concurring.
I agree in part with the evaluation of the judicial function made by Mr. Justice Saldana in his dissenting opinion. However, I believe that there is a vital element missing from that evaluation and furthermore, that the circumstances of this case do not permit the exercise of the judicial discretion urged by the dissenting opinion. These reasons, and the significance of the question raised, force me to write a separate opinion in which I shall examine the scope of the dissenting proposition, the historic circumstances under which our legislation has developed, the differences between the situation in France and ours, and the attitude and actions of our legislators concerning the family institution.
f — i
The dissenting opinion does not propose that we interpret the phrase “grave injury” as to include exclusively the concealment by the wife of antenuptial pregnancy by another man. This is only an application — perhaps the most ex*159treme — of a more elaborate proposition, recommending the adoption of deceit or fraud as ground for divorce, provided it conforms to the following five requirements: 1 — the fact be concealed in bad faith; 2 — the concealment be prolonged at least until the marriage; 3 — the fact be of a serious nature; 4 — not notorious, and 5 — be totally unknown to the ■other spouse. In order to apply those requirements to concrete situations the standard suggested is “the sense of justice that is a part of the convictions or beliefs that actually influence the people in a community.”
It is indispensable, in my opinion, to give greater concretion to that proposition in order to gauge its scope adequately. It is not necessary to use imaginative resources for that purpose, since fortunately, the experience of several countries offers us valuable illustrations. Let us examine what has occurred in the United States, Germany, and Urance.1 In the former two, fraud or deceit is a ground for .annulment, while in the latter, and by interpretation of the ■phrase “grave injury,” it is a ground for divorce. Although this entails important differences as to the effects worked on the spouses, on the children and the property acquired during the marriage depending on the positive law of each jurisdiction, it has no bearing concerning the end pursued here: to illustrate with real situations the scope of the doctrine.
In American jurisdictions, where fraud is accepted as a ground for annulment,2 the rules for general contracts are applied to marriage, and it is required that concealment, aside from having induced the complainant to contract matrimony, must be of sufficient importance to warrant an intervention of the state in a status of great public interest. It is generally required that such conduct affect the essential relations *160of marriage. Although there are important divergences among the states as to the contents of these general categories, of which New York3 stands out as the most liberal, it is possible to enumerate a list of situations arising before marriage which constitute fraud when concealed from the other spouse. They are the following: antenuptial pregnancy by another man, either by concealing the fact or inducing the husband to believe that the child is his; misrepresentation of pregnancy or that a child already born belongs to the husband; a contagious and incurable disease, generally, a venereal disease;4 sterility; a mental illness that is not manifest at the time of the marriage ceremony5 or a mental illness in the family; absence of love or affection when it is coupled with the secret intention not to consummate the marriage nor appropriate money or property of the other spouse and abandon him; conviction of crime, particularly if the deceived person is a young inexperienced woman; perjury upon obtaining the marriage license; race, when it is in violation of a law that prohibits the integration of races; citizenship, when the effect is the expatriation of the wife or when the other spouse has required citizenship as a specific condition of the marriage; poverty, if the deceived person is a young inexperienced woman, or if defendant has married with the sole purpose to have access to plaintiff’s money; a prior marriage, when the deceived person is young and inexperienced, or when there is a violation of a law that prohibits marriage before certain time has elapsed after the divorce decree; the intention not to consummate the marriage or to do so *161only by use of contraceptives; the refusal to have a religious-ceremony following the civil marriage, where a promise has been made to such effect.6
In Germany, error as well as deceit are grounds for annulment. The former refers to the error of identity and to the error concerning certain essential qualities. The latter covers the case where “in terminating the marriage, one of the contracting spouses errs on certain qualities of the other and, had he known the true situation and pondered rationally over the essence of marriage, would have abstained from contracting it.” 7 The personal qualities, as commented by Kipp-Wolff, are “those traits that characterize an internal good of the personality, in contraposition to the characterization determined by the personal goods or position acquired by the person.” 8
“. . . Therefore, personal qualities are: in the first place, all bodily characteristics, for example, virginity, fertility, health, race, age, also birth; secondly, all the moral qualities, such as kindness, honorableness, flexibility, self-control; thirdly, all the spiritual qualities as intelligence and artistic ability. On the contrary, it being immaterial whether the concept of quality is more strictly applied or whether the personal aspect of the quality is denied, the name, nobility, profession, status within a certain family (so that, for example, a spouse who ignores that the other is not a child by marriage, or the Catholic spouses who ignore that they are related in a canonical degree, which results in an impediment of marriage, cannot attack it), the condition of member of a corporation of public or private law (municipality, nationality, member of an ecclesiastical community), social status and, finally, patrimony are, for such purposes personal qualities. — It is immaterial whether the quality is *162innate or acquired (illness) or whether it constitutes a means of identification, as well as whether in principle, it is lasting or transitory.” 9
Subsequently, and based on German cases, Kipp-Wolff comment on the conditions affecting the essence of marriage.
