May a wife secure a writ of habeas corpus to compel her husband to live with her

in conjugal bliss? THE ANSWER IS NO. Marital rights including coverture and
living in conjugal dwelling may not be enforced by the extraordinary writ of
habeas corpus.

In a case decided by the Supreme Court of the Philippines (reproduced in full

below), it was held that, if a husband wants to live away from the wife, she cannot
go to court and ask that he be compelled to live with her or make him let her visit
his house.

Being of sound mind, a husband is possessed with the capacity to make choices.
Where to live and which people to see or live with are his choices only. The
choices he has made may not appeal to some of his family members but these are
choices which exclusively belong to the husband.

In the case cited below, the husband made it clear that he was not prevented from
leaving his house or seeing people. With that declaration, and absent any true
restraint on his liberty, there is no reason for the courts to grant the wife's
petition for habeas corpus.

With his full mental capacity coupled with the right of choice, the husband
cannot be the subject of visitation rights against his free choice. Otherwise, he
would be deprived of his right to privacy. Needless to say, this will run against his
fundamental constitutional right.

No court is empowered as a judicial authority to compel a husband to live with

his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus
carried out by sheriffs or by any other mesne process. That is a matter beyond
judicial authority and is best left to the man and woman’s free choice.
ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and
SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE, respondents. (G.R.
No. 139789. May 12, 2000)

May a wife secure a writ of habeas corpus to compel her husband to live with her
in conjugal bliss? The answer is no. Marital rights including coverture and living
in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas
corpus.

A writ of habeas corpus extends to all cases of illegal confinement or detention, or

by which the rightful custody of a person is withheld from the one entitled
thereto.

"Habeas corpus is a writ directed to the person detaining another, commanding

him to produce the body of the prisoner at a designated time and place, with the
day and cause of his capture and detention, to do, submit to, and receive
whatsoever the court or judge awarding the writ shall consider in that behalf."

It is a high prerogative, common-law writ, of ancient origin, the great object of

which is the liberation of those who may be imprisoned without sufficient cause.
It is issued when one is deprived of liberty or is wrongfully prevented from
exercising legal custody over another person.

The petition of Erlinda K. Ilusorio is to reverse the decision of the Court of

Appeals and its resolution dismissing the application for habeas corpus to have
the custody of her husband, lawyer Potenciano Ilusorio and enforce consortium
as the wife.

On the other hand, the petition of Potenciano Ilusorio is to annul that portion of
the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation rights to
her husband and to enjoin Erlinda and the Court of Appeals from enforcing the
visitation rights.

The undisputed facts are as follows:

Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.

Potenciano Ilusorio is about 86 years of age possessed of extensive property

valued at millions of pesos. For many years, lawyer Potenciano Ilusorio was
Chairman of the Board and President of Baguio Country Club.

On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony
and lived together for a period of thirty (30) years. In 1972, they separated from
bed and board for undisclosed reasons. Potenciano lived at Urdaneta
Condominium, Ayala Ave., Makati City when he was in Manila and at Ilusorio
Penthouse, Baguio Country Club when he was in Baguio City. On the other hand,
Erlinda lived in Antipolo City.

Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio
(age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49);
Marietta (age 48); and Shereen (age 39).

On December 30, 1997, upon Potenciano’s arrival from the United States, he
stayed with Erlinda for about five (5) months in Antipolo City. The children,
Sylvia and Erlinda (Lin), alleged that during this time, their mother gave
Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an antidepressant
drug prescribed by his doctor in New York, U.S.A. As a consequence,
Potenciano’s health deteriorated.

On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a
petition for guardianship over the person and property of Potenciano Ilusorio due
to the latter’s advanced age, frail health, poor eyesight and impaired judgment.

On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano
Ilusorio did not return to Antipolo City and instead lived at Cleveland
Condominium, Makati. Slxsc

On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas
corpus to have the custody of lawyer Potenciano Ilusorio. She alleged that
respondents refused petitioner’s demands to see and visit her husband and
prohibited Potenciano from returning to Antipolo City.

