Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
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Badua v CA
G.R. No. 105625 January 24, 1994
MARISSA BENITEZ-BADUA, petitioner,
vs.
COURT OF APPEALS, VICTORIA BENITEZ LIRIO AND FEODOR
BENITEZ AGUILAR, respondents.
Reynaldo M. Alcantara for petitioner.
Augustus Cesar E. Azura for private respondents.
PUNO, J.:
This is a petition for review of the Decision of the 12th Division of the Court
of Appeals in CA-G.R. No. CV No. 30862 dated May 29, 1992.1
The facts show that the spouses Vicente Benitez and Isabel Chipongian
owned various properties especially in Laguna. Isabel died on April 25,
1982. Vicente followed her in the grave on November 13, 1989. He died
intestate.
The fight for administration of Vicente's estate ensued. On September 24,
1990, private respondents Victoria Benitez-Lirio and Feodor Benitez Aguilar
(Vicente's sister and nephew, respectively) instituted Sp. Proc. No. 797 (90)
before the RTC of San Pablo City, 4th Judicial Region, Br. 30. They prayed
for the issuance of letters of administration of Vicente's estate in favor of
private respondent Aguilar. They alleged, inter alia, viz.:
xxx xxx xxx
4. The decedent is survived by no other heirs or relatives be they
ascendants or descendants, whether legitimate, illegitimate or legally
adopted; despite claims or representation to the contrary, petitioners can
well and truly establish, given the chance to do so, that said decedent and
his spouse Isabel Chipongian who pre-deceased him, and whose estate
had earlier been settled extra-judicial, were without issue and/or without
descendants whatsoever, and that one Marissa Benitez-Badua who was
raised and cared by them since childhood is, in fact, not related to them by
blood, nor legally adopted, and is therefore not a legal heir; . . .
On November 2, 1990, petitioner opposed the petition. She alleged that she
is the sole heir of the deceased Vicente Benitez and capable of
administering his estate. The parties further exchanged reply and rejoinder
to buttress their legal postures.
The trial court then received evidence on the issue of petitioner's heirship to
the estate of the deceased. Petitioner tried to prove that she is the only
legitimate child of the spouses Vicente Benitez and Isabel Chipongian. She
submitted documentary evidence, among others: (1) her Certificate of Live
Birth (Exh. 3); (2) Baptismal Certificate (Exh. 4); (3) Income Tax Returns
and Information Sheet for Membership with the GSIS of the late Vicente
naming her as his daughter (Exhs. 10 to 21); and (4) School Records (Exhs.
5 & 6). She also testified that the said spouses reared an continuously
treated her as their legitimate daughter. On the other hand, private
respondents tried to prove, mostly thru testimonial evidence, that the said
spouses failed to beget a child during their marriage; that the late Isabel,
then thirty six (36) years of age, was even referred to Dr. Constantino
Manahan, a noted obstetrician-gynecologist, for treatment. Their primary
witness, Victoria Benitez-Lirio, elder sister of the late Vicente, then 77 years
of age,2 categorically declared that petitioner was not the biological child of
the said spouses who were unable to physically procreate.
On December 17, 1990, the trial court decided in favor of the petitioner. It
dismissed the private respondents petition for letters and administration and
declared petitioner as the legitimate daughter and sole heir of the spouses
Vicente O. Benitez and Isabel Chipongian. The trial court relied on Articles
166 and 170 of the Family Code.
On appeal, however, the Decision of the trial court was reversed on May 29,
1992 by the 17th Division of the Court of Appeals. The dispositive portion of
the Decision of the appellate court states:
WHEREFORE, the decision appealed from herein is REVERSED and
another one entered declaring that appellee Marissa Benitez is not the
biological daughter or child by nature of the spouse Vicente O. Benitez and
Isabel Chipongian and, therefore, not a legal heir of the deceased Vicente
O. Benitez. Her opposition to the petition for the appointment of an
administrator of the intestate of the deceased Vicente O. Benitez is,
consequently, DENIED; said petition and the proceedings already
conducted therein reinstated; and the lower court is directed to proceed with
the hearing of Special proceeding No. SP-797 (90) in accordance with law
and the Rules.
Costs against appellee.
SO ORDERED.
In juxtaposition, the appellate court held that the trial court erred in applying
Articles 166 and 170 of the Family Code.
In this petition for review, petitioner contends:
1. The Honorable Court of Appeals committed error of law and
misapprehension of facts when it failed to apply the provisions, more
particularly, Arts. 164, 166, 170 and 171 of the Family Code in this case and
in adopting and upholding private respondent's theory that the instant case
does not involve an action to impugn the legitimacy of a child;
2. Assuming arguendo that private respondents can question or
impugn directly or indirectly, the legitimacy of Marissa's birth, still the
respondent appellate Court committed grave abuse of discretion when it
gave more weight to the testimonial evidence of witnesses of private
respondents whose credibility and demeanor have not convinced the trial
court of the truth and sincerity thereof, than the documentary and
testimonial evidence of the now petitioner Marissa Benitez-Badua;
3. The Honorable Court of Appeals has decided the case in a way
not in accord with law or with applicable decisions of the supreme Court,
more particularly, on prescription or laches.
We find no merit to the petition.
Petitioner's insistence on the applicability of Articles 164, 166, 170 and 171
of the Family Code to the case at bench cannot be sustained. These
articles provide:
Art. 164. Children conceived or born during the marriage of the parents
are legitimate.
Children conceived as a result of artificial insemination of the wife with
sperm of the husband or that of a donor or both are likewise legitimate
children of the husband and his wife, provided, that both of them authorized
or ratified such insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be recorded in the
civil registry together with the birth certificate of the child.
Art. 166. Legitimacy of child may be impugned only on the following
grounds:
1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child because of:
a) the physical incapacity of the husband to have sexual
intercourse with his wife;
b) the fact that the husband and wife were living separately in such
a way that sexual intercourse was not possible; or
c) serious illness of the husband, which absolutely prevented
sexual intercourse.
2) That it is proved that for biological or other scientific reasons, the
child could not have been that of the husband except in the instance
provided in the second paragraph of Article 164; or
3) That in case of children conceived through artificial insemination,
the written authorization or ratification of either parent was obtained through
mistake, fraud, violence, intimidation, or undue influence.
Art. 170. The action to impugn the legitimacy of the child shall be brought
within one year from the knowledge of the birth or its recording in the civil
register, if the husband or, in a proper case, any of his heirs, should reside
in the city or municipality where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the place of
birth as defined in the first paragraph or where it was recorded, the period
shall be two years if they should reside in the Philippines; and three years if
abroad. If the birth of the child has been concealed from or was unknown to
the husband or his heirs, the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of registration of said birth,
which ever is earlier.

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Art. 171. The heirs of the husband may impugn the filiation of the child
within the period prescribed in the preceding Article only in the following
case:
1) If the husband should die before the expiration of the period fixed
for bringing his action;
2) If he should die after the filing of the complaint, without having
desisted therefrom; or
3) If the child was born after the death of the husband.
A careful reading of the above articles will show that they do not
contemplate a situation, like in the instant case, where a child is alleged not
to be the child of nature or biological child of a certain couple. Rather, these
articles govern a situation where a husband (or his heirs) denies as his own
a child of his wife. Thus, under Article 166, it is the husband who can
impugn the legitimacy of said child by proving: (1) it was physically
impossible for him to have sexual intercourse, with his wife within the first
120 days of the 300 days which immediately preceded the birth of the child;
(2) that for biological or other scientific reasons, the child could not have
been his child; (3) that in case of children conceived through artificial
insemination, the written authorization or ratification by either parent was
obtained through mistake, fraud, violence, intimidation or undue influence.
Articles 170 and 171 reinforce this reading as they speak of the prescriptive
period within which the husband or any of his heirs should file the action
impugning the legitimacy of said child. Doubtless then, the appellate court
did not err when it refused to apply these articles to the case at bench. For
the case at bench is not one where the heirs of the late Vicente are
contending that petitioner is not his child by Isabel. Rather, their clear
submission is that petitioner was not born to Vicente and Isabel. Our ruling
in Cabatbat-Lim vs. Intermediate Appellate Court, 166 SCRA 451, 457 cited
in the impugned decision is apropos, viz.:
Petitioners' recourse to Article 263 of the New Civil Code [now Article 170 of
the Family Code] is not well-taken. This legal provision refers to an action to
impugn legitimacy. It is inapplicable to this case because this is not an
action to impugn the legitimacy of a child, but an action of the private
respondents to claim their inheritance as legal heirs of their childless
deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an
illegitimate child of the deceased, but that she is not the decedent's child at
all. Being neither legally adopted child, nor an acknowledged natural child,
nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir
of the deceased.
We now come to the factual finding of the appellate court that petitioner was
not the biological child or child of nature of the spouses Vicente Benitez and
Isabel Chipongian. The appellate court exhaustively dissected the evidence
of the parties as follows:
. . . And on this issue, we are constrained to say that appellee's evidence is
utterly insufficient to establish her biological and blood kinship with the
aforesaid spouses, while the evidence on record is strong and convincing
that she is not, but that said couple being childless and desirous as they
were of having a child, the late Vicente O. Benitez took Marissa from
somewhere while still a baby, and without he and his wife's legally adopting
her treated, cared for, reared, considered, and loved her as their own true
child, giving her the status as not so, such that she herself had believed that
she was really their daughter and entitled to inherit from them as such.
The strong and convincing evidence referred to us are the following:
First, the evidence is very cogent and clear that Isabel Chipongian never
became pregnant and, therefore, never delivered a child. Isabel's own only
brother and sibling, Dr. Lino Chipongian, admitted that his sister had
already been married for ten years and was already about 36 years old and
still she has not begotten or still could not bear a child, so that he even had
to refer her to the late Dr. Constantino Manahan, a well-known and eminent
obstetrician-gynecologist and the OB of his mother and wife, who treated
his sister for a number of years. There is likewise the testimony of the elder
sister of the deceased Vicente O. Benitez, Victoria Benitez Lirio, who then,
being a teacher, helped him (he being the only boy and the youngest of the
children of their widowed mother) through law school, and whom Vicente
and his wife highly respected and consulted on family matters, that her
brother Vicente and his wife Isabel being childless, they wanted to adopt
her youngest daughter and when she refused, they looked for a baby to
adopt elsewhere, that Vicente found two baby boys but Isabel wanted a
baby girl as she feared a boy might grow up unruly and uncontrollable, and
that Vicente finally brought home a baby girl and told his elder sister Victoria
he would register the baby as his and his wife's child. Victoria Benitez Lirio
was already 77 years old and too weak to travel and come to court in San
Pablo City, so that the taking of her testimony by the presiding judge of the
lower court had to be held at her residence in Parañaque, MM. Considering,
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
her advanced age and weak physical condition at the time she testified in
this case, Victoria Benitez Lirio's testimony is highly trustworthy and
credible, for as one who may be called by her Creator at any time, she
would hardly be interested in material things anymore and can be expected
not to lie, especially under her oath as a witness. There were also several
disinterested neighbors of the couple Vicente O. Benitez and Isabel
Chipongian in Nagcarlan, Laguna (Sergio Fule, Cecilia Coronado, and
Benjamin C. Asendido) who testified in this case and declared that they
used to see Isabel almost everyday especially as she had drugstore in the
ground floor of her house, but they never saw her to have been pregnant, in
1954 (the year appellee Marissa Benitez was allegedly born, according to
her birth certificate Exh. "3") or at any time at all, and that it is also true with
the rest of their townmates. Ressureccion A. Tuico, Isabel Chipongian's
personal beautician who used to set her hair once a week at her (Isabel's)
residence, likewise declared that she did not see Isabel ever become
pregnant, that she knows that Isabel never delivered a baby, and that when
she saw the baby Marissa in her crib one day she went to Isabel's house to
set the latter's hair, she was surprised and asked the latter where the baby
came from, and "she told me that the child was brought by Atty. Benitez and
told me not to tell about it" (p. 10, tsn, Nov. 29, 1990).
The facts of a woman's becoming pregnant and growing big with child, as
well as her delivering a baby, are matters that cannot be hidden from the
public eye, and so is the fact that a woman never became pregnant and
could not have, therefore, delivered a baby at all. Hence, if she is suddenly
seen mothering and caring for a baby as if it were her own, especially at the
rather late age of 36 (the age of Isabel Chipongian when appellee Marissa
Benitez was allegedly born), we can be sure that she is not the true mother
of that baby.
Second, appellee's birth certificate Exh. "3" with the late Vicente O. Benitez
appearing as the informant, is highly questionable and suspicious. For if
Vicente's wife Isabel, who wads already 36 years old at the time of the
child's supposed birth, was truly the mother of that child, as reported by
Vicente in her birth certificate, should the child not have been born in a
hospital under the experienced, skillful and caring hands of Isabel's
obstetrician-gynecologist Dr. Constantino Manahan, since delivery of a child
at that late age by Isabel would have been difficult and quite risky to her
health and even life? How come, then, that as appearing in appellee's birth
certificate, Marissa was supposedly born at the Benitez home in Avenida
Rizal, Nagcarlan, Laguna, with no physician or even a midwife attending?
At this juncture, it might be meet to mention that it has become a practice in
recent times for people who want to avoid the expense and trouble of a
judicial adoption to simply register the child as their supposed child in the
civil registry. Perhaps Atty. Benitez, though a lawyer himself, thought that
he could avoid the trouble if not the expense of adopting the child Marissa
through court proceedings by merely putting himself and his wife as the
parents of the child in her birth certificate. Or perhaps he had intended to
legally adopt the child when she grew a little older but did not come around
doing so either because he was too busy or for some other reason. But
definitely, the mere registration of a child in his or her birth certificate as the
child of the supposed parents is not a valid adoption, does not confer upon
the child the status of an adopted child and the legal rights of such child,
and even amounts of simulation of the child's birth or falsification of his or
her birth certificate, which is a public document.
Third, if appellee Marissa Benitez is truly the real, biological daughter of the
late Vicente O. Benitez and his wife Isabel Chipongian, why did he and
Isabel's only brother and sibling Dr. Nilo Chipongian, after Isabel's death on
April 25, 1982, state in the extrajudicial settlement
Exh. "E" that they executed her estate, "that we are the sole heirs of the
deceased ISABEL CHIPONGIAN because she died without descendants or
ascendants?" Dr. Chipongian, placed on a witness stand by appellants,
testified that it was his brother-in-law Atty. Vicente O. Benitez who prepared
said document and that he signed the same only because the latter told him
to do so (p. 24, tsn, Nov. 22, 1990). But why would Atty. Benitez make such
a statement in said document, unless appellee Marissa Benitez is not really
his and his wife's daughter and descendant and, therefore, not his
deceased wife's legal heir? As for Dr. Chipongian, he lamely explained that
he signed said document without understanding completely the meaning of
the words "descendant and ascendant" (p. 21, tsn, Nov. 22, 1990). This we
cannot believe, Dr. Chipongian being a practicing pediatrician who has even
gone to the United States (p. 52, tsn, Dec. 13, 1990). Obviously,
Dr. Chipongian was just trying to protect the interests of appellee, the
foster-daughter of his deceased sister and brother-in-law, as against those
of the latter's collateral blood relatives.
Fourth, it is likewise odd and strange, if appellee Marissa Benitez is really
the daughter and only legal heir of the spouses Vicente O. Benitez and
Isabel Chipongian, that the latter, before her death, would write a note to
her husband and Marissa stating that:

