Wrong father

Since absolute divorce is not allowed under existing laws, the only way that the marriage bond can be dissolved is by the death of one of the spouses. If the husband is the one who dies, the widow is prohibited from marrying within 301 days (Art. 351, Revised Penal Code). No marriage license shall be issued within such period so as to prevent confusion as to the paternity of any child she may give birth to. Hence, if the widow has already given birth within 300 days, she can remarry because then, there will be no more confusion to the paternity of said child.

What happened to Melisa is something like this. On March 13, 2010, she married Andy. For five years, Melisa bore no child despite the fact that they were living together as husband and wife. The couple had themselves examined by a doctor. The doctor told them that they are not going to have any child because Andy was sterile.

Despite her intense desire to have a child, Melisa had to accept her fate. Then two years later, another tragedy occurred in her life, Andy died on June 2017.

After Andy’s death, Melisa, still young, met Ramon. Still nursing her desire to have her child, she married Ramon 90 days after Andy’s death.

So, Melisa was prosecuted for the crime punishable under Art. 351 of the RPC imposing imprisonment on a widow marrying within 301 days from the death of her husband. Is Melisa guilty?

No. The avowed purpose of the prohibition is to avoid confusion as to the paternity of any child of Melisa. Since her dead husband has been proven to be sterile or incapable of procreation, then the reason for the law ceases. Melisa can cite the decision of the Court of Appeals in People vs. Masinsin, GR 9157-R, June 4, 1953.

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