(Republic vs. Court of Appeals, 300 SCRA 138 [1998])
The subject of rights must have a fixed symbol for
individualization which serves to distinguish him from all others
this symbol is his name. (Republic vs. Capote, 514 SCRA 76 [2007])
o0o
Same; Same; The entries envisaged in Article 412 of the Civil Code and
correctable under Rule 108 of the Rules of Court are those provided in Articles 407
and 408 of the Civil Code; The acts, events or factual errors contemplated under
Article 407 of the Civil Code include even those that occur after birth.Under Rep.
Act No. 9048, a
_______________
* SECOND DIVISION.
73
VOL. 565, SEPTEMBER 12, 2008
73
Republic vs. Cagandahan

G.R. No. 166676.September 12, 2008.*
REPUBLIC OF THE PHILIPPINES, petitioner, vs.JENNIFER B.
CAGANDAHAN, respondent.
Civil Registry; Correction of Entries in Birth Certificates; Clerical Error Law
(R.A. No. 9048); R.A. No. 9048 removed from the ambit of Rule 108 of the Rules of
Court the correction of such errorsRule 108 now applies only to substantial
changes and corrections in entries in the civil register.The determination of a
persons sex appearing in his birth certificate is a legal issue and the court must look to
the statutes. In this connection, Article 412 of the Civil Code provides: ART. 412. No
entry in a civil register shall be changed or corrected without a judicial order. Together
with Article 376 of the Civil Code, this provision was amended by Republic Act No.
9048 in so far as clerical or typographical errors are involved. The correction or
change of such matters can now be made through administrative proceedings and
without the need for a judicial order. In effect, Rep. Act No. 9048 removed from the
ambit of Rule 108 of the Rules of Court the correction of such errors. Rule 108 now
applies only to substantial changes and corrections in entries in the civil register.
correction in the civil registry involving the change of sex is not a mere clerical
or typographical error. It is a substantial change for which the applicable procedure is
Rule 108 of the Rules of Court. The entries envisaged in Article 412 of the Civil Code
and correctable under Rule 108 of the Rules of Court are those provided in Articles
407 and 408 of the Civil Code: ART. 407. Acts, events and judicial decrees concerning
the civil status of persons shall be recorded in the civil register. ART. 408. The
following shall be entered in the civil register: (1) Births; (2) marriages; (3) deaths; (4)
legal separations; (5) annulments of marriage; (6) judgments declaring marriages void
from the beginning; (7) legitimations; (8) adoptions; (9) acknowledgments of natural
children; (10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil
interdiction; (14) judicial determination of filiation; (15) voluntary emancipation of a
minor; and (16) changes of name. The acts, events or factual errors contemplated
under Article 407 of the Civil Code include even those that occur after birth.
Same; Same; Intersexuality; Congenital Adrenal Hyperplasia (CAH); Words and
Phrases; During the twentieth century, medicine adopted the term intersexuality to
apply to human beings who cannot be classified as either male or femalean
organism with intersex may have biological characteristics of both male and female
sexes.Respondent undisputedly has CAH. This condition causes the early or
inappropriate appearance of male characteristics. A person, like respondent, with

this condition produces too much androgen, a male hormone. A newborn who has XX
chromosomes coupled with CAH usually has a (1) swollen clitoris with the urethral
opening at the base, an ambiguous genitalia often appearing more male than female;
(2) normal internal structures of the female reproductive tract such as the ovaries,
uterus and fallopian tubes; as the child grows older, some features start to appear male,
such as deepening of the voice, facial hair, and failure to menstruate at puberty. About
1 in 10,000 to 18,000 children are born with CAH. CAH is one of many conditions
that involve intersex anatomy. During the twentieth century, medicine adopted the
term intersexuality to apply to human beings who cannot be classified as either male
or female. The term is now of widespread use. According to Wikipedia, intersexuality
is the state of a living thing of a gonochoristic species whose sex chromosomes,
genitalia, and/or secondary sex characteristics are determined to be neither exclusively
male nor74
74

compassionate calls for recognition of the various degrees of intersex as variations

which should not be subject to outright denial. It has been suggested that there is
some middle ground between the sexes, a no-mans land for those individuals who
are neither truly male nor truly female. The current state of Philippine statutes
apparently compels that a person be classified either as a male or as a female, but this
Court is not controlled by mere appearances when nature itself fundamentally negates
such rigid classification.
Same; Same; Same; Same; Where the person is biologically or naturally intersex
the determining factor in his gender classification would be what the individual,
having reached the age of majority, with good reason thinks of his/her sex; Sexual
development in cases of intersex persons makes the gender classification at birth
inconclusiveit is at maturity that the gender of such persons, like respondent, is
fixed.Biologically, nature endowed respondent with a mixed (neither consistently
and categorically female nor consistently and categorically male) composition.
Respondent has female (XX) chromosomes. However, respondents body system
naturally produces high levels of male hormones (androgen). As a result, respondent
has ambiguous genitalia and the phenotypic features of a male. Ultimately, we are of
the view that where the person is biologically or naturally intersex the determining
factor in his gender classifica-75
female. An organism with intersex may have biological characteristics of both

