FILOMENA DEL PRADO, PLAINTIFF AND APPELLANT, VS. TIRSO DE LA FUENTE, DEFENDANT AND APPELLEE.

Appeal raised through bill of exceptions from the judgment dated June 23,
1913, whereby the Honorable Richard Campbell, judge, decided in appellee’s favor
the petition for divorce and partition of the conjugal property requested by the
plaintiff, without special finding as to costs.

On December 29, 1910, counsel for Filomena del Prado filed a complaint in the
Court of First Instance of Pangasinan, alleging that on or about June 17, 1893,
the plaintiff contracted marriage with Tirso de la Fuente in the town of
Urdaneta of said province, and that they thereafter lived together as husband
and wife, having had several children of whom only one survived, named Emilio,
who is at the present time 10 years of age and is in plaintiffs possession;
that, since the period from June to November, 1910, her said husband had
separated from and abandoned her, and lived in marital relations with Basilisa
Padilla, a resident of Santa Barbara of the same province and wife of Isidro
Nicolas; wherefore the plaintiff wished to be legally separated from the
defendant, to have under her control her said child, and to enjoy the benefits
the law allows in such cases, and therefore she prayed that judgment be rendered
in her favor and against the defendant, declaring that she was entitled to be
divorced from her husband and that she be granted all the benefits the law
allows, both with respect to her child as well as to the property of the
conjugal partnership.

Counsel for the defendant in his answer denied each and every one of the
allegations of the foregoing complaint and each paragraph thereof; and in
special defense alleged that defendant had been freely acquitted in criminal
case No. 2787, wherein he was charged with adultery based on the same facts
alleged in this complaint, and he asked for dismissal thereof, with the costs
against the plaintiff.

Plaintiff moved to be permitted to unite to her complaint, as an integral
portion thereof, a statement of the conjugal property of herself and her husband
the defendant, which statement appears on page five of the bill of
exceptions.

The case was tried on June 9, 1913, evidence was adduced by the parties,
including the said criminal case, and as a result the court rendered the
judgment set forth. Counsel for the plaintiff saved his exception thereto and
asked for a new trial, which motion was denied by order of June 25, with
exception on the part of the appellant, who presented the proper bill of
exceptions, which was approved, certified, and forwarded to the clerk of this
court with the evidence taken in the case.

The present action deals with the petition for divorce presented by Filomena
del Prado, asking that she be separated from her lawful husband Tirso de la
Fuente, with whom she contracted marriage on June 17,1893. Her claim is based on
the fact that, after they had lived together from their marriage up to the year
1910, in June of that year her husband separated from and abandoned her and went
to live in marital relations with Basilisa Padilla, a woman married to Isidro
Nicolas; and therefore in the petition for divorce formulated by the wife of the
defendant the ground therefor was stated to be the concubinage committed by her
husband, in that he was illegally united with another woman who was not his
wife.

The jurisdiction of the Court of First Instance is taken for granted, as it
was not discussed, to hear and decide the present case in accordance with the
provisions of various laws of titles 2, 9, and 10 of the fourth Partida and of
section 56 of the Organic Act, No. 136 of the Philippine Civil Commission, from
the provisions whereof and of other laws cited in the case of Benedicto vs. De
la Rama (3 Phil. Rep,, 34) it is inferred: (1) That the fact of concubinage of
the legally married husband with another woman who is not his wife is classified
as adultery by the said laws of the Partidas, just as the crime of concubinage
is included in the chapter of the Penal Code in force treating oi adultery, and
the supreme court Of Spain adopted the same classification of adultery in its
decision of April 3, 1884, rendered in a trial for concubinage under article 452
of the Penal Code of Spain, analogous to article 437 of the code in force in
these Islands; (2) that the fact of concubinage, as adultery committed by the
husband with another woman to the humiliation of his own wife, is also legal
ground for seeking divorce on the part of the injured woman; (3) that a
prosecution for concubinage, as characterized in the ancient laws on adultery,
can be maintained .by the injured woman against the husband having the
concubine; and (4) that the decision or judgment granting the divorce, with its
consequences, does not dissolve the matrimonial bond but only provides for
separation and suspension of the common life between the husband and wife and
partition of their common property.

