The essential marital obligation under the Family Code is, “To procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage.” Constant non-fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage (Chi Ming Tsoi vs. CA; G.R. No. 119190, Jan. 16, 1997).
Based on the above pronouncement, we now wonder: how important is sex in the union of the spouses? Is it politically correct to say that sex stabilizes the said relationship? But on a different note, what if the expectation on bed of the other spouse was not met by the other? Is there an alternative? A remedy perhaps?
We have to take note that a sexless union alone is not a ground to declare a marriage null and void. However, annulment has one of its grounds the “physical impossibility of consummating marriage”.
(Nullity of Marriage and Annulment are of different specie although most of the time people do use them interchangeably).
Sex does not make up marriage; we have to be clear on that. However, the primordial essence of marriage is to procreate. If the spouses are fine with the kind of set up they have (a sexless union), then there is no problem with that. All praises to them. But if the other spouse is too desperate to have an offspring out of that union then the problem lies to this fact now.
At this juncture, the spouses are often times confronted with this: “Should I still stay? Is it worth it? Is it enough to grow old and die with my partner without a descendant looking after us?”
Allow me to share the story of Chi Ming Tsoi.
A marriage between a Filipino and a Chinese national transpired on May 22, 1988 at the Manila Cathedral. Right after the wedding, the newly wed went to live in Chi Ming Tsoi’s mother’s house. The slept together and share the same bed –but nothing sexual happened.
In the version of the Filipina, she stated that the sexless nights went on further day in and day out. He would simply lie on bed, turn his back against her, and sleep profusely for the hell he cares.
In an effort to have intimate moments with each other, they planned their honeymoon in Baguio City. Surprisingly, her husband invited her mother and uncle, and his mother and nephew to come along with them. No sexual intercourse between them happened since the husband appeared to be avoiding her by talking long walks during sieta time or by just simply sleeping on the rocking chair situated at the living room.
The two slept together on the same bed for one whole year without having any sexual intercourse. She claimed that she has never seen her husband’s private part.
Because of this, the two submitted themselves to medical examinations at the Chinese Medical Hospital. The results revealed that she was perfectly healthy. His, on the contrary, was never revealed or shown to her. No medicine was prescribed for her but there was for her husband. No treatment for her was required; her husband was required to return to the doctor but he never did.
She claimed that he was impotent, a closet homosexual as he did not show his penis. She said that she had observed him using an eyebrow pencil and sometimes the cleansing cream of his mother. And that, according to her, he married her, a Filipino citizen, to acquire or maintain his residency status here in the country and to publicly maintain the appearance of a normal man.
He denied all her accusations. He said that if their marriage will be annulled on the ground of psychological incapacity then the fault lies with her.
But, he said that he does not want his marriage with his wife annulled for several reasons, viz: (1) that he loves her very much; (2) that he has no defect on his part and he is physically and psychologically capable; and, (3) since the relationship is still very young and if there is any differences between the two of them, it can still be reconciled and that, according to him, if either one of them has some incapabilities, there is no certainty that this will not be cured. He further claims, that if there is any defect, it can be cured by the intervention of medical technology or science.
He admitted that since their marriage on May 22, 1988, until their separation on March 15, 1989, there was no sexual contact between them. But, the reason for this, according to him, was that everytime he wants to have sexual intercourse with his wife, she always avoided him and whenever he caresses her private parts, she always removed his hands. He claimed that he forced his wife to have sex with him only once but he did not continue because she was shaking and she did not like it. So he stopped.
He insisted that their marriage will remain valid because they are still very young and there is still a chance to overcome their differences.
He submitted himself to a physical examination. His penis was examined by Dr. Sergio Alteza, Jr., for the purpose of finding out whether he is impotent . As a result thereof, Dr. Alteza submitted his Doctor’s Medical Report where it was stated that there was no evidence of impotency and he was capable of erection. Further, that he asked him to masturbate to find out whether or not he has an erection and he found out that from the original size of two (2) inches, or five (5) centimeters, the penis lengthened by one (1) inch and one centimeter. Dr. Alteza said, that the husband had only a soft erection which is why his penis was not in its full length. But, still is capable of further erection, in that with his soft erection, he is capable of having sexual intercourse with a woman.
Unfortunately, despite how hard the husband fought for them, the court granted the prayer of the wife to have their marriage declared null and void on the ground of psychological incapacity.
In this case, the court did not make a finding on who between husband and wife refuses to have sexual contact with the other. The fact remains, however, that there has never been coitus between them. At any rate, since the action to declare the marriage void may be filed by either party, i.e., even the psychologically incapacitated, the question of who refuses to have sex with the other becomes immaterial.
The court in this case further stated that, assuming it was the wife who refused to have sex, the husband could have discussed with her or asked her what is ailing her, and why she balks and avoids him everytime he wanted to have sexual intercourse with her. He never did. At least, there is nothing in the record to show that he had tried to find out or discover what the problem with his wife could be. What he presented in evidence is his doctor’s Medical Report that there is no evidence of his impotency and he is capable of erection.
If a spouse, although physically capable but simply refuses to perform his or her essential marriage obligations, and the refusal is senseless and constant, Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. Senseless and protracted refusal is equivalent to psychological incapacity. Thus, the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity.
There we have it.
It must be taken note of that during the case of Chi Ming Tsoi, no clinical or medical report was presented to the court to show that either or both of the parties are psychologically incapacitated (this is the ground used by the wife).
One month thereafter, in the case of Republic vs CA (G.R. No. 108763, February 13, 1997, 268 SCRA 198, 209-213), the Court declared that the psychological incapacity of either or both parties must be medically or clinically identified.
Just one month short. Poor Chi Ming Tsoi.