male and female sexes.
Same; Same; Same; Same; The current state of Philippine statutes apparently
compels that a person be classified either as a male or as a female, but this Court is
not controlled by mere appearances when nature itself fundamentally negates such
rigid classification.Intersex individuals are treated in different ways by different
cultures. In most societies, intersex individuals have been expected to conform to
either a male or female gender role. Since the rise of modern medical science in
Western societies, some intersex people with ambiguous external genitalia have had
their genitalia surgically modified to resemble either male or female genitals. More
commonly, an intersex individual is considered as suffering from a disorder which is
almost always recommended to be treated, whether by surgery and/or by taking
lifetime medication in order to mold the individual as neatly as possible into the
category of either male or female. In deciding this case, we consider the
75
tion would be what the individual, like respondent, having reached the age of
majority, with good reason thinks of his/her sex. Respondent here thinks of himself as
a male and considering that his body produces high levels of male hormones
(androgen) there is preponderant biological support for considering him as being male.
Sexual development in cases of intersex persons makes the gender classification at
birth inconclusive. It is at maturity that the gender of such persons, like respondent, is
fixed.
Same; Same; Same; Same; To the person with Congenital Adrenal Hyperplasia
(CAH) belongs the human right to the pursuit of happiness and of health, and to him
should belong the primordial choice of what courses of action to take along the path
of his sexual development and maturation.In the absence of a law on the matter, the
Court will not dictate on respondent concerning a matter so innately private as ones
sexuality and lifestyle preferences, much less on whether or not to undergo medical
treatment to reverse the male tendency due to CAH. The Court will not consider
respondent as having erred in not choosing to undergo treatment in order to become or
remain as a female. Neither will the Court force respondent to undergo treatment and
to take medication in order to fit the mold of a female, as society commonly currently
knows this gender of the human species. Respondent is the one who has to live with
his intersex anatomy. To him belongs the human right to the pursuit of happiness and
of health. Thus, to him should belong the primordial choice of what courses of action
to take along the path of his sexual development and maturation. In the absence of
evidence that respondent is an incompetent and in the absence of evidence to show
that classifying respondent as a male will harm other members of society who are
equally entitled to protection under the law, the Court affirms as valid and justified the
respondents position and his personal judgment of being a male.
Same; Same; Names; There is merit in the change of name of a person with
Congenital Adrenal Hyperplasia (CAH) where the same is the consequence of the
recognition of his preferred gender.As for respondents change of name under Rule
103, this Court has held that a change of name is not a matter of right but of judicial
discretion, to be exercised in the light of the reasons adduced and the consequences
that will follow. The trial courts grant of respondents change of name from Jennifer
to Jeff implies a change of a feminine76
76

name to a masculine name. Considering the consequence that respondents

change of name merely recognizes his preferred gender, we find merit in respondents
change of name. Such a change will conform with the change of the entry in his birth
certificate from female to male.
PETITION for review on certiorari of a decision of the Regional Trial Court of

Siniloan, Laguna, Br. 33.
The Solicitor General for petitioner.
Edgard N. Smith for respondent.
QUISUMBING,J.:
This is a petition for review under Rule 45 of the Rules of Court raising
purely questions of law and seeking a reversal of the Decision 1 dated January
12, 2005 of the Regional Trial Court (RTC), Branch 33 of Siniloan, Laguna,
which granted the Petition for Correction of Entries in Birth Certificate filed by
Jennifer B. Cagandahan and ordered the following changes of entries in
Cagandahans birth certificate: (1) the name Jennifer Cagandahan changed to
Jeff Cagandahan and (2) gender from female to male.
The facts are as follows.
On December 11, 2003, respondent Jennifer Cagandahan filed a Petition for
Correction of Entries in Birth Certificate2 before the RTC, Branch 33 of
Siniloan, Laguna.
In her petition, she alleged that she was born on January 13, 1981 and was
registered as a female in the Certificate of Live Birth but while growing up, she
developed secondary male characteristics and was diagnosed to have
Congenital Adrenal Hyperplasia (CAH) which is a condition where persons
thus afflicted possess both male and female characteris-
_______________
organsfemale and male. He testified that this condition is very rare, that
respondents uterus is not fully developed because of lack of female hormones,
and that she has no monthly period. He further testified that respondents
condition is permanent and recommended the change of gender because
respondent has made up her mind, adjusted to her chosen role as male, and the
gender change would be advantageous to her.
1 Rollo, pp. 29-32. Penned by Judge Florenio P. Bueser.

2 Id., at pp. 33-37.
77
77

tics. She further alleged that she was diagnosed to have clitoral hyperthropy in
her early years and at age six, underwent an ultrasound where it was
discovered that she has small ovaries. At age thirteen, tests revealed that her
ovarian structures had minimized, she has stopped growing and she has no
breast or menstrual development. She then alleged that for all interests and
appearances as well as in mind and emotion, she has become a male person.
Thus, she prayed that her birth certificate be corrected such that her gender be
changed from female to male and her first name be changed from Jennifer to
Jeff.
The petition was published in a newspaper of general circulation for three
(3) consecutive weeks and was posted in conspicuous places by the sheriff of
the court. The Solicitor General entered his appearance and authorized the
Assistant Provincial Prosecutor to appear in his behalf.
To prove her claim, respondent testified and presented the testimony of Dr.
Michael Sionzon of the Department of Psychiatry, University of the
Philippines-Philippine General Hospital. Dr. Sionzon issued a medical
certificate stating that respondents condition is known as CAH. He explained
that genetically respondent is female but because her body secretes male
hormones, her female organs did not develop normally and she has two sex
The RTC granted respondents petition in a Decision dated January 12,

2005 which reads:
The Court is convinced that petitioner has satisfactorily shown that he is entitled to
the reliefs prayed [for]. Petitioner has adequately presented to the Court very clear and
convincing proofs78
78

for the granting of his petition. It was medically proven that petitioners body
produces male hormones, and first his body as well as his action and feelings are that
of a male. He has chosen to be male. He is a normal person and wants to be
acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil Register of Pakil, Laguna is hereby
ordered to make the following corrections in the birth [c]ertificate of Jennifer
Cagandahan upon payment of the prescribed fees:
a)By changing the name from Jennifer Cagandahan to JEFF
CAGANDAHAN; and
b)By changing the gender from female to MALE.
It is likewise ordered that petitioners school records, voters registry, baptismal

certificate, and other pertinent records are hereby amended to conform with the
foregoing corrected data.
SO ORDERED.
Thus, this petition by the Office of the Solicitor General (OSG) seeking a
reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE PETITION CONSIDERING
THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF THE RULES OF COURT
HAVE NOT BEEN COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES NOT ALLOW CHANGE OF
SEX OR GENDER IN THE BIRTH CERTIFICATE, WHILE RESPONDENTS
MEDICAL CONDITION, i.e., CONGENITAL ADRENAL HYPERPLASIA DOES
NOT MAKE HER A MALE.
4
_______________
3 Id., at pp. 31-32.
4 Id., at p. 97.
79
79

