SECOND DIVISION

EDUARDO P. MANUEL, G.R. No. 165842

Petitioner,
Present:

PUNO, J., Chairman,

AUSTRIA-
MARTINEZ, - versus -
CALLEJO, SR.,
TINGA, and
CHICO-NAZARIO,* JJ.

Promulgated:
PEOPLE OF THE PHILIPPINES,
Respondent. November 29, 2005

x-----------------------------------------------------------------------------------------x

DECISION

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision[1] of the

Court of Appeals (CA) in CA-G.R. CR No. 26877, affirming the Decision [2]

of the Regional Trial Court (RTC) of Baguio City, Branch 3, convicting

Eduardo P. Manuel of bigamy in Criminal Case No. 19562-R.

Eduardo was charged with bigamy in an Information filed on

November 7, 2001, the accusatory portion of which reads:

 That on or about the 22nd day of April, 1996, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused EDUARDO P. MANUEL, being then previously and
legally married to RUBYLUS [GAÑA] and without the said marriage
having been legally dissolved, did then and there willfully, unlawfully and
feloniously contract a second marriage with TINA GANDALERA-
MANUEL, herein complainant, who does not know the existence of the
first marriage of said EDUARDO P. MANUEL to Rubylus [Gaña].

CONTRARY TO LAW. [3]

The prosecution adduced evidence that on July 28, 1975, Eduardo was

married to Rubylus Gaña before Msgr. Feliciano Santos in Makati, which

was then still a municipality of the Province of Rizal.[4] He met the private

complainant Tina B. Gandalera in Dagupan City sometime in January 1996.

She stayed in Bonuan, Dagupan City for two days looking for a friend. Tina

was then 21 years old, a Computer Secretarial student, while Eduardo was

39. Afterwards, Eduardo went to Baguio City to visit her. Eventually, as

one thing led to another, they went to a motel where, despite Tina’s

resistance, Eduardo succeeded in having his way with her. Eduardo

proposed marriage on several occasions, assuring her that he was single.

Eduardo even brought his parents to Baguio City to meet Tina’s parents, and

was assured by them that their son was still single.

Tina finally agreed to marry Eduardo sometime in the first week of

March 1996. They were married on April 22, 1996 before Judge Antonio C.
Reyes, the Presiding Judge of the RTC of Baguio City, Branch 61.[5] It

appeared in their marriage contract that Eduardo was “single.”

 The couple was happy during the first three years of their married

life. Through their joint efforts, they were able to build their home in

Cypress Point, Irisan, Baguio City. However, starting 1999, Manuel started

making himself scarce and went to their house only twice or thrice a year.

Tina was jobless, and whenever she asked money from Eduardo, he would

slap her.[6] Sometime in January 2001, Eduardo took all his clothes, left, and

did not return. Worse, he stopped giving financial support.

Sometime in August 2001, Tina became curious and made inquiries

from the National Statistics Office (NSO) in Manila where she learned that

Eduardo had been previously married. She secured an NSO-certified copy

of the marriage contract.[7] She was so embarrassed and humiliated when

she learned that Eduardo was in fact already married when they exchanged

their own vows.[8]

For his part, Eduardo testified that he met Tina sometime in 1995 in a

bar where she worked as a Guest Relations Officer (GRO). He fell in love

with her and married her. He informed Tina of his previous marriage to

Rubylus Gaña, but she nevertheless agreed to marry him. Their marital

relationship was in order until this one time when he noticed that she had a

“love-bite” on her neck. He then abandoned her. Eduardo further testified

that he declared he was “single” in his marriage contract with Tina because

he believed in good faith that his first marriage was invalid. He did not

know that he had to go to court to seek for the nullification of his first

marriage before marrying Tina.

Eduardo further claimed that he was only forced to marry his first

wife because she threatened to commit suicide unless he did so. Rubylus

was charged with estafa in 1975 and thereafter imprisoned. He visited her in

jail after three months and never saw her again. He insisted that he married

Tina believing that his first marriage was no longer valid because he had not

heard from Rubylus for more than 20 years.

After trial, the court rendered judgment on July 2, 2002 finding

Eduardo guilty beyond reasonable doubt of bigamy. He was sentenced to an

indeterminate penalty of from six (6) years and ten (10) months, as

minimum, to ten (10) years, as maximum, and directed to indemnify the

private complainant Tina Gandalera the amount of P200,000.00 by way of

moral damages, plus costs of suit.[9]

The trial court ruled that the prosecution was able to prove beyond

reasonable doubt all the elements of bigamy under Article 349 of the

Revised Penal Code. It declared that Eduardo’s belief, that his first marriage
had been dissolved because of his first wife’s 20-year absence, even if true,

did not exculpate him from liability for bigamy. Citing the ruling of this

Court in People v. Bitdu,[10] the trial court further ruled that even if the

private complainant had known that Eduardo had been previously married,

the latter would still be criminally liable for bigamy.

