MARIANO B. ARROYO, PLAINTIFF AND APPELLANT, VS. DOLORES C. VAZQUEZ DE ARROYO, DEFENDANT AND APPELLEE.

Mariano B. Arroyo and Dolores C. Vazquez de
Arroyo were united in the bonds of wedlock by marriage in the year
1910, and since that date, with a few short intervals of separation,
they have lived together as man and wife in the city of Iloilo until
July 4, 1920, when the wife went away from their common home with the
intention of living thenceforth separate from her husband. After
efforts had been made by the husband without avail to induce her to
resume marital relations, this action was initiated by him to compel
her to return to the matrimonial home and live with him as a dutiful
wife. The defendant answered, admitting the fact of marriage, and that
she had left her husband’s home without his consent; but she averred by
way of defense and cross-complaint that she had been compelled to leave
by cruel treatment on the part of her husband. Accordingly she in turn
prayed for affirmative relief, to consist of (1) a decree of
separation; (2) a liquidation of the conjugal partnership; (3) and an
allowance for counsel fees and permanent separate maintenance. Upon
hearing the cause the lower court gave judgment in favor of the
defendant, authorizing her to live apart from her husband, granting her
alimony at the rate of P400 per month, and directing that the plaintiff
should pay to the defendant’s attorney the sum of P1,000 for his
services to defendant in the trial of the case. The plaintiff thereupon
removed the case with the usual formalities by appeal to this court.

The trial judge, upon consideration of the evidence before him,
reached the conclusion that the husband was I more to blame than his
wife and that his continued ill-treatment of her furnished sufficient
justification for her abandonment of the conjugal home and the
permanent breaking off of marital relations with him. We have carefully
examined and weighed every line of the proof, and are of the opinion
that the conclusion stated is wholly untenable. The evidence shows that
the wife is afflicted with a disposition of jealousy towards her
husband in an aggravated degree; and to this cause are chiefly
traceable without a doubt the many miseries that have attended their
married life. In view of the decision which we are to pronounce nothing
will be said in this opinion which will make the resumption of married
relations more difficult to them or serve as a reminder to either of
the mistakes of the past; and we prefer to record the fact that so far
as the proof in this record shows neither of the spouses has at any
time been guilty of conjugal infidelity, or has given just cause to the
other to suspect illicit relations with any person. The tales of
cruelty on the part of the husband towards the wife, which are the
basis of the cross-action, are in our opinion no more than highly
colored versions of personal wrangles in which the spouses have allowed
themselves from time to time to become involved and would have little
significance apart from the morbid condition exhibited by the wife. The
judgment must therefore be recorded that the abandonment by her of the
marital home was without sufficient justification in fact.

In examining the legal questions involved, it will be found convenient
to dispose first of the defendant’s cross-complaint. To begin with, the
obligation which the law imposes on the husband to maintain the wife is
a duty universally recognized in civil society and is clearly expressed
in articles 142 and 143 of Civil Code. The enforcement of this
obligation by the wife against the husband is not conditioned upon the
procurance of a divorce by her, nor even upon the existence of a cause
for divorce. Accordingly it has been determined that where the wife is
forced to leave the matrimonial abode and to live apart from her
husband, she can, in this jurisdiction, compel him to make provision
for her separate maintenance (Goitia vs. Campos Rueda, 35
Phil., 252); and he may be required to pay the expenses, including
attorney’s fees, necessarily incurred in enforcing such obligation.
(Mercado vs. Ostrand and Ruiz, 37 Phil., 179.) Nevertheless,
the interests of both parties as well as of society at large require
that the courts should move with caution in enforcing the duty to
provide for the separate maintenance of the wife, for this step
involves a recognition of the de facto separation of the spouses—a
state which is abnormal and fraught with grave danger to all concerned.
From this consideration it follows that provision should not be made
for separate maintenance in favor of the wife unless it appears that
the continued cohabitation of the pair has become impossible and
separation necessary from the fault of the husband.

In Davidson vs.
Davidson, the Supreme Court of Michigan, speaking through the eminent
jurist, Judge Thomas M. Cooley, held that an action for the support of
the wife separate from the husband will only be the reasons for it are
imperative (47 Mich., 151). That imperative necessity is the only
ground on which such a proceeding can be maintained also appears from
the decision in Schindel vs. Schindel (12 Md., 294).