Simply stated, the issue is whether the trial court erred in ordering the
correction of entries in the birth certificate of respondent to change her sex or
gender, from female to male, on the ground of her medical condition known as
CAH, and her name from Jennifer to Jeff, under Rules 103 and 108 of the
Rules of Court.
The OSG contends that the petition below is fatally defective for noncompliance with Rules 103 and 108 of the Rules of Court because while the
local civil registrar is an indispensable party in a petition for cancellation or
correction of entries under Section 3, Rule 108 of the Rules of Court,
respondents petition before the court a quo did not implead the local civil
registrar.5 The OSG further contends respondents petition is fatally defective
since it failed to state that respondent is a bona fide resident of the province
where the petition was filed for at least three (3) years prior to the date of such
filing as mandated under Section 2(b), Rule 103 of the Rules of Court. 6 The
OSG argues that Rule 108 does not allow change of sex or gender in the birth
certificate and respondents claimed medical condition known as CAH does
not make her a male.7
On the other hand, respondent counters that although the Local Civil
Registrar of Pakil, Laguna was not formally named a party in the Petition for
Correction of Birth Certificate, nonetheless the Local Civil Registrar was
furnished a copy of the Petition, the Order to publish on December 16, 2003
and all pleadings, orders or processes in the course of the
proceedings,8 respondent is actually a male person and hence his birth
certificate has to be corrected to reflect his true sex/gender,9 change of sex or
gender is allowed under
_______________
5 Id., at p. 99.
6 Id., at p. 103.
(c)The name asked for.
7 Id., at p. 104.
Sec.3.Order for hearing.If the petition filed is sufficient in form and

substance, the court, by an order reciting the purpose of the petition, shall fix a date
and place for the hearing thereof, and shall direct that a copy of the order be published
before the hearing at least once a week for three (3) successive weeks in some
newspaper of general circulation published in the province, as the court shall deem
best. The date set for the hearing shall not be within thirty (30) days prior to an
election nor within four (4) months after the last publication of the notice.
8 Id., at p. 136.
9 Id., at p. 127.
80
80

Rule 108,10 and respondent substantially complied with the requirements of

Rules 103 and 108 of the Rules of Court.11
Sec.4.Hearing.Any interested person may appear at the hearing and oppose

the petition. The Solicitor General or the proper provincial or city fiscal shall appear
on behalf of the Government of the Republic.
Sec.5.Judgment.Upon satisfactory proof in open court on the date fixed in the
order that such order has been published as
_______________
10 Id., at p. 134.
Rules 103 and 108 of the Rules of Court provide:

Rule103
11 Id., at p. 136.
81
CHANGE OF NAME
Section1.Venue.A person desiring to change his name shall present the
petition to the Regional Trial Court of the province in which he resides, [or, in the City
of Manila, to the Juvenile and Domestic Relations Court].
Sec.2.Contents of petition.A petition for change of name shall be signed and
verified by the person desiring his name changed, or some other person on his behalf,
and shall set forth:
(a)That the petitioner has been a bona fide resident of the province where
the petition is filed for at least three (3) years prior to the date of such filing;
(b)The cause for which the change of the petitioners name is sought;
81

directed and that the allegations of the petition are true, the court shall, if proper and
reasonable cause appears for changing the name of the petitioner, adjudge that such
name be changed in accordance with the prayer of the petition.
Sec.6.Service of judgment.Judgments or orders rendered in connection with
this rule shall be furnished the civil registrar of the municipality or city where the
court issuing the same is situated, who shall forthwith enter the same in the civil
register.
Rule 108
CANCELLATION OR CORRECTION OF ENTRIES
IN THE CIVIL REGISTRY
Section1.Who may file petition.Any person interested in any act, event, order
or decree concerning the civil status of persons which has been recorded in the civil
register, may file a verified petition for the cancellation or correction of any entry
relating thereto, with the Regional Trial Court of the province where the
corresponding civil registry is located.
Sec.2.Entries subject to cancellation or correction.Upon good and valid
grounds, the following entries in the civil register may be cancelled or corrected: (a)
births; (b) marriages; (c) deaths; (d) legal separations; (e) judgments of annulments of
marriage; (f) judgments declaring marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of natural children; (j)
naturalization; (k) election, loss or recovery of citizenship; (l) civil interdiction; (m)
judicial determination of filiation; (n) voluntary emancipation of a minor; and (o)
changes of name.
Sec.3.Parties.When cancellation or correction of an entry in the civil register
is sought, the civil registrar and all persons who have or claim any interest which
would be affected thereby shall be made parties to the proceeding.
Sec.4.Notice and publication.Upon the filing of the petition, the court shall,
by an order, fix the time and place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the petition. The court shall also
cause the order to be published once a week for three (3) consecutive weeks in a
newspaper of general circulation in the province. 82
Sec.5.Opposition.The civil registrar and any person having or claiming any

interest under the entry whose cancellation or correction is sought may, within fifteen
(15) days from notice of the petition, or from the last date of publication of such
notice, file his opposition thereto.
Sec.6.Expediting proceedings.The court in which the proceedings is brought
may make orders expediting the proceedings, and may also grant preliminary
injunction for the preservation of the rights of the parties pending such proceedings.
Sec.7.Order.After hearing, the court may either dismiss the petition or issue
an order granting the cancellation or correction prayed for. In either case, a certified
copy of the judgment shall be served upon the civil registrar concerned who shall
annotate the same in his record.
The OSG argues that the petition below is fatally defective for non-compliance
with Rules 103 and 108 of the Rules of Court because respondents petition did
not implead the local civil registrar. Section 3, Rule 108 provides that the civil
registrar and all persons who have or claim any interest which would be
affected thereby shall be made parties to the proceedings. Likewise, the local
civil registrar is required to be made a party in a proceeding for the correction
of name in the civil registry. He is an indispensable party without whom no
final determination of the case can be had.12 Unless all possible indispensable
parties were duly notified of the proceedings, the same shall be considered as
falling much too short of the requirements of the rules. 13 The corresponding
petition should also implead as respondents the civil registrar and all other
persons who may have or may claim to have any interest that would be affected
thereby.14 Respondent, however,
_______________
82
12 Republic v. Court of Appeals, G.R. No. 103695, March 15, 1996, 255 SCRA 99, 106.
13 Ceruila v. Delantar, G.R. No. 140305, December 9, 2005, 477 SCRA 134, 147.
14 Republic v. Benemerito, G.R. No. 146963, March 15, 2004, 425 SCRA 488, 492.
83
83

