dissenting.
In order to dispel the nebula created, in my judgment, by the opinion of the Court, it is necessary to state clearly forthwith the questions that are involved and the questions that are *824not involved in this certiorari proceeding. The question involved is about a criminal action filed under Act No. 108 of April 30, 1940 (Sess. Laws, p. 672; 31 L.P.R.A. ⅞§ 509-514) in which the state charges petitioner herein with the offense of abandonment of minors for having failed in his duty “to feed, clothe, support, educate, and provide shelter” (§1) to a son begotten by him in a woman married to another man. By express provision of the law this obligation exists with respect to “illegitimate children . . . whether acknowledged or not” (§1) and it is predicated exclusively on the fact of paternity (§•§ 3, 4, 5, and 6). Proof of that fact need not conform to the provisions of the Civil Code as to an action of filiation. It is obvious, also, that the criminal nature of the action is neither extinguished nor mitigated by the fact that the Act permits the trial judge to suspend the judgment “under such conditions as he may consider it well to impose, for the welfare of the abandoned or neglected child . . . .” (Section 6.) The system of suspended sentences has already become a vital part of our procedure which is applicable in a great number of crimes, but which in no way alters or modifies the criminal nature of the action. 34 L.P.R.A. § 1027; People v. Vélez, 76 P.R.R. 135, 141 (1954).
This proceeding does not involve nor in any way refers to the filiatory relationship between the abandoned minor and the husband of the woman who conceived him. It is elementary in our law that civil filiation is neither established nor destroyed by a judgment rendered in a criminal action for abandonment of a minor and that said filiation must be again established in a civil action and by means extraneous to the criminal sentence. Notwithstanding these basic principles the court construed Act No. 108 together with the sections of the Civil Code relating to illegitimacy (■§§ 113 to 117) and today establishes the following rule: In a criminal action for abandonment of minors under the aforesaid Act No. 108 (or § 263 of the Penal Code), a natural father of a child begotten by a woman married to another man can not be convicted *825unless the legitimacy of the child is successfully challenged in a civil action pursuant to the aforesaid sections of the Civil Code.
In support of that rule it is urged that the criminal proceeding is not the adequate instrument to settle the controversy raised because “the action to be filed should permit [the child] pursuant to law to change from a filiatory status to another one with the proper adjudication of the rights of all the parties affected, including any conflict of interest between [the] minor and its own mother . . . Referring to ⅞§ 113 to 116 of the Civil Code it adds that “another social interest, evidenced by a clear and well-defined legislative policy” precludes the use of the criminal proceedings and that it lies with the legislative branch “to offer the desirable solution.”
I believe that the view taken by the Court is erroneous because (1) it is based on an interdependence of the civil and criminal actions which entirely lacks juridical basis; (2) it creates legal and practical problems as serious as those which are allegedly sought to be eliminated; (3) it places the adul-terine children of married women, and as we shall see, other illegitimate children, on a position of disparity; (4) drawn to its logical conclusion it would destroy to a great extent the legislative purposes contemplated by the legislation dealing with abandonment of minors, and (5) it is at variance with the harsh social realities which, because of mass migration, are nowadays confronted by a considerable part of our people.
I
In one of the first judgments rendered under § 263 of the Penal Code — People v. Ferrán, 26 P.R.R. 230, 232 (1918) — this Court, relying on the California case law, adopted the rule that “the provisions of the civil law in the premises in no way affect the interpretation to be given to the criminal *826statute.”1 This rule was expressly confirmed in Rosario v. Suárez, 67 P.R.R. 552, 556 (1947), adding that: “. . . Likewise the provisions of Act No. 108 of 1940 or of the Penal Code as to the abandonment of minors, should not affect the construction that should be given to the Civil Code . . . .” This principle of separation of the civil law from the criminal .law was applied in numerous cases and the Court always protected the power of the state to compel the natural father •to furnish support to his minor children, irrespective of the results in the civil jurisdiction. In People v. López, 54 P.R.R. 279, 281 (1939), Mr. Chief Justice Del Toro said: “. . . We .are dealing but with one offense the gist of which ... is the voluntary and inexcusable abandonment of the children, whether they are of one kind or another . . . .” In cases of this nature, he added, one can not “. . . place an unsurmountable stone wall before the path of justice that requires that the parents do not abandon their children, even though born in violation of the duties imposed by marriage and by virtue of criminal acts. Should we adopt any other construction, we would pervert the purpose of the law and we would, in a certain way, reward a delinquent merely because he is one.” ¡(P. 284.) And further: “. . . The duty of the father arises from the material fact that he is the father. Once it has been duly proved that he is the father, and that so being he failed to discharge his duties in the manner established by the criminal law, the crime should be understood to have been committed.” (P. 285.)