“Thus, avarice and the vice of squandering, stupidity and conceit, indiscretion and irascibility, nervousness and susceptibility to diseases in general (or to a particular illness) and including a certain tendency to lie, will seldom authorize the one who ignores them to attack the marriage. It rather deals with qualities which need not be tolerated not even by one who is willing to suffer serious deceits. For this purpose great importance will be attached to the conceptions prevailing in the social sphere of the spouses. As grounds for attack, the following deserve special attention: error concerning the virginity of the bride, ignorance as to having been born outside marriage, the ignorance of incurable coendi impotence, and also, undoubtedly, sterility, homosexualism, a serious mental illness (as epilepsy, dementia prsecox, idiocy from birth, morphinism, etc.), ignorance of serious and incurable bodily injuries or, at least, chronical (such as tuberculosis, consumption, non-cured sexual disease), ignorance of criminal tendencies, immoral conduct, serious habit of lying, dipsomania.” 10
In Germany, the fundamental difference between error and deceit, in the aspect which concerns us here, is that in the latter “circumstances which are not personal qualities can be ground for attack, if the error concerning them has been induced by deceit.”
“Of special importance are deceits about degrading penalties suffered by one of the betrothed or their parents, or the existence of paternal consent, deception as to the intention *163to receive the ecclesiastical blessing after the marriage, or to educate the children in a specific religion, concealment of a dishonorable profession or one which is way beneath the bride’s social condition, or the existence of children prior to the marriage, or an operation that destroys the possibilities of bearing children.” 11
In France, although the Code sanctions the error as to the person as ground for annulment, the courts have interpreted it restrictively to include solely the error as to the identity of the person and not as to his qualities. On the contrary, they have elaborated the ground for divorce known as “grave injury” so as to cover fraudulent or deceitful acts performed prior to the marriage and unknown to the spouse requesting the divorce. Compliance with two conditions is required: the fact must be of such seriousness that if known it would have led the other spouse not to contract matrimony, and it must have been concealed from the other spouse or, at least, not revealed to him.12 Under those circumstances, the following facts have been accepted by the French case law:13 impotency of the husband, physical malformation of the wife that precludes consummation or conception, misrepresentation of pregnancy, venereal diseases, ante-nuptial-pregnancy by another man or the existence of a child, lack of virginity in the wife, ecclesiastical status of the husband, mental illness, conviction for an act contrary to honor and moral, entry of the wife in the registry of prostitutes, promise to a third person of an important sum that the future husband could not pay were it not for his wife’s fortune, fraudulent promise to educate a child in the Catholic religion or to have a religious ceremony following the civil marriage.
*164As may be noted from this brief summary of the American, German, and French experience,14 the acceptance of fraud or deceit as a ground for divorce would constitute a very radical innovation in our family law that would deeply affect our marriage system. I do not believe I -exaggerate when I say that in statistical terms,15 as well as by its impact on the institution of the family and on the provisions of law, it would become the most important ground for divorce 'in our country, probably with a greater affluence than “grave injury,” as the latter is conceived at present.
*165II
Let us examine briefly the historical circumstances.
First: Neither the modern Spanish legislation 16 nor the Puerto Rican legislation has ever expressly recognized deceit or fraud as a ground for annulment of marriage or as a ground for divorce. In fact, outside the United States,17 the jurisdictions that have adopted one of these two methods are very few. Luis Fernández Clérigo, in his book El Dere-cho de Familia en la Legislación Comparada (1947), states that such countries as Germany, Switzerland, Sweden, Estonia, and Portugal, in Europe, and Argentina and Mexico, in Latin America, have accepted deceit or fraud or any of its types as ground for annulment (at pp. 110-12), but he does not mention a single one that has accepted it as ground for divorce 18 (at pp. 130-37).
Second: The Puerto Rican legislators received at the beginning of the century a specific proposition to adopt “fraud” as ground for annulment of marriage but they did not approve it. The Report of the Commission to Revise and Compile the Laws of Porto Rico (1901) proposed in § 17 of “An Act Regulating Marriage and Divorce,” the following: “ . . . when the consent of either party shall have been obtained by force, duress or fraud, the marriage shall be void from the time its nullity shall be declared by a court of competent authority, as provided in the next title.” 19
Third: Antenuptial pregnancy by another man has not been expressly included either in the Spanish legislation or in ours as ground for annulment or divorce. As stated in the opinion of the Court, some states of the American Union *166and the republics of Honduras, Nicaragua, and El Salvador, have such provisions. As far as we know, none of the European countries have followed suit.
Fourth: Neither the Spanish decisions nor any of the commentators of the Spanish Civil Code has accepted the interpretation of the ground of “grossly abusive or insulting language or conduct” of said Code (§105), which is the immediate precedent of ours, in the sense of including fraudulent or deceitful antenuptial acts of one of the spouses: The only reference that we have found to that question appears in Scaevola,20 who, owing to the fact that Spanish case law is “fortunately so sterile,” resorts “by way of instructive antecedent” to French case lav/ and includes in the judgments he enumerates some authorities supporting such interpretation.
In reality, as far as we know, that interpretation has not been adopted by the United States, or by Latin America, or by Europe, with the exception of France and Belgium.
