August 02, 2010 Notes in the Report

Monday, August 02, 2010

11:03 AM

I failed to take any notes. The powerpoint is wordy. And I was late. Boo....

Wali: guardian of a female seeking marriage

-not required if girl is grown up and divorced (but wali merely acts as an agent in Property
relations)
-his consent is usually considered as an essential element of Muslim marriage
-in all cases, the consent of the woman is required

Subsequent marriagers
SEC 3
ART 27. By the husband
-exceptional cases: socio-economic problems

ART 18: Authority to solemnize marriage

Compare: Art 18 vs. Art 7
-includes the Wali (guardian) of the woman to be wedded who is actually the father or even the grand
father, when still alive and if he knows how to do it. In case he doesn't, he can authorize another who is
competent to perform the marriage. If none, the Shari'a DC judge allowed
-Immam/religious teachers: trained to solemnize marriage
-usually invited over by the Wali
Vs. FC: mas maraming requisites (do CMPL more liberal in allowing more persons, without putting too
much restrictions, to solemnize marriage)

Sabi sa video: requisites

a. Dapat may consent ang babae
b. Dapat may guardian ang babae (usually male relative, but if none, close male person) - the wali
("ninong") - sha ngayon magiging tatay mo. Susumbungan mo pag inaway ka ng asawa mo
c. Dowry: di binibili ng mga muslim mga asawa nila. It's a wedding gift. Pede daw verse from Quran
sabi ni Sir. But that doesn't happen now.

Back to the report. But the font is so small! :(

Place of solemnization:
Differences:
1. Needs request in civil law if the marriage be conducted outside the place of solemnization. Under the
code of muslim personal law, the marriage may be solemnized anywhere - no requisite for that.
2. The civil registrar in the CMPL is the clerk of court of the Shari'ah Court

Breach of contract to marry

In CMPL: recognizes it in Art 22
Wassmer vs. Velez: mere breach of promise to marry is not an actionable wrong. But can argue it under
Art 21
Tanjanco v. CA: Man seduced woman, had carnal relations with the woman on the promise of marriage.
Court held that the essential feature of seduction is not mere sexual intercourse blah blah blah...in this
case, it involved two consenting adults (the woman was not a minor) so no seduction, the promise to
marry is not actionable in this case. Difficult to prove that the man just forced the woman to have sex
with her

Islamic Law Page 1

Islamic Law Page 2
Malang v. Moson
Sunday, August 08, 2010
8:11 AM

EN BANC
[G.R. No. 119064. August 22, 2000]
NENG “KAGUI KADIGUIA” MALANG, petitioner, vs. HON. COROCOY MOSON, Presiding Judge of 5th
Shari’a District Court, Cotabato City, HADJI MOHAMMAD ULYSSIS MALANG, HADJI ISMAEL
MALINDATU MALANG, FATIMA MALANG, DATULNA MALANG, LAWANBAI MALANG, JUBAIDA
KADO MALANG, NAYO OMAL MALANG and MABAY GANAP MALANG, respondents.
DE C I SI O N

GONZAGA-REYES, J.:
Presented for resolution in this special civil action of certiorari is the issue of whether or not the regime of
conjugal partnership of gains governed the property relationship of two Muslims who contracted marriage
prior to the effectivity of the Code of Muslim Personal Laws of the Philippines (hereafter, “P.D. 1083” or
“Muslim Code”). The question is raised in connection with the settlement of the estate of the deceased
husband.

Hadji Abdula Malang, a Muslim, contracted marriage with Aida (Kenanday) Limba. They begot three
sons named Hadji Mohammad Ulyssis, Hadji Ismael Malindatu and Datulna, and a daughter named
Lawanbai. Hadji Abdula Malang was engaged in farming, tilling the land that was Aida’s dowry (mahr or
majar). Thereafter, he bought a parcel of land in Sousa, Cotabato. Hadji Abdula and Aida already had
two children when he married for the second time another Muslim named Jubaida Kado in Kalumamis,
Talayan, Maguindanao. No child was born out of Hadji Abdula’s second marriage. When Aida, the first
wife, was pregnant with their fourth child, Hadji Abdula divorced her.

In 1965, Hadji Abdula married another Muslim, Nayo H. Omar but they were childless. Thereafter, Hadji
Abdula contracted marriage with Hadji Mabai (Mabay) H. Adziz in Kalumamis, Talayan, Maguindanao
and soon they had a daughter named Fatima (Kueng). Hadji Abdula and Hadji Mabai stayed in that place
to farm while Hadji Abdula engaged in the business of buying and selling of rice, corn and other
agricultural products. Not long after, Hadji Abdula married three other Muslim women named Saaga,
Mayumbai and Sabai but he eventually divorced them.

Hadji Abdula then migrated to Tambunan where, in 1972, he married petitioner Neng “Kagui Kadiguia”
Malang, his fourth wife, excluding the wives he had divorced. They established residence in Cotabato City
but they were childless. For a living, they relied on farming and on the business of buying and selling of
agricultural products. Hadji Abdula acquired vast tracts of land in Sousa and Talumanis, Cotabato City,
some of which were cultivated by tenants. He deposited money in such banks as United Coconut
Planters Bank, Metrobank and Philippine Commercial and Industrial Bank.

On December 18, 1993, while he was living with petitioner in Cotabato City, Hadji Abdula died without
leaving a will. On January 21, 1994, petitioner filed with the Shari’a District Court in Cotabato City a
petition for the settlement of his estate with a prayer that letters of administration be issued in the name of
her niece, Tarhata Lauban.

Petitioner claimed in that petition that she was the wife of Hadji Abdula; that his other legal heirs are his
three children named Teng Abdula, Keto Abdula and Kueng Malang, and that he left seven (7) parcels of
land, five (5) of which are titled in Hadji Abdula’s name “married to Neng P. Malang,” and a pick -up
jeepney.

On February 7, 1994, the Shari’a District Court ordered the publication of the petition. [1] After such
publication[2] or on March 16, 1994, Hadji Mohammad Ulyssis Malang (“Hadji Mohammad”, for brevity),
the eldest son of Hadji Abdula, filed his opposition to the petition. He alleged among other matters that
his father’s surviving heirs are as follows: (a) Jubaida Malang, surviving spouse; (b) Nayo Malang,
surviving spouse; (c) Mabay Malang, surviving spouse; (d) petitioner Neng Malang, surviving spouse; (e)
oppositor Hadji Mohammad Ulyssis Malang who is also known as “Teng Abdula,” son; (f) Hadji Ismael
Malindatu Malang, also known as “Keto Abdula,” son, (g) Fatima Malang, also known as “Kueng Malang,”
daughter; (h) Datulna Malang, son, and (i) Lawanbai Malang, daughter. Oppositor Hadji Mohammad
Ulyssis Malang alleged that since he and his brother, Hadji Ismael Malindatu Malang, had helped their
father in his business, then they were more competent to be administrators of his estate. [3]

On March 30, 1994, Jubaida Malang, Ismael Malindatu Malang, Nayo Malang, Fatima Malang, Mabay
Malang, Datulna Malang and Lawanbai Malang filed an opposition to the petition, adopting as their own
the written opposition of Hadji Mohammad.[4]

On April 7, 1994, the Shari’a District Court issued an Order appointing Hadji Mohammad administrator of
his father’s properties outside Cotabato City. The same order named petitioner and Hadji Ismael
Malindatu Malang as joint administrators of the estate in Cotabato City. Each administrator was required
to post a bond in the amount of P100,000.00.[5] On April 13, 1994, letters of administration were issued
to Hadji Mohammad after he had posted the required bond. He took his oath on the same day.[6] The
following day, Hadji Ismael and petitioner likewise filed their respective bonds and hence, they were
allowed to take their oath as administrators.[7]

On April 25, 1994 and May 3, 1994, petitioner filed two motions informing the court that Hadji Abdula had
outstanding deposits with nine (9) major banks.[8] Petitioner prayed that the managers of each of those
banks be ordered to submit a bank statement of the outstanding deposit of Hadji Abdula. [9] The Shari’a
District Court having granted the motions,[10] Assistant Vice President Rockman O. Sampuha of United
Coconut Planters Bank informed the court that as of April 24, 1994, the outstanding deposit of Hadji
Abdula amounted to one million five hundred twenty thousand four hundred pesos and forty -eight
centavos (P1,520,400.48).[11] The Senior Manager of the Cotabato branch of Metrobank also certified
that as of December 18, 1993, “Hadji Abdula Malang or Malindatu Malang” had on savings deposit the
balance of three hundred seventy-eight thousand four hundred ninety-three pesos and 32/100 centavos
(P378,493.32).[12] PCIB likewise issued a certification that Hadji Abdula had a balance of eight hundred
fifty pesos (P850.00) in his current account as of August 11, 1994. [13]

During the pendency of the case, petitioner suffered a congestive heart failure that required immediate
medical treatment. On May 5, 1994, she filed a motion praying that on account of her ailment, she be
allowed to withdraw from UCPB the amount of three hundred thousand pesos (P300,000.00) that shall
constitute her advance share in the estate of Hadji Abdula. [14] After due hearing, the Sharia District Court
allowed petitioner to withdraw the sum of two hundred fifty thousand pesos (P250,000.00). [15]

On May 12, 1994, the Shari’a District Court required petitioner and Hadji Ismael as joint administrators to
submit an inventory and appraisal of all properties of Hadji Abdula. [16] In compliance therewith, Hadji
Ismael submitted an inventory showing that in Cotabato City, Hadji Abdula had seven (7) residential lots
with assessed value ranging from P5,020.00 to P25,800.00, an agricultural land with assessed value of
P860.00, three (3) one-storey residential buildings, and one (1) two-storey residential building.[17] All
these properties were declared for taxation purposes in Hadji Abdula’s name.

Islamic Law Page 3

For her part, petitioner submitted an inventory showing that Hadji Abdula “married to Neng Malang” had
seven (7) residential lots with a total assessed value of P243,840.00 in Cotabato City, an Isuzu pick -up
jeepney valued at P30,000.00 and bank deposits.[18]

In the Memorandum that she filed with the Shari’a District Court, petitioner asserted that all the properties HADJI ABDJULA MALANG contracted 8 marriages:
located in Cotabato City, including the vehicle and bank deposits, were conjugal properties in accordance
with Article 160 of the Civil Code and Article 116 of the Family Code while properties located outside of Wife Children
Cotabato City were exclusive properties of the decedent. [19] AIDA (Kenanday) Limba - got 1. Hadji Mohammad Ulyssis
On the other hand, the oppositors contended in their own Memorandum that all the properties left by
divorced when Aida was 2. Hadji Ismael Malindatu
Hadji Abdula were his exclusive properties for various reasons. First, Hadji Abdula had no conjugal
partnership with petitioner because his having contracted eight (8) marriages with different Muslim bearing their fourth child 3. Datulna
women was in violation of the Civil Code that provided for a monogamous marriage; a conjugal 4. Lawanbai
partnership presupposes a valid civil marriage, not a bigamous marriage or a common-law
relationship. Second, the decedent adopted a “complete separation of property regime” in his marital
Jubaida Kado childless
relations; while his wives Jubaida (in 1965) Nayo H. Omar childless
Kado, Nayo Hadji Omal and Mabay Ganap Hadji Adzis contributed to the decedent’s properties,
there is no evidence that petitioner had contributed funds for the acquisition of such properties. Third, the Hadji Mabai (Mabay) H. Adziz Fatima (Kueng)
presumption that properties acquired during the marriage are conjugal properties is inapplicable because
Saaga - d
at the time he acquired the properties, the decedent was married to four (4) women. Fourth, the
properties are not conjugal in nature notwithstanding that some of these properties were titled in the Mayumbai - d
name of the decedent “married to Neng Malang” because such description is not conclusive of the
conjugal nature of the property. Furthermore, because petitioner admitted in her verified petition that the Sabai - d
properties belonged “to the estate of decedent,” she was estopped from claiming, after formal offer of
(1972) -Neng “Kagui childless
evidence, that the properties were conjugal in nature just because some of the properties were titled in
Hadji Abdula’s name “married to Neng Malang.” Fifth, if it is true that the properties were conjugal Kadiguia” Malang
properties, then these should have been registered in the names of both petitioner and the decedent. [20]
- December 18, 1993 0 Hadji Abdula died w/o a will
In its Order of September 26, 1994, the Shari’a District Court presided by Judge Corocoy D. Moson held -January 21, 1994, Neng filed a petition for settlement of
that there was no conjugal partnership of gains between petitioner and the decedent primarily because estate and prayer for letters of administration before Shari'a
the latter married eight times. The Civil Code provision on conjugal partnership cannot be applied if there Court
is more than one wife because “conjugal partnership presupposes a valid civil marriage, not a plural -petition: only left as heirs Neng as the wife and 3 children:
marriage or a common-law relationship.” The court further found that the decedent was “the chief, if not  Teng Abdula
the sole, breadwinner of his families” and that petitioner did not contribute to the properties unlike the  Keto Abdula
other wives named Jubaida, Nayo and Mabay. The description “married to Neng Malang” in the titles to  Kueng Malang
the real properties is no more than that –-- the description of the relationship between petitioner and the • Left 7 parcels of land in the name of Hadji "married to
decedent. Such description is insufficient to prove that the properties belong to the conjugal partnership of Neng P. Malang" and a pick up
gains. The court stated: -petition was published
In the instant case, decedent had four (4) wives at the time he acquired the properties in question. To -Hadji Mohammad Ulyssis Malang ("Hadji Mohammad") -
sustain the contention of the petitioner that the properties are her conjugal property with the decedent is eldest son - filed an opposition to the petition:
doing violence to the provisions of the Civil Code. Be it noted that at the time of the marriage of the • Surviving heirs:
petitioner with the decedent, there were already three (3) existing marriages. Assuming for the moment (a) Jubaida Malang, surviving spouse;
that petitioner and the decedent had agreed that the property regime between them will be governed by (b) Nayo Malang, surviving spouse;
the regime of conjugal partnership property, that agreement is null and void for it is against the law, public (c) Mabay Malang, surviving spouse;
policy, public order, good moral(s) and customs. (d) petitioner Neng Malang, surviving spouse;
(e) oppositor Hadji Mohammad Ulyssis Malang
Under Islamic law, the regime of property relationship is complete separation of property, in the absence who is also known as ―Teng Abdula,‖ son;
of any stipulation to the contrary in the marriage settlements or any other contract (Article 38, P.D. (f) Hadji Ismael Malindatu Malang, also known
1083). There being no evidence of such contrary stipulation or contract, this Court concludes as it had as ―Keto Abdula,‖ son,
begun, that the properties in question, both real and personal, are not conjugal, but rather, exclusive (g) Fatima Malang, also known as ―Kueng
property of the decedent.[21] Malang,‖ daughter;
(h) Datulna Malang, son, and
Thus, the Shari’a District Court held that the Islamic law should be applied in the distribution of the estate (i) Lawanbai Malang, daughter
of Hadji Abdula and accordingly disposed of the case as follows:
• All the other surviving heirs (well at least I think all of
WHEREFORE, premises considered, the Court orders the following:
1) That the estate shall pay the corresponding estate tax, reimburse the funeral expenses in the amount them) filed their respective opposition but adopting
of P50,000.00, and the judicial expenses in the amount of P2,040.80; the opposition by Hadji Mohammad
2) That the net estate, consisting of real and personal properties, located in Talayan, Maguindanao and in • The Oppositors also prayed that they (as represented
Cotabato City, is hereby ordered to be distributed and adjudicated as follows: by the sons) be appointed as administrator
a) Jubaida Kado Malang ------------------------- 2/64 of the estate
-Shari'a Court issued order
b) Nayo Omar Malang ------------------------- 2/64 - do -
c) Mabai Aziz Malang ------------------------- 2/64 - do - • Appointing Hdji Mohammad as administrator of
d) Neng ―Kagui Kadiguia‖ Malang ------------------- 2/64 - do - properties outside Cotabato
e) Mohammad Ulyssis Malang-------------------------14/64 - do - • Appointing Neng and Hadji Ismael as joint
f) Ismael Malindatu Malang---------------------------14/64 - do - administrators of Cotabato estate
g) Datulna Malang ------------------------- 14/64 - do -
-Neng filed 2 motions informing the court that Hdji Abdula
h) Lawanbai Malang ------------------------- 7/64 - do -
i) Fatima (Kueng) Malang ------------------------- 7/64 - do - had 9 outstanding deposits with major banks, and that she
Total------------------------ 64/64 prayed that the banks be ordered to submit a bank
3) That the amount of P250,000.00 given to Neng ―Kagui Kadiguia‖ Malang by way of advance be statement of the outstanding deposit of Hadji
charged against her share and if her share is not sufficient, to return the excess; and -Shari'a court granted it, ordered the banks to report to the
4) That the heirs are hereby ordered to submit to this court their Project of Partition for approval, not later
than three (3) months from receipt of this order.
court the outstanding deposits of the deceased:
SO ORDERED. • United Coconut Planters Bank (as of April 24, 1994):
P1,520,400.48
On October 4, 1994, petitioner filed a motion for the reconsideration of that Order. The oppositors • Cotabato branch of Metrobank (as of December 18,
objected to that motion. On January 10, 1995, the Shari’a District Court denied petitioner’s motion for 1993): P378,493.32
reconsideration.[22] Unsatisfied, petitioner filed a notice of appeal.[23] However, on January 19, 1995, • PCIB(as of August 11, 1994): P850.00
she filed a manifestation withdrawing the notice of appeal on the strength of the following provisions of -Court required Joint administrators to subit inventory and
P.D. No. 1083: appraisal of all the estate's properties, to which they
Art. 145. Finality of Decisions – The decisions of the Shari’a District Courts whether on appeal from the
Shari’a Circuit Court or not shall be final. Nothing herein contained shall affect the original and appellate complied. All the properties were in the decedent's name
jurisdiction of the Supreme Court as provided in the Constitution. for tax purposes (the same (?) 7 residential lots in Cotabato
Petitioner accordingly informed the court that she would be filing ―an original action of certiorari with the showing decedent "married to Neng Malang")
Supreme Court.‖[24] -Neng filed a Memorandum alleging that all the propperties
in Cotabato were CONJUGAL PROPERTIES in accordance
On March 1, 1995, petitioner filed the instant petition for certiorari with preliminary injunction and/or
restraining order. She contends that the Shari’a District Court gravely erred in: with Art 160, CC and Art 116, FC; Properties outside
(a) ruling that when she married Hadji Abdula Malang, the latter had three existing marriages with Cotabato were decedent's exclusive property
Jubaida Kado Malang, Nayo Omar Malang and Mabay Ganap Malang and therefore the properties -COMMENT of OPPOSITORS: all properties were exclusive
acquired during her marriage could not be considered conjugal, and properties:
(b) holding that said properties are not conjugal because under Islamic Law, the regime of relationship is 1. Hadji Abdula had no conjugal partnership with
complete separation of property, in the absence of stipulation to the contrary in the marriage settlement or petitioner because his having contracted eight (8)
any other contract.[25] marriages with different Muslim women was in
violation of the Civil Code that provided for a
As petitioner sees it, ―the law applicable on issues of marriage and property regime is the New Civil monogamous marriage;
Code‖, under which all property of the marriage is presumed to belong to the conjugal partnership. The -a conjugal partnership presupposes a valid civil
Shari’a Court, meanwhile, viewed the Civil Code provisions on conjugal partnership as incompatible with marriage, not a bigamous marriage or a common-law
plural marriage, which is permitted under Muslim law, and held the applicable property regime to be relationship.
complete separation of property under P.D. 1083. 2. the decedent adopted a “complete separation of
property regime” in his marital relations
Owing to the complexity of the issue presented, and the fact that the case is one of first impression --- this

Islamic Law Page 4

 property regime” in his marital relations
Owing to the complexity of the issue presented, and the fact that the case is one of first impression --- this -while his wives Jubaida Kado, Nayo Hadji Omal and
is a singular situation where the issue on what law governs the property regime of a Muslim marriage Mabay Ganap Hadji Adzis contributed to the
celebrated prior to the passage of the Muslim Code has been elevated from a Shari’a court for the Court’s decedent’s properties, there is no evidence that
resolution --- the Court decided to solicit the opinions of two amici curiae, Justice Ricardo C. Puno[26] petitioner had contributed funds for the
and former Congressman Michael O. Mastura[27]. The Court extends its warmest thanks to the amici acquisition of such properties.
curiae for their valuable inputs in their written memoranda[28] and in the hearing of June 27, 2000. 3. Third, the presumption that properties acquired during
the marriage are conjugal properties is inapplicable
Resolution of the instant case is made more difficult by the fact that very few of the pertinent dates of because at the time he acquired the properties, the
birth, death, marriage and divorce are established by the record. This is because, traditionally, Muslims decedent was married to four (4) women.
do not register acts, events or judicial decrees affecting civil status .[29] It also explains why the evidence 4. Fourth, the properties are not conjugal in nature
in the instant case consisted substantially of oral testimonies. notwithstanding that some of these properties were
What is not disputed is that: titled in the name of the decedent “married to Neng
Hadji Abdula contracted a total of eight marriages, counting the three which terminated in divorce; Malang” because such description is not conclusive of
all eight marriages were celebrated during the effectivity of the Civil Code and before the enactment of the conjugal nature of the property.
the Muslim Code; -Furthermore, because petitioner admitted in her
Hadji Abdula divorced four wives --- namely, Aida, Saaga, Mayumbai and Sabai --- all divorces of which verified petition that the properties belonged “to the
took place before the enactment of the Muslim Code; and, estate of decedent,” she was estopped from claiming,
Hadji Abdula died on December 18, 1993, after the Muslim Code and Family Code took effect, survived after formal offer of evidence, that the properties were
by four wives (Jubaida, Nayo, Mabay and Neng) and five children, four of whom he begot with Aida and conjugal in nature just because some of the properties
one with Mabay. were titled in Hadji Abdula’s name “married to Neng
It is also clear that the following laws were in force, at some point or other, during the marriages of Hadji Malang.”
Abdula: 5. Fifth, if it is true that the properties were conjugal
the Civil Code, which took effect on August 30, 1950; properties, then these should have been registered in
Republic Act No. 394 (“R.A. 394”), authorizing Muslim divorces, which was effective from June 18, 1949 the names of both petitioner and the deceden
to June 13, 1969; SHARI'A DC: for oppositors
the Muslim Code, which took effect February 4, 1977;
and the Family Code, effective August 3, 1988. 1. No CPG: decedent married 8 times, and the Civil Code
presupposes a valid marriage and not a plural or
Proceeding upon the foregoing, the Court has concluded that the record of the case is simply inadequate common law marriage
for purposes of arriving at a fair and complete resolution of the petition. To our mind, any attempt at this 2. Decedent was the chief breadwinner of his families
point to dispense with the basic issue given the scantiness of the evidence before us could result in grave and, unlike the previous wives, Neng did not
injustice to the parties in this case, as well as cast profound implications on Muslim families similarly or
analogously situated to the parties herein. Justice and accountability dictate a remand; trial must reopen contribute to the properties
in order to supply the factual gaps or, in Congressman Mastura’s words, “missing links”, that would be the 3. The description "married to Neng Malang" in the title
bases for judgment and accordingly, allow respondent court to resolve the instant case. In ordering thus, is merely a description of relationship, insufficient to
however, we take it as an imperative on our part to set out certain guidelines in the interpretation prove that the properties belong to the CPG
and application of pertinent laws to facilitate the task of respondent court. 4. Assuming decedent agreed with Neng that they
It will also be recalled that the main issue presented by the petition --- concerning the property
regime applicable to two Muslims married prior to the effectivity of the Muslim Code --- was maintain CPG, such agreement is void being contrary
interposed in relation to the settlement of the estate of the deceased husband. Settlement of to law, public policy, public order, good morals and
estates of Muslims whose civil acts predate the enactment of the Muslim Code may easily result in the customs.
application of the Civil Code and other personal laws, thus convincing the Court that it is but propitious to 5. In accordance with PD 1083, The regime of property
go beyond the issue squarely presented and identify such collateral issues as are required to be resolved
is complete separation of properties absent a proof
in a settlement of estate case. As amicus curiae Congressman Mastura puts it, the Court does not often
come by a case as the one herein, and jurisprudence will be greatly enriched by a discussion of the to the contrary. Here, no evidence that it was not a
“watershed of collateral issues” that this case presents. [30] complete separation of properties
6. Islamic law applies to the distribution of properties
The Court has identified the following collateral issues, which we hereby present in question form: -Neng filed MR of Order, objected by Oppositors. DENIED
(1) What law governs the validity of a Muslim marriage celebrated under Muslim rites before the
-Neng filed a notice of appeal but later withdrew it based
effectivity of the Muslim Code?
(2) Are multiple marriages celebrated before the effectivity of the Muslim Code valid? on PD 1083, Section 145, opting instead to file petition for
(3) How do the Court’s pronouncements in People vs. Subano, 73 Phil. 692 (1942), and People vs. certiorari, arguing that the Shari'a court erred in:
Dumpo, 62 Phil. 246 (1935), affect Muslim marriages celebrated before the effectivity of the Muslim (a) ruling that when she married Hadji Abdula Malang,
Code? the latter had three existing marriages with Jubaida
(4) What laws govern the property relationship of Muslim multiple marriages celebrated before the Muslim Kado Malang, Nayo Omar Malang and Mabay Ganap
Code? Malang and therefore the properties acquired during
(5) What law governs the succession to the estate of a Muslim who died after the Muslim Code and the her marriage could not be considered conjugal, and
Family Code took effect? (b) holding that said properties are not conjugal
(6) What laws apply to the dissolution of property regimes in the cases of multiple marriages entered into because under Islamic Law, the regime of relationship
before the Muslim Code but dissolved (by the husband’s death) after the effectivity of the Muslim Code? is complete separation of property, in the absence of
and stipulation to the contrary in the marriage settlement
(7) Are Muslim divorces effected before the enactment of the Muslim Code valid? or any other contrary

The succeeding guidelines, which derive mainly from the Compliance of amicus curiae Justice Puno, are -court asked Amici Curiae: Justice Ricardo C. Puno and
hereby laid down by the Court for the reference of respondent court, and for the direction of the bench former Congressman Michael O. Mastura
and bar: -so uncontested facts:
• Hadji Abdula contracted a total of eight marriages,
First Collateral Issue: The Law(s) Governing Validity of Muslim Marriages Celebrated Before the Muslim
counting the three which terminated in divorce;
Code
• all eight marriages were celebrated during the
The time frame in which all eight marriages of Hadji Abdula were celebrated was during the effectivity
effectivity of the Civil Code and before the enactment
of the Civil Code which, accordingly, governs the marriages. Article 78 of the Civil Code[31]
of the Muslim Code;
recognized the right of Muslims to contract marriage in accordance with their customs and rites,
• Hadji Abdula divorced four wives --- namely, Aida,
by providing that ---
Saaga, Mayumbai and Sabai --- all divorces of which
Marriages between Mohammedans or pagans who live in the non-Christian provinces may be performed
took place before the enactment of the Muslim Code;
in accordance with their customs, rites or practices. No marriage license or formal requisites shall be
• Hadji Abdula died on December 18, 1993, after the
necessary. Nor shall the persons solemnizing these marriages be obliged to comply with article 92.
Muslim Code and Family Code took effect, survived
by four wives (Jubaida, Nayo, Mabay and Neng) and
However, thirty years after the approval of this Code, all marriages performed between Muslims or other
five children, four of whom he begot with Aida and one
non-Christians shall be solemnized in accordance with the provisions of this Code. But the President of
with Mabay.
the Philippines, upon recommendation of the Commissioner of National Integration, may at any time
-effetivity dates of laws
before the expiration of said period, by proclamation, make any of said provisions applicable to the
Muslims and non-Christian inhabitants of any of the non-Christian provinces. the Civil Code which took effect on
August 30, 1950;
Notably, before the expiration of the thirty-year period after which Muslims are enjoined to solemnize their Republic Act No. 394 which was effective from
marriages in accordance with the Civil Code, P.D. 1083 or the Muslim Code was passed into law. The (“R.A. 394”), authorizing June 18, 1949 to June
enactment of the Muslim Code on February 4, 1977 rendered nugatory the second paragraph of Article Muslim divorces, 13, 1969;
78 of the Civil Code which provides that marriages between Muslims thirty years after the approval of the
Civil Code shall be solemnized in accordance with said Code. the Muslim Code which took effect
February 4, 1977;
Second and Third Collateral Issues: The Validity of Muslim Multiple Marriages Celebrated Before the the Family Code effective August 3, 1988.
Muslim Code; The Effect of People vs. Subano and People vs. Dumpo
Prior to the enactment of P.D. 1083, there was no law in this jurisdiction which sanctioned multiple THIS CASE WAS REMANDED! But guidelines provided by the
marriages.[32] It is also not to be disputed that the only law in force governing marriage relations between court
Muslims and non-Muslims alike was the Civil Code of 1950. COLLATERAL ISSUES:
(1) What law governs the validity of a Muslim marriage
The Muslim Code, which is the first comprehensive codification[33] of Muslim personal laws,[34] also celebrated under Muslim rites before the effectivity of the
provides in respect of acts that transpired prior to its enactment: Muslim Code?
Art. 186. Effect of code on past acts. --- (1) Acts executed prior to the effectivity of this Code shall be (2) Are multiple marriages celebrated before the effectivity of
governed by the laws in force at the time of their execution, and nothing herein except as otherwise the Muslim Code valid?
specifically provided, shall affect their validity or legality or operate to extinguish any right acquired or (3) How do the Court’s pronouncements in People vs.
liability incurred thereby. Subano, 73 Phil. 692 (1942), and People vs. Dumpo, 62

