SOCORRO MATUBIS, PLAINTIFF AND APPELLANT, VS. ZOILO PRAXEDES, DEFENDANT AND APPELLEE.

Alleging abandonment and concubinage, plaintiff Socorro Matubis, filed with
the Court of First Instance of Camarines Sur, on April 24, 1956, a complaint for
Legal Separation and change of surname against her husband defendant Zoilo
Praxedes.

The allegations of the complaint were denied by defendant spouse, who
interposed the defense that it was plaintiff who left the conjugal home.

During the trial, wherein the plaintiff alone introduced oral as well as
documentary evidence, the following facts were established:

Plaintiff and defendant were legally married on January 10, 1943, at Iriga,
Camarines Sur. For failure to agree on how they should live as husband and wife,
the couple, on May 30, 1944, agreed to live separately from each other, which
status remained unchanged until the present. On April 3, 1948, plaintiff and
defendant entered into an agreement (Exhibit B), the significant portions of
which are hereunder reproduced.

“* * * (a) That both of us relinquish our right over the other aa
legal husband and wife.

(b) That both of us is free to get any mate and live with as husband
and wife without any interference by any of us, nor either of us can prosecute
the other for adultery or Concubinage or any other crime or suit arising from
our separation.

(c) That I, the wife, is no longer entitled for any support front my
husband or any benefits he may receive thereafter, nor I the husband is not
entitled for anything from my wife.

(d) That neither of us can claim anything from the other from the
time we verbally separated, that is from May 30, 1944 to the present when we
made our verbal separation into writing.”

In January, 1955, defendant began cohabiting with one Asuncion Rebulado and
on September 1, 1955, said Asuncion gave birth to a child who was recorded as
the child of said defendant (Exh. C). It was shown also that defendant and
Asuncion deported themselves as husband and wife and were generally reputed as
such in the community.

After the trial, without the defendant adducing any evidence, the court a
quo rendered judgment holding that the acts of defendant constituted
concubinage, a ground for legal separation. It, however, dismissed the complaint
by stating:

“While this legal ground exists, the suit must be dismissed for two reasons,
viz.:

Under Art. 102 of the new Civil Code, an action for legal separation cannot
be filed except within one year from and after the date on which the plaintiff
became cognizant of the cause and within five years from and after the date when
the cause occurred. The plaintiff became aware of the illegal cohabitation of
her husband with Asuncion Rebulado in January, 1955. The complaint was filed on
April 24, 1956. The present action was, therefore, filed out of time and for
that reason the action is barred.

Article 100 of the new Civil Code provides that the legal separation may be
claimed only by the innocent spouse, provided there has been no condonation of
or consent to the adultery or concubinage. As shown in Exhibit B, the plaintiff
has consented to the commission of concubinage by her husband. Her consent is
clear from the following stipulations:

‘(b) That both of us is free to get any mate and live with as husband and
wife without any interference by any of us, nor either of us can prosecute the
other for adultery or concubinage or any other crime or suit arising from our
separation.’ (Exh. B).

This stipulation is an unbridled license she gave her husband to commit
concubinage. Having consented to the concubinage, the plaintiff cannot claim
legal separation.”

The above decision is now before us for review, plaintiff-appellant claiming
that it was error for the lower court to have considered that the period to
bring the action has already elapsed and that there was consent on the part of
the plaintiff to the concubinage. The proposition, therefore, calls for the
interpretation of the provisions of the law upon which the lower court based its
judgment of dismissal.

Article 102 of the new Civil Code provides:

“An action for legal separation cannot be filed except within one year from
and after the date on which the plaintiff became cognizant of the cause and
within five years from and after the date when such cause
occurred.”

The complaint was filed outside the periods provided for by the above
Article. By the very admission of plaintiff, she came to know the ground
(concubinage) for the legal separation in January, 1955. She instituted the
complaint only on April 24, 1956. It is to be noted that appellant did not even
press this matter in her brief.

The very wording of the agreement Exhibit B, gives no room for interpretation
other than that given by the trial judge. Counsel in his brief submits that the
agreement is divided into two parts. The first part having to do with the act of
living separately which he claims to be legal, and the second part-that which
becomes a license to commit the ground for legal separation, which is admittedly
illegal. We do not share appellant’s view. Condonation and consent on the part
of plaintiff are necessarily the import of paragraph 6(b) of the agreement. The
condonation and consent here are not only implied but expressed. The law (Art.
100 Civil Code), specifically provides that legal separation may be claimed only
by the innocent spouse, provided there has been no condonation of or consent to
the adultery or concubinage. Having condoned and/or consented in writing, the
plaintiff is now undeserving of the court’s sympathy (People vs.
Schnecken-burger, 73 Phil., 413). Plaintiff’s counsel even .agrees that the
complaint should be dismissed. He claims, however, that the grounds for the
dismissal should not be those stated in the decision of the lower court, “but on
the ground that plaintiff and defendant have already been legally
separated from each other, but without the marital bond having been affected,
long before the effectivity of the new Civil Code” (appellant’s brief, pp. 7-8).
Again, we cannot subscribe to counsel’s contention, because it is contrary to
the evidence.

Conformably with the foregoing, we find that the decision appealed from is in
accordance with the evidence and the law on the matter. The same is hereby
affirmed, with costs.

Paras, C.J., Bengzon, Padilla, Bautista Angelo, Labrador, Reyes, J.B.L.,
Barrera, and Gutierrez David. JJ., concur.

Judgment affirmed.