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SABRINA ARTADI BONDAGJY, petitioner, vs. FOUZI ALI BONDAGJY, JUDGE BENSAUDI I. ARABANI, SR.

,
in his capacity as presiding judge of the 3rd Sharia District Court, Sharia Judicial District, Zamboanga
City, respondents. G.R. No. 140817. December 7, 2001

DECISION
PARDO, J.:

Is a wife, a Christian who converted to Islam before her marriage to a Muslim and converted back to
Catholicism upon their separation, still bound by the moral laws of Islam in the determination of her fitness to be
the custodian of her children?
We apply civil law in the best interest of the children.

The Facts

Respondent Fouzi (then 31 years of age) and Sabrina (then 20 years of age) were married on February 3,
1988, at the Manila Hotel, Ermita, Manila under Islamic rites.[1] On October 21, 1987, or four (4) months before
her marriage, Sabrina became a Muslim by conversion. However, the conversion was not registered with the Code
of Muslim Personal Laws of the Philippines.
Out of their union, they begot two (2) children, namely, Abdulaziz, born on June 13, 1989, [2] and Amouaje,
born on September 29, 1990.[3] The children were born in Jeddah, Saudi Arabia.
At the time of their marriage, unknown to petitioner, respondent was still married to a Saudi Arabian woman
whom he later divorced.
After their marriage, the couple moved in with respondents family in Makati City. In 1990, the parties
migrated and settled in Jeddah, Saudi Arabia where they lived for more than two years.
Sometime in December 1995, the children lived in the house of Sabrinas mother in 145 Tanguile Street,
Ayala Alabang. Fouzi alleged that he could not see his children until he got an order from the court.Even with a
court order, he could only see his children in school at De La Salle-Zobel, Alabang, Muntinlupa City.
On December 15, 1996, Sabrina had the children baptized as Christians [4] and their names changed from
Abdulaziz Bondagjy to Azziz Santiago Artadi and from Amouaje Bondagjy to Amouage Selina Artadi.
Respondent alleged that on various occasions Sabrina was seen with different men at odd hours in
Manila,[5] and that she would wear short skirts, sleeveless blouses, and bathing suits.[6] Such clothing are detestable
under Islamic law on customs.
Fouzi claimed that Sabrina let their children sweep their neighbors house for a fee of P40.00 after the children
come home from school. Whenever Fouzi sees them in school,[7] the children would be happy to see him but they
were afraid to ride in his car. Instead, they would ride the jeepney in going home from school.

The Case

On March 11, 1996, respondent Fouzy Ali Bondagjy filed with the Sharia District Court, Marawi City, an
action[8] to obtain custody of his two minor children, Abdulaziz, 10 and Amouaje, 9.
On June 6, 1996, petitioner filed her answer with motion to dismiss on the ground of lack of jurisdiction over
the persons of the parties since both parties were residents of Manila and for lack of cause of action. Petitioner
likewise moved to transfer the venue to Zamboanga, which was more accessible by plane.
On June 18, 1996, the Sharia District Court granted petitioners motion to transfer the venue to Zamboanga.[9]
On June 27, 1996, respondent filed a reply[10] and motion for a temporary restraining order against
petitioner.[11] He moved that petitioner desist from preventing him from exercising parental authority over his
minor children.
On July 12, 1996, the court granted the motion and issued a writ of preliminary injunction.[12]
On August 12, 1996, the court ordered the parties to submit their memoranda on the issue of jurisdiction.
On October 30, 1996, the court granted petitioners motion to withdraw motion to dismiss on the issue of
jurisdiction and set the proceedings for pre-trial conference on November 14, 1996.
On November 14, 1996, respondent filed a motion to drop Joyce Artadi as defendant in the case and the trial
court issued an order:

During the pre-trial conference held this morning, the parties made their respective offer and
counter proposals for amicable settlement. The plaintiff proposed (1) solidarity of the family, and
(2) alternate custody. The defendant advanced the proposal of reasonable visitation of the father at
their residence, for which the court will possibly fix the period or time and schedule of visitations.

With these proposals, both parties agreed to continue the pre-trial conference on December 9, 1996.