Eduardo appealed the decision to the CA. He alleged that he was not

criminally liable for bigamy because when he married the private

complainant, he did so in good faith and without any malicious intent. He

maintained that at the time that he married the private complainant, he was

of the honest belief that his first marriage no longer subsisted. He insisted

that conformably to Article 3 of the Revised Penal Code, there must be

malice for one to be criminally liable for a felony. He was not motivated by

malice in marrying the private complainant because he did so only out of his

overwhelming desire to have a fruitful marriage. He posited that the trial

court should have taken into account Article 390 of the New Civil Code. To

support his view, the appellant cited the rulings of this Court in United

States v. Peñalosa[11] and Manahan, Jr. v. Court of Appeals.[12]

The Office of the Solicitor General (OSG) averred that Eduardo’s

defense of good faith and reliance on the Court’s ruling in United States v.
Enriquez[13] were misplaced; what is applicable is Article 41 of the Family

Code, which amended Article 390 of the Civil Code. Citing the ruling of

this Court in Republic v. Nolasco,[14] the OSG further posited that as

provided in Article 41 of the Family Code, there is a need for a judicial

declaration of presumptive death of the absent spouse to enable the present

spouse to marry. Even assuming that the first marriage was void, the parties

thereto should not be permitted to judge for themselves the nullity of the

marriage;
 the matter should be submitted to the proper court for resolution.

Moreover, the OSG maintained, the private complainant’s knowledge of the

first marriage would not afford any relief since bigamy is an offense against

the State and not just against the private complainant.

However, the OSG agreed with the appellant that the penalty imposed

by the trial court was erroneous and sought the affirmance of the decision

appealed from with modification.

On June 18, 2004, the CA rendered judgment affirming the decision of

the RTC with modification as to the penalty of the accused. It ruled that the

prosecution was able to prove all the elements of bigamy. Contrary to the

contention of the appellant, Article 41 of the Family Code should apply.

Before Manuel could lawfully marry the private complainant, there should

have been a judicial declaration of Gaña’s presumptive death as the absent

spouse. The appellate court cited the rulings of this Court in Mercado v.

Tan[15] and Domingo v. Court of Appeals[16] to support its ruling. The

dispositive portion of the decision reads:

WHEREFORE, in the light of the foregoing, the Decision

promulgated on July 31, 2002 is hereby MODIFIED to reflect, as it
hereby reflects, that accused-appellant is sentenced to an indeterminate
penalty of two (2) years, four (4) months and one (1) day of prision
correccional, as minimum, to ten (10) years of prision mayor as
maximum. Said Decision is AFFIRMED in all other respects.
SO ORDERED.[17]
 Eduardo, now the petitioner, filed the instant petition for review on

certiorari, insisting that:

I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF
LAW WHEN IT RULED THAT PETITIONER’S FIRST WIFE
CANNOT BE LEGALLY PRESUMED DEAD UNDER ARTICLE 390
OF THE CIVIL CODE AS THERE WAS NO JUDICIAL
DECLARATION OF PRESUMPTIVE DEATH AS PROVIDED FOR
UNDER ARTICLE 41 OF THE FAMILY CODE.

II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR OF
LAW WHEN IT AFFIRMED THE AWARD OF PHP200,000.00 AS
MORAL DAMAGES AS IT HAS NO BASIS IN FACT AND IN LAW.
[18]

The petitioner maintains that the prosecution failed to prove the

second element of the felony, i.e., that the marriage has not been legally

dissolved or, in case his/her spouse is absent, the absent spouse could not yet

be presumed dead under the Civil Code. He avers that when he married

Gandalera in 1996, Gaña had been “absent” for 21 years since 1975; under

Article 390 of the Civil Code, she was presumed dead as a matter of law.

He points out that, under the first paragraph of Article 390 of the Civil Code,

one who has been absent for seven years, whether or not he/she is still alive,

shall be presumed dead for all purposes except for succession, while the

second paragraph refers to the rule on legal presumption of death with

respect to succession.
 The petitioner asserts that the presumptive death of the absent spouse

arises by operation of law upon the satisfaction of two requirements: the

 specified period and the present spouse’s reasonable belief that the

absentee is dead. He insists that he was able to prove that he had not heard

from his first wife since 1975 and that he had no knowledge of her

whereabouts or whether she was still alive; hence, under Article 41 of the

Family Code, the presumptive death of Gaña had arisen by operation of law,

as the two requirements of Article 390 of the Civil Code are present. The

petitioner concludes that he should thus be acquitted of the crime of bigamy.

The petitioner insists that except for the period of absences provided

for in Article 390 of the Civil Code, the rule therein on legal presumptions

remains valid and effective. Nowhere under Article 390 of the Civil Code

does it require that there must first be a judicial declaration of death before

the rule on presumptive death would apply. He further asserts that contrary

to the rulings of the trial and appellate courts, the requirement of a judicial

declaration of presumptive death under Article 41 of the Family Code is

only a requirement for the validity of the subsequent or second marriage.