After due hearing, on April 5, 1999, the Court of Appeals rendered decision the
dispositive portion of which reads:

"WHEREFORE, in the light of the foregoing disquisitions, judgment is hereby

rendered:
"(1) Ordering, for humanitarian consideration and upon petitioner’s
manifestation, respondents Erlinda K. Ilusorio Bildner and Sylvia Ilusorio-Yap,
the administrator of Cleveland Condominium or anywhere in its place, his guards
and Potenciano Ilusorio’s staff especially Ms. Aurora Montemayor to allow
visitation rights to Potenciano Ilusorio’s wife, Erlinda Ilusorio and all her
children, notwithstanding any list limiting visitors thereof, under penalty of
contempt in case of violation of refusal thereof; xxx

"(2) ORDERING that the writ of habeas corpus previously issued be recalled and
the herein petition for habeas corpus be DENIED DUE COURSE, as it is hereby
DISMISSED for lack of unlawful restraint or detention of the subject of the
petition.

"SO ORDERED."

Hence, the two petitions, which were consolidated and are herein jointly decided.

As heretofore stated, a writ of habeas corpus extends to all cases of illegal

confinement or detention, or by which the rightful custody of a person is withheld
from the one entitled thereto. It is available where a person continues to be
unlawfully denied of one or more of his constitutional freedoms, where there is
denial of due process, where the restraints are not merely involuntary but are
unnecessary, and where a deprivation of freedom originally valid has later
become arbitrary. It is devised as a speedy and effectual remedy to relieve
persons from unlawful restraint, as the best and only sufficient defense of
personal freedom.

The essential object and purpose of the writ of habeas corpus is to inquire into all
manner of involuntary restraint, and to relieve a person therefrom if such
restraint is illegal.

To justify the grant of the petition, the restraint of liberty must be an illegal and
involuntary deprivation of freedom of action. The illegal restraint of liberty must
be actual and effective, not merely nominal or moral.

The evidence shows that there was no actual and effective detention or
deprivation of lawyer Potenciano Ilusorio’s liberty that would justify the issuance
of the writ. The fact that lawyer Potenciano Ilusorio is about 86 years of age, or
under medication does not necessarily render him mentally incapacitated.
Soundness of mind does not hinge on age or medical condition but on the
capacity of the individual to discern his actions.

After due hearing, the Court of Appeals concluded that there was no unlawful
restraint on his liberty.

The Court of Appeals also observed that lawyer Potenciano Ilusorio did not
request the administrator of the Cleveland Condominium not to allow his wife
and other children from seeing or visiting him. He made it clear that he did not
object to seeing them.

As to lawyer Potenciano Ilusorio’s mental state, the Court of Appeals observed

that he was of sound and alert mind, having answered all the relevant questions
to the satisfaction of the court.

Being of sound mind, he is thus possessed with the capacity to make choices. In
this case, the crucial choices revolve on his residence and the people he opts to
see or live with. The choices he made may not appeal to some of his family
members but these are choices which exclusively belong to Potenciano. He made
it clear before the Court of Appeals that he was not prevented from leaving his
house or seeing people. With that declaration, and absent any true restraint on
his liberty, we have no reason to reverse the findings of the Court of Appeals.

With his full mental capacity coupled with the right of choice, Potenciano Ilusorio
may not be the subject of visitation rights against his free choice. Otherwise, we
will deprive him of his right to privacy. Needless to say, this will run against his
fundamental constitutional right.

The Court of Appeals exceeded its authority when it awarded visitation rights in a
petition for habeas corpus where Erlinda never even prayed for such right. The
ruling is not consistent with the finding of subject’s sanity.

When the court ordered the grant of visitation rights, it also emphasized that the
same shall be enforced under penalty of contempt in case of violation or refusal
to comply. Such assertion of raw, naked power is unnecessary.

The Court of Appeals missed the fact that the case did not involve the right of a
parent to visit a minor child but the right of a wife to visit a husband. In case the
husband refuses to see his wife for private reasons, he is at liberty to do so
without threat of any penalty attached to the exercise of his right.
No court is empowered as a judicial authority to compel a husband to live with
his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus
carried out by sheriffs or by any other mesne process. That is a matter beyond
judicial authority and is best left to the man and woman’s free choice.

WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition

for lack of merit. No costs.

In G. R. No. 139808, the Court GRANTS the petition and nullifies the
decision of the Court of Appeals insofar as it gives visitation rights to
respondent Erlinda K. Ilusorio. No costs.

SO ORDERED.