WHEREFORE, let the pre-trial conference be again held on December 9, 1996, at 9:00 oclock in
the morning.[13]

Meantime, petitioner filed with the Regional Trial Court, Branch 256, Muntinlupa City[14] an action for nullity
of marriage, custody and support, ordered the parties to maintain status quo until further orders from said court.[15]
On March 2, 1999, petitioner filed another motion to dismiss[16] on the ground of lack of jurisdiction over the
subject matter of the case since P.D. No. 1083 is applicable only to Muslims. On March 3, 1999, Fouzi filed an
opposition to the motion to dismiss and argued that at the inception of the case, both parties were Muslims, Fouzi
by birth and Sabrina by conversion.
On March 29, 1999, the court denied the motion to dismiss since P.D. No. 1083 had jurisdiction over all
cases of Muslims involving custody.[17]
On April 23, 1999, Sabrina filed a motion to reconsider the order of March 29, 1999 denying the motion to
dismiss.[18]
On June 22, 1999, the court denied petitioners motion for reconsideration. Thus-

WHEREFORE, in view of the foregoing reasons, the motion for reconsideration of the defendant-
movant is hereby ordered DENIED; Defendant is further ordered to comply with the order of this
Court dated July 12, 1996, to allow plaintiff to exercise his right of parental authority over their
minor children with that of the defendant in accordance with article 71, of P.D. 1083, the Code of
Muslim Personal Laws.

Let the continuation of this case be set on July 15, 1999 at 8:30 in the morning.[19]

On July 15, 1999, the trial court decided to move forward to the next stage of the case and allowed respondent
Fouzi to present evidence ex-parte.
On August 18, 1999, the court issued an order[20] giving respondent fifteen (15) days to submit his formal
offer of evidence and fifteen (15) days from receipt of transcript of stenographic notes to submit memorandum.
The Sharia District Courts Decision

On November 16, 1999, the Sharia Court rendered a decision, the dispositive portion of which reads:

WHEREFORE, foregoing considered, judgment is hereby rendered:

(a) Awarding the custody of the minors Abdulaziz Artadi Bondagjy and Amouaje Artadi Bondagjy in favor of
their natural father, petitioner Fouzi Ali Bondagjy; and for this purpose ordering the respondent Sabrina Artadi
Bodagjy or any person having the care of said minors in her stead or behalf, to turn over, relinguish and
surrender the custody of said minors to their natural father, the petitioner in this case Fouzi Ali Bondagjy;
(b) Ordering the petitioner Fouzi Ali Bondagjy to ensure that the said minors are provided with reasonable support
according to his means and in keeping with the standard of his family, and, a suitable home conducive to their
physical,
(c) mental and moral development; and, with his knowledge and under reasonable circumstances allow the
respondent and natural mother of the said minors Mrs. Sabrina Artadi Bondagjy to visit her minor children
Abdulaziz Artadi Bondagjy and Amouje Artadi Bondagjy.[21]
Hence, this petition.[22]

The Courts Ruling

The Sharia District Court held that P.D. No. 1083 on Custody and Guardianship does not apply to this case
because the spouses were not yet divorced.
However, the Sharia District Court found petitioner unworthy to care for her children. Thus -

A married woman, and a mother to growing children, should live a life that the community in
which she lives considers morally upright, and in a manner that her growing minor children will not
be socially and morally affected and prejudiced. It is sad to note that respondent has failed to
observe that which is expected of a married woman and a mother by the society in which she lives.
xxx The evidence of this case shows the extent of the moral depravity of the respondent, and the
kind of concern for the welfare of her minor children which on the basis thereof this Court finds
respondent unfit with the custody of her minor children.

xxx Under the general principles of Muslim law, the Muslim mother may be legally disentitled to the custody of
her minor children by reason of wickedness when such wickedness is injurious to the mind of the child, such as
when she engages in zina (illicit sexual relation); or when she is unworthy as a mother; and, a woman is not
worthy to be trusted with the custody of the child who is continually going out and leaving the child hungry. (A.
Baillie, Muhammadan Law, p. 435; citing Dar-ul-Muktar, p. 280).[23]