The petitioner, likewise, avers that the trial court and the CA erred in

awarding moral damages in favor of the private complainant. The private

complainant was a “GRO” before he married her, and even knew that he was

already married. He genuinely loved and took care of her and gave her
financial support. He also pointed out that she had an illicit relationship

with a lover whom she brought to their house.

In its comment on the petition, the OSG maintains that the decision of

the CA affirming the petitioner’s conviction is in accord with the law,

jurisprudence and the evidence on record. To bolster its claim, the OSG

cited the ruling of this Court in Republic v. Nolasco.[19]

The petition is denied for lack of merit.

Article 349 of the Revised Penal Code, which defines and penalizes

bigamy, reads:

Art. 349. Bigamy. – The penalty of prision mayor shall be imposed

upon any person who shall contract a second or subsequent marriage
before the former marriage has been legally dissolved, or before the absent
spouse has been declared presumptively dead by means of a judgment
rendered in the proper proceedings.

The provision was taken from Article 486 of the Spanish Penal Code,

to wit:

El que contrajere Segundo o ulterior matrimonio sin hallarse

legítimamente disuelto el anterior, será castigado con la pena de prision
mayor. xxx
 The reason why bigamy is considered a felony is to preserve and

ensure the juridical tie of marriage established by law.[20] The phrase “or

before the absent spouse had been declared presumptively dead by means of

a judgment rendered in the proper proceedings” was incorporated in the

Revised Penal Code because the drafters of the law were of the impression

that “in consonance with the civil law which provides for the presumption of

death after an absence of a number of years, the judicial declaration of

presumed death like annulment of marriage should be a justification for

bigamy.”[21]

For the accused to be held guilty of bigamy, the prosecution is

burdened to prove the felony: (a) he/she has been legally married; and

(b) he/she contracts a subsequent marriage without the former marriage

having been lawfully dissolved. The felony is consummated on the

celebration of the second marriage or subsequent marriage.[22] It is essential

in the prosecution for bigamy that the alleged second marriage, having all

the essential requirements, would be valid were it not for the subsistence of

the first marriage.[23] Viada avers that a third element of the crime is that the

second marriage must be entered into with fraudulent intent (intencion

fraudulente) which is an essential element of a felony by dolo.[24] On the

other hand, Cuello Calon is of the view that there are only two elements of
bigamy: (1) the existence of a marriage that has not been lawfully dissolved;

and (2) the celebration of a second marriage. It does not matter whether the

first marriage is void or voidable because such marriages have juridical

effects until lawfully dissolved by a court of competent jurisdiction.[25] As

the Court ruled in Domingo v. Court of Appeals[26] and Mercado v. Tan,[27]

under the Family Code of the Philippines, the judicial declaration of nullity

of a previous marriage is a defense.

 In his commentary on the Revised Penal Code, Albert is of the

same view as Viada and declared that there are three (3) elements of

bigamy: (1) an undissolved marriage; (2) a new marriage; and (3)

fraudulent intention constituting the felony of the act.[28] He explained that:

… This last element is not stated in Article 349, because it is

undoubtedly incorporated in the principle antedating all codes, and,
constituting one of the landmarks of our Penal Code, that, where there is
no willfulness there is no crime. There is no willfulness if the subject
believes that the former marriage has been dissolved; and this must be
supported by very strong evidence, and if this be produced, the act shall be
deemed not to constitute a crime. Thus, a person who contracts a second
marriage in the reasonable and well-founded belief that his first wife is
dead, because of the many years that have elapsed since he has had any
news of her whereabouts, in spite of his endeavors to find her, cannot be
deemed guilty of the crime of bigamy, because there is no fraudulent
intent which is one of the essential elements of the crime.[29]

As gleaned from the Information in the RTC, the petitioner is charged

with bigamy, a felony by dolo (deceit). Article 3, paragraph 2 of the

Revised Penal Code provides that there is deceit when the act is performed

with deliberate intent. Indeed, a felony cannot exist without intent. Since a

felony by dolo is classified as an intentional felony, it is deemed voluntary.

[30]
Although the words “with malice” do not appear in Article 3 of the

Revised Penal Code, such phrase is included in the word “voluntary.”[31]

Malice is a mental state or condition prompting the doing of an overt

act without legal excuse or justification from which another suffers injury.
[32]
When the act or omission defined by law as a felony is proved to have

been done or committed by the accused, the law presumes it to have been

intentional.[33] Indeed, it is a legal presumption of law that every man

intends the natural or probable consequence of his voluntary act in the

absence of proof to the contrary, and such presumption must prevail unless a

reasonable doubt exists from a consideration of the whole evidence.[34]

For one to be criminally liable for a felony by dolo, there must be a

confluence of both an evil act and an evil intent. Actus non facit reum, nisi

mens sit rea.[35]

In the present case, the prosecution proved that the petitioner was

married to Gaña in 1975, and such marriage was not judicially declared a

nullity; hence, the marriage is presumed to subsist.[36] The prosecution also

proved that the petitioner married the private complainant in 1996, long after

the effectivity of the Family Code.

