G.R. No. 26795, July 31, 1970


Carmen Quimiguing (petitioner) and Felix Icao (defendant) were neighbors, and had close and confidential relations. The defendant, although married, succeeded in having carnal intercourse with petitioner several times by force and intimidation, and without her consent. As a result she became pregnant, despite efforts and drugs supplied by defendant, and petitioner had to stop studying. Hence, she claimed support at P120.00 per month, damages and attorney’s fees.

The defendant contended that the case be dismissed since it did not allege that the child had been born. After hearing arguments, the trial judge sustained defendant’s motion and dismissed the complaint. Petitioner moved to amend the complaint that as a result of the intercourse, she gave birth to a baby girl but the court ruled that “no amendment was allowable since the original complaint averred no cause of action”.


Whether or not the petitioner has the right to claim for support and damages.


A conceived child, although as yet unborn, is given by law a provisional personality of its own for all purposes favorable to it, as explicitly provided in Article 40 of the Civil Code of the Philippines. The unborn child, therefore, has a right to support from its progenitors.

It is thus clear that the lower court’s theory that Article 291 of the Civil Code declaring that support is an obligation of parents and illegitimate children “does not contemplate support to children as yet unborn,” violates Article 40 aforesaid, besides imposing a condition that nowhere appears in the text of Article 291. It is true that Article 40 prescribing that “the conceived child shall be considered born for all purposes that are favorable to it” adds further “provided it be born later with the conditions specified in the following article” (i.e., that the foetus be alive at the time it is completely delivered from the mother’s womb).

Auxiliary reason: A second reason for reversing the orders appealed from is that for a married man to force a woman not his wife to yield to his lust constitutes a clear violation of the rights of his victim that entitles her to claim compensation for the damage caused. Says Article 21 of the Civil Code of the Philippines:

ART. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

The rule of Article 21 is supported by Article 2219 of the same Code:
ART 2219. Moral damages may be recovered in the following and analogous cases:
(3) Seduction, abduction, rape or other lascivious acts
Hence, the girl has a cause of action.

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