Saturday, September 24, 2011

SIZE DOES MATTER: Annulment based on insignificant proportions

By Obiter07

There are two companion cases to be discussed, both dealing with annulment albeit with different outcomes. Considering the nature of the subject matter, one gets to wonder again how these cases reached the Supreme Court, to be part of the public record for all to see.

Chi Ming Tsoi vs. CA

In Chi Ming Tsoi vs. CA, et al.(G.R. No. 119190, January 16, 1997), “a distraught wife” filed for annulment of marriage on the ground of psychological incapacity “against her uncaring husband.” The Regional Trial Court and the Court of Appeals ruled in her favor.
The parties were married in the Manila Cathedral. From the results of the case, the venue of a marriage, no matter how grand, does not necessarily augur well for a long union. After the reception, they proceeded to the house of the husband’s mother. She alleged that during their first night, “the defendant just went to bed, slept on one side thereof, then turned his back and went to sleep. There was no sexual intercourse between them during the first night. The same thing happened on the second, third and fourth nights.”

Even during their honeymoon in Baguio, “there was no sexual intercourse between them, since the defendant avoided her by taking a long walk during siesta time or by just sleeping on a rocking chair located at the living room. They slept together in the same room and on the same bed since May 22, 1988 until March 15, 1989. But during this period, there was no attempt of sexual intercourse between them. [S]he claims, that she did not: even see her husband's private parts nor did he see hers.”

This even led to them to get medical examinations from a urologist. She was found to “healthy, normal and still a virgin, while that of her husband's examination was kept confidential up to this time. While no medicine was prescribed for her, the doctor prescribed medications for her husband which was also kept confidential. No treatment was given to her. For her husband, he was asked by the doctor to return but he never did.”

In her suit, the wife claims “that the defendant is impotent, a closet homosexual as he did not show his penis. She said, that she had observed the defendant using an eyebrow pencil and sometimes the cleansing cream of his mother. And that, according to her, the defendant married her, a Filipino citizen, to acquire or maintain his residency status here in the country and to publicly maintain the appearance of a normal man.”

Defendant pointed to his wife as the one psychologically incapacitated. But he opposed the annulment since he still loves her, that he is capable and that they could still reconcile. Any defect can still be cured. He did admit that there has been no sexual contact between them but this was because of her refusal. He alleges that the case was filed because “she is afraid that she will be forced to return the pieces of jewelry of his mother and because of her fear of consummation. This certainly is a novel defense which was presented by the defendant.

However, a physical examination to determine whether he is impotent revealed the following: (i) “from the original size of two (2) inches, or five (5) centimeters, the penis of the defendant lengthened by one (1) inch and one centimeter and (ii) “defendant had only a soft erection which is why his penis is not in its full length xxx, still is capable of further erection, in that with his soft erection, the defendant is capable of having sexual intercourse with a woman.”

Defendant went to the Supreme Court. He contended that his spouse had the “burden of proving the allegations in her complaint.” And that since there is no independent evidence of the “alleged non-coitus between the parties,” there was no other basis other than his admission for the court’s conclusions. The Court held that the judgment made was not merely based on the pleadings. When the plaintiff testified under oath and was subjected to cross-examination, she presented evidence in the form of testimony. It was now incumbent on the defendant to present his side. He admitted that they did not have intercourse since their marriage until their separation.

In affirming the decision of the Court of Appeals, the court quoted with favor the former’s findings, to wit:

“The judgment of the trial court which was affirmed by this Court is not based on a stipulation of facts. The issue of whether or not the appellant is psychologically incapacitated to discharge a basic marital obligation was resolved upon a review of both the documentary and testimonial evidence on record. Appellant admitted that he did not have sexual relations with his wife after almost ten months of cohabitation, and it appears that he is not suffering from any physical disability. Such abnormal reluctance or unwillingness to consummate his marriage is strongly indicative of a serious personality disorder which to the mind of this Court clearly demonstrates an 'utter insensitivity or inability to give meaning and significance to the marriage' within the meaning of Article 36 of the Family Code (See Santos vs. Court of Appeals, G.R. No. 112019, January 4, 1995).