Fifth: Spanish decisions have not yet recognized that deceit or fraud can be incorporated to the ground of annulment known as error as to the person by way of interpretation. After asserting that “concealment, mental reserve or deceit do not affect . . . the validity of marriage, with respect to which the Code keeps silent” Castán21 wrote in 1955:
“The question is raised, legitimately — we have said elsewhere — as to whether that error of which the Code speaks strictly means the error as to identity of the person, or whether it also concerns, as in § 1.266 and in the canonical precedents, the qualities enjoyed by the person. The complete lack of authorities applicable to the problem renders the solution difficult, since on the one hand the necessity of *167security in the marriage relations is adduced, while on the other, attention is at least drawn to the importance of the marriage act and the importance of giving the consent freely and without any defect. If it is understood that the formula of the legal precept embraces, as constituting errors of the person, not only error as to the identity (difficult and rare case in practice), but also as to the personal qualities, this last modality must be confined, by analogy to the provisions of § 1.266 dealing with error in the thing which is the subject matter of the contract, to such qualities of the person as may be considered essential in the measure prevailing in the social sphere of the contracting parties.
We have examined the Spanish decisions subsequent to 1954, and we have not found a single judgment with respect to this problem.22
Puig Peña,23 Manresa,24 Scaevola,25 and Sánchez Ro-mán,26 share Castán’s interpretative view, while Valverde,27 Fernández Clérigo,28 and Martínez Ruiz 29 prefer a more restrictive solution which does not admit error as to the qualities of the person, but only as to his identity.
Referring to the error as to the qualities of the person, Fernández Clérigo states that “the opinions differ largely on this type of error as a defect of consent, sufficient to annul the marriage, but the truth is that it is accepted by *168very few legislations.” 30 He states further that France,31 Italy, and Mexico do not accept it, while Germany and Switzerland do.
Louisiana is the only state of the Union that expressly recognizes mistake of the person as a ground for annulment. Following the French precedents, it also interprets that error as referring exclusively to the identity of the person. Sections 91 and 110 of the Civil Code; Delpit v. Young, 25 So. 547 (1899) ; Stier v. Price, 37 So.2d 847 (1949) ; 23 Tul. L. Rev. 582 (1949).
Sixth: The error as to the person as ground for annulment was eliminated from the Puerto Rican legislation in the codification of 1902, and it has never been reinstated. Muñoz Morales considers that it was an omission due to “the haste” of the legislators, who in carrying out the revision of the Code, “did not notice that such circumstance was present in the Spanish Code, in the Louisiana Code, the French and Italian Codes, and in the same bill enacted by that Commission [Code of 1902].” 32 Perhaps the preceding explanation is correct, but several factors militate against it. In the first place, it is a very important provision on an essential matter in family law. Secondly, it expressly appeared in the bill that the Code Commission submitted to the legislators. Thirdly, it was also eliminated from the second paragraph of §111 (179) of the Revised Code of 1902), which provides who can request an annulment of marriage, notwithstanding the fact that it also appeared in the Spanish Code (§ 102) as well as in the bill of the Code Commission. Lastly, the same legislators of 1902, who eliminated error as to the person as a ground for annulment *169of marriage, kept it as a ground for annulment of contracts —§ § 1232 and 1233 of the Code of 1902, now § § 1217 and 1218 of the Code of 1930 — as it appeared in § § 1265 and 1266 of the Spanish Code. In the absence of other evidence, these factors lead us to believe that we are dealing with a •deliberate elimination and not an involuntary omission caused by “haste.” Besides, had this omission been involuntary originally, it is rather hazardous to think that our legislators have “involuntarily” maintained that system of law for more than half a century.
Whether it is a deliberate .elimination or not, the unquestionable fact is that since 1902 error as to the person does not exist in Puerto Rico as a ground for annulment of marriage, thereby doing away with the only provision in the Spanish and Puerto Rican historical law that would have allowed a marriage to be invalidated on the ground of error as to the identity or the -essential qualities of one of the :spouses.33
HH HH I — I
Considering that the dissenting opinion suggests the use ■of French case law as a guide to our own, we must necessarily •examine, although briefly, the historical circumstances34 under which such case law developed.
The Revolution at the end of the eighteenth century produced, as in so many other aspects of French institutional *170life, a radical change in the legislation concerning divorce. Not only was the religious principle of indissolubility rejected —“the power to get a divorce stems from the individual liberty that would be lost by an indissoluble bond/' proclaimed, the law — but in listing the grounds for divorce they went to' the extreme of including mutual consent and incompatibility of characters. Later on, the Civil Code maintained the institution of divorce but eliminated the ground of incompatibility and made it more difficult to obtain a divorce by mutual agreement. In 1816, with the resurgence of Catholicism as. the religion of the state during the Restoration, divorce was suppressed by law. It was not until 1884 that it was reestablished and has remained in force ever since, although important changes have been made in the last years.