invokes Section 6,15 Rule 1 of the Rules of Court which states that courts shall
construe the Rules liberally to promote their objectives of securing to the
parties a just, speedy and inexpensive disposition of the matters brought before
it. We agree that there is substantial compliance with Rule 108 when
respondent furnished a copy of the petition to the local civil registrar.
The determination of a persons sex appearing in his birth certificate is a
legal issue and the court must look to the statutes. In this connection, Article
412 of the Civil Code provides:
ART.412.No entry in a civil register shall be changed or corrected without a
judicial order.
Together with Article 37616 of the Civil Code, this provision was amended
by Republic Act No. 904817 in so far as clerical or typographical errors are
involved. The correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In effect,
Rep. Act No. 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors. Rule 108 now
_______________
15 SEC.6.Construction.These Rules shall be liberally construed in order to promote their
objective of securing a just, speedy and inexpensive disposition of every action and proceeding.
16 Art.376.No person can change his name or surname without judicial authority.
17 An Act Authorizing the City or Municipal Civil Registrar or the Consul General to Correct a
Clerical or Typographical Error in an Entry and/or Change of First Name or Nickname in the Civil
Registrar Without Need of a Judicial Order, Amending for this Purpose Articles 376 and 412 of the
Civil Code of the Philippines. Approved, March 22, 2001.
84
84

applies only to substantial changes and corrections in entries in the civil

register.18
Under Rep. Act No. 9048, a correction in the civil registry involving the
change of sex is not a mere clerical or typographical error. It is a substantial
change for which the applicable procedure is Rule 108 of the Rules of Court.19
The entries envisaged in Article 412 of the Civil Code and correctable under
Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of
the Civil Code:
ART.407.Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART.408.The following shall be entered in the civil register:
(1)Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments of
marriage; (6) judgments declaring marriages void from the beginning; (7)
legitimations; (8) adoptions; (9) acknowledgments of natural children; (10)
naturalization; (11) loss, or (12) recovery of citizenship; (13) civil interdiction; (14)
judicial determination of filiation; (15) voluntary emancipation of a minor; and (16)
changes of name.
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth.20
Respondent undisputedly has CAH. This condition causes the early or
inappropriate appearance of male characteristics. A person, like respondent,
with this condition produces too much androgen, a male hormone. A newborn
who has XX chromosomes coupled with CAH usually has a (1) swollen clitoris
with the urethral opening at the base, an ambiguous genitalia often appearing
more male than female; (2) normal internal structures of the female
reproductive tract such as
_______________
18 Silverio v. Republic of the Philippines, G.R. No. 174689, October 19, 2007, 537 SCRA 373,
388.
now of widespread use. According to Wikipedia, intersexuality is the state of a

living thing of a gonochoristic species whose sex chromosomes, genitalia,
and/or secondary sex characteristics are determined to be neither exclusively
male nor female. An organism with intersex may have biological
characteristics of both male and female sexes.
Intersex individuals are treated in different ways by different cultures. In most
societies, intersex individuals have been expected to conform to either a male
or female gender role.23 Since the rise of modern medical science in Western
societies, some intersex people with ambiguous external genitalia have had
their genitalia surgically modified to resemble either male or female
genitals.24 More commonly, an intersex indi_______________
21 (1) 5-alpha reductase deficiency; (2) androgen insensitivity syndrome; (3) aphallia; (4)
clitoromegaly; (5) congenital adrenal hyperplasia; (6) gonadal dysgenesis (partial & complete); (7)
hypospadias; (8) Kallmann syndrome; (9) Klinefelter syndrome; (10) micropenis; (11) mosaicism
involving sex chromosomes; (12) MRKH (mullerian agenesis; vaginal agenesis; congenital absence
of vagina); (13) ovo-testes (formerly called true hermaphroditism); (14) partial androgen
insensitivity syndrome; (15) progestin induced virilization; (16) Swyer syndrome; (17) Turner
syndrome. [Intersexuality <http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008).]
19 Id., at p. 389.
20 Id., at p. 389.
85
22 Intersexuality <http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008).
85
23 Intersexuality <http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008), citing

Gagnon and Simon 1973.
24 Intersexuality <http://en.wikipedia.org/wiki/Intersexual> (visited August 15, 2008).
the ovaries, uterus and fallopian tubes; as the child grows older, some features
start to appear male, such as deepening of the voice, facial hair, and failure to
menstruate at puberty. About 1 in 10,000 to 18,000 children are born with
CAH.
CAH is one of many conditions21 that involve intersex anatomy. During the
twentieth century, medicine adopted the term intersexuality to apply to
human beings who cannot be classified as either male or female. 22 The term is
86
86

vidual is considered as suffering from a disorder which is almost always

recommended to be treated, whether by surgery and/or by taking lifetime
medication in order to mold the individual as neatly as possible into the
category of either male or female.
In deciding this case, we consider the compassionate calls for recognition of
the various degrees of intersex as variations which should not be subject to
outright denial. It has been suggested that there is some middle ground
between the sexes, a no-mans land for those individuals who are neither truly
male nor truly female. 25 The current state of Philippine statutes apparently
compels that a person be classified either as a male or as a female, but this
Court is not controlled by mere appearances when nature itself fundamentally
negates such rigid classification.
In the instant case, if we determine respondent to be a female, then there is
no basis for a change in the birth certificate entry for gender. But if we
determine, based on medical testimony and scientific development showing the
respondent to be other than female, then a change in the subjects birth
certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither consistently
and categorically female nor consistently and categorically male) composition.
Respondent has female (XX) chromosomes. However, respondents body
system naturally produces high levels of male hormones (androgen). As a
result, respondent has ambiguous genitalia and the phenotypic features of a
male.
Ultimately, we are of the view that where the person is biologically or
naturally intersex the determining factor in his gender classification would be
what the individual, like respondent, having reached the age of majority, with
good reason thinks of his/her sex. Respondent here thinks of himself as a male
and considering that his body produces high levels
_______________
25 M.T. v. J.T., 140 N.J. Super 77 355 A. 2d 204.

