CARMEN QUIMIGUING, SUING THROUGH HER PARENTS, ANTONIO QUIMIGUING AND JACOBA CABILIN, PLAINTIFFS-APPELLANTS, VS. FELIX ICAO, DEFENDANT-APPELLEE.

Appeal on points of law from an order of the Court of First
Instance of Zamboanga del Norte (Judge Onofre Sison Abalos,
presiding), in its Civil Case
No. 1590, dismissing a complaint for support and damages, and another order
denying amendment of the same pleading.

The events in the court
of origin can be summarized as follows:

Appellant, Carmen Quimiguing, assisted
by her parents, sued Felix Icao
in the court below.  In her complaint it
was averred that the parties were neighbors in Dapitan City,
and had close and confidential relations; that defendant Icao,
although married, succeeded in having carnal intercourse with plaintiff several
times by force and intimidation, and without her consent; that as a result she became
pregnant, despite efforts and drugs supplied by defendant, and plaintiff had to
stop studying.  Hence, she claimed
support at P120.00 per month, damages and attorney’s fees.

Duly summoned, defendant Icao
moved to dismiss for lack of cause of action since the complaint did not allege
that the child had been born; and after hearing arguments, the trial judge
sustained defendant’s motion and dismissed the complaint.

Thereafter, plaintiff moved to amend the complaint to allege that as a result of the
intercourse, plaintiff had later given birth to a baby girl; but the court,
sustaining defendant’s objection, ruled that no amendment was allowable, since
the original complaint averred
no cause of action.  Wherefore, the plaintiff appealed directly to this Court.

We find the appealed orders of the court below to be
untenable.  A conceived child, although
as yet unborn, is given by law a provisional personality of its own for all
purposes favorable to it, as explicitly pro­vided in Article 40 of the
civil Code of the Philippines.  The unborn child, therefore, has a right to support from its progenitors, particularly
of the defendant-appellee
(whose paternity is deemed admitted for the purpose of the motion to
dismiss), even if the said child is only “en ventre
de sa mere,” just as a conceived child, even
if as yet unborn, may receive donations as prescribed by Article 742 of the
same code, and its being ignored by the parent in his testament may result in preterition
of a forced heir that annuls the
institution of the testamentary heir, even if .such child should
be born after the death of the testator
(Article 854, Civil Code).

“ART. 742. 
Donations made to conceived and unborn children may be accepted
by those persons who would legally
represent them if they were
already born.”

“ART.
854.  The preterition
or omission of one, some, or all of the compulsory heirs in the direct
line, whether living at the time of the execution of the will or born after
the death of the testator, shall annul the institution of heir; but the devises and
legacies
shall be valid insofar as they are not inofficious.

“If the omitted compulsory heirs should die before the
testator, the institution shall be ef­fectual, without prejudice to the right of
representation.”

It is thus clear that the
lower court’s theory that
Article 291 of the Civil Code declaring that support is an obligation of
parents and illegitimate children
“does not contemplate support to
children as yet unborn“, violates Article 40
aforesaid, besides imposing a condition that nowhere appears in the text of Article 291.

It
is true that Article 40
prescribing that “the conceived
child shall be considered born for all purposes that are favorable to it” adds further
“provided it be born later with the conditions specified in the following article” (i. e., that the foetus be alive at the time it is completely delivered from the
mother’s womb).  This proviso, however, is not a condition precedent to the right
of the conceived child:  for if it were,
the first part of Article 40 would
become en­tirely useless and ineffective.  Manresa, in his Commentaries (5th Ed.) to the corresponding Article 29 of the
Spanish Civil Code, clearly
points this out:

“Los derechos atribuidos
al nasciturus no son simples expectativas, ni aun en el sentido tecnico que la moderna doctrina da a esta figura
juridica, sino que constituyen un caso de los propiamente
llamados ‘derechos en estado dependencia‘; el nacimiento del sujeto en las condiciones previstas por el art. 30, no determina
el nacimiento de aquellos derechos (que ya
existian de antemano), sino que se trata
de un hecho que tiene efectos
declarativos. 
(1 Manresa, Op. cit., page 271)

A second reason for reversing the orders appealed from is that
for a married man to force a woman not his wife to yield to his lust (as
averred in the original complaint in this case) constitutes a clear violation
of the rights of his victim that entitles her to claim compensation for the
damage caused.  Says Article 21 of the
Civil Code of the Philippines:

“ART. 21. 
Any person who wilfully causes loss or
injury to another in a manner that is contrary to morals, good customs or
public policy shall compensate the latter for the damage.”

The rule of Article 21 is supported by Article 2219 of the same Code:

“ART. 2219.  Moral
damages may be recovered in the following and analogous cases:

(3)    Seduction, abduction, rape or other
lascivious acts:

x
x x x
x                                 x
x x x
x                                   x
x x x
x

(10)  Acts and actions referred to in Article 21,
26, 27, 28 . . .”

Thus, independently of the right to support of the child she was
carrying, plaintiff herself had a cause of action for damages under the terms
of the complaint; and the order dismissing it for failure to state a cause of
action was doubly in error.

WHEREFORE, the orders under appeal are reversed and set aside. 
Let the case be remanded to the court of origin for further proceedings
conformable to this decision.  Costs against appellee
Felix Icao.

SO ORDERED.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Castro, Fernando, Teehankee, Barredo,
and Villamor, JJ., concur.