In the light of that history, Planiol-Ripert assert that in-France the institution of divorce has been “bound to the conquest of liberty and the political regime” and has been a subject for heated arguments between Catholics and anti-clericals.35 This condition, together with other social tendencies,36 explains, in my opinion, the case law of that country. On the one hand, the legislative power, probably due to serious partisan conflicts, has produced a legislation deeply influenced by the religious concept of marriage as an indissoluble bond, which is obviously manifested in the small number of grounds that it states as constituting cause for divorce (adultery, conviction of crime, corporal attack and grave injury) .37 On the other hand, the judges, upon seeing *171Row the every-day problems of conjugal life and the ferments of a steadily changing society lead to judicial controversies, have naturally felt the suffocating effect of that legislation and have made of “grave injury” a useful vehicle to accommodate the law to such social change. Planiol-Ripert say in this respect: “Together with the precise facts provided by the law, and which actually constitute the specific grounds for divorce, there is a general formula, injury, which has the value of a principle susceptible to indefinite applications. Since then ail the barriers have been torn down, and the truth is that we have in France an unlimited number of specific grounds for divorce. They have been determined by the courts and not by law.” 38
And Fernández Clérigo adds: “As we have just seen, in French law the limited number of grounds for divorce and the narrow concepts in which the latter appears within the legislative framework have been supplied by a very broad interpretation of grave injury made by the courts which has generously unraveled a doctrine born of judicial discretion, in terms that may perhaps indicate an extralimitation.
“Nevertheless, we are forced to recognize that in the majority of the eases, the French courts have been moved by serious situations which reality has brought before them and which could not be ignored.” 39
Since French case law follows the trend of a practically blanket interpretation of the ground of “grave injury,” 40 it *172was an easy task to incorporate therein the concealment of facts occurred prior to the marriage.41 They have persevered in that interpretation, and this, in my opinion, is. the definite proof of the unbalance existing in France between legislation and case law even though § 232 of the-French Code was amended in 1941 so as. to provide that injury should consist of a violation of the duties and obligations “arising from the marriage.” Notwithstanding this strong legislative indication, the French courts continued to* interpret the law as they had done formerly and holding, therefore, that injury can have its origin in the concealment of faults prior to the marriage.42
I — i <1
Should the French situation be assimilated to ours? I. believe not. In the first place, in Puerto Rico divorce has. not generally been the object of heated arguments and much less has it been “bound to liberty and political regime.” It is not within our province to investigate why the institution has been so generally accepted in a country predominantly Catholic. The unquestionable fact is that, except for some isolated protests, there is an almost complete agreement of all the social classes with the prevailing legal provisions and", no serious attempts have been made to change their scope.
*173Secondly, and using Fernández Clérigo’s classification,43' our legislation, contrary to the French, belongs to the group that “state the grounds for divorce specifically and in detail and as a general rule in an express manner.” Having been authorized initially by a military order of March 17, 1899, absolute divorce received its first civil sanction in § 164 of the Revised Code of 1902, today § 96. That article enumerated eight grounds for divorce, five taken from the Spanish Code (adultery, criminal conviction, cruel treatment or grave injury, corruption of children, and proposal of the husband to prostitute his wife) and three from Louisiana (drunkenness, desertion, and impotency). Later, in 1937, there was added separation of both spouses for a period at first seven years and later — 1942—was reduced to three, and in 1938, incurable insanity. I believe that the legislative technique of long and detailed enumeration that has been employed in our country suggests to us a more restrictive interpretation of the law of divorce than the one prevailing in such jurisdictions as France,44 Germany, and Switzer*174land.45 It seems reasonable to believe that after taking the trouble of establishing a long list of grounds for divorce, the legislator meant to create a more precise and concrete formula than the one that would have resulted from the opposite method and thus reduce judicial discretion. That legislative method is of special relevancy when it concerns incorporating into our law, by way of interpretation of one of those causes, a ground for divorce of such enormous proportion and so vitally important as deceit or fraud. Likewise, and continuing this analytical examination, we should not disregard the fact that our law contains a ground of the so-called objective or guiltless nature — separation for three years — by virtue of which the legislator undoubtedly planned to offer a remedy for those conjugal difficulties not specifically found among the other nine grounds.46
Finally, our legislators have given exemplary attention to family law, particularly in the past few years. From 1933, seven amendments have been introduced to the provisions regulating divorce 47 and so many to the other provisions on the family institution that it would be tedious to enumerate *175them.48 Although the legislative action could be criticized for the absence of scientific rigour in the incorporation of new standards to the Civil Code,49 it is fair to recognize that such action has been coupled with social changes and has been based on generous views of human equity. Such trend culminated, as we know, in Article I of our Constitution which forbids in its pertinent part discrimination by reason of sex, birth, origin or social condition. That keen legislative sensibility toward the family institution, so many times shown in the last few years, deters us, once more, from introducing any fundamental change in the legal standards. In view of such history it is fit to conclude that if deceit or fraud is not today a part of our divorce or annulment law it is because there have been no social requirements demanding it.50
Y
I agree that judicial interpretation of the laws should not be governed exclusively by logical or historical processes and that, whether it is admitted or not, on every occasion *176when there is need to choose one of two or more probable meanings, the judge necessarily resorts to value judgments. I accept equally, that on numerous occasions the legislator being prevented from embracing the social reality by means of precise and detailed formulas, then designs a broad principle trusting that, pursuant to the purpose of the law, judicial discretion will apply it justly as the infinite changes of our daily life continually crop up. Our historical law, particularly the Civil Code, contains copious examples of these principles. Section 1802 of that Code,51 which establishes liability for acts or omissions, may perhaps be cited as the best example. In applying those standards there arises an inescapable judicial responsibility of adapting them, as far as possible, to the changing conditions of society, of adding at each instant, without doing violence to their letter or purpose, a new breadth which will permit them to keep abreast of such changes as the guiding rules of social conduct.