The petitioner is presumed to have acted with malice or evil intent

when he married the private complainant. As a general rule, mistake of fact

or good faith of the accused is a valid defense in a prosecution for a felony

by dolo; such defense negates malice or criminal intent. However,

ignorance of the law is not an excuse because everyone is presumed to know

the law. Ignorantia legis neminem excusat.

It was the burden of the petitioner to prove his defense that when he

married the private complainant in 1996, he was of the well-grounded belief

 that his first wife was already dead, as he had not heard from her for

more than 20 years since 1975. He should have adduced in evidence a

decision of a competent court declaring the presumptive death of his first

wife as required by Article 349 of the Revised Penal Code, in relation to

Article 41 of the Family Code. Such judicial declaration also constitutes

proof that the petitioner acted in good faith, and would negate

criminal intent on his part when he married the private

complainant and, as a consequence, he could not be held guilty of bigamy in

such case. The petitioner, however, failed to discharge his burden.

The phrase “or before the absent spouse has been declared

presumptively dead by means of a judgment rendered on the proceedings” in

Article 349 of the Revised Penal Code was not an aggroupment of empty or

useless words. The requirement for a judgment of the presumptive death of

the absent spouse is for the benefit of the spouse present, as protection from

the pains and the consequences of a second marriage, precisely because

he/she could be charged and convicted of bigamy if the defense of good faith

based on mere testimony is found incredible.

The requirement of judicial declaration is also for the benefit of the

State. Under Article II, Section 12 of the Constitution, the “State shall
protect and strengthen the family as a basic autonomous social institution.”

Marriage is a social institution of the highest importance. Public policy,

good morals and the interest of society require that the marital relation

should be surrounded with every safeguard and its severance only in the

manner prescribed and the causes specified by law.[37] The laws regulating

civil marriages are necessary to serve the interest, safety, good order,

comfort or general welfare of the community and the parties can waive

nothing essential to the validity of the proceedings. A civil marriage anchors

an ordered society by encouraging stable relationships over transient ones; it

enhances the welfare of the community.

In a real sense, there are three parties to every civil marriage; two

willing spouses and an approving State. On marriage, the parties assume

new relations to each other and the State touching nearly on every aspect of

life and death. The consequences of an invalid marriage to the parties, to

innocent parties and to society, are so serious that the law may well take

means calculated to ensure the procurement of the most positive evidence of

death of the first spouse or of the presumptive death of the absent spouse[38]

after the lapse of the period provided for under the law. One such means is

the requirement of the declaration by a competent court of the presumptive

death of an absent spouse as proof that the present spouse contracts a

subsequent marriage on a well-grounded belief of the death of the first

spouse. Indeed, “men readily believe what they wish to be true,” is a maxim

of the old jurists. To sustain a second marriage and to vacate a first because

one of the parties believed the other to be dead would make the existence of

the marital relation determinable, not by certain extrinsic facts, easily

capable of forensic ascertainment and proof, but by the subjective condition

of individuals.[39] Only with such proof can marriage be treated as so

dissolved as to permit second marriages.[40] Thus, Article 349 of the Revised

Penal Code has made the dissolution of marriage dependent not only upon

the personal belief of parties, but upon certain objective facts easily capable

of accurate judicial cognizance,[41] namely, a judgment of the presumptive

death of the absent spouse.

The petitioner’s sole reliance on Article 390 of the Civil Code as

basis for his acquittal for bigamy is misplaced.

Articles 390 and 391 of the Civil Code provide –

Art. 390. After an absence of seven years, it being unknown

whether or not, the absentee still lives, he shall be presumed dead for all
purposes, except for those of succession.

The absentee shall not be presumed dead for the purpose of

opening his succession till after an absence of ten years. If he disappeared
after the age of seventy-five years, an absence of five years shall be
sufficient in order that his succession may be opened.
 Art. 391. The following shall be presumed dead for all purposes,
including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an

aeroplane which is missing, who has not been heard of for
four years since the loss of the vessel or aeroplane;
(2) A person in the armed forces who has taken part in war, and
has been missing for four years;
(3) A person who has been in danger of death under other
circumstances and his existence has not been known for four
years.

The presumption of death of the spouse who had been absent for

seven years, it being unknown whether or not the absentee still lives, is

created by law and arises without any necessity of judicial declaration.[42]

However, Article 41 of the Family Code, which amended the foregoing rules

on presumptive death, reads:

Art. 41. A marriage contracted by any person during the

subsistence of a previous marriage shall be null and void, unless before the
celebration of the subsequent marriage, the prior spouse had been absent
for four consecutive years and the spouse present had a well-founded
belief that the absent spouse was already dead. In case of disappearance
where there is danger of death under the circumstances set forth in the
provisions of Article 391 of the Civil Code, an absence of only two years
shall be sufficient.