According to these postulates, the Court repeatedly rejected the theory under which it was sought to incorporate to the criminal action the requirements of proof of the civil action of filiation, particularly those enumerated in §•§ 125 and 129 of the Civil Code. People v. Ortiz, 67 P.R.R. 848 *827(1947) ; People v. Rodriguez, 67 P.R.R. 688 (1947); People v. López, 67 P.R.R. 732 (1947).
That judicial rule was firmly maintained for many years up to the, in my opinion, unfortunate judgment in People v. Santiago, 70 P.R.R. 798 (1950), which was expressly overruled in Agosto v. Javierre, 77 P.R.R. 444, 450 (1954). This rule is based on the classical principle of separation between civil and criminal actions sanctioned in our law and in our decisions.2 Today, however, the court creates imaginary conflicts of interest between the mother and the child and states that as a consequence of the child’s claim “he shall cease to be a member of a family with all the rights inherent to him therein in order to become a member of another family with other rights or none of them.” However, it does not give the grounds for such statements nor does it indicate which provisions, whether substantive or adjective, or which legal doctrines would produce such a result. The truth is that those perils do not exist and that in this case, no matter what happens in the criminal action, the parent-child relationship in the civil sphere between the minor and his presumptive legitimate father shall continue intact. Actually, what the Court does in this case is to merge criminal and civil actions without adducing a single reason in support thereof and then derives dire consequences from such indefensible merger which is the product of its own doing.
The rule followed by a great majority of the American jurisdictions and the British Community maintains that “a judgment rendered in a criminal action, when offered in a civil action to establish the facts upon which it was rendered, is not admissible as evidence of such facts.” 2 Wharton, Criminal Evidence (1955) ■§ 640. That is also the rule in Puerto Rico although it has been applied to the whole criminal *828record. Ramírez v. Morales, supra; Colón v. Secretary of the Treasury, supra. When the judgment is based on a plea of guilty it is admitted as an admission or confession of the person accused in the criminal prosecution, but never as conclusive evidence of the facts. The courts vary as to the probative value to be given to this evidence. Some require corroborative evidence while others grant it “great weight.” Likewise, in a criminal action the general rule precludes the admission in evidence of a judgment rendered in a civil action if it seeks to prove, by those means any of the facts on which the judgment is based.
To affirm in this case that the presumptive legitimate father is deprived of paternity as the result of the criminal action against another man, it must be maintained at the same time that in a civil action between the minor and his presumptive legitimate father, the judgment in the criminal case would constitute an absolute bar to the civil action or would constitute conclusive evidence of the facts on which said judgment is based. Such, however, would not be the case, not even in a civil action between the minor and the person convicted in the criminal prosecution and much less in a. civil action in which the legitimate father is a party. In both cases, in view of the present state of our precedents .-already cited, the judgment in the criminal case could not be .admitted in evidence.3
*829In Commissioner of Public Welfare v. Koehler, 30 N.E.2d 587, 591 (N. Y. 1940), a situation similar to the present one was raised except that the applicable law expressly authorized the proceeding against the actual father in cases where the husband and wife were separated or where the husband was impotent. The Court of Appeals of New York said:
. . Such a proceeding- may be brought by the mother or . . . by a public official. Inferior Criminal Courts Act, § 64, subd. 1. The child is not a necessary party to the proceedings nor is the husband of the mother. The order made in such a proceeding does not constitute an adjudication binding on them or persons claiming through or under them that the child is or is not the legitimate offspring of married parents. An order adjudging that some person other than the mother’s husband is the father of the child and ordering him to provide for its support is, it is plain, not a binding adjudication of illegitimacy. It does not establish the status of the child nor would it be competent evidence to establish illegitimacy in any proceeding to which others are parties.”
Accordingly, the husband and wife were permitted to give testimony of their intimate relations, which they would not have been permitted to give in a proceeding adjudicating the status of the child. This is the rule that prevails in the state. People v. Arcieri, 167 N.Y.S.2d 437 (1959).