On the other hand, the Sharia Court found that respondent Fouzi was capable both personally and financially
to look after the best interest of his minor children.[24]

When he was asked during the direct examination the question that, if ever this Honorable Court
will grant you custody of your children will you be able to house and give support to your children?
He answered, Of course, even up to now I am giving support to my children; And my comment is
that the father should give everything the needs of the family and now whatever the children needs
even in school, considering the past, I have to love them, I have to care for my children. In school,
even when they see something they love and like, I buy it for them. Or sometime (sic) I send my
staff and bring something for them in their house. It is very hard, in school in front of other parents
my son would still climb on my shoulder. I want to see them happy. I have pictures of my children
with me, taken only last week.[25]

As a rule, factual findings of the lower courts are final and binding upon the parties.[26] The Court is not
expected or required to examine or contrast the oral and documentary evidence submitted by the
parties.[27] However, although this Court is not a trier of facts, it has the authority to review or reverse the factual
findings of the lower courts if we find that these do not conform to the evidence on record.[28]
In Reyes vs. Court of Appeals,[29] the Court held that the exceptions to the rule that factual findings of the
trial court are final and conclusive and may not be reviewed on appeal are the following: (1) when the inference
made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the
finding is grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of
Appeals is based on misapprehension of facts; (5) when the findings of fact are conflicting; (6) when the Court
of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions
of both appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial
court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based;
(9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which,
if properly considered, would justify a different conclusion, and (10) when the findings of fact of the Court of
Appeals are premised on the absence of evidence and are contradicted by the evidence on record.

Fitness as a Mother

The burden is upon respondent to prove that petitioner is not worthy to have custody of her children. We find
that the evidence presented by the respondent was not sufficient to establish her unfitness according to Muslim
law or the Family Code.
In Pilipinas Shell Corp. vs. Court of Appeals (April 20, 2001, G.R. No. 114923), we said that in the hierarchy
of evidentiary values, proof beyond reasonable doubt is at the highest level, followed by clear and convincing
evidence, preponderance of evidence and substantial evidence, in that order.[30]
The standard in the determination of sufficiency of proof, however, is not restricted to Muslim laws. The
Family Code shall be taken into consideration in deciding whether a non-Muslim woman isincompetent. What
determines her capacity is the standard laid down by the Family Code now that she is not a Muslim.
Indeed, what determines the fitness of any parent is the ability to see to the physical, educational, social and
moral welfare of the children,[31] and the ability to give them a healthy environment as well as physical and
financial support taking into consideration the respective resources and social and moral situations of the parents.
The record shows that petitioner is equally financially capable of providing for all the needs of her children.
The children went to school at De La Salle Zobel School, Muntinlupa City with their tuition paid by petitioner
according to the schools certification.[32]

Parental Authority and Custody

The welfare of the minors is the controlling consideration on the issue.[33]


In ascertaining the welfare and best interest of the children, courts are mandated by the Family Code to take
into account all relevant considerations.[34]
Article 211 of the Family Code provides that the father and mother shall jointly exercise parental authority
over the persons of their common children.
Similarly, P.D. No. 1083 is clear that where the parents are not divorced or legally separated, the father and
mother shall jointly exercise just and reasonable parental authority and fulfill their responsibility over their
legitimate children.
In Sagala-Eslao v. Court of Appeals,[35] we stated:

xxx [Parental authority] is a mass of rights and obligations which the law grants to parents for the
purpose of the childrens physical preservation and development, as well as the cultivation of their
intellect and the education of their heart and senses.[36] As regards parental authority, there is no
power, but a task; no complex of rights, but a sum of duties; no sovereignty but a sacred trust for
the welfare of the minor.[37]

xxx

The father and mother, being the natural guardians of unemancipated children, are dutybound and
entitled to keep them in their custody and company.[38]

We do not doubt the capacity and love of both parties for their children, such that they both want to have
them in their custody.
Either parent may lose parental authority over the child only for a valid reason. In cases where both parties
cannot have custody because of their voluntary separation, we take into consideration the circumstances that
would lead us to believe which parent can better take care of the children. Although we see the need for the
children to have both a mother and a father, we believe that petitioner has more capacity and time to see to the
childrens needs. Respondent is a businessman whose work requires that he go abroad or be in different places
most of the time. Under P.D. No. 603, the custody of the minor children, absent a compelling reason to the
contrary, is given to the mother.[39]
However, the award of custody to the wife does not deprive the husband of parental authority. In the case
of Silva v. Court of Appeals,[40] we said that:

