SECOND DIVISION

[G.R. No. 79284. November 27, 1987.]

FROILAN C. GANDIONCO , petitioner, vs. HON. SENEN C. PEÑARANDA,

as Presiding Judge of the Regional Trial Court of Misamis Oriental,
Branch 18, Cagayan de Oro City, and TERESITA S. GANDIONCO ,
respondents.

DECISION

PADILLA , J : p

A special civil action for certiorari, with application for injunction, to annul (1) the
Order of the respondent Judge, dated 10 December 1986, ordering petitioner to pay
support pendente lite to private respondent (his wife) and their child, and (2) the Order
of the same respondent Judge, dated 5 August 1987, denying petitioner's motion to
suspend hearings in the action for legal separation led against him by private
respondent as well as his motion to inhibit respondent Judge from further hearing and
trying the case.
On 29 May 1986, private respondent, the legal wife of the petitioner, led with the
Regional Trial Court of Misamis Oriental, 10th Judicial District, Branch 18, in Cagayan de
Oro City, presided over by respondent Judge, a complaint against petitioner for legal
separation, on the ground of concubinage, with a petition for support and payment of
damages. This case was docketed as Civil Case No. 10636. On 13 October 1986,
private respondent also led with the Municipal Trial Court, General Santos City, a
complaint against petitioner for concubinage, which was docketed on 23 October 1986
as Criminal Case No. 15437-111. On 14 November 1986, application for the provisional
remedy of support pendente lite, pending a decision in the action for legal separation,
was led by private respondent in the civil case for legal separation. The respondent
judge, as already stated, on 10 December 1986, ordered the payment of support
pendente lite.
In this recourse, petitioner contends that the civil action for legal separation and
the incidents consequent thereto, such as, the application for support pendente lite,
should be suspended in view of the criminal case for concubinage led against him by
the private respondent. In support of his contention, petitioner cites Art. 111, Sec. 3 of
the 1985 Rules on Criminal Procedure, which states:
"SECTION 3. Other civil action arising from offenses. — Whenever the
offended party shall have instituted the civil action to enforce the civil liability
arising from the offense, as contemplated in the rst paragraph of Section 1
hereof, the following rules shall be observed:

(a) After a criminal action has been commenced, the pending civil action
arising from the same offense shall be suspended, in whatever stage it may be
found, until final judgment in the criminal proceeding has been rendered. . . ."

The civil action for legal separation, grounded as it is on concubinage, it is

petitioner's position that such civil action arises from, or is inextricably tied to the
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 criminal action for concubinage, so that all proceedings related to legal separation will
have to be suspended to await conviction or acquittal for concubinage in the criminal
case. Authority for this position is this Court's decision in the case of Jerusalem vs.
Hon. Roberto Zurbano. 1
Petitioner's contention is not correct.
In Jerusalem, the Court's statement to the effect that suspension of an action for
legal separation would be proper if an allegation of concubinage is made therein, relied
solely on Sec. 1 of Rule 107 of the then provisions of the Rules of Court on criminal
procedure, to wit: Cdpr

"SECTION 1. Rules governing civil actions arising from offenses. — Except

as otherwise provided by law, the following rules shall be observed:

(a) When a criminal action is instituted, the civil action for recovery of civil
liability arising from the offense charged is impliedly instituted with the criminal
action, unless the offended party expressly waives the civil action or reserves his
right to institute it separately;
(b) Criminal and civil actions arising from the same offense may be
instituted separately, but after the criminal action has been commenced the civil
action can not be instituted until nal judgment has been rendered in the criminal
action;

(c) After a criminal action has been commenced, no civil action arising
from the same offense can be prosecuted; and the same shall be suspended, in
whatever stage it may be found, until nal judgment in the criminal proceeding
has been rendered; . . ." (Emphasis supplied)

The provisions last quoted did not clearly state, as the 1985 Rules do, that the civil
action to be suspended, with or upon the ling of a criminal action, is one which is "to
enforce the civil liability arising from the offense". In other words, in view of the
amendment under the 1985 Rules on Criminal Procedure, a civil action for legal
separation, based on concubinage, may proceed ahead of, or simultaneously with, a
criminal action for concubinage, because said civil action is not one "to enforce the civil
liability arising from the offense" even if both the civil and criminal actions arise from or
are related to the same offense. Such civil action is one intended to obtain the right to
live separately, with the legal consequences thereof, such as, the dissolution of the
conjugal partnership of gains, custody of offsprings, support, and disquali cation from
inheriting from the innocent spouse, among others. As correctly pointed out by the
respondent Judge in his Order dated 5 August 1987:
"The unreported case of JERUSALEM vs. Hon. Roberto Zurbano, Judge of
CFI of Antique, et al., L-11935, April 24, 1959 (105 Phil. 1277) is not controlling. It
applied paragraph C of Sec. 1, of then Rule 107 of the Rules of Court, which
reads:
"After a criminal action has been commenced, no civil action arising
from the same offense can be prosecuted and the same shall be
suspended, in whatever stage it may be found, until nal judgment in the
criminal proceeding has been rendered." (emphasis supplied).