In
the State of South Carolina, where judicial divorces Have never been
procurable on any ground, the Supreme Court fully recognizes the right
of the wife to have provision for separate maintenance, where it is her
to continue safely to cohabit with her husband; but the same court has
more than once rejected the petition of the wife for separate
maintenance where it appeared, tha£3ne husband’s alleged cruelty or
ill-treatment was provoked by the wife’s own improper conduct. (Rhame vs. Rhame, 1 McCord’s Chan. [S. Car.], 197; 16 Am. Dec., 597; Boyd vs. Boyd, Har. Eq. [S. Car.], 144.)

Upon one occasion Sir William Scott, pronouncing the judgment of the
English Ecclesiastical Court in a case where cruelty on the part of the
husband was relied upon to secure a divorce for the wife, made use of
the following eloquent words,—which are perhaps even more applicable in
a proceeding for separate maintenance in a jurisdiction where, as here,
a divorce cannot be obtained except on the single ground of adultery
and this, too, after the conviction of the guilty spouse in a criminal
prosecution for that crime. Said he:

“That
the duty of cohabitation is released by the cruelty of one of the
parties is admitted, but the question occurs, What is cruelty? * * *

“What merely wounds the mental feelings is in few cases to be admitted
where they are not accompanied with bodily injury, either actual or
menaced. Mere austerity of temper, petulance of manners, rudeness of
language, a want of civil attention and accommodation, even occasional
sallies of passion, if they do not threaten bodily harm, do not amount
to legal cruelty: they are high moral offences in the marriage-state
undoubtedly, not innocent surely in any state of life, but still they
are not that cruelty against which the law can relieve. Under such
misconduct of either of the parties, for it may exist on the one side
as well as on the other, the suffering party must bear in some degree
the consequences of an injudicious connection; must subdue by decent
resistance or by prudent conciliation; and if this cannot be done, both
must suffer in silence. * * *

“The humanity of the court
has been loudly and repeatedly invoked. Humanity is the second virtue
of courts, but undoubtedly the first is justice. If it were a question
of humanity simply, and of humanity which confined its views merely to
the happiness of the present parties, it would be a question easily
decided upon first impressions. Every body must feel a wish to sever
those who wish to live separate from each other, who cannot live
together with any degree of harmony, and consequently with any degree
of happiness; but my situation does not allow me to indulge the
feelings, much less the first feelings of an individual. The law has
said that married persons shall not be legally separated upon the mere
disinclination of one or both to cohabit together. * * *

“To vindicate the policy of the law is no necessary part of the office
of a judge; but if it were, it would not be difficult to show that the
law in this respect has acted with its usual wisdom and humanity with
that true wisdom, and that real humanity, that regards the general
interests of mankind. For though in particular cases the repugnance of
the law to dissolve the obligations of matrimonial cohabitation may
operate with great severity upon individual, yet it must be carefully
remembered that the general happiness of the married life is secured by
its indissolubility. When people understand that they must live
together, except for a very few reasons known to the law, they learn to
soften by mutual accommodation that yoke which they know they cannot
shake off; they become good husbands and good wives from the necessity
of remaining husbands and wives; for necessity is a powerful master in
teaching the duties which it imposes. * * * In this case, as in many
others, the happiness of some individuals must be sacrificed to the
greater and more general good.” (Evans vs. Evans, 1 Hag. Con., 35; 161 Eng. Reprint, 466, 467.)

In the light of the considerations stated, it is obvious that the
cross-complaint is not well founded and none of the relief sought
therein can be granted.

The same considerations that require the dismissal ot the
cross-complaint conclusively prove that the plaintiff, Mariano B.
Arroyo, has done nothing to forfeit his right to the marital society of
his wife and that she is under an obligation, both moral and legal, to
return to the common home and cohabit with him. The only question which
here arises is as to the character and extent of the relief which may
be properly conceded to him by judicial decree.