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even without any legal papers, I wish that my husband and my child or only
daughter will inherit what is legally my own property, in case I die without a
will,
and in the same handwritten note, she even implored her husband —
that any inheritance due him from my property — when he die — to make
our own daughter his sole heir. This do [sic] not mean what he legally owns
or his inherited property. I leave him to decide for himself regarding those.
(Exhs. "F-1", "F-1-A" and "F-1-B")
We say odd and strange, for if Marissa Benitez is really the daughter of the
spouses Vicente O. Benitez and Isabel Chipongian, it would not have been
necessary for Isabel to write and plead for the foregoing requests to her
husband, since Marissa would be their legal heir by operation of law.
Obviously, Isabel Chipongian had to implore and supplicate her husband to
give appellee although without any legal papers her properties when she
dies, and likewise for her husband to give Marissa the properties that he
would inherit from her (Isabel), since she well knew that Marissa is not truly
their daughter and could not be their legal heir unless her (Isabel's)
husband makes her so.
Finally, the deceased Vicente O. Benitez' elder sister Victoria Benitez Lirio
even testified that her brother Vicente gave the date
December 8 as Marissa's birthday in her birth certificate because that date
is the birthday of their (Victoria and Vicente's) mother. It is indeed too much
of a coincidence for the child Marissa and the mother of Vicente and
Victoria to have the same birthday unless it is true, as Victoria testified, that
Marissa was only registered by Vicente as his and his wife's child and that
they gave her the birth date of Vicente's mother.
We sustain these findings as they are not unsupported by the evidence on
record. The weight of these findings was not negated by documentary
evidence presented by the petitioner, the most notable of which is her
Certificate of Live Birth (Exh. "3") purportedly showing that her parents were
the late
Vicente Benitez and Isabel Chipongian. This Certificate registered on
December 28, 1954 appears to have been signed by the deceased Vicente
Benitez. Under Article 410 of the New Civil Code, however, "the books
making up the Civil Registry and all documents relating thereto shall be
considered public documents and shall be prima facie evidence of the facts
therein stated." As related above, the totality of contrary evidence,
presented by the private respondents sufficiently rebutted the truth of the
content of petitioner's Certificate of Live Birth. of said rebutting evidence,
the most telling was the Deed of Extra-Judicial Settlement of the Estate of
the Deceased Isabel Chipongian (Exh. "E") executed on July 20, 1982 by
Vicente Benitez, and
Dr. Nilo Chipongian, a brother of Isabel. In their notarized document, they
stated that "(they) are the sole heirs of the deceased Isabel Chipongian
because she died without descendants or ascendants". In executing this
Deed, Vicente Benitez effectively repudiated the Certificate of Live Birth of
petitioner where it appeared that he was petitioner's father. The repudiation
was made twenty-eight years after he signed petitioner's Certificate of Live
Birth.
IN VIEW WHEREOF, the petition for review is dismissed for lack of merit.
Costs against petitioner.
SO ORDERED.
FOOTNOTES
She died during the pendency of the present action, and was substituted by
her daughters, Mayra B. Lirio and Nieva L. Isla and son, Jose B. Lirio, Jr.
Babiera v Catotal
G.R. No. 138493 June 15, 2000
TEOFISTA BABIERA, petitioner,
vs.
PRESENTACION B. CATOTAL, respondent.
PANGANIBAN, J.:
A birth certificate may be ordered cancelled upon adequate proof that it is
fictitious. Thus, void is a certificate which shows that the mother was
already fifty-four years old at the time of the child's birth and which was
signed neither by the civil registrar nor by the supposed mother. Because
her inheritance rights are adversely affected, the legitimate child of such
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
mother is a proper party in the proceedings for the cancellation of the said
certificate.
Statement of the Case
Submitted for this Court's consideration is a Petition for Review on
Certiorari1 under Rule 45 of the Rules of Court, seeking reversal of the
March 18, 1999 Decision2 of the Court of Appeals3 (CA) in CA-GR CV No.
56031. Affirming the Regional Trial Court of Lanao del Norte in Special
Proceedings No. 3046, the CA ruled as follows:
IN VIEW HEREOF, the appealed decision is hereby AFFIRMED.
Accordingly, the instant appeal is DISMISSED for lack of merit. Costs
against the defendant-appellant, TEOFISTA BABIERA, a.k.a. Teofista
Guinto.4
The dispositive portion of the affirmed RTC Decision reads:
WHEREFORE, in view of the foregoing findings and pronouncements of the
Court, judgment is hereby rendered, to wit[:]
1) Declaring the Certificate of Birth of respondent Teofista Guinto as null
and void "ab initio";
2) Ordering the respondent Local Civil Registrar of Iligan to cancel from the
registry of live birth of Iligan City BIRTH CERTIFICATE recorded as
Registry No. 16035;
Furnish copies of this-decision to the Local Civil Registrar of Iligan City, the
City Prosecutor, counsel for private respondent Atty. Tomas Cabili and to
counsel for petitioner.
SO ORDERED.
The Facts
The undisputed facts are summarized by the Court of Appeals in this wise:
Presentacion B. Catotal (hereafter referred to as PRESENTACION) filed
with the Regional Trial Court of Lanao del Node, Branch II, Iligan City, a
petition for the cancellation of the entry of birth of Teofista Babiera (herafter
referred to as TEOFISTA) in the Civil Registry of Iligan City. The case was
docketed as Special Proceedings No. 3046.
From the petition filed, PRESENTACION asserted "that she is the only
surviving child of the late spouses Eugenio Babiera and Hermogena
Cariñosa, who died on May 26, 1996 and July 6, 1990 respectively; that on
September 20, 1996 a baby girl was delivered by "hilot" in the house of
spouses Eugenio and Hermogena Babiera and without the knowledge of
said spouses, Flora Guinto, the mother of the child and a housemaid of
spouses Eugenio and Hermogena Babiera, caused the
registration/recording of the facts of birth of her child, by simulating that she
was the child of the spouses Eugenio, then 65 years old and Hermogena,
then 54 years old, and made Hermogena Babiera appear as the mother by
forging her signature . . .; that petitioner, then 15 years old, saw with her
own eyes and personally witnessed Flora Guinto give birth to Teofista
Guinto, in their house, assisted by "hilot"; that the birth certificate . . . of
Teofista Guinto is void ab initio, as it was totally a simulated birth, signature
of informant forged, and it contained false entries, to wit: a) The child is
made to appear as the legitimate child of the late spouses Eugenio Babiera
and Hermogena Cariñosa, when she is not; b) The signature of Hermogena
Cariñosa, the mother, is falsified/forged. She was not the informant; c) The
family name BABIERA is false and unlawful and her correct family name is
GUINTO, her mother being single; d) Her real mother was Flora Guinto and
her status, an illegitimate child; The natural father, the carpenter, did not
sign it; that the respondent Teofista Barbiera's birth certificate is void ab
initio, and it is patently a simulation of birth, since it is clinically and
medically impossible for the supposed parents to bear a child in 1956
because: a) Hermogena Cariñosa Babiera, was already 54 years old; b)
Hermogena's last child birth was in the year 1941, the year petitioner was
born; c) Eugenio was already 65 years old, that the void and simulated birth
certificate of Teofista Guinto would affect the hereditary rights of petitioner
who inherited the estate of cancelled and declared void and theretofore she
prays that after publication, notice and hearing, judgment [be] render[ed]
declaring . . . the certificate of birth of respondent Teofista Guinto as
declared void, invalid and ineffective and ordering the respondent local civil
registrar of Iligan to cancel from the registry of live birth of Iligan City BIRTH
CERTIFICATE recorded as Registry No. 16035.
Finding the petition to be sufficient in form and substance, the trial court
issued an order directing the publication of the petition and the date of
hearing thereof in a newspaper, the Local Civil Registrar of Iligan City, the
office of the City Prosecutor of Iligan City and TEOFISTA.

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TEOFISTA filed a motion to dismiss on the grounds that "the petition states
no cause of action, it being an attack on the legitimacy of the respondent as
the child of the spouses Eugenio Babiera and Hermogena Cariñosa
Babiera; that plaintiff has no legal capacity to file the instant petition
pursuant to Article 171 of the Family Code; and finally that the instant
petition is barred by prescription in accordance with Article 170 of the
Family Code." The trial court denied the motion to dismiss.
Subsequently, "Attys. Padilla, Ulindang and Padilla appeared and filed an
answer/opposition in behalf of private respondent Teofista Babiera, [who]
was later on substituted by Atty. Cabili as counsel for private respondent."
In the answer filed, TEOFISTA averred "that she was always known as
Teofista Babiera and not Teofista Guinto; that plaintiff is not the only
surviving child of the late spouses Eugenio Babiera and Hermogena C.
Babiera, for the truth of the matter [is that] plantiff Presentacion B. V.
Catotal and [defendant] Teofista Babiera are sisters of the full-blood. Her
Certificate of Birth, signed by her mother Hermogena Babiera, . . .
Certificate of Baptism, . . . Student's Report Card . . . all incorporated in her
answer, are eloquent testimonies of her filiation. By way of special and
affirmative defenses, defendant/respondent contended that the petition
states no cause of action, it being an attack on the legitimacy of the
respondent as the child of the spouses Eugenio Babiera and Hermogena
Cariñoza Babiera; that plaintiff has no legal capacity to file the instant
petition pursuant to Article 171 of the Family Code; and finally that the
instant petition is barred by prescription in accordance with Article 170 of
the Family Code.5
Ruling of the Court of Appeals
The Court of Appeals held that the evidence adduced during trial proved
that petitioner was not the biological child of Hermogena Babiera. It also
ruled that no evidence was presented to show that Hermogena became
pregnant in 1959. It further observed that she was already 54 years old at
the time, and that her last pregnancy had occurred way back in 1941. The
CA noted that the supposed birth took place at home, notwithstanding the
advanced age of Hermogena and its concomitant medical complications.
Moreover, petitioner's Birth Certificate was not signed by the local civil
registrar, and the signature therein, which was purported to be that of
Hermogena, was different from her other signatures.
The CA also deemed inapplicable Articles 170 and 171 of the Family Code,
which stated that only the father could impugn the child's legitimacy, and
that the same was not subject to a collateral attack. It held that said
provisions contemplated a situation wherein the husband or his heirs
asserted that the child of the wife was not his. In this case, the action
involved the cancellation of the child's Birth Certificate for being void ab
initio on the ground that the child did not belong to either the father or the
mother.
Hence, this appeal.6
Issues
Petitioner presents the following assignment of errors:
1) Respondent (plaintiff in the lower court a quo) does not have the legal
capacity to file the special proceeding of appeal under CA GR No. CV-
56031 subject matter of this review on certiorari;
2) The special proceeding on appeal under CA GR No. CV-56031 is
improper and is barred by [the] statute of limitation (prescription); [and]
3) The Honorable Court of Appeals, the fifteenth division utterly failed to
hold, that the ancient public record of petitioner's birth is superior to the self-
serving oral testimony of respondent.7
The Court's Ruling
The Petition is not meritorious.
First Issue: Subject of
the Present Action
Petitioner contends that respondent has no standing to sue, because Article
1718 of the Family Code states that the child's filiation can be impugned
only by the father or, in special circumstances, his heirs. She adds that the
legitimacy of a child is not subject to a collateral attack.
This argument is incorrect. Respondent has the requisite standing to initiate
the present action. Section 2, Rule 3 of the Rules of Court, provides that a
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
real party in interest is one "who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the suit."9 The
interest of respondent in the civil status of petitioner stems from an action
for partition which the latter filed against the former. 10 The case concerned
the properties inherited by respondent from her parents.
Moreover, Article 171 of the Family Code is not applicable to the present
case. A close reading of this provision shows that it applies to instances in
which the father impugns the legitimacy of his wife's child. The provision,
however, presupposes that the child was the undisputed offspring of the
mother. The present case alleges and shows that Hermogena did not give
birth to petitioner. In other words, the prayer herein is not to declare that
petitioner is an illegitimate child of Hermogena, but to establish that the
former is not the latter's child at all. Verily, the present action does not
impugn petitioner's filiation to Spouses Eugenio and Hermogena Babiera,
because there is no blood relation to impugn in the first place.
In Benitez-Badua v. Court of Appeals, 11 the Court ruled thus:
Petitioner's insistence on the applicability of Articles 164, 166, 170 and 171
of the Family Code to the case at bench cannot be sustained. These
articles provide:
xxx xxx xxx
A careful reading of the above articles will show that they do not
contemplate a situation, like in the instant case, where a child is alleged not
to be the child of nature or biological child of a certain couple. Rather, these
articles govern a situation where a husband (or his heirs) denies as his own
a child of his wife. Thus, under Article 166, it is the husband who can
impugn the legitimacy of said child by proving: (1) it was physically
impossible for him to have sexual intercourse, with his wife within the first
120 days of the 300 days which immediately preceded the birth of the child;
(2) that for biological or other scientific reasons, the child could not have
been his child; (3) that in case of children conceived insemination, the
written authorization or ratification by either parent was obtained through
mistake, fraud, violence, intimidation or undue influence. Articles 170 and
171 reinforce this reading as they speak of the prescriptive period within
which the husband or any of his heirs should file the action impugning the
legitimacy of said child. Doubtless then, the appellate court did not err when
it refused to apply these articles to the case at bench. For the case at bench
is not one where the heirs of the late Vicente are contending that petitioner
is not his child by Isabel. Rather, their clear submission is that petitioner
was not horn to Vicente and Isabel. Our ruling in Cabatbat-Lim vs.
Intermediate Appellate Court, 166 SCRA 451, 457 cited in the impugned
decision is apropos, viz:
"Petitioners" recourse to Article 263 of the New Civil Code [now Art. 170 of
the Family Code] is not well-taken. This legal provision refers to an action to
impugn legitimacy. It is inapplicable to this case because this is not an
action to impugn the legitimacy of a child, but an action of the private
respondents to claim their inheritance as legal heirs of their childless
deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an
illegitimate child of the deceased, but that she is not the decedent's child at
all. Being neither [a] legally adopted child, nor an acknowledged natural
child, nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a
legal heir of the deceased. 12 (Emphasis supplied.)
Second Issue: Prescription
Petitioner next contends that the action to contest her status as a child of
the late Hermogena Babiera has already prescribed. She cites Article 170
of the Family Code which provides the prescriptive period for such action:
Art. 170. The action to impugn the legitimacy of the child shall be brought
within one year from the knowledge of the birth or its recording in the civil
register, if the husband or, in a proper case, any of his heirs, should reside
in the city or municipality where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the place of
birth as defined in the first paragraph or where it was recorded, the period
shall be two years if they should reside in the Philippines; and three years if
abroad. If the birth of the child has been concealed from or was unknown to
the husband or his heirs, the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of registration of said birth,
whichever is earlier.
This argument is bereft of merit. The present action involves the
cancellation of petitioner's Birth Certificate; it does not impugn her
legitimacy. Thus, the prescriptive period set forth in Article 170 of the Family
Code does not apply. Verily, the action to nullify the Birth Certificate does
not prescribe, because it was allegedly void ab initio. 1

