Estrellita J. Tamano, petitioner, versus Honorable Rodolfo A.
Ortiz, Presiding In the complaint for declaration of nullity of marriage filed by respondents herein it
Judge, RTC-Br. 89, Quezon City, Haja Putri Zorayda A. Tamano, Adib A.
Tamano and the Honorable Court of Appeals, respondents.
G.R. No. 126603 June 29, 1998
Facts:
On 31 May 1958 Senator Mamintal Abdul Jabar Tamano (Tamano) married private
respondent Haja Putri Zorayda A. Tamano (Zorayda) in civil rites. Their marriage
supposedly remained valid and subsisting until is death on 18 May 1994. Prior to his
death, on 2 June 1993, Tamano also married petitioner Estrellita J. Tamano (Estrellita)
in civil rites in Malabang, Lanao del Sur.
On 23 November 1994 private respondent joined by her son Adib A. Tamano (Adib)
filed a Complaint for Declaration of Nullity of Marriage of Tamano and Estrellita on
the ground that it was bigamous. They contended that Tamano and Estrellita
mispresented themselves as divorced and single, respectively, thus making the entries
in the marriage contract false and fraudulent.
Private respondents alleged that Tamano never divorced Zorayda and that Estrellita
was not single when she married Tamano as the decision annulling her previous
marriage with Romeo C. Llave never became final and executor for non-compliance
with publication requirements.
Petitioner alleged that “only a party to the marriage” could file an action for annulment
of marriage against the other spouse, hence, it was only Tamano who could file an
action for annulment of their marriage. She likewise contended that since Tamano and
Zorayda were both Muslims and married in Muslim rites the jurisdiction to hear and
try the instant case was vested in the shari’a courts pursuant to Article 155 of the Code
of Muslim Personal Laws.
Issue:
Whether or not the marriage of Tamano to Estrellita is a bigamous marriage.
Held:
was alleged that Estrellita and Tamano were married in accordance with the provisions
of the Civil Code. Never was it mentioned that Estrellita and Tamano were married
under Muslim laws or P.D. No. 1083. Interestingly, Estrellita never stated in her
Motion to Dismiss that she and Tamano were married under Muslim laws. That she in
fact married to Tamano under Muslim laws was first mentioned only in her Motion for
Reconsideration.
As alleged in the complaint, petitioner and Tamano were married in accordance with
the Civil Code. Hence, contrary to the position of the petitioner, the Civil Code is
applicable in the instant case. Assuming that indeed petitioner and Tamano were
likewise married under Muslim laws, the same would still fall under the general
original jurisdiction of the Regional Trial Courts.
The shari’a courts are not vested with original and exclusive jurisdiction when it comes
to marriages celebrated under both civil and Muslim laws.
Therefore, the marriage of Estrellita and Tamano is a bigamous marriage being that it
was celebrated while the prior subsisting marriage of Tamano to Zorayda is still valid.
[G.R. No. 134622. October 22, 1999]
AMININ L. ABUBAKAR, petitioner vs. AURORA A. ABUBAKAR, respondent.
DECISION
DAVIDE, JR., C.J.:
Petitioner Aminin L. Abubakar (hereafter AMININ) and respondent Aurora A.
Abubakar (hereafter AURORA) were married in Jolo, Sulu, on 1 May 1978 in
accordance with Islamic law.
 Sometime in February 1996, AURORA filed before the 1st Shari’ah Circuit Court
of Isabela, Basilan Province (hereafter referred to as the CIRCUIT COURT), a
complaint against AMININ for “Divorce with Prayer for Support and Damages.”
Docketed as Case No. 537, the complaint was mainly premised on the alleged failure
of AMININ to secure AURORA’s consent before contracting a subsequent marriage,
in violation of Articles 27 and 162 of Presidential Decree No. 1083, otherwise known
as the “Code of Muslim Personal Laws of the Philippines.”