However, that task of adaptation cannot be transformed, even in the cases of the most generous legislative delegation, into a purely creative process. In doing that work the judge occupies, by operation of the system, a position subordinate to that of the legislator. The latter has the primary responsibility to initiate the basic changes in public policy and he hands down to the judge the command, at times precise and unequivocal, other times confusing and inaccurate, to which he must adjust his interpretation. The judge, therefore, has the duty to make that conception of his traditional function an essential part of his value judgments and he must orientate his conduct so as to find a meaning and not to create independently a new or better social standard.
One of the great American jurists writes:
*177“The vital difference between initiating policy, often involving a decided break with the past, and merely carrying out a formulated policy, indicates the relatively narrow limits within which choice is fairly open to courts and the extent to which interpreting law is inescapably making law. To say that, because of this restricted field of interpretive declaration, courts make law just as do legislatures is to deny essential features in the history of our democracy. It denies that legislation and adjudication have had different lines of growth, serve vitally different purposes, function under different conditions, and bear different responsibilities. . , . Even in matters legal some words and phrases, though very few, approach mathematical symbols and mean substantially the same to all who have occasion to use them. Other law terms like ‘police power’ are not symbols at all but labels for the results of the whole process of adjudication. In between lies a gamut of words with different denotations as well as connotations. There are varying shades of compulsion for judges behind different words, differences that are due to the words themselves, their setting in a text, their setting in history. In short, judges are not unfettered glos-sators. They are under a special duty not to over-emphasize the episodic aspects of life and not to undervalue its organic processes — its continuities and relationships. For judges at least it is important to remember that continuity with the past is not only a necessity but even a duty.” 52
Another jurist, equally famous, but with a background in civil law, formulates a similar thought:
“The jurist, in conclusion, must work not only on laws positively enacted, but also on juridical principles and concepts in keeping with social policies and facts. But let us not draw therefrom exaggerated consequences that may not *178be adaptable to our judicial system. Puig Brutau goes perhaps too far when he says that the center of gravity of law making, even in the countries of codified law, dwells in the decision of particular cases and not in the formulation of general principles, and when he tells us that the judge-made law is the primary source of objective law. It is advisable, in the face of such bold conclusions, to maintain at all costs the subordinate position of the judge to the law, or rather— since statutes and the law are not identical — to the statutes and the general principles of the law. There is, surely, law making in a judicial judgment. But this creation operates on objective legal and juridical premises. The judge or the jurist has the burden of the inescapable mission of particularizing the law, integrating it with new solutions and within certain limits adapting it to life and rejuvenating it. But this mission cannot alter the function of the law imposed by those juridical commands which like ours, depend on the existence of general principles of positive law that must be applied and adapted to particular cases. In short, in our judicial system there is an original and proper creative formulation of positive law, which is incumbent on the legislator, and an elaboration that might be called reconstructive of law, which operating with positive law as well as with natural law, is incumbent on the judges. We should not underestimate either one or the other.” 53
The interpretation of broad and flexible legal precepts presents to the judge a challenging test. On the one hand he has to make an effort to adapt those principles to the practical realities of social life and that adaptation necessarily involves value judgments. On the other hand, he has to realize his subordinate position within the system and search eagerly in the law, history, general principles of law *179and the basis of the political regime for the landmarks that limit the boundaries of his discretion. These are not, I realize, precise categories, and the conflict between both produces, on specific occasions, grave and painful perplexities.54 The efficiency of the legislator in the choice of words and his great care in making clear the underlying purposes both in the law as well as in the varied sources which are included under the heading of “legislative materials,” contribute strongly to reduce the extent and intensity of the conflicts. The judge, in what concerns him, needs to be constantly alert to the basic differences between the legislative and judicial function and he should have an “instinctive as well as trained” reluctance55 to confuse them.56
I should add that it seems extremely venturesome to assert that in order to decide the problem before us it suffices to make use of the “civil law method” and that it is due to *180that “method” that French courts have so acted. No method has that magic quality. True that civil legislation makes use of formulas and principles conceived in a broad and flexible manner with much more ease than the Anglo-American and, as a general rule, rejects enumeration.57 True, also, that that technique, whenever used,58 produces the effect of broadening the ambit of judicial interpretation. But accepting these realities is not deciding the problem of interpretation. It is, at the most, an initial step, but the real mystery still lies ahead.