Page 5 of 16
Third Issue:
Presumption in Favor of the Birth Certificate
Lastly, petitioner argues that the evidence presented, especially
Hermogena's testimony that petitioner was not her real child, cannot
overcome the presumption of regularity in the issuance of the Birth
Certificate.
While it is true that an official document such as petitioner's Birth Certificate
enjoys the presumption of regularity, the specific facts attendant in the case
at bar, as well as the totality of the evidence presented during trial,
sufficiently negate such presumption. First, there were already irregularities
regarding the Birth Certificate itself. It was not signed by the local civil
registrar. 14 More important, the Court of Appeals observed that the
mother's signature therein was different from her signatures in other
documents presented during the trial.
Second, the circumstances surrounding the birth of petitioner show that
Hermogena is not the former's real mother. For one, there is no evidence of
Hermogena's pregnancy, such as medical records and doctor's
prescriptions, other than the Birth Certificate itself. In fact, no witness was
presented to attest to the pregnancy of Hermogena during that time.1awphil
Moreover, at the time of her supposed birth, Hermogena was already 54
years old. Even if it were possible for her to have given birth at such a late
age, it was highly suspicious that she did so in her own home, when her
advanced age necessitated proper medical care normally available only in a
hospital.
The most significant piece of evidence, however, is the deposition of
Hermogena Babiera which states that she did not give birth to petitioner,
and that the latter was not hers nor her husband Eugenio's. The deposition
reads in part:
q Who are your children?
a Presentation and Florentino Babiera.
q Now, this Teofista Babiera claims that she is your legitimate child with
your husband Eugenio Babiera, what can you say about that?
a She is not our child.
xxx xxx xxx
q Do you recall where she was born?
a In our house because her mother was our house helper.
q Could you recall for how long if ever this Teofista Babiera lived with you in
your residence?
a Maybe in 1978 but she [would] always go ou[t] from time to time.
q Now, during this time, do you recall if you ever assert[ed] her as your
daughter with your husband?
a No, sir. 15
Relying merely on the assumption of validity of the Birth Certificate,
petitioner has presented no other evidence other than the said document to
show that she is really Hermogena's child; Neither has she provided any
reason why her supposed mother would make a deposition stating that the
former was not the latter's child at all.
All in all, we find no reason to reverse or modify the factual finding of the
trial and the appellate courts that petitioner was not the child of
respondent's parents.
WHEREFORE, the Petition is hereby DENIED and the assailed Decision
AFFIRMED. Costs against petitioner.
SO ORDERED.
FOOTNOTES
6 The case was deemed submitted for resolution on December 24, 1999,
upon receipt by this Court of Petitioner's Memorandum, which was signed
by Atty. Pablito C. Pielago Sr. Respondent's Memorandum, signed by Atty.
Dulcesimo Tampos, had been received earlier.
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
8 Art. 171. The heirs of the husband may impugn the filiation of the child
within the period prescribed in the preceding article only in the following
cases:
(1) If the husband should die before the expiration of the period fixed for
bringing his action;
(2) If he should die after the filing of the complaint without having desisted
therefrom; or
(3) If the child was born after the death of the husband.
9 It appears that respondent invoked Rule 108 in the present action.
Although the said Rule allows only the correction of typographical or clerical
errors and not material or substantial ones (see Leonor v. CA, 256 SCRA
69, April 2, 1996), the propriety of the present remedy was not raised as an
issue. Hence, the Court finds no reason to pass upon it. It should be
observed, however, that the trial court ordered the publication of the Petition
and the date of hearing in a newspaper of general publication and caused
the service of copies thereof to the Office of the Solicitor General, the Iligan
City local civil registrar and the Office of the Iligan City Prosecutor.
De Jesus v Heirs of Dizon
G.R. No. 142877 October 2, 2001
JINKIE CHRISTIE A. DE JESUS and JACQUELINE A. DE JESUS minors,
represented by their mother, CAROLINA A. DE JESUS, petitioners,
vs.
THE ESTATE OF DECEDENT JUAN GAMBOA DIZON, ANGELINA V.
DIZON, CARLOS DIZON, FELIFE DIZON, JUAN DIZON, JR. and
MARYLIN DIZON and as proper parties: FORMS MEDIA CORP., QUAD
MANAGEMENT CORP., FILIPINAS PAPER SALES CO., INC. and AMITY
CONSTRUCTION & INDUSTRIAL ENTERPRISES, INC. respondents.
VITUG, J.:
The petitioner involves the case of the illegitimate children who, having
been born in lawful wedlock, claim to be the illegitimate scions of the
decedent in order to enforce their respective shares in the latter's estate
under the rules of succession.
Danilo B. de Jesus and Carolina Aves de Jesus got married on 23 August
1964. It was during this marriage that Jacqueline A. de Jesus and Jinkie
Christie A. de Jesus, herein petitioners, were born, the former on 01 March
1979 and the latter on 06 July 1982.
In a notarized document, dated 07 June 1991, Juan G. Dizon
acknowledged Jacqueline and Jinkie de Jesus as being his own illegitimate
children by Carolina Aves de Jesus. Juan G. Dizon died intestate on 12
March 1992, leaving behind considerable assets consisting of shares of
stock in various corporations and some real property. It was on the strength
of his notarized acknowledgement that petitioners filed a complaint on 01
July 1993 for "Partition with Inventory and Accounting" of the Dizon estate
with the Regional Trial Court, Branch 88, of Quezon City.
Respondent, the surviving spouse and legitimate children of the decedent
Juan G. Dizon, including the corporations of which the deceased was a
stockholder, sought the dismissal of the case, arguing that the complaint,
even while denominated as being one for partition, would nevertheless call
for altering the status of petitioners from being the legitimate children of the
spouses Danilo de Jesus and Carolina de Jesus to instead be the
illegitimate children of Carolina de Jesus and deceased Juan Dizon. The
trial court denied, due to lack of merit, the motion to dismiss and
subsequent motion for reconsideration on, respectively, 13 September 1993
and 15 February 1994. Respondents assailed the denial of said motions
before the Court of Appeals.
On 20 May 1994, the appellate court upheld the decision of the lower court
and ordered the case to be remanded to the trial court for further
proceedings. It ruled that the veracity of the conflicting assertions should be
threshed out at the trial considering that the birth certificates presented by
respondents appeared to have effectively contradicted petitioners'
allegation of illegitimacy.1âwphi1.nêt
On 03 January 2000, long after submitting their answer, pre-trial brief and
several other motions, respondents filed an omnibus motion, again praying
for the dismissal of the complaint on the ground that the action instituted
was, in fact, made to compel the recognition of petitioners as being the
illegitimate children of decedent Juan G. Dizon and that the partition sought
was merely an ulterior relief once petitioners would have been able the
establish their status as such heirs. It was contended, in fine that an action
for partition was not an appropriate forum to likewise ascertain the question

Page 6 of 16
of paternity and filiation, an issue that could only be taken up in an
independent suit or proceeding.
Finding credence in the argument of respondents, the trial court, ultimately,
dismissed the complaint of petitioners for lack of cause of action and for
being improper.1 It decreed that the declaration of heirship could only be
made in a special proceeding in asmuch as petitioners were seeking the
establishment of a status or right.
Petitioners assail the foregoing order of the trial court in the instant petition
for review on certiorari. Basically, petitioners maintain that their recognition
as being illegitimate children of the decedent, embodied in an authentic
writing, is in itself sufficient to establish their status as such and does not
require a separate action for judicial approval following the doctrine
enunciated in Divinagracia vs. Bellosillo.2
In the comment, respondents submit that the rule in Divinagracia being
relied by petitioners is inapplicable to the case because there has been no
attempt to impugn legitimate filiation in Divinagracia. In praying for the
affirmance of dismissal of the complaint, respondents count on the case of
Sayson vs. Court of Appeals,3 which has ruled that the issue of legitimacy
cannot be questioned in a complaint for partition and accounting but must
be seasonably brought up in direct action frontally addressing the issue.
The controversy between the parties has been pending for much too long,
and it is time that this matter draws to a close.
The filiation of illegitimate children, like legitimate children, is established by
(1) the record of birth appearing the civil register or a final judgement; or (2)
an admission of legitimate filiation in a public document or a private
handwritten and signed by the parent concerned. In the absence thereof,
filiation shall be proved by (1) the open and continuos possession of the
status of a legitimate child; or (2) any other means allowed by the Rules of
Court and special laws.4 The due recognition of an illegitimate child in a
record of birth, a will, a statement before a court or record, or in any
authentic writing is, in itself, a consummated act of acknowledgement of the
child, and no further court action is required.5 In fact, any writing is treated
not just a ground for compulsory recognition; it is in itself voluntary
recognition that does not require a separate action for judicial approval.6
Where, instead, a claim for recognition is predicted on other evidence
merely tending to prove paternity, i.e., outside of a record of birth, a will, a
statement before a court or record or an authentic writing, judicial action
within the applicable statue of limitations is essential in order to establish
the child's acknowledgement.7
A scrutiny of the records would show that petitioners were born during the
marriage of their parents. The certificates of live would also identify Danilo
de Jesus as being their father.
There is perhaps no presumption of the law more firmly established and
founded on sounder morality and more convincing reason than the
presumption that children born in wedlock are legitimate.8 this presumption
indeed becomes conclusive in the absence of proof that there is physical
impossibility of access between the spouses during the first 120 days of the
300 days which immediately precedes the birth of the child due to (a) the
physical incapacity of the husband to have sexual intercourse with his wife;
(b) the fact the husband and wife are living separately in such a way that
sexual intercourse is not possible; or (c) serious illness of the husband,
which absolutely prevents sexual intercourse.9 Quite remarkably, upon the
expiration of the periods set forth in Article 170,10 and in proper cases
Article 171,11 of the Family Code (which took effect on 03 August 1988),
the action to impugn the legitimacy of a child would no longer be legally
feasible and the status conferred by the presumption becomes fixed and
unassailable,12
Succinctly, in an attempt to establish their illegitimate filiation to the late
Juan G. Dizon, petitioners, in effect, would impugn their legitimate status as
being children of Danilo de Jesus and Carolina Aves de Jesus. This step
cannot be aptly done because the law itself establishes the legitimacy of
children conceived or born during the marriage of the parents. The
presumption of legitimacy fixes a civil status for the child born in wedlock,
and only the father,13 or in exceptional instances the latter's heirs,14 can
contest in an appropriate action the legitimacy of a child born to his wife.
Thus, it is only when the legitimacy of a child has been successfully
impugned that the paternity of the husband can be rejected.
Respondents correctly argued that petitioners hardly could find succor in
Divinagracia. In said case, the Supreme Court remanded to the trial court
for further proceedings the action for partition filed by an illegitimate child
who had claimed to be an acknowledgement spurious child by virtue of a
private document. Signed by the acknowledging parent, evidencing such
recognition. It was not a case of legitimate children asserting to be
somebody else's illegitimate children. Petitioners totally ignored the fact that
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Family Code Art 163-171 Paternity and Filiation
it was not for them, given the attendant circumstances particularly, to
declare that they could not have been the legitimate children, clearly
opposed to the entries in their respective birth certificates, of Danilo and
Carolina de Jesus.
The rule that the written acknowledgement made by the deceased Juan G.
Dizon establishes petitioners' alleged illegitimate filiation to the decedent
cannot be validly invoked to be of any relevance in this instance. This issue,
i.e whether petitioners are indeed the acknowledge illegitimate offsprings of
the decedent, cannot be aptly adjudicated without an action having been
first instituted to impugn their legitimacy as being the children of Danilo B.
de Jesus and Carolina Aves de Jesus born in lawful wedlock. Jurisprudence
is strongly settled that the paramount declaration of legitimacy by law
cannot be attacked collaterally,15 one that can only be repudiated or
contested in a direct suit specifically brought for that purpose.16 Indeed, a
child so born in such wedlock shall be considered legitimate although the
mother may have declared against its legitimacy or may have been
sentenced as having been an adulteress.17
WHEREFORE, the foregoing disquisitions considered, the instant petition is
DENIED. No costs.
SO ORDERED.
FOOTNOTES
ART. 164. Children conceived or born during the marriage of the parents
are legitimate.
Children conceived as a result of artificial insemination of the wife the sperm
of the husband or those of a doctor or both are likewise legitimate children
of the husband and his wife. Provided, that both of them authorized or
ratified such insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be recorded in the
civil registry with the birth certificate of the child.
Article 166 of the Family Code provides:
"ART. 166 Legitimacy of a child may be impugned only on the following
grounds:
(1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child because of:
(a) the physical incapacity of the husband to have sexual intercourse with
his wife;
(b) the fact the husband and wife were living separately in such a way that
sexual intercourse was not possible; or
(b) serious illness of the husband, which absolutely prevented sexual
intercourse.
(2) That it is proved that for biological or other scientific reasons, the child
could not have been that of the husband, except in the instance provided in
the second paragraph of Article 164; or
(3) That in case of children conceived through artificial insemination, the
written authorization or ratification of either parent was obtained through
mistake, fraud, violence, intimidation, or undue influence."
Art. 170. The action to impugn the legitimacy of the child shall be brought
within one year from the knowledge of the birth or its recording in the civil
register, if the husband or, in a proper case, any of his heirs, should reside
in the city or municipality where the birth took place or was recorded.
If the husband or, in his default, all of his heirs do not reside at the place of
birth as defined in the first paragraph or where it was recorded, the period
shall be two years if they should reside in the Philippines; and three years if
abroad. If the birth of the child has been concealed from or was unknown to
the husband or his heirs, the period shall be counted from the discovery or
knowledge of the birth of the child or of the fact of registration of said birth,
whichever is earlier.1âwphi1.nêt
Art. 171. The heirs of the husband may impugn the filiation of the child
within the period prescribed in the preceding article only in the following
cases:
(1) if the husband should die before the expiration of the period fixed for
bringing his action;