In its pre-trial order[1] dated 21 March 1997, the CIRCUIT COURT limited the
issue to be resolved at the trial to a determination of “the rights or the respective shares
of the (parties) with respect to the property subject of partition after divorce.” Identified
as the realty to be divided were: (a) a half unit of a duplex standing on a lot at Tumaga
Por Centro, Zamboanga City[2] covered by Transfer Certificate of Title No. T-86, 898.
[The other half is owned and occupied by a certain JACKARIA M. MOHAMMAD
and his wife].2; (b) a 550-square meter lot adjacent to the one previously mentioned [3];
and (c) a house and lot at Block 2, (Lot 44), Kasanyangan Village, Jolo,
Sulu,[4] (hereafter collectively known as the PROPERTIES).
On 29 August 1997, Judge Kaudri L. Jainul issued an order [5] dissolving the
marriage of AURORA and AMININ, distributing the PROPERTIES equally between
them as co-owners, and ordering AMININ to pay her the amount of P10,000 as support
during the three-month ‘idda (waiting period).
AURORA duly filed a notice of appeal from this decision but only “as far as it
involves the issue of partition of property, and not to the grant of divorce and damages
it being in her favor.”[6] Actually, both parties were concerned only with the conclusion
of the CIRCUIT COURT that the PROPERTIES were conjugal.
In his 20 May 1998 decision,[7] Judge Bensaudi I. Arabani, Sr., presiding over the
3rd Shari’ah Judicial District Court of Zamboanga City (hereafter referred to as the
DISTRICT COURT), affirmed the CIRCUIT COURT’s 29 August 1997 order with
some modifications, thus:
WHEREFORE, appreciating the evidence submitted to the Court by both parties in
their respective pleadings and memoranda, and the pertinent laws applicable to the
case, judgment is hereby rendered modifying the order of the court of origin as follows:
(a) Affirming the grant of DIVORCE by faskh (decree of court) between the
parties;
(b) Affirming the order of the trial Court, as follows:
The following properties is (sic) hereby awarded and distributed equally between
herein plaintiff and defendant being considered as co-owners and as such, they will
have equal share in the partition of their properties, to wit:
1. House and lot situated at Tumaga Por Centro, Zamboanga City,
consisting of a half duplex unit on Lot No. 1845-B-2 under Transfer
Certificate of Title No. T-86, 898. (The other half duplex is owned
and occupied by JACKARIA M. MOHAMMAD and his wife);
2. A 550 square meters (sic) lot adjacent to the house and lot described
under item No. 1, identified as Lot No. 1845-B-3 under Transfer
Certificate of Title No. 86, 899;
3. House and lot at Block 2, Lot 44, Kasanyangan Village, Jolo, Sulu
under Transfer Certificate of Title No. T-1820 containing an area of
240 square meters;
And, in addition, to be included as part of their common property and (to) be
partitioned and divided equally:
1. The real estate at Alicia, Zamboanga del Sur.
(c) Ordering the defendant-appellee to pay the plaintiff-appellant the sum of
one hundred ten thousand (P110,000.00) pesos, Philippine Currency as
support in arrears from . . . February 14, 1996, when plaintiff-appellant
demanded for it in her complaint, and up to the expiration of her idda
(waiting period) on December 16, 1997, or (a) duration of twenty two
(22) months, and in the amount of five (5) thousand (P5,000.00) pesos,
monthly, or a total amount of One Hundred Ten Thousand (P110,000.00)
pesos, Philippine Currency, plus legal interest thereon from the time this
judgment becomes final and executory until the said amount is satisfied
in full;
 (d) Ordering defendant-appellee to pay plaintiff-appellant the sum of FIFTY
THOUSAND (P50,000.00) pesos, Philippine Currency as moral
damages, plus legal interest thereon from the time this judgment becomes
final and executory until the said amount is satisfied in full.