It has been held in a positive manner
that the laws of the Partidas are the only ones applicable to divorce suits, for
after the present Civil Code had been in force in these Islands twenty-four days
a decree of the general government, dated December 29, 1889, issued by virtue of
a telegraphic order of the Spanish Government, as published in the Official
Gazette of Manila under date of the 31st of the same month and year, suspended
the application and observance in these Islands of articles 42 to 107 and 325 to
332, comprised in titles 4 and 12, Book I, of the Civil Code.

In order, then, to decide whether the petition for divorce presented by the
injured wife can be granted, it would be sufficient to determine whether the
concubinage of the defendant husband accompanied with scandal and humiliation to
his lawful wife, in uniting with another woman who has a husband still living,
has been duly proven in this case. Such really appears to be fully demonstrated
and his acquittal in the case prosecuted against him and his concubine at the
instance of the latter’s husband, Isidro Nicolas, cannot exonerate the defendant
Tirso de la Fuente, because in that trial for adultery it was not successfully
shown nor proven that the defendant knew that his concubine Basilisa Padilla was
a married woman, wherefore his acquittal was based on the provision of the code
to the effect that in order to commit the crime of adultery, the married woman
must lie with a man other than her husband and he who lies with her must know
that she is married, and as the defendant alleged in said case, without
contradiction, that he did not know that his concubine was a married woman, he
was acquitted of the charge of adultery, and the accused woman alone was found
guilty, since it was shown that she was joined in lawful matrimony with her
husband Isidro Nicolas, that she had separated from him and had lived with her
codefendant, Tirso de la Fuente.

Both in the record of the case for adultery presented at this trial as
evidence and in this case itself it appears to be fully proven that the
defendant Tirso de la Fuente and Basilisa Padilla lived together in the former’s
house in Santa Barbara, Pangasinan, for after the husband separated from his
wife he lived in marital relations from 1910, up to the date of the filing of
the information in said case, in company with the said Basilisa Padilla, they
having eaten together and slept in the same bed, and for that reason the woman
was found guilty of the crime of which she was accused in the case for
adultery.

It was alleged on defendant’s behalf that adultery is the only ground upon
which divorce can be granted, and that, although Tirso de la Fuente had been
accused of adultery, he had been acquitted in the case prosecuted against him
therefor. This acquittal is no impediment to granting the petition for divorce
on the ground that it is based on the concubinage of the defendant.

The intimate life together and carnal relations of the defendant De la Fuente
with Basilisa Padilla constitute adultery to the moral injury of the latter’s
husband Isidro Nicolas, and at the same time concubinage to the humiliation of
the plaintiff, said defendant’s wife. It is a criminal act partaking of the
nature of a double crime.

Laws 2 and 3, title 9, of the fourth Partida, authorize the husband to
prosecute his wife for adultery and the injured wife as well to prosecute her
husband for said crime, which is classified later in the modern law as
concubinage; and once the charge that the wife has commited adultery, or the
husband concubinage, has been proven, the courts can decree the divorce in
accordance with the provisions of law 3, title 2, of the fourth Partida.

The decision declaring the divorce to have been properly granted in this
suit, on the ground that concubinage of the defendant husband with the
adulteress Basilisa Padilla has been proven, does not conflict with the final
judgment rendered in said case for adultery, prosecuted at the instance of the
husband of the adulteress, because the fact that the adultery has been punished
on account of the offense committed against the husband injured thereby and the
judgment of acquittal in favor of the plaintiff’s husband in that case, for the
reason stated, do not affect her rights, nor form an obstacle to granting this
petition, after the fact of the concubinage of the defendant husband has been
held to be established in this case.

For the foregoing reasons, the judgment appealed from should be reversed and
the divorce sought by the plaintiff be granted, as we do hereby grant it; and to
that end we order the separation and suspension of the common life of the
litigating spouses and the partition of the property of the conjugal partnership
between the two, their minor, child named Emilio to remain in possession and
under the care of its mother the plaintiff, the innocent party; and the costs of
both instances to be imposed upon the defendant.

Arellano, C. J., Johnson and Araullo, JJ., concur.

Carson and Moreland, JJ., dissent.