87
87

of male hormones (androgen) there is preponderant biological support for
considering him as being male. Sexual development in cases of intersex
persons makes the gender classification at birth inconclusive. It is at maturity
that the gender of such persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not taken
unnatural steps to arrest or interfere with what he was born with. And
accordingly, he has already ordered his life to that of a male. Respondent could
have undergone treatment and taken steps, like taking lifelong medication, 26 to
force his body into the categorical mold of a female but he did not. He chose
not to do so. Nature has instead taken its due course in respondents
development to reveal more fully his male characteristics.
In the absence of a law on the matter, the Court will not dictate on respondent
concerning a matter so innately private as ones sexuality and lifestyle
preferences, much less on whether or not to undergo medical treatment to
reverse the
_______________
26 The goal of treatment is to return hormone levels to normal. This is done by taking a form of
cortisol (dexamethasone), fludrocortisone, or hydrocortisone) every day. Additional doses of
medicine are needed during times of stress, such as severe illness or surgery.
xxxx
Parents of children with congenital adrenal hyperplasia should be aware of the side effects of
steroid therapy. They should report signs of infection and stress to their health care provider because
increases in medication may be required. In additional, steroid medications cannot be stopped
suddenly, or adrenal insufficiency will result.
xxxx
The outcome is usually associated with good health, but short stature may result even with
treatment. Males have normal fertility. Females may have a smaller opening of the vagina and lower
fertility. Medication to treat this disorder must be continued for life. (Congenital Adrenal
Hyperplasia
<http://www.nlm.nih.gov/medline
plus/encyclopedia.html>.)
In so ruling we do no more than give respect to (1) the diversity of nature;

and (2) how an individual deals with what nature has handed out. In other
words, we respect respondents congenital condition and his mature decision to
be a male. Life is already difficult for the ordinary person. We cannot but
respect how respondent deals with his unordinary state and thus help make his
life easier, considering the unique circumstances in this case.
As for respondents change of name under Rule 103, this Court has held
that a change of name is not a matter of right
_______________
88
88

male tendency due to CAH. The Court will not consider respondent as having
erred in not choosing to undergo treatment in order to become or remain as a
female. Neither will the Court force respondent to undergo treatment and to
take medication in order to fit the mold of a female, as society commonly
currently knows this gender of the human species. Respondent is the one who
has to live with his intersex anatomy. To him belongs the human right to the
pursuit of happiness and of health. Thus, to him should belong the primordial
choice of what courses of action to take along the path of his sexual
development and maturation. In the absence of evidence that respondent is an
incompetent27 and in the absence of evidence to show that classifying
respondent as a male will harm other members of society who are equally
entitled to protection under the law, the Court affirms as valid and justified the
respondents position and his personal judgment of being a male.
27 The word incompetent includes persons suffering the penalty of civil interdiction or who
are hospitalized lepers, prodigals, deaf and dumb who are unable to read and write, those who are of
unsound mind, even though they have lucid intervals, and persons not being of unsound mind, but
by reason of age, disease, weak mind, and other similar causes, cannot, without outside aid, take
care of themselves and manage their property, becoming thereby an easy prey for deceit and
exploitation. (See Sec. 2 of Rule 92 of the Rules of Court)
89
89

but of judicial discretion, to be exercised in the light of the reasons adduced
and the consequences that will follow.28The trial courts grant of respondents
change of name from Jennifer to Jeff implies a change of a feminine name to a
masculine name. Considering the consequence that respondents change of
name merely recognizes his preferred gender, we find merit in respondents
change of name. Such a change will conform with the change of the entry in
his birth certificate from female to male.
WHEREFORE, the Republics petition is DENIED. The Decision dated

January 12, 2005 of the Regional Trial Court, Branch 33 of Siniloan, Laguna,
is AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Carpio-Morales, Tinga, Velasco, Jr. and Brion, JJ.,concur.
Petition denied, judgment of RTC of Siniloan, Laguna, Br. 33 affirmed.
Notes.The subject of rights must have a fixed symbol for
individualization which serves to distinguish him from all othersthis symbol
is his name. The appropriate remedy for change of name is covered by Rule
103, a separate and distinct proceeding from Rule 108 on mere cancellation
and correction of entries in the civil registry. (Republic vs. Capote, 514 SCRA
76 [2007])
No law allows the change of entry in the birth certificate as to sex on the
ground of sex reassignment. (Silverio vs. Republic, 537 SCRA 373 [2007])
o0o
_______________
G.R. No. 169202.March 5, 2010.*

MARIA
VIRGINIA
HONORABLE
respondent.
V.
SECRETARY
REMO,
OF
petitioner, vs. THE
FOREIGN
AFFAIRS,
Marriages; Husband and Wife; Surname; A married woman has an

option but not a duty, to use the surname of the husband in any of the ways
provided using her maiden name once she is married because when a
woman marries, she does not change her name but only her civil status.A
married woman has an option, but not a duty, to use the surname of the
husband in any of the ways provided by Article 370 of the Civil Code. She
is therefore allowed to use not only any of the three names provided in
Article 370, but also her maiden name upon marriage. She is not
prohibited from continuously using her maiden name once she is married
because when a woman marries, she does not change her name but only
her civil status. Further, this interpretation is in consonance with the
principle that surnames indicate descent.
Same; Same; Same; In the case of renewal of passport, a married
woman may either adopt her husbands surname or continuously use her
maiden name.In the case of renewal of passport, a married woman may
either adopt her husbands surname or continuously use her maiden name.
If she chooses to adopt her husbands surname in her new passport, the
DFA additionally requires the submission of an authenticated copy of the
marriage certificate. Otherwise, if she prefers to continue using her
maiden name, she may still do so. The DFA will not prohibit her from
continuously using her maiden name.
_______________
* SECOND DIVISION.
282
282
instances are: (1) death of husband, (2) divorce, (3) annulment, or (4)
nullity of marriage. Since petitioners marriage to her husband subsists,
she may not resume her maiden name in the replacement passport.
Otherwise stated, a married womans reversion to the use of her maiden
name must be based only on the severance of the marriage.

Zamora, Poblador, Vasquez & Bretaa for petitioner.
The Solicitor General for respondent.
CARPIO, J.:
The Case
Before the Court is a petition for review1 of the 27 May 2005
Decision2 and 2 August 2005 Resolution 3 of the Court of Appeals in
CA-G.R. SP No. 87710. The Court of Appeals affirmed the decision of
the Office of the President, which in turn affirmed the decision of the
Secretary of Foreign Affairs denying petitioners request to revert to
the use of her maiden name in her replacement passport.
_______________
1 Under Rule 45 of the Rules of Court.
2 Rollo, pp. 37-44. Penned by Associate Justice Remedios A. Salazar-Fernando with

Remo vs. Honorable Secretary of Foreign Affairs
Same; Same; Once a married woman opted to adopt her husbands

surname in her passport, she may not revert to the use of her maiden name;
Exceptions.Once a married woman opted to adopt her husbands
surname in her passport, she may not revert to the use of her maiden
name, except in the cases enumerated in Section 5(d) of RA 8239. These
Associate Justices Rosmari D. Carandang and Monina Arevalo Zenarosa, concurring.