Parents have the natural right, as well as the moral and legal duty, to care for their children, see to
their upbringing and safeguard their best interest and welfare. This authority and responsibility may
not be unduly denied the parents; neither may it be renounced by them. Even when the parents are
estranged and their affection for each other is lost, the attachment and feeling for their offsprings
invariably remain unchanged. Neither the law nor the courts allow this affinity to suffer absent, of
course, any real, grave and imminent threat to the well-being of the child.

Thus, we grant visitorial rights to respondent as his Constitutionally protected natural and primary right.[41]

The Fallo

WHEREFORE, the petition is hereby GRANTED. The decision in Spl. Proc. No. 13-96 is hereby SET
ASIDE. Petitioner SABRINA ARTADI BONDAGJY shall have custody over minors Abdulaziz, and Amouaje
Bondagjy, until the children reach majority age. Both spouses shall have joint responsibility over all expenses of
rearing the children.
The father, FOUZI ALI BONDAGJY, shall have visitorial rights at least once a week and may take the
children out only with the written consent of the mother.
No costs.
SO ORDERED.
G.R. No. 170406 August 11, 2008

FOUZIY* ALI BONDAGJY, petitioner,


vs.
SABRINA ARTADI,** respondent.

DECISION

CARPIO MORALES, J.:

This is not the first time that the parties, Fouziy Ali Bondagjy (petitioner) and his wife Sabrina Artadi (respondent), resort
to this Court to resolve yet another controversy between them,1 one which calls for the resolution of a seeming procedural
stalemate over the dissolution of their connubial bond.

Petitioner and respondent were married in accordance with Islamic Law on February 4, 1988 at the Manila Hotel.2 After a
few years, the marital union soured. Respondent soon filed in or about March 1996 a complaint for divorce
by faskh3 before the Third Shari'a Circuit Court at Isabela, Basilan4 where it was docketed as SCC Case No. 541, alleging
as ground therefor petitioner's neglect or failure to provide support since October 1994.

After what the Third Shari'a Circuit Court described as a "careful evaluation of the pleadings of the parties" consisting of
respondent's Petition, petitioner's Answer to Affirmative Defenses, and the Reply of petitioner, said court, by Order5 of
June 24, 1996, dismissed respondent's complaint in this wise:

T]he grounds relied upon by herein plaintiff in her petition for divorce against herein defendant does [sic] not exist as of the moment and
not to mentioned [sic] the fact that herein plaintiff is not actually a resident of Zamboanga City. Nonetheless, it is very clear that
herein defendant could have not provided support and companionship to herein plaintiff and their children. The fact that herein
defendant brought his wife to Saudi Arabia wherein she operated a fashion shop with the help of herein defendant and that their children
was born in Saudi Arabia is a clear manifestation that herein defendant cared for his wife and their children and could have not neglected
them in Saudi Arabia in his own place and not to mentioned [sic] the fact that herein defendant belongs to a respectable family in Saudi
Arabia and herein defendant being an arab muslim knows very well that it is a great sin not to provide support and companionship to his
wife and children as head of the family.

The grounds for the petition for divorce as alleged in the complaint of herein plaintiff are mere allegations
without evidences to support them. (Emphasis and underscoring supplied)

Respondent's motion for reconsideration of the order of dismissal was denied.6 The dismissal order became final and
executory, respondent not having appealed the same.