Islamic Law Page 5

liability incurred thereby. Subano, 73 Phil. 692 (1942), and People vs. Dumpo, 62
Phil. 246 (1935), affect Muslim marriages celebrated before
The foregoing provisions are consistent with the principle that all laws operate prospectively, unless the the effectivity of the Muslim Code?
contrary appears or is clearly, plainly and unequivocably expressed or necessarily implied; [35] (4) What laws govern the property relationship of Muslim
accordingly, every case of doubt will be resolved against the retroactive opertion of laws. [36] Article 186 multiple marriages celebrated before the Muslim Code?
aforecited enunciates the general rule of the Muslim Code to have its provisions applied prospectively, (5) What law governs the succession to the estate of a
and implicitly upholds the force and effect of a pre-existing body of law, specifically, the Civil Code --- in Muslim who died after the Muslim Code and the Family
respect of civil acts that took place before the Muslim Code’s enactment. Code took effect?
(6) What laws apply to the dissolution of property regimes in
Admittedly, an apparent antagonism arises when we consider that what the provisions of the Civil Code the cases of multiple marriages entered into before the
contemplate and nurture is a monogamous marriage. “Bigamous or polygamous marriages” are Muslim Code but dissolved (by the husband’s death) after
considered void and inexistent from the time of their performance. [37] The Family Code which the effectivity of the Muslim Code? and
superseded the Civil Code provisions on marriage emphasizes that a subsequent marriage celebrated (7) Are Muslim divorces effected before the enactment of the
before the registration of the judgment declaring a prior marriage void shall likewise be void. [38] These Muslim Code valid?
provisions illustrate that the marital relation perceived by the Civil Code is one that is monogamous, and
that subsequent marriages entered into by a person with others while the first one is subsisting is by no
means countenanced. I. Law governing Muslim Marriages Celebrated Before the
Muslim Code
Thus, when the validity of Muslim plural marriages celebrated before the enactment of the Muslim Code -the Civil Code governed the marriages before the
was touched upon in two criminal cases, the Court applied the perspective in the Civil Code that only one effectivity of the Muslim Code
valid marriage can exist at any given time. -ART 78, NCC: recognized the right of Muslims to contract
In People vs. Subano, supra, the Court convicted the accused of homicide, not parricide, since --- marriage in accordance with their customs and rights,
(f)rom the testimony of Ebol Subano, father of the deceased, it appears that the defendant has provided that 30 years after the effectivity of the NCC, all
three wives and that the deceased was the last in point of time. Although the practice of polygamy marriages performed between Muslims and other non-
is approved by custom among these non-Christians, polygamy, however, is not sanctioned by the Christians shall be solemnized in accordance with NCC
Marriage Law[39], which merely recognizes tribal marriage rituals. The deceased, under our law, is (UNLESS President, upon recommendation of the
not thus the lawful wife of the defendant and this precludes conviction for the crime of parricide.
Commissioner of National Integration, make a proclamation
In People vs. Dumpo, supra, Mora Dumpo was prosecuted for bigamy when, legally married to Moro declaring valid the said marriages celebrated under their
Hassan, she allegedly contracted a second marriage with Moro Sabdapal. The Court acquitted her on rites)
the ground that it was not duly proved that the alleged second marriage had all the essential requisites to -note that before the 30 year period provided in the NCC,
make it valid were it not for the subsistence of the first marriage. As it appears that the consent of the PD 1083 (the Muslim Code) was passed (FEB 4, 1977)
bride’s father is an indispensable requisite to the validity of a Muslim marriage, and as Mora Dumpo’s
father categorically affirmed that he did not give his consent to her union with Moro Sabdapal, the Court
held that such union could not be a marriage otherwise valid were it not for the existence of the first one, II & III. Validity of Muslim Multiple Marriages Celebrated
and resolved to acquit her of the charge of bigamy. before the Muslim Code. Effect of People v. Subano and
People v. Dumpo
The ruling in Dumpo indicates that, had it been proven as a fact that the second marriage contained all BEFORE PD 1083 (NCC APPLICABLE): No law sanctioning
the essential requisites to make it valid, a conviction for bigamy would have prospered. [40]
multiple marriages.
Fourth Collateral Issue: Law(s) Governing Property Relations of Muslim Marriages Celebrated -considered Bigamous or Polygamous marriages as void
Before the Muslim Code from the time of their performance
This is the main issue presented by the instant petition. In keeping with our holding that the validity of the FC: subsequent marriages celebrated before the
marriages in the instant case is determined by the Civil Code, we hold that it is the same Code that registration of the judgment declaring a prior marriage void
determines and governs the property relations of the marriages in this case, for the reason that at the
time of the celebration of the marriages in question the Civil Code was the only law on marriage relations, shall likewise be void
including property relations between spouses, whether Muslim or non-Muslim. Inasmuch as the Family Muslim Code, ART.186: does not make the Muslim Code
Code makes substantial amendments to the Civil Code provisions on property relations, some of its apply retroactively.
provisions are also material, particularly to property acquired from and after August 3, 1988. -consistent with the principle that all laws operate
prospectively, unless the contrary appears or is
Which law would govern depends upon: (1) when the marriages took place; (2) whether the parties lived
together as husband and wife; and (3) when and how the subject properties were acquired. clearly, plainly and unequivocably expressed or
necessarily implied
Following are the pertinent provisions of the Civil Code: SO BEFORE MUSLIM CODE: Polygamous marriages are void
Art. 119. The future spouses may in the marriage settlements agree upon absolute or relative community ab initio (note: unless divorced obtained, which was
of property, or upon complete separation of property, or upon any other regime. In the absence of allowed under RA 394 effective 1949-1969, before marrying
marriage settlements, or when the same are void, the system of relative community or conjugal
partnership of gains as established in this Code shall govern the property relations between husband and another one)
wife. FROM FEB 4 1977 ONWARDS: Polygamous MUSLIM
Art. 135. All property brought by the wife to the marriage, as well as all property she acquires during the Marriages were allowed
marriage, in accordance with article 148, is paraphernal. -as applied in 2 cases:
Art. 136. The wife retains the ownership of the paraphernal property. • P v. SUBANO:
Art. 142. By means of the conjugal partnership of gains the husband and wife place in a common fund
the fruits of their separate property and the income from their work or industry, and divide equally, upon  FACTS: The accused had 3 wives, the 3rd one
the dissolution of the marriage or of the partnership, the net gains or benefits obtained indiscriminately by being the victim who was killed.
either spouse during the marriage.  ISSUE: WON the accused should be convicted of
Art. 143. All property of the conjugal partnership of gains is owned in common by the husband and wife. HOMICIDE or PARRICIDE
The Civil Code also provides in Article 144:
 HELD: Accused was convicted of Homicide
When a man and a woman live together as husband and wife, but they are not married, or their marriage
is void from the beginning, the property acquired by either or both of them through their work or industry -Although the practice of polygamy is approved
or their wages and salaries shall be governed by the rules on co-ownership. by custom among these non-Christians,
polygamy, however, is not sanctioned by the
In a long line of cases, this Court has interpreted the co-ownership provided in Article 144 of the Civil Marriage Law[39], which merely recognizes
Code to require that the man and woman living together as husband and wife without the benefit of tribal marriage rituals. The deceased, under our
marriage or under a void marriage must not in any way be incapacitated to marry. [41] Situating these law, is not thus the lawful wife of the defendant
rulings to the instant case, therefore, the co-ownership contemplated in Article 144 of the Civil Code and this precludes conviction for the crime of
cannot apply to Hadji Abdula’s marriages celebrated subsequent to a valid and legally existing marriage, parricide.
since from the point of view of the Civil Code Hadji Abdula is not capacitated to marry. However, the • P v. DUMPO:
wives in such marriages are not precluded from proving that property acquired during their cohabitation  FACTS: Dumpo was legally married to a Moro
with Hadji Abdula is their exclusive property, respectively.[42] Absent such proof, however, the but allegedly contracted another marriages
presumption is that property acquired during the subsistence of a valid marriage --- and in the Civil Code,
with another Moro. Her dad testified that he
there can only be one validly existing marriage at any given time --- is conjugal property of such
subsisting marriage. [43] did not consent to the 2nd marriage.
 ISSUE: WON Dumpo should be convicted of
With the effectivity of the Family Code on August 3, 1988, the following provisions of the said Code are Bigamy (WON she validly contracted a second
pertinent: marriage to merit her conviction of Bigamy)?
Art. 147. When a man and a woman who are capacitated to marry each other live exclusively with
 HELD: Accused NOT GUILTY
each other as husband and wife without the benefit of marriage or under a void marriage, their wages and
salaries shall be owned by them in equal shares and the property acquired by both of them through their -consent of father an essential requisite for a
work or industry shall be governed by the rules on co-ownership. valid Muslim marriage. As here, no consent was
In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to obtained, the second marriage was not valid.
have been obtained by their joint efforts, work or industry, and shall be owned by them in equal HENCE, no bigamy.
shares. For purposes of this Article, a party who did not participate in the acquisition of the other party of
-it appears that if the 2nd marriage was valid,
any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts
consisted in the care and maintenance of the family and of the household. the accused Dumpo would be convicted of
Neither party can encumber or dispose by acts inter vivos of his or her share in the property acquired Bigamy.
during cohabitation and owned in common, without the consent of the other, until after the termination of IV. Laws governing PROPERTY RELATIONS of Muslim Marriages
the cohabitation. Celebrated before the Muslim Code
When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the
-Which law would govern depends upon: (1) when the
co-ownership shall be forfeited in favor of their common children. In case of default or of waiver by any or
marriages took place; (2) whether the parties lived together
all of the common children or their descendants, each vacant share shall belong to the respective
as husband and wife; and (3) when and how the subject
surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In

Islamic Law Page 6

 as husband and wife; and (3) when and how the subject
surviving descendants. In the absence of descendants, such share shall belong to the innocent party. In
all cases, the forfeiture shall take place upon termination of the cohabitation. properties were acquired.
-PERTINENT PROVISIONS OF THE CIVIL CODE:
Art. 148. In cases of cohabitation not falling under the preceding Article, only the properties acquired • Art. 119: Future spouses may have a prenup. If
by both of the parties through their actual joint contribution of money, property, or industry shall prenup is void, CPG shall govern property relations
be owned by them in common in proportion to their respective contributions. In the absence of • Art 135: All property brought by wife to teh
proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same
rule and presumption shall apply to joint deposits of money and evidences of credit.
marriage...is paraphernal
• Art 136: wife retains ownership over paraphernal
If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the property
absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad • Art 142: CPG defined
faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last • Art 143: All CPG property owned in common by the
paragraph of the preceding Article.
husband and wife
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith. • Art 144: man and woman living together as husband
and wife but not married, co-ownership rules apply
It will be noted that while the Civil Code merely requires that the parties “live together as husband -Jurisprudence interprets Art 144: man and woman
and wife” the Family Code in Article 147 specifies that they “live exclusively with each other as living together as husband and wife MUST NOT BE
husband and wife.” Also, in contrast to Article 144 of the Civil Code as interpreted by
jurisprudence, Article 148 of the Family Code allows for co-ownership in cases of cohabitation
INCAPACITATED TO MARRY
where, for instance, one party has a pre -existing valid marriage, provided that the parties prove -so cannot apply this provision to the decedent's
their “actual joint contribution of money, property, or industry” and only to the extent of their subsequent marriages during the applicability of the
proportionate interest therein. The rulings in Juaniza vs. Jose, 89 SCRA 306, Camporodendo vs. NCC since decedent was not capacitated to marry
Garcia, 102 Phil. 1055, and related cases are embodied in the second paragraph of Article 148, -FC (effective August 3, 1988) [note: not really
which declares that the share of the party validly married to another shall accrue to the property
regime of such existing marriage.
applicable to the case but since guidelines, sige na
nga]:
Fifth and Sixth Collateral Issues: Law(s) on Succession and Dissolution of Property Regimes ART 147: Man and woman
Hadji Abdula died intestate on December 16, 1993. Thus, it is the Muslim Code which should determine Capacitated to marry each other
the identification of the heirs in the order of intestate succession and the respective shares of the heirs. Live exclusively with one another as husband
Meanwhile, the status and capacity to succeed on the part of the individual parties who entered into
each and every marriage ceremony will depend upon the law in force at the time of the performance of
and wife... Rules of coownership apply.
the marriage rite. Presumption that they were obtained through
joint efforts, owned in equal. Participation in
The status and capacity to succeed of the children will depend upon the law in force at the time of joint efforts may include child rearing.
conception or birth of the child. If the child was conceived or born during the period covered by the ART 148: if not falling under Art 147, only the
governance of the Civil Code, the Civil Code provisions on the determination of the legitimacy or properties acquired by both of the parties through
illegitimacy of the child would appear to be in point. their actual joint contribution of money, property,
Thus, the Civil Code provides: or industry shall be owned by them in common in
Art. 255. Children born after one hundred and eighty days following the celebration of the marriage, and proportion to their respective contributions. In the
before three hundred days following its dissolution or the separation of the spouses shall be presumed to absence to the contrary, contributions presumed
be legitimate. equal.
Against this presumption no evidence shall be admitted other than that of the physical impossibility of the CIVIL CODE vs. FC
husband’s having access to his wife within the first one hundred and twenty days of the three hundred
which preceded the birth of the child. Civil Code Family Code
This physical impossibility may be caused: Merely requires man and Live EXCLUSIVELY with
(1) By the impotence of the husband; woman to live together as each other as husband
(2) By the fact that the husband and wife were living separately, in such a way that access husband and wife and wife
was not possible;
(3) By the serious illness of the husband. Prove actual join
Art. 256. The child shall be presumed legitimate, although the mother may have declared against its contribution, or else
legitimacy or may have been sentenced as an adulteress. presumed to be equal

If the child was conceived or born during the period covered by the governance of the Muslim Code, i.e., So summary of applicable laws on property regimes
from February 4, 1977 up to the death of Hadji Abdula on December 18, 1993, the Muslim Code
determines the legitimacy or illegitimacy of the child. Under the Muslim Code: Before Muslim Code and Family Code:
Art. 58. Legitimacy, how established. --- Legitimacy of filiation is established by the evidence of valid 1st marriage: valid marriage: Prenup applies, or else CPG.
marriage between the father and the mother at the time of the conception of the child. Property brought by wife to the marriage is her paraphernal
Art. 59. Legitimate children. --- property and retains ownership over it (relevant to the land
(1) Children conceived in lawful wedlock shall be presumed to be legitimate. Whoever claims illegitimacy of Aida made as dowry)
of or impugns such filiation must prove his allegation.
(2) Children born after six months following the consummation of marriage or within two years after the Subsequent marriages: void marriages: not rules of
dissolution of the marriage shall be presumed to be legitimate. Against this presumption no evidence coownership
shall be admitted other than that of physical impossibility of access between the parents at or about the X: if divorce obtained during the applicability of RA
time of the conception of the child. 934, thus decedent was capacitated to marry then
Art. 60. Children of subsequent marriage. --- Should the marriage be dissolved and the wife contracts DURING FAMILY CODE:
another marriage after the expiration of her ‘idda, the child born within six months from the dissolution of
the prior marriage shall be presumed to have been conceived during the former marriage, and if born 1st marriage: valid marriage
thereafter, during the latter. Subsequent marriages:
Art. 61. Pregnancy after dissolution. --- If, after the dissolution of marriage, the wife believes that she is • Treated as common law marriage: After applicability
pregnant by her former husband, she shall, within thirty days from the time she became aware of her of Muslim Code, valid: coownership
pregnancy, notify the former husband or his heirs of that fact. The husband or his heirs may ask the court • Before applicability of Muslim Code: not rules on
to take measures to prevent a simulation of birth.
coownership, prove actual joint contribution or else
Upon determination of status and capacity to succeed based on the foregoing provisions, the provisions presumed equal
on legal succession in the Muslim Code will apply. Under Article 110 of the said Code, the sharers to an
inheritance include: V & VI. Laws on succession and dissolution of the property
(a) The husband, the wife;
regimes
(b) The father, the mother, the grandfather, the grandmother;
(c) The daughter and the son’s daughter in the direct line; • Law applicable on rules of succession: Law at the time of
(d) The full sister, the consanguine sister, the uterine sister and the uterine brother. death
When the wife survives with a legitimate child or a child of the decedent’s son, she is entitled to one - • Law applicable for the status and capacity to succeed of
eighth of the hereditary estate; in the absence of such descendants, she shall inherit one -fourth of the wives: law in force at the time of the performance of the
estate.[44] The respective shares of the other sharers, as set out in Article 110 abovecited, are provided
marriage rite
for in Articles 113 to 122 of P.D. 1083.
• Law applicable for the status and capacity to succeed of
Seventh Collateral Issue: Muslim Divorces Before the Effectivity of the Muslim Code children: law in force at time of inception or birth
R.A. 394 authorized absolute divorce among Muslims residing in non-Christian provinces, in accordance
with Muslim custom, for a period of 20 years from June 18, 1949 (the date of approval of R.A. 394) to So before Feb 4, 1977: NCC applies
June 13, 1969.[45] Thus, a Muslim divorce under R.A. 394 is valid if it took place from June 18, 1949 to
After Feb 4, 1977: Muslim Code applies
June 13, 1969.
From the seven collateral issues that we discussed, we identify four corollary issues as to further situate
the points of controversy in the instant case for the guidance of the lower court. Thus: VII. Muslim divorces before Muslim Code
1. Which of the several marriages was validly and legally existing at the time of the opening of the RA 394 (applicable from June 18, 1949 to June 13, 1969):
succession of Hadji Abdula when he died in 1993? The validly and legally existing marriage would be authorized absolute divorce among Muslims residing in non-
that marriage which was celebrated at a time when there was no other subsisting marriage standing Christian provinces, in accordance with Muslim custom, for a
undissolved by a valid divorce or by death. This is because all of the marriages were celebrated during period of 20 years from June 18, 1949
the governance of the Civil Code, under the rules of which only one marriage can exist at any given time. -discussion limited the divorce as valid if between the
Whether or not the marriage was validly dissolved by a Muslim divorce depends upon the time frame and
applicability of RA 394. WHAT ABOUT WHEN MUSLIM CODE
the applicable law. A Muslim divorce under R.A. No. 394 is valid if it took place from June 18, 1949 to
June 13, 1969, and void if it took place from June 14, 1969. [46] APPLICABLE?
2. There being a dispute between the petitioner and the oppositors as regards the heirship of the children

Islamic Law Page 7

2. There being a dispute between the petitioner and the oppositors as regards the heirship of the children
begotten from different marriages, who among the surviving children are legitimate and who are
illegitimate? The children conceived and born of a validly existing marriage as determined by the first
corollary issue are legitimate. The fact and time of conception or birth may be determined by proof or
presumption depending upon the time frame and the applicable law.
3. What properties constituted the estate of Hadji Abdula at the time of his death on December 18,
1993? The estate of Hadji Abdula consists of the following:
a. Properties acquired during the existence of a valid marriage as determined by the first corollary issue
are conjugal properties and should be liquidated and divided between the spouses under the Muslim
Code, this being the law in force at the time of Hadji Abdula’s death.
b. Properties acquired under the conditions prescribed in Article 144 of the Civil Code during the period
August 30, 1950 to August 2, 1988 are conjugal properties and should be liquidated and divided between
the spouses under the Muslim Code. However, the wives other than the lawful wife as determined under
the first corollary issue may submit their respective evidence to prove that any of such property is theirs
exclusively.
c. Properties acquired under the conditions set out in Articles 147 and 148 of the Family Code during the
period from and after August 3, 1988 are governed by the rules on co-ownership.
d. Properties acquired under conditions not covered by the preceding paragraphs and obtained from the
exclusive efforts or assets of Hadji Abdula are his exclusive properties.
4. Who are the legal heirs of Hadji Abdula, and what are their shares in intestacy? The following are
Hadji Abdula’s legal heirs: (a) the lawful wife, as determined under the first corollary issue, and (2) the
children, as determined under the second corollary issue. The Muslim Code, which was already in force
at the time of Hadji Abdula’s death, will govern the determination of their respective shares.

As we have indicated early on, the evidence in this case is inadequate to resolve in its entirety the main,
collateral and corollary issues herein presented and a remand to the lower court is in order. Accordingly,
evidence should be received to supply the following proofs:
(1) the exact dates of the marriages performed in accordance with Muslim rites or practices;
(2) the exact dates of the dissolutions of the marriages terminated by death or by divorce in accordance
with Muslim rites and practices, thus indicating which marriage resulted in a conjugal partnership under
the criteria prescribed by the first, second, and third collateral issues and the first corollary issue;
(3) the exact periods of actual cohabitation (“common life” under a “common roof”) of each of the
marriages during which time the parties lived together;
(4) the identification of specific properties acquired during each of the periods of cohabitation referred to
in paragraph 3 above, and the manner and source of acquisition, indicating joint or individual effort, thus
showing the asset as owned separately, conjugally or in co-ownership; and
(5) the identities of the children (legitimate or illegitimate) begotten from the several unions, the dates of
their respective conceptions or births in relation to paragraphs 1 and 2 above, thereby indicating their
status as lawful heirs.

Amicus curiae Congressman Mastura agrees that since the marriage of petitioner to decedent took place
in 1972 the Civil Code is the law applicable on the issue of marriage settlement, [47] but espouses that
customs or established practices among Muslims in Mindanao must also be applied with the force of law
to the instant case.[48] Congressman Mastura’s disquisition has proven extremely helpful in impressing
upon us the background in which Islamic law and the Muslim Code need to be interpreted, particularly the
interconnectedness of law and religion for Muslims [49] and the impracticability of a strict application of the
Civil Code to plural marriages recognized under Muslim law.[50] Regrettably, the Court is duty-bound to
resolve the instant case applying such laws and rights as are in existence at the time the pertinent civil
acts took place. Corollarily, we are unable to supplant governing law with customs, albeit how widely
observed. In the same manner, we cannot supply a perceived hiatus in P.D. 1083 concerning the
distribution of property between divorced spouses upon one of the spouses’ death. 51

WHEREFORE, the decision dated September 26, 1994 of the Fifth Shari’a District Court of Cotabato City
in Special Proceeding No. 94-40 is SET ASIDE, and the instant petition is REMANDED for the reception
of additional evidence and the resolution of the issues of the case based on the guidelines set out in this
Decision.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima,
Pardo, Buena, Ynares-Santiago, and De Leon, Jr., JJ., concur.

51 TSN, Oral Argument, p. 24; Memorandum of Amicus Curiae, p. 14.

[1] Record, p. 14.

[2] Exhs. C-1, D-1 & E-1.
[3] Record, p. 20.
[4] Ibid., p. 28.
[5] Ibid., p. 31.
[6] Ibid., pp. 32-36.
[7] Ibid., pp. 37-49.
[8] These banks were allegedly: (1) United Coconut Planters Bank; (2) Solidbank; (3) Far East Bank and
Trust Company; (4) Philippine Commercial and Industrial Bank; (5) Bank of the Philippine Islands; (6)
Metrobank; (7) Philippine National Bank; (8) Land Bank of the Philippines, and (9) Development Bank of
the Philippines.
[9] Record, pp. 50 & 59.
[10] Ibid., p. 52 & 61.
[11] Ibid., p. 220 (Exh. CC).
[12] Ibid, p. 219 (Exh. BB).
[13] Ibid., p. 221 (Exh. DD).
[14] Ibid., pp. 62-63.
[15] Ibid., p. 102-103.
[16] Ibid., p. 97.
[17] Ibid., pp. 123-126.
[18] Ibid., p. 108.
[19] Ibid., pp. 229-232.
[20] Ibid., pp. 222-228.
[21] Order of September 26, 1994, pp. 12-13; Rollo, pp. 25-56.
[22] Ibid., pp. 280-281.
[23] Ibid., p. 282.
[24] Ibid., p. 284.
[25] Petition, pp. 5 & 10.
[26] Retired Justice of the Court of Appeals and former Minister of Justice, author, noted civil law
professor, and law practitioner. He was also a member of the Family Code Revision Committee.
[27] Former Congressman, law practitioner, and member of the Presidential Code Commission which
reviewed P.D. 1083.
[28] Justice Puno’s Compliance by Amicus Curiae was submitted on June 27, 2000 while Congressman
Mastura’s Memorandum was submitted on March 29, 2000.
[29] The registration of marriages, divorces, revocations of divorce and conversions into Islam is now
required under Title VI (Civil Registry) of P.D. 1083.
[30] TSN, Oral Argument of July 27, 2000, p. 26.
[31] As amended by Republic Act No. 6268, which was approved on June 19, 1971 and was made to take

Islamic Law Page 8

[30] TSN, Oral Argument of July 27, 2000, p. 26.
[31] As amended by Republic Act No. 6268, which was approved on June 19, 1971 and was made to take
effect as of June 18, 1969.
[32] Article 27 of P.D. 1083 now provides: “Notwithstanding the rule of Islamic law permitting a Muslim to
have more than one wife but not more than four at a time, no Muslim male can have more than one wife
unless he can deal with them with equal companionship and just treatment as enjoined by Islamic law
and only in exceptional cases.”
[33] The Explanatory Note to the Draft Muslim Code states: “This (Code) is the first fundamental concept
that the Muslim legal system breathes into the Philippine legal system which has recognized to the
present only the application of jural rules of mainly non-Muslim origin.”
[34] Includes all laws on personal status, marriage and divorce, matrimonial and family relations,
succession and inheritance, and property relations between spouses. Muslim Code, Art. 7, par. (i).
[35]Commisioner vs. Lingayen Gulf E;ectric Power Co., 164 SCRA 27; Castro vs .. Collector of Internal
Revenue, 6 Scar 886; Ichiong vs. Hernandez, 101 Phil. 1155.
[36] Segovia vs. Noel, 47 Phil. 220.
[37] Civil Code, Art. 80, par. 4.
[38] Family Code, Arts. 52, 53.
[39] The Marriage Law, approved on December 4, 1929, preceded the Civil Code of 1950 and was the
governing law when People vs. Subano was promulgated.
[40] This is significantly changed by the enactment of P.D. 1083, Article 180 of which provides: “The
provisions of the Revised Penal Code relative to the crime of bigamy shall not apply to a person married
in accordance with the provisions of this (Muslim) Code or, before its effectivity, under Muslim law. ”
[41] Adriano vs. Court of Appeals, G.R. No. 124118, March 27, 2000; Belcodero vs. Court of Appeals, 227
SCRA 303; Juaniza vs. Jose, 89 SCRA 306; Camporodendo vs. Aznar, 102 Phil. 1055; Osmeña vs.
Rodriguez, 54 O.G. 5526; Malajacan vs. Rubi, 42 O.G. 5576.
[42] In Osmeña vs. Rodriguez, supra, the Court ruled that a parcel of land acquired in the subsistence of a
prior valid marriage did not belong to the conjugal estate of such marriage, in the face of evidence
submitted by the common-law wife that such land was her exclusive property.
[43] Civil Code, Art. 160; Adriano vs. Court of Appeals, supra; Belcodero vs. Court of Appeals, supra.
[44] Art. 112, Muslim Code.
[45] The 20-year period expired on June 13, 1969, considering that there were five leap years (1952,
1956, 1960, 1964 and 1968) since the approval of R.A. 394 in 1949.
[46] Divorce provisions are now embodied in Articles 45 to 55 of the Muslim Code. Under Article 13 of the
same Code, the provisions on divorce apply to marriages “wherein both parties are Muslims, or wherein
only the male party is a Muslim and the marriage is solemnized in accordance with Muslim law or this
Code in any part of the Philippines.”
[47] Memorandum of Amicus Curiae, p. 9.
[48] Ibid., pp. 9, 27, 35-37, 42. Congressman Mastura particularly suggests that the Court take judicial
notice of the principle of sa-pancharian on property acquired through the joint efforts of the husband and
wife, judicially recognized by the Muslim courts of Malaysia and Singapore and also allegedly practiced
as custom by Muslims in Mindanao.
[49] Ibid., pp. 12, 18; TSN, Oral Argument, pp. 15-17.
[50] TSN, Oral Argument, p. 18 et. seq.

Pasted from <http://sc.judiciary.gov.ph/jurisprudence/2000/aug2000/119064.htm >

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Bondagjy v. Bondagjy
Sunday, August 08, 2010
8:11 AM

PHILIPPINE JURISPRUDENCE - FULL TEXT

The Lawphil Project - Arellano Law Foundation
G.R. No. 140817 December 7, 2001
SABRINA ARTADI BODDAGJY, vs. FOUZI ALI BONDAGJY, ET AL.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 140817 December 7, 2001
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, respondent.
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 f our (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 Christians4 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. Respondent FOUZI - Muslim
Petitioner Sabrina - Christian converted to Muslim 4
The Case months before marriage (but not recorded)
On March 11, 1996, respondent Fouzy Ali Bondagjy filed with the Shari'a District Court, Marawi City, an
actions8 to obtain custody of his two minor children, Abdulaziz, 10 and Amouaje, 9. -Feb 3, 1988: Sabrina and Fouzi married (though Fouzi
was still married to a Saudi Arabian, though he
On June 6, 1996, petitioner filed her answer with motion to dismiss on the ground of lack of jurisdiction divorced her later)
over the persons of the parties since both parties were residents of Manila and for lack of cause of -2 children:
action. Petitioner likewise moved to transfer the venue to Zamboanga, which was more accessible by Abdulaziz (born June 13, 1989)
plane. Amouaje (bron Sept. 29, 1990)
-both born in Jeddah
On June 18, 1996, the Shari'a District Court granted petitioner's motion to transfer the venue to -couple lived in Fouzi's family home in Makati after
Zamboanga.9 their marriage but migrated to Jeddah, Saudi Arabia
later on. They lived there for 2 years
On June 27, 1996, respondent filed a reply10 and motion for a temporary restraining order against -December 1995: 2 children lived in Ayala Alabang.
petitioner.11 He moved that petitioner desist from preventing him from exercising parental authority Fouzi alleged that he cannot see his children until he
over his minor children. got a court order, which even only allowed him to see
his children in school at DLS-Zobel
On July 12, 1996, the court granted the motion and issued a writ of preliminary injunction.12 -December 15, 1996: 2 children baptized as Christians
-Allegations of Fouzi on the immorality of Sabrina:
On August 12, 1996, the court ordered the parties to submit their memoranda on the issue of • Seen with different men at odd hours in Manila
jurisdiction. • Would wear short skirts, sleeveless blouses, and
bathing suits
On October 30, 1996, the court granted petitioner's motion to withdraw motion to dismiss on the issue • Would let children sweep their neighbor's
of jurisdiction and set the proceedings for pre-trial conference on November 14, 1996.