Hence, if we should declare the defendant guilty, it would lead at most, in this and other similar cases, to the existence of two actions against two different persons, which might result in the granting of support to the minor. In one, the *830state would use the criminal action to prosecute the natural father to compel him to furnish support; in the other, the minor could, by way of a civil suit, require support from his putative legitimate father. Although undoubtedly this would create an anomalous situation,4 it would not be to any lesser degree than others formerly sanctioned in the same field by our laws and authorities and it would have, as we shall see hereinafter, unassailable grounds of social equity.
In the past this Court has disregarded, in a criminal action, the formal elements of proof of the natural and illegitimate paternity required by the civil legislation (§⅞ 125 and 129 of the Civil Code) and established instead all the means of proof admitted by our law of evidence. As is well known it went as far as to sanction the principle that the testimony of the mother on sexual relations, if believed, is sufficient to support the finding of paternity. People v. Mercado, 69 P.R.R. 310 (1948) ; People v. López, supra; People v. Bernabe, 63 P.R.R. 385 (1944) ; People v. De Jesús, 57 P.R.R. 694 (1940) ; People v. Davila, 53 P.R.R. 221 (1938). And no one, of course, thought that that declaration of paternity would work any effect on the juridical nexus between the parent and the child in the civil sphere. I do not believe *831that it can be contended that the public policy as to how and in which proceeding the legitimate paternity can be disputed and who may do so is more vital than the public policy as to how and in which proceeding the natural and illegitimate paternity can be proved and who may do so, unless, of course, it could be asserted at the same time that the former, notwithstanding the clear legislative and constitutional mandates holds in our system a more privileged position than the latter.
In adopting the principle of proof stated in the preceding paragraph there was recognized in Puerto Rico the existence of a type of children who had fathers for a single purpose only — support—but did not have them for all the other purposes. This situation of a child with a “fraction” of a father is as anomalous and perhaps as “antijuridical,” as a child with one father and a “fraction” of another, which would be the case in extreme situations upon adopting a rule contrary to the one accepted today by the Court.5
Indeed, our legislation and all other legislations have been full of those anomalies because of the impact of the new ideas concerning the responsibility of the natural father and the traditional ideas concerning the illicitness and immorality of extramarital relations and the stigma on their offspring. To confirm this contention we need only remember the course *832of our legislation on natural and illegitimate children from the beginning of the century up to the present time. Probably, the most extreme case was in 1945 when the Legislative Assembly decreed that certain children could be acknowledged by their father for the sole purpose of bearing their surname. (31 L.P.R.A. ⅜ 502.)
In taking the views which I have explained, the Court lost sight of the anomalies and “antijuridical” consequences that its judgments caused in the civil order, endeavoring to eliminate the patrimony of hunger which a contrary adjudication would impose on numerous children. That should also be our endeavor in the present situation.
II
A study of the probable effects of the rule adopted today reveals the complex problems which it creates and how seriously unreal is its application. Three examples are sufficient:
a. A and B are married and a few months later are separated, without having any children. B, the husband, continues living in the same city as A.6 After a few months of separation, A lives publicly and for several years in concubinage with C, a man who is in turn married to D. From this illicit union, but by no means less fecund, three children are born, which are acknowledged by C, but whom he later abandons. Applying the proposed rule to these facts it would follow that until such time as the legitimacy is successfully challenged, the husband will be held criminally liable for the *833abandonment of A’s children, and the state could not prosecute C, the natural father, for abandonment. Furthermore, if C would have lived in concubinage with an unmarried woman, their children could have sued for support in a criminal action, but because he cohabited with a married woman the doors are closed.
b. A, a woman married to B, is separated from the latter and cohabits publicly with C, from whom she has three children. B continues living in the same town as A. After the children are born, A divorces B, marries C, and both acknowledge the children as their own. C abandons his children. Pursuant to the existing Act since 1947 (31 L.P.R.A. ⅞§ 481-486) the three children are legitimized by the subsequent marriage of their parents to each other, counted from the date of marriage. However, the literal application of ⅞ 113 would make these children the legitimate children of B. Again, the proposed rule would preclude the state from prosecuting C for abandonment of his children until the question of legitimacy be elucidated in a civil action. If in the two previous examples B left Puerto Rico or his whereabouts were unknown, many months or perhaps years would elapse before the necessary procedural steps could be taken to terminate this action.