Defendant further argued that “alleged refusal of both the petitioner and the private respondent to have sex with each other constitutes psychological incapacity of both”  and that there may be other reasons such as “i.e., physical disorders, such as aches, pains or other discomforts” on why the marriage was not consummated. The trial court did not make a finding on who refused contact.  But the fact remains that here has been no coitus.  And since an annulment can be filed by either party, even the one “psychologically incapacitated, the question of who refuses to have sex with the other becomes immaterial.”

There is nothing on record to show whether defendant “tried to find out or discover what the problem with his wife could be.” All he showed was supposed medical proof there is “no evidence of his impotency and he is capable of erection.”  His claim that the “reason is not psychological but perhaps physical disorder on the part of private respondent” was his to prove. As held by the Court:

“If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity.”

One of the ““essential marital obligations under the Family Code is "[t]o procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage." Constant non-fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage. In the case at bar, the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psychological incapacity.”   It is interesting to note how the Court cited with approval a finding of the trial court that a husband should assert his right to consummate:

“An examination of the evidence convinces Us that the husband's plea that the wife did not want carnal intercourse with him does not inspire belief. Since he was not physically impotent, but he refrained from sexual intercourse during the entire time (from May 22, 1988 to March 15, 1989) that he occupied the same bed with his wife, purely out of sympathy for her feelings, he deserves to be doubted for not having asserted his right even though she balked (Tompkins vs. Tompkins, 111 Atl. 599, cited in I Paras, Civil Code, at p. 330). Besides, if it were true that it is the wife who was suffering from incapacity, the fact that defendant did not go to court and seek the declaration of nullity weakens his claim. This case was instituted by the wife whose normal expectations of her marriage were frustrated by her husband's inadequacy. Considering the innate modesty of the Filipino woman, it is hard to believe that she would expose her private life to public scrutiny and fabricate testimony against her husband if it were not necessary to put her life in order and put to rest her marital status.

We are not impressed by defendant's claim that what the evidence proved is the unwillingness or lack of intention to perform the sexual act, which is not psychological incapacity, and which can be achieved "through proper motivation." After almost ten months of cohabitation, the admission that the husband is reluctant or unwilling to perform the sexual act with his wife whom he professes to love very dearly, and who has not posed any insurmountable resistance to his alleged approaches, is indicative of a hopeless situation, and of a serious personality disorder that constitutes psychological incapacity to discharge the basic marital covenants within the contemplation of the Family Code.“

The Court proceeded to state that “l]ove is useless unless it is shared with another. Indeed, no man is an island, the cruelest act of a partner in marriage is to say "I could not have cared less." This is so because an ungiven self is an unfulfilled self. The egoist has nothing but himself. In the natural order, it is sexual intimacy which brings spouses wholeness and oneness. Sexual intimacy is a gift and a participation in the mystery of creation. It is a function which enlivens the hope of procreation and ensures the continuation of family relations.”

Jimenez vs. Canizares

From this case, we proceed to the matter of Jimenez vs. Canizares (G.R. No. L-12790, August 31, 1960)[1], where a husband filed for annulment upon the ground that his wife’s “vagina was too small to allow the penetration of a male organ or penis for copulation; that the condition of her genitals as described above existed at the time of marriage and continues to exist; and that for that reason he left the conjugal home two nights and one day after they had been married.” He did not wait long in contrast to the preceding case. Women may indeed be more patient than men.

The wife was summoned and even required to undergo a physical examination.  She was warned that failure to do so “would be deemed lack of interest on her part in the case and that judgment upon the evidence presented by her husband would be rendered.”

After hearing and in her absence, the Court “entered a decree annulling the marriage between the plaintiff and the defendant.”  This was questioned by the City Attorney citing, among others, it was “satisfactorily established as required by law; that she had not been physically examined because she had refused to be examined; that instead of annulling the marriage the Court should have punished her for contempt of court and compelled her to undergo a physical examination and submit a medical certificate; xxx.”

