CHING HUAT, PETITIONER, VS. CO HEONG (ALIAS CO HONG, CO YONG), RESPONDENT.

Petitioner prays for the issuance of a writ of habeas corpus directing any
lawful officer to take from respondent and produce before this Court the person
of Maria Ching alias Avelina Ching, allegedly aged 15 years, and
requiring the respondent to justify his right to the custody of said minor, and,
after hearing, to award said custody to petitioner.

It is alleged in the petition, verified by petitioner’s oath, among other
things, that the said minor is his legitimate daughter; that up to June 21,
1946, said minor had been living with and had been under the custody of
petitioner; that respondent, taking advantage of his confidential and spiritual
relation with Maria Ching as her godfather, persuaded and induced her by means
of trick, promises and cajolery, to leave the parental home and to elope with
him in the night of June 21, 1946, to Plaridel, Bulacan, where they were married
on the following day before the Justice of the Peace of said municipality, said
Maria Ching being at the time 15 years old; and that ever since respondent has
had the minor Maria Ching under his custody in Malolos, Bulacan, and has
restrained her of her liberty.

It is further alleged that respondent had been previously married in China to
Gue Min, said marriage being said to be subsisting at the time respondent
married Maria Ching. Petitioner further avers that Gue Min has never been
declared an absentee nor generally considered as dead and believed to be so by
respondent at the time he married Maria Ching.

Respondent, in his answer, among other things, asserts that on June 21, 1946,
he and Maria Ching alias Avelina Ching were legally married before the
Justice of the Peace of Plaridel, Bulacan. He has attached to his answer a
certificate (Appendix 1) of the Local Civil Registrar of Plaridel, Bulacan,
dated July 9, 1946, attesting the celebration of the marriage above mentioned
between the parties above named on June 21, 1946, and alleges that the essential
requisites for such marriage were complied with.

The question to be decided is whether petitioner still retains his right to
the custody of his minor daughter Maria Ching alias Avelina Ching.

The fact of the civil marriage between respondent and Maria Ching having been
solemnized by the Justice of the Peace of Plaridel, Bulacan, on June 21, 1946,
is not disputed. Petitioner himself alleges in his petition that respondent is
of legal age, meaning 21 years or more old upon the date of the petition,
November 28, 1946. June 21, 1946, date of the marriage, was only 5 months and
one week earlier. Both man and woman were, therefore, of marriageable age under
section 2 of Act No. 3613.

The alleged marriage of respondent to Gue Min in China has not been proven.
There is no allegation in the petition, much less is there evidence, to show
that the said supposed marriage was performed in accordance with the laws of
China in force at the time of its supposed performance, nor even what those laws
were (Act No. 3613, section 19). The cited section of the existing Marriage Law
provides:

“SEC. 19. Marriages performed abroad.—All marriages performed outside
of the Philippine Islands in accordance with the laws in force in the country
where they were performed and valid there as such, shall also be valid in these
Islands.”

This provision is substantially the same as that contained upon the same
subject in the former Philippine Marriage Law, General Orders No. 68, which is
as follows:

“SEC. IV. All marriages contracted without these Islands, which would be
valid by the laws of the country in which the same were contracted, are valid in
these Islands.”

In the case of Adong vs. Cheong Seng Gee (43 Phil., 43 49), this Court
held, after quoting the aforesaid provision of the former Marriage Law:

“* * * To establish a valid foreign marriage pursuant to this comity
provision, it is first necessary to prove before the courts of the Islands the
existence of the foreign law as a question of fact, and it is then necessary to
prove the alleged foreign marriage by convincing evidence.”

In the same case of Adong vs. Cheong Seng Gee, this Court said (p.
50):

“In the case at bar there is no competent testimony as to what the laws of
China in the Province of Amoy concerning marriage were in 1895. As in the
Encarnacion case (Sy Joc Lieng vs. Encarnacion, 16 Phil., 137; 228 U.S.,
335), there is lacking proof so clear, strong, and unequivocal as to produce a
moral conviction of the existence of the alleged prior Chinese marriage. * *
*”

Again in that case the United States Supreme Court (228 U. S., 335, 338-339)
held:

“In these circumstances every presumption was in favor of the validity and
good faith of the Philippine marriage, and sound reason required that it be not
impugned and discredited through the alleged prior marriage save upon proof so
clear, strong, and unequivocal as to produce a moral conviction of the existence
of that impediment. * * *”

On the other hand, the Philippine marriage between said respondent and Maria
Ching before the Justice of the Peace of Plaridel, Bulacan, is undisputed. It is
also beyond question that that marriage was contracted by a man much over 16
years old with a girl 15 years old (Act No. 3613, section 2), neither of whom
was included in any of the exceptions mentioned in section 28 of the same Act;
nor in those stated in section 29 thereof for the reason that the alleged prior
Chinese marriage has not been established.

If the supposed prior Chinese marriage had been sufficiently proven, then in
order that the subsequent Philippine marriage could be valid, it would have been
necessary either (a) that the Chinese marriage should have been
previously annulled or dissolved: or (b) that the first wife of
respondent should have been absent for 7 consecutive years at the time of the
second marriage without the rer spondent having news of the absentee being
alive; or (c) that the absentee should have been generally considered as
dead and believed to be so by respondent at the time of contracting the
subsequent marriage, in either of which last two cases the subsequent marriage
will be valid until declared null and void by a competent court, while in the
first it will be valid without this limitation. (Act No. 3613, section 29
[a] and [b]; section 30 [b].) But, as already adverted to,
the complete absence of proof of the supposed former Chinese marriage makes
sections 29 and 30 of the Marriage Law inapplicable.

Maria Ching having been validly married on June 21, 1946, she became
emancipated on that same date (arts. 314 [1] and 315, Civil Code). This
emancipation brought about the loss by the father of the parental authority that
he claims. On the other hand, by article 48 of Chapter V of the Spanish Marriage
Law of 1870, whose articles 44 to 78 were, and are now partly, in force in the
Philippines (Benedicto vs. De la Rama, 3 Phil., 34), the wife has the
duty, among others, of living in her husband’s company and of following him to
wherever he transfers his domicile or residence. (Ibañez vs.
Fuster, 29 Phil., 606, 612.)

For all the foregoing considerations, we are of opinion that the petition
should be, as it is hereby, dismissed, with costs to petitioner. So ordered.

Moran, C.J., Paras, Feria, Pablo, Perfecto, Bengzon, Briones,
Hontiveros, and Tuason, JJ., concur.

MORAN, C. J.:

I certify that Mr. Justice Padilla
concurred in this decision.