Facts:

Viveca Lim Yu (private responden) brought against her husband, Phil Sy Yu (petitioner), an action for legal separation dissolution of conjugal partnership on the grounds of marital infidelity and physical abuse. 

During trial, Private respondent moved for the issuance of subpoena duces tecum and ad testificandum to certain officers of Insular life assurance Co. Ltd to compel production of the insurance policy and application of a person suspected to be petitioners illegitimate child. 

The trial court denied the motion. It ruled that insurance contract is inadmissible evidence inview of Circular letter no. 11-2000, issued by Insurance commission which presumably prevents insurance companies from divulging confidential privileged information pertaining to insurance policies. 

It added that the production of an application and insurance contract would VIOLATE article 280 of the CC and sec 5 of the registry law which prohibit the unauthorized identification of the parents of an illegitimate child.

Private respondent sought to reconsideration but motion was DENIED.

Aggrieved, Private respondent filed a petition for certiorari before the CA, imputing grave abuse of discretion amounting lack or excess of jurisdiction on part of judge hernandez. 

Issue: 

Whether or not a trial court has discretion to deny a party’s motion to attach excluded evidence to the record under section 40, rule 132 of the rules of court 

Held: 

The CA held that the trial court erred in denying party’s motion to attach excluded evidence since it falls within the rule on party’s privilege to tender excluded evidence, as this privilege allows said party to raise on appeal the exclusion of such evidence. 

However the SC stated that before a tender of excluded evidence is made, the evidence must have been formally offered before the court, and that before formal offer of evidence is made, the evidence must have been identified and presented before the court.

While PR made a tender of excluded evidence, such is not the tender contemplated by the rue, for obviously, the insurance policy and application were not formally offered much less presented before the TC. at most the said tender of excluded evidence was a manifestation of an undisputed facts.

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