For the purpose of contracting the subsequent marriage under the

preceding paragraph, the spouse present must institute a summary
proceeding as provided in this Court for the declaration of presumptive
death of the absentee, without prejudice to the effect of reappearance of
the absent spouse.[43]
 With the effectivity of the Family Code,[44] the period of seven years

under the first paragraph of Article 390 of the Civil Code was reduced to

four consecutive years. Thus, before the spouse present may contract a

subsequent marriage, he or she must institute summary proceedings for the

declaration of the presumptive death of the absentee spouse,[45] without

prejudice to the effect of the reappearance of the absentee spouse. As

explained by this Court in Armas v. Calisterio:[46]

In contrast, under the 1988 Family Code, in order that a subsequent

bigamous marriage may exceptionally be considered valid, the following
conditions must concur, viz.: (a) The prior spouse of the contracting party
must have been absent for four consecutive years, or two years where
there is danger of death under the circumstances stated in Article 391 of
the Civil Code at the time of disappearance; (b) the spouse present has a
well-founded belief that the absent spouse is already dead; and (c) there is,
unlike the old rule, a judicial declaration of presumptive death of the
absentee for which purpose the spouse present can institute a summary
proceeding in court to ask for that declaration. The last condition is
consistent and in consonance with the requirement of judicial intervention
in subsequent marriages as so provided in Article 41, in relation to Article
40, of the Family Code.

The Court rejects petitioner’s contention that the requirement of

instituting a petition for declaration of presumptive death under Article 41 of

the Family Code is designed merely to enable the spouse present to contract

a valid second marriage and not for the acquittal of one charged with

bigamy. Such provision was designed to harmonize civil law and Article
349 of the Revised Penal Code, and put to rest the confusion spawned by the

rulings of this Court and comments of eminent authorities on Criminal Law.

As early as March 6, 1937, this Court ruled in Jones v. Hortiguela[47]

that, for purposes of the marriage law, it is not necessary to have the former

spouse judicially declared an absentee before the spouse present may

contract a subsequent marriage. It held that the declaration of absence made

in accordance with the provisions of the Civil Code has for its sole purpose

the taking of the necessary precautions for the administration of the estate of

the absentee. For the celebration of civil marriage, however, the law only

requires that the former spouse had been absent for seven consecutive years

at the time of the second marriage, that the spouse present does not know his

or her former spouse to be living, that such former spouse is generally

reputed to be dead and the spouse present so believes at the time of the

celebration of the marriage.[48] In In Re Szatraw,[49] the Court declared that a

judicial declaration that a person is presumptively dead, because he or she

had been unheard from in seven years, being a presumption juris tantum

only, subject to contrary proof, cannot reach the stage of finality or become

final; and that proof of actual death of the person presumed dead being

unheard from in seven years, would have to be made in another proceeding

to have such particular fact finally determined. The Court ruled that if a
judicial decree declaring a person presumptively dead because he or she had

not been heard from in seven years cannot become final and executory even

after the lapse of the reglementary period within which an appeal may be

taken, for such presumption is still disputable and remains subject to

contrary proof, then a petition for such a declaration is useless, unnecessary,

superfluous and of no benefit to the petitioner. The Court stated that it

should not waste its valuable time and be made to perform a superfluous and

meaningless act.[50] The Court also took note that a petition for a declaration

of the presumptive death of an absent spouse may even be made in collusion

with the other spouse.

In Lukban v. Republic of the Philippines,[51] the Court declared that the

words “proper proceedings” in Article 349 of the Revised Penal Code can

only refer to those authorized by law such as Articles 390 and 391 of the

Civil Code which refer to the administration or settlement of the estate of a

deceased person. In Gue v. Republic of the Philippines,[52] the Court rejected

the contention of the petitioner therein that, under Article 390 of the Civil

Code, the courts are authorized to declare the presumptive death of a person

after an absence of seven years. The Court reiterated its rulings in Szatraw,

Lukban and Jones.

 Former Chief Justice Ramon C. Aquino was of the view that “the

provision of Article 349 or “before the absent spouse has been declared

presumptively dead by means of a judgment reached in the proper

proceedings” is erroneous and should be considered as not written. He

opined that such provision presupposes that, if the prior marriage has not

been legally dissolved and the absent first spouse has not been declared

presumptively dead in a proper court proceedings, the subsequent marriage

is bigamous. He maintains that the supposition is not true.[53] A second

marriage is bigamous only when the circumstances in paragraphs 1 and 2 of

Article 83 of the Civil Code are not present.[54] Former Senator Ambrosio

Padilla was, likewise, of the view that Article 349 seems to require judicial

decree of dissolution or judicial declaration of absence but even with such

decree, a second marriage in good faith will not constitute bigamy. He

posits that a second marriage, if not illegal, even if it be annullable, should

not give rise to bigamy.[55] Former Justice Luis B. Reyes, on the other hand,

was of the view that in the case of an absent spouse who could not yet be

presumed dead according to the Civil Code, the spouse present cannot be

charged and convicted of bigamy in case he/she contracts a second marriage.

