Article 68 of the Family Code states: "The husband and wife are obliged to live together, observe mutual love, respect and fidelity, and render mutual help and support." Since living together and observing mutual love, respect and fidelity are obligations under the law, the question is, can a wife or husband legally compel his or her spouse to come home and comply with such obligations? This was answered in the case of:
Ilusorio vs. Bildner
GR No. 139789, May 12, 2000; 332 SCRA 169
Facts: Potenciano Ilusorio, a lawyer, is about 86 years of age possessed of extensive property valued at millions of pesos. For many years, he was Chairman of the Board and President of Baguio Country Club. In 1942, he married Erlinda Kalaw. They lived together for a period of thirty (30) years until they separated from bed and board in 1972 for undisclosed reasons. Potenciano lived at Makati every time he was in Manila and at Illusorio Penthouse, Baguio Country Club when he was in Baguio City. Erlinda, on the other hand, lived in Antipolo City.
In 1997, upon Potenciano’s arrival from the United States, he stayed with Erlinda for about five (5) months in Antipolo City. The children, Sylvia and Erlinda Ilusorio Bildner, alleged that during this time, their mother gave Potenciano an overdose of 200 mg instead of 100 mg Zoloft, an antidepressant drug prescribed by his doctor. As a consequence, Potenciano’s health deteriorated.
On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano did not return to Antipolo City and instead lived in Makati. Erlinda filed with the CA a petition for habeas corpus to have the custody of Potenciano alleging that respondents Sylvia and Bildner refused her demands to see and visit Potenciano. The CA allowed visitation rights to Erlinda for humanitarian consideration but denied the petition for habeas corpus.
Issue: May a wife secure a writ of habeas corpus to compel her husband to live with her in their conjugal dwelling?
Held: No. a writ of habeas corpus extends to all cases of illegal confinement or detention, or by which the rightful custody of a person is withheld from the one entitled thereto. To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action. The illegal restraint of liberty must be actual and effective, not merely nominal or moral.
The evidence shows that there was no actual and effective detention or deprivation of lawyer Potenciano Ilusorio’s liberty that would justify the issuance of the writ. The fact that Potenciano Ilusorio is about 86 years of age, or under medication does not necessarily render him mentally incapacitated. Soundness of mind does not hinge on age or medical condition but on the capacity of the individual to discern his actions.
With his full mental capacity coupled with the right of choice, Potenciano Ilusorio may not be the subject of visitation rights against his free choice. Otherwise, we will deprive him of his right to privacy. Needless to say, this will run against his fundamental constitutional right.
The Court of Appeals missed the fact that the case did not involve the right of a parent to visit a minor child but the right of a wife to visit a husband. In case the husband refuses to see his wife for private reasons, he is at liberty to do so without threat of any penalty attached to the exercise of his right.
No court is empowered as a judicial authority to compel a husband to live with his wife. Coverture cannot be enforced by compulsion of a writ of habeas corpus carried out by sheriffs or by any other mesne process. That is a matter beyond judicial authority and is best left to the man and woman’s free choice.
