G.R. No. 139789, 139808, 19 July 2001


Erlinda Ilusorio, the the wife of Potenciano, filed a petition with the Court of Appeals for habeas corpus to have custody of her husband in consortium. However, the Court of Appeals promulgated its decision dismissing the petition for lack of unlawful restraint or detention of the subject, Potenciano Ilusorio.

Erlinda Ilusorio filed with the Supreme Court an appeal via certiorari pursuing her desire to have custody of her husband Potenciano Ilusorio. This case was consolidated with another case filed by Potenciano Ilusorio and his children, Erlinda Bildner and Sylvia Ilusorio appealing from the order giving visitation rights to his wife, asserting that he never refused to see her. The Supreme Court dismissed the petition for habeas corpus for lack of merit, and granted the petition to nullify the Court of Appeals’ ruling giving visitation rights to Erlinda Ilusorio.


Whether or not a court can validly issue an order compelling the husband to live together and observe mutual love, respect and fidelity


Erlinda claimed that she was not compelling Potenciano to live with her in consortium but clearly she wanted the latter to live with her and is the root cause of her petition. What the law provides is that “husband and wife are obliged to live together, observe mutual love, respect and fidelity”. The sanction thereof is the “spontaneous, mutual affection between husband and wife and not any legal mandate or court order to enforce consortium.

Evidently, there was absence of empathy between Erlinda and Potenciano having separated from bed and board since 1972. Empathy as defined by SC is a “shared feeling between husband and wife experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion”. Marital union is a two-way process. It is for two loving adults who view the relationship with respect, sacrifice and a continuing commitment to togetherness, conscious of its value as a sublime social institution.

* Case digest by Mary Jade L. Capin, LLB-1, Andres Bonifacio Law School, SY 2017-2018