Republic of the Philippines General Santos City, a complaint against petitioner for

SUPREME COURT concubinage, which was docketed on 23 October 1986 as

Manila Criminal Case No. 15437111. On 14 November 1986,
application for the provisional remedy of support pendente
SECOND DIVISION lite, pending a decision in the action for legal separation, was
filed by private respondent in the civil case for legal separation.
G.R. No. 79284 November 27, 1987 The respondent judge, as already stated, on 10 December
1986, ordered The payment of support pendente lite.
FROILAN C. GANDIONCO, petitioner,
vs. In this recourse, petitioner contends that the civil action for
HON. SENEN C. PEÑARANDA, as Presiding Judge of the legal separation and the incidents consequent thereto, such
Regional Trial Court of Misamis Oriental, Branch 18, as, application for support pendente lite, should be suspended
Cagayan de Oro City, and TERESITA S. in view of the criminal case for concubinage filed against him
GANDIONCO, respondents. the private respondent. In support of his contention, petitioner
cites Art. III. Sec. 3 of the 1985 Rules on Criminal Procedure,
which states:

SEC. 3. Other Civil action arising from

PADILLA, J.:
offenses. — Whenever the offended party shall
have instituted the civil action to enforce the
A special civil action for certiorari, with application for civil liability arising from the offense. as
injunction, to annul (1) the Order of the respondent Judge, contemplated in the first Section 1 hereof, the
dated 10 December 1986, ordering petitioner to pay following rules shall be observed:
support pendente lite to private respondent (his wife) and their
child, and (2) the Order of the same respondent Judge, dated
(a) After a criminal action has been
5 August 1987, denying petitioner's motion to suspend
commenced the pending civil action arising
hearings in the action for legal separation filed against him by
from the same offense shall be suspended, in
private respondent as well as his motion to inhibit respondent
whatever stage it may be found, until final
Judge from further hearing and trying the case.
judgment in the criminal proceeding has been
rendered. . . .
On 29 May 1986, private respondent, the legal wife of the
petitioner, filed with the Regional Trial Court of Misamis
The civil action for legal separation, grounded as it is on
Oriental, 10th Judicial District, Branch 18, in Cagayan de Oro
concubinage, it is petitioner's position that such civil action
City, presided over by respondent Judge, a complaint against
arises from, or is inextricably tied to the criminal action for
petitioner for legal separation, on the ground of concubinage,
concubinage, so that all proceedings related to legal
with a petition for support and payment of damages. This case
separation will have to be suspended to await conviction or
was docketed as Civil Case No. 10636. On 13 October 1986,
acquittal for concubinage in the criminal case. Authority for this
private respondent also filed with the Municipal Trial Court,
position is this Court's decision in the case of Jerusalem vs. The provisions last quoted did not clearly state, as the 1985
Hon. Roberto Zurbano. 1 Rules do, that the civil action to be suspended, with or upon
the filing of a criminal action, is one which is "to enforce the
Petitioner's contention is not correct. civil liability arising from the offense". In other words, in view of
the amendment under the 1985 Rules on Criminal Procedure,
In Jerusalem, the Court's statement to the effect that a civil action for legal separation, based on concubinage, may
suspension of an action for legal separation would be proper if proceed ahead of, or simultaneously with, a criminal action for
an allegation of concubinage is made therein, relied solely on concubinage, because said civil action is not one "to enforce
Sec. 1 of Rule 107 of the then provisions of the Rules of Court the civil liability arising from the offense" even if both the civil
on criminal procedure, to wit: 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,
Sec. 1. Rules governing civil actions arising
the dissolution of the conjugal partnership of gains, custody of
from offenses.-Except as otherwise provided by
offsprings, support, and disqualification from inheriting from the
law, the following rules shall he observed:
innocent spouse, among others. As correctly pointed out by
the respondent Judge in his Order dated 5 August 1987:
(a) When a criminal action is instituted, the civil
action for recovery of civil liability arising from
The unreported case of JERUSALEM vs. Hon.
the offense charged is impliedly instituted with
Roberto Zurbano, Judge of CFI of Antique, et
the criminal action, unless the offended party
al., L-11935, April 24, 1959 (105 Phil. 1277) is
expressly waives the civil action or reserves his
not controlling. It applied paragraph C of Sec.
right to institute it separately;
1, of then Rule 107 of the Rules of Court, which
reads:
(b) Criminal and civil actions arising from the
same offense may be instituted separately, but
After a criminal action has been
after the criminal action has been commenced
commenced, no civil action
the civil action can not be instituted until final
arising from the same offense
judgment has been rendered in the criminal
can be prosecuted and the
action;
same shall be suspended, in
whatever stage it may be found,
(c) After a criminal action has been until final judgment in the
commenced, no civil action arising from the criminal proceeding has been
same offense can be prosecuted and the same rendered. (Emphasis supplied)
shall be suspended in whatever stage it may be
found until final judgment in the criminal
The governing rule is now Sec. 3, Rule 111, 1985 Rules on
proceeding has been rendered ... (Emphasis
Criminal Procedure which refers to "civil actions to enforce the
supplied)
civil liability arising from the offense" as contemplated in the
first paragraph of Section 1 of Rule 111-which is a civil action
"for recovery of civil liability arising from the offense charged." availed of in an action for legal separation, and granted at the
Sec. 1, Rule 111, (1985) is specific that it refers to civil action discretion of the judge. 6 If petitioner finds the amount of
for the recovery of civil liability arising from the offense support pendente lite ordered as too onerous, he can always
charged. Whereas, the old Sec. 1 (c), Rule 107 simply referred file a motion to modify or reduce the same. 7
to "Civil action arising from the offense."
Petitioner lastly seeks to have the respondent Judge
As earlier noted this action for legal separation is not to disqualified from hearing the case, as the grant of
recover civil liability, in the main, but is aimed at the conjugal supportpendente lite and the denial of the motion to suspend
rights of the spouses and their relations to each other, within hearings in the case, are taken by the petitioner as a disregard
the contemplation of Articles 7 to 108, of the Civil Code."2 of applicable laws and existing doctrines, thereby showing the
respondent Judge's alleged manifest partiality to private
Petitioner also argues that his conviction for concubinage will respondent.
have to be first secured before the action for legal separation
can prosper or succeed, as the basis of the action for legal Petitioner's contention is without merit. Divergence of opinions
separation is his alleged offense of concubinage. between a judge hearing a case and a party's counsel, as to
applicable laws and jurisprudence, is not a sufficient ground to
Petitioner's assumption is erroneous. disqualify the judge from hearing the case, on the ground of
bias and manifest partiality. This is more so, in this case,
A decree of legal separation, on the ground of concubinage, where we find the judge's disposition of petitioner's motions to
may be issued upon proof by preponderance of evidence in be sound and well-taken.
the action for legal separation. 3 No criminal proceeding or
conviction is necessary. To this end, the doctrine in Francisco WHEREFORE, the instant petition is hereby DISMISSED.
vs. Tayao 4 has been modified, as that case was decided under Costs against petitioner.
Act. No. 2710, when absolute divorce was then allowed and
had for its grounds the same grounds for legal separation SO ORDERED.
under the New Civil Code, with the requirement, under such
former law, that the guilt of defendant spouses had to be Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ.,
established by final judgment in a criminal action. That concur.
requirement has not been reproduced or adopted by the
framers of the present Civil Code, and the omission has been

uniformly accepted as a modification 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 find 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