What should the judge do once he crosses that threshold? Will he reduce his. discretion exclusively to the letter of the precept? Will he attempt to go further and apply logical, systematical, philosophical, historical, sociological, teleological elements? One or several? If several, in what proportion, with what emphasis? How far will he go in using them? Within the letter of the law, of the general principles of law? Outside or even against the law and such principles? And how will his own intellectual and moral training, his view of life and people, his perception of the ideals of the community and of public order, his sensibility towards social changes, his capacity for self-limitation, influence his deci-' sions? These, and others of like nature, are the real in*181terrogations in the interpretation of law and they do not belong exclusively to any system or any law “method.” In civil law the diverse positions that stem from those questions have had and still have able defenders.59 In France the differences between the view expressed by the ■ decisions of the Court of Cassation (shared by civil writers such as Esmein, Vizioz, Aubry, and Rau) and the view of civil writers such as Laurent, Colin, Capitant, Planiol, and Ripert, are due in turn to the differences between the answers that might be given by either one or the other to the preceding questions and not to the fact that some employ the “civil law method” while others do not.
It is for the foregoing reasons that I cannot subscribe to the analysis by which deceit or fraud may be incorporated into our divorce law. That analysis is conceived, in my opinion, only in terms as to which is the best solution to the problem in the light of an individual appraisal of the cultural requirements and the “justice” of the case and it does not propose to extricate the meaning of the words along the lines of the juridical, historical, and social course that gives them meaning. “When law becomes silent we could say, following the poet’s metaphor, that that silence is full of voices. But when the judge enters his judgment, not only is he an interpreter of the words of the law, but also of its mysterious and hidden voices.” 60 In this case the voices of the historical development of the applicable provisions, of the drafting technique, of the absence of social claims, of the vigilant attitude of the legislator, of the magnitude and complexity of the proposed change, and of the reflection on our institutional *182limitations to order such change,61 necessarily force me, differently from what I would prefer if my function were to legislate, to share the view that our law does not authorize deceit or fraud as a ground for divorce.
For the reasons set forth in the opinion of the Court and for those that I set forth in this opinion, I agree that the judgment appealed from must be reversed.
A valuable analysis of Roman, Canonical, French, Italian, German, •Swiss, Brasilian, and Argentine law is found in 1-3 Alberto C. Spota, Tratado de Derecho Civil (1957).
See in general Kingsley, Fraud as a Ground for Annulment of a Marriage, 18 So. Cal. L. Rev. 213 (1945); Vanneman, Annulment of Marriage for Fraud, 9 Minn. L. Rev. 497 (1925); 55 C.J.S. 866.
The New York decisions are discussed in Kingsley and Vanneman, ops. oit. supra and in 32 Cornell L. Q. 424 (1947) and 3 La. L. Rev. 831 (1941).
Some states have included tuberculosis and epilepsy.
This situation must not be confused with the one produced when a person is mentally unbalanced at the time of the marriage. See, Shea, The Effect of Insanity at the time of Marriage, 16 La. L. Rev. 511 (1956) : Wisdom, Marriage — Contractual Capacity — Insane Persons, 28 Tul. L. Rev, 403, (1954).
Some states have accepted several of these situations as grounds for annulment only when the marriage has not been consummated.
1-IV Ennecerus-Kipp-Wolff, Tratado de Derecho Civil (2d ed. 1953).
Id. at 153.
Id. at 153.
Id. at 154.
Id. at 156.
2 Dalloz, Repertoire de Droit Civil 127 (L952).
Id. at 127-28; Id., Mise a Jour 60 (1958) and Aubry and Rau, Droit Civil Francais 227 (1948).
So as not to unduly extend this opinion I have only included in this summary the facts that each country has accepted as constituting frau-d, deceit or concealment, and I have eliminated those that the courts have rejected. However, I believe that to obtain a complete view of the matter it is convenient to become acquainted with the latter also. For .such purpose the works mentioned in the footnotes should be consulted.
am referring, of course, to adversary divorces. I presume that the grounds for separation, desertion, and grave injury, having become in practice accommodative means to obtain a divorce “by mutual consent,” shall continue to provide, as up to now, the great majority of not adversary ■divorces. The data furnished by the Office of Court Administration reveal that the following is the situation which has prevailed in the last three years as to adversary and not adversary cases:
Due to time limitation I have been unable to examine the Spanish legislation prior to the nineteenth century.
The prevailing situation in the United States is described both in the majority and dissenting opinions.
See, also, the outline of European and American Codes in 2 Scaevola, Código Civil (5th ed. 1946), 27-291.
Vol. II at p. 639.
Op. cit. at 785-87.
5 Derecho Civil Español, Común y Foral (1955) 125, 129.
Interpreting the provision of the Spanish Code this Court decided in López v. Valdespino, 6 P.R.R. 171, 177 (2d ed. 1904), that error as to the person must bo such as to vitiate the consent, but not merely an accidental condition of the person of the other contracting party.
l-II Tratado de Derecho Civil Español (2d ed. 1953), 159.
Comentarios al Código Civil Español (7th ed. 1956), 543, 620.
Op. ait. at 709, 710.
1-V Estudios de Derecho Civil (1912), 434, 539.
4 Tratado de Derecho Civil Español (1938), 148-49.
“The Spanish [legislation] (⅞ 144 of the Civil Code) admits only the error on the identity of the person and by no means as to his qualities.” Op. cit. at 108.
1 El Código Civil (1900) 421.
Op. cit. at 108.
In Prance there is a jurisprudential trend to relax that doctrine. See 3 Dalloz, op. cit. at 359 (1953), where it is also stated that several commentators favor that trend.