e. With the same facts of the first example, let us assume that one of the children of A and C is a girl, F, and that upon attaining 18 years of age her natural father commits the crime of incest with her. The corresponding criminal action is filed and the same defense, as in the present case, is presented — F is the legitimate daughter of A’s husband and that legitimacy may only be challenged in a civil action. Cf. People v. Gonzalez, 26 P.R.R. 379 (1918). After accepting that defense in a case for abandonment of children, I do not see how we can reject it in a case of incest, unless, of course, we would be willing to accept that the public policy as to the marriage between relatives is more important than the public policy for the support of children, something which, in my *834opinion, is absolutely untenable. And we must add that if we validate in the incest case the rule adopted today, we would have to accept also that the daughter and the natural father could, under those circumstances, contract marriage.
I further believe that from the determination made today by the Court there also flow consequences of “antijuridicity”, although perhaps with less dramatism than those indicated in the opinion of the majority. Let us see two examples:
A and B, both unmarried, live in public concubinage for several years and during that time A has two children. A certain day the mother files suit against C, under Act No. 108, alleging that he is the real father of her second child. It is clear that in the light of our precedents, the lower court would have to inquire into the paternity in order to determine whether C is the actual father and, if there is sufficient evidence, it would have to convict C. But it is obvious that under this situation “a proper adjudication of the rights of all the parties affected” could not be made because (1) there is the possibility of a conflict between the mother and the child due to the fact that the latter has an action of acknowledgment against paramour B, pursuant to § 125 of the Civil Code; (2) the paramour need not be heard, although he could allege that the child is his own and that he wants to acknowledge him; (3) there are the same actual probabilities (although not of presumption of law) of confusion of offspring as in the case of the husband.
The second example could complicate the situation more by establishing the fact that B, the paramour, had already voluntarily acknowledged the child before the criminal prosecution against B was filed. In this case there would also arise a conflict between the provisions of the Act7 and the certain and natural fact of the paternity. Cf. García v. García et al., 18 P.R.R. 926 (1912); Alcaide v. Morales, 28 P.R.R. 258 (1920).
*835What would we do in either of these two cases? Should we tell the child that he must elucidate those questions in a civil action of filiation where the two putative fathers be present or permit the ordinary criminal action, notwithstanding the anomaly and defects of “antijuridicity” but vindicating the public policy that “the obligation of the father arises from the material fact that he is the father?” I think that the second would be the only alternative. The judgment rendered today, however, is fundamentally contrary to that result.
Ill
It is true that some American precedents have pronounced themselves in favor of the theory on which the opinion of the majority rests. But it is equally true that that case law is predicated on juridical concepts and social morals which by action of law and of the Constitution, and at least as to its legal purposes, we have long ago extricated from our system. Furthermore, it is also true that several jurisdictions have acted legislatively to eliminate the indisputable injustices that the aforesaid judicial decrees had created.
A positive example of the former is found in In re Madalina, 174 Cal. 693, 697; 164 Pac. 348 (1917), which is the main case on which the majority rests its opinion. The fundamental ground on which this judgment is based is that “the interests of public policy, decency, morality, and the protection of innocent children” would require that the state be precluded from challenging the paternity, because that challenge would be contrary to the “welfare, comfort, and happiness of innocent children ... as they are protected against the stigma of illegitimacy, or aspersions cast upon their birth . . . .”8 And in State v. Randall, 53 So.2d 689, 691 *836(1951), also cited by the majority, the Supreme Court of Louisiana, in deciding that the criminal prosecution against the actual father did not lie, said:
“. . . The sanctity with which the law surrounds marital relations and the reputation and good fame of the spouse and of the children born during their marriage is of such inviolability that the mother and the children can never brand themselves with declarations of adultery, illegitimacy, and bastardy, and their character is not permitted lightly to be thus aspersed, however true in themselves the stern and odious facts may unfortunately be.”