The action is one by which the plaintiff seeks the restitution of
conjugal rights; and it is supposed in the petitory part of the
complaint that he is entitled to a permanent mandatory injunction
requiring the defendant to return to the conjugal home and live with
him as a wife according to the precepts of law and morality. Of course
if such a decree were entered, in unqualified terms, the defendant
would be liable to attachment for contempt, in case she should refuse
to obey it; and, so far as the present Writer is aware, the question is
raised for the first time fin this jurisdiction whether it is competent
for the court to make such an order.

Upon examination of the authorities we are convinced that it is not
within the province of the courts of this country to attempt to compel
one of the spouses to cohabit with, and render conjugal rights to, the
other. Of course where the property rights of one of the pair are
invaded, an action for restitution of such rights can be maintained.
But we are disinclined to sanction the doctrine that an order,
enforcible by process of contempt, may be entered to compel the
restitution of the purely personal right of consortium. At
best such an order can be effective for no other purpose than to compel
the spouses to live under the same roof; and the experience of those
countries where the courts of justice have assumed to compel the
cohabitation of married people shows that the policy of the practice is
extremely questionable. Thus in England, formerly the Ecclesiastical
Court entertained suits for the restitution of conjugal rights at the
instance of either husband or wife; and if the facts were found to
warrant it that court would make a mandatory decree, enforcible by
process of contempt in case of disobedience, requiring the delinquent
party to live with the other and render conjugal rights. Yet this
practice was sometimes criticised even by the judges who felt bound to
enforce such orders, and in Weldon vs. Weldon (9 P. D., 52),
decided in 1883, Sir James Hannen, President in the Probate, Divorce
and Admiralty Division of the High Court of Justice, expressed his
regret that the English law on the subject was not the same as that
which prevailed in Scotland, where a decree of adherence, equivalent to
the decree for the restitution of conjugal rights in England, could be
obtained by the injured spouse, but could not be enforced by
imprisonment. Accordingly, in obedience to the growing sentiment
against the practice, the Matrimonial Causes Act (1884) abolished the
remedy of imprisonment; though a decree for the restitution of conjugal
rights can still be procured, and in case of disobedience may serve in
appropriate cases as the basis of an order for the periodical payment
of a stipend in the character of alimony.

In the voluminous jurisprudence of the United States, only one
court, so far as we can discover, has ever attempted to make a
peremptory order requiring one of the spouses to live with the other;
and that was in a case where a wife was ordered to follow and live with
her husband, who had changed his domicile to the City of New Orleans.
The decision referred to (Gahn vs. Darby, 36 La. Ann., 70)
was based on a provision of the Civil Code of Louisiana similar to
article 56 of the Spanish Civil Code. It was decided many years ago,
and the doctrine evidently has not been fruitful even in the State of
Louisiana. In other states of the American Union the idea of enforcing
cohabitation by process of contempt is rejected. (21 Cyc., 1148.)

In a decision of January 2, 1909, the supreme court of Spain appears to have affirmed an order of the Audiencia Territorial de Valladolid requiring
a wife to return to the marital domicile, and in the alternative, upon
her failure to do so, to make a particular disposition of certain money
and effects then in her possession and to deliver to her husband, as
administrator of the ganancial property, all income, rents, and
interest which might accrue to her from he property which she had
brought to the marriage. 113 Jur. Civ., pp. 1, 11.) But it
does not appear that his order for the return of the wife to the
marital domicile was sanctioned by any other penalty than the
consequences that would be visited upon her in respect to the use and
control of her property; and it does not appear that her disobedience
to that order would necessarily have been followed by imprisonment for
contempt.

We are therefore unable to hold that Mariano B. Arroyo in this case
is entitled to the unconditional and absolute order for the return of
the wife to the marital domicile, which is sought in the petitory part
of the complaint; though he is, without doubt, entitled to a judicial
declaration that his wife has absented herself without sufficient cause
and that it is her duty to return.

Therefore, reversing the judgment appealed from, in respect both to
the original complaint and the cross-bill, it is declared that Dolores
Vazquez de Arroyo has absented herself from the marital home without
sufficient cause; and she is admonished that it is her duty to return.
The plaintiff is absolved from the cross-complaint, without special
pronouncement as to costs of either instance. So ordered.

Mapa, C. J., Johnson, Araullo, Avancena, and Villamor, JJ., concur.