Reseña Histórica y Anotaciones al Código Civil de Puerto Rico (1947) 203.
It is obvious that I am not describing the historical trend of our legislation and of its immediate Spanish precedents in order to decide on this sole basis the question raised in this case. It is too late, of course, to let the method of Savigny and his followers exclusively rule our mental ■ processes. But the historical investigation, if used moderately, is a valuable instrument for interpreting the law and its efficacy should not be underestimated. “Since law is, in one of its aspects, a historical product, we must become acquainted with the past history of an institution, in order to understand well its present meaning and anticipate its future.” Castán, Teoría de la Aplicación e Investigación del Derecho (1947), 105. See, also, Hernández Gil, Metodología del Derecho (1945), 65-100.
See 1 Planiol-Ripert, Traité Elementaire de Droit Civil (3d ed. 1946), ■384; 1 Colin y Capitant, Curso Elemental de Derecho Civil (1952), 437--49; 1 Bonnecase, Elementos de Derecho Civil (1945) 553-54.
Op. cit. at 386.
Planiol-Ripert (op. cit. at 387), mention the following: abandonment of religious beliefs, teaching of a moral that is not based on the spirit of sacrifice, the desire of each person to lead and ruin his own life. Surely, one must add to these the deep effects that economic development,, industrialization, urbanization, mass education, and the democratic system must have had on the family, and particularly on the position of the wife, in Prance as well as in the other modern countries.
Colin y Capitant, op. cit. supra at 445-96, describe the “painstaking and skillful campaign” that it was necessary to carry out against the “very vivid protests” to obtain the reinstatement of divorce at the end of the nineteenth century, and add: “We should note the marked modera*171tion to which the promoters of reform had to confine themselves to have its principle admitted. . . . There is no doubt that the legislator of 1884, even more than the one of 1804, intended to make divorce a remedy of exception, which meticulous courts grant sparingly to homes that are in disagreement.”
Op. cit. at 392. Author’s italics.
Op. cit. at 132.
Aside from the facts which are hereinafter mentioned (footnote 44), the following have been considered as “grave injury”: voluntary communication of syphilis, refusal to receive the wife’s relatives, refusal of the husband to discharge or allow to discharge a servant who has been disrespectful to his wife, refusal of the husband to have the common children baptized, abusive vigilance over the wife’s mail or on domestic *172management of the home, injurious silence, gambling- vice. Planiol, Tra-tado Elemental de Derecho Civil (1946), 30-81. The French law expressly provides that “afflictive and degrading” criminal conviction is ground for-divorce. However, the courts have interpreted that a conviction in which those two conditions are not present may constitute a “grave injury” because of the shameful publicity which the fact entails. The injury consists in not having foreseen the affront and not having avoided it by refraining from committing the offense. 2 Dalloz, op. eit. at 126.
It is desirable to clarify that although this is the controlling decision, approved by the Court of Cassation, it is not unanimous with the French courts nor with the commentators. In 2 Dalloz, op. eit. at 127 there is a recital of the judgments and the commentators who do not approve-the majority rule.
Aubry and Rau, op. ait. at 227 (1948); 2 Dalloz, op. eit. at 127 (1952), where the contrary opinions of distinguished French commentators, on the effect of this amendment are also stated.
the grounds on which the so-called necessary divorce can be based, some legislations follow the system of stating a single ground . . . ; of citing a reduced number of those grounds endowing them, at times, with sufficient elasticity to compromise multiple events that can arise in conjugal life; or stating the grounds for divorce specifically and in details and as a general rule in an express manner.” In establishing this classification Fernández Clérigo (at p. 130), considers England as an example of the first system; France, Switzerland, and Germany, as examples of the second, and Panama, Venezuela, Mexico, Cuba, and the Spanish Act of 1932, as examples of the last.
An examination of the French decisions — 2 Dalloz, op. cit. at 117— 27; Rau and Aubry, op. cit. at 219-27; 1 Planiol-Ripert, op. cit. at 396-400 — shows that the courts of that country in their interpretation of the ground of “acts of corporal attack and grave injury” have adopted as grounds for divorce several of the grounds expressly stated in our law. Desertion or separation by one of the spouses, drunkenness, and even passion for gambling, brutal and corrupt conduct toward the children, the attempt to prostitute the wife, impotency, if it has been concealed or if the husband refuses to undergo medical treatment, and conviction of crime in certain circumstances, have been considered as grave injury that render living together intolerable. On the contrary, incurable impotency or insanity occurring after marriage have not been accepted.
In Germany, the judges have used the ground of “serious violation of the marital duties” in the same broad manner that “grave injury” has been used in France, although without applying it, as we stated previously, to the concealment of faults prior to the marriage. Fernández Clé-rigo, op. cit. at 133; Kipp-Wolff, op. cit. at 228-31. The same thing has happened in Switzerland with the provision that permits one “to request divorce when the conjugal bond has been so deeply impaired that living together becomes intolerable.” Fernández Clérigo, op. cit. at 135.