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 • Would let children sweep their neighbor's
of jurisdiction and set the proceedings for pre-trial conference on November 14, 1996. house for P40.00 after coming home from
school
On November 14, 1996, respondent filed a motion to drop Joyce Artadi as defendant in the case and the • Children would ride jeepney on their way home
trial court issued an order: and would not want to ride in Fouzi's car
-MARCH 1996: FouzI filed with MARAWI Shari'a court
"During the pre-trial conference held this morning, the parties made their respective offer and counter an Action to Obtain custody of 2 minor children (then
proposals for amicable settlement. The plaintiff proposed (1) solidarity of the family, and (2) alternate 10 and 9)
custody. The defendant advanced the proposal of reasonable visitation of the father at their residence, -MTD by Sabrina
for which the court will possibly fix the period or time and schedule of visitations.  lack of jurisdiction: both parties were residents
"With these proposals, both parties agreed to continue the pre -trial conference on December 9, 1996. of Manila
"WHEREFORE, let the pre-trial conference be again held on December 9, 1996, at 9:00 o'clock in the  Lack of COA
morning."13  Moved for transfer of venue to Zamboanga
(more accessible by plane)
Meantime, petitioner filed with the Regional Trial Court, Branch 256, Muntinlupa City14 an action for -Shari'a court granted venue transfer
nullity of marriage, custody and support, ordered the parties to maintain status quo until further orders -Fouzi filed a reply and Motion for TRO, moving that
from said court.15 Sabrina desist from preventing him from exercising
parental authority over his minor children - GRANTED
On March 2, 1999, petitioner filed another motion to dismiss16 on the ground of lack of jurisdiction over -Sabrina withdrew MTD - GRANTED, case set for
the subject matter of the case since P.D. No. 1083 is applicable only to Muslims. On March 3, 1999, Fouzi pretrial conference
filed an opposition to the motion to dismiss and argued that at the inception of the case, both parties -SABRINA filed with RTC Muntinlupa an Action for
were Muslims, Fouzi by birth and Sabrina by conversion. nullity of marriage, custody and support, maintained
status quo as ordered
On March 29, 1999, the court denied the motion to dismiss since P.D. No. 1083 had jurisdiction over all (it can be assumed that during this time, Sabrina was
cases of Muslims involving custody.17 converted back to Christianity)
-March 1999: MTD on the ground of lack of
On April 23, 1999, Sabrina filed a motion to reconsider the order of March 29, 1999 denying the motion jurisdiction (PD 1083 applicable only to Muslims - she
to dismiss.18 is not a Muslim anymore)
>OPPOSITION by FOUZI: at the start of the case, both
On June 22, 1999, the court denied petitioner's motion for reconsideration. Thus - are Muslims
"WHEREFORE, in view of the foregoing reasons, the motion for reconsideration of the defendant - >COURT DENIED MTD, MR, MR DENIED
movant is hereby ordered DENIED; Defendant is further ordered to comply with the order of this Court -Fouzi was allowed to present evidence ex-parte
dated July 12, 1996, to allow plaintiff to exercise his right of parental authority over their minor children (bakit???)
with that of the defendant in accordance with article 71, of P.D. 1083, the Code of Muslim Personal -SHARI'A DC DECISION:
Laws. 1. Custody awarded to dad
"Let the continuation of this case be set on July 15, 1999 at 8:30 in the morning."19 2. Fouzi ordered to ensure reasonable support and
suitable home for the children
On July 15, 1999, the trial court decided to move forward to the next stage of the case and allowed 3. Allowed Sabrina to visit their children
respondent Fouzi to present evidence ex-parte. • PD 1083 on Custody and Guardianship does not
apply (huh?) to this case because the spouses
On August 18, 1999, the court issued an Order20 giving respondent fifteen (15) days to submit his were not yet divorced [CHA: so check PD 1083 if
formal offer of evidence and fifteen (15) days from receipt of transcript of stenographic notes to submit it would apply only if divorce was obtained or it
memorandum. does apply because no divorce yet]
• Sabrina was found unworthy to care for her
The Shari'a District Court's Decision children based on Muslim standards of what a
On November 16, 1999, the Shari'a Court rendered a decision, the dispositive portion of which reads: married woman should be:
"WHEREFORE, foregoing considered, judgment is hereby rendered: "A married woman, and a mother to growing
(a) Awarding the custody of the minors Abdulaziz Artadi Bondagjy and Amouaje Artadi Bondagjy in children, should live a life that the community
favor of their natural father, petitioner Fouzi Ali Bondagjy; and for this purpose ordering the respondent in which she lives considers morally upright,
Sabrina Artadi Bodagjy or any person having the care of said minors in her stead or behalf, to turn over, and in a manner that her growing minor
relinguish and surrender the custody of said minors to their natural father, the petitioner in this case children will not be socially and morally
Fouzi Ali Bondagjy; affected and prejudiced. It is sad to note that
(b) Ordering the petitioner Fouzi Ali Bondagjy to ensure that the said minors are provided with respondent has failed to observe that which is
reasonable support according to his means and in keeping with the standard of his family, and, a expected of a married woman and a mother by
suitable home conducive to their physical, the society in which she lives. xxx The evidence
(c) mental and moral development; and, with his knowledge and under reasonable circumstances allow of this case shows the extent of the moral
the respondent and natural mother of the said minors Mrs. Sabrina Artadi Bondagjy to visit her minor depravity of the respondent, and the kind of
children Abdulaziz Artadi Bondagjy and Amouje Artadi Bondagjy."21 concern for the welfare of her minor children
which on the basis thereof this Court finds
Hence, this petition.22 respondent unfit with the custody of her minor
children.
The Court's Ruling "xxx Under the general principles of Muslim
The Shari'a District Court held that P.D. No. 1083 on Custody and Guardianship does not apply to this law, the Muslim mother may be legally
case because the spouses were not yet divorced. disentitled to the custody of her minor children
by reason of 'wickedness' when such
However, the Shari' a District Court found petitioner unworthy to care for her children. Thus - wickedness is injurious to the mind of the child,
"A married woman, and a mother to growing children, should live a life that the community in which such as when she engages in 'zina' (illicit sexual
she lives considers morally upright, and in a manner that her growing minor children will not be relation); or when she is unworthy as a mother;
socially and morally affected and prejudiced. It is sad to note that respondent has failed to observe that and, a woman is not worthy to be trusted with
which is expected of a married woman and a mother by the society in which she lives. xxx The evidence the custody of the child who is continually going
of this case shows the extent of the moral depravity of the respondent, and the kind of concern for the out and leaving the child hungry .(A. Baillie,
welfare of her minor children which on the basis thereof this Court finds respondent unfit with the Muhammadan Law, p. 435; citing Dar-ul-
custody of her minor children. Muktar, p. 280)."
"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 -PETITION FOR CERTIORARI by Sabrina
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 Is a Christian, converted as a Muslim for purposes of
out and leaving the child hungry .(A. Baillie, Muhammadan Law, p. 435; citing Dar-ul-Muktar, p. 280)."23 marrying a Muslim, and converted back as a Christian
after their separation, bound by Muslim laws on the
On the other hand, the Shari'a Court found that respondent Fouzi was capable both personally and fitness of a mother? NO.
financially to look after the best interest of his minor children.24
1. Preliminary:
"When he was asked during the direct examination the question that, 'if ever this Honorable Court will GR: SC bound by findings of fact by trial courts

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 GR: SC bound by findings of fact by trial courts
grant you custody of your children will you be able to house and give support to your children?' He X: 10 pronounced in Reyes vs. CA
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 2. Fitness of a mother:
school, considering the past, I have to love them, I have to care for my children. In school, even when -burden of proof on the person alleging unworthiness
they see something they love and like, I buy it for them. Or sometime (sic) I send my staff and bring -HERE: court found that the evidence not sufficient to
something for them in their house. It is very hard, in school in front of other parents my son would still overturn worthiness or fitness as a mother, even if
climb on my shoulder. I want to see them happy. I have pictures of my children with me, taken only last using Muslim Code standards
week."25 -NON-MUSLIM: Family Code determines her capacity
-Fitness of a parent: the ability to see to the physical,
As a rule, factual findings of the lower courts are final and binding upon the parties.26 The Court is not educational, social and moral welfare of the children,
expected or required to examine or contrast the oral and documentary evidence submitted by the and the ability to give them a healthy environment as
parties.27 However, although this Court is not a trier of facts, it has the authority to review or reverse well as physical and financial support taking into
the factual findings of the lower courts if we find that these do not conform to the evidence on consideration the respective resources and social and
record.28 moral situations of the parents.
-HERE: both are equally capable of providing the
In Reyes vs. Court of Appeals,29 the Court held that the exceptions to the rule that factual findings of needs of their children
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 3. Parental Authority and Custody
discretion; (3) when the finding is grounded entirely on speculations, surmises or conjectures; (4) when -Both FC (Art 211) and PD 1083 provides for the joint
the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings of fact exercise of parental authority if still married
are conflicting; ( 6) when the Court of Appeals, in making its findings, went beyond the issues of the case -In case of VOLUNTARY SEPARATION: take into
and the same is contrary to the admissions of both appellant and appellee; (7) when the findings of the consideration circumstances that would lead the
Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions court to believe which parent can better take care of
without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly children
overlooked certain relevant facts not disputed by the parties and which, if properly considered, would PD 603: Mother has custody of minor children, absent
justify a different conclusion, and (10) when the findings of fact of the Court of Appeals are premised on a compelling reason to the contrary
the absence of evidence and are contradicted by the evidence on record.1âwphi1.nêt HERE: Fouzi is a business man whose work requires
him to go abroad or be in different places most of the
Fitness as a Mother time
The burden is upon respondent to prove that petitioner is not worthy to have custody of her children . SILVA v. CA: both parents have parental authority,
We find that the evidence presented by the respondent was not sufficient to establish her unfitness wife cannot deprive husband of it. - so grant visitorial
according to Muslim law or the Family Code. rights to Fouzi

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

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 children's needs. Respondent is a businessman whose work

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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 ALl 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. 1âwphi1.nêt
SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan, Ynares-Santiago,JJ.; concur.

Footnotes
1 Marriage Contract, Records, p. 484.
2 Foreign Service of the Philippines, Report of Birth, Records, p. 490.
3 Ibid.. Records, p. 491.
4 Baptismal Certificates issued by St. James the Great Parish, Ayala Alabang Village, Muntinlupa, M.M.,
Rollo, pp. 303-304.
5 Exhibit "T", Affidavit of Mr. Carlos A. Batalla, Records, p. 507-508.
6 Exhibits "E"-"L", Pictures of Petitioner, Records, 492-499.
7 Fouzi would sometimes offer to take them home in his car.
8 Spec. Proc. No.13-96.
9 Records, p. 43.
10 Records, 47-50.
11 Records, pp. 45-46.
12 Records, pp. 51-52.
13 Records, p. 140.
14 Entitled Sabrina Artadi-Bondagjy vs. Fouzi A1i Bondagjy, Civil Case No.98-070.
15 Dated May 8, 1998, Records, p. 309.
16 Records, pp. 338-362.
17 Records, pp. 370-371.
18 Records, pp. 387-393.
19 Records, pp. 409-411.
20 Records, p. 446.
21 Rollo, pp. 36-61.
22 Filed on January 7, 2000. On April 5, 2000,
we gave due course to the petition (Rollo, pp. 220-221).
23 Rollo, p. 59.
24 Rollo, p. 60.
25 Ibid.
26 Cang v. Court of Appeals, 367 Phil 129 [1998], citing Del Mundo v. Court of Appeals, 322 Phil. 463,471
[1996].
27 Cang v. Court of Appeals, supra. ; Imperial v. Court of Appeals, 328 Phil. 366 [1996].
28 Philippine National Bank v. Court of Appeals, 187 SCRA 735, 739 [1990] citing Ongsiako v.
Intermediate Appellate Court, 152 SCRA 627 [1987].
29 328 Phil. 171[1996].
30 Citing Manalo v. Ro1dan-Confesor, 215 SCRA 808 [1992].
31 Unson III v. Navarro, 101 SCRA 182 (1980].
32 Rollo, pp. 301-302.
33 Perkins v. Perkins, 57 Phil. 217 (1932].
34 Espiritu v. Court of Appeals, 312 Phil. 431 (1995].
35 334 Phil. 286 [1997], citing Santos, Sr. v. Court of Appeals, 312 Phil 482 [1995].
36 Reyes v. Alvarez, 8 Phil. 732 [1907]; 2 Manresa 21; cited in IA. Tolentino, Civil Code of the Phils.,
Commentaries and Jurisprudence 604 (1990 ed.).
37 Puig Pena cited in Reyes and Puno, An Outline of the Philippine Civil Law, 295 (4th ed., 1964).
38 Family Code, Art. 209 and 211.
39 Hontiveros v. IAC, 217 Phil 714 [1984].
40 Supra.
41 Art. II, Sec. 12, Constitution.

Pasted from <http://webcache.googleusercontent.com/search?

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 August 9, 2010
Monday, August 09, 2010
10:28 AM

Dowry
-given to the wife, not to the wife's family
-given as a sign or respect

Restrictions on marriage
-counting of degrees different in relatives by affinity and relatives by consanguinity
-I already reported this before

Prohibition due to fosterage

-issue on fosterage: in Quranic verse, only mentions period when the infant is breastfed - first 2 years of
his life. After that, it would not work anymore. The dispute is in how many times the infant is breastfed.
In CMPL, we specified 5 times. (shows intention to treat the child as one's child, di yung nagutom lang.
Pattern of regularity would make you think that the one who breastfeds treats the child as her child)
-also applies to persons related by fosterage w/n same degrees prohibited (e.g. Baby boy breastfed by a
woman. The woman has a baby daughter. The two cannot be married)
Rada'a = MILK
-similar prohibitions as FC
-note another difference: Muslims are allowed to marry even if w/n 3rd civil degree (can marry first
cousins) - similar to old civil code (which was derived from Spain, which was a former colony of Muslims)

Other restrictions found in Quran and CMPL

Art 31: Considered BATIL marriages
Art 28: contracted during the period of Idda
Idda purposes:
• There might still be conciliation in case of divorce
• Avoid confusion of issues
• For convenience, comfort of woman...
Own version of Idda in FC: art 41: in case of presumptive death, FC gives period w/n which the present
spouse has to wait to get subsequently married

Marriage after 3 divorces (Art 30)

-wife 3x repudiated in 3 different occassions, husband cannot remarry the woman unless the woman is
first married to another man
-the solemnizing officer cannot perform the subsequent marriage mentioned

Tyoes of marriage
Subsequent marriage by a
1. Divorcee
2. Widow
3. Husband
4. After 3 divorces
-Talaq ramifications noted...

When the 4th marriage is allowed:

1. The wife shall marry another person
2. The 2nd husband divorces the wife
3. The idda expires
4. The solemnizing officer ascertains that there is no collusion

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4. The solemnizing officer ascertains that there is no collusion

What is the implication when the parties have already divored 3 times? Parang biro na lang ang
marriage. The institution of divorce is allowed by God by is detested, supposedly last recourse.

After the first divorce, no longer needs to get married again.

After second divorce, special requisites pa.
After third divorce, follow Article 30.

Why different periods for the types of subsequent marriage after reconciliation of divorce - on the
report of the group on divorce

State of Ihram: Art 32(e)

-Ihram: sacred state which a Muslim must enter in order to perform the major pilgrimage, within which
he is prohibited to enter into major transactions

Condition of Marad ul-Maut (death - illness; Marad (illness; Maut: Death)

Art 32. (d)
-irregular, needs to be consummated - SIR: there should be a remarriage when the person is no longer
sick
-doesn't have
-whereas in FC: considered valid, even one of the exceptions where you don't need a marriage license

Marriage to Idolater/Idolatress
-does not mean muslims are prohibited from marrying persons from other religions (HQ provides that
only Arab Idolaters are exempted so it may be presumed that it was only with Arab idloatress that the
marriage is allowed)

Marriage to Impure persons (fornicators)

=fornicator only marries or allowed to married fellow fornicator
-but how would you know that a person is a fornicator??? This was valid or relevant during the time that
the Quran was made, not relevant today
-many of the provisions of the Quran were made during the time when the Arab society was filled with
Morality problems
-now: marriage is still valid

"A marriage is deemed to last if the couple sees each other eye to eye"

Unlawful conjunction
Art 31(b)
Contracted in contravention of the prohibition against unlawful conjunctin
Unlawful conjunction: contemporaneously marrying 2 women rleated to each other by consanguinity,
affinity or fosterage, which they could not have lawfully intermarried with each other if they had been of
different sexes. Thus, a Muslim cannot marry two sisters, or an aunt and her niece.
Under the Shia Law, a Muslim may marry his wife's aunt, but he cannot marry his wife's niece wthout
her persmission. Marriage prohibited by reason of unlawful conjunction is void under Shia Law.

Noncompliance with requisites

Kinds of Marriage as to legal effect

1. Valid
2. Void
3. Irrelevant

Valid marriage
FC CCMPL

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 FC CCMPL
Has essential and formal requisites Sahi Marriage

Void marriages
Art 35-44, FC
Art 31, CMPL

Voidable marriage
-valid until annulled
FC
Non-age w/o parental consent
Unsoundness of mind
Fraud (Art 36 defines what fraud is)
Force, intimidation or undue influence
Impotence or physical incapacity
STD like AIDS, syphilis, etc

IRREGULAR MARRIAGE
Art 32

Bigamy and polygamy

-allowed under the Muslim laws because of the social reasons behind it
-similar with Civil law, monogomy is still the rule, only allows polygamy if the law is strictly followed

Subsequent marriages
1. By the husband ART 27
-requires equal companionship
-just treatment: husband must be able to provide the necessities of life to all his wives
-Exceptional cases: Socio-economic reasons (war - lack of men/husbands)
-Only up to 4 marriages at a time

-on the objection of wife: Justice Rasul said that the counsil should decide based on the grounds
provided by Islamic law. If the Shari'a Courts withoulds, man cannot remarry
SIR: this is not followed: the recognition of polygamy recognizes the weakness of a man to temptations
-Muslims do not have problems with this. NonMuslims are the ones who have problems
-prior to 1083, Muslims can marry w/o these requisites. If you look at the Quran (Sunna 4 - verse which
allows subsequent marriage): marry woman to support them!
-mahirap talagang maging fair sa iba...

Kihbah?
-see each other before marriage to see if they are compatible with each other

2. By widow
If widow is pregnant
-if she delivered before the expiration of four months and ten days counted from the date of her
husband, the idda is not from delivery. It is upon the expiration fo the period of 4 months and 10d

3. By divorcee
Only after idda
-3 monthly periods (considered 3 months)
-reason for the idda is twofold:
1. To give the couple time to think things over, reconcile if possible - if reconcile w/n idda period, no
need for a subsequent marriage
2. In order for the woman to determine if she's pregnant by the first husband

Islamic Law Page 16

 need for a subsequent marriage
2. In order for the woman to determine if she's pregnant by the first husband
-if the woman does not menstruate w/n 3 months, it may be a sign that she's pregnant

RIGHTS AND OBLIGATIONS BETWEEN HUSBANDS AND WIVES

-husbands spends for the support of the family, gives dowry to the woman. In succession he gets 2x
-the conjugal home determined by the Muslim husband
-wife can only have job after consent from Muslim husband obtained. If none, can ask from Court

Cases for next meeting

Abu bakr v. Abu bakr gr 134622 oct 22, 1999 - first as to divorce
Estellita Tamano v. Ortiz, GR 126603 june 29, 1998 - jurisdiction of regular courts v. Shari'a Courts
Mocaran Macawaig v. Balindog GR 159210 sept 20, 2006 - issue on dowry

Islamic Law Page 17

Abu bakr v. Abu bakr gr 134622 oct 22, 1999 - first as to divorce
Monday, August 09, 2010
12:13 PM

lawphil
Today is
Monday,
August
09, 2010
This case shows divorce by fask (by court order?) - but the main
issue here is the pretrial order and how it controls subsequent
proceedings
Republic of the Philippines -AMININ and AURORA were married in Jolo in 1 May 1978 in
SUPREME COURT accordance with Islamic Law
Manila -February 1996: Aurora filed before the Shari'a Circuit court of
FIRST DIVISION Isabela a complaint against AMININ for DIVORCE W/ PRAYER
FOR SUPPORT AND DAMAGES:
G.R. No. 134622 October 22, 1999
AMININ L. ABUBAKAR, petitioner, ○ AMININ failed to secure AURORA's consent before
vs. contracting a subsequent marriage (violating Art 27 &
AURORA A. ABUBAKAR, respondent. 162, PR 1083)
DAVIDE, JR., C.J.: -PRE-TRIAL ORDER: issues limited to the ff:
Petitioner Aminin L. Abubakar (hereafter AMININ) and respondent Aurora A. • Determination of rights or the resepctive shares of the
Abubakar (hereafter AURORA) were married in Jolo, Sulu, on 1 May 1978 in parties with respect to the property subject to the
accordance with Islamic law. divorce
 Half unit of a duplex standing on Zamboanga
Sometime in February 1996, AURORA filed before the 1st Shari'ah Circuit Court of  550 sqm lot adjacent to the duplex
Isabela, Basilan Province (hereafter referred to as the CIRCUIT COURT), a  House and lot at Jolo, Sulu
complaint against AMININ for "Divorce with Prayer for Support and Damages."
-CIRCUIT COURT ORDER dated 29 August 1997:
Docketed as Case No. 537, the complaint was mainly premised on the alleged
failure of AMININ to secure AURORA's consent before contracting a • Dissolved marriage
subsequent marriage, in violation of Articles 27 and 162 of Presidential Decree • Distributed the properties EQUALLY between them
No. 1083, otherwise known as the "Code of Muslim Personal Laws of the • AMININ pay P10k as suport during the 3-month idda
Philippines." -AURORA filed notice of appeal (BUT only WITH REGARD THE
DISTRIBUTION OF PROPERTIES - they assert that the properties
In its pre-trial order 1 dated 21 March 1997, the CIRCUIT COURT limited the issue were NOT CONJUGAL)
to be resolved at the trial to a determination of "the rights or the respective shares of -SHARI'AH DC DECISION dated 20 May 1998: affirmed with
the (parties) with respect to the property subject of partition after divorce." Identified modification Circuit court's decision:
as the realty to be divided were: (a) a half unit of a duplex standing on a lot at • Affirmed Divorce by FASKH (decree of court)
Tumaga Por Centro, Zamboanga City 2; (b) a 550-square meter lot adjacent to the • Considered them as CO-OWNERS, distributed the
one previously mentioned 3; and (c) a house and lot at Block 2, (Lot 44),
properties equally between them
Kasanyangan Village, Jolo, Sulu, 4 (hereafter collectively known as the
PROPERTIES). • Increased the amount of support to P110k (P5k monthly)
• Awarded an additional P50k for moral damages
On 29 August 1997, Judge Kaudri L. Jainul issued an order 5 dissolving the -AMININ filed MR, principally assailing the award of moral
marriage of AURORA and AMININ, distributing the PROPERTIES equally between damages . MR DENIED
them as co-owners, and ordering AMININ to pay her the amount of P10,000 as -so now petition for review assailing the DC decision
support during the three-month 'idda (waiting period).1âwphi1.nêt
WON the DC erred in making its decision? YES
AURORA duly filed a notice of appeal from this decision but only "as far as it 1. Litigant's voluntary limitation of issues vs. Judicial
involves the issue of partition of property, and not to the grant of divorce and prerogative
damages it being in her favor." 6 Actually, both parties were concerned only with -ON PRE-TRIAL ORDER:
the conclusion of the CIRCUIT COURT that the PROPERTIES were conjugal. That a pre-trial is indispensable in any civil or criminal
action in this jurisdiction is clearly laid out in Rules 18 and
In his 20 May 1998 decision, 7 Judge Bensaudi I. Arabani, Sr., presiding over the 3rd
118 of the Rules of Court. It is a procedural device meant
Shari'ah Judicial District Court of Zamboanga City (hereafter referred to as the
to limit the issues to be tackled and proved at the trial. A
District Court), affirmed the Circuit COURT's 29 August 1997 order with some
less cluttered case environment means that there will be
modifications, thus: fewer points of contention for the trial court to resolve. This
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, would be in keeping with the mandate of the Constitution
judgment is hereby rendered modifying the order of the court of origin as follows: according every person the right to a speedy disposition of
(a) Affirming the grant of DIVORCE by faskh (decree of court) between the parties; their cases. 11 If the parties can agree on certain facts prior
(b) Affirming the order of the trial Court, as follows: to trial — hence, the prefix "pre" — the court can later
The following properties is (sic) hereby awarded and distributed equally between herein concentrate on those which are seemingly irreconcilable.
plaintiff and defendant being considered as co-owners and as such, they will have equal The purpose of pre-trials is the simplification, abbreviation
share in the partition of their properties, to wit: and expedition of the trial, if not indeed its dispensation. 12
1. House and lot situated at Tumaga Por Centro, Zamboanga City, consisting of a half The stipulations are perpetuated in a pre-trial order which
duplex unit on Lot No. 1845-B-2 under Transfer Certificate of Title No. T-86; 898. (The other legally binds the parties to honor the same. 13
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,
-HERE: Parties "agreed" that the sole issue is their rights with
identified as Lot No. 1845-B-3 under Transfer Certificate of Title No. 86, 899; respect to the properties
3. House and lot at Block 2, Lot 44, Kasanyangan Village, Jolo, Sulu under Transfer • Circuit court answered such question
Certificate of Title No. T-1820 containing an area of 240 square meters; • AURORA still questioned Circuit court's decision as to the
And, in addition, to be included as part of their common property and (to) be partitioned and partition of the property (and no other issue)
divided equally:
1. The real estate at Alicia, Zamboanga del Sur. • STILL, DISTRICT COUR decided beyond the issue
(c) Ordering the defendant-appellee to pay the plaintiff-appellant the sum of one hundred ten appealed: the DC, acting as an appellate court, is not
thousand (P110,000.00) pesos, Philippine Currency as support in arrears from . . . February bound to go beyond what the appellant was asking for
14, 1996, when plaintiff-appellant demanded for it in her complaint, and up to the expiration (R51.8)
of her idda (waiting period) on December 16, 1997, or (a) duration of twenty two (22) -LIMITATION OF QUESTIONS THAT MAY BE DECIDED BY
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 APPELLLATE COURT:
interest thereon from the time this judgment becomes final and executory until the said • R51.8:
amount is satisfied in full; Sec. 8. Questions that may be decided. — No error which
(d) Ordering defendant-appellee to pay plaintiff-appellant the sum of FIFTY THOUSAND does not affect the jurisdiction over the subject matter or
(P50,000.00) pesos, Philippine Currency as moral damages, plus legal interest thereon from the validity of the judgment appealed from or the
the time this judgment becomes final and executory until the said amount is satisfied in full. proceedings therein will be considered unless stated in
SO ORDERED. [Modifications in italics] the assignment of errors, or closely related to or
dependent on an assigned error and properly argued in
Aggrieved by these changes, AMININ filed a motion for the brief, save as the court may pass upon plain errors
reconsideration 8 thereof on the following grounds: and clerical errors. [Emphasis supplied]
1. THE HONORABLE COURT SERIOUSLY ERRED IN ORDERING THE AWARD OF • only errors claimed and assigned by a party will be
MORAL DAMAGES TO THE PLAINTIFF, THE GRANT TO HER OF SUPPORT IN considered by the court, except errors affecting its
jurisdiction over the subject matter. To this exception

Islamic Law Page 18

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 a 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.
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."
• BELLA V. CA: CA ruled on the size of the award granted by
lower court even if it was not assailed. SC held that 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, CA did not
have power to resolve it
-HERE: Aurora only wanted the court to determine how the
properties between her and AMININ would be divided. But the
DC decided other issues which had no bearing on its jurisdiction
nor constitute clerical error
DISPOSITION: Reverse and set aside DC decision, revert to CC
decision

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.1âwphi1.nêt

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., are on official leave.

Islamic Law Page 19

Footnotes
1 Rollo, 55-56.
2 Identified as Lot No. 1845-B-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].
3 Identified as Lot No. 1845-B-3 covered by Transfer Certificate of Title No. 86,899.
4 The lot is covered by Transfer Certificate of Title No. T -1820 with an area of 240 square
meters.
5 Rollo, 50-53.
6 Id., 54.
7 Id., 19-31. The appeal was dock eted as Appeal Case No. 01-97.
8 Rollo, 32-45.
9 Rollo, 47-49.
10 Id., 15.
11 Art. III, Section 16.
12 Development Bank of the Philippines v. Court of Appeals, 169 SCRA 409, 411 [1989].
13 See 1 FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM 286 (6th ed. 1997)
[hereafter 1 REGALADO].
14 Supra, FN 6.
15 1 REGALADO, 582.
16 279 SCRA 497 [1997].
17 Id., at 504.
The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri1999/oct1999/gr_134622_1999.html>

Islamic Law Page 20

Estellita Tamano v. Ortiz, GR 126603 june 29, 1998 - jurisdiction of
regular courts v. Shari'a Courts
Monday, August 09, 2010
12:14 PM

G.R. No. 126603 June 29, 1998

ESTRELLITA J. TAMANO, petitioner,
vs.
HON. RODOLFO A. ORTIZ, Presiding Judge, RTC-Br. 89, Quezon City, HAJA PUTRI
ZORAYDA A. TAMANO, ADIB A. TAMANO and the HON. COURT OF APPEALS,
respondents.
BELLOSILLO, J.:
This Petition for Review on Certiorari seeks to reverse and set aside the decision of the Court of
Appeals of 30 September 1996 in CA-G.R. SP. No. 39656 which affirmed the decision of the
Regional Trial Court-Br. 89, Quezon City, denying the motion to dismiss as well as the motion
for reconsideration filed by petitioner Estrellita J. Tamano.
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 his death on 18 May 1994. Prior to his death, particularly 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 Zorayda joined by her son Adib A. Tamano (Adib)
filed a Complaint for Declaration of Nullify of Marriage of Tamano and Estrellita on the ground
that it was bigamous. They contended that Tamano and Estrellita misrepresented 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 executory for non-compliance with publication requirements.
Estrellita filed a motion to dismiss alleging that the Regional Trial Court of Quezon City was
without jurisdiction over the subject and nature of the action. She alleged that "only a party to
the marriage" could file an action for annulment of marriage against the other spouse, 1 hence, it
was only Tamano who could file an action for annulment of their marriage. Petitioner 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 Art. 155
of the Code of Muslim Personal Laws.
The lower court denied the motion to dismiss and ruled that the instant case was properly
cognizable by the Regional Trial Court of Quezon City since Estrellita and Tamano were
married in accordance with the Civil Code and not exclusively in accordance with PD No. 1083 2
or the Code of Muslim Personal laws. The motion for reconsideration was likewise denied;
hence, petitioner filed the instant petition with this Court seeking to set aside the 18 July 1995
order of respondent presiding judge of the RTC-Br. 89, Quezon City, denying petitioner's motion
to dismiss and the 22 August 1995 order denying reconsideration thereof.
In a Resolution dated 13 December 1995 we referred the case to the Court of Appeals for
consolidation with G.R. No. 118371. Zorayda and Adib A. Tamano however filed a motion,
which the Court of Appeals granted, to resolve the Complaint for Declaration of Nullity of
Marriage ahead of the other consolidated cases.
The Court of Appeals ruled that the instant case would fall under the exclusive jurisdiction of
shari'a courts only when filed in places where there are shari'a court. But in places where there
are no shari'a courts, like Quezon City, the instant case could properly be filed before the
Regional Trial Court.
Petitioner is now before us reiterating her earlier argument that it is the shari'a court and not the
Regional Trial Court which has jurisdiction over the subject and nature of the action.
-1st marriage: Zorayda & Mamintal (May 31, 1958 - civil rights)
-2nd marriage: Estrellita & Mamintal (2 June 1993 - civil rights)
-18 May 1994: Mamintal died
-23 Nov 1994: Zorayda and Adib filed Complaint for declaration of
nullity of marriage of Mamintal and Estrellita: bigamous
- Mamintal not divorced from Zorayda
- Estrellita not yet divorced with Romeo Llave, for
noncompliance with publication requirements
-MTD: RTC w/o jurisdiction
1. Only a party to the marriage could file an action for
annulment of marriage
2. Since Tamano and Zorayda both Muslims and married in
Muslim rites - Sharia courts have jurisidction
-MTD denied; MR Denied
-CA: only w/n jurisdiction of Shari'a courts in places where there are
shari'a courts. If none, can be filed w/ RTC
WON RTC has jurisdiction?
HELD: YES, RTC has jurisdiction
1. RTC has jurisdiction over all actions involving the contract of
marriage and marital relations (Judiciary Reorganization Act)
2. Personal actions may be commenced at the option of the
plaintiff...
i. the plaintiff or any of the principal plaintiffs resides,
ii. or where the defendant or any of the principal
defendants resides,
...at the election of the plaintiff
3. a court's jurisdiction cannot be made to depend upon
defenses set up in the answer, in a motion to dismiss, or
in a motion for reconsideration, but only upon the
allegations of the complaint..Jurisdiction over the subject
matter of a case is determined from the allegations of
the complaint as the latter comprises a concise
statement of the ultimate facts constituting the plaintiff's
causes of action.
-so even if MR alleges that the first marriage was
celebrated with Muslim rites, it would not divest the court
of jurisdiction as the complaint allege that the first
marriage was conducted with civil rites
4. As to Art. 13, PD 1083: does not provide for a situation
where the parties were married both in civil and Muslim
rites. Consequently, the shari'a courts are not vested
with original and exclusive jurisdiction when it comes to
marriages celebrated under both civil and Muslim laws.
Consequently, the Regional Trial Courts are not divested
of their general original jurisdiction under Sec. 19, par.
(6) of BP Blg. 129

Under The Judiciary Reorganization Act of 1980, 3 Regional Trial Courts have jurisdiction over
all actions involving the contract of marriage and marital relations. 4 Personal actions, such as
the instant complaint for declaration of nullity of marriage, may be commenced and tried where
the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the
principal defendants resides, at the election of the plaintiff. 5 There should be no question by
now that what determines the nature of an action and correspondingly the court which has
jurisdiction over it are the allegations made by the plaintiff in this case. 6 In the complaint for
declaration of nullity of marriage filed by private respondents herein, it 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 PD No. 1083.
Interestingly, Estrellita never stated in her Motion to Dismiss that she and Tamano were married
under Muslim laws. That she was in fact married to Tamano under Muslim laws was first
mentioned only in her Motion for Reconsideration.

Nevertheless, the Regional Trial Court was not divested of jurisdiction to hear and try the instant
case despite the allegation in the Motion for Reconsideration that Estrellita and Tamano were
likewise married in Muslim rites. This is because a court's jurisdiction cannot be made to depend
upon defenses set up in the answer, in a motion to dismiss, or in a motion for reconsideration,
but only upon the allegations of the complaint. 7 Jurisdiction over the subject matter of a case is
determined from the allegations of the complaint as the latter comprises a concise statement of
the ultimate facts constituting the plaintiff's causes of action. 8

Petitioner argues that the shari'a courts have jurisdiction over the instant suit pursuant to Art.
13, Title II, PD No. 1083, 9 which provides —
Art. 13. Application. — (1) The provisions of this Title shall apply to marriage and divorce wherein both
parties are Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in
accordance with Muslim law or this Code in any part of the Philippines.
(2) In case of a marriage between a Muslim and a non-Muslim, solemnized not in accordance with Muslim
law or this Code, the Civil Code of the Philippines shall apply.
(3) Subject to the provisions of the preceding paragraphs, the essential requisites and legal impediments
to marriage, divorce, paternity and filiation, guardianship and custody of minors, support and

Islamic Law Page 21

to marriage, divorce, paternity and filiation, guardianship and custody of minors, support and
maintenance, claims for customary dower (mahr), betrothal, breach of contract to marry, solemnization
and registration of marriage and divorce, rights and obligations between husband and wife, parental
authority, and the property relations between husband and wife shall be governed by this Code and other
applicable Muslim laws.

