DIEGO DE LA VIA, petitioner, vs.

ANTONIO VILLAREAL, as Auxiliary Judge of First Instance,

and NARCISA GEOPANO, respondents. Johnson, J.
FACTS: The purpose of the action is to obtain an order declaring: (a) That the respondent
(Villareal) has no jurisdiction to take cognizance of a certain action for divorce instituted by
Narcisa Geopano against her husband; (b) That the said respondent judge has exceeded his
power and authority in issuing a preliminary injunction against the said petitioner prohibiting
him from alienating or encumbering any part of the conjugal property during the pendency
of the action; and (c) That all proceedings theretofore had in said court were null and void.
Narcisa Gepano filed a complaint (dated Sept 17, 1917) against Dela Vina, they were
married in the year 1888 in Negros Oriental, lived together, and had nine children. They had
also acquired property, real and personal (P300,000) all of which are under the
administration of Dela Vina. Since 1913 the defendant had been committing acts of adultery
with an Ana Calog, sustaining illicit relations with her and having her as his concubine.
Because of this Dela Vina ejected Narcisa from their conjugal home. The Narcisa had no
means of support and was living only at the expense of one of her daughters. She was
praying for: (1) Decree of divorce; (2) Partition of the conjugal property; (3) Alimony pendent
lite in the sum of P400 per month; and (4) That a preliminary injunction be issued against
Dela Vina restraining and prohibiting from alienating or encumbering the property which
belonged to their conjugal partnership. Dela Vina opposed the said motiondemurred the
complaint upon the ground that the court had no jurisdiction to take cognizance of the
cause, nor over his person. The Trial Court overruled the his demurrer, and granted the
preliminary injunction prayed for by the Narcissa. Dela Vina contents that the CFI of Iloilo
had no jurisdiction: he was a resident of Negros Oriental and Narcisa his must also be
considered resident of the same provincethe domicile of the husband is the domicile of
wife (according to law); she could not acquire a residence in Iloilo before the marriage
between her and the defendant was legally dissolved. He asserts that husband is the
manager of the conjugal partnershipempowered to alienate and encumber the conjugal
property without the consent of wife therefore no right of hers was violated.
ISSUES: 1) May a married woman ever acquire a residence or domicile separate from that of
her husband during the existence of the marriage? 2) In an action for divorce, brought by
the wife against her husband (in which the partition of the conjugal property is also prayed
for) may the wife obtain a preliminary injunction against the husband restraining and
prohibiting him from alienating or encumbering any part of their conjugal property during
the pendency of the action?
HELD: Petition is DENIED.
1) The general principle, is that the domicile of husband is domicile of wife (theoretic identity
of person and of interest) but this is not an absolute rule though, just a presumption a. The
wife may acquire another and separate domicile from that of her husband where the
theoretical unity of husband and wife is dissolved as it is by the institution of divorce
proceedings or where the husband has given cause for divorce; or where there is separation
of the parties by agreement or a permanent separation due to desertion of the wife by the
husband or attributable to cruel treatment on the part of the husband; or where there has
been a forfeiture by the wife of the benefit of the husbands domicile b. The maxim that the
domicile of the husband is the domicile of the wife cannot be applied to oust the court of its
jurisdiction c. When the tacit consent of the husband and other circumstances justify it, for
the purpose of determining jurisdiction, the habitual residence of the woman should be
considered as her domicile where her right may be exercised in accordance with art 63. d.
Furthermore, in this case there is no longer an identity of persons and of interest between
the husband and the wifetherefore, the law allowed her to acquire a separate residence
2) Sec 164 of Act no 190: A preliminary injunction may be granted when it is established
that: a) Plaintiff is entitled to the relief demanded b) The commission or continuance of some
act complained of during the litigation would probably work injustice to the plaintiff c)
Defendant is doing or threatenssome act probably in violation of the plaintiffs rights The

husband should not injure but promote the interest of the wifewhen the harmonious
relationship ceases, and the wife seeks to dissolve the marriage and to partition conjugal
property, it is but just and proper, in order to protect the interests of the wife that the
husbands power of administration be curtailed during the pendency of the action. In this
case the right the plaintiff is seeking after is not the right to administer the conjugal property
but the RIGHT TO SHARE in the conjugal partnership. The power to grant preliminary
injunctions, both preventive and mandatory, is a logical and necessary incident of the
general powers conferred upon the CFIs as courts of record of general and unlimited original
jurisdiction both legal and equitable. In an action for divorce brought by the wife against the
husband, in which the partition of the conjugal property is also prayed for, the wife may
obtain a preliminary injunction against the husband prohibiting the latter from alienating or
encumbering any part of the conjugal property during the pendency of the action. CFI judge
had jurisdiction to hear and determine the action for divorce and he did not exceed his
power and authority in issuing the preliminary injunction against the defendant.