[56]
 The Committee tasked to prepare the Family Code proposed the

amendments of Articles 390 and 391 of the Civil Code to conform to Article

349 of the Revised Penal Code, in that, in a case where a spouse is absent for

the requisite period, the present spouse may contract a subsequent marriage

only after securing a judgment declaring the presumptive death of the absent

spouse to avoid being charged and convicted of bigamy; the present spouse

will have to adduce evidence that he had a well-founded belief that the

absent spouse was already dead.[57] Such judgment is proof of the good faith

of the present spouse who contracted a subsequent marriage; thus, even if

the present spouse is later charged with bigamy if the absentee spouse

reappears, he cannot be convicted of the crime. As explained by former

Justice Alicia Sempio-Diy:

… Such rulings, however, conflict with Art. 349 of the Revised

Penal Code providing that the present spouse must first ask for a
declaration of presumptive death of the absent spouse in order not to be
guilty of bigamy in case he or she marries again.

The above Article of the Family Code now clearly provides that
for the purpose of the present spouse contracting a second marriage, he or
she must file a summary proceeding as provided in the Code for the
declaration of the presumptive death of the absentee, without prejudice to
the latter’s reappearance. This provision is intended to protect the present
spouse from a criminal prosecution for bigamy under Art. 349 of the
Revised Penal Code because with the judicial declaration that the missing
spouses presumptively dead, the good faith of the present spouse in
contracting a second marriage is already established.[58]
 Of the same view is former Dean Ernesto L. Pineda (now

Undersecretary of Justice) who wrote that things are now clarified. He says

judicial declaration of presumptive death is now authorized for purposes of

 remarriage. The present spouse must institute a summary proceeding

for declaration of presumptive death of the absentee, where the ordinary

rules of procedure in trial will not be followed. Affidavits will suffice, with

possible clarificatory examinations of affiants if the Judge finds it necessary

for a full grasp of the facts. The judgment declaring an absentee as

presumptively dead is without prejudice to the effect of reappearance of the

said absentee.

Dean Pineda further states that before, the weight of authority is that

the clause “before the absent spouse has been declared presumptively dead x

x x” should be disregarded because of Article 83, paragraph 3 of the Civil

Code. With the new law, there is a need to institute a summary proceeding

for the declaration of the presumptive death of the absentee, otherwise, there

is bigamy.[59]

According to Retired Supreme Court Justice Florenz D. Regalado, an

eminent authority on Criminal Law, in some cases where an absentee spouse

is believed to be dead, there must be a judicial declaration of presumptive

death, which could then be made only in the proceedings for the settlement

of his estate.[60] Before such declaration, it was held that the remarriage of

the other spouse is bigamous even if done in good faith.[61] Justice Regalado
opined that there were contrary views because of the ruling in Jones and the

provisions of Article 83(2) of the Civil Code, which, however, appears to

have been set to rest by Article 41 of the Family Code, “which requires a

summary hearing for the declaration of presumptive death of the absent

spouse before the other spouse can remarry.”

Under Article 238 of the Family Code, a petition for a declaration of

the presumptive death of an absent spouse under Article 41 of the Family

Code may be filed under Articles 239 to 247 of the same Code.[62]

On the second issue, the petitioner, likewise, faults the trial court and

the CA for awarding moral damages in favor of the private complainant.

The petitioner maintains that moral damages may be awarded only in any of

the cases provided in Article 2219 of the Civil Code, and bigamy is not one

of them. The petitioner asserts that the appellate court failed to apply its

ruling in People v. Bondoc,[63] where an award of moral damages for bigamy

was disallowed. In any case, the petitioner maintains, the private

complainant failed to adduce evidence to prove moral damages.

The appellate court awarded moral damages to the private

complainant on its finding that she adduced evidence to prove the same.

The appellate court ruled that while bigamy is not included in those cases
enumerated in Article 2219 of the Civil Code, it is not proscribed from

awarding moral damages against the petitioner. The appellate court ruled

that it is not bound by the following ruling in People v. Bondoc:

... Pero si en dichos asuntos se adjudicaron daños, ello se debió

indedublamente porque el articulo 2219 del Código Civil de Filipinas
autoriza la adjudicación de daños morales en los delitos de estupro,
rapto, violación, adulterio o concubinato, y otros actos lascivos, sin
incluir en esta enumeración el delito de bigamia. No existe, por
consiguiente, base legal para adjudicar aquí los daños de P5,000.00
arriba mencionados.[64]

The OSG posits that the findings and ruling of the CA are based on

the evidence and the law. The OSG, likewise, avers that the CA was not

bound by its ruling in People v. Rodeo.

The Court rules against the petitioner.