The Court found that the threshold issue was “whether the marriage in question may be annulled on the strength only of the lone testimony of the husband who claimed and testified that his wife was and is impotent,” when the latter had refused to file an answer, did not attend the hearing and refused a medical examination.

The Court set aside the judgment and remanded the case for further proceedings, finding that the lone testimony of the husband does not suffice to annul their union.  It stated that marriage “in this country is an institution in which the community is deeply interested. The state has surrounded it with safeguards to maintain its purity, continuity and permanence. The security and stability of the state are largely dependent upon it. It is the interest of each and every member of the community to prevent the bringing about of a condition that would shake its foundation and ultimately lead to its destruction. The incidents of the status are governed by law, not by will of the parties. The law specifically enumerates the legal grounds that must be proved to exist by indubitable evidence, to annul a marriage. xxx”

While it held that the wife may be indifferent, her coy nature may have prevented her participation in the proceedings. This was in 1960.  In the previous case decided in 1997, we see the woman taking the initiative so some of this bashfulness must have been lost through the years.

“Although her refusal to be examined or failure to appear in court show indifference on her part, yet from such attitude the presumption arising out of the suppression of evidence could not arise or be inferred because women of this country are by nature coy, bashful and shy and would not submit to a physical examination unless compelled to by competent authority. This the Court may do without doing violence to and infringing in this case is not self-incrimination. She is not charged with any offense. She is not being compelled to be a witness against herself. "Impotency being an abnormal condition should not be presumed. The presumption is in favor of potency.“

In both instances, we see annulments sought grounded on certain incapabilities - one based on unexplainable indifference and the other on dimensional insufficiency. One was granted despite a husband’s medical proof of potency, notwithstanding some softening in his stand (pun intended) the other was not although one can only speculate on how the husband is supposed to prove his case.

Relationships are not supposed to be built by litigation. If the parties expended as much effort on making the marriage work as they did in filing cases, perhaps there could have been different results. In the end, while the law can step in where all else fails, it is love, not size, not money, not riches and not status that truly does matter for any marriage to work.

[1] Please note that the law has changed since then. The grounds for annulment under the Civil Code were as follows:
ARTICLE 85. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1)     That the party in whose behalf it is sought to have the marriage annulled was between the ages of sixteen and twenty years, if male, or between the ages of fourteen and eighteen years, if female, and the marriage was solemnized without the consent of the parent, guardian or person having authority over the party, unless after attaining the ages of twenty or eighteen years, as the case may be, such party freely cohabited with the other and both lived together as husband and wife;
(2)     In a subsequent marriage under article 83, number 2, that the former husband or wife believed to be dead was in fact living and the marriage with such former husband or wife was then in force;
(3)     That either party was of unsound mind, unless such party, after coming to reason, freely cohabited with the other as husband or wife;
(4)     That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as her husband or his wife, as the case may be;
(5)     That the consent of either party was obtained by force or intimidation, unless the violence or threat having disappeared, such party afterwards freely cohabited with the other as her husband or his wife, as the case may be;
(6)     That either party was, at the time of marriage, physically incapable of entering into the married state, and such incapacity continues, and appears to be incurable. (30a)

Under the Family Code, the grounds are as follows:
ARTICLE 45. A marriage may be annulled for any of the following causes, existing at the time of the marriage:
(1)     That the party in whose behalf it is sought to have the marriage annulled was eighteen years of age or over but below twenty-one, and the marriage was solemnized without the consent of the parents, guardian or person having substitute parental authority over the party, in that order, unless after attaining the age of twenty-one, such party freely cohabited with the other and both lived together as husband and wife;
(2)     That either party was of unsound mind, unless such party after coming to reason, freely cohabited with the other as husband and wife;
(3)     That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband and wife;
(4)     That the consent of either party was obtained by force, intimidation or undue influence, unless the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife;
(5)     That either party was physically incapable of consummating the marriage with the other, and such incapacity continues and appears to be incurable; or
(6)   That either party was afflicted with a sexually-transmissible disease found to be serious and appears to be incurable. (85a)


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