As alleged in the complaint, petitioner and Tamano were married in accordance with the Civil
Code. Hence, contrary to the position of 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.

Article 13 of PD No. 1083 does not provide for a situation where the parties were married both
in civil and Muslim rites. Consequently, the shari'a courts are not vested with original and
exclusive jurisdiction when it comes to marriages celebrated under both civil and Muslim laws.
Consequently, the Regional Trial Courts are not divested of their general original jurisdiction
under Sec. 19, par. (6) of BP Blg. 129 which provides —
Sec. 19. Jurisdiction in Civil Cases. — Regional Trial Courts shall exercise exclusive original
jurisdiction: . . . (6) In all cases not within the exclusive jurisdiction of any court, tribunal, person or body
exercising judicial or quasi-judicial functions . . .
WHEREFORE, the instant petition is DENIED. The decision of the Court of Appeals sustaining
the 18 July 1995 and 22 August 1995 orders of the Regional Trial Court — Br. 89, Quezon City,
denying the motion to dismiss and reconsideration thereof, is AFFIRMED. Let the records of this
case be immediately remanded to the court of origin for further proceedings until terminated.
SO ORDERED.
Davide, Jr., Vitug, Panganiban and Quisumbing, JJ., concur.
Footnotes
1 Motion to Dismiss, p. 3; Rollo, p. 52.
2 Order, p. 2; Records, p. 20.
3 Sec. 79, BP 129 as amended.
4 Sec. 19, B.P. Blg. 129, as amended, otherwise known as The Judiciary Reorganization Act of 1980.
5 Sec. 2, Rule 4, 1997 Rules of Civil Procedure, as amended.
6 Sandel v. Court of Appeals, G.R. No. 117250, 19 September 1996, 262 SCRA 109.
7 Id., p. 110.
8 Bernardo v. Court of Appeals, G.R. No. 120730, 28 October 1996, 263 SCRA 660.
9 The Code of Muslim Personal Laws of the Philippines.

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Islamic Law Page 22

Mocaran Macawaig v. Balindog GR 159210 sept 20, 2006 - issue on
Facts:
dowry -SORAIDA MACAWIAG &
Monday, August 09, 2010 PANGAMPONG MACAWIAG were
12:14 PM married 27 MAY 1987
-during the celebration, bride and
G.R. No. 159210 September 20, 2006 bridegroom agreed, and the
MOCARAL MACAWIAG, petitioner, solemnizing officer announced, that
vs. THE CUSTOMARY DOWER (MAHR)
JUDGE RASAD BALINDONG and SORAIDA A. MACAWIAG, respondents. WAS:
DECIS ION ○ P20k in cash
CALLEJO, SR., J.: ○ One head of live carabao
This is a petition for certiorari under Rule 65 of the Revised Rules of Court for the nullification of the Decision 1 of the Shari'a District ○ House and lot consisting of
Court, Fourth Shari'a Judicial District, Marawi City and its Order2 denying the motion for reconsideration of the said decision. The 300sqm at Mahayhay, Iligan city
assailed decision reversed the Decision3 of the Fourth Shari'a Circuit Court, Fourth Shari'a Judicial District, Iligan City, declaring that (okay backgrounder: house was
the house and lot with an area of 300 square meters located at Mahayahay, Iligan City is not a part of the fixed dower given to initially owned by Sarimanoc
Soraida Macawiag, herein private respondent, and directing her to pay attorney's fees in the amount of P40,000.00. Macawiag - father of
Pangampong, husband of
The factual and procedural antecedents are as follows: Mocaran)
Private respondent Soraida Macawiag and Pangampong Macawiag contracted marriage on May 27, 1987, solemnized by Imam -even w/ the ORAL and WRITTEN
Macmod Ganzo. Private respondent claims that before the celebration of their marriage, the representatives of the bride and declaration of the MAHR, MMOCARAL
bridegroom agreed and the solemnizing officer announced, that the customary dower (mahr)4 was P20,000.00 in cash, one head MACAWIAG (Pettioner) and HER
of live carabao, and house and lot consisting of 300 square meters located at Mahayahay, Iligan City, covered by Transfer CHILDREN refused to recognize the
Certificate of Title (TCT) No. T-28, 147(a.f.). However, despite the oral and written declaration that the subject house and lot was a MAHR w/o valid and lawful ground
mahr, Mocaral M. Macawiag, herein petitioner, and her children, refused to recognize it as such, without valid and lawful -PANGAMPONG executed an affidavit
ground. of loss of title covering disputed
house and lot. A new DUPLICATE
Hence, on October 27, 1998, private respondent filed an action (da'wa)5 against Mocaral M. Macawiag and her children, for claim, CERTIFICATE OF TITLE was issued by
declaration, change of name, and issuance of new duplicate certificate of title of mahr with damages and attorney's fees, before the Register of Deeds subsequently
the Fourth Shari'a Circuit Court, Fourth Shari'a Judicial District, Iligan City. Private respondent prayed that: (though not sure if before or after the
1. The said house and lot is Mahr property and absolutely owned by and both possession and name be transferred to the Moddai Da'wa)
(plaintiff) and her children; -so SORAIDA and PANGAMPONG filed
2. The name appeared (sic) in the certificate of title of said house and lot be changed from Sarimanoc Macawiag to the Moddai's an ACTION (Da'wa) against MOCARAL
name and her children; and HER CHILDREN for claim,
3. The Register of Deeds of Iligan City be ordered to issue duplicate certificate of title while still in the name of Sarimanoc declaration, change of name and
Macawiag, and new Transfer Certificate of Title in the name of the new owner, the Moddai and her children; issuance of new duplicate certificate
4. That the Moddaalai (defendant) shall be ordered to pay moral damages of P5,000.00, exemplary damages of P5,000.00, of title of MAHR w/ Damages and AF
attorney's fee of P20,000.00, plus P500.00 per appearances (sic) in the court in the total amount of at least P30,500.00 and before Sharia CC
compensatory damages as maybe (sic) proved in the course of the trial plus cost; -ANSWER: admitted marriage but
And such other reliefs and remedies as are just and equitable on the premises. 6 • limited the MAHR to only P5k in
cash
Prior to the filing of the da'wa, Pangampong Macawiag executed an affidavit of loss of the title covering the subject house and lot. • Duplicate title of the house and
The Register of Deeds of Iligan City thereafter issued a new duplicate certificate of title. lot was not lost, but in the
hands of Antonio Camama, used
In their Answer,7 petitioner and her children admitted the fact of marriage between private respondent and Pangampong as collateral for a loan of P500k
Macawiag. However, they denied that the mahr consists of P20,000.00 cash, one head of live carabao and the house and lot • Out of the P500k loan, P400k
subject matter of the present controversy. They alleged instead that the dowry in consideration of their marriage was cash in the was given to Pangampong
amount of P5,000.00. They, likewise, averred that the title to the house and lot had not been lost; rather, it was in the possession of which he used to buy a vehicle
Antonio Camama, having been used as collateral for a loan of P500,000.00. Moreover, out of the P500,000.00 loan, P400,000.00 and merchandise and subject to
was given to Pangampong Macawiag which he used to buy a vehicle and merchandise and subject to the condition that the the condision that the
amortization would be paid. Since Pangampong Macawiag failed to pay, petitioner took possession of the vehicle. amortization woudl be paid.
• Pangampong failed to pay so
During the hearing before the Shari'a Circuit Court, private respondent presented the following witnesses: MOCARAN took the vehicle
• Imam Mahmod Ganzo, who testified that before he solemnized the marriage, he asked the representatives of the parties if -witnesses presented before Sharia
the mahr had been agreed upon, and the mother of the bride and the bridegroom said that per agreement, the mahr consists CC:
of the P20,000.00 cash, the head of a live carabao, and the subject house and lot; 8 For PANGAMPONG & SORAIDA:
• Pangampong Macawiag, who confirmed the above testimony and further testified that his marriage to private respondent • Imam Mahmod Ganzo, who
was duly registered with the Office of the Shari'a Circuit Court Registrar which also specified the amount of mahr under testified that before he
Registry No. 98-137, and that his father Sarimanoc Macawiag specified in writing that the house and lot had been set aside as solemnized the marriage, he
his mahr;9 asked the representatives of the
• Diora Dimacaling, the mother of the private respondent who witnessed the celebration of the marriage between parties if the mahr had been
Pangampong Macawiag and private respondent, and corroborated the testimonies of the two witnesses; 10 and agreed upon, and the mother of
• private respondent herself who likewise confirmed the testimonies of the first three witnesses. 11 the bride and the bridegroom
said that per agreement, the
When she testified, petitioner denied that it was announced during the celebration of the marriage that the mahr included the mahr consists of the P20,000.00
subject house and lot, and that it was mortgaged to Antonio Camama who now possessed the title to the property. 12 cash, the head of a live carabao,
Antonio Camama testified that the subject house and lot was mortgaged to him, subject to the condition that if Sarimanoc and the subject house and lot;8
Macawiag and petitioner could not comply with the agreement, the mortgage would be considered as a sale. In view of the non- • Pangampong Macawiag, who
fulfillment of the agreement, a Deed of Absolute Sale was executed by Sarimanoc Macawiag in his (Antonio's) favor. He stated that confirmed the above testimony
Pangampong Macawiag knew of such transaction, and that the transfer certificate of title covering the subject house and lot was in and further testified that his
his possession.13 Tocod Macawiag, Papiel Macawiag, Disimban Didato, and Tadmera Gandamato testified that there was no house marriage to private respondent
and lot mentioned as part of the dowry.14 was duly registered with the
Office of the Shari'a Circuit
On April 13, 2000, the Fourth Shari'a Circuit Court rendered a decision15 in favor of petitioner and her children. The fallo of the Court Registrar which also
decision reads: specified the amount of mahr
WHEREFORE, the house and lot with an area of 300 square meters located at Mahayahay, Iligan City, registered in the name of the under Registry No. 98-137, and
deceased Sarimanok Macawiag under Transfer Certificate of Title TCT No. T-28, 147 (a.f.) is not a part of the fixed dower (mahr that his father Sarimanoc
musama) given to Soraida A. Macawiag, herein plaintiff, in connection with her marriage to Pangampong Macawiag. Macawiag specified in writing
Plaintiff is hereby directed to pay defendants P40,000.00 in attorney's fees and the cost of this proceedings. that the house and lot had been
SO ORDERED.16 set aside as his mahr;9
• Diora Dimacaling, the mother
In finding that the subject house and lot was not part of private respondent's mahr, the Circuit Court ruled that, of the private respondent who
in the first place, she never acted as owner of the house and lot allegedly given to her as dowry. witnessed the celebration of the
Even if there was a fixed dowry, it never included the house and lot under litigation, which happens to be registered under marriage between Pangampong
the name of Sarimanoc Macawiag. Macawiag and private
Moreover, the Circuit Court observed that private respondent's claim that the subject house and lot was part of her fixed respondent, and corroborated
dowry had not been annotated on the title to the property despite the lapse of considerable length of time. 17 the testimonies of the two
witnesses;10 and

Islamic Law Page 23

 dowry had not been annotated on the title to the property despite the lapse of considerable length of time. 17
witnesses;10 and
Aggrieved, private respondent appealed to the Shari'a District Court, which, on March 14, 2003, reversed the decision of the Fourth • private respondent herself who
Shari'a Circuit Court. The fallo reads: likewise confirmed the
WHEREFORE, the assailed judgment is REVERSED and another one entered: testimonies of the first three
(1) DECLARING plaintiff Soraida Abbas Macawiag the exclusive owner of the house and lot, situated at Bo. Mahayahay, Iligan City, witnesses.11
with an area of 300 square meters, more or less covered by TCT No. T-28,147 (a.f.) which is still in the name of the late Sarimanoc FOR MOCARAL:
Macawiag, being her mahr; • MOCARAL: denied that the
(2) ORDERING defendants jointly and severally to pay plaintiff (1) P25,000.00 as attorney's fees; P10,000.00 as litigation expenses; MAHR was announced during
and the costs of suit. the celebration of the marriage
SO ORDERED.18 and that the MAHR did not
The Shari'a District Court ruled that one of the essential requisites of a marriage contract is the stipulation of customary dower include the house and lot; the
(mahr) duly witnessed by two competent persons. It is both an inalienable and imprescriptible right which the wife can demand house and lot was mortgaged to
from her husband. It is inalienable in the sense that even if not expressly stated in the contract of marriage, is nevertheless due to ANTONIO CAMAMA who now
the wife and is not lost through prescription.19 It further held that the positive testimonies of the witnesses for private respondent possessed the title to the
should prevail over the negative testimonies of petitioner and her children. The court gave credence to the testimony of the Imam, property
belonging as he does to the group of the learned (the ulama). Lastly, the district court found that even if the property was used as • ANTONIO CAMAMA: the house
collateral for a loan by the late Sarimanoc Macawiag, private respondent can still recover the same since the transaction involving and lot was mortgaged to him
her property is null and void (insofar as the private respondent is concerned). 20 and if the petitioner could not
comply with the agreement, the
Petitioner now comes before this Court in this special civil action for certiorari, on the sole ground of whether mortgage would be considered
JUDGE BALINDONG ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION OR EXCESS IN THE as a sale. Since the agreement
EXERCISE THEREOF WHEN HE REVERSED THE DECISION OF THE SHARI'A CIRCUIT COURT AND DENIED THE MOTION FOR was not complied, a Deed of
RECONSIDERATION.21 Absolute Sale was executed by
Sarimanoc (Sino ba si
Petitioner insists that the ruling of the Court in People v. Bundang 22 is not applicable in this case, since as against the positive Sarimanoc???) in Antonio's
declaration of the prosecution witnesses and the statements of the accused, the former ordinarily deserves more credence than name; Pangampong knew of the
the latter. In such case, mere preponderance of evidence will suffice.23 transaction
• CHILDREN OF MOCARAL: No
Petitioner alleges that the Shari'a Circuit Court already weighed the testimonial and documentary evidence, and found house and lot was mentioned as
preponderance of evidence in favor of petitioner; as such, this ruling should have been respected and upheld by the Shari'a District part of the dowry
Court. Petitioner questions the credibility of the testimonies of Pangampong Macawiag and private respondent, as their -CC:
testimonies are false.24 Petitioner likewise questions the authenticity of the Deed of Donation signed by Sarimanoc Macawiag • Soraida never acted as owner
involving the subject house and lot25 and the two (2) sets of Certificates of Marriage and Municipal Forms (Nos. 97-31 and 98-131) of the house and lot
registered with the Civil Registrar. Petitioner, likewise, questions the findings of the Shari'a District Court on the credibility of Imam • Even if there was a fixed dowry,
Ganzo.26 it could never include the house
and lot because it was
In her Comment,27 private respondent contends that the petition was filed out of time; it, likewise, violates the principle of registered under Sarimanoc's
hierarchy of courts since it should have been filed before the CA. 28 Moreover, private respondent points out that petitioner is not name (whoever he is)
assailing the very jurisdiction of the Shari'a District Court, but only its findings of facts; this is a ground for an appeal and not a • The claim that is was part of the
petition for certiorari.29 Lastly, private respondent claims that petitioner is trying to mislead the Court by including in her petition dowry should have been
annexes/documents which were not appreciated and passed upon by the Shari'a Circuit Court. 30 annotated on the title, but it
was not
Petitioner counters that the petition was timely filed because she received the order denying her motion for reconsideration on THUS: house and lot not part of
May 29, 2003; thus, she had sixty (60) days therefrom or until July 29, 2003. Before the period expired, she filed a motion for dowry
extension of fifteen (15) days or until August 13, 2003 within which to file the petition. Having filed the petition on August 12, 2003, -SORAIDA appealed to DC
it is within the requested period of extension, and thus filed on time. Petitioner, likewise, claims that the rule on hierarchy of courts -DC: reversed CC:
was not violated, in view of the rule on finality of decision set forth in P.D. No. 1083.31 As to the questioned documents presented • Soraida was the exclusive owner
before this Court, petitioner admits that they were not presented during the hearing before the Shari'a Circuit Court. 32 of the house and lot
The parties submitted their respective Memoranda where they reiterated their earlier arguments. • Defendants should pay AF,
litigation expenses and the cost
The petition is dismissed. of suit
• Ruling of DC on DOWRY: one of
The decision sought to be reviewed was rendered by the Shari'a District Court which is thus governed primarily by special laws. the essential requisites of a
Republic Act (Rep. Act) No. 6734, "An Act Providing for the Organic Act For the Autonomous Region in Muslim Mindanao," as marriage contract is the
amended by Rep. Act No. 9054 or the "New Organic Law for the Autonomous Region in Muslim Mindanao," provides: stipulation of customary dower
The Shari'a Appellate Court shall: (mahr) duly witnessed by two
xxx x competent persons. It is both
b) Exercise exclusive appellate jurisdiction over all cases tried in the Shari'a District Courts as established by law.33 an inalienable and
While the Supreme Court en banc authorized the creation of the Shari'a Appellate Court, it has not yet been organized; in any case, imprescriptible right which the
it should begin with the appointments of the Presiding Justice and two Associate Justices. Consequently, aggrieved parties can wife can demand from her
come up only to this Court in view of the rule set forth in Article 145 of Presidential Decree No. 1083, viz: husband. It is inalienable in the
Article 145. Finality of decisions. – The decisions of the Shari'a District Courts whether on appeal from the Shari'a Circuit Court or sense that even if not expressly
not shall be final. Nothing herein contained shall affect the original and appellate jurisdiction of the Supreme Court as provided in stated in the contract of
the Constitution. marriage, is nevertheless due to
The original and appellate jurisdiction of the Supreme Court as provided in the Constitution is not altered. Specifically, this refers the wife and is not lost through
to the original jurisdiction of the Supreme Court over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas prescription. It further held that
corpus.34 It likewise refers to the power of the Supreme Court to review, revise, reverse, modify, or affirm on appeal or certiorari, as the positive testimonies of the
the law or the Rules of Court may provide, final judgments and orders of lower courts in all cases in which the jurisdiction of any witnesses for private
lower court is in issue 35 and all cases in which only an error or question of law is involved.36 respondent should prevail over
the negative testimonies of
In fine, the decisions of the Shari'a District Courts may reach the Supreme Court by way of special civil action under Rule 65 of petitioner and her children. The
the Rules of Court if there is a question of jurisdiction, or petition for review on certiorari as a mode of appeal under Rule 45. court gave credence to the
From the circumstances surrounding the present case, as well as the allegations set forth in the petition, the remedy available to testimony of the Imam,
petitioner is a petition for review on certiorari under Rule 45 and not a petition for certiorari under Rule 65. belonging as he does to the
group of the learned (the
Indeed, when a court, tribunal, or officer has jurisdiction over the person and the subject matter of the dispute, the decision on all ulama).
other questions arising in the case is an exercise of that jurisdiction. Consequently, all errors committed in the exercise of said • ON MORTGAGE: even if the
jurisdiction are merely errors of judgment. Under prevailing procedural rules and jurisprudence, errors of judgment are not proper property was used as collateral
subjects of a special civil action for certiorari.37 for a loan by the late Sarimanoc
Macawiag, private respondent
The well-settled rule is that certiorari is not available where the aggrieved party's remedy of appeal is plain, speedy and adequate in can still recover the same since
the ordinary course, the reason being that certiorari cannot co-exist with an appeal or any other adequate remedy. The existence the transaction involving her
and availability of the right to appeal are antithetical to the availment of the special civil action for certiorari. These two remedies property is null and void (insofar
are mutually exclusive.38 Consequently, when petitioner filed her petition in this Court, the decision of the Shari'a District Court was as the private respondent is
already final and executory. concerned).
-so Special Civil Action for Certioari
In view of the foregoing, as much as we want to review the merits of the petition, we are constrained by the procedural lapsewhich
WON DC erred in reversing the CC

Islamic Law Page 24

In view of the foregoing, as much as we want to review the merits of the petition, we are constrained by the procedural lapse which
this Court cannot ignore. When a decision becomes final and executory, the court loses jurisdiction over the case and not even an WON DC erred in reversing the CC
appellate court would have the power to review a judgment that has acquired finality. Otherwise, there would be no end to decision? NO
litigation and would set to naught the main role of courts of justice which is to assist in the enforcement of the rule of law and the 1. Since there is no Shari'a Appelate
maintenance of peace and order by settling justiciable controversies with finality.39 Moreover, the complaint filed before the Shari'a court yet,can only resort to SC for
Circuit Court included as defendants the children of Mocaral Macawiag, who are the heirs of the late Sarimanoc Macawiag. On the appeals (since SC has original
other hand, the present petition was filed only by Mocaral Macawiag without the inclusion of the other parties. Considering that jurisdiction over petitions for
the other heirs of Sarimanoc are indispensable parties who had not been impleaded below, the Court is further prevented from certiorari, prohibition, mandamus,
previewing the merits of the case. quo warranto and habeas corpus)
-but here, what is appropriate is R45
Admittedly, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, this Court has the Certiorari and not R65
discretion to treat a petition for certiorari as having been filed under Rule 45,40 but not when the petition is filed well beyond the -plus, the decision of the Shari'a DC
reglementary period for filing a petition for review and without offering any reason therefor. 41 was already final and executory when
the petition was filed. When a
The Court ruled in Sebastian v. Morales42 that: decision becomes final and executory,
Under Rule 1, Section 6 of the 1997 Rules of Civil Procedure, liberal construction of the rules is the controlling principle to effect the court loses jurisdiction over the
substantial justice. Thus, litigations should, as much as possible, be decided on their merits and not on technicalities. This does not case and not even an appellate court
mean, however, that procedural rules are to be ignored or disdained at will to suit the convenience of a party. Procedural law has would have the power to review a
its own rationale in the orderly administration of justice, namely, to ensure the effective enforcement of substantive rights by judgment that has acquired finality.
providing for a system that obviates arbitrariness, caprice, despotism, or whimsicality in the settlement of disputes. Hence, it is a Otherwise, there would be no end to
mistake to suppose that substantive law and procedural law are contradictory to each other, or as often suggested, that litigation and would set to naught the
enforcement of procedural rules should never be permitted if it would result in prejudice to the substantive rights of the litigants. main role of courts of justice which is
Litigation is not a game of technicalities, but every case must be prosecuted in accordance with the prescribed procedure so that to assist in the enforcement of the
issues may be properly presented and justly resolved. Hence, rules of procedure must be faithfully followed except only when for rule of law and the maintenance of
persuasive reasons, they may be relaxed to relieve a litigant of an injustice not commensurate with his failure to comply with the peace and order by settling justiciable
prescribed procedure. Concomitant to a liberal application of the rules of procedure should be an effort on the part of the party controversies with finality. 39
invoking liberality to explain his failure to abide by the rules. 43 -Morever, the CC complaint included
the children of Mocaral Macawiag but
The fact that petitioner used the Rule 65 modality as a substitute for a lost appeal is made plain by the following: here, the children did not appeal (and
First. While the petition was filed within the 60-day period for filing a petition for certiorari, it was nevertheless filed beyond the 15- they are considered indispensable
day period for filing a petition for review. As earlier stated, petitioner received the order denying her motion for reconsideration on parties - all heirs of Sarimanoc)
May 29, 2003. She thus had until June 13, 2003 within which to file the petition, but instead of doing so, filed on July 24, 2003, a -Can treat a petition for certioari nder
motion for extension of time 44 to file petition for certiorari. The Court granted the motion in a Resolution dated September 1, 2003. R45 as R65 Certiorari petition, BUT
Thus, on August 12, 2003, which is within the extension period, petitioner filed the instant petition. NOT WHEN IT WAS FILED WELL
Second. The petition makes specious allegations of "grave abuse of discretion" but questions the credibility of witnesses and the BEYOND THE REGLEMENTARY PERIOD
authenticity of documents that were either presented during the trial of the case before the Shari'a Circuit Court or submitted for
the first time before this Court. In short, petitioner seeks the review of the factual findings of the courts below. Admittedly, the
Court has, in previous cases, reviewed the factual findings of the Shari'a District Court.45 However, the petitioners in these cases
came before this Court via petition for review on certiorari under Rule 45, not an original action for certiorari as in the present case.
In a petition for certiorari, the jurisdiction of the appellate court is narrow in scope. It is limited to resolving only errors of
jurisdiction. It is not to stray at will and resolve questions or issues beyond its competence, such as an error of judgment which is
defined as one in which the court or quasi-judicial body may commit in the exercise of its jurisdiction; an error of jurisdiction is one
where the acts complained of were issued without or in excess of jurisdiction.46 Indeed, judicial review does not go as far as to
examine and assess the evidence of the parties and to weigh the probative value thereof. 47 An examination of these issues would
require the elevation of the records below, which cannot be done in the present case.
IN LIGHT OF THE FOREGOING, the petition is hereby DISMISSED.
SO ORDERED.
Panganiban, C.J., Chairperson, Ynares-Santiago, Austria-Martinez, Chico-Nazario, J.J., concur.
Footnotes
1 Penned by Judge Rasad G. Balindong; rollo, pp. 67-76.
2 Rollo, pp. 79-80.
3 Penned by Presiding Judge Ameladin M. Alauya; rollo, pp. 81-103.
4 It is one of the essential requisites of marriage as provided for in Article 15(d) of Presidential Decree (P.D.) No. 1083 or the Code of

Muslim Personal Laws of the Philippines.

5 Rollo, pp. 115-119.
6 Id. at 117-118.
7 Id. at 124-127.
8 Id. at 69; 83.
9 Id. at 84.
10 Id. at 69; 86-87.
11
Id. at 69; 87-88.
12 Id. at 70; 89-93.
13 Id. at 70; 93-95.
14
Id. at 70-71; 95-98.
15 Supra note 3.
16 Rollo, p. 103.
17
Id. at 101.
18 Id. at 75-76.
19 Id. at 72.
20 Id. at 73-74.
21
Id. at 25.
22 339 Phil 271 (1997).
23 Rollo, pp. 27-34.
24
Id. at 43.
25
Id. at 43-45.
26
Id. at 47-49.
27 Id. at 205-208.
28 Id. at 205-206.
29 Id. at 206.
30 Id. at 207.
31
Id. at 216-218.
32
Id. at 20.
33
Republic Act No. 9054, Article VIII, Sec. 9.
34 Constitution, Article VIII, Section 5 (1).
35 Constitution, Article VIII, Section 5 (2)(c).
36 Constitution, Article VIII, Section 5 (2) (e).
37 Sebastian v. Morales, 445 Phil. 595, 608 (2003).
38
People of the Philippines v. Court of Appeals, G.R. No. 144332, June 10, 2004, 431 SCRA 610; Caballes v. Court of Appeals, G.R.

Islamic Law Page 25

No. 163108, February 23, 2005, 452 SCRA 312, 323.
39 Heir of the Late Tungpalan v. Court of Appeals, G.R. No. 136207, June 21, 2005, 460 SCRA 392.
40 Republic v. Court of Appeals, 379 Phil 92, 97, (2000); Delsan Transport Lines, Inc. v. Court of Appeals, 335 Phil 1066, 1075 (1997).
41 Banco Filipino Savings and Mortgage Bank v. Court of Appeals, 389 Phil. 644, 656 (2000).
42
Supra note 37, at 558-559.
43
Id. at 605.
44
Rollo, pp. 3-8.
45 Garingan v. Garingan, G.R. No. 144095, April 12, 2005, 455 SCRA 480; Bondagjy v. Bondagjy, 423 Phil. 127 (2001).
46 Chan v. Court of Appeals, G.R. No. 159922, April 28, 2005, 457 SCRA 502, 515-516.
47 Garcia v. National Labor Relations Commission, G.R. No. 147427, February 7, 2005, 450 SCRA 535, 547; see also Militante v.

People, G.R. No. 150607, November 26, 2004, 444 SCRA 465, 475; Travelaire & Tours Corp. v. National Labor Relations Commission,
355 Phil 932, 937 (1998).

Pasted from <http://www.lawphil.net/judjuris/juri2006/sep2006/gr_159210_2006.html>

Islamic Law Page 26

August 16, 2010 Islamic Law class notes
Monday, August 16, 2010
10:08 AM

Property regime
Verse cited:
-RATIONALE for a regime of Separation of Property
-Institution of Sakah (?) (giving of donations for charity) - one of the means for distributing property

-land code of Ottoman Empire (in Turkey?) - based on Shari'a (as opposed to other land laws of other
Muslim countries which are civil law based)
Why late codification (around 1858) when Shari'a was already established long ago? Time of
Ottoman, Islamic civilization was already in the decline. The late codification of laws based on
Shari'a: All properties belong to God, men are only stewards of God.
Ottomans are Turks, not anymore Arabs.
-land laws of Islam are more socialist in nature...

Islamic reformist: because of the civil law influence, some Muslims want to return to the fundamental
Islamic teachings from the date of the revelation to Mohammad...within the sphere of atmosphere of
Mohammad's time

Why no codification of land laws: Amanat (trust) - the concept of property in Islam
-all properties are owned by God and men only hold these in trust
Trustor: God
Trustee: man
Beneficiary: mankind

Mal (property)
2 meanings of mal:
• All things capacble of being earned
• All things capable of being subject to legal relations or mal mutaqawwin
Excluded: alcohol, pigs other forbidden things (can also be property but under first classification, not
under mal mutaqawwin. Cannot be subjected to legal relations. If they are transacted, the transaction is
void)

Treatment of property: 2: 188

-do not consume one another's wealth unjustly
...

4: 2
Give to orphans their properties...
(protection of orphan's properties)

As to acquisition: the means of acquisition of property should be LEGAL

Land ownership: all lands are owned by God
-the heavens and the earth, God has dominion over it

Category of land
Mil - owned by God
Miri - lands that are to be distributed and are now used by the people (concept of usufruct applicable)
Communally owned lands - similar to ancestral domain (in the Code of Muslim Personal laws -
mentioned as Communal property - A173)
Religious property - land for religious purposes

Islamic Law Page 27

Religious property - land for religious purposes

As compared to other laws

ROMAN LAW
-use property for legal purposes
-2 classification of property

CIVIL LAW
-Property is aggregate of rights
-classification of property: marami!
-similar to Amanat, State owns property and only taken care of by the people (recognition of a greater
owner of property) - in Islamic states, the Caliph is the administrator of lands in representation of
God...Steward for God
-there are also limitations to the property one can own
-Real and personal property
-Highest form of property right: ownership
-different modes of acquiring ownership
-property regimes governing marriage

Family Code
Donations by reason of Marriage
-allows donation propter nuptias of future property
X: donations made in the marriage settlements

• What about in Islamic marriages, what if the marriage push through?

If the donation, under the Muslim Code, is given to the couple as a future husband and wife, and the
marriage is not pushed through, the donation can no longer be enforced
Under the Family Code, it is still considered valid, and they should go to the courts just to invalidate it!