Moral damages include physical suffering, mental anguish, fright,

serious anxiety, besmirched reputation, wounded feelings, moral shock,

social humiliation, and similar injury. Though incapable of pecuniary

computation, moral damages may be recovered if they are the proximate

result of the defendant’s wrongful act or omission.[65] An award for moral

damages requires the confluence of the following conditions: first, there

must be an injury, whether physical, mental or psychological, clearly

sustained by the claimant; second, there must be culpable act or omission

factually established; third, the wrongful act or omission of the defendant is

the proximate cause of the injury sustained by the claimant; and fourth, the

award of damages is predicated on any of the cases stated in Article 2219 or

Article 2220 of the Civil Code.[66]

Moral damages may be awarded in favor of the offended party only in

criminal cases enumerated in Article 2219, paragraphs 1, 3, 4, 5 and 7 of the

Civil Code and analogous cases, viz.:

Art. 2219. Moral damages may be recovered in the following and

analogous cases.

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in article 309;
(10) Acts and actions referred to in articles 21, 26, 27, 28, 29,
30, 32, 34 and 35.

The parents of the female seduced, abducted, raped, or abused,

referred to in No. 3 of this article, may also recover moral damages.

The spouse, descendants, ascendants, and brothers and sisters may

bring the action mentioned in No. 9 of this article in the order named.

Thus, the law does not intend that moral damages should be awarded

in all cases where the aggrieved party has suffered mental anguish, fright,

moral anxieties, besmirched reputation, wounded feelings, moral shock,

social humiliation and similar injury arising out of an act or omission of

another, otherwise, there would not have been any reason for the inclusion

of specific acts in Article 2219[67] and analogous cases (which refer to those

cases bearing analogy or resemblance, corresponds to some others or

resembling, in other respects, as in form, proportion, relation, etc.)[68]

Indeed, bigamy is not one of those specifically mentioned in Article

2219 of the Civil Code in which the offender may be ordered to pay moral

damages to the private complainant/offended party. Nevertheless, the

petitioner is liable to the private complainant for moral damages under

Article 2219 in relation to Articles 19, 20 and 21 of the Civil Code.

According to Article 19, “every person must, in the exercise of his

rights and in the performance of his act with justice, give everyone his due,

and observe honesty and good faith.” This provision contains what is

commonly referred to as the principle of abuse of rights, and sets certain

standards which must be observed not only in the exercise of one’s rights

but also in the performance of one’s duties. The standards are the following:

act with justice; give everyone his due; and observe honesty and good faith.

The elements for abuse of rights are: (a) there is a legal right or duty;
(b) exercised in bad faith; and (c) for the sole intent of prejudicing or

injuring another.[69]

Article 20 speaks of the general sanctions of all other provisions of

law which do not especially provide for its own sanction. When a right is

exercised in a manner which does not conform to the standards set forth in

the said provision and results in damage to another, a legal wrong is thereby

committed for which the wrongdoer must be responsible.[70] If the provision

does not provide a remedy for its violation, an action for damages under

either Article 20 or Article 21 of the Civil Code would be proper. Article 20

provides that “every person who, contrary to law, willfully or negligently

causes damage to another shall indemnify the latter for the same.” On the

other hand, Article 21 provides that “any person who willfully causes loss or

injury to another in a manner that is contrary to morals, good customs or

public policy shall compensate the latter for damages.” The latter provision
 is adopted to remedy “the countless gaps in the statutes which leave so

many victims of moral wrongs helpless, even though they have actually

suffered material and moral injury should vouchsafe adequate legal remedy

for that untold number of moral wrongs which it is impossible for human

foresight to prove for specifically in the statutes.” Whether or not the

principle of abuse of rights has been violated resulting in damages under

Article 20 or Article 21 of the Civil Code or other applicable provisions of

law depends upon the circumstances of each case.[71]

In the present case, the petitioner courted the private complainant and

proposed to marry her. He assured her that he was single. He even brought

his parents to the house of the private complainant where he and his parents

made the same assurance – that he was single. Thus, the private

complainant agreed to marry the petitioner, who even stated in the certificate

of marriage that he was single. She lived with the petitioner and dutifully

performed her duties as his wife, believing all the while that he was her

lawful husband. For two years or so until the petitioner heartlessly

abandoned her, the private complainant had no inkling that he was already

married to another before they were married.