SO ORDERED. [Modifications in italics]
Aggrieved by these changes, AMININ filed a motion for reconsideration [8] thereof
on the following grounds:
1. THE HONORABLE COURT SERIOUSLY ERRED IN ORDERING
THE AWARD OF MORAL DAMAGES TO THE PLAINTIFF, THE
GRANT TO HER OF SUPPORT IN ARREARS AND THE
PARTITION OF LAND IN ALICIA, ZAMBOANGA DEL SUR
CONSIDERING THAT THESE ISSUES WERE NEVER RAISED BY
THE PLAINTIFF-APPELLANT IN HER APPEAL.
2. THE AWARD OF MORAL DAMAGES BY THE HONORABLE
COURT IS NOT IN ACCORD WITH LAW AND ESTABLISHED
JURISPRUDENCE.
3. THE HONORABLE COURT VIOLATED GENERALLY ACCEPTED
PRINCIPLES OF ISLAMIC LAW WHEN IT ORDERED THE GRANT
OF SUPPORT IN ARREARS TO THE PLAINTIFF-APPELLANT.
On 15 July 1998, the DISTRICT COURT issued an order, [9] denying said motion
for lack of merit.
AMININ is now before this Court, praying that the assailed 20 May 1998 decision
be reversed and set aside “insofar as it pertains to the award of moral damages to the
respondent, the grant to her of support in arrears, and the partition of the agricultural
lot situated in Alicia, Zamboanga del Sur.”[10]
We find merit in the instant petition.
At the heart of this action lies the time-tested policy of this Court regarding a
litigant’s voluntary limitation of issues vis-à-vis the court’s exercise of its judicial
prerogative. Specifically, the petition seeks confirmation regarding the effects of a
pre-trial order and the finality of matters not appealed by an appellant.
That a pre-trial is indispensable in any civil or criminal action in this jurisdiction
is clearly laid out in Rules 18 and 118 of the Rules of Court. It is a procedural device
meant to limit the issues to be tackled and proved at the trial. A less cluttered case
environment means that there will be fewer points of contention for the trial court to
resolve. This would be in keeping with the mandate of the Constitution according
every person the right to a speedy disposition of their cases. [11] If the parties can agree
on certain facts prior to trial – hence, the prefix “pre” – the court can later concentrate
on those which are seemingly irreconcilable. The purpose of pre-trials is the
simplification, abbreviation and expedition of the trial, if not indeed its
dispensation.[12] The stipulations are perpetuated in a pre-trial order which legally binds
the parties to honor the same.[13]
In the case at bar, AMININ and AURORA “agreed” on the divorce, the ‘idda, and
the limitation of partition of assets to the PROPERTIES. The pre-trial order of 21
March 1997 – whose content and validity were never questioned by either party –
stated the sole issue to be determined at the trial in this wise: “What are the rights or
the respective shares of the herein plaintiff and defendant with respect to the property
subject of partition after divorce?” This is precisely the question answered by the
CIRCUIT COURT in its order of 29 August 1997. The marriage was dissolved, the
PROPERTIES awarded and evenly distributed to the parties as co-owners, and support
in the nominal amount of P10,000 during the three-month ‘idda or waiting period was
awarded to AURORA. Such final order was, therefore, consistent with the pre-trial
order.
Notwithstanding the absence of any irregularity or legal infirmity in the CIRCUIT
COURT’s order, AURORA still questioned its wisdom insofar only as the issue of
partition of their property was concerned; the grant of divorce and damages being in
her favor,[14] she saw no need to pursue the same. Consequently, the DISTRICT
COURT, acting as an appellate court, was not bound to go beyond what the appellant
was asking for, as articulated in Rule 51, Section 8 of the 1997 Rules of Civil
Procedure, viz.:
Sec. 8. Questions that may be decided. – No error which does not affect the
jurisdiction over the subject matter or the validity of the judgment appealed from or
the proceedings therein will be considered unless stated in the assignment of errors,
or closely related to or dependent on an assigned error and properly argued in the brief,
save as the court may pass upon plain errors and clerical errors. [Emphasis supplied]
 “The basic procedural rule is that only errors claimed and assigned by a party will
be considered by the court, except errors affecting its jurisdiction over the subject
matter. To this exception has now been added errors affecting the validity of the
judgment appealed from or the proceedings therein.” [15] A case in point is Bella v.