Close to two years thereafter or on March 20, 1998, respondent filed a petition for declaration of absolute nullity of
marriage, custody and support before the Regional Trial Court (RTC) of Muntinlupa City. The petition was, by Order of
January 28, 1999,7 dismissed on the grounds of lack of jurisdiction over the persons of the parties, they being Muslims at
the time of the marriage, and res judicata in view of the above-said dismissal order of the Third Shari'a Circuit Court.8

Six years later or on February 7, 2005, respondent filed another petition9 for divorce by faskh before the Second Shari'a
Circuit Court at Marawi City where it was docketed as Civil Case No. 2005-111, on the grounds of neglect and failure of
petitioner to provide support and to perform his marital obligations.10

Petitioner raised the affirmative defenses of res judicata, lack of jurisdiction over the person of respondent, and forum-
shopping.11

Finding the affirmative defenses, except lack of jurisdiction, persuasive, and after considering the respective memoranda
of the parties, the Second Shari'a Circuit Court dismissed respondent's petition by Order of June 22, 200512 on the ground
of res judicata and failure to comply with the rule on forum shopping.
Respondent appealed to the Fourth Shari'a Judicial District Court at Marawi City which, by the present challenged
Decision of October 17, 2005, ruled that res judicata does not apply in the case at bar since respondent may have new
evidence to prove that she is indeed entitled to divorce. Brushing aside the Second Shari'a Circuit Court's finding that
respondent failed to comply with the rule on forum-shopping, the Fourth Sharia's Judicial District Court held:

xxxx

Under oath, [petitioner] has substantially complied with Section 5, Rule 7, Rules of Court. In one case, the
Supreme Court ruled that while the required certificate of non-forum shopping is mandatory, it is not
jurisdictional. (Robern Development Corporation v. Quitain, 315 SCRA 150)

x x x x (Underscoring supplied)

The Fourth Shari'a Judicial District Court accordingly overturned the dismissal order of, and remanded the case, to the
Second Shari'a Circuit Court for hearing on the merits. Hence, the present petition raising the issue of

WHETHER . . . THE [FOURTH] SHARI'A DISTRICT COURT OF MARAWI CITY ERRED IN REVERSING
THE FINDINGS OF THE SECOND SHARI'A CIRCUIT COURT OF MARAWI CITY THAT A) CIVIL CASE
[NO.] 2005-111 IS BARRED BY PRIOR JUDGMENT [OR] RES JUDICATA IN CIVIL CASE [NO.] 541
WHICH WAS DECIDED WITH FINALITY ON MARCH 5, 1996 [sic], INVOLVING THE SAME PARTIES
AND ISSUES, AND B) NON-COMPLIANCE WITH THE RULE ON CERTIFICATION AGAINST FORUM
SHOPPING.

Petitioner contends that the Fourth Shari'a District Court erred in remanding the case to the Second Shari'a Circuit Court
for hearing on the merits, the former not having even found in the pleadings any new evidence to support respondent's
petition for divorce by faskh. And he asserts that, as it was respondent who refused to cohabit with him, he cannot be
faulted for failing to support her and their children.13

Petitioner further asserts that respondent's petition filed before the Second Shari'a Circuit Court did not contain the
required certification of non-forum shopping, and if there was one, it failed to disclose the priorly filed civil case for
declaration of absolute nullity of marriage which was dismissed by Branch 256 of the RTC of Muntinlupa for lack of
jurisdiction and res judicata.14

The petition fails.

For res judicata to bar the institution of a subsequent action, the following requisites must concur: (1) the former
judgment or order must be final; (2) the judgment or order must be on the merits; (3) it must have been rendered by a
court having jurisdiction over the subject matter and parties; and (4) there must be, as between the first and second
actions, identity of parties, of subject matter, and of causes of action.15

The presence of the first three requisites is not disputed. The Third Shari'a Circuit Court had jurisdiction over the first
complaint-SCC Case No. 541, for divorce by faskh. And it had rendered a decision on the merits, which decision had
become final.

It is with respect to the presence of the fourth requisite - that there is identity of causes of action in SCC Case No. 541 and
Civil Case No. 2005-111 - that the decision of the present petition hinges. The Court finds no such identity of causes of
action.

The test of identity of causes of action lies not in the form of an action but on whether the same evidence would support
and establish the former and present causes of action.16 If the same evidence would sustain both actions, they are
considered the same and covered by the rule that the judgment in the former is a bar to the subsequent action.