It is evident, however, that the substance as well as the rhetoric of those pronouncements have been no longer effective for many years in our country. To confront the so-called stigma of illegitimacy, our country has raised, first with the rank of law, and later of the Constitution, the noble and human principle of equality of birth, by virtue of which “the innocent offspring [of illicit unions] should come to the world free of juridical disqualifications and inferiorities.” Report of the Committee on the Bill of Rights to the Constituent Convention (1951). And to confront the hermetic rule of § 116 of the Civil Code which authorizes only the husband and his legitimate heirs to challenge the legitimacy of children born in wedlock, this Court, prompted by the same legal, constitutional and socially dignifying reasons, raised in Agosto v. Javierre, and now unanimously reaffirms, the right of those children to look for their actual parents via the civil law.9 It is obvious that we would have never laid down that rule if we would have adopted the decisions approved today by the majority. By the same token we are compelled to reject the *837American precedents stemming from other juridical and social conceptions, and to recognize to the state the power —which the applicable law in no way denies — to require those fathers, by means of the proper criminal proceedings, to comply with their natural and legal obligations.
Having discarded the American case law for the reasons noted, there only remains in support of the theory of the majority the apparent conflict between the public policy on the abandonment of children. The Court today decides that “conflict” in favor of the legitimacy, thereby denying to a great number of children the protection that the state contemplated for them in the criminal field.
I emphatically maintain that this conflict does not exist, and that if it did, the classical and inescapable function of the courts is to search for the interpretation which reasonably eliminates it, doing to the lawmaker the elementary justice that he never meant to approve contradictory enactments. The only way of accomplishing that result is to maintain the criminal proceeding strictly within its limited radius of action accessible to all children, irrespective of their birth origin, while the civil proceeding is reserved for settling status controversies.
That interpretation preserves untouched the principle of equality of birth, which is the essence of our legal institutions and of our collective aim. However, the rule adopted by the Court today places a great number of children, precisely because of their birth, in a position of legal inferiority and denies them a protection offered by the state to all others. In view of this result, a legislator with a literary inclination could well exclaim, paraphrasing the classical Orwellian irony that, “in Puerto Rico all children are equal, but some children are more equal than others.”
*838IV
I believe it is evident, considering some of the examples cited in this opinion, that the rule adopted by the Court today tends to a great extent to thwart the purposes underlying the enactment of Act No. 108 and § 263. That rule, of course, gains force and must be understood only in the light of the reasons on which it is based. The courts of first instance shall have to study those reasons in order to determine how they will fit to each situation of fact different from the one in question, although related thereto.
The reasons of this Court, as we noted previously, are principally based on the alleged defect of the criminal proceeding to decide all the conflicts presented by the situation, particularly those that arise between the mother and the child and between the actual father and the presumptive legitimate father. It is necessary for this reason, it is argued, to bring the matter within the civil sphere, in which, after duly summoning all the interested parties, a valid judicial adjudication may be made of all the rights and interests affected. It seems obvious to me that the logical application of that reasoning to other situations shall inevitably produce the removal from the criminal jurisdiction of every case in which the defendant alleges that he is not the father of the minor and where there exists the probability that another man is the father. Irrespective of whether that other man is the legitimate or illegitimate father, or, in the latter case, whether or not the child is officially acknowledged, as soon as there arises the probability that another person, not the defendant, may be the father of the minor, it is obvious that there shall arise conflicts of interests in the civil sphere between the mother and the minor and between the two presumptive fathers. The courts of first instance will be compelled, in that case, to suspend every action in such cases until said conflicts are settled in civil order.
*839The consequences of such reasoning for the due administration of Act No. 108 and ⅞ 263 of the Penal Code, are indeed of a serious nature. The legislative effort to eradicate the irresponsibility of the father by creating a speedy, simple, and efficient judicial instrument based on the coactive force of the state is thereby defeated in its application to hundreds of abandoned children.10 To find relief to their most peremptory necessities, by demanding from their actual fathers compliance with the primary obligation stemming from paternity, those children will now have to avail themselves of the slow, complex, and costly civil proceeding required by an action of filiation;11 they will suffer the anxiety of waiting for many months while the issues are decided and they shall pay the price of such delays with privations, illness, and juvenile *840delinquency. The situation shall even become more pathetic for those children whose presumptive legitimate fathers have, as part of the enormous migratory current of the recent years, gone to live abroad.12 They will feel the burden of the delays, of additional proceedings and of the intricate legal problems of jurisdictional restrictions and summons.13
*841I can not, for the reasons noted, share the view of the majority. Reduced to its basic premise, that criterion means that the esthetic factors in the interpretation of the law are given a primary position while, in this case concretely, the correct solution is rejected for the so-called reasons of “anti-juridicity.” Although the interest to maintain the symmetry of the law and the legal institutions is indeed a respectable one, I can not, by token of such pursuit, subscribe to an interpretation that destroys the legislative purposes and which is repugnant to the prevailing social realities. In my opinion the judgment appealed from should be affirmed.