3 Id., at p. 35.
283
VOL. 614, March 5, 2010

The Facts
283
Petitioner Maria Virginia V. Remo is a married Filipino citizen

whose Philippine passport was then expiring on 27 October 2000.
Petitioner being married to Francisco R. Rallonza, the following
entries appear in her passport: Rallonza as her surname, Maria
Virginia as her given name, and Remo as her middle name. Prior
to the expiry of the validity of her passport, petitioner, whose
marriage still subsists, applied for the renewal of her passport with
the Department of Foreign Affairs (DFA) office in Chicago, Illinois,
U.S.A., with a request to revert to her maiden name and surname in
the replacement passport.
Petitioners request having been denied, Atty. Manuel Joseph R.
Bretana III, representing petitioner, wrote then Secretary of Foreign
Affairs Domingo Siason expressing a similar request.
On 28 August 2000, the DFA, through Assistant Secretary Belen
F. Anota, denied the request, stating thus:
This has reference to your letter dated 17 August 2000 regarding one
Ms. Maria Virginia V. Remo who is applying for renewal of her passport
using her maiden name.
This Office is cognizant of the provision in the law that it is not
obligatory for a married woman to use her husbands name. Use of
maiden name is allowed in passport application only if the
married name has not been used in previous application. The
Implementing Rules and Regulations
clearly defines the conditions when a
maiden name, that is, only in cases of
death of the husband. Ms. Remos
conditions. (Emphasis supplied)
for Philippine Passport Act of 1996

woman applicant may revert to her
annulment of marriage, divorce and
case does not meet any of these
Petitioners motion for reconsideration of the above-letter

resolution was denied in a letter dated 13 October 2000.5
_______________
4 Id., at p. 49.
5 Id., at p. 50.
284
284

On 15 November 2000, petitioner filed an appeal with the Office of

the President.
On 27 July 2004, the Office of the President dismissed the
appeal6 and ruled that Section 5(d) of Republic Act No. 8239 (RA
8239) or the Philippine Passport Act of 1996offers no leeway for any
other interpretation than that only in case of divorce, annulment, or
declaration [of nullity] of marriage may a married woman revert to
her maiden name for passport purposes. The Office of the President
further held that in case of conflict between a general and special
law, the latter will control the former regardless of the respective
dates of passage. Since the Civil Code is a general law, it should
yield to RA 8239.On 28 October 2004, the Office of the President
denied the motion for reconsideration.7
Petitioner filed with the Court of Appeals a petition for review
under Rule 43 of the Rules of Civil Procedure.
In its Decision of 27 May 2005, the Court of Appeals denied the
petition and affirmed the ruling of the Office of the President. The
dispositive portion of the Court of Appeals decision reads:
WHEREFORE, premises considered, the petition is DENIED, and the
resolution dated July 27, 2004, and the order dated October 28, 2004 of the
Office of the President in O.P. Case No. 001-A-9344 are hereby
AFFIRMED.
SO ORDERED.
8
Petitioner moved for reconsideration which the Court of Appeals

denied in its Resolution dated 2 August 2005.
Hence, this petition.
_______________
(1)Her maiden first name and surname and add her husbands surname, or
(2)Her maiden first name and her husbands surname or
(3)Her husbands full name, but prefixing a word indicating that she is his wife,
such as Mrs.
10 Section 5(d) for RA 8239 provides: In case of a woman who is married,
6 Id., at pp. 45-47.
separated, divorced or widowed or whose marriage has been annulled or declared by
7 Id., at p. 48.
court as void, a copy of the certificate of marriage, court decree of separation, divorce
8 Id., at p. 44.
or annulment or certificate of death of the deceased spouse duly issued and
285
VOL. 614, March 5, 2010

285
The Court of Appeals Ruling

The Court of Appeals found no conflict between Article 370 of the
Civil Code9 and Section 5(d) of RA 8239.10 The Court of Appeals held
that for passport application and issuance purposes, RA 8239 limits
the instances when a married woman applicant may exercise the
option to revert to the use of her maiden name such as in a case of a
divorce decree, annulment or declaration of nullity of marriage.
Since there was no showing that petitioners marriage to Francisco
Rallonza has been annulled, declared void or a divorce decree has
been granted to them, petitioner cannot simply revert to her maiden
name in the replacement passport after she had adopted her
husbands surname in her old passport. Hence, according to the
Court of Appeals, respondent was justified in refusing the request of
petitioner to revert to her maiden name in the replacement passport.
The Issue
The sole issue in this case is whether petitioner, who originally
used her husbands surname in her expired passport,
_______________
9 Art.370.A married woman may use:
authenticated by the Office of the Civil Registrar General: Provided, That in case of a
divorce decree, annulment or declaration of marriage as void, the woman applicant
may revert to the use of her maiden name: Provided, further, That such divorce is
recognized under existing laws of the Philippines;
286
286

can revert to the use of her maiden name in the replacement

passport, despite the subsistence of her marriage.
The Ruling of the Court
The petition lacks merit.
Title XIII of the Civil Code governs the use of surnames. In the
case of a married woman, Article 370 of the Civil Code provides:
ART.370.A married woman may use:
(1)Her maiden first name and surname and add her husbands
surname, or
(2)Her maiden first name and her husbands surname, or
(3)Her husbands full name, but prefixing a word indicating that she
is his wife, such as Mrs.
We agree with petitioner that the use of the word may in the
above provision indicates that the use of the husbands surname by
the wife is permissive rather than obligatory. This has been settled
in the case of Yasin v. Honorable Judge Sharia District Court.11
In Yasin,12 petitioner therein filed with the Sharia District Court
a Petition to resume the use of maiden name in view of the
dissolution of her marriage by divorce under the Code of Muslim
Personal Laws of the Philippines, and after marriage of her former
husband to another woman. In ruling in favor of petitioner therein,
the Court explained that:
When a woman marries a man, she need not apply and/or seek judicial
authority to use her husbands name by prefixing the word Mrs. before
her husbands full name or by adding her hus_______________
11 311 Phil. 696, 707; 241 SCRA 606, 615 (1995). See also Bar Matter No. 1625, In re:
Petition to Use Maiden Name in Petition to Take the 2006 Bar Examinations, Josephine P.
Uy-Timosa (En Banc Resolution dated 18 July 2006).
12 Supra.
288
288

