BISSEnTIHG opinion op
mr. chiep JUSTICE HERnÁnDEZ.The only fundamental question to be considered in this appeal is whether the girl Margarita, born on October 10, 1917, should be in the custody of. her natural father, Francisco Colón, or in the custody of her natural mother, Teresa ■Eojas, who demands her delivery by means of a writ of habeas corpus.
*809It is true that, according to section 222 of the Civil Code as amended, the patria potestas over the said child belongs to the father and none of the legal reasons stated in section 236 of that code for depriving him of the patria potestas or suspending him in the exercise thereof were shown. Nevertheless, I am of the opinion that it is not an essential requisite for the exercise of the patria potestas that the child should live with the father, for if that were the case a child acknowledged at birth by its natural father, who was not living with the mother, should be delivered to the father and would thus be deprived of the care of its mother, including lactation, which would be an inhuman act contrary to the principle that the patria potestas is not a benefit for the father or for the mother, but for the child which needs it.
Section 223 of the Civil Code in recognizing the rights of the father and the mother with respect to their uneman-cipated children, does not confer these rights exclusively on the father, as was expressly done by section 155 of the Spanish Civil Code. The duty of supporting the children rests not only on the father'but also on the mother.
I here ratify the doctrine stated in the dissenting opinion which, together with my illustrious colleague, Mr. Justice Hutchison, I delivered in Arbona v. Torres, 24 P. R. R. 428-434, corroborated by the opinions of the commentators Man-resa and Scaevola, respecting the girl Rosa, born in the year 1912, whose custody was claimed by the father from her natural mother. In this case, as I have before pointed out, the girl Margarita was born in the year 1917 and needs the care of her mother more than Rosa did.
The judgment of the court below should have been affirmed, ordering that the girl Margarita remain in the custody and under the care of her mother, Teresa Rojas.