FERNANDO AQUINO, PETITIONER, VS. CONCHITA DELIZO, RESPONDENT.

This is a petition for certiorari to review a decision of the Court of
Appeals affirming that of the Court of First Instance of Rizal which
dismissed petitioner’s complaint for annulment of his marriage with
respondent Conchita Delizo.

The dismissed complaint, which
was filed on September 6, 1955, was based oh the ground of fraud, it
being alleged, among other things, that defendant Conchita Delizo,
herein respondent, at the date of her marriage to plaintiff, herein
petitioner Fernando Aquino, on December 27, 1954, concealed from the
latter the fact that she was pregnant by another man, and sometime in
April, 1955, or about four months after their marriage, gave birth to a
child. In her answer, defendant claimed that the child was conceived
out of lawful wedlock between her and the plaintiff.

At the trial, the attorneys for both parties appeared and the court a quo
ordered Assistant Provincial Fiscal Jose Goco to represent the State in
the proceedings to prevent collusion. Only the plaintiff however,
testified and the only documentary evidence presented was the marriage
contract between the parties. Defendant neither appeared nor presented
any evidence despite the reservation made by her counsel that he would
present evidence on a later date.

On June 16, 1956, the
trial court—noting that no birth certificate was presented to show that
the child was born within 180 days after the marriage between the
parties, and holding that concealment of pregnancy as alleged by
plaintiff does not constitute such fraud as would annul a
marriage—dismissed the complaint. Through a verified “petition to
reopen for reception of additional evidence”, plaintiff tried to
present the certificates of birth and delivery of the child born of the
defendant on April 26, 1955, which documents, according to him, he had
failed to secure earlier and produce before the trial court thru
excusable negligence. The petition, however, was denied.

On
appeal to the Court of Appeals, that court held that there has been
excusable neglect in plaintiff’s inability to present the proof of the
child’s birth, through her birth certificate, and for that reason the
court a quo erred in denying the motion for reception of
additional evidence. On the theory, however, that it was not impossible
for plaintiff and defendant to have had sexual intercourse during their
engagement so that the child could be their own, and finding
unbelievable plaintiff’s claim that he did not notice or even suspect
that defendant was pregnant when he married her, the appellate court,
nevertheless, affirmed the dismissal of the complaint.

On
March 17, 1959, plaintiff filed a motion praying that the decision be
reconsidered, or, if such reconsideration be denied, that the case be
remanded to the lower court for new trial. In support of the motion,
plaintiff attached as annexes thereof the following documents:

“1.
Affidavit of Cesar Aquino (Annex A) (defendant’s brother-in-law and
plaintiff’s brother, with whom defendant was living at the time
plaintiff met, courted and married her, and with whom defendant has
begotten two more children, aside from her first born, in common-law
relationship) admitting that he is the father of defendant’s first
born, Catherine Bess Aquino, and that he and defendant hid her
pregnancy from plaintiff at the time of plaintiff’s marriage to
defendant;

“2. Affidavit of defendant, Conchita Delizo
(Annex ‘B’) admitting her pregnancy by Cesar Aquino, her brother-in-law
and plaintiff’s own brother, at the time of her marriage to plaintiff
and her having hidden this fact from plaintiff before and up to the
time of their marriage;

“3. Affidavit of Albert Powell
(Annex ‘C’) stating that he knew that Cesar Aquino and defendant lived
together as husband and wife before December 27, 1954, the date of
plaintiff’s marriage to defendant;

“4. Birth Certificate of defendant’s first born, Catherine Bess Aquino showing her date of birth to be April 26, 1955;

“5. Birth Certificate (Annex ‘D’) of Carrolle Ann Aquino, the second child of defendant with Cesar Aquino, her brother-in-law;

“6. Birth Certificate (Annex “E”) of Chris Charibel Aquino, the third child of Cesar Aquino and defendant; and

“7. Pictures of defendant showing her natural plumpness as early as
1952 to as late as November, 1954, the November, 1954 photo itself does
not show defendant’s pregnancy which must have been almost four months
old at the time the picture was taken.”

Acting upon the motion, the Court of Appeals ordered the defendant
Conchita Delizo and Assistant Provincial Fiscal of Rizal, who was
representing the Government, to answer the motion for reconsideration,
and deferred action on the prayer for new trial until after the case is
disposed of. As both the defendant and the fiscal failed to file an
answer, and stating that it “does not believe the veracity of the
contents of the motion and its annexes,” the Court of Appeals, on
August 6, 1959, denied the motion. From that order, the plaintiff
brought the case to this Court thru the present petition for certiorari.

After going over the record of the case, we find that the dismissal of plaintiff’s complaint cannot be sustained.

Under the new Civil Code, concealment by the wife of the fact that at
the time of the marriage, she was pregnant by a man other than her
husband constitutes fraud and is ground for annulment of marriage.
(Art. 85, par. (4) in relation to Art. 86, par. (3). In the case of
Buccat vs. Buccat (72 Phil., 19) cited in the decision sought
to be reviewed, which was also an action for the annulment of marriage
on the ground of fraud, plaintiff’s claim that he did not even suspect
the pregnancy of the defendant was held to be unbelievable, it having
been proven that the latter was already in an advanced stage of
pregnancy (7th month) at the time of their marriage. That
pronouncement, however, cannot apply to the case at bar. Here the
defendant wife was alleged to be only more than four months pregnant at
the time of her marriage to plaintiff. At that stage, we are not
prepared to say that her pregnancy was readily apparent, especially
since she was “naturally plump” or fat as alleged by plaintiff.
According to medical authorities, even on the 5th month of pregnancy,
the enlargement of a woman’s abdomen is still below the umbilicus, that
is to say, the enlargement is limited to the lower part of the abdomen
so that it is hardly noticeable and may, if noticed, be attributed only
to fat formation on the lower part of the abdomen. It is only on the
6th month of pregnancy that the enlargement of the woman’s abdomen
reaches a height above the umbilicus, making the roundness of the
abdomen more general and apparent. (See Lull, Clinical Obstetrics, p.
122.) If, as claimed by plaintiff, defendant is “naturally plump”, he
could hardly be expected to know, merely by looking, whether or not she
was pregnant at the time of their marriage, more so because she must
have attempted to conceal the true state of affairs. Even physicians
and surgeons, with the aid of the woman herself who shows and gives her
subjective and objective symptoms, can only claim positive diagnosis of
pregnancy in 33% at five months and 50% at six months. (XI Cyclopedia
of Medicine, Surgery, etc. Pregnancy, p. 10.)

The appellate
court also said that it was not impossible for plaintiff and defendant
to have had sexual intercourse before they got married and therefore
the child could be their own. This statement, however, is purely
conjectural and finds no support or justification in the record.

Upon the other hand, the evidence sought to be introduced at the new
trial, taken together with what has already been adduced would, in our
opinion, be sufficient to sustain the fraud alleged by plaintiff. The
Court of Appeals should, therefore, not have denied the motion praying
for new trial simply because defendant failed to file her answer
thereto. Such failure of the defendant cannot be taken as evidence of
collusion, especially since a provincial fiscal has been ordered to
represent the Government precisely to prevent such collusion. As to the
veracity of the contents of the motion and its annexes, the same can
best be determined only after hearing evidence. In the circumstances,
we think that justice would be better served if a new trial were
ordered.

Wherefore, the decision complained of is set aside and the case remanded to the court a quo for new trial. Without costs.

Paras, C. J., Bengzon, Montemayor, Labrador, Concepcion, and Reyes, J. B. L., JJ., concur.
Barrera, J., concurs in the result.