PROBLEM:
Mr. A desires to seek your services as counsel. His problem is that he has young daughter B, who is only 16 years old. B eloped with Mr. C, who is 26 years old. Mr. A the father desires to regain the custody of his minor daughter. As counsel for Mr. A, discuss all the steps you will take in accordance with your theory which you have formed.
ANSWER:
The question to be decided is whether Mr. A still retains his right to the custody of his minor daughter, B.
The first step is definitely to ascertain the facts and circumstances surrounding the case. The date when B eloped with C, the period of elopement and whether or not a marriage was constituted between B and C after the former eloped with the latter.
If the problem has been brought to my attention after elopement, immediately the second step is to file a petition before the court for the issuance of a writ of habeas corpus directing any lawful officer to take from Mr. C and produce before the Court the person of B and requiring the former to justify his right to the custody of said minor, and, after hearing, to award said custody to his father, Mr. A. But if the elopement happened giving B and C the opportunity to contract a marriage, time has to be considered.
If the elopement and eventual marriage of a minor to a person of legal age took place before the effectivity of the Family Code, the applicable law would be the Marriage Law of 1929 (Act No. 3631), particularly Section 2, which sets forth the required legal capacity of the contracting parties to marriage. On the other hand, if the minor eloped with a man of legal age and contracted marriage with him on or after August 3 of 1988, which is the date of the effectivity of the Family Code, then the pertinent provisions of said Code apply.
In the case of Ching Huat vs. Co Heong (GR. No. L-1211, January 30, 1947), Maria Ching, was then 15 years of age at the time she agreed to elope with and marry respondent Co Heong, 21 years of age or more, on June 21, 1946 in Plaridel Bulacan, before the Justice of the Peace of said municipality. Her father, Ching Huat, alleged that respondent, took advantage of his confidential and spiritual relation with Maria Ching as her godfather, and persuaded and induced her by means of trick, promises and cajolery, to leave the parental home and to elope with him in the night of June 21, 1946. However, the Court held that by virtue of Section 2 of Act No. 3631 or otherwise known as the Marriage Law of 1929, Maria Ching was already in her marriageable age. The marriage was valid as both complied with the essential requisites of marriage applicable during that time. Having been validly married on June 21, 1946, she became emancipated on that same date (as provided in arts. 314 [1] and 315, of the old Civil Code). This emancipation brought about the loss by her father of the parental authority that he was claiming. Hence, in this case, the Court denied the petition of Ching Huat for the issuance of a Writ of Habeas Corpus.
Citing the foregoing case, it is clear that if the situation of B is as such, then Mr. A has no remedy by reason of the marriage as well as emancipation from parental authority. The second step should therefore to advise A of the consequences of actions to be taken.
If however, considering the minority of B who eloped with C at the time or after the Family Code took effect on August 3, 1988, the petition for the issuance of a Writ of Habeas Corpus may pursue.
Mr. A could also file civil and criminal charges against Mr. C for the grievous moral wrong he committed and for seducing his minor daughter into contracting marriage with him.
As for the civil aspect, he may file on behalf of her daughter a petition for the declaration of the nullity of marriage under Art. 35 (1) of the Family Code.[1]
If Mr. C had carnal knowledge with B, A may likewise file a criminal suit against him for simple seduction under Art. 338 of the Revised Penal Code[2] or if only acts of lewdness were committed, Acts of Lasciviousness under Art. 339 of the RPC[3].
[1] Art. 35. The following marriages shall be void from the beginning:
(1) Those contracted by any party below eighteen years of age even with the consent of parents or guardians, xxx
[2] Art. 338. Simple seduction. — The seduction of a woman who is single or a widow of good reputation, over twelve but under eighteen years of age, committed by means of deceit, shall be punished by arresto mayor.
[3] Art. 339. Acts of lasciviousness with the consent of the offended party. — The penalty of arresto mayor shall be imposed to punish any other acts of lasciviousness committed by the same persons and the same circumstances as those provided in Articles 337 and 338.