Under P.D. No. 1083 or the Code of Muslim Personal Laws, the court may decree a divorce by faskh, upon petition of the
wife, on any of the following grounds:

(a) Neglect or failure of the husband to provide support for the family for at least six consecutive months;
(b) Conviction of the husband by final judgment sentencing him to imprisonment for at least one year;

(c) Failure of the husband to perform for six months without reasonable cause his marital obligation in
accordance with this code;

(d) Impotency of the husband;

(e) Insanity or affliction of the husband with an incurable disease which would make the continuance of the
marriage relationship injurious to the family;

(f) Unusual cruelty of the husband as defined under the next succeeding article; or

(g) Any other cause recognized under Muslim law for the dissolution of marriage by faskh either at the instance of
the wife or the proper wali.17 (Emphasis and underscoring supplied)

The material allegations in respondent's petition in SCC Case No. 541 are:

xxxx

9. As a matter of fact, it was only her income from this business in Jeddah that was used by the plaintiff to support
her and family [sic] and sometimes even the mother of the defendant;

10. Plaintiff has begged many times the defendant to attend to his family and perform his function and role as a
father and husband but was never fulfilled by the defendant;

11. On account of the continued absences and complete disregard of the defendant of his obligation to the
plaintiff and their children, plaintiff decided to come back to the Philippines after six (6) years of their
married life with their children sometime in October 1993 and stayed with plaintiff's mother;

xxxx

13. On the other hand, despite the fact that defendant refused to perform a divorce by thalaq to the
plaintiff, defendant also continuously failed and refused to give financial support, companionship as well as
love and affection to the plaintiff and her children even up to the present time[.]18

x x x x (Emphasis and underscoring supplied),

The material allegations in respondent's petition in Civil Case No. 2005-111 subject of the present case are:

xxxx

10. That while Petitioner's earlier attempts in seeking divorce failed, the Respondent harassed and coerced her by
filing unfounded cases which added to the Petitioner's worries and anxieties;

11. That the Petitioner is willing to narrate before this Honorable Court the untold sufferings and pain that she had
incurred during her years of marriage with the Respondent, which would justify the issuance of a Divorce by
Faskh as provided for in the Code of Muslim Personal Laws;

12. That since then, the Respondent has failed and continuously failed to perform his legal, moral and religious
obligations to support the Petitioner and her children for a period of more than ten (10) years;19

x x x x (Emphasis and underscoring supplied)

From the foregoing material allegations in the two petitions, the Court finds that the causes of action are based
on differentperiods during which petitioner allegedly neglected or failed to support his family and perform his marital
obligations.
SCC Case No. 541 which was dismissed on June 24, 1996 covered the period prior to March 1996 (the date of its filing),
while Civil Case No. 2005-111 subject of the present petition which was filed on February 7, 2005 covered the period in
the interim. In other words, in the first case, petitioner's alleged negligence and/or failure to support and perform his
marital obligations occurred at least six months before March 1996. Whereas in the second case, similar grounds-bases of
the cause of the action occurred at least six months before February 7, 2005. The causes of action in the two cases are thus
independent of each other, the circumstances relating to non-support and non-performance of marital obligations being
disparate.

Respondent would thus have to present evidence to support her petition in Civil Case No. 2005-111 filed on February 7,
2005 that petitioner had, after the dismissal of SCC Case No. 541 on June 24, 1996 and for at least six months prior to
February 7, 2005, "continuously failed to perform his . . . obligations to support [her] and her children," independently of
any evidence which may have been appreciated by the judge in SCC Case No. 541. It bears emphasis at this juncture that
the Third Shari'a Circuit Court, in dismissing SCC Case No. 541, merely evaluated "the pleadings submitted by the
parties," following which it concluded that "the grounds relied upon by herein [respondent]" . . . does [sic] not exist as of
the moment and not to mentioned [sic] the fact that [she] is not actually a resident of Zamboanga City." (Underscoring
supplied). In so doing, the said court applied the third paragraph of Section 6 of the Special Rules of Procedure in Shari'a
Courts20 reading:

SEC. 6. PRE-TRIAL. (1) x x x.

xxxx

(3) SHOULD THE COURT FIND, UPON CONSIDERATION OF THE PLEADINGS, EVIDENCE AND
MEMORANDA, THAT A JUDGMENT MAY BE RENDERED WITHOUT NEED OF A FORMAL
HEARING, THE COURT MAY DO SO WITHIN FIFTEEN (15) DAYS FROM THE SUBMISSION OF THE
CASE FOR DECISION.

x x x x (Emphasis and underscoring supplied)

To reiterate, the Third Shari'a Circuit Court decided SCC Case No. 541 merely on the basis of the pleadings of the parties.

