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SECOND DIVISION

G.R. No. L-41405 October 22, 1975

IN THE MATTER OF THE PETITION FOR THE HABEAS CORPUS OF SHERYL LIM. LUISA CHUA LIM, Petitioner, vs. SOA PIN LIM and NONITA MACARIO, Respondents.

R E S O L U T I O N

AQUINO, J.:

On September 15, 1975 Luisa Chua Lim, twenty-five years old, filed in this Court this special proceeding of habeas corpus against her husband, Soa Pin Lim, and her maid (yaya or baby-sitter), Nonita Mamario, to recover custody of Sheryl, their eleven-month old child.chanroblesvirtualawlibrarychanrobles virtual law library

Mrs. Lim alleged in her petition that she has been estranged from her husband since August, 1975 (they were married on December 16, 1973); that the child was staying with her at her Quezon City residence, and that on September 8, 1975 her husband, through strategy and stealth and without her knowledge and consent, brought the child to West Bajac-Bajac, Olongapo City, where the spouses used to reside and where Soa Pin Lim has retained his residence.chanroblesvirtualawlibrarychanrobles virtual law library

Pursuant to the resolution of September 17, 1975, Acting Chief Justice Fred Ruiz Castro issued on the following day, September 18, the writ of habeas corpus (to be served through the Criminal Investigation Service of the Philippine Constabulary at Camp Crame), commanding respondents Soa Pin Lim and Nonita Macario to produce Sheryl Lim before the Juvenile and Domestic Relations Court of Quezon City on September 22 and to make a return of the writ not later than that date.chanroblesvirtualawlibrarychanrobles virtual law library

The hearing scheduled on September 22 was cancelled due to the alleged illness of the child and because the respondents filed a motion to quash the writ and to transfer the venue of the proceeding to Olongapo City.chanroblesvirtualawlibrarychanrobles virtual law library

Soa Pin Lim had filed on September 17 with the Court of First Instance at Olongapo City a complaint against his wife, Luisa Chua, and her father, Zun Sia Chua. In that complaint, which was apparently predicated on article 116 of the Civil Code, Soa Pin Lim prayed for the issuance of "such orders as are necessary and proper to make defendant Luisa Lim perform her duties as a wife" (Civil Case No. 1786-0).chanroblesvirtualawlibrarychanrobles virtual law library

Because of the apparent connection between this habeas corpus case and Civil Case No. 1786-0 pending in the Court of First Instance at Olongapo City, this Court in its resolution of September 22, 1975 reconsidered its prior resolution and directed that the writ be made returnable to the Olongapo court.chanroblesvirtualawlibrarychanrobles virtual law library

However, in an urgent motion filed on September 23, Luisa Chua Lim insisted that the Habeas corpus case be tried in the Quezon City Juvenile and Domestic Relations Court. She stressed that her complaint against Nonita Macario for kidnapping of a minor was investigated by the Quezon City Police.chanroblesvirtualawlibrarychanrobles virtual law library

In view of the disagreement of the parties as to the venue of the proceeding, this Court resolved to hear the case. At the hearing on October 15, after the parties and their lawyers had articulated their views, they agreed on a temporary arrangement that the mother, Luisa Chua Lim, should have the custody of the child, subject to the father's right to visit her and to the outcome of Civil Case No. 1786-O.chanroblesvirtualawlibrarychanrobles virtual law library

That agreement is justified under article 363 of the Civil Code which provides that "in all questions on the care, custody, education and property of children, the latter's welfare shall be paramount" (reproduced in article 8 of the Child and Youth Welfare Code) and that "no mother shall be separated from her child under seven years of age, unless the court finds compelling reasons for such measure". Article 17 of the Child and Youth Welfare Code is more explicit. It provides that "in case of separation of his parents, no child under five years of age shall be separated from his mother, unless the court finds compelling reasons to do so" (Presidential Decree No. 603 dated December 10, 1974, 70 O.G. 10774).chanroblesvirtualawlibrarychanrobles virtual law library

The Code Commission observed that the rule in article 363 is necessary "in order to avoid many a tragedy where a mother has seen her baby torn away from her. No man can sound the deep sorrows of a mother who is deprived of her child of tender age."chanrobles virtual law library

WHEREFORE, finding the agreement of the parties as to the custody of the child to be in accordance with law, the same is approved. No costs.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.

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BARREDO, J., concurring:chanrobles virtual law library

This resolution terminates this habeas corpus proceeding. The judicial approval of the agreement of the parties binds them to strict compliance therewith under pain of sanction from this Court.

ANTONIO, J., concurring:chanrobles virtual law library

My concurrence is predicated on the clear legal right of the mother to the custody of her minor child, there being no compelling reasons to the contrary.

BARREDO, J., concurring:

This resolution terminates this habeas corpus proceeding. The judicial approval of the agreement of the parties binds them to strict compliance therewith under pain of sanction from this Court.

ANTONIO, J., concurring:

My concurrence is predicated on the clear legal right of the mother to the custody of her minor child, there being no compelling reasons to the contrary.