It was used restrictively in this first case in order to deny support to an illegitimate child, on the ground that the criminal law, contrary to the civil law, was only applicable to legitimate children.
Section 2 of the Code of Civil Procedure, 32 L.P.R.A. § 2; Ramírez v. Morales, 69 P.R.R. 656 (1949) ; Colón v. Secretary of the Treasury, 79 P.R.R. 809 (1957).
Cf. Chabrán v. Méndez, 74 P.R.R. 719 (1958) where we held that a -child is an indispensable party to a suit where his legitimacy is contested. In González v. Pacific Greyhound Lines, 214 P.2d 809 (Cal. 1950), a minor ■filed an action for damages for the wrongful death of his legitimate father. The defendant challenged the legitimacy of the child offering in evidence a ■divorce decree in which a court, in rendering an interlocutory order of ■custody and support, had decided, on the testimony of the mother, that the minor was not the child of his presumptive legitimate father. The Supreme •Court of California held that the divorce decree and the interlocutory order were not admissible in evidence for any purpose because the minor had not been a party to the first suit and he was not bound by the determination ■of his status therein.
Detailed discussions of these problems, with ample citation of authorities and statutes, may be found in the following sources: 4 Wigmore, *829Evidence § 1346a (3d ed. 1940); Mueller & Whinery, Second-Hand Judgments: Reciprocal Use of Judgments in Civil and Criminal Matrimonial Cases, 16 Wash, and L. Rev. 44, 63-72 (1958); Zogg, Judgments as Evidence Against One Not a Party to Them, Wis. L. Rev. 307 (1946); 2 Wharton, op. cit. $⅜ 639, 640; Cowen, The Admissibility of Criminal Convictions in Subsequent Civil Proceedings, 40 Cal. L. Rev. 225 (1952) ; Judgment in Bastardy Proceeding as Conclusive of Issues in Subsequent Bastardy Proceedings, 37 A.L.R.2d 836 (1954); Conviction or Acquittal as Evidence of the Fads on Which it was Based in Civil Action, 18 A.L.R.2d 1287 (1951); American Law Institute, Model Code of Evidence, Rule 521, pp. 280-282 (1942) ; of. Admissibility of Traffic Conviction as Proof of Facts in Subsequent Action, 50 Col. L. Rev. 529 (1950).
Sections 113 to 117 of the Civil Code in force offer the presumptive legitimate father the means to challenge the legitimacy and, therefore, to put an end to such anomalous situation. The action in such cases “shall be instituted within three months after the inscription of its birth in the registry, if the husband be in Puerto Rico, or after six months if he should be abroad, reckoning from the time he has knowledge of the birth.” (Section 117.) In the present case there is proof that the child was not registered but there is no proof that the husband knew of the birth. I have found nothing in our case law that indicates when the term of prescription begins to run under such circumstances. See on this problem: 5 Castán, Derecho Civil Español, Común y Foral, 34 (1958) ; 2 Martínez Ruiz, El Código Civil, 34 (1900); 3 Scaevola, Código Civil, 309 (1942); Muñoz Morales, Reseña Histórica y Anotaciones al Código Civil de Puerto Rico, 346 (1947). It should be also borne in mind that the civil as well as the criminal action is based on the necessity of the support of the child and the capacity of the father to furnish such support. It is obvious that if the child receives adequate support from his presumptive legitimate father, the criminal action against the actual father would not lie.
In Rodríguez v. Industrial Commission, 68 P.R.R. 113 (1941), the question for decision before this Court was whether a daughter begotten by a man in a woman married to another was entitled to compensation for the death of his natural father in a labor accident. The girl had been registered as the legitimate daughter of her mother’s husband. The petitioners alleged that the provisions of the Civil Code on legitimacy as well as the provisions of the Vital Statistics Act precluded the granting of compensation. The Court, speaking through Mr. Chief Justice del Toro, rejected those arguments. It held that it was exclusively a matter of dependency and added: “The decision of the Commission does not go beyond the compensation case itself. The record of the civil registry shall continue to exist unless it he annulled by a court with jurisdiction to do so according to law.” As may be noted, this is also a case where the statute recognizes that a person is the “father” of a child for a very limited purpose, while for all other purposes it considers another person also as the “father” of the same child.