Court of Appeals,[16] where the Court applied Rule 51 in regarding a matter not
questioned on appeal by the appellant to be final and beyond the appellate court’s
power of review. It was concluded that the Court of Appeals committed reversible
error in altering the trial court’s award even when the appellant did not raise that issue
in his appeal. Thus:
Since the size of the award is an issue which does not affect the court’s jurisdiction
over the subject matter, nor a plain or clerical error, respondent appellate court did not
have the power to resolve it.[17]
From the inception of the divorce proceedings, AURORA lent the impression that
she only wanted the court to determine how the PROPERTIES should be distributed
between her and AMININ. When the DISTRICT COURT decreed the equal division
of the lot at Alicia, Zamboanga del Sur, increased the decree of support eleven-fold,
and granted P50,000 in moral damages, not only did it defeat the intent and content of
the pre-trial order but it also went beyond the sphere of its authority as delineated in
the notice of appeal. These modifications certainly had no bearing on its jurisdiction;
neither do they constitute clerical errors.
WHEREFORE, the instant petition is GRANTED and the challenged decision
of 20 May 1998 and order dated 15 July 1998 of the 3rd Shari’ah Judicial District Court
of Zamboanga City in Appeal Case No. 01-97 are REVERSED AND SET ASIDE. A
new ruling is hereby entered REVERTING to the 29 August 1997 order of the 1st
Shari’ah Circuit Court of Isabela, Basilan Province, in Case No. 537.
No pronouncement as to costs.
SO ORDERED.
Puno, and Pardo, JJ., concur.
Kapunan, and Ynares_Santiago, JJ., on official leave.
SABRINA ARTADI BONDAGJY, petitioner, vs. FOUZI ALI BONDAGJY,
JUDGE BENSAUDI I. ARABANI, SR., in his capacity as presiding
judge of the 3rd Shari’a District Court, Shari’a Judicial District,
Zamboanga City, respondents.
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 respondent’s 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 Sabrina’s 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 neighbor’s 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 Shari’a 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 Shari’a District Court granted petitioner’s 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 petitioner’s 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 o’clock 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 petitioner’s 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 Shari’a District Court’s Decision
On November 16, 1999, the Shari’a 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 Court’s Ruling
The Shari’a 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 Shari’a 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 Shari’a 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]
[29]
In Reyes vs. Court of Appeals, 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 is incompetent. 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 school’s
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 children’s 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]
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.

We do not doubt the capacity and love of both parties for their children, such that The father, FOUZI ALI BONDAGJY, shall have visitorial rights at least once a
they both want to have them in their custody. week and may take the children out only with the written consent of the mother.

Either parent may lose parental authority over the child only for a valid reason. In No costs.
cases where both parties cannot have custody because of their voluntary separation, SO ORDERED.
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 Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Ynares-Santiago, JJ., concur.
both a mother and a father, we believe that petitioner has more capacity and time to see
to the children’s 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
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
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 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 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 petition 9 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 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 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.
DANTE O. TINGA
Associate Justice
ATTY. MARIETTA D. ZAMORANOS, PETITIONER, VS. PEOPLE OF THE
PHILIPPINES AND SAMSON R. PACASUM, SR., RESPONDENTS.
Summary:
Petitioner contests the Court’s jurisdiction over his person or over the subject matter
of the action for the offense of abduction with consent. CA: Appealing for 6 years
before the courts means not only submission to them but an urging of courts to
exercise authority over his person.
Doctrine:
Jurisdiction over the person of an accused is acquired upon either his apprehension,
with or without warrant, or his submission to the jurisdiction of the court.
Facts:
• CFI convicted him of crime of abduction with consent. Sentence:
Indeterminate penalty from 3m & 25d of arresto mayor to 1y & 8m & 21d of
prision correccional.