Page 7 of 16
(2) if he should die after the filing of the complaint, without having desisted
therefrom; or
(3) if the child was born after the death of the husband.
Liyao, Jr. v Tanhoti-Liyao
G.R. No. 138961 March 7, 2002
WILLIAM LIYAO, JR., represented by his mother Corazon Garcia,
petitioner,
vs.
JUANITA TANHOTI-LIYAO, PEARL MARGARET L. TAN, TITA ROSE L.
TAN AND LINDA CHRISTINA LIYAO, respondents.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari assailing the decision dated
June 4, 1999 of the Court of Appeals in CA-G.R. C.V. No. 453941 which
reversed the decision of the Regional Trial Court (RTC) of Pasig, Metro
Manila, Branch 167 in declaring William Liyao, Jr. as the illegitimate
(spurious) son of the deceased William Liyao and ordering Juanita Tanhoti-
Liyao, Pearl Margaret L. Tan, Tita Rose L. Tan and Linda Christina Liyao to
recognize and acknowledge William Liyao, Jr. as a compulsory heir of the
deceased William Liyao and entitled to all successional rights as such and
to pay the costs of the suit.
On November 29,1976, William Liyao, Jr., represented by his mother
Corazon G. Garcia, filed Civil Case No. 24943 before the RTC of Pasig,
Branch 167 which is an action for compulsory recognition as "the
illegitimate (spurious) child of the late William Liyao" against herein
respondents, Juanita Tanhoti-Liyao, Pearl Margaret L. Tan, Tita Rose L.
Tan and Linda Christina Liyao.2 The complaint was later amended to
include the allegation that petitioner "was in continuous possession and
enjoyment of the status of the child of said William Liyao," petitioner having
been "recognized and acknowledged as such child by the decedent during
his lifetime."3
The facts as alleged by petitioner are as follows:
Corazon G. Garcia is legally married to but living separately from Ramon M.
Yulo for more than ten (10) years at the time of the institution of the said
civil case. Corazon cohabited with the late William Liyao from 1965 up to
the time of William’s untimely demise on December 2, 1975. They lived
together in the company of Corazon’s two (2) children from her subsisting
marriage, namely:
Enrique and Bernadette, both surnamed Yulo, in a succession of rented
houses in Quezon City and Manila. This was with the knowledge of William
Liyao’s legitimate children, Tita Rose L. Tan and Linda Christina Liyao-
Ortiga, from his subsisting marriage with Juanita Tanhoti Liyao. Tita Rose
and Christina were both employed at the Far East Realty Investment, Inc. of
which Corazon and William were then vice president and president,
respectively.
Sometime in 1974, Corazon bought a lot from Ortigas and Co. which
required the signature of her husband, Ramon Yulo, to show his consent to
the aforesaid sale. She failed to secure his signature and, had never been
in touch with him despite the necessity to meet him. Upon the advice of
William Liyao, the sale of the parcel of land located at the Valle Verde
Subdivision was registered under the name of Far East Realty Investment,
Inc.
On June 9, 1975, Corazon gave birth to William Liyao, Jr. at the Cardinal
Santos Memorial Hospital. During her three (3) day stay at the hospital,
William Liyao visited and stayed with her and the new born baby, William,
Jr. (Billy). All the medical and hospital expenses, food and clothing were
paid under the account of William Liyao. William Liyao even asked his
confidential secretary, Mrs. Virginia Rodriguez, to secure a copy of Billy’s
birth certificate. He likewise instructed Corazon to open a bank account for
Billy with the Consolidated Bank and Trust Company4 and gave weekly
amounts to be deposited therein.5 William Liyao would bring Billy to the
office, introduce him as his good looking son and had their pictures taken
together.6
During the lifetime of William Liyao, several pictures were taken showing,
among others, William Liyao and Corazon together with Billy’s godfather,
Fr. Julian Ruiz, William Liyao’s legal staff and their wives while on vacation
in Baguio.7 Corazon also presented pictures in court to prove that that she
usually accompanied William Liyao while attending various social
gatherings and other important meetings.8 During the occasion of William
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
Liyao’s last birthday on November 22, 1975 held at the Republic
Supermarket, William Liyao expressly acknowledged Billy as his son in the
presence of Fr. Ruiz, Maurita Pasion and other friends and said, "Hey, look
I am still young, I can still make a good looking son."9 Since birth, Billy had
been in continuous possession and enjoyment of the status of a recognized
and/or acknowledged child of William Liyao by the latter’s direct and overt
acts. William Liyao supported Billy and paid for his food, clothing and other
material needs. However, after William Liyao’s death, it was Corazon who
provided sole support to Billy and took care of his tuition fees at La Salle,
Greenhills. William Liyao left his personal belongings, collections, clothing,
old newspaper clippings and laminations at the house in White Plains where
he shared his last moments with Corazon.
Testifying for the petitioner, Maurita Pasion declared that she knew both
Corazon G. Garcia and William Liyao who were godparents to her children.
She used to visit Corazon and William Liyao from 1965-1975. The two
children of Corazon from her marriage to Ramon Yulo, namely, Bernadette
and Enrique (Ike), together with some housemaids lived with Corazon and
William Liyao as one family. On some occasions like birthdays or some
other celebrations, Maurita would sleep in the couple’s residence and cook
for the family. During these occasions, she would usually see William Liyao
in sleeping clothes. When Corazon, during the latter part of 1974, was
pregnant with her child Billy, Maurita often visited her three (3) to four (4)
times a week in Greenhills and later on in White Plains where she would
often see William Liyao. Being a close friend of Corazon, she was at the
Cardinal Santos Memorial Hospital during the birth of Billy. She
continuously visited them at White Plains and knew that William Liyao, while
living with her friend Corazon, gave support by way of grocery supplies,
money for household expenses and matriculation fees for the two (2) older
children, Bernadette and Enrique. During William Liyao’s birthday on
November 22, 1975 held at the Republic Supermarket Office, he was
carrying Billy and told everybody present, including his two (2) daughters
from his legal marriage, "Look, this is my son, very guapo and healthy."10
He then talked about his plan for the baptism of Billy before Christmas. He
intended to make it "engrande" and "make the bells of San Sebastian
Church ring."11 Unfortunately, this did not happen since William Liyao
passed away on December 2, 1975. Maurita attended Mr. Liyao’s funeral
and helped Corazon pack his clothes. She even recognized a short sleeved
shirt of blue and gray12 which Mr. Liyao wore in a photograph13 as well as
another shirt of lime green14 as belonging to the deceased. A note was
also presented with the following inscriptions: "To Cora, Love From
William."15 Maurita remembered having invited the couple during her
mother’s birthday where the couple had their pictures taken while exhibiting
affectionate poses with one another. Maurita knew that Corazon is still
married to Ramon Yulo since her marriage has not been annulled nor is
Corazon legally separated from her said husband. However, during the
entire cohabitation of William Liyao with Corazon Garcia, Maurita had not
seen Ramon Yulo or any other man in the house when she usually visited
Corazon.
Gloria Panopio testified that she is the owner of a beauty parlor and that
she knew that Billy is the son of her neighbors, William Liyao and Corazon
Garcia, the latter being one of her customers. Gloria met Mr. Liyao at
Corazon’s house in Scout Delgado, Quezon City in the Christmas of 1965.
Gloria had numerous occasions to see Mr. Liyao from 1966 to 1974 and
even more so when the couple transferred to White Plains, Quezon City
from 1974-1975. At the time Corazon was conceiving, Mr. Liyao was
worried that Corazon might have another miscarriage so he insisted that
she just stay in the house, play mahjong and not be bored. Gloria taught
Corazon how to play mahjong and together with Atty. Brillantes’ wife and
sister-in-law, had mahjong sessions among themselves. Gloria knew that
Mr. Liyao provided Corazon with a rented house, paid the salary of the
maids and food for Billy. He also gave Corazon financial support. Gloria
knew that Corazon is married but is separated from Ramon Yulo although
Gloria never had any occasion to see Mr. Yulo with Corazon in the house
where Mr. Liyao and Corazon lived.
Enrique Garcia Yulo testified that he had not heard from his father, Ramon
Yulo, from the time that the latter abandoned and separated from his family.
Enrique was about six (6) years old when William Liyao started to live with
them up to the time of the latter’s death on December 2, 1975. Mr. Liyao
was very supportive and fond of Enrique’s half brother, Billy. He identified
several pictures showing Mr. Liyao carrying Billy at the house as well as in
the office. Enrique’s testimony was corroborated by his sister, Bernadette
Yulo, who testified that the various pictures showing Mr. Liyao carrying Billy
could not have been superimposed and that the negatives were in the
possession of her mother, Corazon Garcia.
Respondents, on the other hand, painted a different picture of the story.
Linda Christina Liyao-Ortiga stated that her parents, William Liyao and
Juanita Tanhoti-Liyao, were legally married.16 Linda grew up and lived with
her parents at San Lorenzo Village, Makati, Metro Manila until she got