 Thus, the private complainant was an innocent victim of the

petitioner’s chicanery and heartless deception, the fraud consisting not of a

single act alone, but a continuous series of acts. Day by day, he maintained

the appearance of being a lawful husband to the private complainant, who

 changed her status from a single woman to a married woman, lost the

consortium, attributes and support of a single man she could have married

lawfully and endured mental pain and humiliation, being bound to a man

who it turned out was not her lawful husband.[72]

The Court rules that the petitioner’s collective acts of fraud and deceit

before, during and after his marriage with the private complainant were

willful, deliberate and with malice and caused injury to the latter. That she

did not sustain any physical injuries is not a bar to an award for moral

damages. Indeed, in Morris v. Macnab,[73] the New Jersey Supreme Court

ruled:

xxx The defendant cites authorities which indicate that, absent

physical injuries, damages for shame, humiliation, and mental anguish are
not recoverable where the actor is simply negligent. See Prosser, supra, at
p. 180; 2 Harper & James, Torts, 1031 (1956). But the authorities all
recognize that where the wrong is willful rather than negligent, recovery
may be had for the ordinary, natural, and proximate consequences though
they consist of shame, humiliation, and mental anguish. See Spiegel v.
Evergreen Cemetery Co., 117 NJL 90, 94, 186 A 585 (Sup. Ct. 1936);
Kuzma v. Millinery Workers, etc., Local 24, 27 N.J. Super, 579, 591, 99
A.2d 833 (App. Div. 1953); Prosser, supra, at p. 38. Here the defendant’s
conduct was not merely negligent, but was willfully and maliciously
wrongful. It was bound to result in shame, humiliation, and mental
anguish for the plaintiff, and when such result did ensue the plaintiff
became entitled not only to compensatory but also to punitive damages.
See Spiegel v. Evergreen Cemetery Co., supra; Kuzma v Millinery
Workers, etc., Local 24, supra. CF. Note, “Exemplary Damages in the
Law of Torts,” 70 Harv. L. Rev. 517 (1957). The plaintiff testified that
because of the defendant’s bigamous marriage to her and the attendant
publicity she not only was embarrassed and “ashamed to go out” but
“couldn’t sleep” but “couldn’t eat,” had terrific headaches” and “lost quite
a lot of weight.” No just basis appears for judicial interference with the
 jury’s reasonable allowance of $1,000 punitive damages on the first
count. See Cabakov v. Thatcher, 37 N.J. Super 249, 117 A.2d 298 (App.
Div.[74] 1955).

The Court thus declares that the petitioner’s acts are against public

policy as they undermine and subvert the family as a social institution, good

morals and the interest and general welfare of society.

Because the private complainant was an innocent victim of the

petitioner’s perfidy, she is not barred from claiming moral damages.

Besides, even considerations of public policy would not prevent her from

recovery. As held in Jekshewitz v. Groswald:[75]

Where a person is induced by the fraudulent representation of

another to do an act which, in consequence of such misrepresentation, he
believes to be neither illegal nor immoral, but which is in fact a criminal
offense, he has a right of action against the person so inducing him for
damages sustained by him in consequence of his having done such act.
Burrows v. Rhodes, [1899] 1 Q.B. 816. In Cooper v. Cooper, 147 Mass.
370, 17 N.E. 892, 9 Am. St. Rep. 721, the court said that a false
representation by the defendant that he was divorced from his former wife,
whereby the plaintiff was induced to marry him, gave her a remedy in tort
for deceit. It seems to have been assumed that the fact that she had
unintentionally violated the law or innocently committed a crime by
cohabiting with him would be no bar to the action, but rather that it might
be a ground for enhancing her damages. The injury to the plaintiff was
said to be in her being led by the promise to give the fellowship and
assistance of a wife to one who was not her husband and to assume and act
in a relation and condition that proved to be false and ignominious.
Damages for such an injury were held to be recoverable in Sherman v.
Rawson, 102 Mass. 395 and Kelley v. Riley, 106 Mass. 339, 343, 8 Am.
Rep. 336.

Furthermore, in the case at bar the plaintiff does not base her cause
of action upon any transgression of the law by herself but upon the
defendant’s misrepresentation. The criminal relations which followed,
innocently on her part, were but one of the incidental results of the
defendant’s fraud for which damages may be assessed.

[7] Actions for deceit for fraudulently inducing a woman to enter

into the marriage relation have been maintained in other jurisdictions.
Sears v. Wegner, 150 Mich. 388, 114 N.W. 224, 17 L.R. A. (N.S.) 819;
Larson v. McMillan, 99 Wash. 626, 170 P. 324; Blossom v. Barrett, 37
N.Y. 434, 97 Am. Dec. 747; Morril v. Palmer, 68 Vt. 1, 33 A. 829, 33
L.R.A. 411. Considerations of public policy would not prevent recovery
where the circumstances are such that the plaintiff was conscious of no
moral turpitude, that her illegal action was induced solely by the
defendant’s misrepresentation, and that she does not base her cause of
action upon any transgression of the law by herself. Such considerations
 distinguish this case from cases in which the court has refused to
lend its aid to the enforcement of a contract illegal on its face or to one
who has consciously and voluntarily become a party to an illegal act upon
which the cause of action is founded. Szadiwicz v. Cantor, 257 Mass.
518, 520, 154 N.E. 251, 49 A. L. R. 958.[76]

Considering the attendant circumstances of the case, the Court finds

the award of P200,000.00 for moral damages to be just and reasonable.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED.

The assailed decision of the Court of Appeals is AFFIRMED. Costs

against the petitioner.

SO ORDERED.