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CONCURRING OPINION

VITUG, J.:

I fully concur with my esteemed colleague Mr. Justice Artemio V. Panganiban in his ponencia, and I find to be most helpful the guidelines that he prepared for the bench and the bar in the proper appreciation of Article 36 of Executive Order No. 209 (THE FAMILY CODE of the Philippines). The term psychological incapacity was neither defined nor exemplified by the Family Code. Thus-

Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization.

The Revision Committee, constituted under the auspices of the U.P. Law Center, which drafted the Code explained:

(T)he Committee would like the judge to interpret the provision on a case-to-case basis, guided bt experience, the findings of experts and researchers in psychological disciplines, and by decision of church tribunals which, although, not binding on the civil courts, may be given persuasive effect since the provision was taken from Canon Law.¹chanroblesvirtuallawlibrary

Article 36 of the Family Code was concededly taken from Canon 1095 of the New Code of Canon Law

Canon 1095. (The following persons) are incapable of contracting marriage; (those)

1. who lack sufficient use of reason;

2. who suffer from a grave defect of discretion of judgment concerning essential matrimonial rights and duties, to be given and accepted mutually;

3. who for causes of psychological nature are unable to assume the essential obligations of marriage

that should give much value to Canon Law jurisprudence as an aid to the interpretation and construction of the statutory enactment.²chanroblesvirtuallawlibrary

The principles in the proper application of the law teach us that the several provisions of Code must be read like a congruent whole. Thus, in determining the import of psychological incapacity under Article 36, one must also read it along with, albeit to be taken as distinct from, the other grounds enumerated in the Code, like Articles 35, 37, 38, and 41 that would likewise, but for distinct reasons, render the marriage void ab initio, or Article 45 that would make the marriage merely voidable, or Article 55 that could justify a petition for legal separation. Care must be observed so that these various circumstances are not applied so indiscriminately as if the law were indifferent on the matter.

I would wish to reiterate the Courts statement in Santos vs. Court of Appeals;³ viz:

(T)he use of the phrase psychological incapacity under Article 36 of the Code has not been meant to comprehend all such possible cases of psychoses as. Likewise mentioned by some ecclesiastical authorities, extremely low intelligence, immaturity, and like circumstances x x x. Article 36 of the Family Code cannot be taken and construed independently of, but must staned in conjunction with, existing precepts in our law on marriage. Thus, correlated, psychological incapacity should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharge by the parties to the marriage which, as so expressed by Article 68 of the Family Code,include their mutual obligation to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of psychological incapacity to the most serious cases of personality disorders clearly demonstrative of an utter insensitivity or inability to give meaning and significance to the marriage. This psychologic condition must exist at the time the marriage is celebrated. The law does not evidently envision, upon the other hand, an inability of the spouse to have sexual relations with the other. This conclusion is implicit under Article 54 of the Family Code which considers children conceived prior to the judicial declaration of nullity of the void marriage to be legitimate.

The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcoholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. This provisions of the Code, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity.⁴chanroblesvirtuallawlibrary

In fine, the term psychological incapacity, to be a ground for the nullity of marriage under Article 36 of the Family Code, must be able to pass the following test; viz:

First, the incapacity must be psychological or mental, not physical, in nature;

Second, The psychological incapacity must relate to the inability, not mere refusal, to understand, assume and discharge the basic marital obligations of living together, observing love, respect and fidelity and rendering mutual help and support;

Third, the psychologic conditions must exist at the time the marriage is contracted although its overt manifestations may occur only thereafter; and

Fourth, the mental disorder must be grave or serious and incurable.

It may well be that the Family Code Revision Committee has envisioned Article 36, as not a few observers would suspect, as another form of absolute divorce or, as still others would also put it, to be an alternative to divorce; however, the fact still remains that the language of the law has failed to carry out, even if true, any such intendment. It might have indeed turned out for the better; if it were otherwise, there could be good reasons to doubt the constitutionality of the measure. The fundamental law itself, no less, has laid down in terse language its unequivocal command on how the State should regard marriage and the family, thus

Section 2, Article XV:

Sec. 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

Section 12, Article II:

Sec. 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution x x x.

Section 1, Article XV:

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. (The 1987 Constitution)

The case of Marcelino vs. Cruz, 121 SCRA 51, might here be significant not so much for the specific issue there resolved but for the tone it has set. The Court has held that constitutional provisions are to be considered mandatory unless by necessary implication, a different intention is manifest such that to have them enforced strictly would cause more harm than by discharging them. It is quite clear to me that the constitutional mandate on marriage and the family has not been meant to be simply directory in character, nor for mere expediency or convenience, but one that demands a meaningful, not half-hearted, respect.