In a similar vein, the Second Shari'a Circuit Court denied respondent's petition in Civil Case No. 2005-111 only after
conducting a hearing of the affirmative defenses and a consideration of the memoranda submitted by the parties in
connection therewith. In other words, the two courts did not conduct a formal hearing of respondent's petitions.

The findings of the Second Shari'a Circuit Court were at best superficial, however, given the distinctiveness of Shari'a
Court procedures. Thus, under Muslim Procedural Law, the Shari'a court is mandated to adhere to sources of Muslim Law
relating to the number, status or quality of witnesses, and evidence required to prove any fact, and to apply the Rules of
Court only suppletorily.21

By and large, jurisprudence on Muslim Law recognizes three kinds of evidence: first, shahadah or testimonial evidence;
second, igrar or admission; and third, yamin or oath.22 Documentary evidence is considered outside the mode of proofs
(i.e., testimony, admission and oath), but at times accepted as substitute for oral testimony.23

Muslim Law thus places a premium on testimonial evidence as mode of proof. This unique legal precept a fortiori applies
in the case at bar. For neglect or failure to provide support and to perform one's marital obligations requires proof by
substantial evidence, not by inference as what the judge of the Third Shari'a Circuit Court did as reflected in the earlier-
quoted portions of his June 24, 1996 Order. Not infrequently, the testimonies and contra-declarations of the parties, the
children or their witnesses are secured to prove their respective allegations and defenses.

Petitioner's contention that respondent failed to adduce documentary evidence to prove her claim does not thus lie.

Respecting the Fourth Shari'a Judicial District Court's challenged conclusion that respondent had substantially complied
with the requirement of Section 5 of Rule 7 of the Rules of Court, the fourth paragraph of respondent's "Verification" of
her petition in Civil Case No. 2005-111 which reads:

xxxx
4. That except for the earlier petition for divorce which was dismissed, there is no other similar case now
pending with the Supreme Court, Court of Appeals or before any other court or tribunal; that should I discover
that there is such of similar nature and character, I will promptly inform this Honorable Court.24

x x x x (Emphasis and underscoring supplied),

bears it out. The sworn certification need not be in a separate segment. Thus, Section 5 of Rule 7 provides:

SEC. 5. Certification against forum shopping. -The plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving
the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other
action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the
present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed
or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint
or initiatory pleading has been filed.

x x x x (Emphasis and underscoring supplied; italics in the original)

As for the omission by respondent to include in the certification the dismissal of the annulment case she filed with the
RTC of Muntinlupa City, it is not fatal. An omission in the certificate of non-forum shopping about any event that would
not constitute res judicata and litis pendencia is not fatal as to merit the dismissal and nullification of the entire
proceedings, given that the evils sought to be prevented by the said certification are not present.25

As priorly discussed, the order dismissing SCC Case No. 541 does not constitute res judicata on Civil Case No. 2005-111
subject of the present case. Nor does the order dismissing Civil Case No. 98-070, an action for declaration of absolute
nullity of marriage under Article 36 of the Family Code. For the grounds for nullity of marriage under the Family Code
are dissimilar to the grounds for divorce by faskh under the Code of Muslim Personal Laws. Besides, Civil Case No. 98-
070 was, in the main, dismissed by the RTC of Muntinlupa for lack of jurisdiction over the person of petitioner and of
respondent.

WHEREFORE, the petition is, in light of the foregoing disquisition, DENIED. The October 17, 2005 Decision of the
Fourth Shari'a Judicial District Court at Marawi City is AFFIRMED.

Let the records of the case be remanded to the court of origin, the Second Shari'a Circuit Court at Marawi City, which is
ordered to reinstate Civil Case No. 2005-111 in its docket and to conduct further proceedings thereon with dispatch.

Costs against petitioner.

SO ORDERED.