Property Regime
Under Islamic Law: Prenuptial agreement? But in default, separation of property. If other modes of
property regime, Family Code would come in suppletorily
In Family Code: Prenuptial agreement. Separation of property shall only take place after judicial order of
separation of property
Only limitation to prenuptial agreement: Art 1306, Civil Code
If situation not found in FC or CMPL, custom applies

CMPL FC
Art 37. How governed Art 74
1. Contract 1. Marriage settlement before marriage
2. CMPL 2. Code
3. Custom 3. Local customs
Art 38. default property regime: complete Art 75. Absolute community of property
separation of propert
Stipulations in marriage settlements Art 81. void if marriage does not take place... (sorry
Art 39. Void if depend in marriage, if naguluhan, please see the provision na lang)
marriage not push through

ACP
Art 88-104, FC
-default regime in FC
-before: CPG

Islamic Law Page 28

 2 reasons for adopting ACP
1. Established customs
2. Unity of the family
• See reviewer on
-regime not waivable unless judicial separation of property persons
What constitutes Community property
What excluded
Charges upon and obligations of ACP

-disposition of ACP: in case of disagreement, husband's decision prevails

Causes for terminating ACP

Effects of termination of ACP
Process of liquidation of ACP

CPG
-default prior to FC, Art 105 to 133
Exclusive property

Bottomline: in FC, husband's decision over administration of property governs, but wife can assail it
through court process w/n 5 years
-Effects of dissolution

Property regime of unions w/o Marriage

Art 147: unions that can be validated
-presume co-ownership
Art 148: adulterous unions

COMPLETE SEPARATION OF PROPERTY

NCC, FC CMPL
Art 143-146 Art 37-44
-may be partial or total, may include present or future property (Default regime)
Why? 4:32 and 4:17

Ante-nuptial property
Art40, CMPL
Wife shall not lose ownership
Can dispose of the same even w/o consent of husband
Can sue and be sued independently of husband with regards her own property

Art 41. EXCLUSIVE PROPERTY OF EACH SPOUSE

Husband: capital
Wife: paraphernal
-wife cannot accept gifts from outside the prohibited decrees of marriage; can accept provided it's with
the consent of the husband
Note: includes (d) Dower (mahr) of the wife and nuptial gifts to each spouse
• WIFE owns the mahr exclusively!

Art 43. Household property

-definition
-presumption of ownership to the spouse who customarily uses the property

Art 44. Right to sue and be sued

Islamic Law Page 29

Art 44. Right to sue and be sued
Note: number 4: if litigation concerns the exclusive property of husband
-can only concern the property if the administration of the property now pertains to the wife
-property of wife would not beheld liable

So difference of separation of property under FC and CMPL:

As to family expenses.
FC: borne proportionately by both spouses
CMPL: Only husband bears expenses
As to liability of creditors
FC: solidarily liable
CMPL: only husband liable
As to right to be sued and to sue
FC: should be sued jointly
CMPL: Can be sued separately

DIVORCE
GR: not allowed in the Philippines
x: MUSLIM divorces
Foreign divorces

Art. 14, CMPL

1. Social contract between husband and wife
2. Social institution taken care of by the society, foundation of society

Divorce, art 45
-Formal dissolution of the marriage bond
-Granted only after all means of reconciliation is resorted to

-most hateful to Allah

REASONS:
-by virtue of this, the family is destroyed
-contrary to the laws of nature
-gives mortal blow to the family

But why allowed:

Recognizes the reality that certain marriages can no longer be reconciled
If keep them together, they would only grow to hate each other more
Become more uncomfortable with each other: like putting together persons as if they had
committed a crime
"Marriage is meaningless if there is no spark of love between the husband and the wife" - Jainal
Rasul
-only possible when it would be the better option, and after all the safeguards are resorted to:
1. Idda
Purposes:
1) Bring about reconciliation
2) To avoid confusion of issues
-idda changes dependent on the basis of divorce
2. Exhaustion of all efforts to reconciliate: helped by well-meaning relatives
Why well-meaning relatives: interest in preservation of marriage; spouses would still feel
that their issues/disputes are not made public (still confidential, private)
-allow divorce only after finding of irreparable breakdown of marriage and the relatives
cannot do anything about it
-sir: there is nothing to prevent the parties from inviting marriage counsellors

Islamic Law Page 30

 -sir: there is nothing to prevent the parties from inviting marriage counsellors
Vs. Art 59, FC: no legal separation unless COURT has taken steps towards
reconciliation...Reconciliation via marriage counsellors!

Right to divorce generally given to men

-objective ground: financial burden...
-subjective: men are the ones who accepts the women in marriage, so he is the one who can break the
bonds + he is the one who pays the dowry

Classification of divorce
• By death of husband or wife
-not really divorce! More of automatic dissolution of marriage
-when wife dies, husband may immediately marry
-but when the husband dies, iddat should first expire
• By act of parties
○ By the Husband
-Talaq (repudiation)
Conditions
• Made under normal conditions (not drunk, angry, joking or coerced)
• Woman is repudiated during tuhr or clean-non-menstrual period
WHY: because if it is done during a non-menstrual period wherein the husband can have sex
with wife, it means it is really serious. Minsan after sex, bati na.
• Husband, after talaq, will not have carnal knowledge of the wife thereafter
GROUNDS: none mentioned
PROCEDURE:
1. Muslim male shall file a written notice of talaq
2. Agama Arbitration Council shall be formed
LIMITATIONS:
Only on the 3rd time will the divorce be irrevocable. The first two instances, can marry again
w/n Idda (but no need for another marriage ceremony). If after the Idda, should remarry
(with all the requisites of marriage) (minor talaq). If after the third repudiation (GREATER
talaq), the husband should first wait for another man to marry his wife in order to marry her
again! It is as if the institution of marriage is reduced by the couple as something trivial!
-Ila
...continue next meeting...
○ By the Wife

Islamic Law Page 31

 August 23: Divorce Class Report - Cha's notes
Monday, August 23, 2010
9:59 AM

Divorce by Zihar (Art 48)

-assimilates wife to any of relatives within the prohibited degrees
-"Zihar" means "back"
So sir: what if the husband compares the back of his wife to the back of his mother, is this Zihar?
...in Old Arab days, this is Divorce by Zihar!
-put away: stop consorting with their wives
-now: not usual anymore to compare wife to back of mother

Divorce by Acts of Wife

...

Divorce by ful (?): initiated by wife: returns the iwad (a consideration)

-wife gives something back to the husband
-divorce by redemption

Divorce by mubaraak: mutually agreed divorce

-wife can initiate it. If husband consents, no longer need consideration
-why not included in CMPL: Arabani said it is included already in the divorce by ful. But sir says this may
be covered by divorce by talaq since the husband is still the one who declares the divorce

Divorce by talaq: initiated by husband

Delegated Divorce : Talak -e-tafwid

-wife is delegated by husband to effectuate Talaq
-same effects as if husband made the talaq

Li'an (mutual imprecation) (Art 49)

-husband accuses the wife of adultery but proof is not enough to prove divorce
-spouses who accuse one another of adultery shall not join each other anymore
-Acts of Imprecation:
• H accuses wife 4x of adultery
• W denies adultery 4x
By the 5th time, if they are both lying, they would be both cursed
-acts of imprecation is a substitute for the 4 witness rule under RPC (because otherwise, if there are 4
witnesses, the wife would be convicted)
-imprecation: curse

• Men are protectors of women only because they are supposed to be the protectors of women. But if
this does not exist, the wife has the right to petition the right of administration to herself and to take
charge of the administration of the conjugal property

Mutual Imprecation:
Wife sues the husband for divorce on the groudn of false charge of adultery

Divorce by Faskq
-by court order

Islamic Law Page 32

-by court order

Abubakr v. Abubakr
-sir says that the district court decision has basis in law (CMPL)
-sir says that support is demandable at the time of extrajudicial demand and ONLY DURING THE
MARRIAGE. Even demandable during Idda

Period of idda: starts right after the declaration of talaq, even if the husband has not yet given notice of
the talaq!

Arab? Vs. Mustafa A.M. No sec 01-7 March 12, 2002

Tumawis vs. Balindog G.R. 182434 March 5, 2010

Islamic Law Page 33

Arap Vs. Mustafa A.M. No sec 01-7 March 12, 2002
Monday, September 06, 2010
9:44 AM
Admin complaint filed against the first shari'a district court judge for failure to resolve cases (came up
with decision after a long long time). The judge failed to notify the court with the alleged difficulty with
reconciling the Quran provisions and other applicable laws. The delay is tantamount to gross
inefficiency.
Backstory: sir said that the original case was merely a case where the man failed to notify one of his
wives that he was contracting a subsequent marriage.
This case shows that the Shari'a courts, even if considered QJAs, are under the authority of the Judiciary.

Why QJA: those who practice before them are not considered as regular lawyers

FIRST DIVISION
[A.M. No. SCC-01-7. March 12, 2002]
HADJA THITTIE M. ARAP, complainant, vs. JUDGE AMIR MUSTAFA, respondent.
DE C I S I O N
PUNO, J.:
This is an administrative complaint against Judge Amir Mustafa, presiding judge of the First Shari’a
Circuit Court of Jolo, Sulu, for gross neglect of duty, ignorance of the law, and conduct unbecoming a
judge.

In a letter-complaint received by the Office of the Chief Justice of the Supreme Court on March 17, 2000,
complainant Hadja Thittie M. Arap alleged that respondent judge committed gross neglect of duty,
ignorance of the law, and conduct unbecoming a judge for failure to resolve Criminal Case No. 96-01,[1]
filed on April 15, 1996 and submitted for resolution in the same year, but which remains unresolved
despite the rarity of cases filed in his court.[2] The complaint was endorsed to the then Court
Administrator Alfredo L. Benipayo for appropriate action.[3] The Court Administrator required the
respondent judge to file a Comment which was done on June 19, 2000.

In his Comment, the respondent judge denies the allegations in the Complaint. He explains that
Criminal Case No. 96-01 was filed on April 15, 1996, but after he evaluated its allegations and referred to
P.D. 1083 and Islamic Law sources, i.e., the Qur’an and the Hadith of the Holy Prophet, he found the
allegations to be self-defeating, and, motu proprio dismissed of the case on June 11, 1996.[4]

Complainant Hadja Arap filed an appeal with the Shari’a District Court (SDC) of Jolo, Sulu, which, in an
Order dated November 14, 1996, remanded the case to the respondent judge’s court for preliminary
investigation in accordance with Section 9 of Rule 112 of the Rules of Court.[5] On August 4, 1997, Sisali
Arap was arraigned and pleaded not guilty.[6] Trial followed and both parties presented their
witnesses. The case was submitted for resolution in October 1998.

The respondent judge admits that he came up with a Decision on the case on January 25, 2000, and the
same was promulgated on March 1, 2000.[7] To justify the delay, the respondent judge explains that he
found it difficult to reconcile the provisions of P.D. 1083 and those of the Qur’an and the Hadith of the
Holy Prophet, viz:
“xxx The issues raised by both parties in this case calls for a reconciliation of the provisions of PD 1083 as
well as the express provisions of the primary sources of Islamic Law, the Qur’an and the Hadith of the
Holy Prophet. As a judge of the Shari’a Circuit Court, I found it difficult to reconcile these two conflicting
sources of provisions viz-à-viz (sic) with (sic) my personal conviction and belief as a religious follower of
Quranic teachings. It took me a considerable period of time to reflect, ponder, inquire and seek
assistance from Ulama or religious leaders who adhere to the basic teachings of the Holy Qur’an, on the
one hand, and fellow judges of the Shari’a Courts and regular courts who is (sic) more incline (sic) to
follow the dictates of PD 1083, on the other hand. Their advices (sic) all the more confused me taking

Islamic Law Page 34

follow the dictates of PD 1083, on the other hand. Their advices (sic) all the more confused me taking
into consideration my conviction as a Muslim and adherence of the Quranic injunctions.”[8]

He emphasizes that the delay in rendering a decision is not meant to violate any Court Circular
mandating the disposition of cases within the prescribed reglementary period; neither is the same
caused by negligence nor by a criminal resolve to delay the dispensation of justice; lastly, the delay is
not an indication of a conduct unbecoming of a judge. He likewise stresses that there is no truth in the
allegation that cases are rarely filed with his court. On the contrary, his court has the highest number of
caseload among the three Shari’a Circuit Courts, and has even more cases than the Shari’a District Court.
In 1999 alone, his court had a total of 114 cases, 83 of which were terminated in the same year.[9]
The respondent judge further contends that the complainant has been harboring ire against him since
1996 when he dismissed the latter’s case. Such sentiment was allegedly aggravated when the Decision
was promulgated on March 1, 2000 when the complainant made the remark, “Iyon lang pala and
desisyon, pinatagal pa.”[10]

The Office of the Court Administrator, in its Report dated October 16, 2001, found that there was undue
delay in the rendering of the decision by the respondent judge, and recommended the imposition of a
fine of P5,000.00.[11]

We agree.

Lower courts are mandated by Article VIII, Section 15 (1) of the Constitution[12] to resolve or decide
cases within three (3) months after they have been submitted for decision.[13] However, an extension of
the period may be granted by this Court upon request by the judge concerned on account of heavy
caseload or by other reasonable excuse. Without an extension granted by this Court, a delay in the
disposition of cases is tantamount to gross inefficiency on the part of the judge.

We held in the case of Sanchez v. Vestil[14] and reiterated in Bernardo v. Fabros[15] that:
“This Court has constantly impressed upon judges the need to decide cases promptly and expeditiously,
for it cannot be gainsaid that justice delayed is justice denied. Delay in the disposition of cases
undermines the people’s faith and confidence in the judiciary. Hence, judges are enjoined to decide
cases with dispatch. Their failure to do so constitutes gross inefficiency and warrants the imposition of
administrative sanction against them.”

In this case, the respondent judge failed to inform this Court of the alleged difficulty in deciding Criminal
Case No. 96-01 within the prescribed period. It is too late for him to justify such nonfeasance. As
pointed out by the Court Administrator:
“The Court is mindful of and does realize the heavy case load that confronts most courts; it is for the
same reason precisely that it has been most sympathetic in acting on requests for extension of time
submitted by judges as in the instant case. xxx
xxx xxx xxx
The Court must still be informed by the judge of his difficulty in meeting with (sic) the prescribed
deadlines and the necessity of having the periods thereof correspondingly extended. Almost invariably,
the Court responds favorably and grants a reasonable time for compliance with the rules but it would be
wrong for a judge, on his own, to disregard a duty incumbent upon him.”[16]

Moreover, any delay in the resolution of cases by a judge is a contravention of Canon 3, Rule 3.05 of the
Code of Judicial Conduct which provides that “A judge shall dispose of the court’s business promptly and
decide cases within the required periods.”

Accordingly, we adopt the recommendation of the Court Administrator that the respondent judge be
sanctioned. Since this is his first offense during his almost nine (9) year service in the judiciary, the
imposition of fine in the amount of P5,000.00 is deemed sufficient.
Again, we remind judges of the importance of high sense of duty in the administration of justice. Judges

Islamic Law Page 35

should dispose of the court’s business within the prescribed period, as delay undermines people’s faith
in the judiciary and reinforces in their minds that the wheels of justice grind ever so slowly.[17]
WHEREFORE, Judge Amir Mustafa is found GUILTY of gross inefficiency and is hereby ordered to PAY a
fine of five thousand pesos (P5,000.00). He is WARNED that a repetition of the same or similar acts in
the future will be dealt with more severely.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.

[1] Entitled “Hadja Thittie Arap vs. Sisali Arap,” for specific offense relative to subsequent marriage in
violation of Article 162 of Presidential Decree 1083.
[2] Rollo, p. 2.
[3] Id., p. 1.
[4] Id., p. 13.
[5] Id.
[6] Id.
[7] Id., p 14.
[8] Id.
[9] Id.
[10] Id., pp. 14-15.
[11] Id., p 48.
[12] Sec. 15. (1) All cases or matters filed after the effectivity of this Constitution must be decided or
resolved within twenty-four months from the date of submission for the Supreme Court, and unless
reduced by the Supreme Court, twelve months for all lower collegiate courts and three months for all
other lower courts.
[13] Adao v. Lorenzo, 316 SCRA 570, 580 (1999).
[14] 298 SCRA 1 (1998).
[15] 307 SCRA 28, 35 (1999).
[16] Rollo, p. 48.
[17] Office of the Court Administrator v. Judge Castillo, A.M. No. RTJ-01-1634, October 25, 2001, pp. 6-7.

Pasted from <http://sc.judiciary.gov.ph/jurisprudence/2002/mar2002/am_scc_01_7.htm>

Islamic Law Page 36

Tumawis vs. Balindog G.R. 182434 March 5, 2010
Monday, September 06, 2010
9:44 AM

lawphil
Today is
Monday,
Septembe
r 06, 2010

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 182434 March 5, 2010
SULTAN YAHYA "JERRY" M. TOMAWIS, Petitioner,
vs.
HON. RASAD G. BALINDONG, AMNA A. PUMBAYA, JALILAH A. MANGOMPIA, and
RAMLA A. MUSOR, Respondents.

DE C I S I O N
VELASCO, JR., J.:
This petition for certiorari, prohibition, and mandamus under Rule 65 seeks to nullify
the Orders dated July 13, 2005, September 6, 2005, and February 6, 2008 issued by
respondent Judge Rasad G. Balindong of the Shari’a District Court (SDC), Fourth
Judicial District in Marawi City, in Civil Case No. 102-97 entitled Amna A. Pumbaya, et
al. v. Jerry Tomawis, et al.

The Facts
Private respondents Amna A. Pumbaya, Jalilah A. Mangompia, and Ramla A. Musor
are the daughters of the late Acraman Radia. On February 21, 1997, private
respondents filed with the SDC an action for quieting of title of a parcel of land
located in Banggolo, Marawi City, against petitioner Sultan Jerry Tomawis and one
Mangoda Radia. In their complaint, styled as Petition 1 and docketed as Civil Case No.
102-97, private respondents, as plaintiffs a quo, alleged the following:
(1) They were the absolute owners of the lot subject of the complaint, being the legal
heirs of Acraman Radia, who had always been in peaceful, continuous, and adverse
possession of the property;
(2) Tomawis assumed ownership of the said property on the claim that he bought the
same from Mangoda Radia, who, in turn, claimed that he inherited it from his late
father;
(3) in 1996, they "were informed that their land [was] leveled and the small houses
[built] thereon with their permission were removed" upon the orders of Tomawis; and
(4) they had been unlawfully deprived of their possession of the land, and Tomawis’
actions had cast a cloud of doubt on their title.

ANSWER: SDC HAS NO JURISDICTION OVER THE CASE FOR QUIETING OF TITLE
In his answer, Tomawis debunked the sisters’ claim of ownership and raised, as one
of his affirmative defenses treated by the court as a motion to dismiss, SDC’s lack of
jurisdiction over the subject matter of the case. 2 As argued, the regular civil court,
not SDC, had such jurisdiction pursuant to Batas Pambansa Blg. (BP) 129 or the
Judiciary Reorganization Act of 1980. 3

Islamic Law Page 37

Judiciary Reorganization Act of 1980. 3

SDC: IT HAS CONCURRENT JURISDICTION W/ RTC

Following the hearing on the affirmative defenses, respondent Judge Rasad
Balindong, by Order of April 1, 2003, denied the motion. Apropos the jurisdiction
aspect of the motion, respondent judge asserted the SDC’s original jurisdiction over
the case, concurrently with the Regional Trial Court (RTC), by force of Article 143,
paragraph 2(b) of Presidential Decree No. (PD) 1083 or the Code of Muslim Personal
Laws of the Philippines.

On June 16, 2005, Tomawis filed an Urgent Motion to Dismiss with Prayer to Correct
the Name of Defendants to Read Sultan Yahya "Jerry" M. Tomawis & Mangoda M.
Radia.4 In it, he alleged that title to or possession of real property or interest in it was
clearly the subject matter of the complaint which, thus, brought it within the original
exclusive jurisdiction of the regular courts in consonance with existing law. 5 On July
13, 2005, the SDC denied this motion to dismiss.
Unsatisfied, Tomawis later interposed an Urgent Motion for Reconsideration with
Prayer to Cancel and Reset the Continuation of Trial Until After the Resolution of the
Pending Incident. 6 Per Order7 dated September 6, 2005, the SDC denied Tomawis’
urgent motion for reconsideration and ordered the continuation of trial.
Forthwith, Tomawis repaired to the Court of Appeals (CA), Mindanao Station, on a
petition for certiorari, mandamus, and prohibition under Rule 65 to nullify, on
jurisdictional grounds, the aforesaid SDC July 13, 2005 and September 6, 2005
Orders.
By Resolution 8 of February 8, 2006, the appellate court dismissed the petition on the
ground that the CA was "not empowered to resolve decisions, orders or final
judgments of the [SDCs]." Justifying its disposition, the CA held that, pursuant to Art.
1459 of PD 1083, in relation to Art. VIII, Section 910 of Republic Act No. (RA) 9054, 11
the new organic law of the Autonomous Region in Muslim Mindanao, final decisions
of the SDC are reviewable by the yet to be established Shari’a Appellate Court.
Pending the reorganization of the Shari’a Appellate Court, the CA ruled that such
intermediate appellate jurisdiction rests with the Supreme Court.
Undeterred by the foregoing setback before the CA, Tomawis interposed, on January
29, 2008, before the SDC another motion to dismiss on the same grounds as his
previous motions to dismiss. The motion was rejected by respondent Judge Balindong
per his order of February 6, 2008, denying the motion with finality.
Hence, this recourse on the sole issue of:
WHETHER OR NOT THE PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF
DISCRETION IN DENYING PETITIONER’S MOTIONS TO DISMISS ON THE GROUND
OF LACK OF JURISDICTION AND IN DENYING PETITIONER’S MOTION SEEKING
RECONSIDERATION OF THE ORDER DENYING HIS MOTION TO DISMISS.
Simply put, the issue is whether or not the SDC can validly take cognizance of Civil
Case No. 102-97.
The Court’s Ruling
Prefatorily, the Court acknowledges the fact that decades after the enactment in
1989 of the law 12 creating the Shari’a Appellate Court and after the Court, per
Resolution of June 8, 1999, 13 authorized its creation, the Shari’a Appellate Court has
yet to be organized with the appointment of a Presiding Justice and two Associate
Justices. Until such time that the Shari’a Appellate Court shall have been organized,
however, appeals or petitions from final orders or decisions of the SDC filed with
the CA shall be referred to a Special Division to be organized in any of the CA
stations preferably composed of Muslim CA Justices.
For cases where only errors or questions of law are raised or involved, the appeal
shall be to this Court by a petition for review on certiorari under Rule 45 of the Rules
of Court pursuant to Art. VIII, Sec. 5 of the Constitution and Sec. 2 of Rule 41 of the

Islamic Law Page 38

of Court pursuant to Art. VIII, Sec. 5 of the Constitution and Sec. 2 of Rule 41 of the
Rules.
To be sure, the Court has, on several occasions, passed upon and resolved petitions
and cases emanating from Shari’a courts. Among these was one involving the issue of
whether or not grave abuse of discretion attended the denial of a motion to
implement a writ of execution. 14 Still another involved the Shari’a courts’ jurisdiction
in custody and guardianship proceedings, 15 nullity of marriage and divorce when the
parties were both married in civil and Muslim rites, 16 and settlement of estate
proceedings where the deceased was alleged to be not a Muslim, 17 or where the
estate covered properties situated in different provinces. 18
The instant petition, involving only a question of law on the jurisdiction of the SDC
over a complaint for quieting of title, was properly instituted before the Court.
Petitioner asserts that Sec. 19(2), in relation to Sec. 33(3) of BP 129, as amended ––by
vesting original exclusive jurisdiction to the RTCs or Municipal Trial Courts (MTCs), as
the case may be, over civil actions that involve the title to, or possession of, real
property––effectively removed the concurrent jurisdiction once pertaining to the SDC
under Art. 143(2)(b) of PD 1083. In fine, petitioner contends that Art. 143 of PD 1083,
insofar as it granted the SDC concurrent jurisdiction over certain real actions, was
repealed by the BP 129 provisions adverted to.
Disagreeing as to be expected, private respondents balk at the notion of the implied
repeal petitioner espouses, arguing that PD 1083, being a special, albeit a prior, law,
has not been repealed by BP 129. Putting private respondents’ contention in a
narrower perspective, Art. 143(2)(b) of PD 1083 is of specific applicability and, hence,
cannot, under the rules of legal hermeneutics, be superseded by laws of general
application, absent an express repeal.
Petitioner’s claim has no basis.
The allegations, as well as the relief sought by private respondents, the elimination of
the "cloud of doubts on the title of ownership" 19 on the subject land, are within the
SDC’s jurisdiction to grant.
A brief background. The Judiciary Act of 1948 (RA 296) was enacted on June 17, 1948.
It vested the Courts of First Instance with original jurisdiction:
(b) In all civil actions which involve the title to or possession of real property, or any
interest therein, or the legality of any tax, impost or assessment, except actions of
forcible entry into and detainer on lands or buildings, original jurisdiction of which is
conferred by this Act upon city and municipal courts. 20 x x x
Subsequently, PD 1083, dated February 4, 1977, created the Shari’a courts, i.e., the
SDC and the Shari’a Circuit Court, both of limited jurisdiction. In Republic v.
Asuncion,21 the Court, citing the Administrative Code of 1987, 22 classified Shari’a
courts as "regular courts," meaning they are part of the judicial department.
Art. 143 of PD 1083 vests SDCs, in certain cases, with exclusive original jurisdiction
and with concurrent original jurisdiction over certain causes of action. As far as
relevant, Art. 143 reads as follows:
ARTICLE 143. Original jurisdiction.—(1) The Shari’a District Court shall have exclusive
original jurisdiction over:
xxx x
d) All actions arising from customary contracts in which the parties are Muslims, if
they have not specified which law shall govern their relations; and
xxx x
(2) Concurrently with existing civil courts, the Shari’a District Court shall have original
jurisdiction over:
xxx x
(b) All other personal and real actions not mentioned in paragraph 1 (d) wherein the
parties involved are Muslims except those for forcible entry and unlawful detainer,
which shall fall under the exclusive original jurisdiction of the Municipal Circuit Court.
(Emphasis added.)

Islamic Law Page 39

(Emphasis added.)
On August 14, 1981, BP 129 took effect. Sec. 19 of BP 129, as later amended by RA
7691,23 defining the jurisdiction of the RTCs, provides:
Section 1. Section 19 of Batas Pambansa Blg. 129, otherwise known as the "Judiciary
Reorganization Act of 1980", is hereby amended to read as follows:
"Sec. 19. Jurisdiction in civil cases.—Regional Trial Courts shall exercise exclusive
original jurisdiction:
xxx x
"(2) In all civil actions which involve the title to, or possession of, real property, or any
interest therein, where the assessed value of the property involved exceeds Twenty
thousand pesos (P20,000,00) or, for civil actions in Metro Manila, where such value
exceeds Fifty thousand pesos (P50,000.00) except actions for forcible entry into and
unlawful detainer of lands or buildings, original jurisdiction over which is conferred
upon the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial
Courts." (Emphasis supplied.)
As things stood prior to the effectivity date of BP 129, the SDC had, by virtue of PD
1083, original jurisdiction, concurrently with the RTCs and MTCs, over all personal
and real actions outside the purview of Art. 143(1)(d) of PD 1083, in which the parties
involved were Muslims, except those for ejectment. Personal action is one that is
founded on privity of contracts between the parties; 24 and in which the plaintiff
usually seeks the recovery of personal property, the enforcement of a contract, or
recovery of damages. 25 Real action, on the other hand, is one anchored on the privity
of real estate, 26 where the plaintiff seeks the recovery of ownership or possession of
real property or interest in it. 27
On the other hand, BP 129, as amended, vests the RTC or the municipal trial court
with exclusive original jurisdiction in all civil actions that involve the title to or
possession of real property, or any interest in it, and the value of the property subject
of the case or the jurisdictional amount, determining whether the case comes within
the jurisdictional competence of the RTC or the MTC. Orbeta v. Orbeta 28
differentiated personal action from real action in the following wise:
A real action, under Sec. 1, Rule 4 of the Rules of Court, is one that affects title to or
possession of real property, or an interest therein. Such actions should be
commenced and tried in the proper court which has jurisdiction over the area
wherein the real property involved, or a portion thereof, is situated. All other actions
are personal and may be commenced and tried where the plaintiff or any of the
principal plaintiffs resides, or where the defendant or any of the principal defendants
resides, or in the case of a non-resident defendant where he may be found, at the
election of the plaintiff.
Civil Case No. 102-97, judging from the averments in the underlying complaint, is
basically a suit for recovery of possession and eventual reconveyance of real property
which, under BP 129, as amended, falls within the original jurisdiction of either the
RTC or MTC. In an action for reconveyance, all that must be alleged in the complaint
are two facts that, admitting them to be true, would entitle the plaintiff to recover
title to the disputed land, namely: (1) that the plaintiff is the owner of the land or has
possessed the land in the concept of owner; and (2) that the defendant has illegally
dispossessed the plaintiff of the land. 29 A cursory perusal of private respondents’
complaint readily shows that that these requisites have been met: they alleged
absolute ownership of the subject parcel of land, and they were illegally dispossessed
of their land by petitioner. The allegations in the complaint, thus, make a case for an
action for reconveyance.
Given the above perspective, the question that comes to the fore is whether the
jurisdiction of the RTC or MTC is to the exclusion of the SDC.
Petitioner’s version of the law would effectively remove the concurrent original
jurisdiction granted by Art. 143, par. 2(b) of PD 1083 to civil courts and Shari’a courts
over, among others:

Islamic Law Page 40

over, among others:
All other personal and real actions not mentioned in paragraph 1 (d) wherein the
parties involved are Muslims except those for forcible entry and unlawful detainer,
which shall fall under the exclusive original jurisdiction of the Municipal Circuit Court.
xxx
Petitioner’s interpretation of the law cannot be given serious thought. One must bear
in mind that even if Shari’a courts are considered regular courts, these are courts of
limited jurisdiction. As we have observed in Rulona-Al Awadhi v. Astih, 30 the Code of
Muslim Personal Laws creating said courts was promulgated to fulfill "the aspiration
of the Filipino Muslims to have their system of laws enforced in their communities." It
is a special law intended for Filipino Muslims, as clearly stated in the purpose of PD
1083:
ARTICLE 2. Purpose of Code. — Pursuant to Section 11 of Article XV of the
Constitution of the Philippines, which provides that "The State shall consider the
customs, traditions, beliefs and interests of national cultural communities in the
formulation and implementation of state policies," this Code:
(a) Recognizes the legal system of the Muslims in the Philippines as part of the law of
the land and seeks to make Islamic institutions more effective;
(b) Codifies Muslim personal laws; and
(c) Provides for an effective administration and enforcement of Muslim personal laws
among Muslims.
A reading of the pertinent provisions of BP 129 and PD 1083 shows that the former, a
law of general application to civil courts, has no application to, and does not repeal,
the provisions found in PD 1083, a special law, which only refers to Shari’a courts.
A look at the scope of BP 129 clearly shows that Shari’a courts were not included in
the reorganization of courts that were formerly organized under RA 296. The
pertinent provision in BP 129 states:
SECTION 2. Scope. — The reorganization herein provided shall include the Court of
Appeals, the Court of First Instance, the Circuit Criminal Courts, the Juvenile and
Domestic Relations Courts, the Courts of Agrarian Relations, the City Courts, the
Municipal Courts, and the Municipal Circuit Courts.
As correctly pointed out by private respondents in their Comment, 31 BP 129 was
enacted to reorganize only existing civil courts and is a law of general application to
the judiciary. In contrast, PD 1083 is a special law that only applies to Shari’a courts.
We have held that a general law and a special law on the same subject are statutes in
pari materia and should be read together and harmonized, if possible, with a view to
giving effect to both. 32 In the instant case, we apply the principle generalia
specialibus non derogant. A general law does not nullify a special law. The general
law will yield to the special law in the specific and particular subject embraced in the
latter.33 We must read and construe BP 129 and PD 1083 together, then by taking PD
1083 as an exception to the general law to reconcile the two laws. This is so since the
legislature has not made any express repeal or modification of PD 1083, and it is well -
settled that repeals of statutes by implication are not favored. 34 Implied repeals will
not be declared unless the intent of the legislators is manifest. Laws are assumed to
be passed only after careful deliberation and with knowledge of all existing ones on
the subject, and it follows that the legislature did not intend to interfere with or
abrogate a former law relating to the same subject matter. 35
In order to give effect to both laws at hand, we must continue to recognize the
concurrent jurisdiction enjoyed by SDCs with that of RTCs under PD 1083.1avvphi1
Moreover, the jurisdiction of the court below cannot be made to depend upon
defenses set up in the answer, in a motion to dismiss, or in a motion for
reconsideration, but only upon the allegations of the complaint. 36 Jurisdiction over
the subject matter of a case is determined from the allegations of the complaint and
the character of the relief sought. 37 In the instant case, private respondents’
petition38 in Civil Case No. 102-97 sufficiently alleged the concurrent original

