ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER and SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE, respondents. Mesm

May a wife secure a writ of habeas corpus to compel her husband to live with her in conjugal bliss? The answer is no. Marital rights including coverture and living in conjugal dwelling may not be enforced by the extra-ordinary writ of habeas corpus.

A writ of habeas corpus extends to all cases of illegal confinement or detention,1 [Ordoñez vs. Vinarao, 239 SCRA 114 (1994)] or by which the rightful custody of a person is withheld from the one entitled thereto.2 [David vs. Court of Appeals, 250 SCRA 82 (1995)] Slx

"Habeas corpus is a writ directed to the person detaining another, commanding him to produce the body of the prisoner at a designated time and place, with the day and cause of his capture and detention, to do, submit to, and receive whatsoever the court or judge awarding the writ shall consider in that behalf."3 [Moran, Comments on the Rules of Court, Vol. III, 1997 edition, p. 780, citing Bouvier’s Law Dictionary.]

It is a high prerogative, common-law writ, of ancient origin, the great object of which is the liberation of those who may be imprisoned without sufficient cause.4 [Velasco vs. Court of Appeals, 245 SCRA 677 (1995); Umil vs. Ramos, 202 SCRA 251 (1991); Arriba vs. People, 107 SCRA 191 (1981), citing Chief Justice Marshall, Ex parte Watkins, 3 Pet. 193, 202 (1830)] It is issued when one is deprived of liberty or is wrongfully prevented from exercising legal custody over another person.5 [Ortiz vs. Del Villar, 57 Phil. 19 (1932)]

The petition of Erlinda K. Ilusorio6 [In G. R. No. 139789, filed on October 11, 1999, for certiorari under Rule 45, 1997 Rules of Civil Procedure, Rollo, pp. 10-26.] is to reverse the decision7 [In CA-G.R. SP No. 51689, promulgated on April 5, 1999, Rollo, pp. 29-38.] of the Court of Appeals and its resolution8 [Issued on August 25, 1999, Rollo, pp. 40-43.] dismissing the application for habeas corpus to have the custody of her husband, lawyer Potenciano Ilusorio and enforce consortium as the wife.

On the other hand, the petition of Potenciano Ilusorio9 [In G. R. No. 139808, filed on September 14, 1999, for certiorari as a Special Civil Action under Rule 65, 1997 Rules of Civil Procedure, Rollo, pp. 3-35.] is to annul that portion of the decision of the Court of Appeals giving Erlinda K. Ilusorio visitation rights to her husband and to enjoin Erlinda and the Court of Appeals from enforcing the visitation rights.

The undisputed facts are as follows: Scslx

Erlinda Kalaw Ilusorio is the wife of lawyer Potenciano Ilusorio.

Potenciano Ilusorio is about 86 years of age possessed of extensive property valued at millions of pesos. For many years, lawyer Potenciano Ilusorio was Chairman of the Board and President of Baguio Country Club.

On July 11, 1942, Erlinda Kalaw and Potenciano Ilusorio contracted matrimony and lived together for a period of thirty (30) years. In 1972, they separated from bed and board for undisclosed reasons. Potenciano lived at Urdaneta Condominium, Ayala Ave., Makati City when he was in Manila and at Ilusorio Penthouse, Baguio Country Club when he was in Baguio City. On the other hand, Erlinda lived in Antipolo City.

Out of their marriage, the spouses had six (6) children, namely: Ramon Ilusorio (age 55); Erlinda Ilusorio Bildner (age 52); Maximo (age 50); Sylvia (age 49); Marietta (age 48); and Shereen (age 39).

On December 30, 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 (Lin), 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 in New York, U.S.A. As a consequence, Potenciano’s health deteriorated.

On February 25, 1998, Erlinda filed with the Regional Trial Court, Antipolo City a petition10 [Guardianship Proceeding No. 99-757.] for guardianship over the person and property of Potenciano Ilusorio due to the latter’s advanced age, frail health, poor eyesight and impaired judgment.

On May 31, 1998, after attending a corporate meeting in Baguio City, Potenciano Ilusorio did not return to Antipolo City and instead lived at Cleveland Condominium, Makati. Slxsc

On March 11, 1999, Erlinda filed with the Court of Appeals a petition for habeas corpus to have the custody of lawyer Potenciano Ilusorio. She alleged that respondents11 [In G. R. No. 139789.] refused petitioner’s demands to see and visit her husband and prohibited Potenciano from returning to Antipolo City.

After due hearing, on April 5, 1999, the Court of Appeals rendered decision the dispositive portion of which reads:

Hence, the two petitions, which were consolidated and are herein jointly decided.

As heretofore stated, a writ of habeas corpus extends to all cases of illegal confinement or detention,13 [Ordoñez vs. Vinarao, supra, Note 1.] or by which the rightful custody of a person is withheld from the one entitled thereto. It is available where a person continues to be unlawfully denied of one or more of his constitutional freedoms, where there is denial of due process, where the restraints are not merely involuntary but are unnecessary, and where a deprivation of freedom originally valid has later become arbitrary.14 [Moncupa vs. Ponce Enrile, 141 SCRA 233 (1986)] It is devised as a speedy and effectual remedy to relieve persons from unlawful restraint, as the best and only sufficient defense of personal freedom.15 [Villavicencio vs. Lukban, 39 Phil. 778, 788 (1919)] Jksmä â Ó

The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint, and to relieve a person therefrom if such restraint is illegal.16 [Sombong vs. Court of Appeals, 252 SCRA 663 (1996)]

To justify the grant of the petition, the restraint of liberty must be an illegal and involuntary deprivation of freedom of action.17 [Sombong vs. Court of Appeals, supra.] The illegal restraint of liberty must be actual and effective, not merely nominal or moral.18 [Zagala vs. Ilustre, 48 Phil. 282 (1925), citing 29 C. J., sec. 13.]

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 lawyer 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.

After due hearing, the Court of Appeals concluded that there was no unlawful restraint on his liberty.

The Court of Appeals also observed that lawyer Potenciano Ilusorio did not request the administrator of the Cleveland Condominium not to allow his wife and other children from seeing or visiting him. He made it clear that he did not object to seeing them.

As to lawyer Potenciano Ilusorio’s mental state, the Court of Appeals observed that he was of sound and alert mind, having answered all the relevant questions to the satisfaction of the court.

Being of sound mind, he is thus possessed with the capacity to make choices. In this case, the crucial choices revolve on his residence and the people he opts to see or live with. The choices he made may not appeal to some of his family members but these are choices which exclusively belong to Potenciano. He made it clear before the Court of Appeals that he was not prevented from leaving his house or seeing people. With that declaration, and absent any true restraint on his liberty, we have no reason to reverse the findings of the Court of Appeals.

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. Esä m

The Court of Appeals exceeded its authority when it awarded visitation rights in a petition for habeas corpus where Erlinda never even prayed for such right. The ruling is not consistent with the finding of subject’s sanity.

When the court ordered the grant of visitation rights, it also emphasized that the same shall be enforced under penalty of contempt in case of violation or refusal to comply. Such assertion of raw, naked power is unnecessary.

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.

WHEREFORE, in G. R. No. 139789, the Court DISMISSES the petition for lack of merit. No costs.

In G. R. No. 139808, the Court GRANTS the petition and nullifies the decision of the Court of Appeals insofar as it gives visitation rights to respondent Erlinda K. Ilusorio. No costs.

Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur. 5/31/00 10:02 AM