Page 8 of 16
married; that her parents were not separated legally or in fact and that there
was no reason why any of her parents would institute legal separation
proceedings in court. Her father lived at their house in San Lorenzo Village
and came home regularly. Even during out of town business trips or for
conferences with the lawyers at the office, her father would change his
clothes at home because of his personal hygiene and habits. Her father
reportedly had trouble sleeping in other people’s homes. Linda described
him as very conservative and a strict disciplinarian. He believed that no
amount of success would compensate for failure of a home. As a
businessman, he was very tough, strong, fought for what he believed in and
did not give up easily. He suffered two strokes before the fatal attack which
led to his death on December 2, 1975. He suffered a stroke at the office
sometime in April-May 1974 and was attended by Dr. Santiago Co. He then
stayed in the house for two (2) to three (3) months for his therapy and
acupuncture treatment. He could not talk, move, walk, write or sign his
name. In the meantime, Linda and her sister, Tita Rose Liyao-Tan, ran the
office. She handled the collection of rents while her sister referred legal
matters to their lawyers. William Liyao was bedridden and had personally
changed. He was not active in business and had dietary restrictions. Mr.
Liyao also suffered a milder stroke during the latter part of September to
October 1974. He stayed home for two (2) to three (3) days and went back
to work. He felt depressed, however, and was easily bored. He did not put
in long hours in the office unlike before and tried to spend more time with
his family.
Linda testified that she knew Corazon Garcia is still married to Ramon Yulo.
Corazon was not legally separated from her husband and the records from
the Local Civil Registrar do not indicate that the couple obtained any
annulment17 of their marriage. Once in 1973, Linda chanced upon Ramon
Yulo picking up Corazon Garcia at the company garage. Immediately after
the death of Linda’s father, Corazon went to Linda’s office for the return of
the former’s alleged investments with the Far East Realty Investment, Inc.
including a parcel of land sold by Ortigas and Company. Linda added that
Corazon, while still a Vice-President of the company, was able to take out
documents, clothes and several laminated pictures of William Liyao from
the office. There was one instance when she was told by the guards, "Mrs.
Yulo is leaving and taking out things again."18 Linda then instructed the
guards to bring Mrs. Yulo to the office upstairs but her sister, Tita Rose,
decided to let Corazon Garcia go. Linda did not recognize any article of
clothing which belonged to her father after having been shown three (3)
large suit cases full of men’s clothes, underwear, sweaters, shorts and
pajamas.
Tita Rose Liyao-Tan testified that her parents were legally married and had
never been separated. They resided at No. 21 Hernandez Street, San
Lorenzo Village, Makati up to the time of her father’s death on December 2,
1975.19 Her father suffered two (2) minor cardio-vascular arrests (CVA)
prior to his death. During the first heart attack sometime between April and
May 1974, his speech and hands were affected and he had to stay home
for two (2) to three (3) months under strict medication, taking aldomet,
serpadil and cifromet which were prescribed by Dr. Bonifacio Yap, for high
blood pressure and cholesterol level control.20 Tita Rose testified that after
the death of Mr. Liyao, Corazon Garcia was paid the amount of One
Hundred Thousand Pesos (₱100,000.00) representing her investment in the
Far East Realty Investment Inc. Tita Rose also stated that her family never
received any formal demand that they recognize a certain William Liyao, Jr.
as an illegitimate son of her father, William Liyao. After assuming the
position of President of the company, Tita Rose did not come across any
check signed by her late father representing payment to lessors as rentals
for the house occupied by Corazon Garcia. Tita Rose added that the
laminated photographs presented by Corazon Garcia are the personal
collection of the deceased which were displayed at the latter’s office.
The last witness who testified for the respondents was Ramon Pineda,
driver and bodyguard of William Liyao from 1962 to 1974, who said that he
usually reported for work at San Lorenzo Village, Makati to pick up his boss
at 8:00 o’clock in the morning. At past 7:00 o’clock in the evening, either
Carlos Palamigan or Serafin Villacillo took over as night shift driver.
Sometime between April and May 1974, Mr. Liyao got sick. It was only after
a month that he was able to report to the office. Thereafter, Mr. Liyao was
not able to report to the office regularly. Sometime in September 1974, Mr.
Liyao suffered from another heart attack. Mr. Pineda added that as a driver
and bodyguard of Mr. Liyao, he ran errands for the latter among which was
buying medicine for him like capasid and aldomet. On December 2, 1975,
Mr. Pineda was called inside the office of Mr. Liyao. Mr. Pineda saw his
employer leaning on the table. He tried to massage Mr. Liyao’s breast and
decided later to carry and bring him to the hospital but Mr. Liyao died upon
arrival thereat. Mrs. Liyao and her daughter, Linda Liyao-Ortiga were the
first to arrive at the hospital.
Mr. Pineda also declared that he knew Corazon Garcia to be one of the
employees of the Republic Supermarket. People in the office knew that she
was married. Her husband, Ramon Yulo, would sometimes go to the office.
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
One time, in 1974, Mr. Pineda saw Ramon Yulo at the office garage as if to
fetch Corazon Garcia. Mr. Yulo who was also asking about cars for sale,
represented himself as car dealer.
Witness Pineda declared that he did not know anything about the claim of
Corazon. He freely relayed the information that he saw Mr. Yulo in the
garage of Republic Supermarket once in 1973 and then in 1974 to Atty.
Quisumbing when he went to the latter’s law office. Being the driver of Mr.
Liyao for a number of years, Pineda said that he remembered having driven
the group of Mr. Liyao, Atty. Astraquillo, Atty. Brillantes, Atty. Magno and
Atty. Laguio to Baguio for a vacation together with the lawyers’ wives.
During his employment, as driver of Mr. Liyao, he does not remember
driving for Corazon Garcia on a trip to Baguio or for activities like shopping.
On August 31, 1993, the trial court rendered a decision, the dispositive
portion of which reads as follows:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendants as follows:
(a) Confirming the appointment of Corazon G. Garcia as the guardian ad
litem of the minor William Liyao, Jr.;
(b) Declaring the minor William Liyao, Jr. as the illegitimate (spurious) son
of the deceased William Liyao;
(c) Ordering the defendants Juanita Tanhoti Liyao, Pearl Margaret L. Tan,
Tita Rose L. Tan and Christian Liyao, to recognize, and acknowledge the
minor William Liyao, Jr. as a compulsory heir of the deceased William
Liyao, entitled to all succesional rights as such; and
(d) Costs of suit.21
In ruling for herein petitioner, the trial court said it was convinced by
preponderance of evidence that the deceased William Liyao sired William
Liyao, Jr. since the latter was conceived at the time when Corazon Garcia
cohabited with the deceased. The trial court observed that herein petitioner
had been in continuous possession and enjoyment of the status of a child of
the deceased by direct and overt acts of the latter such as securing the birth
certificate of petitioner through his confidential secretary, Mrs. Virginia
Rodriguez; openly and publicly acknowledging petitioner as his son;
providing sustenance and even introducing herein petitioner to his
legitimate children.
The Court of Appeals, however, reversed the ruling of the trial court saying
that the law favors the legitimacy rather than the illegitimacy of the child and
"the presumption of legitimacy is thwarted only on ethnic ground and by
proof that marital intimacy between husband and wife was physically
impossible at the period cited in Article 257 in relation to Article 255 of the
Civil Code." The appellate court gave weight to the testimonies of some
witnesses for the respondents that Corazon Garcia and Ramon Yulo who
were still legally married and have not secured legal separation, were seen
in each other’s company during the supposed time that Corazon cohabited
with the deceased William Liyao. The appellate court further noted that the
birth certificate and the baptismal certificate of William Liyao, Jr. which were
presented by petitioner are not sufficient to establish proof of paternity in the
absence of any evidence that the deceased, William Liyao, had a hand in
the preparation of said certificates and considering that his signature does
not appear thereon. The Court of Appeals stated that neither do family
pictures constitute competent proof of filiation. With regard to the passbook
which was presented as evidence for petitioner, the appellate court
observed that there was nothing in it to prove that the same was opened by
William Liyao for either petitioner or Corazon Garcia since William Liyao’s
signature and name do not appear thereon.
His motion for reconsideration having been denied, petitioner filed the
present petition.
It must be stated at the outset that both petitioner and respondents have
raised a number of issues which relate solely to the sufficiency of evidence
presented by petitioner to establish his claim of filiation with the late William
Liyao. Unfortunately, both parties have consistently overlooked the real crux
of this litigation: May petitioner impugn his own legitimacy to be able to
claim from the estate of his supposed father, William Liyao?
We deny the present petition.
Under the New Civil Code, a child born and conceived during a valid
marriage is presumed to be legitimate.22 The presumption of legitimacy of
children does not only flow out from a declaration contained in the statute
but is based on the broad principles of natural justice and the supposed
virtue of the mother. The presumption is grounded in a policy to protect
innocent offspring from the odium of illegitimacy.23

Page 9 of 16
The presumption of legitimacy of the child, however, is not conclusive and
consequently, may be overthrown by evidence to the contrary. Hence,
Article 255 of the New Civil Code24 provides:
Article 255. Children born after one hundred and eighty days following the
celebration of the marriage, and before three hundred days following its
dissolution or the separation of the spouses shall be presumed to be
legitimate.
Against this presumption no evidence shall be admitted other than that of
the physical impossibility of the husband having access to his wife within
the first one hundred and twenty days of the three hundred which preceded
the birth of the child.
This physical impossibility may be caused:
1) By the impotence of the husband;
2) By the fact that husband and wife were living separately in such a way
that access was not possible;
3) By the serious illness of the husband.
Petitioner insists that his mother, Corazon Garcia, had been living
separately for ten (10) years from her husband, Ramon Yulo, at the time
that she cohabited with the late William Liyao and it was physically
impossible for her to have sexual relations with Ramon Yulo when petitioner
was conceived and born. To bolster his claim, petitioner presented a
document entitled, "Contract of Separation,"25 executed and signed by
Ramon Yulo indicating a waiver of rights to any and all claims on any
property that Corazon Garcia might acquire in the future.26
The fact that Corazon Garcia had been living separately from her husband,
Ramon Yulo, at the time petitioner was conceived and born is of no
moment. While physical impossibility for the husband to have sexual
intercourse with his wife is one of the grounds for impugning the legitimacy
of the child, it bears emphasis that the grounds for impugning the legitimacy
of the child mentioned in Article 255 of the Civil Code may only be invoked
by the husband, or in proper cases, his heirs under the conditions set forth
under Article 262 of the Civil Code.27 Impugning the legitimacy of the child
is a strictly personal right of the husband, or in exceptional cases, his heirs
for the simple reason that he is the one directly confronted with the scandal
and ridicule which the infidelity of his wife produces and he should be the
one to decide whether to conceal that infidelity or expose it in view of the
moral and economic interest involved.28 It is only in exceptional cases that
his heirs are allowed to contest such legitimacy. Outside of these cases,
none - even his heirs - can impugn legitimacy; that would amount o an insult
to his memory.29
It is therefor clear that the present petition initiated by Corazon G. Garcia as
guardian ad litem of the then minor, herein petitioner, to compel recognition
by respondents of petitioner William Liyao, Jr, as the illegitimate son of the
late William Liyao cannot prosper. It is settled that a child born within a valid
marriage is presumed legitimate even though the mother may have
declared against its legitimacy or may have been sentenced as an
adulteress.30 We cannot allow petitioner to maintain his present petition
and subvert the clear mandate of the law that only the husband, or in
exceptional circumstances, his heirs, could impugn the legitimacy of a child
born in a valid and subsisting marriage. The child himself cannot choose his
own filiation. If the husband, presumed to be the father does not impugn the
legitimacy of the child, then the status of the child is fixed, and the latter
cannot choose to be the child of his mother’s alleged paramour. On the
other hand, if the presumption of legitimacy is overthrown, the child cannot
elect the paternity of the husband who successfully defeated the
presumption.31
Do the acts of Enrique and Bernadette Yulo, the undisputed children of
Corazon Garcia with Ramon Yulo, in testifying for herein petitioner amount
to impugnation of the legitimacy of the latter?
We think not. As earlier stated, it is only in exceptional cases that the heirs
of the husband are allowed to contest the legitimacy of the child. There is
nothing on the records to indicate that Ramon Yulo has already passed
away at the time of the birth of the petitioner nor at the time of the initiation
of this proceedings. Notably, the case at bar was initiated by petitioner
himself through his mother, Corazon Garcia, and not through Enrique and
Bernadette Yulo. It is settled that the legitimacy of the child can be
impugned only in a direct action brought for that purpose, by the proper
parties and within the period limited by law.1âwphi1
Considering the foregoing, we find no reason to discuss the sufficiency of
the evidence presented by both parties on the petitioner’s claim of alleged
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
filiation with the late William Liyao. In any event, there is no clear,
competent and positive evidence presented by the petitioner that his
alleged father had admitted or recognized his paternity.
WHEREFORE, the instant petition is DENIED. The assailed decision of the
Court of Appeals in CA-G.R. CV No. 45394 is hereby AFFIRMED. No costs.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.
FOOTNOTES
Article 255 of the Civil Code provides, "Children born after one hundred and
eighty days following the celebration of the marriage, and before three
hundred days following its dissolution or the separation of the spouses shall
be presumed to be legitimate. xxx" Article 258 of the Civil Code also
provides, "A child born within one hundred eighty days following the
celebration of the marriage is prima facie presumed to be legitimate. x x x"
A similar provision is now found in Article 164 of the Family Code which
reads "Children conceived or born during the marriage of the parents are
legitimate. Children conceived as a result of artificial insemination of the
wife with the sperm of the husband or that of a donor are likewise legitimate
children of the husband and his wife, provided that both of them authorized
or ratified such insemination in a written instrument executed and signed by
them before the birth of the child. The instrument shall be recorded in the
civil registry together with the birth certificate of the child."
Concepcion v CA
G.R. No. 123450. August 31, 2005
GERARDO B. CONCEPCION, Petitioners,
vs.
COURT OF APPEALS and MA. THERESA ALMONTE, Respondent.
DECISION
CORONA, J.:
The child, by reason of his mental and physical immaturity, needs special
safeguard and care, including appropriate legal protection before as well as
after birth.1 In case of assault on his rights by those who take advantage of
his innocence and vulnerability, the law will rise in his defense with the
single-minded purpose of upholding only his best interests.
This is the story of petitioner Gerardo B. Concepcion and private
respondent Ma. Theresa Almonte, and a child named Jose Gerardo.
Gerardo and Ma. Theresa were married on December 29, 1989.2 After their
marriage, they lived with Ma. Theresa’s parents in Fairview, Quezon City.3
Almost a year later, on December 8, 1990, Ma. Theresa gave birth to Jose
Gerardo.4
Gerardo and Ma. Theresa’s relationship turned out to be short-lived,
however. On December 19, 1991, Gerardo filed a petition to have his
marriage to Ma. Theresa annulled on the ground of bigamy.5 He alleged
that nine years before he married Ma. Theresa on December 10, 1980, she
had married one Mario Gopiao, which marriage was never annulled.6
Gerardo also found out that Mario was still alive and was residing in Loyola
Heights, Quezon City.7
Ma. Theresa did not deny marrying Mario when she was twenty years old.
She, however, averred that the marriage was a sham and that she never
lived with Mario at all.8
The trial court ruled that Ma. Theresa’s marriage to Mario was valid and
subsisting when she married Gerardo and annulled her marriage to the
latter for being bigamous. It declared Jose Gerardo to be an illegitimate
child as a result. The custody of the child was awarded to Ma. Theresa
while Gerardo was granted visitation rights.9
Ma. Theresa felt betrayed and humiliated when Gerardo had their marriage
annulled. She held him responsible for the ‘bastardization’ of Gerardo. She
moved for the reconsideration of the above decision "INSOFAR ONLY as
that portion of the … decision which grant(ed) to the petitioner so-called
‘visitation rights’… between the hours of 8 in the morning to 12:00 p.m. of
any Sunday."10 She argued that there was nothing in the law granting
"visitation rights in favor of the putative father of an illegitimate child."11 She
further maintained that Jose Gerardo’s surname should be changed from
Concepcion to Almonte, her maiden name, following the rule that an
illegitimate child shall use the mother’s surname.
Gerardo opposed the motion. He insisted on his visitation rights and the
retention of ‘Concepcion’ as Jose Gerardo’s surname.

