GR 26795; (July, 1970) (Digest)
G.R. No. 26795 July 31, 1970
Carmen Quimiguing, Suing through her parents, Antonio Quimiguing and Jacoba Cabilin, plaintiffs-appellants, vs. Felix Icao, defendant-appellee.
FACTS
Carmen Quimiguing, assisted by her parents, sued Felix Icao for support and damages. The complaint alleged that the parties were neighbors with close relations; that the married defendant succeeded in having carnal intercourse with the plaintiff several times by force, intimidation, and without her consent; that as a result, she became pregnant and had to stop studying. The defendant moved to dismiss for lack of cause of action because the complaint did not allege the child had been born. The trial court granted the motion and dismissed the complaint. The plaintiff then moved to amend the complaint to allege she had given birth to a baby girl, but the court, sustaining the defendant’s objection, denied the amendment on the ground the original complaint stated no cause of action.
ISSUE
Whether the trial court erred in dismissing the complaint for failure to state a cause of action, specifically: (1) whether an unborn child has a right to support, and (2) whether the plaintiff herself has a cause of action for damages based on the alleged acts.
RULING
Yes, the trial court erred. The orders of dismissal and denial of amendment are reversed and set aside. The case is remanded for further proceedings.
(1) An unborn child (conceived child) has a provisional personality for all purposes favorable to it under Article 40 of the Civil Code. This includes a right to support from its progenitors, even while still “en ventre de sa mere.” The proviso in Article 40 that the child must be born later under specified conditions does not make birth a condition precedent to the right; it is a declarative fact. The lower court’s theory that Article 291 (on support obligations) does not contemplate support for unborn children violates Article 40.
(2) Independently, the plaintiff herself has a cause of action for damages. The complaint alleges the married defendant forced the plaintiff to yield to his lust. This constitutes a willful cause of loss or injury in a manner contrary to morals, good customs, or public policy under Article 21 of the Civil Code, for which moral damages may be recovered under Article 2219(3) and (10). Therefore, the complaint stated a cause of action.