bands surname to her maiden first name. The law grants her such right
(Art. 370, Civil Code). Similarly, when the marriage ties or vinculum no
longer exists as in the case of death of the husband or divorce as
authorized by the Muslim Code, the widow or divorcee need not seek
judicial confirmation of the change in her civil status in order to revert to
her maiden name as the use of her former husbands is optional and
not obligatory for her (Tolentino, Civil Code, p. 725, 1983 ed.; Art.
373, Civil Code). When petitioner married her husband, she did not
change her name but only her civil status. Neither was she required
to secure judicial authority to use the surname of her husband after the
marriage as no law requires it. (Emphasis supplied)
Clearly, a married woman has an option, but not a duty, to use the
surname of the husband in any of the ways provided by Article 370
of the Civil Code.13 She is therefore allowed to use not only any of the
three names provided in Article 370, but also her maiden name upon
marriage. She is not prohibited from continuously using her maiden
name once she is married because when a woman marries, she does
not change her name but only her civil status. Further, this
interpretation is in consonance with the principle that surnames
indicate descent.14
In the present case, petitioner, whose marriage is still subsisting
and who opted to use her husbands surname in her old passport,
requested to resume her maiden name in the replacement passport
arguing that no law prohibits her from using her maiden name.
Petitioner cites Yasin as the applicable precedent. However, Yasin is
not squarely in point with this case. Unlike in Yasin, which involved
a Muslim divorcee whose former husband is already married to
another woman, petitioners marriage remains subsisting. Another
point, Yasin did not involve a request to resume ones maiden name
_______________
13 Tolentino, Commentaries and Jurisprudence on the Civil Code of the
Philippines, Vol. 1 (1990 edition), p. 675.
14 Id.
288
288

in a replacement passport, but a petition to resume ones maiden

name in view of the dissolution of ones marriage.
The law governing passport issuance is RA 8239 and the
applicable provision in this case is Section 5(d), which states:
Sec.5.Requirements for the Issuance of Passport.No passport shall

be issued to an applicant unless the Secretary or his duly authorized
representative is satisfied that the applicant is a Filipino citizen who has
complied with the following requirements: x x x
(d)In case of a woman who is married, separated, divorced or widowed
or whose marriage has been annulled or declared by court as void, a copy
of the certificate of marriage, court decree of separation, divorce or
annulment or certificate of death of the deceased spouse duly issued and
authenticated by the Office of the Civil Registrar General: Provided, That
in case of a divorce decree, annulment or declaration of marriage
as void, the woman applicant may revert to the use of her maiden
name: Provided, further, That such divorce is recognized under existing
laws of the Philippines; x x x (Emphasis supplied)
The Office of the Solicitor General (OSG), on behalf of the

Secretary of Foreign Affairs, argues that the highlighted proviso in
Section 5(d) of RA 8239 limits the instances when a married woman
may be allowed to revert to the use of her maiden name in her
passport. These instances are death of husband, divorce decree,
annulment or nullity of marriage. Significantly, Section 1, Article 12
of the Implementing Rules and Regulations of RA 8239 provides:
The passport can be amended only in the following cases:
a)Amendment of womans name due to marriage;
b)Amendment of womans name due to death of spouse, annulment of
marriage or divorce initiated by a foreign spouse; or
c)Change of surname of a child who is legitimated by virtue of a
subsequent marriage of his parents.
Since petitioners marriage to her husband subsists, placing her

case outside of the purview of Section 5(d) of RA 8239 (as to the
instances when a married woman may revert to the
289
VOL. 614, March 5, 2010

289
use of her maiden name), she may not resume her maiden name in
the replacement passport.15 This prohibition, according to petitioner,
conflicts with and, thus, operates as an implied repeal of Article 370
of the Civil Code.
Petitioner is mistaken. The conflict between Article 370 of the
Civil Code and Section 5(d) of RA 8239 is more imagined than real.
RA 8239, including its implementing rules and regulations, does not
prohibit a married woman from using her maiden name in her
passport. In fact, in recognition of this right, the DFA allows a
married woman who applies for a passport for the first time to use
her maiden name. Such an applicant is not required to adopt her
husbands surname.16
In the case of renewal of passport, a married woman may either
adopt her husbands surname or continuously use her maiden name.
If she chooses to adopt her husbands surname in her new passport,
the DFA additionally requires the submission of an authenticated
copy of the marriage certificate. Otherwise, if she prefers to continue
using her maiden name, she may still do so. The DFA will not
prohibit her from continuously using her maiden name.17
However, once a married woman opted to adopt her husbands
surname in her passport, she may not revert to the use of her
maiden name, except in the cases enumerated in Section 5(d) of RA
8239. These instances are: (1) death of husband, (2) divorce, (3)
annulment, or (4) nullity of marriage. Since petitioners marriage to
her husband subsists, she may not resume her maiden name in the
replacement passport. Otherwise stated, a married womans
reversion to the use of her maiden name must be based only on the
severance of the marriage.
Even assuming RA 8239 conflicts with the Civil Code, the
provisions of RA 8239 which is a special law specifically deal-
married and from the time she first applied for a Philippine
passport. However, petitioner consciously chose to use her husbands
surname before, in her previous passport application, and now
desires to resume her
_______________
_______________
15 Rollo, pp. 264-265.
18Sitchon v. Aquino, 98 Phil. 458, 465 (1956); Laxamana v. Baltazar, 92 Phil. 32,
16See http://dfa.gov.ph/main/index.php/consular-services/passport.
35
17 See http://dfa.gov.ph/main/index.php/renewal-of-passport.
(1967); Nepomuceno v. RFC, 110 Phil. 42, 47 (1960).
Joya
v.
Lantin,
126
Phil.
286,
290;
19
SCRA
893,
897
19Lagman v. City of Manila, 123 Phil. 1439, 1447; 17 SCRA 579, 585 (1966)
290
290
(1952); De

ing with passport issuance must prevail over the provisions of Title
XIII of the Civil Code which is the general law on the use of
surnames. A basic tenet in statutory construction is that a special
law prevails over a general law,18 thus:
[I]t is a familiar rule of statutory construction that to the extent of any

necessary repugnancy between a general and a special law or provision,
the latter will control the former without regard to the respective dates of
passage.
19
Moreover, petitioners theory of implied repeal must fail. Wellentrenched is the rule that an implied repeal is disfavored. The
apparently conflicting provisions of a law or two laws should be
harmonized as much as possible, so that each shall be effective. 20 For
a law to operate to repeal another law, the two laws must actually be
inconsistent. The former must be so repugnant as to be
irreconcilable with the latter act.21 This petitioner failed to establish.
The Court notes that petitioner would not have encountered any
problems in the replacement passport had she opted to continuously
and consistently use her maiden name from the moment she was
citing Cassion v. Banco Nacional Filipino, 89 Phil. 560, 561 (1951).