Page 10 of 16
Applying the "best interest of the child" principle, the trial court denied Ma.
Theresa’s motion and made the following observations:
It is a pity that the parties herein seem to be using their son to get at or to
hurt the other, something they should never do if they want to assure the
normal development and well-being of the boy.
The Court allowed visitorial rights to the father knowing that the minor
needs a father, especially as he is a boy, who must have a father figure to
recognize – something that the mother alone cannot give. Moreover, the
Court believes that the emotional and psychological well-being of the boy
would be better served if he were allowed to maintain relationships with his
father.
There being no law which compels the Court to act one way or the other on
this matter, the Court invokes the provision of Art. 8, PD 603 as amended,
otherwise known as the Child and Youth Welfare Code, to wit:
"In all questions regarding the care, custody, education and property of the
child, his welfare shall be the paramount consideration."
WHEREFORE, the respondent’s Motion for Reconsideration has to be, as it
is hereby DENIED.12
Ma. Theresa elevated the case to the Court of Appeals, assigning as error
the ruling of the trial court granting visitation rights to Gerardo. She likewise
opposed the continued use of Gerardo’s surname (Concepcion) despite the
fact that Jose Gerardo had already been declared illegitimate and should
therefore use her surname (Almonte). The appellate court denied the
petition and affirmed in toto the decision of the trial court.13
On the issue raised by Ma. Theresa that there was nothing in the law that
granted a putative father visitation rights over his illegitimate child, the
appellate court affirmed the "best interest of the child" policy invoked by the
court a quo. It ruled that "[a]t bottom, it (was) the child’s welfare and not the
convenience of the parents which (was) the primary consideration in
granting visitation rights a few hours once a week."14
The appellate court likewise held that an illegitimate child cannot use the
mother’s surname motu proprio. The child, represented by the mother,
should file a separate proceeding for a change of name under Rule 103 of
the Rules of Court to effect the correction in the civil registry.15
Undaunted, Ma. Theresa moved for the reconsideration of the adverse
decision of the appellate court. She also filed a motion to set the case for
oral arguments so that she could better ventilate the issues involved in the
controversy.
After hearing the oral arguments of the respective counsels of the parties,
the appellate court resolved the motion for reconsideration. It reversed its
earlier ruling and held that Jose Gerardo was not the son of Ma. Theresa by
Gerardo but by Mario during her first marriage:
It is, therefore, undeniable – established by the evidence in this case – that
the appellant [Ma. Theresa] was married to Mario Gopiao, and that she had
never entered into a lawful marriage with the appellee [Gerardo] since the
so-called "marriage" with the latter was void ab initio. It was [Gerardo]
himself who had established these facts. In other words, [Ma. Theresa] was
legitimately married to Mario Gopiao when the child Jose Gerardo was born
on December 8, 1990. Therefore, the child Jose Gerardo – under the law –
is the legitimate child of the legal and subsisting marriage between [Ma.
Theresa] and Mario Gopiao; he cannot be deemed to be the illegitimate
child of the void and non-existent ‘marriage’ between [Ma. Theresa] and
[Gerardo], but is said by the law to be the child of the legitimate and existing
marriage between [Ma. Theresa] and Mario Gopiao (Art. 164, Family Code).
Consequently, [she] is right in firmly saying that [Gerardo] can claim neither
custody nor visitorial rights over the child Jose Gerardo. Further, [Gerardo]
cannot impose his name upon the child. Not only is it without legal basis
(even supposing the child to be his illegitimate child [Art. 146, The Family
Code]); it would tend to destroy the existing marriage between [Ma.
Theresa] and Gopiao, would prevent any possible rapproachment between
the married couple, and would mean a judicial seal upon an illegitimate
relationship.16
The appellate court brushed aside the common admission of Gerardo and
Ma. Theresa that Jose Gerardo was their son. It gave little weight to Jose
Gerardo’s birth certificate showing that he was born a little less than a year
after Gerardo and Ma. Theresa were married:
We are not unaware of the movant’s argument that various evidence exist
that appellee and the appellant have judicially admitted that the minor is
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
their natural child. But, in the same vein, We cannot overlook the fact that
Article 167 of the Family Code mandates:
"The child shall be considered legitimate although the mother may have
declared against its legitimacy or may have been sentenced as an
adulteress." (underscoring ours)
Thus, implicit from the above provision is the fact that a minor cannot be
deprived of his/her legitimate status on the bare declaration of the mother
and/or even much less, the supposed father. In fine, the law and only the
law determines who are the legitimate or illegitimate children for one’s
legitimacy or illegitimacy cannot ever be compromised. Not even the birth
certificate of the minor can change his status for the information contained
therein are merely supplied by the mother and/or the supposed father. It
should be what the law says and not what a parent says it is.17 (Emphasis
supplied)
Shocked and stunned, Gerardo moved for a reconsideration of the above
decision but the same was denied.18 Hence, this appeal.
The status and filiation of a child cannot be compromised.19 Article 164 of
the Family Code is clear. A child who is conceived or born during the
marriage of his parents is legitimate.20
As a guaranty in favor of the child21 and to protect his status of legitimacy,
Article 167 of the Family Code provides:
Article 167. The child shall be considered legitimate although the mother
may have declared against its legitimacy or may have been sentenced as
an adulteress.
The law requires that every reasonable presumption be made in favor of
legitimacy.22 We explained the rationale of this rule in the recent case of
Cabatania v. Court of Appeals23 :
The presumption of legitimacy does not only flow out of a declaration in the
statute but is based on the broad principles of natural justice and the
supposed virtue of the mother. It is grounded on the policy to protect the
innocent offspring from the odium of illegitimacy.
Gerardo invokes Article 166 (1)(b)24 of the Family Code. He cannot. He
has no standing in law to dispute the status of Jose Gerardo. Only Ma.
Theresa’s husband Mario or, in a proper case,25 his heirs, who can contest
the legitimacy of the child Jose Gerardo born to his wife.26 Impugning the
legitimacy of a child is a strictly personal right of the husband or, in
exceptional cases, his heirs.27 Since the marriage of Gerardo and Ma.
Theresa was void from the very beginning, he never became her husband
and thus never acquired any right to impugn the legitimacy of her child.
The presumption of legitimacy proceeds from the sexual union in marriage,
particularly during the period of conception.28 To overthrow this
presumption on the basis of Article 166 (1)(b) of the Family Code, it must be
shown beyond reasonable doubt that there was no access that could have
enabled the husband to father the child.29 Sexual intercourse is to be
presumed where personal access is not disproved, unless such
presumption is rebutted by evidence to the contrary.30
The presumption is quasi-conclusive and may be refuted only by the
evidence of physical impossibility of coitus between husband and wife
within the first 120 days of the 300 days which immediately preceded the
birth of the child.31
To rebut the presumption, the separation between the spouses must be
such as to make marital intimacy impossible.32 This may take place, for
instance, when they reside in different countries or provinces and they were
never together during the period of conception.33 Or, the husband was in
prison during the period of conception, unless it appears that sexual union
took place through the violation of prison regulations.34
Here, during the period that Gerardo and Ma. Theresa were living together
in Fairview, Quezon City, Mario was living in Loyola Heights which is also in
Quezon City. Fairview and Loyola Heights are only a scant four kilometers
apart.
Not only did both Ma. Theresa and Mario reside in the same city but also
that no evidence at all was presented to disprove personal access between
them. Considering these circumstances, the separation between Ma.
Theresa and her lawful husband, Mario, was certainly not such as to make
it physically impossible for them to engage in the marital act.
Sexual union between spouses is assumed. Evidence sufficient to defeat
the assumption should be presented by him who asserts the contrary.
There is no such evidence here. Thus, the presumption of legitimacy in

Page 11 of 16
favor of Jose Gerardo, as the issue of the marriage between Ma. Theresa
and Mario, stands.
Gerardo relies on Ma. Theresa’s statement in her answer35 to the petition
for annulment of marriage36 that she never lived with Mario. He claims this
was an admission that there was never any sexual relation between her and
Mario, an admission that was binding on her.
Gerardo’s argument is without merit.
First, the import of Ma. Theresa’s statement is that Jose Gerardo is not her
legitimate son with Mario but her illegitimate son with Gerardo. This
declaration ― an avowal by the mother that her child is illegitimate ― is the
very declaration that is proscribed by Article 167 of the Family Code.
The language of the law is unmistakable. An assertion by the mother
against the legitimacy of her child cannot affect the legitimacy of a child
born or conceived within a valid marriage.
Second, even assuming the truth of her statement, it does not mean that
there was never an instance where Ma. Theresa could have been together
with Mario or that there occurred absolutely no intercourse between them.
All she said was that she never lived with Mario. She never claimed that
nothing ever happened between them.
Telling is the fact that both of them were living in Quezon City during the
time material to Jose Gerardo’s conception and birth. Far from foreclosing
the possibility of marital intimacy, their proximity to each other only serves
to reinforce such possibility. Thus, the impossibility of physical access was
never established beyond reasonable doubt.
Third, to give credence to Ma. Theresa’s statement is to allow her to
arrogate unto herself a right exclusively lodged in the husband, or in a
proper case, his heirs.37 A mother has no right to disavow a child because
maternity is never uncertain.38 Hence, Ma. Theresa is not permitted by law
to question Jose Gerardo’s legitimacy.
Finally, for reasons of public decency and morality, a married woman
cannot say that she had no intercourse with her husband and that her
offspring is illegitimate.39 The proscription is in consonance with the
presumption in favor of family solidarity. It also promotes the intention of the
law to lean toward the legitimacy of children.40
Gerardo’s insistence that the filiation of Jose Gerardo was never an issue
both in the trial court and in the appellate court does not hold water. The
fact that both Ma. Theresa and Gerardo admitted and agreed that Jose
Gerardo was born to them was immaterial. That was, in effect, an
agreement that the child was illegitimate. If the Court were to validate that
stipulation, then it would be tantamount to allowing the mother to make a
declaration against the legitimacy of her child and consenting to the denial
of filiation of the child by persons other than her husband. These are the
very acts from which the law seeks to shield the child.
Public policy demands that there be no compromise on the status and
filiation of a child.41 Otherwise, the child will be at the mercy of those who
may be so minded to exploit his defenselessness.
The reliance of Gerardo on Jose Gerardo’s birth certificate is misplaced. It
has no evidentiary value in this case because it was not offered in evidence
before the trial court. The rule is that the court shall not consider any
evidence which has not been formally offered.42
Moreover, the law itself establishes the status of a child from the moment of
his birth.43 Although a record of birth or birth certificate may be used as
primary evidence of the filiation of a child,44 as the status of a child is
determined by the law itself, proof of filiation is necessary only when the
legitimacy of the child is being questioned, or when the status of a child
born after 300 days following the termination of marriage is sought to be
established.45
Here, the status of Jose Gerardo as a legitimate child was not under attack
as it could not be contested collaterally and, even then, only by the husband
or, in extraordinary cases, his heirs. Hence, the presentation of proof of
legitimacy in this case was improper and uncalled for.
In addition, a record of birth is merely prima facie evidence of the facts
contained therein.46 As prima facie evidence, the statements in the record
of birth may be rebutted by more preponderant evidence. It is not
conclusive evidence with respect to the truthfulness of the statements made
therein by the interested parties.47 Between the certificate of birth which is
prima facie evidence of Jose Gerardo’s illegitimacy and the quasi-
conclusive presumption of law (rebuttable only by proof beyond reasonable
doubt) of his legitimacy, the latter shall prevail. Not only does it bear more
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
weight, it is also more conducive to the best interests of the child and in
consonance with the purpose of the law.
It perplexes us why both Gerardo and Ma. Theresa would doggedly press
for Jose Gerardo’s illegitimacy while claiming that they both had the child’s
interests at heart. The law, reason and common sense dictate that a
legitimate status is more favorable to the child. In the eyes of the law, the
legitimate child enjoys a preferred and superior status. He is entitled to bear
the surnames of both his father and mother, full support and full
inheritance.48 On the other hand, an illegitimate child is bound to use the
surname and be under the parental authority only of his mother. He can
claim support only from a more limited group and his legitime is only half of
that of his legitimate counterpart.49 Moreover (without unwittingly
exacerbating the discrimination against him), in the eyes of society, a
‘bastard’ is usually regarded as bearing a stigma or mark of dishonor.
Needless to state, the legitimacy presumptively vested by law upon Jose
Gerardo favors his interest.
It is unfortunate that Jose Gerardo was used as a pawn in the bitter
squabble between the very persons who were passionately declaring their
concern for him. The paradox was that he was made to suffer supposedly
for his own sake. This madness should end.
This case has been pending for a very long time already. What is specially
tragic is that an innocent child is involved. Jose Gerardo was barely a year
old when these proceedings began. He is now almost fifteen and all this
time he has been a victim of incessant bickering. The law now comes to his
aid to write finis to the controversy which has unfairly hounded him since his
infancy.
Having only his best interests in mind, we uphold the presumption of his
legitimacy.
As a legitimate child, Jose Gerardo shall have the right to bear the
surnames of his father Mario and mother Ma. Theresa, in conformity with
the provisions of the Civil Code on surnames.50 A person’s surname or
family name identifies the family to which he belongs and is passed on from
parent to child.51 Hence, Gerardo cannot impose his surname on Jose
Gerardo who is, in the eyes of the law, not related to him in any way.
The matter of changing Jose Gerardo’s name and effecting the corrections
of the entries in the civil register regarding his paternity and filiation should
be threshed out in a separate proceeding.
In case of annulment or declaration of absolute nullity of marriage, Article
49 of the Family Code grants visitation rights to a parent who is deprived of
custody of his children. Such visitation rights flow from the natural right of
both parent and child to each other’s company. There being no such parent-
child relationship between them, Gerardo has no legally demandable right
to visit Jose Gerardo.
Our laws seek to promote the welfare of the child. Article 8 of PD 603,
otherwise known as the Child and Youth Welfare Code, is clear and
unequivocal:
Article 8. Child’s Welfare Paramount. – In all questions regarding the care,
custody, education and property of the child, his welfare shall be the
paramount consideration.
Article 3 (1) of the United Nations Convention on the Rights of a Child of
which the Philippines is a signatory is similarly emphatic:
Article 3
1. In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative authorities or
legislative bodies, the best interests of the child shall be a primary
consideration.
The State as parens patriae affords special protection to children from
abuse, exploitation and other conditions prejudicial to their development. It
is mandated to provide protection to those of tender years.52 Through its
laws, the State safeguards them from every one, even their own parents, to
the end that their eventual development as responsible citizens and
members of society shall not be impeded, distracted or impaired by family
acrimony. This is especially significant where, as in this case, the issue
concerns their filiation as it strikes at their very identity and lineage.
WHEREFORE, the petition is hereby DENIED. The September 14, 1995
and January 10, 1996 resolutions of the Court of Appeals in CA-G.R. CV
No. 40651 are hereby AFFIRMED.
Costs against petitioner.

