SECOND DIVISION
|
FOUZIY* ALI BONDAGJY, Petitioner, - versus - SABRINA ARTADI,**
Respondent. |
G.R. No. 170406
Present: QUISUMBING, J., Chairperson, CARPIO MORALES, VELASCO, JR., and BRION, JJ.
Promulgated: August
11, 2008 |
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D E C I S I O N
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
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 Order[5] 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
Six years later or on
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
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:
x x x x
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:
x x x x
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;
x x x x
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:
x x x x
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 different periods during which petitioner allegedly neglected
or failed to support his family and perform his marital obligations.
SCC
Case No. 541 which was dismissed on
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
Courts[20]
reading:
SEC. 6. PRE-TRIAL. (1) x x x.
x x x x
(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
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:
x x x x
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
Let
the records of the case be remanded
to the court of origin, the Second Shari’a Circuit Court at
Costs
against petitioner.
SO ORDERED.
CONCHITA
CARPIO MORALES
Associate
Justice
WE CONCUR:
LEONARDO A.
QUISUMBING
Associate
Justice
Chairperson
|
RENATO C. CORONA Associate Justice |
PRESBITERO J. VELASCO, JR. Associate Justice |
ARTURO D.
BRION
Associate
Justice
ATTESTATION
I attest
that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s
Division.
LEONARDO
A. QUISUMBING
Associate
Justice
Chairperson
CERTIFICATION
Pursuant to
Section 13, Article VIII of the Constitution, and the Division Chairperson’s
Attestation, I certify that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the writer of the opinion of
the Court’s Division.
REYNATO S. PUNO
Chief Justice
* Spelled as “Fouzi” in some pleadings in
the records and rollo.
** Also known as “Sabrina Artadi-Bondagjy.”
*** Additional member in lieu of Justice Dante O.
Tinga per Special Order No. 512 dated
[1] In G.R. No. 140817, “Bondagjy v. Bondagjy,” 423 Phil. 127 (2001), where this Court awarded the custody of then minors Abdulaziz and Amouaje Bondagjy to the mother, Sabrina Artadi-Bondagjy.
[2] Rollo,
at 46.
[3] Vide photocopy of complaint, rollo, pp. 27-34; under Article 52 of Presidential Decree No. 1083 (1977) or the Code of Muslim Personal Laws.
[4] Rollo at 27-34.
[5]
[6]
[7]
[8] Ibid.
[9]
[10] Ibid.
[11]
[12]
[13]
[14]
[15] Williams
v. Court of Appeals, G.R. No. 166177, December 18, 2006, 511 SCRA 152; Filinvest Land, Inc. v. Court of Appeals,
G.R. No. 142439, December 6, 2006, 510 SCRA 127; Balanay v. Paderanga, G.R. No. 136963, August 28, 2006, 499 SCRA
670; Heirs of Enrique Diaz v. Virata,
G.R. No. 162037, August 7, 2006, 498 SCRA 141; Coastal Pacific Trading Inc. v. Southern Rolling Mills Co. Inc.,
G.R. No. 118692, July 28, 2006, 497 SCRA 11; Parayno v. Jovellanos, , G.R. No. 148408, July, 14, 2006, 495 SCRA
85; Heirs of Rolando Abadilla v. Galarosa,
G.R. No. 149041, July 12, 2006, 494 SCRA 675; Republic v. Yu, G.R. No. 157557, March 10, 2006, 484 SCRA 416; Philippine National Oil Co. v.
[16] Serdoncillo v. Spouses Benolirao, 358 Phil. 83,103.
[17] P.D. 1083, supra note 3.
[18]
[19] Rollo, p. 47.
[20] Promulgated by the Supreme Court on
[21]
[22] Arabani Sr., Philippine Shari’a Courts Procedure (2000), p. 582.
[23] Ibid. citing Abdur Rahim, Muh. Jurisprudence, p. 382; cit. Fahtawa Alamgirriyah, Vol. III, p. 5341, Mejelle, p. 297.
[24] Rollo, p. 49.
[25] Roxas v. Court of Appeals, 415 Phil 430, 445 (2001).