The governing rule is now Sec. 3, Rule 111, 1985 Rules on Criminal
Procedure which refers to "civil actions to enforce the civil liability arising from the
offense" as contemplated in the rst paragraph of Section 1 of Rule 111 — which
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 is a civil action "for recovery of civil liability arising from the offense charged."
Sec. 1, Rule 111, (1985) is speci c that it refers to civil action for the recovery of
civil liability arising from the offense charged. Whereas, the old Sec. 1 (c), Rule
107 simply referred to "Civil action arising from the offense."

As earlier noted this action for legal separation is not to recover civil
liability, in the main, but is aimed at the conjugal rights of the spouses and their
relations to each other, within the contemplation of Articles 7 to 108, of the Civil
Code" 2

Petitioner also argues that his conviction for concubinage will have to be rst
secured before the action for legal separation can prosper or succeed, as the basis of
the action for legal separation is his alleged offense of concubinage. Cdpr

Petitioner's assumption is erroneous.

A decree of legal separation, on the ground of concubinage, may be issued upon
proof by preponderance of evidence in the action for legal separation. 3 No criminal
proceeding or conviction is necessary. To this end, the doctrine in Francisco vs. Tayao 4
has been modi ed, as that case was decided under Act. No. 2710, when absolute
divorce was then allowed and had for its grounds the same grounds for legal
separation under the New Civil Code, with the requirement, under such former law, that
the guilt of defendant spouses had to be established by nal judgment in a criminal
action. That requirement has not been reproduced or adopted by the framers of the
present Civil Code, and the omission has been uniformly accepted as a modi cation of
the stringent rule in Francisco v. Tayao. 5
Petitioner's attempt to resist payment of support pendente lite to his wife must
also fail, as we nd no proof of grave abuse of discretion on the part of the respondent
Judge in ordering the same. Support pendente lite, as a remedy, can be availed of in an
action for legal separation, and granted at the discretion of the judge. 6 If petitioner
nds the amount of support pendente lite ordered as too onerous, he can always le a
motion to modify or reduce the same. 7
Petitioner lastly seeks to have the respondent Judge disquali ed from hearing
the case, as the grant of support pendente lite and the denial of the motion to suspend
hearings in the case, are taken by the petitioner as a disregard of applicable laws and
existing doctrines, thereby showing the respondent Judge's alleged manifest partiality
to private respondent.
Petitioner's contention is without merit. Divergence of opinions between a judge
hearing a case and a party's counsel, as to applicable laws and jurisprudence, is not a
su cient ground to disqualify the judge from hearing the case, on the ground of bias
and manifest partiality. This is more so, in this case, where we nd the judge's
disposition of petitioner's motions to be sound and well-taken.
WHEREFORE, the instant petition is hereby DISMISSED. Costs against petitioner.
SO ORDERED.
Yap, Melencio-Herrera, Paras and Sarmiento, JJ ., concur.

Footnotes
1. G.R. No. L-11935, 24 April 1959, 105 Phil. 1277 (1959), Unrep.

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 2. Rollo at 33.
3. Petitioner himself admits this in his Rejoinder to plaintiff's Opposition to his Motion to Inhibit
Respondent Judge and Motion to Suspend Hearing wherein he states, "Concubinage is
the same criminal offense punishable under Art. 334 of the Revised Penal Code which in
a case for legal separation, the same may be proved based on preponderance of
evidence". Rollo at 50.

4. 50 Phil. 42 (1927).
5. Padilla, I CIVIL CODE ANNOTATED 526 (1975); Paras, I CIVIL CODE OF THE PHILIPPINES
ANNOTATED 374 (1971); Tolentino, I COMMENTARIES AND JURISPRUDENCE ON THE
CIVIL CODE OF THE PHILIPPINES 311 (1983). Tolentino quali es: "It is not mere sexual
in delity that constitutes the ground for legal separation. Such in delity must constitute
adultery or concubinage as de ned by the Revised Penal Code." (Id. at 310). Further:
"There would be no more legal obstacle to a decree of legal separation at the instance of
an offended wife, based on an act of in delity for which the guilty husband has been
convicted of adultery upon the complaint of his paramour's husband so long as such act
may also constitute concubinage and can be proven in the legal separation proceedings.
We submit that the new Code, by omitting the requirement of criminal conviction of
adultery or concubinage, as the case may be, has modi ed the doctrine in the case of
Francisco v. Tayao." (Id. at 311).
It may be noted that under Article 55(6) of the Family Code of the Philippines (Executive Order
No. 209 as amended) soon to take effect, sexual in delity or perversion of either spouse
has replaced adultery on the part of the wife and concubinage on the part of the
husband as de ned by the Revised Penal Code (Art. 97, New Civil Code) as one of the
grounds for legal separation.
6. Araneta v. Concepcion, et al., 99 Phil. 709 (1956).

7. Sec. 5, Rule 61 of the Rules of Court states:

"Order. — The court shall determine provisionally the pertinent facts, and shall render such
order as equity and justice may require, having due regard to the necessities of the
applicant, the means of the adverse party, the probable outcome of the case, and such
other circumstances as may aid in the proper elucidation of the question involved. If the
application is granted, the court shall x the amount of money to be provisionally paid,
and the terms of payment. If the application is denied, the trial of the principal case on
its merits shall be held as early as possible."

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