• Petitioner Maximino: CA erred in not reversing CFI for lack of jurisdiction
over person of accused and subject matter of the action for the offense of
AWC
• Jan 25 1956: Ester Ulsano with mother Consuelo Ulsano filed criminal
complaint of forcible abduction with rape (FAWR) against Maximino
Valdepeñas before the Justice of the Peace Court of Piat. The JPCP found
probable cause and forwarded FAWR complaint to CFI of Cagayan which
found Maximino guilty.
• Maximino appealed to CA. CA modified CFI decision of FAWR
to abduction with consent (AWC).
• Maximino appealed contesting the court's finding that the complainant was
below 18 at the time of the occurrence. CA granted motion and remanded to
CFI. CFI affirmed AWC decision.
• Maximino appealed to CA. CA affirmed CFI.
• Maximino filed MR based, for the first time, upon the ground that the lower
court had no jurisdiction over the person of appellant and the subject matter
of the action with respect to AWC.
• MR was denied so petitioner interposed present appeal by certiorari.
• Maximino: No complaint for AWC was filed by Ester or her mother and,
accordingly, the lower court had no jurisdiction over his person or over the
crime of AWC and had, therefore, no authority to convict him of said crime.
Issues Ratio:
1. WON CFI had no jurisdiction over his person or the action – NO
Ratio.
Jurisdiction over the person of an accused is acquired upon either his apprehension,
with or without warrant, or his submission to the jurisdiction of the court. In the case
at bar, it is not claimed that petitioner had not been apprehended or had not submitted
himself to the jurisdiction of the court.
Although brought before the bar of justice as early as Jan 25 1956 (JPCPP > CFI >
CA > CFI > CA), never within the period of 6 years that had transpired until the CA
rendered its final decision had he questioned the judicial authority of any of these 3
courts over his person. He is deemed, therefore, to have waived whatever objection
he might have over jurisdiction and have submitted himself to the Court's
jurisdiction. His behavior and steps (i.e. filing motions) implied not just submission
but also that he urged the courts to exercise authority over his person.
Jurisdiction over the subject matter of an action for the offense of AWC is and may
be conferred only by law. If jurisdiction over given crime is not vested by law upon
a court, it may not be conferred by the parties involved. Under an information for
forcible abduction, the accused may be convicted of AWC.
But Art. 344[1] does not determine jurisdiction of courts over the offenses
enumerated. Said jurisdiction is governed by the Judiciary Act of 1948 not RPC. Art.
344 is just a condition precedent to the exercise by authorities for the victim/family
that might prefer to suffer in silence that go through scandal. The offended woman
and her mother have chosen to undergo the scandal of a public trial for forcible
abduction which connotes their willingness to face scandal of a public trial for AWC.
Maximino: Some elements of AWC are not included in forcible abduction and not
alleged in the complaint: 1) offended party is a virgin and 2) she is over 12 and under
18.
The complaint clearly states that Ester is 17 so (2) is fulfilled. For (1), the virginity
mentioned in Art. 343 should not be understood in its material sense and does not
exclude the idea of abduction of a virtuous woman of good reputation, because the
essence of the offense "is not the wrong done to the woman, but the outrage to the
family and the alarm produced in it by the disappearance of one of its members."

The complaint alleges that petitioner "willfully, unlawfully and feloniously" took
Ester "by force and violence ... against her will and taking advantage of the absence
of her other" from their dwelling and carried "her to a secluded spot to gain carnal
intercourse with the offended party against her will, using force, intimidation and
violence, with lewd designs." This implies that Ester is a minor living under patria
protestas, and, hence, single, thus leading to the presumption that she is a virgin,
apart from being virtuous and having a good reputation, CJ Moran: the presumption
of innocence includes, also, that of morality and decency, and, as a consequence, of
chastity.

[1] Art. 344, RPC: Offenses of seduction, abduction, rape or acts of lasciviousness,
shall not be prosecuted except upon a complaint filed by the offended party or
parents, grandparents, or guardian nor if he offender has been pardoned by above
[…]

Dispositive:
Petition denied. CFI affirmed once again.