20Valera v. Tuason, Jr., 80 Phil. 823, 827 (1948); Republic v. Asuncion, G.R. No.
108208, 11 March 1994, 231 SCRA 211, 231, citing Gordon v. Veridiano II, No. L55230, 8 November 1988, 167 SCRA 51, 58-59; People v. Antillon, 200 Phil. 144, 149;
114 SCRA 665, 668-669 (1982).
21 U.S. v. Palacio, 33 Phil. 208 (1916).
291
VOL. 614, March 5, 2010

291
maiden name. If we allow petitioners present request, definitely

nothing prevents her in the future from requesting to revert to the
use of her husbands surname. Such unjustified changes in ones
name and identity in a passport, which is considered superior to all
other official documents,22 cannot be countenanced. Otherwise, undue
confusion and inconsistency in the records of passport holders will
arise. Thus, for passport issuance purposes, a married woman, such
as petitioner, whose marriage subsists, may not change her family
name at will.
The acquisition of a Philippine passport is a privilege. The law
recognizes the passport applicants constitutional right to travel.
However, the State is also mandated to protect and maintain the
integrity and credibility of the passport and travel documents

proceeding from it23 as a Philippine passport remains at all
times the property of the Government. The holder is merely a
possessor of the passport as long as it is valid and the same may not
be surrendered to any person or entity other than the government or
its representative.24
As the OSG correctly pointed out:
[T]he issuance of passports is impressed with public interest. A
passport is an official document of identity and nationality issued to
a person intending to travel or sojourn in foreign countries. It is
issued by the Philippine government to its citizens requesting other
governments to allow its holder to pass safely and freely, and in case
of need, to give him/her aid and protection. x x x
Viewed in the light of the foregoing, it is within respondents
competence to regulate any amendments intended to be made
therein, including the denial of unreasonable and whimsical
requests for amendments such as in the instant case.25
_______________
22 Section 19, RA 8239.
23 See http://philippine-embassy.org.sg/index.cfm?GPID=9.
24 Section 11, RA 8239.
25 Rollo, p. 272.

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A.M. No. RTJ-12-2326.January 30, 2013.

GEOFFREY BECKETT, complainant, vs. JUDGE OLEGARIO

Administrative Law; Court Personnel; Judges; Gross Ignorance of the

in Dacasin v. Dacasin, 611 SCRA 657 (2010), a custody agreement can

VOL. 689, JANUARY 30, 2013

ADMINISTRATIVE MATTER in the Supreme Court. Gross

SUPREME COURT REPORTS ANNOTATED

This case arose from a complaint filed by Geoffrey Beckett

Geoffrey Beckett (Beckett or Complainant), an Australian

VOL. 689, JANUARY 30, 2013

part, Beckett commenced criminal charges against Eltesa, one of

Thereafter, Beckett left for Australia, taking Geoffrey, Jr. with

SUPREME COURT REPORTS ANNOTATED

VOL. 689, JANUARY 30, 2013

SUPREME COURT REPORTS ANNOTATED

Welfare Officer Clavel Saycon, DWSD-Region VII, who recommended

Respondent judge also denied knowing one Helen Sy adverted to

VOL. 689, JANUARY 30, 2013

x x x A compromise agreement that is intended to resolve a matter

complainant to bring with him Geoffrey, Jr. to Australia. Thus, in granting

The OCA, however, effectively recommends the dismissal of the

SUPREME COURT REPORTS ANNOTATED

The Court also notes that, contrary to complainants pretense,

The OCAs recommendation for the dismissal of the complaint

Beckett vs. Sarmiento, Jr.

VOL. 689, JANUARY 30, 2013

13 G.R. No. 168785, February 5, 2010, 611 SCRA 657, 675.

14 FAMILY CODE, Art. 213.

SUPREME COURT REPORTS ANNOTATED

Now to another point. In disputes concerning post-separation

VOL. 689, JANUARY 30, 2013

As Rosalind and Reginald Espiritu in Espiritu,19Geoffrey, Jr., at

x x x In so far as [Geoffrey, Jr.s] account of experience, being with his

x x x [H]e locked me in the room. He always leave (sic) me. x x x they

SUPREME COURT REPORTS ANNOTATED

With these, We see no reason to sustain the charge against

SUPREME COURT REPORTS ANNOTATED

Salientes vs. Abanilla

MARIE ANTONETTE ABIGAIL C. SALIENTES, ORLANDO

VOL. 500, AUGUST 29, 2006

Salientes vs. Abanilla

Id., at pp. 73-80.

SUPREME COURT REPORTS ANNOTATED

The facts of the case are as follows:

Emmanuel S. Abanilla. They lived with Marie Antonettes parents,

Upon verified Petition for a Writ of Habeas Corpus by Petitioners, the

B. Salientes and Rosario C. Salientes are hereby directed to produce and

Justices Amelita G. Tolentino, and Edgardo F. Sundiam concurring.

Id., at pp. 8-9.

Petitioners moved for reconsideration which the court denied.

full inquiry, in a summary proceeding, on the cause of the minors

Petitioners moved for reconsideration, which was denied on March

Id., at pp. 11-12.

not be discharged from a so-called restraint despite no evidence

VOL. 500, AUGUST 29, 2006

Salientes vs. Abanilla

5. 5.The Court of Appeals failed to consider that the private

1. 1.The Court of Appeals erred in not pronouncing the respondent

judge gravely abused his discretion, amounting to lack or in excess

Petitioners contend that the order is contrary to Article 213 of the

Private respondent counters that petitioners argument based on

Id., at pp. 34-35.

ART. 213. In case of separation of the parents, parental authority shall be