*529DISSENTING OPINION OP
MR. JUSTICE CORDOVA IN WHICH MR. JUSTICE SNYDER CONCURS.I dissent from that part of the judgment and opinion of the court which holds that the- plaintiff is not a natural child of the defendant.
Plaintiff was conceived within the period of 301 days after her mother was divorced. Could her parents have married at that time? Section 70 of the Civil Code, literally construed, answers that question in the negative. It provides that a widow or a divorcee has no • capacity to marry during the period of 301 days from the death of her husbaild or the rendition of the divorce decree. If we follow the letter of $ 70, plaintiff’s mother could not remarry at the time her daughter was conceived. She then had no capacity to marry.
But § 70 should not be literally construed. All the justices of this court concur in that its scope was interpreted correctly in Cintrón v. Román, 36 P.R.R. 437, where it was held that the marriage contracted by a divorcee two months after the rendition of the decree of divorce was not void, but voidable, and that it could not be annulled once the period of 301 days from the date of the divorce decree had elapsed. We then stated:
“. . . It ould be a violation of the spirit of section 178 1 if it were held that the prohibition imposed on a widow or on a woman who has been divorced ... is an essential requisite to contract marriage ...”
The holding in the case of Cintrón v. Román, supra, is, therefore, that a widow or a divorcee can remarry within the period of 301 days after becoming a widow or having obtained a decree of divorce, that she has capacity to contract marriage. This being so, the plaintiff is a natural child of the defendant, since her parents could have married at the time of her conception.
*530The case at bar does not essentially differ from the case of a child of -unmarried parents, the mother being a minor under sixteen years of age. Section 70 of the Code provides that a female under sixteen years of age lacks capacity to contract marriage. But it adds (as the case of Cintrón v. Román, supra, adds something similar.as to the “incapacity” of a widow or a divorcee) that the marriage shall be validated if the woman conceives before the age of legal puberty, or before an action of nullity is brought. Is the child of a single woman under sixteen years of age, the father being also single, a natural child? Undoubtedly, to my mind. The “incapacity” of the mother does not exclude the possibility of her contracting marriage at the time of conception. She may marry, and if she does, the marriage is validated at the time she conceives. The same thing happens with a widow or a divorcee. The “incapacity” during the term of 301 days does not exclude the possibility of her contracting marriage. If she contracts marriage and does not give birth until after the period of 301 has expired, there is no possibility of confusion regarding paternity, and the marriage is valid. A widow or a divorcee should not marry prior to the expiration of the period of 301 days and neither should a minor under sixteen years of age do so. But she may do it, and if she does, the marriage may result perfectly valid ah initio.
I conclude that at the time the plaintiff was conceived, her parents could have married and that therefore ■ she is entitled to be declared a natural child, and not an illegimate child, of the defendant.
Civil Code of 1902 equivalent to § 70, Civil Code, 1930 ed.