G.R. No. L-2474. May 30, 1951
Petitioner Mariano Andal filed for recovery of the ownership and possession of a parcel of land in Camarines Sur on the ground that he is the surviving son of Emiliano Andal and Maria Duenas. Mariano argues that the land was acquired by Emiliano from his mother, respondent Eduvigis Macaraig, by donation propter nuptias. However, the legitimacy of Mariano was questioned in this case on the ground that Emiliano was sick of tuberculosis from January 1941 until he became disabled in September 1942. Since May 1942, Maria and Felix, the brother of Emiliano, are having an adulterous relationship. In June 1943, Maria gave birth to Mariano Andal the petitioner.
Is the child legitimate?
Yes. Mariano Andal is presumed to be the legitimate son because he was born within three hundred days following the dissolution of the marriage [Article 108 of Civil Code]. That presumption can only be rebutted by proof that it was physically impossible for the husband to have had access to his wife during the first 120 days of the 300 next preceding the birth of the child.
|Birth of Mariano||300 days preceding Mariano’s birth||Was Emiliano still sexually capable?|
|June 1943||Around August 1942||Yes. He only became disabled in September 1942 (He has still one month to impregnate his wife and TB is not a hindrance)|
The fact that the wife committed adultery cannot overcome this presumption. Although the husband was already suffering from tuberculosis… that is no evidence of impotency, nor does it prevent carnal intercourse. “the reputation of the tuberculous towards eroticism (sexual propensity) is probably dependent more upon confinement to bed than the consequences of the disease.” -Hyman
Note: This 300/180 computation might be obsolete because of the scientific method of proving filiation: DNA Testing