Islamic Law Page 41

petition38 in Civil Case No. 102-97 sufficiently alleged the concurrent original
jurisdiction of the SDC.
While we recognize the concurrent jurisdiction of the SDCs and the RTCs with respect
to cases involving only Muslims, the SDC has exclusive original jurisdiction over all
actions arising from contracts customary to Muslims 39 to the exclusion of the RTCs, as
the exception under PD 1083, while both courts have concurrent original jurisdiction
over all other personal actions. Said jurisdictional conferment, found in Art. 143 of PD
1083, is applicable solely when both parties are Muslims and shall not be construed
to operate to the prejudice of a non-Muslim,40 who may be the opposing party
against a Muslim.
Given petitioner’s flawed arguments, we hold that the respondent court did not
commit any grave abuse of discretion. Grave abuse of discretion is present when
there is an arbitrary exercise of power owing from passion, prejudice, or personal
hostility; or a whimsical, arbitrary, or capricious exercise of power that amounts to a
shirking from or refusal to perform a positive duty enjoined by law or to act at all in
contemplation of law. The abuse of discretion must be patent and gross for the act to
be held as one made with grave abuse of discretion. 41 We find respondent court’s
issuance of the assailed orders justified and with no abuse of discretion. Its reliance
on the provisions of PD 1083 in asserting its jurisdiction was sound and unassailable.
We close with the observation that what is involved here are not only errors of law,
but also the errors of a litigant and his lawyer. As may have been noted, petitioner
Tomawis’ counsel veritably filed two (2) motions to dismiss, each predicated on the
sole issue of jurisdiction. The first may have been understandable. But the second
motion was something else, interposed as it was after the CA, by resolution, denied
Tomawis’ petition for certiorari for want of jurisdiction on the part of the appellate
court to review judgments or orders of the SDC. The CA stated the observation,
however, that Tomawis and his counsel may repair to this Court while the Shari’a
Appellate Court has yet to be organized. Petitioner waited two years after the CA
issued its denial before filing what virtually turned out to be his second motion to
dismiss, coming finally to this Court after the same motion was denied. The Court
must express disapproval of the cunning effort of Tomawis and his counsel to use
procedural rules to the hilt to prolong the final disposition of this case. From Alonso v.
Villamor,42 almost a century-old decision, the Court has left no doubt that it frowns
on such unsporting practice. The rule is settled that a question of jurisdiction, as here,
may be raised at any time, even on appeal, provided its application does not result in
a mockery of the basic tenets of fair play. 43 Petitioner’s action at the later stages of
the proceedings below, doubtless taken upon counsel’s advice, is less than fair and
constitutes censurable conduct. Lawyers and litigants must be brought to account for
their improper conduct, which trenches on the efficient dispensation of justice.
WHEREFORE, the petition is DISMISSED for lack of merit. Petitioner Yahya "Jerry"
Tomawis and Atty. Edgar A. Masorong are ADMONISHED to refrain from engaging in
activities tending to frustrate the orderly and speedy administration of justice, with a
warning that repetition of the same or similar acts may result in the imposition of a
more severe sanction.
No costs.
SO ORDERED.
PRESBITERO J. VELASCO, JR.
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO RENATO C. CORONA
Associate Justice Associate Justice
CONCHITA CARPIO MORALES ANTONIO EDUARDO B. NACHURA

Islamic Law Page 42

 CONCHITA CARPIO MORALES ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice
TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice
(On official leave) LUCAS P. BERSAMIN
DIOSDADO M. PERALTA* Associate Justice
Associate Justice
MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice
MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
Associate Justice Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
CE R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified 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.
REYNATO S. PUNO
Chief Justice
Footnotes
*
On official leave.
1 Rollo, pp. 29-32.
2
Id. at 35.
3 Petitioner relies on Sec. 19 of BP 129 providing that the RTC shall exercise exclusive

original jurisdiction in all civil actions which involve title to, or possession of, real
property, or any interest therein, where the assessed value of the property exceeds
twenty thousand pesos (PhP 20,000) or for civil actions in Metro Manila, except
actions for forcibly entry, the original jurisdiction over which is conferred upon the
Metropolitan Trial Court, Municipal Trial Courts, and Municipal Circuit Trial Courts.
4
Rollo, p. 44.
5 BP 29, as amended by RA 7691, entitled "An Act Expanding the Jurisdiction of the

Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts,
Amending for the Purpose [BP 129]."
6 Rollo, p. 59.
7
Id. at 65.
8 Id. at 86-87. Penned by Associate Justice Rodrigo F. Lim, Jr. and concurred in by

Associate Justices Teresita Dy-Liacco Flores (now retired) and Ramon R. Garcia.
9 PD 1083, Art. 145 provides, "The decision of the Shari’a District Courts whether on

appeal from the Shari’a Circuit Court or not shall be final. Nothing herein contained
shall affect the original and appellate jurisdiction of the Supreme Court as provided in
the Constitution."
10 Sec. 9. Jurisdiction of the Shari’ah Appellate Court.—The Shari’ah Appellate Court

shall:
(a) Exercise original jurisdiction over petitions for certiorari, prohibition, mandamus,
habeas corpus and other auxiliary writs and processes only in aid of its appellate
jurisdiction; and,
(b) Exercise exclusive appellate jurisdiction over all cases tried in the Shari’ah district
courts as established by law.
11 An Act to Strengthen and Expand the Organic Act for the Autonomous Region in

Muslim Mindanao, Amending for the Purpose Republic Act No. 6734, Entitled "An Act
Providing for the Autonomous Region in Muslim Mindanao," as Amended.
12 Autonomous Region in Muslim Mindanao Organic Law (RA 6734), as amended.
13 A.M. No. 99-4-66.

Islamic Law Page 43

 12 Autonomous Region in Muslim Mindanao Organic Law (RA 6734), as amended.
13 A.M. No. 99-4-66.
14 Batugan v. Balindong, G.R. No. 181384, March 13, 2009, 581 SCRA 473.
15 Rulona-Al Awadhi v. Astih, No. L-81969, September 26, 1988, 165 SCRA 771.
16
Bondagjy v. Artadi, G.R. No. 170406, August 11, 2008, 561 SCRA 633.
17 Montañer v. Shari’a District Court, Fourth Shari’a Judicial District, Marawi City, G.R.

No. 174975, January 20, 2009, 576 SCRA 746.

18 Musa v. Moson, G.R. No. 95574, August 16, 1991, 200 SCRA 715.
19
Rollo, p. 31.
20 Sec. 44.
21 G.R. No. 108208, March 11, 1994, 231 SCRA 211.
22
Sec. 16, Chap. 4, Book 11 of the Code.
23 Approved on March 25, 1994.
24
PICOP v. Samson, No. L-30175, November 28, 1975, 68 SCRA 224.
25 Hernandez v. Rural Bank of Lucena, Inc., No. L-29791, January 10, 1978, 81 SCRA

75.
26 1 Paras, Rules of Court Annotated 37 (2nd ed.); citing Osborne v. Fall River, 140

Mass. 508.
27 Hernandez v. Rural Bank of Lucena, Inc., supra.
28 G.R. No. 166837, November 27, 2006, 508 SCRA 265, 268; citing Rules of Court,

Rule 4, Sec. 2.
29 Mendizabel v. Apao, G.R. No. 143185, February 20, 2006, 482 SCRA 587, 604.
30
Supra note 15; citing Executive Order No. 442 dated December 23, 1974.
31 Rollo, p. 123.
32
Vinzons-Chato v. Fortune Tobacco Corporation, G.R. No. 141309, June 19, 2007,
525 SCRA 11, 20-21.
33
Agpalo, Statutory Construction 415 (2003).
34 Id. at 411.
35 Social Justice Society v. Atienza, Jr., G.R. No. 156052, February 13, 2008, 545 SCRA

92.
36 Tamano v. Ortiz, G.R. No. 126603, June 29, 1998, 291 SCRA 584.
37
Villena v. Payoyo, G.R. No. 163021, April 27, 2007, 522 SCRA 592.
38 Rollo, p. 30.
39 While PD 1083 does not define a customary contract, its Art. 175 of Title III:

Customary Contracts states:

Article 175. How construed. Any transaction whereby one person delivers to another
any real estate, plantation, orchard or any fruit-bearing property by virtue of sanda,
sanla, arindao, or similar customary contract, shall be construed as a mortgage
(rihan) in accordance with Muslim law.
40 PD 1083, Title II, Article 3. Conflict of provisions.

(1) In case of conflict between any provision of this Code and laws of general
application, the former shall prevail.
(2) Should the conflict be between any provision of this Code and special laws or laws
of local application, the latter shall be liberally construed in order to carry out the
former.
(3) The provisions of this Code shall be applicable only to Muslims and nothing herein
shall be construed to operate to the prejudice of a non -Muslim.
41
Badiola v. Court of Appeals, G.R. No. 170691, April 23, 2008, 552 SCRA 562, 581.
42 16 Phil. 315 (1910).
43
Jimenez v. Patricia, Inc., G.R. No. 134651, September 18, 2000, 340 SCRA 525.
The Lawphil Project - Arellano Law Foundation

Pasted from <http://www.lawphil.net/judjuris/juri2010/mar2010/gr_182434_2010.html>

Islamic Law Page 44

Pasted from <http://www.lawphil.net/judjuris/juri2010/mar2010/gr_182434_2010.html>

Islamic Law Page 45

 Legitimacy and Filiation
Monday, September 06, 2010
9:59 AM

Art. 58, CMPL

-legitimation and filiation established by
• Proof of marriage by father and child

v. FC & NCC: same definition of terms

Paterntity, Maternity, Filiation

Vs. Family Code: how to establish filiation

• Nature or blood
 Legitimate (A164)
 Illegitimate (A165)
□ There is no such term under Muslim Laws...an illegitimate child is always a child of
illegitimate sexual relations...

• Adoption
 No such concept under Muslims code
"There is no legal institution for adoption" - you can take care of a child, treat the child as
your own BUT the child can never be your adopted child, not considered enjoying rights and
privileges of a child

• There's also an additional provision for artificial insemination-borne children under Family Code
• Is it recognized under islamic law?
ALLOWED, provided
• The sperm came from the husband?
• What if there are two legal wives, one is fertile and the other has difficulty bearing children.
• ! The only instance when allowed: get the sperm of the man and the ovum of the woman, married at the
time they are validly and legally married, then fertilized outside, then inserted in the ovum
• There's already a fatwah recognizing artificial insemination only at that instance

HOW TO ESTABLISH FILIATION:

FC CMPL
Art 172 Art 59
• Action to claim legitimacy may be brought during the lifetime of the illegitimate child
• When it comes to impugning the legitimacy of the child, you can actually use the procedure under civil
law in situations where Muslims are involved

Presumption of legitimacy
1. Children conceived in lawful wedlock
2. Children born after 6 months following consummation of marriage
Or w/n 2 years after the dissolution of marriage (unless the wife has contracted intervening marriages
w/n the 2 year period)

Islamic law leans favorably towards legitimacy

Maximum limits of pregnancy

• 9-10 months
• Period of pregnancy recognized under Muslim law is 2 yrs (Hanafi's opinion)
• Maliki: 7 years

Islamic Law Page 46

 • Maliki: 7 years
• Shafil: 4 years
• Quran: the carrying of a child to his weaning is 30 months; and his weaning is 2 years
• It is considered as a sin in Islam for one to claim that one is his/her father when it is not

Impugning legitimacy
• On artificial insemination: strict application of artificial insemination, if done outside that allowed, then
it can be a ground to impugn the artificial insemination itself, even w/ o mistake, fraud, violence,
intimidation or undue influence

If the marriage is fasid, child born 6 months after the marriage but the wife is conceived during idda, the
child would generally be considered that of the second marriage. But since a fasid marriage is a non-
existent marriage until its validated, the couple could get married (validate the marriage) and the child
be acknowledged.

2 ways to use surname

1. Customary practice
Arabic names
• ISM (Ismun): a personal, proper name
• Kunya - a term of endearment, honorific name or surname, as the father or mother of
someone. Meant as a prefix of respec
• Nasab - a pedigree, as the son or daughter of someone
• Laqab - combination of words into a byname...usually religious relating to nature, a
descriptive word...
• Nisba
□ Occupational
□ Descent
□ Geographical
-even non-arabs use nisba
2. CMPL: use the surname of the mother and father in accordance with Civil code
• No restriction on the right to the two, as long as the use is in gf
• SIR: CMPL usually used.
• Difficult for a child to write it for school
• Long name is difficult for records purposes, difficult to reconcile the different names used
• As long as you know the first name and the last name, pede na

Child' right to support

* if illegitimate, support only from mother
*acknowlegement of child does not convert an illegitimate child to a legitimate child.

ADOPTION
-no adoption
-why: according to the quran, you cannot claim a son your son

v.s RA 8552: legal tie between biological parents and the child is severed
There is diffence between fosterage and adoption
-fosterage is more on the weaning of the child

Islamic Law Page 47

 Decedent had many properties in Mindanao (as well as wives and children). Now
Musa v. Moson (1991) intestate proceedings were initiated in the 5th District SDC (which covers
Monday, September 06, 2010 Maguindanao where some of his properties were located) but he also has properties in
11:02 AM
Davao (which is not covered by the 5th district of SDC). The petitioners contest the
venue and jurisdiction of the 5th district of SDC. Court held that SDC had jurisdiction,
because it is mandated by law to take cognizance of intestate proceedings of deceased
Muslims. Court also upheld the jurisdiction of the 5th Dsitrict SDC because first, the
deceased was considered a resident of both Maguindanao and Davao, and that since
the intestate proceedings were initiated in 5th district, it should not be deprived of the
said exercise of jurisdiction.

J. Gancayco
Constitutionality of the Yamin under the Rules of Procedure under Shari'a courts

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 95574 August 16, 1991
HADJI WAHIDA MUSA, HADJI SALMA MUSA, RIZAL MUSA and BASSER MUSA,
petitioners,
vs.
HON. COROCOY D. MOSON, in his capacity as Presiding Judge, Shari'a District Court,
Fifth Shari'a District, Cotabato City and HADJI JAHARA ABDURAHIM, respondents.
Randolph C. Parcasio for petitioners.

MELENCIO-HERRERA, J.:p
Questions of jurisdiction of the Shari'a District Court, and of venue, in an intestate proceeding
are herein raised.

Involved is the intestate estate of the late Jamiri Musa, a Muslim, who passed away on 31
December 1987. He had six (6) wives, three (3) of whom he later divorced, and twenty three
(23) children. He had extensive real and personal properties located in the provinces of
Maguindanao, Davao del Sur and Davao Oriental. Petitioners, Hadji WAHIDA Musa and Hadji
SALMA Musa, are among those he divorced, while private respondent Hadji Jalai a
ABDURAHIM is one of the three (3) surviving widows, RIZAL Musa and BASSER Musa are two
(2) of his sons.

On 7 July 1989, Respondent ABDURAHIM filed a "Joint Petition for the Administration and
Settlement of the Inestate Estate of the Late Jamiri Musa and Liquidation of Conjugal
Partnership," before the Shari'a District Court, Fifth Sharia's District, with station at Cotabato
City (SDC Spec. Proceedings No. 89-19) (the Intestate Case). That Court embraces the
province of Maguindanao within its jurisdiction but not the provinces of Davao del Sur and
Oriental.

The Petition averred that the decedent Jamiri Musa a resident of Linao, Upi, Maguindanao, left
various properties located in the provinces of Maguindanao (184 hectares), Davao del Sur (61
hectares), and Davao Oriental (207 hectares). Aside from the settlement of the vast estate, also
prayed for was the liquidation of the conjugal partnership assets of the decedent and
ABDURAHIM and the segregation and turn-over to the latter of her one-half (1/2) share.

Appearing as oppositors were: Petitioners WAHIDA and SALMA, the divorced wives, who also
claim to be widows of the deceased: RIZAL, Putih Musa, and Erum Musa, children of WAHIDA
with the decedent; and BASSER, another son. They alleged that venues was improperly said
and that the properties of the decedent located outside Aguinaldo were beyond the jurisdiction
of the Shari'a District. Court, Fifth Shari'a District.

Finding the Joint Petition to be sufficient in form and substance, Respondent Judge issued the
Order of Publication on 1 July 1989 and initially set the case for hearing on 18 September 1989.
All interested parties were duly represented during the hearing on said date where petitioners,
through counsel, manifested their desire to have the case amicably settled, Respondent Judo
"in the interest of peace and harmony among the heirs of the deceased Jamiri Musa," appointed
the following as Special Administrators: ABDURAHIM, for all properties situated in
Maguindanao; RIZAL. for all properties situated in Davao Oriental; and BASSER. for all
properties situated in Davao del Sul.

However, on 4 October 1989, ABDURAHIM, in her manifestation and Motion to Cite for
Contempt," accused BASSER, among others, of having allegedly fired upon the house of her
son in-law in Maguindanao on 21 September 1989.

Whereupon, on 13 October 1989, an "Opposition to Petition for Administration and Liquidation

of Conjugal Partnership" was filed by Petitioners, alleging that ABDURAHIM was never legally
married to the decedent and, as such, there was "nothing to support her claim" of having had a
conjugal partnership with the latter; and that venue was improperly laid. Petitioners also asked
that RIZAL be issued Letters of Administration instead.

In her Reply, filed on 25 October 1989, ABDURAHIM averred that, her marriage to the decedent
was admitted by the latter in various Deeds of Sale he had signed, which were presented as
documentary evidence. Since there was no amicable settlement reached, hearings on the Joint
Petition were conducted, commencing on 27 December 1989.

Islamic Law Page 48

 Petition were conducted, commencing on 27 December 1989.

On 16 May 1990, Respondent Judge, issued an Order appointing ABDURAHIM as Regular

Administratrix upon the finding that she was legally married to the decedent. Petitioners moved
for reconsideration.

In the interim, Respondent Judge issued an Amended Order, dated 4 June 1990, incorporating
the testimonies of the two (2) other witnesses presented by Petitioners, which were omitted in
the Order, dated 16 May 1990. Otherwise, the appointment of ABDURAHIM as Regular
Administratrix was maintained.

On 10 August 1990, Petitioners filed a "Motion for Reconsideration With Motion to Dismiss,"
raising once again, mainly the questions of venue and of jurisdiction of the respondent Court
over the real properties of the decedent situated in the provinces of Davao del Sur and Davao
Oriental.

Respondent Judge denied both Motions and upheld the Court's jurisdiction in his Order, dated
22 August 1990. Hence, the elevation of the instant Petition for Prohibition before this Court
seeking to enjoin respondent Judge Corocoy D. Moson, presiding over the Shari'a District
Court, Fifth Shari'a District, from further taking action on the "Joint Petition ."

ARGUMENT: SDC NO JURISDICTION OVER PROPERTIES IN DAVAO

Petitioners take the position that Respondent Judge should have dismissed the Intestate Case
for lack of jurisdiction and for improper venue. Private respondent maintains the contrary.

HELD: AGAINST PETITIONERS: SDC HAS JURISDICTION, PROPER VENUE

We rule against Petitioners.

TH DISTRICT BECAUSE1. SDC INDEED HAD JURISDICTION, AS THIS INVOLVED THE

SETTLEMENT OF THE ESTATE OF A DECEASED MUSLIM
Pres. Decree No. 1083, otherwise known as the Code of Muslim Personal Laws of the
Philippines, explicitly provides that exclusive original jurisdiction, in matters of settlement of the
estate of deceased Muslims, belong to Shari'a District Courts. Thus:
Art. 143. Original Jurisdiction.—The Shari'a District Court shall have exclusive original jurisdiction over:
xxx xxx xxx
(b) All cases involving disposition, distribution and settlement of the estate of deceased Muslims, probate
of wills, issuance of letters of administration or appointment of administrators or executors regardless of
the nature or the aggregate value of the property. (Chapter 1, Title I, Book IV, par. (b), (Emphasis
supplied).

Since the disposition, distribution and settlement of the estate of a deceased Muslim is, in fact,
involved herein, the Joint Petition was correctly filed before the Shari'a District Court, Fifth
Shari'a District.

2. ON VENUE: SDC ACQUIRED JURISDICTION EVEN IF NOT W/N 5TH DISTRICT BECAUSE
a. RESIDENCE IS NOT PERMANENT RESIDENCE SO THERE CAN BE MANY
RESIDENCE - INTESTATE PROCEEDINGS IN PROVINCE IN WHICH DECEDENT
RESIDED AT THE TIME OF HIS DEATH
In invoking improper venue, however, petitioners call attention to the Rules of Court mandating
that:
Sec. 1. Where estate of deceased persons settled.—If the decedent is an inhabitant of the Philippines at
the time of his death, whether a citizen or an alien, his will shall be proved, or letters of administration
granted, and his estate settled, in the Court of First Instance in the province in which he resides at the
time of his death, and if he is an inhabitant of a foreign country, the Court of First Instance of any province
in which he had estate. The court first taking cognizance of the settlement of the estate of a decedent,
shall exercise jurisdiction to the exclusion of all other courts. The jurisdiction assumed by a court, so far
as it depends on the place of residence of the decedent, or of the location his estate, shall not be
contested in a suit or proceeding, except in an appeal from that court, in the original case, or when the
want of jurisdiction appears on the record. (Rule 73). (Emphasis supplied).

It is then claimed that since the residence of the decedent at the time of his death was actually
in Davao City, not Maguindanao, as averred by ABDUHARIM, the proceeding is beyond the
jurisdiction of the Shari'a District Court, Fifth Shari'a District, and that venue is more properly
laid in Davao City before the Regional Trial Court since there are no Shari'a District Courts
therein.

At this juncture, it should be recalled that the residence of the deceased in an estate proceeding
is not an element of jurisdiction over the subject matter but merely of venue. The law of
jurisdiction confers upon Courts of First Instance (now Regional Trial Courts) jurisdiction over all
probate cases independently of the place of residence of the deceased (In the matter of the
intestate estate of Kaw Singco, 74 Phil. 239 [1943]).

To all appearances, the decedent was a resident of both Linao, Upi, Maguindanao, and Davao
City. In fact, in various Deeds of Sale presented as evidence by the parties, the decedent
alternately stated his place of residence as either Linao, Upi,Maguindanao which is the
residence of ABDURAHIM, or Davao City, where Petitioners reside. As this Court held in
Uytengsu v. Republic, 95 Phil. 890 (1954), "a man can have but one domicile for one and the
same purpose at any time, but he may have numerous places of residence." Venue, therefore,
ordinarily could be at either place of the decedent's residence, i.e., Maguindanao or Davao City,
but for the provisions of the Muslim Code vesting exclusive original jurisdiction, in matters of
disposition and settlement of estates of deceased Muslims, in Shari'a District Courts (supra).

B. EVEN IF THE OTHER PROPERTIES ARE NOT W/N THE 5TH SD, A CONTRARY
RULING WOULD RESULT IN MULTIPLICITY OF SUITS

Islamic Law Page 49

 RULING WOULD RESULT IN MULTIPLICITY OF SUITS
But petitioners also contend that the Shari'a District Court, Fifth Shari'a District, presided over by
respondent Judge, has no territorial jurisdiction over properties of the decedent situated in the
provinces of Davao del Sur and Davao Oriental, citing as statutory authority therefor the Code of
Muslim Personal Laws, which provides:

Art. 138. Shari'a judicial districts.—Five special judicial districts, each to have one Shari'a District Court
presided over by one judge, are constituted as follows:
xxx xxx xxx
(e) The Fifth Shari'a District, the Provinces of Maguindanao, North Cotabato and Sultan Kudarat, and the
City of Cotabato.

Indeed, Davao del Sur and Davao Oriental are not comprised within the Fifth Shari'a District. In
fact, those provinces are outside the Autonomous Region in Muslim Mindanao created by
Republic Act No. 6734, its Organic Act. But as stated in that law, "the Shari'a District Court and
the Shari'a Circuit Courts created under existing laws shall continue to function as provided
therein." (Art. IX, Sec. 13).

Additionally, the same Organic Act explicitly provides;

(4) Except in cases of successional rights, the regular courts shall acquire jurisdiction over controversies
involving real property outside the area of autonomy. (Art. IX, Section 17[4]). (Emphasis supplied)

Since the subject intestate proceeding concerns successional rights, coupled with the fact that
the decedent was also a resident of Linao, Upi, Maguindanao, owning real estate property
located in that province, venue has been properly laid with the Shari'a District Court, Fifth
Shari'a District, winch is vested with territorial jurisdiction over Maguindanao, notwithstanding
the location in different provinces of the other real proper- ties of the decedent

A contrary ruling would only result in multiplicity of suits, to the detriment of the expeditious
settlement of estate proceedings (See Ngo Bun Tiong v. Sayo, 30 June 1988,163 SCRA 237
[1988]). Besides, the judgment that may be rendered by the Shari'a District Court, Fifth Shari'a
District, may be executed in other provinces where the rest of the real estate is situated.
When an action covers various parcels of land situated in different provinces, venue may be laid in the
Court of First Instance of any of said provinces, and the judgment rendered therein may be executed in
other provinces where the rest of the real estate is situated (National Bank v. Barreto, 52 Phil. 818 [1929];
Monte Piedad v. Rodrigo, 56 Phil. 310 [1931]; El Hogar Filipino v. Seva ,57 Phil. 573 [L-1932]; Bank of
P.I. v. Green, 57 Phil. 712 [1932]).

C. AND SINCE SDC5TH DISTRICT FIRST TOOK COGNIZANCE, IT HAS RIGHT OVER ALL
INTESTATE PROCEEDINGS
The Rules of Court likewise provide that the Court first taking cognizance of the settlement of
the estate of a decedent, shall exercise jurisdiction to the exclusion of all other Courts(Rule 73,
sec. 1). There should be no impediment to the application of said Rules as they apply
suppletorily to the Code of Muslim Personal Laws, there being nothing inconsistent with the
provisions of the latter statute (Article 187 of said Code).

And while Rule 73 provides that "the jurisdiction assumed by a court, so far as it depends on the
place of residence of the decedent, or of the location of his estate, shall not be contested in a
suit or proceeding except in an appeal from that court, in the original case, or when the want of
jurisdiction appears on the record," we have taken cognizance of this Petition for Prohibition
considering that the jurisdiction of a Shari'a District Court, a relatively new Court in our judicial
system, has been challenged.

WHEREFORE, this Petition for Prohibition is DENIED, and the case hereby REMANDED to the
Shari'a District Court, Fifth Shari'a District, for continuation of the intestate proceedings. No
costs.
SO ORDERED.
Paras, Padilla, Sarmiento and Regalado, JJ., concur.

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Islamic Law Page 50

 Two parties claim the same land. The plaintiffs did not have any
Tampar v. Usman evidence, so asked the defendant to take the oath. The defendant at
Monday, September 20, 2010 first refused to do so but subsequently took an oath so judgment was
11:12 AM
in his favor. Now the plaintiffs appeals the decision based on the oath
(yamin). Court held that the yamin (oath) deprived the party of their
constitutional right to cross examine the witnesses, and
recommended that the yamin should be deleted from the Shari'a
special rules on procedure.

G.R. No. 82077 August 16, 1991

MIDSAPAK TAMPAR, MAISALAM TAMPAR, HEIRS OF GAMPONG TAMPAR, represented
by HADJI MUSTAPHA GAMPONG and HEIRS OF PAGAYAWAN TAMPAR, represented by
SUMAPI TAMPAR, petitioners,
vs.
ESMAEL USMAN, MOHAMAD DATUMANONG, HADJI SALIK NUR AND THE REGISTER
OF DEEDS FOR THE CITY OF COTABATO, respondents.
Miguel M. Litigating for petitioners.

GANCAYCO, J.:p
This petition for certiorari involves a dispute over the correct application of the unique Islamic
rule of procedure known as the oath ("yamin").

The record of the case shows that petitioners filed a complaint against respondents for
"Annulment of Sale in an Extrajudicial Settlement of Estate with Simultaneous Sale and Delivery
of Certificates of Title and Damages" before the Shari'a District Court, 5th Shari'a District,
Cotabato City. 1

Petitioners allege ownership over a parcel of land located in Kalanganan Cotabato (now Bagua
Cotabato City), claiming that they inherited the property from their ancestor, Tuan Kali
Dimalen, who left his property to his two daughters, namely Remoreng Dimalen and Dominga
Dimalen Tampar. The latter in turn divided the property equally between them. 2 They also
allege that their ownership of the land was covered by OCT No. T-RP-478(548) issued by the
Register of Deeds of Cotabato City. But they added that due to the loss of the aforementioned
title, TCT No. (T-893)217 was issued on October 26, 1950 by the Register of Deeds of Cotabato
City in the names of herein petitioners Remoreng Dimalen and the heirs of Dominga Dimalen,
the latter having died in the interim. 3

The "Extrajudicial Settlement of Estate with Simultaneous Sale" sought to be annulled was
purportedly executed on June 11, 1947 between petitioners and respondent Esmael Usman,
whereby ownership of the land was conveyed to the latter for the sum of P1,000.00. The land
was subsequently sold by respondent Usman to his co-respondents Mohammad Datumanong
and Hadji Salik Nur. 4

Petitioners denied that they never entered into such an agreement with respondent Usman, and
claimed that their signatures in the document of sale were forged, and that the transaction
is null and void for not having been approved by the Provincial Governor, as required by law.
Respondents, on the other hand, denied having forged the signatures of the petitioners, and
controverted all the other claims made by petitioners.

The pre-trial conference failed to result in an amicable settlement between the parties.
Consequently, the Court proceeded to clarify and define the issues of the case, to wit:
1. Whether or not defendant (respondent) Usman forged the Extrajudicial Settlement of Estate with
Simultaneous Sale.
2. Whether or not defendants (respondents) Mohammad Datumanong and Hadji Salik Nur are purchasers
in good faith and for value. 5

The Court thereafter directed the parties to submit the statements ("shuhud") of at least two
witnesses to prove their claims. The sole witness of petitioners withdrew, prompting them to
manifest to the Court that they have no witnesses. Consequently, they challenged respondent
Usman to take an oath ("yamin") declaring that there is no truth to the claim of forgery
brought against him. The challenge was grounded on Section 7 of the Special Rules of
Procedure in Shari'a Courts (ljra-at-al-Mahakim al Shari'a) which provides as follows: (so
Plaintiffs had no witness here. They challenged the defendant to make an oath. Defendant now
refuses to take the oath. So dapat ifo plaintiffs ang judgment)

The plaintiff (mudda'i) has the burden of proof, and the taking of an oath ("yamin") rests upon the
defendant (mudda'aalai). If the plaintiff has no evidence to prove his claim, the defendant shall tak e an
oath and judgment shall be rendered in his favor by the Court. Should the defendant refuse to take an
oath, the plaintiff shall affirm his claim under oath in which case, judgment shall be rendered in
his favor. Should the plaintiff refuse to affirm his claim under oath, the case shall be dismissed.
(It is actually the defendant who should take the oath. The plaintiff is not actually required to take

Islamic Law Page 51

(It is actually the defendant who should take the oath. The plaintiff is not actually required to take
the oath, unless the defendant does not take the oath)

Respondent Usman opposed the challenge of petitioners, arguing that before he may be
required to take the oath, petitioners, as the mudda-i should first take the oath, since they have
no witnesses at all. 6 He contended that the plaintiffs should be required to present some
basis for their claim against him, in accordance with the elementary rules of evidence.

SDC: Respondent should take an oath

The Court overruled the opposition of respondent Usman, stating in its resolution dated June
25, 1986 that the "yamin" is sanctioned by the Special Rules of Procedure in Shari'a
Courts, and that "in classical Islamic legal theory, an individual cannot be a witness in
favor of his own case, and the only legal remedy for him is to demand an oath from the
defendant." Having thus ruled, the Court directed respondent Usman to take the oath, which
the latter eventually complied with, after his motion for reconsideration of the above Resolution
was denied.