Page 12 of 16
SO ORDERED.
Panganiban, (Chairman), Sandoval-Gutierrez, and Garcia, JJ., concur.
Carpio-Morales, J., no part.
FOOTNOTES
Further, under Article 54 of the Family Code, a child who was conceived or
born before the judgment of annulment or of absolute nullity of the marriage
on the ground of psychological incapacity has become final and executory
shall be considered legitimate. It also provides that a child who was born
from a subsequent void marriage as a result of the failure of the contracting
parties to comply with the mandatory provisions of Articles 52 and 53 of the
Family Code shall likewise be considered legitimate.
Article 166. Legitimacy of a child may be impugned only on the following
grounds:
(1) That it was physically impossible for the husband to have sexual
intercourse with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child because of:
xxxxxxxxx
(b) the fact that the husband and wife were living separately in such a way
that sexual intercourse was not possible; or
xxxxxxxxx
25 Article 171 provides for the instances where the heirs of the husband
may impugn the filiation of the child. Thus:
Article 171. The heirs of the husband may impugn the filiation of the child
within the period prescribed in the preceding article only in the following
cases:
(1) If the husband should die before the expiration of the period fixed for
bringing his action;
(2) If he should die after the filing of the complaint without having desisted
therefrom; or
(3) If the child was born after the death of the husband.
Cf. Article 220 of the Civil Code. It provides:
Art. 220. In case of doubt, all presumptions favor the solidarity of the family.
Thus, every intendment of law or fact leans toward the validity of marriage,
the indissolubility of the marriage bonds, the legitimacy of children, the
community of property during marriage, the authority of parents over the
children, and the validity of defense for any member of family in case of
unlawful aggression.
While this provision of the Civil Code may have been omitted in the Family
Code, the principles they contain are valid norms in family relations and in
cases involving family members. They are even already embodied in
jurisprudence. (Tolentino, supra, p. 506)
41 Supra at note 19.
42 Section 34, Rule 132, Rules of Court.
43 Tolentino, supra, p. 539; Sempio-Diy, Alicia, Handbook on the Family
Code of the Philippines, 1995 edition, p. 275.
44 Articles 172 and 175, Family Code. Article 172 states:
Article 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
(2) Any other means allowed by the Rules of Court and special laws.
On the other hand, Article 175 provides:
Article 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
xxxxxxxxx
Article 174, Family Code provides:
Article 174. Legitimate children shall have the right:
(1) To bear the surnames of the father and the mother, in conformity with
the provisions of the Civil Code on Surnames;
(2) To receive support from their parents, their ascendants, and in proper
cases, their brothers and sisters, in conformity with the provisions of this
Code on Support; and
(3) To be entitled to the legitime and other successional rights granted to
them by the Civil Code.
49 Article 176, Family Code states:
Article 176. Illegitimate children shall use the surname and shall be under
the parental authority of their mother, and shall be entitled to support in
conformity with this Code. The legitime of each illegitimate child shall
consist of one-half of the legitime of a legitimate child. Except for this
modification, all other provisions in the Civil Code governing successional
rights shall remain in force.
Ong v Diaz
G.R. No. 171713 December 17, 2007
ESTATE OF ROGELIO G. ONG, petitioner,
vs.
Minor JOANNE RODJIN DIAZ, Represented by Her Mother and Guardian,
Jinky C. Diaz, respondent.
DECISION
CHICO-NAZARIO, J.:
This is a petition for Review on Certiorari under Rule 45 of the Revised
Rules of Civil Procedure assailing (1) the Decision1 of the Court of Appeals
dated 23 November 2005 and (2) the Resolution2 of the same court dated 1
March 2006 denying petitioner’s Motion for Reconsideration in CA-G.R. CV
No. 70125.
A Complaint3 for compulsory recognition with prayer for support pending
litigation was filed by minor Joanne Rodjin Diaz (Joanne), represented by
her mother and guardian, Jinky C. Diaz (Jinky), against Rogelio G. Ong
(Rogelio) before the Regional Trial Court (RTC) of Tarlac City. In her
Complaint, Jinky prayed that judgment be rendered:
(a) Ordering defendant to recognize plaintiff Joanne Rodjin Diaz as his
daughter.
(b) Ordering defendant to give plaintiff monthly support of P20,000.00
pendente lite and thereafter to fix monthly support.
(c) Ordering the defendant to pay plaintiff attorney’s fees in the sum of
P100,000.00.
(d) Granting plaintiff such other measure of relief as maybe just and
equitable in the premises.4
As alleged by Jinky in her Complaint in November 1993 in Tarlac City, she
and Rogelio got acquainted. This developed into friendship and later
blossomed into love. At this time, Jinky was already married to a Japanese
national, Hasegawa Katsuo, in a civil wedding solemnized on 19 February
1993 by Municipal Trial Court Judge Panfilo V. Valdez.5
From January 1994 to September 1998, Jinky and Rogelio cohabited and
lived together at Fairlane Subdivision, and later at Capitol Garden, Tarlac
City.
From this live-in relationship, minor Joanne Rodjin Diaz was conceived and
on 25 February 1998 was born at the Central Luzon Doctors’ Hospital,
Tarlac City.

Page 13 of 16
Rogelio brought Jinky to the hospital and took minor Joanne and Jinky
home after delivery. Rogelio paid all the hospital bills and the baptismal
expenses and provided for all of minor Joanne’s needs – recognizing the
child as his.
In September 1998, Rogelio abandoned minor Joanne and Jinky, and
stopped supporting minor Joanne, falsely alleging that he is not the father of
the child.
Rogelio, despite Jinky’s remonstrance, failed and refused and continued
failing and refusing to give support for the child and to acknowledge her as
his daughter, thus leading to the filing of the heretofore adverted complaint.
After summons had been duly served upon Rogelio, the latter failed to file
any responsive pleading despite repeated motions for extension, prompting
the trial court to declare him in default in its Order dated 7 April 1999.
Rogelio’s Answer with Counterclaim and Special and Affirmative Defenses
was received by the trial court only on 15 April 1999. Jinky was allowed to
present her evidence ex parte on the basis of which the trial court on 23
April 1999 rendered a decision granting the reliefs prayed for in the
complaint.
In its Decision6 dated 23 April 1999, the RTC held:
WHEREFORE, judgment is hereby rendered:
1. Ordering defendant to recognize plaintiff as his natural child;
2. Ordering defendant to provide plaintiff with a monthly support of
P10,000.00 and further
3. Ordering defendant to pay reasonable attorney’s fees in the amount of
P5,000.00 and the cost of the suit.
On 28 April 1999, Rogelio filed a motion to lift the order of default and a
motion for reconsideration seeking the court’s understanding, as he was
then in a quandary on what to do to find a solution to a very difficult problem
of his life.7
On 29 April 1999, Rogelio filed a motion for new trial with prayer that the
decision of the trial court dated 23 April 1999 be vacated and the case be
considered for trial de novo pursuant to the provisions of Section 6, Rule 37
of the 1997 Rules of Civil Procedure.8
On 16 June 1999, the RTC issued an Order granting Rogelio’s Motion for
New Trial:
WHEREFORE, finding defendant’s motion for new trial to be impressed with
merit, the same is hereby granted.
The Order of this court declaring defendant in default and the decision is
this court dated April 23, 1999 are hereby set aside but the evidence
adduced shall remain in record, subject to cross-examination by defendant
at the appropriate stage of the proceedings.
In the meantime defendant’s answer is hereby admitted, subject to the right
of plaintiff to file a reply and/or answer to defendant’s counterclaim within
the period fixed by the Rules of Court.
Acting on plaintiff’s application for support pendente lite which this court
finds to be warranted, defendant is hereby ordered to pay to plaintiff
immediately the sum of P2,000.00 a month from January 15, 1999 to May
1999 as support pendente lite in arrears and the amount of P4,000.00 every
month thereafter as regular support pendente lite during the pendency of
this case.9
The RTC finally held:
The only issue to be resolved is whether or not the defendant is the father
of the plaintiff Joanne Rodjin Diaz.
Since it was duly established that plaintiff’s mother Jinky Diaz was married
at the time of the birth of Joanne Rodjin Diaz, the law presumes that Joanne
is a legitimate child of the spouses Hasegawa Katsuo and Jinky Diaz
(Article 164, Family Code). The child is still presumed legitimate even if the
mother may have declared against her legitimacy (Article 167, Ibid).
The legitimacy of a child may be impugned only on the following grounds
provided for in Article 166 of the same Code. Paragraph 1 of the said Article
provides that there must be physical impossibility for the husband to have
sexual intercourse with the wife within the first 120 days of the 300 days
following the birth of the child because of –
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
a) physical incapacity of the husband to have sexual intercourse with his
wife;
b) husband and wife were living separately in such a way that sexual
intercourse was not possible;
c) serious illness of the husband which prevented sexual intercourse.
It was established by evidence that the husband is a Japanese national and
that he was living outside of the country (TSN, Aug. 27, 1999, page 5) and
he comes home only once a year. Both evidence of the parties proved that
the husband was outside the country and no evidence was shown that he
ever arrived in the country in the year 1997 preceding the birth of plaintiff
Joanne Rodjin Diaz.
While it may also be argued that plaintiff Jinky had a relationship with
another man before she met the defendant, there is no evidence that she
also had sexual relations with other men on or about the conception of
Joanne Rodjin. Joanne Rodjin was her second child (see Exh. "A"), so her
first child, a certain Nicole (according to defendant) must have a different
father or may be the son of Hasegawa K[u]tsuo.
The defendant admitted having been the one who shouldered the hospital
bills representing the expenses in connection with the birth of plaintiff. It is
an evidence of admission that he is the real father of plaintiff. Defendant
also admitted that even when he stopped going out with Jinky, he and Jinky
used to go to motels even after 1996. Defendant also admitted that on
some instances, he still used to see Jinky after the birth of Joanne Rodjin.
Defendant was even the one who fetched Jinky after she gave birth to
Joanne.
On the strength of this evidence, the Court finds that Joanne Rodjin is the
child of Jinky and defendant Rogelio Ong and it is but just that the latter
should support plaintiff.10
On 15 December 2000, the RTC rendered a decision and disposed:
WHEREFORE, judgment is hereby rendered declaring Joanne Rodjin Diaz
to be the illegitimate child of defendant Rogelio Ong with plaintiff Jinky Diaz.
The Order of this Court awarding support pendente lite dated June 15,
1999, is hereby affirmed and that the support should continue until Joanne
Rodjin Diaz shall have reached majority age.11
Rogelio filed a Motion for Reconsideration, which was denied for lack of
merit in an Order of the trial court dated 19 January 2001.12 From the
denial of his Motion for Reconsideration, Rogelio appealed to the Court of
Appeals. After all the responsive pleadings had been filed, the case was
submitted for decision and ordered re-raffled to another Justice for study
and report as early as 12 July 2002.13
During the pendency of the case with the Court of Appeals, Rogelio’s
counsel filed a manifestation informing the Court that Rogelio died on 21
February 2005; hence, a Notice of Substitution was filed by said counsel
praying that Rogelio be substituted in the case by the Estate of Rogelio
Ong,14 which motion was accordingly granted by the Court of Appeals.15
In a Decision dated 23 November 2005, the Court of Appeals held:
WHEREFORE, premises considered, the present appeal is hereby
GRANTED. The appealed Decision dated December 15, 2000 of the
Regional Trial Court of Tarlac, Tarlac, Branch 63 in Civil Case No. 8799 is
hereby SET ASIDE. The case is hereby REMANDED to the court a quo for
the issuance of an order directing the parties to make arrangements for
DNA analysis for the purpose of determining the paternity of plaintiff minor
Joanne Rodjin Diaz, upon consultation and in coordination with laboratories
and experts on the field of DNA analysis.
No pronouncement as to costs.16
Petitioner filed a Motion for Reconsideration which was denied by the Court
of Appeals in a Resolution dated 1 March 2006.
In disposing as it did, the Court of Appeals justified its Decision as follows:
In this case, records showed that the late defendant-appellant Rogelio G.
Ong, in the early stage of the proceedings volunteered and suggested that
he and plaintiff’s mother submit themselves to a DNA or blood testing to
settle the issue of paternity, as a sign of good faith. However, the trial court
did not consider resorting to this modern scientific procedure
notwithstanding the repeated denials of defendant that he is the biological
father of the plaintiff even as he admitted having actual sexual relations with
plaintiff’s mother. We believe that DNA paternity testing, as current