It has been decided by our case law that “the physical non-access”' (§ 113 of the Civil Code) on which the husband can challenge the legitimacy of a child does not exist when the husband and the wife live in the same city—Cubano v. Del Valle, 69 P.R.R. 538 (1949) — or in nearby towns — Burgos v. Vazquez, 48 P.R.R. 405 (1935); Núñez v. Lacot, 32 P.R.R. 76 (1923). Fortunately, the Court leaves today for future consideration the question of whether the rule of proof appearing in the second sentence of § 113 should be followed within its strict construction and in purely geographic terms.
Section 38 of Act No. 24 of April 22, 1931 (24 L.P.R.A. $ 1237). Cf. Maldonado v. Warden, 73 P.R.R. 199 (1952).
California amended $ 195 of the Civil Code and ⅞ 270 of the Penal Code in order to set aside the case of Madalma and permit the state to challenge the legitimacy in criminal cases for abandonment of children. The rules applicable to the civil litigation were not altered. 2 Armstrong, *836California Family Law (1953), Supp. 1956 at 159, 162-163. See, also, the New York law cited in the Koehler case, supra, and the case of the District of Columbia, Peters v. District of Columbia, 84 A.2d 115 (D. C. Cir. 1951).
Of course, in these cases there is no marriage to be saved because it has been shattered by the action of one or both parties. This idea is implicit in the approval which we give today to the civil proceeding as a vehicle to solve the problems under discussion.
The criminal action of abandonment of children is still the principal legal weapon that our community has to compel a father to comply with his duty towards his children. The statistics furnished by cur Office of Courts Administration show the following:
DISTRICT COURT
Cases of Abandonment of Children and Appeals to the Superior Court
Year Pending Filed Convictions Appeals Rate of Appeals
1956-57 3186 1803 30' 1. 7 1085
1957-58 3404 1891 29 1.5 1013
1958-59 1187 3249 2000 25 1.2
However, the action for support in the Superior Court during the year 1958-59 produced the following results: Pending: 514; Filed: 745; Decided: 733. There is no available information for the other years. A study made on December 1958 by the office of Statistics of the Division of Public Welfare concludes that “the abandonment, particularly of the male parent, increases as a cause of dependency of our children, especially in our needy classes” and that “the intervention of the courts in the cases of abandonment produces favorable results and if the latter could regulate the holding of hearings of fathers who abandon their children, a more efficient, economical, and social result could be obtained.” Department of Health, Report on the Result of a Biennial Study on the Characteristics of the Cases Receiving Aid. (Mimeograph 1959, p. 5)
These children cannot resort to the classical and summary action for support because the controversy can not be adequately decided in such an action either.
There is no data as to how many children shall meet such a situation. As a general index of the problem see the following figures, also furnished by our Office of Courts Administration, as to cases for support under the so-called Reciprocal Act:
SUPERIOR COURT
Distribution of Cases for Support Under Act No. 71 of June 20, 1956 Fiscal Years 1956-57, 1957-58, and 1958-59
The fundamental question consists in deciding whether in a civil action where the legitimacy is challenged it is necessary to summon personally the presumptive legitimate father or if outside of Puerto Rico, whether the summons may be validly served on him by the publication of edicts. The question has not been decided by this Court. An old judgment rendered in Orama v. Oyanguren, 19 P.R.R. 788, 791 (1913), says that “. . . the courts of the country of a person who seeks to establish his civil status have jurisdiction over non-resident defendants, although they may not have been summoned personally therein nor possess property therein .. . However, the contrary rule prevails in several American jurisdictions. See Hartford v. Superior Court, 304 P.2d 1, 4-5 (Cal. 1956); Conflicts of Laws, Personal Jurisdiction Over Alleged Father Required in Bastardy Proceedings, 30 So. Cal. L. Rev. 336 (1956); Parent and Child: Paternity Suit is an Action in Personam, 4 U.C.L.A. L. Rev. 647 (1957) ; Ehrenzweig, Conflict of Loaos, 80-119 (1959).