I am also conscious of the serious limitations suffered by every interpretation which refers solely to the text of the law and tries to fix its meaning through the exclusive use of grammatical and logical processes. But in this case also, Castán, rightly so, advises us that “no matter how colorless the exegetical operFation is, we must recognize that it constitutes the basis and indispensable antecedents of any further work on positive law and there is no possibility of reaching a scientific result unless we start from a strict understanding of the texts of the law.” Teoría de la Aplicación e Investigación d,sl Derecho 83.
Three of them refer to the grounds for divorce, the other four to diverse aspects of procedure and to the problems of patria potestas, support, etc. See Muñoz Morales, op. cit. at 93-104.
Muñoz Morales includes in his book a complete relation of the amendments introduced to the Civil Code from the beginning of the century until 1947, op. cit. at 44-121. From these at least thirty-five affect the institution of the family. In the last decade eleven more amendments have been made. See the volumes of the laws of Puerto Rico of 1948 — pp. 90, 202, 228; 1949 — pp. 416, 544, 780; 1950 — pp. 288, 666; 1952 — p. 920; 1953 — p. 304; 1958 — p. 114.
1 consider it my duty to call the attention of the distinguished legislators of the country to the deplorable state of Book I of the Civil Code from the point of view of scientific order and language accuracy. A mere reading of the commentaries of Muñoz Morales suffices to make us realize that there is urgent need for a revision of the Code in order to correct those serious deficiencies.
We have found no evidence that in the last decades the question of amending the law by adding the ground of deceit or fraud has been raised before the Legislature. Neither has the matter been the object of public discussions. In the law reviews we have only been able to find a brief commentary on the subject. Velázquez, Puede Admitirse el Dolo como Causa de Nulidad del Matrimonio en Puerto Rico? 10 Rev. Jur. U.P.R. 440 (1941).
“A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done.”
Félix Frankfurter, Some Reflections on the Reading of Statutes, 47 Col. L. Rev. 527, 534 (1947).
Castán, La Formulación Judicial del Derecho (2d ed. 1954), 25-27. Author’s italics. The citations have been eliminated.
In Irizarry v. People, 75 P.R.R. 740 (1954), a question of interpretation of similar scope to the one at bar was raised before this Court. The dissenting opinion proposed to reject the doctrine of “contributory negligence” that had governed in Puerto Rico since the beginning of the century, by interpretation of § 1802 of the Civil Code, and to install in its place the doctrine of “comparative negligence.” In concurring with the majority opinion, opposed to that change, Mr. Justice, today Chief Justice Negrón Fernández, said: “Its . . . adoption [pf the doctrine of comparative negligence] would not be¡, in my opinion, authorized under the present state of our legislation. In the interpretation of the statutes the judicial authority cannot be so broad as to impinge on the functions and powers which dwell in the legislative branch. . . .
“The matter under discussion falls within the ambit of the public policy of the State, which is no province of the j'udieial power. I believe in the necessary evolution of the law and in the re-examination and modification of jurisprudential concepts and doctrines, as a judicial function essential to maintain the progress of the ideals of superation and of justice to mankind. But I cannot concur in progress through a glorifying judicial omnipotence at the expense of legislative power.” (P. 748.)
Frankfurter, op. cit. at 535.
The considerations which I have stated here on the interpretation of statutes are not, of course, applicable to the constitutional construction. The latter is ruled by other standards, and in construing them, the judge is not in a subordinate position to the legislator, although he owes him, naturally, deep respect for his determinations.
It is well to remember, as we stated before, that it is precisely in deciding the matter at issue that several countries of civil law, among them ours, have abandoned the traditional technique and resorted to long and detailed enumerations. Cuba has 18 grounds for divorce, Panama 11, and Mexico 17. The Spanish Act of 1932 established 13 grounds. Fer-nández Clérigo, op. oit. at 135. Perú has 10 grounds. Castañeda, Código Civil (1955), 85.
Castán asserts: “In the second of the great forms of the English law,, that of Statute Law, the problem of interpretation and application raises, substantially, identical problems to those that written law raises in the Continent. The English judges, like ours, are forced very often in carrying out their interpretative function, to depart from ‘strict law’ and resort to superior, historical, logical, and systematical methods, taking into consideration the general meaning and the general purposes of the law.” Teoría, de la Aplicación e Investigación del Derecho 125-26.
Examine in the afore-cited work of Castán, pages 55-151, dedicated to an elaborate discussion of Las direcciones y escuelas metodológicas; and in Bonnecase, op. cit. at 117-176, wherein are discussed “Las escuelas del derecho civil.”
Eduardo J. Couture, Introducción al Estudio del Proceso Civil (2d. ed. 1953), 70.
Diverse avenues are open to the legislator in considering this problem. He can refuse to change the present standards and thus provide that no type of deceit or fraud will be legal ground to break the bond. If he rejects the foregoing, he can limit the solution to a specific ground — an-tenuptial pregnancy, a contagious disease, lack of virginity of the wife, etc. — or use a broad formula,, such as deceit or error. Whether he chooses the specific rule or the general principle he will then have to gauge the effects on the spouses, the children, and the property, and choose either annulment or divorce. Even after making this last choice, he will have to prescribe specific rules to decide the problem of the children, who as in the present case, are in the peculiar state of being legitimate by presumption (§ 113 of the Civil Code), but illegitimate for not having been begotten by the husband.