Page 14 of 16
jurisprudence affirms, would be the most reliable and effective method of
settling the present paternity dispute. Considering, however, the untimely
demise of defendant-appellant during the pendency of this appeal, the trial
court, in consultation with out laboratories and experts on the field of DNA
analysis, can possibly avail of such procedure with whatever remaining
DNA samples from the deceased defendant alleged to be the putative
father of plaintiff minor whose illegitimate filiations is the subject of this
action for support.17
Hence, this petition which raises the following issues for resolution:
I
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID
NOT DISMISS RESPONDENT’S COMPLAINT FOR COMPULSORY
RECOGNITION DESPITE ITS FINDING THAT THE EVIDENCE
PRESENTED FAILED TO PROVE THAT ROGELIO G. ONG WAS HER
FATHER.
II
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT DID
NOT DECLARE RESPONDENT AS THE LEGITIMATE CHILD OF JINKY
C. DIAZ AND HER JAPANESE HUSBAND, CONSIDERING THAT
RESPONDENT FAILED TO REBUT THE PRESUMPTION OF HER
LEGITIMACY.
III
WHETHER OR NOT THE COURT OF APPEALS ERRED WHEN IT
REMANDED THE CASE TO THE COURT A QUO FOR DNA ANALYSIS
DESPITE THE FACT THAT IT IS NO LONGER FEASIBLE DUE TO THE
DEATH OF ROGELIO G. ONG.18
Petitioner prays that the present petition be given due course and the
Decision of the Court of Appeals dated November 23, 2005 be modified, by
setting aside the judgment remanding the case to the trial court for DNA
testing analysis, by dismissing the complaint of minor Joanne for
compulsory recognition, and by declaring the minor as the legitimate child of
Jinky and Hasegawa Katsuo.19
From among the issues presented for our disposition, this Court finds it
prudent to concentrate its attention on the third one, the propriety of the
appellate court’s decision remanding the case to the trial court for the
conduct of DNA testing. Considering that a definitive result of the DNA
testing will decisively lay to rest the issue of the filiation of minor Joanne, we
see no reason to resolve the first two issues raised by the petitioner as they
will be rendered moot by the result of the DNA testing.
As a whole, the present petition calls for the determination of filiation of
minor Joanne for purposes of support in favor of the said minor.
Filiation proceedings are usually filed not just to adjudicate paternity but
also to secure a legal right associated with paternity, such as citizenship,
support (as in the present case), or inheritance. The burden of proving
paternity is on the person who alleges that the putative father is the
biological father of the child. There are four significant procedural aspects of
a traditional paternity action which parties have to face: a prima facie case,
affirmative defenses, presumption of legitimacy, and physical resemblance
between the putative father and child.20
A child born to a husband and wife during a valid marriage is presumed
legitimate.21 As a guaranty in favor of the child and to protect his status of
legitimacy, Article 167 of the Family Code provides:
Article 167. The children shall be considered legitimate although the mother
may have declared against its legitimacy or may have been sentenced as
an adulteress.
The law requires that every reasonable presumption be made in favor of
legitimacy. We explained the rationale of this rule in the recent case of
Cabatania v. Court of Appeals22:
The presumption of legitimacy does not only flow out of a declaration in the
statute but is based on the broad principles of natural justice and the
supposed virtue of the mother. The presumption is grounded on the policy
to protect the innocent offspring from the odium of illegitimacy.
The presumption of legitimacy of the child, however, is not conclusive and
consequently, may be overthrown by evidence to the contrary. Hence,
Article 255 of the New Civil Code23 provides:
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
Article 255. Children born after one hundred and eighty days following the
celebration of the marriage, and before three hundred days following its
dissolution or the separation of the spouses shall be presumed to be
legitimate.
Against this presumption no evidence shall be admitted other than that of
the physical impossibility of the husband’s having access to his wife within
the first one hundred and twenty days of the three hundred which preceded
the birth of the child.
This physical impossibility may be caused:
1) By the impotence of the husband;
2) By the fact that husband and wife were living separately in such a way
that access was not possible;
3) By the serious illness of the husband.24
The relevant provisions of the Family Code provide as follows:
ART. 172. The filiation of legitimate children is established by any of the
following:
(1) The record of birth appearing in the civil register or a final judgment; or
(2) An admission of legitimate filiation in a public document or a private
handwritten instrument and signed by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation shall be
proved by:
(1) The open and continuous possession of the status of a legitimate child;
or
(2) Any other means allowed by the Rules of Court and special laws.
ART. 175. Illegitimate children may establish their illegitimate filiation in the
same way and on the same evidence as legitimate children.
There had been divergent and incongruent statements and assertions
bandied about by the parties to the present petition. But with the
advancement in the field of genetics, and the availability of new technology,
it can now be determined with reasonable certainty whether Rogelio is the
biological father of the minor, through DNA testing.
DNA is the fundamental building block of a person’s entire genetic make-up.
DNA is found in all human cells and is the same in every cell of the same
person. Genetic identity is unique. Hence, a person’s DNA profile can
determine his identity.25
DNA analysis is a procedure in which DNA extracted from a biological
sample obtained from an individual is examined. The DNA is processed to
generate a pattern, or a DNA profile, for the individual from whom the
sample is taken. This DNA profile is unique for each person, except for
identical twins.
Everyone is born with a distinct genetic blueprint called DNA
(deoxyribonucleic acid). It is exclusive to an individual (except in the rare
occurrence of identical twins that share a single, fertilized egg), and DNA is
unchanging throughout life. Being a component of every cell in the human
body, the DNA of an individual’s blood is the very DNA in his or her skin
cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or
other body parts.
The chemical structure of DNA has four bases. They are known as A
(Adenine), G (guanine), C (cystosine) and T (thymine). The order in which
the four bases appear in an individual’s DNA determines his or her physical
make up. And since DNA is a double stranded molecule, it is composed of
two specific paired bases, A-T or T-A and G-C or C-G. These are called
"genes."
Every gene has a certain number of the above base pairs distributed in a
particular sequence. This gives a person his or her genetic code.
Somewhere in the DNA framework, nonetheless, are sections that differ.
They are known as "polymorphic loci," which are the areas analyzed in DNA
typing (profiling, tests, fingerprinting). In other words, DNA typing simply
means determining the "polymorphic loci."
How is DNA typing performed? From a DNA sample obtained or extracted,
a molecular biologist may proceed to analyze it in several ways. There are
five (5) techniques to conduct DNA typing. They are: the RFLP (restriction
fragment length polymorphism); "reverse dot blot" or HLA DQ a/Pm loci

Page 15 of 16
which was used in 287 cases that were admitted as evidence by 37 courts
in the U.S. as of November 1994; DNA process; VNTR (variable number
tandem repeats); and the most recent which is known as the PCR-
([polymerase] chain reaction) based STR (short tandem repeats) method
which, as of 1996, was availed of by most forensic laboratories in the world.
PCR is the process of replicating or copying DNA in an evidence sample a
million times through repeated cycling of a reaction involving the so-called
DNA polymerize enzyme. STR, on the other hand, takes measurements in
13 separate places and can match two (2) samples with a reported
theoretical error rate of less than one (1) in a trillion.
Just like in fingerprint analysis, in DNA typing, "matches" are determined.
To illustrate, when DNA or fingerprint tests are done to identify a suspect in
a criminal case, the evidence collected from the crime scene is compared
with the "known" print. If a substantial amount of the identifying features are
the same, the DNA or fingerprint is deemed to be a match. But then, even if
only one feature of the DNA or fingerprint is different, it is deemed not to
have come from the suspect.
As earlier stated, certain regions of human DNA show variations between
people. In each of these regions, a person possesses two genetic types
called "allele," one inherited from each parent. In [a] paternity test, the
forensic scientist looks at a number of these variable regions in an
individual to produce a DNA profile. Comparing next the DNA profiles of the
mother and child, it is possible to determine which half of the child’s DNA
was inherited from the mother. The other half must have been inherited
from the biological father. The alleged father’s profile is then examined to
ascertain whether he has the DNA types in his profile, which match the
paternal types in the child. If the man’s DNA types do not match that of the
child, the man is excluded as the father. If the DNA types match, then he is
not excluded as the father.26
In the newly promulgated rules on DNA evidence it is provided:
SEC. 3 Definition of Terms. – For purposes of this Rule, the following terms
shall be defined as follows:
xxxx
(c) "DNA evidence" constitutes the totality of the DNA profiles, results and
other genetic information directly generated from DNA testing of biological
samples;
(d) "DNA profile" means genetic information derived from DNA testing of a
biological sample obtained from a person, which biological sample is clearly
identifiable as originating from that person;
(e) "DNA testing" means verified and credible scientific methods which
include the extraction of DNA from biological samples, the generation of
DNA profiles and the comparison of the information obtained from the DNA
testing of biological samples for the purpose of determining, with
reasonable certainty, whether or not the DNA obtained from two or more
distinct biological samples originates from the same person (direct
identification) or if the biological samples originate from related persons
(kinship analysis); and
(f) "Probability of Parentage" means the numerical estimate for the
likelihood of parentage of a putative parent compared with the probability of
a random match of two unrelated individuals in a given population.
Amidst the protestation of petitioner against the DNA analysis, the
resolution thereof may provide the definitive key to the resolution of the
issue of support for minor Joanne. Our articulation in Agustin v. Court of
Appeals27 is particularly relevant, thus:
Our faith in DNA testing, however, was not quite so steadfast in the
previous decade. In Pe Lim v. Court of Appeals (336 Phil. 741, 270 SCRA
1), promulgated in 1997, we cautioned against the use of DNA because
"DNA, being a relatively new science, (had) not as yet been accorded
official recognition by our courts. Paternity (would) still have to be resolved
by such conventional evidence as the relevant incriminating acts,verbal and
written, by the putative father."
In 2001, however, we opened the possibility of admitting DNA as evidence
of parentage, as enunciated in Tijing v. Court of Appeals [G.R. No. 125901,
8 March 2001, 354 SCRA 17]:
x x x Parentage will still be resolved using conventional methods unless we
adopt the modern and scientific ways available. Fortunately, we have now
the facility and expertise in using DNA test for identification and parentage
testing. The University of the Philippines Natural Science Research Institute
(UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA
typing using short tandem repeat (STR) analysis. The analysis is based on
Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
the fact that the DNA of a child/person has two (2) copies, one copy from
the mother and the other from the father. The DNA from the mother, the
alleged father and child are analyzed to establish parentage. Of course,
being a novel scientific technique, the use of DNA test as evidence is still
open to challenge. Eventually, as the appropriate case comes, courts
should not hesitate to rule on the admissibility of DNA evidence. For it was
said, that courts should apply the results of science when competently
obtained in aid of situations presented, since to reject said results is to deny
progress.
The first real breakthrough of DNA as admissible and authoritative evidence
in Philippine jurisprudence came in 2002 with out en banc decision in
People v. Vallejo [G.R. No. 144656, 9 May 2002, 382 SCRA 192] where the
rape and murder victim’s DNA samples from the bloodstained clothes of the
accused were admitted in evidence. We reasoned that "the purpose of DNA
testing (was) to ascertain whether an association exist(ed) between the
evidence sample and the reference sample. The samples collected (were)
subjected to various chemical processes to establish their profile.
A year later, in People v. Janson [G.R. No. 125938, 4 April 2003, 400 SCRA
584], we acquitted the accused charged with rape for lack of evidence
because "doubts persist(ed) in our mind as to who (were) the real
malefactors. Yes, a complex offense (had) been perpetrated but who (were)
the perpetrators? How we wish we had DNA or other scientific evidence to
still our doubts."
In 2004, in Tecson, et al. v. COMELEC [G.R. Nos. 161434, 161634 and
161824, 3 March 2004, 424 SCRA 277], where the Court en banc was
faced with the issue of filiation of then presidential candidate Fernando Poe,
Jr., we stated:
In case proof of filiation or paternity would be unlikely to satisfactorily
establish or would be difficult to obtain, DNA testing, which examines
genetic codes obtained from body cells of the illegitimate child and any
physical residue of the long dead parent could be resorted to. A positive
match would clear up filiation or paternity. In Tijing v. Court of Appeals, this
Court has acknowledged the strong weight of DNA testing...
Moreover, in our en banc decision in People v. Yatar [G.R. No. 150224, 19
May 2004, 428 SCRA 504], we affirmed the conviction of the accused for
rape with homicide, the principal evidence for which included DNA test
results. x x x.
Coming now to the issue of remand of the case to the trial court, petitioner
questions the appropriateness of the order by the Court of Appeals directing
the remand of the case to the RTC for DNA testing given that petitioner has
already died. Petitioner argues that a remand of the case to the RTC for
DNA analysis is no longer feasible due to the death of Rogelio. To our mind,
the alleged impossibility of complying with the order of remand for purposes
of DNA testing is more ostensible than real. Petitioner’s argument is without
basis especially as the New Rules on DNA Evidence28 allows the conduct
of DNA testing, either motu proprio or upon application of any person who
has a legal interest in the matter in litigation, thus:
SEC. 4. Application for DNA Testing Order. – The appropriate court may, at
any time, either motu proprio or on application of any person who has a
legal interest in the matter in litigation, order a DNA testing. Such order shall
issue after due hearing and notice to the parties upon a showing of the
following:
(a) A biological sample exists that is relevant to the case;
(b) The biological sample: (i) was not previously subjected to the type of
DNA testing now requested; or (ii) was previously subjected to DNA testing,
but the results may require confirmation for good reasons;
(c) The DNA testing uses a scientifically valid technique;
(d) The DNA testing has the scientific potential to produce new information
that is relevant to the proper resolution of the case; and
(e) The existence of other factors, if any, which the court may consider as
potentially affecting the accuracy or integrity of the DNA testing.
From the foregoing, it can be said that the death of the petitioner does not
ipso facto negate the application of DNA testing for as long as there exist
appropriate biological samples of his DNA.
As defined above, the term "biological sample" means any organic material
originating from a person’s body, even if found in inanimate objects, that is
susceptible to DNA testing. This includes blood, saliva, and other body
fluids, tissues, hairs and bones.29
 Persons and Family Relations Jurisprudence/full text
Family Code Art 163-171 Paternity and Filiation
Page 16 of 16
Thus, even if Rogelio already died, any of the biological samples as
enumerated above as may be available, may be used for DNA testing. In
this case, petitioner has not shown the impossibility of obtaining an
appropriate biological sample that can be utilized for the conduct of DNA
testing.

And even the death of Rogelio cannot bar the conduct of DNA testing. In
People v. Umanito,30 citing Tecson v. Commission on Elections,31 this
Court held:

The 2004 case of Tecson v. Commission on Elections [G.R. No. 161434, 3

March 2004, 424 SCRA 277] likewise reiterated the acceptance of DNA
testing in our jurisdiction in this wise: "[i]n case proof of filiation or paternity
would be unlikely to satisfactorily establish or would be difficult to obtain,
DNA testing, which examines genetic codes obtained from body cells of the
illegitimate child and any physical residue of the long dead parent could be
resorted to."

It is obvious to the Court that the determination of whether appellant is the

father of AAA’s child, which may be accomplished through DNA testing, is
material to the fair and correct adjudication of the instant appeal. Under
Section 4 of the Rules, the courts are authorized, after due hearing and
notice, motu proprio to order a DNA testing. However, while this Court
retains jurisdiction over the case at bar, capacitated as it is to receive and
act on the matter in controversy, the Supreme Court is not a trier of facts
and does not, in the course of daily routine, conduct hearings. Hence, it
would be more appropriate that the case be remanded to the RTC for
reception of evidence in appropriate hearings, with due notice to the parties.
(Emphasis supplied.)

As we have declared in the said case of Agustin v. Court of Appeals32:

x x x [F]or too long, illegitimate children have been marginalized by fathers

who choose to deny their existence. The growing sophistication of DNA
testing technology finally provides a much needed equalizer for such
ostracized and abandoned progeny. We have long believed in the merits of
DNA testing and have repeatedly expressed as much in the past. This case
comes at a perfect time when DNA testing has finally evolved into a
dependable and authoritative form of evidence gathering. We therefore take
this opportunity to forcefully reiterate our stand that DNA testing is a valid
means of determining paternity.

WHEREFORE, the instant petition is DENIED for lack of merit. The

Decision of the Court of Appeals dated 23 November 2005 and its
Resolution dated 1 March 2006 are AFFIRMED. Costs against petitioner.

SO ORDERED.

Ynares-Santiago, Chairperson, Austria-Martinez,, Nachura, Reyes, JJ.,

concur.

FOOTNOTES

SEC. 6. Effect of granting of motion for new trial. – If a new trial is granted in
accordance with the provisions of this Rule, the original judgment or final
order shall be vacated, and the action shall stand for trial de novo; but the
recorded evidence taken upon the former trial, in so far as the same is
material and competent to establish the issues, shall be used at the new
trial without retaking the same.