SO USMAN DID TAKE AN OATH

Respondent Usman took the oath in the following form:
I, Esmael Usman, swear in the name of Allah Most Gracious, most Merciful and upon the Holy Quran that
I bought the land in question from the plaintiffs; that I have not forged or falsified the signatures of the
plaintiffs; and that God will curse me if I am not telling the truth. 7

SO SINCE USMAN TOOK THE OATH, JUDGMENT RENDERED IN HIS FAVOR

Having taken the oath as demanded by petitioners, judgment was rendered in favor of
respondents, and the complaint against them was dismissed.

Petitioners now assail the decision of the Shari'a court as having been rendered with grave
abuse of discretion. They contend that the cognizance by the court of the "yamin" of
respondent Usman is not only "unprocedural," but likewise amounts to a deprivation of
their constitutional right to be heard.

ISSUE
The threshold issue in this case, therefore, is whether or not the Shari'a court committed a
grave abuse of discretion in dismissing the complaint of petitioners by virtue of the
"yamin" taken by the defendant, namely, respondent Usman.

Under Section 1, Rule 131 of the Rules of Court of the Philippines. which may apply in a
suppletory manner in this case, 8 each party must prove his own affirmative allegations. When
the plaintiffs (petitioners herein) failed to adduce any evidence to support the complaint, then
the complaint must be dismissed. On this basis, the dismissal of the complaint by the Shari'a
court in this case should be upheld, but not because of the "yamin" taken by the respondent
Usman.

The Court shares the concern of petitioners in the use of the yamin in this proceeding, and for
that matter, before Philippine Shari'a courts. Section 7 of the Special Rules of Procedure
prescribed for Shari'a courts aforecited provides that if the plaintiff has no evidence to prove
his claim, the defendant shall take an oath and judgment shall be rendered in his favor by the
Court. On the other hand, should defendant refuse to take an oath, plaintiff may affirm his claim
under oath, in which case judgment shall be rendered in his favor.

Said provision effectively deprives a litigant of his constitutional right to due process. It
denies a party his right to confront the witnesses against him and to cross -examine them. 9 It
should have no place even in the Special Rules of Procedure of the Shari'a courts of the
country.

The possible deletion of this provision from the said rules should be considered. For this
purpose, a committee should be constituted by the Court to review the said special rules,
including the above discussed provision, so that appropriate amendments thereof may be
undertaken by the Court thereafter.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Narvasa, Cruz, Feliciano, Padilla, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.
Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Bidin and Sarmiento, Paras, JJ., concur in the
result.

Footnotes
1 Page 8, Rollo.
2 Pages 8-9, Ibid.

Islamic Law Page 52

2 Pages 8-9, Ibid.
3 Page 9, Ibid.
4 Page 10, Ibid.
5 Page 77, Original Record.
6 Page 68, Ibid.
7 Page 11, Rollo.
8 Section 16, Special Rules of Procedure in Shari'a courts promulgated by the Supreme Court on September 20, 1983.
9 Section 6, Rule 132, Rules of Court of the Philippines.

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Islamic Law Page 53

 Basically, this case is the probate proceedings before SDC of
MONTAÑER v. SDC a deceased who is allegedly not a Muslim. SDC initially
Monday, September 20, 2010 dismissed the case but reconsidered, and continued to hear
11:52 AM
the case. The petitioners now assail SDC's decision of
reconsidering the case. Court held that the jurisdiction of the
court is dependent on the allegations in the complaint - and
here it is alleged in the complaint that the decedent is a
Muslim so the SDC had jurisdiction. As to the allegation that
this is not an intestate proceeding, court differentiated
ordinary civil actions vs. Special proceedings and decided this
involved a special proceeding for intestate settlement. Third,
the petitioner assails the failure of the respondents to pay
the correct docket fees but the court said that the
petitioners failed to prove that the clerk of court incorrectly
assessed the docket fees to be paid by the petitioners. As to
the failure to set the MR for hearing, the court said that the
case falls under the exception from hearing since their
lawyer found out about the MR eventually so they still had
opportunity to be heard. Due process still preserved. Lastly,
as to filiation and prescription, the court held that as the SDC
as probate court has the authority to determine who the
heirs of the decedent are, it should exercise jurisdiction to
determine the same.

Agama Court
-ADR laws not applicable (RA 876 and 9285)
-so Agama Arbitration court is restricted only to 5 cases
Gr 174975 january 20 2009 Fontaniel? v. SDC: jurisdiction of Shari'a courts over none muslims

G.R. No. 174975 January 20, 2009

LUISA KHO MONTAÑER, ALEJANDRO MONTAÑER, JR., LILLIBETH MONTAÑER-BARRIOS, AND
RHODORA ELEANOR MONTAÑER-DALUPAN, Petitioners,
vs.
SHARI'A DISTRICT COURT, FOURTH SHARI'A JUDICIAL DISTRICT, MARAWI CITY, LILING DISANGCOPAN,
AND ALMAHLEEN LILING S. MONTAÑER, Respondents.
DE C I S I O N
PUNO, C.J.:
This Petition for Certiorari and Prohibition seeks to set aside the Orders of the Shari’a District Court,
Fourth Shari’a Judicial District, Marawi City, dated August 22, 2006 1 and September 21, 2006. 2

On August 17, 1956, petitioner Luisa Kho Montañer, a Roman Catholic, married Alejandro Montañer,
Sr. at the Immaculate Conception Parish in Cubao, Quezon City. 3 Petitioners Alejandro Montañer, Jr.,
Lillibeth Montañer-Barrios, and Rhodora Eleanor Montañer-Dalupan are their children. 4 On May 26,
1995, Alejandro Montañer, Sr. died. 5

On August 19, 2005, private respondents Liling Disangcopan and her daughter, Almahleen Liling S.
Montañer, both Muslims, filed a "Complaint" for the judicial partition of properties before the Shari’a
District Court.6 The said complaint was entitled "Almahleen Liling S. Montañer and Liling M. Disangcopan
v. the Estates and Properties of Late Alejandro Montañer, Sr., Luisa Kho Montañer, Lillibeth K.
Montañer, Alejandro Kho Montañer, Jr., and Rhodora Eleanor K. Montañer," and docketed as "Special
Civil Action No. 7-05."7 In the said complaint, private respondents made the following allegations:
(1) in May 1995, Alejandro Montañer, Sr. died;
(2) the late Alejandro Montañer, Sr. is a Muslim;
(3) petitioners are the first family of the decedent;
(4) Liling Disangcopan is the widow of the decedent;
(5) Almahleen Liling S. Montañer is the daughter of the decedent; and
(6) the estimated value of and a list of the properties comprising the estate of the decedent. 8
Private respondents prayed for the Shari’a District Court to order, among others, the following:
(1) the partition of the estate of the decedent; and
(2) the appointment of an administrator for the estate of the decedent. 9

Islamic Law Page 54

Petitioners filed an Answer with a Motion to Dismiss mainly on the following grounds:
(1) the Shari’a District Court has no jurisdiction over the estate of the late Alejandro Montañer, Sr.,
because he was a Roman Catholic;
(2) private respondents failed to pay the correct amount of docket fees; and
(3) private respondents’ complaint is barred by prescription, as it seeks to establish filiation between
Almahleen Liling S. Montañer and the decedent, pursuant to Article 175 of the Family Code .10

SDC: DISMISSED COMPLAINT BY DIOSANGCOPAN

On November 22, 2005, the Shari’a District Court dismissed the private respondents’ complaint. The
district court held that Alejandro Montañer, Sr. was not a Muslim, and its jurisdiction extends only to
the settlement and distribution of the estate of deceased Muslims. 11

On December 12, 2005, private respondents filed a Motion for Reconsideration.12 On December 28,
2005, petitioners filed an Opposition to the Motion for Reconsideration, alleging that the motion for
reconsideration lacked a notice of hearing.13 On January 17, 2006, the Shari’a District Court denied
petitioners’ opposition.14 Despite finding that the said motion for reconsideration "lacked notice of
hearing," the district court held that such defect was cured as petitioners "were notified of the existence
of the pleading," and it took cognizance of the said motion. 15 The Shari’a District Court also reset the
hearing for the motion for reconsideration. 16

SDC #2: RECONSIDERED 1st DECISION: allowed additional evidence and continuation of trial!
In its first assailed order dated August 22, 2006, the Shari’a District Court reconsidered its order of
dismissal dated November 22, 2005. 17 The district court allowed private respondents to adduce further
evidence.18
In its second assailed order dated September 21, 2006, the Shari’a District Court ordered the
continuation of trial, trial on the merits, adducement of further evidence, and pre -trial conference. 19

SO NOW PETITION FOR CERTIORARI

Seeking recourse before this Court, petitioners raise the following issues:
I.
RESPONDENT SHARI’A DISTRICT COURT – MARAWI CITY LACKS JURISDICTION OVER PETITIONERS
WHO ARE ROMAN CATHOLICS AND NON-MUSLIMS.
II.
RESPONDENT SHARI’A DISTRICT COURT – MARAWI CITY DID NOT ACQUIRE JURISDICTION OVER
"THE ESTATES AND PROPERTIES OF THE LATE ALEJANDRO MONTAÑER, SR." WHICH IS NOT A
NATURAL OR JURIDICAL PERSON WITH CAPACITY TO BE SUED.
III.
RESPONDENT SHARI’A DISTRICT COURT DID NOT ACQUIRE JURISDICTION OVER THE COMPLAINT
OF PRIVATE RESPONDENTS AGAINST PETITIONERS DUE TO NON-PAYMENT OF THE FILING AND
DOCKETING FEES.
IV.
RESPONDENT SHARI’A DISTRICT COURT—MARAWI CITY COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT DENIED THE OPPOSITION OF
PETITIONERS AND THEN GRANTED THE MOTION FOR RECONSIDERATION OF RESPONDENTS LILING
DISANGCOPAN, ET AL. WHICH WAS FATALLY DEFECTIVE FOR LACK OF A "NOTICE OF HEARING."
V.
RESPONDENT SHARI’A DISTRICT COURT—MARAWI CITY COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT SET SPL. CIVIL ACTION 7-05 FOR
TRIAL EVEN IF THE COMPLAINT PLAINLY REVEALS THAT RESPONDENT ALMAHLEEN LILING S.
MONTAÑER SEEKS RECOGNITION FROM ALEJANDRO MONTAÑER, SR. WHICH CAUSE OF ACTION
PRESCRIBED UPON THE DEATH OF ALEJANDRO MONTAÑER, SR. ON MAY 26, 1995.

COMMENT
In their Comment to the Petition for Certiorari, private respondents stress that the Shari’a District Court
must be given the opportunity to hear and decide the question of whether the decedent is a Muslim in
order to determine whether it has jurisdiction.20

Jurisdiction: Settlement of the Estate of Deceased Muslims

Petitioners’ first argument, regarding the Shari’a District Court’s jurisdiction, is dependent on a question
of fact, whether the late Alejandro Montañer, Sr. is a Muslim. Inherent in this argument is the premise

Islamic Law Page 55

of fact, whether the late Alejandro Montañer, Sr. is a Muslim. Inherent in this argument is the premise
that there has already been a determination resolving such a question of fact. It bears emphasis,
however, that the assailed orders did not determine whether the decedent is a Muslim. The assailed
orders did, however, set a hearing for the purpose of resolving this issue.

Article 143(b) of Presidential Decree No. 1083, otherwise known as the Code of Muslim Personal Laws of
the Philippines, provides that the Shari’a District Courts have exclusive original jurisdiction over the
settlement of the estate of deceased Muslims:
ARTICLE 143. Original jurisdiction. — (1) The Shari'a District Court shall have exclusive original
jurisdiction over:
xxx x
(b) All cases involving disposition, distribution and settlement of the estate of deceased Muslims,
probate of wills, issuance of letters of administration or appointment of administrators or executors
regardless of the nature or the aggregate value of the property.

The determination of the nature of an action or proceeding is controlled by the averments and
character of the relief sought in the complaint or petition .21 The designation given by parties to their
own pleadings does not necessarily bind the courts to treat it according to the said designation. Rather
than rely on "a falsa descriptio or defective caption," courts are "guided by the substantive averments of
the pleadings."22

Although private respondents designated the pleading filed before the Shari’a District Court as a
"Complaint" for judicial partition of properties, it is a petition for the issuance of letters of
administration, settlement, and distribution of the estate of the decedent. It contains sufficient
jurisdictional facts required for the settlement of the estate of a deceased Muslim, 23 such as the fact of
Alejandro Montañer, Sr.’s death as well as the allegation that he is a Muslim. The said petition also
contains an enumeration of the names of his legal heirs, so far as known to the private respondents, and
a probable list of the properties left by the decedent, which are the very properties sought to be settled
before a probate court. Furthermore, the reliefs prayed for reveal that it is the intention of the private
respondents to seek judicial settlement of the estate of the decedent. 24 These include the following: (1)
the prayer for the partition of the estate of the decedent; and (2) the prayer for the appointment of an
administrator of the said estate.

We cannot agree with the contention of the petitioners that the district court does not have jurisdiction
over the case because of an allegation in their answer with a motion to dismiss that Montañer, Sr. is not
a Muslim. Jurisdiction of a court over the nature of the action and its subject matter does not depend
upon the defenses set forth in an answer 25 or a motion to dismiss. 26 Otherwise, jurisdiction would
depend almost entirely on the defendant 27 or result in having "a case either thrown out of court or its
proceedings unduly delayed by simple stratagem.28 Indeed, the "defense of lack of jurisdiction which is
dependent on a question of fact does not render the court to lose or be deprived of its jurisdiction." 29

The same rationale applies to an answer with a motion to dismiss. 30 In the case at bar, the Shari’a
District Court is not deprived of jurisdiction simply because petitioners raised as a defense the
allegation that the deceased is not a Muslim. The Shari’a District Court has the authority to hear and
receive evidence to determine whether it has jurisdiction, which requires an a priori determination that
the deceased is a Muslim. If after hearing, the Shari’a District Court determines that the deceased was
not in fact a Muslim, the district court should dismiss the case for lack of jurisdiction.

Special Proceedings
The underlying assumption in petitioners’ second argument, that the proceeding before the Shari’a
District Court is an ordinary civil action against a deceased person, rests on an erroneous understanding
of the proceeding before the court a quo. Part of the confusion may be attributed to the proceeding
before the Shari’a District Court, where the parties were designated either as plaintiffs or defendants
and the case was denominated as a special civil action. We reiterate that the proceedings before the
court a quo are for the issuance of letters of administration, settlement, and distribution of the estate
of the deceased, which is a special proceeding. Section 3(c) of the Rules of Court (Rules) defines a
special proceeding as "a remedy by which a party seeks to establish a status, a right, or a particular fact."
This Court has applied the Rules, particularly the rules on special proceedings, for the settlement of the
estate of a deceased Muslim. 31 In a petition for the issuance of letters of administration, settlement, and
distribution of estate, the applicants seek to establish the fact of death of the decedent and later to be
duly recognized as among the decedent’s heirs, which would allow them to exercise their right to

Islamic Law Page 56

duly recognized as among the decedent’s heirs, which would allow them to exercise their right to
participate in the settlement and liquidation of the estate of the decedent. 32 Here, the respondents seek
to establish the fact of Alejandro Montañer, Sr.’s death and, subsequently, for private respondent
Almahleen Liling S. Montañer to be recognized as among his heirs, if such is the case in fact.
Petitioners’ argument, that the prohibition against a decedent or his estate from being a party
defendant in a civil action 33 applies to a special proceeding such as the settlement of the estate of the
deceased, is misplaced. Unlike a civil action which has definite adverse parties, a special proceeding has
no definite adverse party. The definitions of a civil action and a special proceeding, respectively, in the
Rules illustrate this difference. A civil action, in which "a party sues another for the enforcement or
protection of a right, or the prevention or redress of a wrong" 34 necessarily has definite adverse parties,
who are either the plaintiff or defendant. 35 On the other hand, a special proceeding, "by which a party
seeks to establish a status, right, or a particular fact," 36 has one definite party, who petitions or applies
for a declaration of a status, right, or particular fact, but no definite adverse party. In the case at bar, it
bears emphasis that the estate of the decedent is not being sued for any cause of action. As a special
proceeding, the purpose of the settlement of the estate of the decedent is to determine all the assets of
the estate,37 pay its liabilities, 38 and to distribute the residual to those entitled to the same. 39

Docket Fees
Petitioners’ third argument, that jurisdiction was not validly acquired for non -payment of docket fees, is
untenable. Petitioners point to private respondents’ petition in the proceeding before the court a quo,
which contains an allegation estimating the decedent’s estate as the basis for the conclusion that what
private respondents paid as docket fees was insufficient. Petitioners’ argument essentially involves two
aspects: (1) whether the clerk of court correctly assessed the docket fees; and (2) whether private
respondents paid the correct assessment of the docket fees.

Filing the appropriate initiatory pleading and the payment of the prescribed docket fees vest a trial court
with jurisdiction over the subject matter. 40 If the party filing the case paid less than the correct amount
for the docket fees because that was the amount assessed by the clerk of court, the responsibility of
making a deficiency assessment lies with the same clerk of court. 41 In such a case, the lower court
concerned will not automatically lose jurisdiction, because of a party’s reliance on the clerk of court’s
insufficient assessment of the docket fees. 42 As "every citizen has the right to assume and trust that a
public officer charged by law with certain duties knows his duties and performs them in accordance with
law," the party filing the case cannot be penalized with the clerk of court’s insufficient assessment. 43
However, the party concerned will be required to pay the deficiency. 44

In the case at bar, petitioners did not present the clerk of court’s assessment of the docket fees.
Moreover, the records do not include this assessment. There can be no determination of whether
private respondents correctly paid the docket fees without the clerk of court’s assessment.

Exception to Notice of Hearing

Petitioners’ fourth argument, that private respondents’ motion for reconsideration before the Shari’a
District Court is defective for lack of a notice of hearing, must fail as the unique circumstances in the
present case constitute an exception to this requirement. The Rules require every written motion to be
set for hearing by the applicant and to address the notice of hearing to all parties concerned. 45 The Rules
also provide that "no written motion set for hearing shall be acted upon by the court without proof of
service thereof."46 However, the Rules allow a liberal construction of its provisions "in order to promote
[the] objective of securing a just, speedy, and inexpensive disposition of every action and proceeding." 47
Moreover, this Court has upheld a liberal construction specifically of the rules of notice of hearing in
cases where "a rigid application will result in a manifest failure or miscarriage of justice especially if a
party successfully shows that the alleged defect in the questioned final and executory judgment is not
apparent on its face or from the recitals contained therein." 48 In these exceptional cases, the Court
considers that "no party can even claim a vested right in technicalities," and for this reason, cases
should, as much as possible, be decided on the merits rather than on technicalities. 49

The case at bar falls under this exception. To deny the Shari’a District Court of an opportunity to
determine whether it has jurisdiction over a petition for the settlement of the estate of a decedent
alleged to be a Muslim would also deny its inherent power as a court to control its process to ensure
conformity with the law and justice. To sanction such a situation simply because of a lapse in fulfilling
the notice requirement will result in a miscarriage of justice.

In addition, the present case calls for a liberal construction of the rules on notice of hearing, because the

Islamic Law Page 57

In addition, the present case calls for a liberal construction of the rules on notice of hearing, because the
rights of the petitioners were not affected. This Court has held that an exception to the rules on notice
of hearing is where it appears that the rights of the adverse party were not affected .50 The purpose for
the notice of hearing coincides with procedural due process, 51 for the court to determine whether the
adverse party agrees or objects to the motion, as the Rules do not fix any period within which to file a
reply or opposition. 52 In probate proceedings, "what the law prohibits is not the absence of previous
notice, but the absolute absence thereof and lack of opportunity to be heard." 53 In the case at bar, as
evident from the Shari’a District Court’s order dated January 17, 2006, petitioners’ counsel received a
copy of the motion for reconsideration in question. Petitioners were certainly not denied an opportunity
to study the arguments in the said motion as they filed an opposition to the same. Since the Shari’a
District Court reset the hearing for the motion for reconsideration in the same order, petitioners were
not denied the opportunity to object to the said motion in a hearing. Taken together, these
circumstances show that the purpose for the rules of notice of hearing, procedural process, was duly
observed.

Prescription and Filiation

Petitioners’ fifth argument is premature. Again, the Shari’a District Court has not yet determined
whether it has jurisdiction to settle the estate of the decedent. In the event that a special proceeding for
the settlement of the estate of a decedent is pending, questions regarding heirship, including
prescription in relation to recognition and filiation, should be raised and settled in the said proceeding. 54
The court, in its capacity as a probate court, has jurisdiction to declare who are the heirs of the
decedent.55 In the case at bar, the determination of the heirs of the decedent depends on an affirmative
answer to the question of whether the Shari’a District Court has jurisdiction over the estate of the
decedent.

IN VIEW WHEREOF, the petition is DENIED. The Orders of the Shari’a District Court, dated August 22,
2006 and September 21, 2006 respectively, are AFFIRMED. Cost against petitioners.
SO ORDERED.
REYNATO S. PUNO
Chief Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA ADOLFO S. AZCUNA
Associate Justice Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
CE R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution, 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
Footnotes
1 Rollo, pp. 110-111.
2 Id. at 115.
3 Id. at 60.
4 Id. at 63-65.
5 Id. at 73.
6 Id. at 74-82.
7 Id. at 74.
8 Id. at 75-77.
9 Id. at 78-79.
10 Id. at 83, 89-96.
11
Id. at 99-101.
12 Id. at 102-109.
13 Id. at 128-129.
14 Id. at 138.
15 Id.
16
Id.

Islamic Law Page 58

16 Id.
17 Id. at 110-111.
18
Id. at 111.
19
Id. at 115.
20
Id. at 191.
21
Vda. de Manalo v. Court of Appeals, 402 Phil. 152, 161 (2001).
22
Heirs of Celso Amarante v. Court of Appeals, G.R. No. 76386, May 21, 1990, 185 SCRA 585, 594.
23
Musa v. Moson, G.R. No. 95574, August 16, 1991, 200 SCRA 715, 719.
24
Vda. de Manalo v. Court of Appeals, supra note 21, at 162.
25
Salas v. Castro, G.R. No. 100416, December 2, 1992, 216 SCRA 198, 204.
26
Hilado v. Chavez, G.R. No. 134742, September 22, 2004, 438 SCRA 623, 641.
27
Salas v. Castro, supra note 25.
28 Vda. de Manalo v. Court of Appeals, supra note 21, at 163.
29 Salas v. Castro, supra note 25.
30 Mamadsual v. Moson, G.R. No. 92557, September 27, 1990, 190 SCRA 82, 87.

In the abovementioned case, the Court held that the Special Rules of Procedure in Shari’a Courts, Ijra -at-
al-Mahakim al Shari’a, proscribe "the filing of a motion to dismiss in lieu of an answer which would stop
the running of the period to file an answer and cause undue delay."
31 Musa v. Moson, supra note 23, at 721-722.
32 Vda. de Manalo v. Court of Appeals, supra note 21, at 165.
33 Ventura v. Hon. Militante, 374 Phil. 562 (1999).
34
Rules of Court, Rule 1, Sec. 3, par. (a).
35 Rules of Court, Rule 3, Sec. 1.
36 Rules of Court, Rule 1, Sec. 3, par. (c).
37 Pacific Banking Corporation Employees Organization v. Court of Appeals , 312 Phil. 578, 593 (1995).
38 Id.
39
Vda. de Manalo v. Court of Appeals, supra note 21, at 165.
40 Sun Insurance Office, Ltd. v. Asuncion, G.R. Nos. 79937-38, February 13, 1989, 170 SCRA 274, 285.
41 Rivera v. Del Rosario, G.R. No. 144934, January 15, 2004, 419 SCRA 626, 635.
42 Id.
43 Ayala Land, Inc. v. Spouses Carpo, 399 Phil. 327, 334 (2000), citing Segovia v. Barrios, 75 Phil. 764, 767

(1946).
44 Fil-Estate Golf and Development, Inc. v. Navarro, G.R. No. 152575, June 29, 2007, 526 SCRA 51, 61.
45 Rules of Court, Rule 15, Secs. 4-5.
46 Rules of Court, Rule 15, Sec. 6.
47 Rules of Court, Rule 2, Sec. 6.
48 Vlason Enterprises Corporation v. Court of Appeals, 369 Phil. 269, 299 (1999).
49 Goldloop Properties, Inc. v. Court of Appeals, G.R. No. 99431, August 11, 1992, 212 SCRA 498, 504.
50 Victory Liner, Inc. v. Malinias, G.R. No. 151170, May 29, 2007, 523 SCRA 279, 291-292.
51 Vlason Enterprises Corporation v. Court of Appeals, supra note 48, at 299-300.
52 Victory Liner, Inc. v. Malinias, supra note 50, at 292.
53 De Borja, et al. v. Tan, et al., 93 Phil. 167, 171 (1953).
54 Portugal v. Portugal-Beltran, G.R. No. 155555, August 16, 2005, 467 SCRA 184, 198.
55
Uriarte v. Court of First Instance Negros Occidental, et al. , 144 Phil. 205, 215-216 (1970).

Pasted from <http://www.lawphil.net/judjuris/juri2009/jan2009/gr_174975_2009.html >

Islamic Law Page 59

October 04 Islamic Law lecture (2010) - tips on how to answer his
exam
Monday, October 04, 2010
10:06 AM

CMPL
-enacted 1977
-1973 Constitution applicable then
-look at purposes of the code: the 1973 Consti cited
-if relate to 1987 constitution, relate to article 2 section 22 (?), Art 14 section 17 (pertinent consti
provisions relating to enactment or codification of CMPL)
-Art. 2: section 11 now replaced...so update your copies
go to letter a: for purposes of situating Muslim personal law w/n Philippine Law
(so Muslim law now part of Philippine law: absolute or qualified?)
So: does the Philippine does absolute divorce: T or F? Si sir T: because we have absolute divorce
under CMPL which is now part of the law of the land (so qualify your answer)
-so absolute or qualified? Qualified: Only PERSONAL LAWS (see letter b and c)
-recognition of the legal system of Muslims in the Philippines has to be qualiifed to Personal Law. Why
mention legal system of Muslims: when you interpret the Personal laws of Muslims, refer to Muslim
laws. Plus refer to legal system of MUSLIMS in the Philippines (which is focused on their own PERSONAL
LAW)
...if you look at RA 9054: ORGANIC LAW OF ARMM
Try to look for it and study Section 5, Article 8: the way the sections are subdivided, it is similar to
the Constitution
Customs, Traditions...The Shari'ahC shall have jurisdiction over cases involving PERSONAL, FAMILY
and PROPERTY Relations and Commercial transactions in additional to jurisdiction over CRIMINAL
Cases involving Muslims (so more extensive than the CMPL)
...reconcile this with provisions of CMPL:
• ARMM Organic Act only apply to Muslims in ARMM
THERE's also an Article on the JuDICIARY: Art 8: odd because it says there that in the event of
conflict between provisions of Muslim law and Tribal law, the latter shall prevail (TRIBAL LAW
PREVAILS). This is odd because the particular usually prevails over the general. So...huh?
....if you look at ORGANIC LAW OF ARMM v. CMPL: CMPL can be classified as a national law and
ORGANIC ACT OF ARMM can be considered a law of local application: how to reconcile:
• Interpret it so that CMPL would apply
• No law yet on commercial transactions, as well as criminal liability involving Muslims - even
in ARMM -so difficult to apply the ARMM ORGANIC ACT and no conflict as of now

Construction and interpretation of Muslim Laws

-CMPL: Primary sources of Muslim Law
-ARMM Law: Section 23: Specified: Quran, Sunnah, Hiyas, ....(another one...)

Legal personality
Juridical and
Capacity to act

Juridical: defective and perfected

Defective: during conception
Perfected: During birth

Art 10 CMPL: no distinction for children with Intrauterine life of less than 7 months
But NCC provides distinction
If born alive
Plus alive 24 hours after

Islamic Law Page 60

 Plus alive 24 hours after

Contraception: counteracts conception

Vs. Abortion (which is prohibited)

Islams allow contraception: legalized later in Islamic law

But 2 conditions:
1. When a man does it, he should do so w/ wife's permission (mutual) - why: your partner may want
a child - vise versa
2. It should not result to permanent sterility: you still capable of bearing the child

Abortion: is it prohibited

PGH (true problem):

1. You're supposed to be a lawyer. 27 year old diagnosed w/ breast cancer. 12th week of first pregnancy.
Immediately start chemotheraphy. Benefit patient, endanger fetus. Husband convinces wife to
terminate pregnancy. CANNOT ALLOW ABORTION BECAUSE MOTHER WOULD NOT DIE BECAUSE OF
CHILDBIRTH
2. 20 year old lady with heart disease advised not to get pregnant. But still got pregnant. Cardiologist says
that if she continued with pregnancy, succumb heart failure. ALLOW ABORTION BECAUSE MOTHER IS IN
DANGER OF DEATH.

Under present laws, what would your answer be?

RH Bill is the answer!
If the cut and dry approach be applied, these people would be guilty of abortion

Discuss this in relation to the rights of the unbborn child

Islamic law does not allow abortion.

A child upon conception already has a defective juridical capacity. So had it been born later, entitled to
cer4tain rights upon perfection of juridical capacity. So upon conception, considered as having capacity.

So under Islamic Law, is Abortion allowed and are there exceptions:

Islam allows it: if there's danger in the mother's life. REAL AND EMMINENT DANGER CERTIFIED BY A
PHYSICIAN! PLUS PERIOD BUT DIFFERS:
Mother: perfected juridical capacity
Fetus: Defective juridical capacity

SHAFI: 1 MONTH OF PREGNANCY

...: RIGHT AFTER CONCEPTION
HANAFIS (MOST LIBERAL): AS LONG AS THE FETUS HAS NOT REACHED 4 MONTHS

ABORTION ALLOWED TO SAVE THE LIFE OF THE MOTHER. So in the 2nd case, justified as long as done
before 4th month. As to the first case, not eminent danger due to child birth so cannot abort + lagpas 4
months. Choice is given to the couple to proceed to the Chemotheraphy - but not the choice to abort!

Islam puts emphasis on the preservation of life.

Art 4, paragraph 2: standard treatises and works of muslim law

Please take note that after juridical capacity...

Capacity to act:
1. Restricted: embryo
2. Full: upon birth

Islamic Law Page 61

But capacity to act may be restricted

Age of puberty: determines full enjoyment of capacity to act

So does this mean that the minor would be liable criminally?

STILL NO?
RPC: Under 15, minor so not criminally liable
(note that ONLY PERSONAL LAW OF MUSLIMS RECOGNIZED)

Sir: upon reaching the age of puberty, a child can be sanctioned under Muslim Laws (note not RPC)
-upon reaching age of puberty, reach age of reason (can distinguish right or wrong)
-liable if done something wrong, rewarded if done something right

Can FULL CAPACITY TO ACT be restricted again after reaching age of Majority? YES...
-there are actually many times in our lives, even if we reach age of maturity, when our legal capacity is
restricted:
• Awarid: restrictions
i. By nature: minority, insanity, idiocy, maturity of the mind, forgetfullness, slumber, fainting,
disease affecting the mind, death illness, menstruation, drunkenness (?)
Menstruation: the blood is unclean, not the woman
-restriction actually is not as to civil acts, but spiritual acts (fast, not allowed to pray - should
make up for the missed spiritual acts)
GUHAL? Takes a bath after menstruation
-what civil capacity restricted by menstruation: divorce by talaq
ii. By man himself: intoxication, ignorance, jest, coercion, travelling (peculiar to Muslim law -
need not fast if travelling so restriction on capability to fast) - but not compulsory
-
• Aridh: plural

Islamic Law Page 62

CMPL Original Copy
Monday, October 04, 2010
10:21 AM

PRESIDENTIAL DECREE NO. 1083

.

