ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K.

ILUSORIO, JOHN DOE and JANE DOE, respondents.

[G.R. No. 139789. May 12, 2000, PARDO, J.]
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and SYLVIA ILUSORIO,
petitioners, vs. COURT OF APPEALS and ERLINDA K. ILUSORIO, respondents.
[G.R. No. 139808. May 12, 2000, PARDO, J.]
KEY DOCTRINE: Marital rights including coverture and living in conjugal
dwelling may not be enforced by the extra-ordinary writ of habeas corpus. No
court is empowered as a judicial authority to compel a husband to live with his
wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus
carried out by sheriffs or by any other mesne process.
FACTS: Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio. Potenciano
Ilusorio is about 86 years of age possessed of extensive property valued at millions of
pesos.
Erlinda and Potenciano were married on 1942 and out of which they have 6
children. They lived together for 30 years, thereafter, they separated from bed and board
for undisclosed reasons. Potenciano lived at Urdaneta Condominium, Ayala Ave., Makati
City when he was in Manila. On the other hand, Erlinda lived in Antipolo City.
On 1997, upon Potencianos arrival from the United States, he stayed with Erlinda
for about five (5) months in Antipolo City. The children, Sylvia and Erlinda (Lin), alleged
that during this time, their mother gave Potenciano an overdose of 200 mg instead of 100
mg Zoloft, an antidepressant drug prescribed by his doctor in New York, U.S.A. As a
consequence, Potencianos health deteriorated.
On February 1998, Erlinda filed with the RTC-Antipolo a petition for guardianship
over the person and property of Potenciano due to the latters advanced age, frail health,
poor eyesight and impaired judgment.
On May 1998, after attending a corporate meeting in Baguio City, Potenciano
Ilusorio did not return to Antipolo City and instead lived at Cleveland Condominium,
Makati.
On March 1999, Erlinda filed with the CA a petition for habeas corpus to have the
custody of her husband. She alleged that respondents refused petitioners demands to
see and visit her husband and prohibited Potenciano from returning to Antipolo City.
CA rendered a decision dismissing the application for writ of habeas corpus but
ordering the administrator of the condominium, its guards, and Potencianos staff to
allow visitation rights in favor of Potencianos wife and all their children for humanitarian
purposes.
Erlinda (wife) filed a petition to reverse the decision of the CA dismissing the
application for habeas corpus to have the custody of her husband and enforce consortium
as the wife. On the other hand, Potenciano filed a petition to annul that portion of CAs
decision giving Erlinda visitation rights to her husband and to enjoin Erlinda and the CA
from enforcing the visitation rights. The two petitions were consolidated and are herein
jointly decided.
ISSUE: May a wife secure a writ of habeas corpus to compel her husband to live
with her in conjugal bliss?
RULING: NO. Marital rights including coverture and living in conjugal dwelling
may not be enforced by the extra-ordinary writ of habeas corpus.
The justify the grant of the petition, the restraint of liberty must be an illegal and
involuntary deprivation of freedom of action. The illegal restraint of liberty must be
actual and effective, not merely nominal or moral.

The evidence shows that there was no actual and effective detention or deprivation
of lawyer Potenciano Ilusorios liberty that would justify the issuance of the writ. The fact
that lawyer Potenciano is about 86 years of age, or under medication does not necessarily
render him mentally incapacitated. Soundness of mind does not hinge on age or medical
condition but on the capacity of the individual to discern his actions.
After due hearing, the CA concluded that there was no unlawful restraint on his
liberty.
The CA also observed that lawyer Potenciano Ilusorio did not request the
administrator of the Cleveland Condominium not to allow his wife and other children
from seeing or visiting him. He made it clear that he did not object to seeing them.
As to lawyer Potenciano mental state, CA observed that he was of sound and alert
mind, having answered all the relevant questions to the satisfaction of the court. Being
of sound mind, he is thus possessed with the capacity to make choices. In this case, the
crucial choices revolve on his residence and the people he opts to see or live with. The
choices he made may not appeal to some of his family members but these are choices
which exclusively belong to Potenciano. He made it clear before the CA that he was not
prevented from leaving his house or seeing people. With that declaration, and absent any
true restraint on his liberty, we have no reason to reverse the findings of the CA.
With his full mental capacity coupled with the right of choice, Potenciano may not
be the subject of visitation rights against his free choice. Otherwise, we will deprive him
of his right to privacyhis fundamental constitutional right.
CA exceeded its authority when it awarded visitation rights in a petition for habeas
corpus where Erlinda never even prayed for such right. The ruling is not consistent with
the finding of subjects sanity. When the court ordered the grant of visitation rights, it
also emphasized that the same shall be enforced under penalty of contempt in case of
violation or refusal to comply. Such assertion of raw, naked power is unnecessary.
The CA missed the fact that the case did not involve the right of a parent to visit a
minor child but the right of a wife to visit a husband. In case the husband refuses to see
his wife for private reasons, he is at liberty to do so without threat of any penalty
attached to the exercise of his right.
No court is empowered as a judicial authority to compel a husband to live with his
wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out
by sheriffs or by any other mesne process. That is a matter beyond judicial authority and
is best left to the man and womans free choice.