.This is a petition filed  in the Court of  First Instance of Rizal  for a declaration  that petitioner  is a widow of her  husband Francisco  Chuidian who is presumed to be dead and has'-no legal impediment to contract a subsequent marriage.

The Solicitor General opposed the petition on the ground that the same is not authorized by law.  After petitioner had presented  her  evidence,  the  court sustained the opposition  and dismissed the petition.  Hence this  appeal. Lourdes G. Lukban, petitioner herein, contracted marriage with Francisco Chuidian  on  December 10,  1933 at the Paco Catholic Church, Manila.  On December  27, of the same year, Francisco left Lourdes after a  violent quarrel arid since then he has not been heard from despite diligent  search  made  by  her.  She also  inquired about him from his parents and friends  but no  one was  able to indicate  his  whereabouts.  She  has no  knowledge  if he is still alive, his last known address being Calle Merced, Paco, Manila.  She  believes  that he is already  dead because he had been  absent for  more than twenty  years, and because  she intends to marry again, she desires  that her civil  status be defined in order that she may  be relieved of any liability  under  the law.

We believe that the petition  at  bar comes within the purview  of our  decision  in the  case of Nicolai Szartraw, 46 Off. Gaz., 1st Sup., 243, wherein  it was held that a petition for judicial  declaration that petitioner's husband is presumed, to be dead cannot be entertained because  it  is not authorized  by law, and if such  declaration cannot be made in  a special proceeding similar to the present, much less can the court determine the status of petitioner as a widow since this matter must  of necessity depend  upon the fact  of  death of  the husband.  This  the  court  can declare upon proper evidence, but  not to decree  that he is merely presumed  to be dead.   (Nicolai  Szartraw, 46 Off.  Gaz., 1st sup. 243).

The philosophy behind the ruling that  such  judicial pronouncement cannot be made in  a proceeding of  this nature is well  expressed in  the case above-cited.  Thus, we there  said that "A judicial pronouncement to that effect, even if final and executory,  would  still be a prima facie presumption  only.  It  is  still disputable.   It is for  that reason that it cannot be the subject of a judicial pronouncement  or  declaration, if it is the only question or matter involved  in a case, or upon which a competent court has to pass * *  *.  It  is, therefore, clear that  a judicial  declaration  that a person is presumptively dead, because  he had been unheard from in seven years, being a presumption juris tantum only,  subject to contrary proof, cannot reach the stage of finality or become final."

Appellant  claims that  the  remedy she  is  seeking  for can be granted in  the  present proceedings because in the case of Hagans vs. Wislizenus, 42 Phil., 880, it was declared that a special  proceeding is "an  application or proceeding to establish the status or right of a party, or  a  particular fact"  but, as already said,  that remedy can be  invoked if the purpose is to  seek the declaration  of death of the husband, and  not, as in  the present case,  to "establish a presumption of death.   If it can be satisfactorily  proven that the husband is dead, the court would not certainly deny  a  declaration to  that effect  as has  been intimated in the case of  Nicolas Szartraw,, supra.

Appellant  also claims  that  the present petition  can  be entertained because article 3.49 of the Revised Penal Code, in defining bigamy, provides that  a person commits that crime  if  he   contracts  a second  marriage  "before  the absent spouse has been  declared  presumptively dead  by means of a judgment rendered in the proper proceedings" and, it is claimed, the  present  petition comes within the purview  of  this  legal  provision.  The argument  is  untenable  for the words "proper  proceedings" used  in said article can only refer to  those authorized  by  law  such as those which refer to the administration or settlement of the estate of a deceased person (Articles S90 and 391, new Civil  Code).   That such is  the correct  interpretation of the provision  in question finds  support  in  the  case of Jones vs. Hortiguela, 64 Phil., 179, wherein this Court made the following  comment:

"For the purposes  of the civil marriage law,  it is not  necessary to have  the former  spouse  judicially  declared an  absentee.   The declaration of absence made in accordance with the provisions of the Civil  Code has for its sole purpose  to enable the taking of the necessary precautions for the administration of the estate of the absentee.   For the celebration of civil  marriage, however, the  law only requires that the  former  Spouse has  been  absent. for seven consecutive  years  at the  time  of the  second  marriage, that, the spouse present does not know his or her former spouse to  be living, that such former  spouse is  generally reputed to be dead and the spouse present so believes at the time  of  the celebration, of the marriage (section III, paragraph 2, General Orders, No. 68)."

The  decision  appealed from is  affirmed,  without  pronouncement aa  to costs.

Parás,  C. J.,. Padilla, Montemayor,  Reyes,  A,, Jugo, Labrador, Concepcion, Reyes, J. B. L. and Endencia, JJ., concur.