A DECREE TO ORDAIN AND PROM ULGATE A CODE RECOGNIZING THE SYSTEM OF

FILIPINO M USLIM LAW S, CODIFYING M USLIM PERSONAL LAW S, AND PROVIDING FOR
ITS ADM INISTRATION AND FOR OTHER PURPOSES. .chan robles virtual law library
.chan robles virtual law library
W HEREAS, pursuant to the spirit of the provision of the Constitution of the Philippines
that, in order to promote the advancement and effective participation of the National
Cultural Communities in the building of the New Society, the State shall consider their
customs, traditions, beliefs and interests in the formulation and implementation of its
policies;.chan robles virtual law library
W HEREAS, Islamic law and its principles of equity and justice, to which the Filipino
M uslim communities adhere, provide an essential basis for the fuller development of said
communities in relation to the search for harmonious relations of all segments of the
Filipino nation to enhance national unity;.chan robles virtual law library
W HEREAS, the enforcement, with the full sanction of the State, of the legal system of
the Filipino M uslims shall redound to the attainment of a more ordered life amongst
them;.chan robles virtual law library
W HEREAS, it is the intense desire of the New Society to strengthen all the ethno-
linguistic communities in the Philippines within the context of their respective ways of
life in order to bring about a cumulative result satisfying the requirements of national
solidarity and social justice;
NOW , THEREFORE, I, FERDINAND E. M ARCOS, President of the Republic of the
Philippines, by virtue of the powers vested in me by the Constitution of the Philippines,
do hereby ordain and promulgate the "Code of M uslim Personal Laws of the Philippines"
as part of the law of the land hereby decree:
.chan robles virtual law library
BOOK ONE
General Provisions
.chan robles virtual law library
TITLE I
Title and Purposes of Code .chan robles virtual law library
Article 1. Title. — This decree shall be known as the "Code of Muslim Personal Laws of
the Philippines."
Art. 2. Purpose of Code. — Pursuant to Section 11 of Article XV of the Constitution of
the Philippines, which provides that "The State shall consider the customs, traditions,
beliefs and interests of national cultural communities in the formulation and
implementation of state policies," this Code:
(a)Recognizes the legal system of the M uslims in the Philippines as part of the law of the
land and seeks to make Islamic institutions more effective;
(b)Codifies M uslim personal laws; and .chan robles virtual law library
(c)Provides for an effective administration and enforcement of M uslim personal laws
among M uslims.
chan robles virtual law library
TITLE II
Construction of Code and Definition of Terms
chan robles virtual law library
Art. 3. Conflict of provisions. — (1) In case of conflict between any provision of this
Code and laws of general application, the former shall prevail.
(2) Should the conflict be between any provision of this Code and special laws or laws of
local application, the latter shall be liberally construed in order to carry out the former.
(3) The provisions of this Code shall be applicable only to M uslims and nothing herein
shall be construed to operate to the prejudice of a non-M uslim.
Art. 4. Construction and interpretation. — (1) In the construction and interpretation of

Islamic Law Page 63

this Code and other M uslim laws, the court shall take into consideration the primary
sources of M uslim law.
(2) Standard treatises and works on M uslim law and jurisprudence shall be given
persuasive weight in the interpretation of M uslim law.
Art. 5. Proof of M uslim law and 'ada. — M uslim law and 'ada not embodied in this Code
shall be proven in evidence as a fact. No 'ada which is contrary to the Constitution of the
Philippines, this Code, M uslim law, public order, public policy or public interest shall be
given any legal effect. .chan robles virtual law library
Art. 6. Conflict in Islamic schools of law. — (1) Should there be any conflict among the
orthodox (Sunni) M uslim schools of law (M adhahib), that which is in consonance with the
Constitution of the Philippines, this Code, public order, public policy and public interest
shall be given effect.
(2) The M uslim schools of law shall, for purposes of this Code, be the Hanfi, the Hanbali,
the M aliki and the Shafi'i.
Art. 7. Definition of terms. — Unless the context otherwise provides:
(a) "Agama Arbitration Council" means a body composed of the Chairman and a
representative of each of the parties to constitute a council to take all necessary steps
for resolving conflicts between them.
(b) "Ada" means customary law.
(c) "General Register" means the General Register of marriages, divorces, revocation of
divorces, conversion and such other deeds or instruments kept by the Registrar under
this Code..chan robles virtual law library
(d) "Ihram" signifies the state of ritual consecration of a person while on pilgrimage to
M ecca.
(e) "M adhhab" (plural, M adhahib) means any of the four orthodox (Sunni) schools of
M uslim law.
(f) "M onth" means a period of thirty days.
(g) "M uslim" is a person who testifies to the oneness of God and the Prophethood of
M uhammad and professes Islam.
(h) "M uslim Law" (Shari'a) refers to all the ordinances and regulations governing M uslims
as found principally in the Qur'an and the Hadith.
(i) "M uslim Personal Law" includes all laws relating to personal status, marriage and
divorce, matrimonial and family relations, succession and inheritance, and property
relations between spouses as provided for in this Code.
.chan robles virtual law library
BOOK TW O
Persons and Family Relations .chan robles virtual law library TITLE I
Civil Personality (Shakhsiyah M adaniya) .chan robles virtual law library
Art. 8. Legal capacity. — Juridical capacity, which is the fitness to be the subject of
legal relations, is inherent in every natural person and is lost only through death.
Capacity to act, which is the power to do acts with legal effect, is acquired and may be
lost.
Art. 9. Restrictions on capacity. — The following circumstances, among others, modify
or limit capacity to act: age, insanity, imbecility, the state of being deaf-mute, the
condition of death-illness (marad-ul-maut), penalty, prodigality, absence, family
relations, alienage, insolvency, and trusteeship. The consequences of these
circumstances are governed by this Code and other Islamic laws and, in a suppletory
manner, by other laws..chan robles virtual law library
Art. 10. Personality, how acquired. — Birth determines personality; but the conceived
child shall be considered born for all purposes that are favorable to it, provided it be born
alive, however, briefly, at the time it is completely delivered from the mother's womb.
Art. 11. Extinction of personality. — (1) Civil personality is extinguished by death. The
effect of death upon the rights and obligations of a deceased person is determined by
this Code, by contract, and by will.
(2) After an absence of seven years, it being unknown whether or not the absentee still
lives, he shall be presumed dead.
Art. 12. Simultaneous death. — If, as between two or more persons who are called to
succeed each other, there is a doubt as to which of them died first, whoever alleges the
death of one prior to the other shall prove the same; in the absence of such proof, it is
presumed that they died at the same time and there shall be no transmission of rights
from one to the other. However, the successional rights of their respective heirs shall
not be affected..chan robles virtual law library
.chan robles virtual law library

Islamic Law Page 64

.chan robles virtual law library
TITLE II
M arriage and Divorce .chan robles virtual law library CHAPTER I
Applicability Clause .chan robles virtual law library
Art. 13. Application. — (1) The provisions of this Title shall apply to marriage and
divorce wherein both parties are M uslims, or wherein only the male party is a M uslim
and the marriage is solemnized in accordance with M uslim law or this Code in any part
of the Philippines.
(2) In case of marriage between a M uslim and a non-M uslim, solemnized not in
accordance with M uslim law or this Code, the Civil Code of the Philippines shall
apply. .chan robles virtual law library
(3) Subject to the provisions of the preceding paragraphs, the essential requisites and
legal impediments to marriage, divorce, paternity and filiation, guardianship and
custody of minors, support and maintenance, claims for customary dower (mahr),
betrothal, breach of contract to marry, solemnization and registration of marriage and
divorce, rights and obligations between husband and wife parental authority, and the
properly relations between husband and wife shall be governed by this Code and other
applicable M uslim laws.
.
CHAPTER II
M arriage (Nikah) .
Section 1. Requisites of M arriage. —
Art. 14. Nature. — M arriage is not only a civil contract but a social institution. Its
nature, consequences and incidents are governed by this Code and the Shari'a and not
subject to stipulation, except that the marriage settlements may to a certain extent fix
the property relations of the spouses.
Art. 15. Essential requisites. — No marriage contract shall be perfected unless the
following essential requisites are compiled with:
(a) Legal capacity of the contracting parties;
(b) M utual consent of the parties freely given;
(c) Offer (ijab) and acceptance (qabul) duly witnessed by at least two competent persons
after the proper guardian in marriage (wali) has given his consent; and
(d) Stipulation of customary dower (mahr) duly witnessed by two competent persons.
Art. 16. Capacity to contract marriage. — (1) Any M uslim male at least fifteen years of
age and any M uslim female of the age of puberty or upwards and not suffering from any
impediment under the provisions of this Code may contract marriage. A female is
presumed to have attained puberty upon reaching the age of fifteen.
(2) However, the Shari'a District Court may, upon petition of a proper wali, order the
solemnization of the marriage of a female who though less than fifteen but not below
twelve years of age, has attained puberty.
(3) M arriage through a wali by a minor below the prescribed ages shall be regarded as
betrothal and may be annulled upon the petition of either party within four years after
attaining the age of puberty, provided no voluntary cohabitation has taken place and the
wali who contracted the marriage was other than the father or paternal grandfather..chan
robles virtual law library
Art. 17. M arriage ceremony. — No particular form of marriage ceremony is required but
the ijab and the gabul in marriage shall be declared publicly in the presence of the
person solemnizing the marriage and two competent witnesses. This declaration shall be
set forth in an instrument in triplicate, signed or marked by the contracting parties and
said witnesses, and attested by the person solemnizing the marriage. One copy shall be
given to the contracting parties and another sent to the Circuit Registrar by the
solemnizing officer who shall keep the third.
Art. 18. Authority to solemnize marriage. — M arriage may be solemnized: .chan robles
virtual law library
(a) By the proper wali of the woman to be wedded;
(b) Upon authority of the proper wali, by any person who is competent under M uslim law
to solemnize marriage; or
(c) By the judge of the Shari'a District Court of Shari'a Circuit Court or any person
designated by the judge, should the proper wali refuse without justifiable reason, to
authorize the solemnization.
Art. 19. Place of solemnization. — M arriage shall be solemnized publicly in any mosque,
office of the Shari'a judge, office of the District or Circuit Registrar, residence of the
bride or her wali, or at any other suitable place agreed upon by the parties.

Islamic Law Page 65

bride or her wali, or at any other suitable place agreed upon by the parties.
Art. 20. Specification of dower. — The amount or value of dower may be fixed by the
contracting parties (marh-musamma) before, during, or after the celebration of the
marriage. If the amount or the value thereof has not been so fixed, a proper dower (mahr-
mithl) shall, upon petition of the wife, be determined by the court according to the social
standing of the parties.
Art. 21. Payment of dower. — Subject to the stipulation of the parties, the dower may be
fully or partially paid before, during, or after the marriage. The property or estate of the
husband shall be liable for the unpaid dower, or any part thereof.
Art. 22. Breach of contract. — Any person who has entered into a contract to marry but
subsequently refuses without reasonable ground to marry the other party who is willing
to perform the same shall pay the latter the expenses incurred for the preparation of the
marriage and such damages as may be granted by the court.
Section 2. Prohibited M arriages. —
Art. 23. Bases of prohibition. — No marriage may be contracted by parties within the
prohibited degrees:
(a) Of consanguinity;
(b) Of affinity; and
(c) Of fosterage.
Art. 24. Prohibition by consanguinity (tahrimjbin-nasab). — No marriage shall be
contracted between:
(a) Ascendants and descendants of any degree;
(b) Brothers and sisters, whether germane, consanguine or uterine; and
(c) Brothers or sisters and their descendants within the third civil degree.
Art. 25. Prohibition by affinity (tahrim-bill-musahara). — (1) No marriage shall be
contracted between:
(a) Any of the spouses and their respective affinal relatives in the ascending line and in
the collateral line within the third degree;
(b) Stepfather and stepdaughter when the marriage between the former and the mother
of the latter has been consummated;
(c) Stepmother and stepson when the marriage between the former and the father of the
latter has been consummated; and
(d) Stepson or stepdaughter and the widow, widower or divorcee of their respective
ascendants.
(2) The prohibition under this article applies even after the dissolution of the marriage
creating the affinal relationship.
Art. 26. Prohibition due to fosterage (tahrim-bir-rada'a). — (1) No person may validly
contract marriage with any woman who breastfed him for at least five times within two
years after his birth.
(2) The prohibition on marriage by reason of consanguinity shall likewise apply to
persons related by fosterage within the same degrees, subject to exception recognized by
M uslim law.
Section 3. Subsequent M arriages. —.chan robles virtual law library
Art. 27. By a husband. — Notwithstanding the rule of Islamic law permitting a M uslim to
have more than one wife but one wife unless he can deal with them with equal
companionship and just treatment as enjoined by Islamic law and only in exceptional
cases.
Art. 28. By widow. — No widow shall contract a subsequent marriage unless she has
observed an 'idda of four months and ten days counted from the date of the death of her
husband. If at that time the widow is pregnant, she may remarry within a reasonable
time after delivery. In such case, she shall produce the corresponding death certificate.
Art. 29. By divorcee. — (1) No woman shall contract a subsequent marriage unless she
has observed an 'idda of three monthly courses counted from the date of divorce.
However, if she is pregnant at the time of the divorce, she may remarry only after
delivery.
(2) Should a repudiated woman and her husband reconcile during her 'idda, he shall have
a better right to take her back without need of a new marriage contract.
(3) W here it is indubitable that the marriage has not been consummated when the
divorce was affected, no 'idda shall be required.
Art. 30. M arriage after three talaq. — (1) W here a wife has been thrice repudiated (talaq
bain lubra) on three different occasions by her husband, he cannot remarry her unless
she shall have married another person who divorces her after consummation of the
intervening marriage and the expiration of the 'idda.

Islamic Law Page 66

intervening marriage and the expiration of the 'idda.
(2) No solemnizing officer shall perform the subsequent marriage mentioned in the
preceding paragraph unless he has ascertained that there was no collusion among the
parties.
Section 4. Batil and Fasi M arriages. —.chan robles virtual law library
Art. 31. Batil marriages. — The following marriages shall be void (batil) from the
beginning:
(a) Those contracted contrary to Articles 23, 24, 25 and 26;
(b) Those contracted in contravention of the prohibition against unlawful conjunction;
and
(c) Those contracted by parties one or both of whom have been found guilty of having
killed the spouse of either of them.
Art. 32. Fasid marriages. — The following marriages shall be irregular (fasid) from their
performance:
(a) Those contracted with a female observing 'idda;
(b) Those contracted contrary to Article 30;
(c) Those wherein the consent of either party is vitiated by violence, intimidation, fraud,
deceit or misrepresentation;
(d) Those contracted by a party in a condition of death-illness (marad-ul-mault) without
the same being consummated;
(e) Those contracted by a party in a state of ihram; and
(f) M ixed marriages not allowed under Islamic law.
Art. 33. Validation of irregular marriages. — (1) Irregular marriages may be made regular
by a new marriage contract in the following cases:
(a) Those referred to in Article 32(a), after the impediment has been removed;
(b) Those referred to in Article 32(b), upon compliance with the requirement of Article
30;
(c) Those referred to in Article 32(c), after the causes vitiating consent have ceased;
(d) Those referred to in Article 32(d), in case the party recovers;
(e) Those referred to in Article 32(e), when the party is no longer in a state of ihram; and
(f) Those referred to in Article 32(f), after conversion to a faith that could have made the
marriage valid.
(2) The effects of the new marriage under the first paragraph shall retroact to the date of
the celebration of the irregular marriage.
Section 5. Rights and Obligations Between Spouses. —
Art. 34. M utual rights and obligations. — (1) The husband and the wife are obliged to live
together, observe mutual respect and fidelity, and render mutual help and support in
accordance with this Code.
(2) W hen one of the spouses neglects his or her duties to the conjugal union or brings
danger, dishonor or material injury upon the other, the injured party may petition the
court for relief. The court may counsel the offender to comply with his or her duties, and
take such measures as may be proper. .chan robles virtual law library
(3) The husband and the wife shall inherit from each other in accordance with this Code.
(4) The husband and the wife shall have the right to divorce in accordance with this
Code.
Art. 35. Rights and obligations of the husband. — The husband shall fix the residence of
the family. The court may exempt the wife from living with her husband on any of the
following grounds:
(a) Her dower is not satisfied in accordance with the stipulations; or
(b)The conjugal dwelling is not in keeping with her social standing or is, for any reason,
not safe for the members of the family or her property.
Art. 36. Rights and obligations of the wife. — (1) The wife shall dutifully manage the
affairs of the household. She may purchase things necessary for the maintenance of the
family, and the husband shall be bound to reimburse the expenses, if he has not
delivered the proper sum. .chan robles virtual law library
(2) The wife cannot, without the husband's consent, acquire any property by gratuitous
title, except from her relatives who are within the prohibited degrees in marriage.
(3) The wife may, with her husband's consent, exercise any profession or occupation or
engage in lawful business which is in keeping with Islamic modesty and virtue. However,
if the husband refuses to give his consent on the ground that his income is sufficient for
the family according to its social standing or his opposition is based on serious and valid
grounds, the matter shall be referred to the Agama Arbitration Council.
(4) The wife shall have the right to demand the satisfaction of her mahr.

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(4) The wife shall have the right to demand the satisfaction of her mahr.
(5) Unless otherwise stipulated in the marriage settlements, the wife retain ownership
and administration of her exclusive property.
(6) The wife shall be entitled to an equal and just treatment by the husband.
Section 6. Property Relations Between Spouses. —
Art. 37. How governed. — The property relations between husband and wife shall be
governed in the following order:
(a) By contract before or at the time of the celebration of marriage;
(b) By the provisions of this Code; and
(c) By custom.
Art. 38. Regime of property relations. — The property relations between the spouses, in
the absence of any stipulation to the contrary in the marriage settlements or any other
contract, shall be governed by the regime of complete separation of property in
accordance with this Code and, in a suppletory manner, by the general principles of
Islamic law and the Civil Code of the Philippines.
Art. 39. Stipulation in the marriage settlements. — Every stipulation in the marriage
settlements or contract referred to in the preceding article shall be void and without
effect whatsoever, should the marriage not take place. However, stipulations that do not
depend upon the contract of marriage shall be valid.
Art. 40. Ante-nuptial property. — The wife shall not lose ownership and administration
of all properties brought by her to the marriage in the absence of any written agreement
to the contrary, and she may dispose of the same by deed or otherwise even without the
consent of her husband.
Art. 41. Exclusive property of each spouse. — The following shall be the exclusive
property of either spouse:
(a) Properties brought to the marriage by the husband or the wife;
(b) All income derived by either spouse from any employment, occupation or trade;
(c) Any money or property acquired by either spouse during marriage by lucrative title;
(d) The dower (mahr) of the wife and nuptial gifts to each spouse;
(e) Properties acquired by right of redemption, purchase or exchange of the exclusive
property of either; and
(f) All fruits of properties in the foregoing paragraphs.
Art. 42. Ownership and administration. — Each spouse shall own, possess, administer,
enjoy and dispose of his or her own exclusive estate even without the consent of the
other. However, the court may, upon petition of either spouse, grant to the other the
administration of such property. .chan robles virtual law library
Art. 43. Household property. — Household property which customarily pertains to or is
used by either spouse shall be prima facie presumed to be the property of said spouse.
Art. 44. Right to sue and be sued. — The wife may, independently of the husband, sue or
be sued in the following cases:
(a) W hen the litigation is between husband and wife;
(b) If the suit concerns her exclusive property;
(c) If the litigation is incidental to her profession, occupation or business;
(d) If the litigation concerns the exclusive property of the husband, the administration of
which has been transferred to her; or
(e) Such other appropriate cases as may be followed by the general principles of Islamic
law and other laws.
.chan robles virtual law library
CHAPTER III
Divorce (Talaq) .chan robles virtual law library
Section 1. Nature and Form. —
.chan robles virtual law library
Art. 45. Definition and forms. — Divorce is the formal dissolution of the marriage bond
in accordance with this Code to be granted only after the exhaustion of all possible
means of reconciliation between the spouses. It may be effected by:
(a) Repudiation of the wife by the husband (talaq);
(b) Vow of continence by the husband (ila);
(c) Injurious assanilation of the wife by the husband (zihar);
(d) Acts of imprecation (li'an);
(e) Redemption by the wife (khul');
(f) Exercise by the wife of the delegated right to repudiate (tafwld); or
(g) Judicial decree (faskh).
Art. 46. Divorce by talaq. — (1) A divorce by talaq may be effected by the husband in a

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Art. 46. Divorce by talaq. — (1) A divorce by talaq may be effected by the husband in a
single repudiation of his wife during her non-menstrual period (tuhr) within which he has
totally abstained from carnal relation with her. Any number of repudiation made during
one tuhr shall constitute only one repudiation and shall become irrevocable after the
expiration of the prescribed 'idda.
(2) A husband who repudiates his wife, either for the first or second time, shall have the
right to take her back (ruju) within the prescribed 'idda by resumption of cohabitation
without need of a new contract of marriage. Should he fail to do so, the repudiation shall
become irrevocable (Talaq bain sugra).
Art. 47. Divorce by Ila. — W here a husband makes a vow to abstain from any carnal
relations (ila) with his wife and keeps such ila for a period of not less than four months,
she may be granted a decree of divorce by the court after due notice and hearing.
Art. 48. Divorce by zihar. — W here the husband has injuriously assimilated (zihar) his
wife to any of his relatives within the prohibited degrees of marriage, they shall mutually
refrain from having carnal relation until he shall have performed the prescribed
expiation. The wife may ask the court to require her husband to perform the expiation or
to pronounce the a regular talaq should he fail or refuse to do so, without prejudice to
her right of seeking other appropriate remedies.
Art. 49. Divorce by li'an. — W here the husband accuses his wife in court of adultery, a
decree of perpetual divorce may be granted by the court after due hearing and after the
parties shall have performed the prescribed acts of imprecation (li'an).
Art. 50. Divorce by khul'. — The wife may, after having offered to return or renounce her
dower or to pay any other lawful consideration for her release (khul') from the marriage
bond, petition the court for divorce. The court shall, in meritorious cases and after fixing
the consideration, issue the corresponding decree.
Art. 51. Divorce by tafwid. — If the husband has delegated (tafwid) to the wife the right
to effect a talaq at the time of the celebration of the marriage or thereafter, she may
repudiate the marriage and the repudiation would have the same effect as if it were
pronounced by the husband himself.
Art. 52. Divorce by faskh. — The court may, upon petition of the wife, decree a divorce
by faskh 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; .chan robles virtual law library
(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 M uslim law for the dissolution of marriage by faskh
either at the instance of the wife or the proper wali..chan robles virtual law library
Art. 53. Faskh on the ground of unusual cruelty. — A decree offaskh on the ground of
unusual cruelty may be granted by the court upon petition of the wife if the husband:
(a) Habitually assaults her or makes her life miserable by cruel conduct even if this does
not result in physical injury;
(b) Associates with persons of ill-repute or leads an infamous life or attempts to force the
wife to live an immoral life;
(c) Compels her to dispose of her exclusive property or prevents her from exercising her
legal rights over it;
(d) Obstructs her in the observance of her religious practices; or
(e) Does not treat her justly and equitably as enjoined by Islamic law.
Art. 54. Effects of irrevocable talaq or faskh. — A talaq or faskh, as soon as it becomes
irrevocable, shall have the following effects:
(a) The marriage bond shall be severed and the spouses may contract another marriage in
accordance with this Code;
(b) The spouses shall lose their mutual rights of inheritance;
(c) The custody of children shall be determined in accordance with Article 78 of this
code;
(d)The wife shall be entitled to recover from the husband her whole dower in case the
talaq has been affected after the consummation of the marriage, or one-half thereof if
effected before its consummation; .chan robles virtual law library

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effected before its consummation; .chan robles virtual law library
(e) The husband shall not be discharged from his obligation to give support in accordance
with Article 67; and
(f) The conjugal partnership, if stipulated in the marriage settlements, shall be dissolved
and liquidated.
Art. 55.Effects of other kinds of divorce. — The provisions of the article immediately
preceding shall apply to the dissolution, of marriage by ila, zihar, li'an and khul', subject
to the effects of compliance with the requirements of the Islamic law relative to such
divorces.
Section 2. 'Idda. —
Art. 56. 'Idda defined. — 'Idda is the period of waiting prescribed for a woman whose
marriage has been dissolved by death or by divorce the completion of which shall enable
her to contract a new marriage.
Art. 57. Period. — (1) Every wife shall be obliged to observe 'idda as follows:
(a) In case of dissolution of marriage by death, four months and ten days counted from
the death of her husband;
(b) In case of termination of marriage by divorce, for three monthly courses; or
(c) In case of a pregnant women, for a period extending until her delivery.
(2) Should the husband die while the wife is observing 'idda for divorce, another 'idda for
death shall be observed in accordance with paragraph 1(a).
.chan robles virtual law library
TITLE III
Paternity and Filiation .chan robles virtual law library
Art. 58. Legitimacy, how established. — Legitimacy of filiation is established by
evidence of valid marriage between the father and the mother at the time of the
conception of the child.
Art. 59. Legitimate children. — (1) Children conceived in lawful wedlock shall be
presumed to be legitimate. W hoever claims illegitimacy of or impugns such filiation must
prove his allegation.
(2) Children born after six months following the consummation of marriage or with two
years after the dissolution of the marriage shall be presumed to be legitimate. Against
this presumption no evidence shall be admitted other than that of the physical
impossibility of access between the parents at or about the time of the conception of the
child.
Art. 60. Children of subsequent marriage. — Should the marriage be dissolved and the
wife contracts another marriage after the expiration of her 'IDDA, the child born within
six months from the dissolution of the prior marriage shall be presumed to have been
conceived during the former marriage, and if born thereafter, during the latter.
Art. 61. Pregnancy after dissolution. — If, after the dissolution of marriage, the wife
believes that she is pregnant by her former husband, she shall, within thirty days from
the time she became aware of her pregnancy, notify the former husband or his heirs of
that fact. The husband or his heirs may ask the court to take measures to prevent a
simulation of birth.
Art. 62. Rights of legitimate child. — A legitimate child shall have the right:
(a) To bear the surnames of the father and of the mother;
(b) To receive support from the father or, in his default, from his heirs in accordance
with Articles 65 and 68; and
(c) To share in the legitimate (furud) and other successional rights which this Code
recognizes in his favor.
Art. 63. Acknowledgment by father. — Acknowledgment (igra) of a child by the father
shall establish paternity and confer upon each the right inherit from the other
exclusively in accordance with Article 94, provided the following conditions are complied
with:
(a) The acknowledgment is manifested by the father's acceptance in public that he is the
father of the child who does not impugn it; and
(b) The relations does not appear impossible by reason of disparity in age.
Art. 64. Adoption. — No adoption in any form shall confer upon any person the status
and rights of a legitimate child under M uslim law, except that said person may receive a
gift (hiba)..chan robles virtual law library
.chan robles virtual law library
TITLE IV
Support (Nafaqa) .chan robles virtual law library
Art. 65. Support defined. — Support (nafaqa) includes everything that is indispensable

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Art. 65. Support defined. — Support (nafaqa) includes everything that is indispensable
for sustenance, dwelling, clothing and medical attendance according to the social
standing of the person obliged to give it, and the education of the person entitled to the
support until he completes his education, training, or vocation even beyond the age of
majority.
Art. 66. Amount. — The amount of support shall be in proportion to the resources of the
giver and to the needs of the recipient.
Art. 67. Support for wife and infant. — (1) The wife shall be entitled to support during
the marriage. In cases of divorce, (talaq), her right shall be extended up to the expiration
of the 'idda. However, in case the wife is pregnant at the time of the separation, she shall
be entitled to support until delivery.
(2) Any divorced nursing mother who continues to breastfeed her child for two years
shall be entitled to support until the time of weaning.
Art. 68. Support between ascendants and descendants. — The ascendants and
descendants shall be obliged to support each other in the order in which they are called
to succeed by intestacy the person who has a right to claim support.
Art. 69. Payment. — (1) The obligation to support shall be demandable from the time the
recipient needs it for maintenance, but it shall not be paid except from the date it is
extrajudicially demanded.
(2) Payment shall be made daily, weekly or monthly in advance, and when the recipient
dies, his heirs shall not be obliged to return what he had received in advance.
(3) If the recipient is the wife, the rule established in the foregoing paragraph shall apply
even though the marriage is dissolved.
Art. 70.Extinguishment of support. — The obligation to support shall cease:
(a) Upon the death of the recipient;
(b) W hen the resources of the obligor have been so reduced that he cannot give the
support without neglecting his own need and those of his family, except that in the case
of the spouses, the husband, though needy, is obliged to support the wife; or
(c) W hen the recipient commits any act which would give rise to disqualification to
inherit or denial of support under M uslim law.
.chan robles virtual law library
TITLE V
Parental Authority
CHAPTER I
Nature and Effects
Art. 71. W ho exercises. — (1) The father and the mother shall jointly exercise just and
reasonable parental authority and fulfill their responsibility over their legitimate and
acknowledged children. In case of disagreement, the father's decision shall prevail unless
there is a judicial order to the contrary.
(2) The mother shall exercise parental authority over her children born out of wedlock,
but the court may, when the best interests of the children so require, appoint a general
guardian. .chan robles virtual law library
Art. 72. Duty to parents. — (1) Children shall respect, revere, and obey their parents
always unless the latter cast them into disbelief.
(2) Grandparents are likewise entitled to respect and reverence, and shall be consulted
whenever practicable by all members of the family on all important questions.
Art. 73. Duty to children. — Every parent and every person exercising parental
authority shall see to it that the rights of the children are respected, and their duties
complied with, and shall particularly by precept and example, imbue them with religious
and civic attachment to the ideal of permanent world peace.
Art. 74. Effects upon person of children. — The parents have, with respect to their
unemancipated children:
(a) The duty to support them, have them in their company, educate and instruct them in
keeping with their means and represent them in all actions which shall redound to their
benefits; and
(b) The power to correct, discipline, and punish them moderately. .chan robles virtual law
library
Art. 75. Effects upon property of children. — (1) The father, or in his absence the
mother, shall be the legal administrator of the property of the child under parental
authority. If the property is worth more than five thousand pesos, the father or the
mother shall give a bond to be approved by the court.
(2) The court may appoint a guardian (wasi) in the absence of one who is natural or

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testamentary.
Art. 76. Parental authority non-transferable. — Parental authority can neither be
renounced nor transferred except as otherwise provided in this Code and the general
principles of Islamic law.
Art. 77. Extinguishment of parental authority. — (1) Parental authority terminates upon
the death of the parents or the child, or upon emancipation.
(2) Subject to Article 78, the widowed mother who contracts a subsequent marriage shall
lose parental authority and custody over all children by the deceased husband, unless
the second husband is related to them within the prohibited degrees of consanguinity.
(3) The court may deprive a person of parental authority or suspend the exercise thereof
if he treats his children with excessive harshness, gives then corrupting or immoral
orders and counsel, or abandons them.

CHAPTER II
Custody and Guardianship
Art. 78. Care and custody. — (1) The care and custody of children below seven years of
age whose parents are divorced shall belong to the mother or, in her absence, to the
maternal grandmother, the paternal grandmother, the sister and aunts. In their default,
it shall devolve upon the father and the nearest paternal relatives. The minor above
seven years of age but below the age of puberty may choose the parent with whom he
wants to stay.
(2) The unmarried daughter who has reached the age of puberty shall stay with the
father; the son, under the same circumstances, shall stay with the mother.
Art. 79. Guardian for marriage (wali). — The following persons shall have authority to act
as guardian for marriage (wali) in the order of precedence:
(a) Father
(b) Paternal grandfather;
(c) Brother and other paternal relatives;
(d) Paternal grandfather's executor or nominee; or
(e) The court.
Art. 80. Guardian of minor's property. — The following persons shall exercise
guardianship over the property of minors in the order of precedence:
(a) Father;
(b) Father's executor or nominee;
(c) Paternal grandfather;
(d) Paternal grandfather's nominee; or
(e) The court.
.chan robles virtual law library
TITLE VI
Civil Registry .chan robles virtual law library CHAPTER I
Registry of M arriage, .chan robles virtual law library DIVORCE AND CONVERSIONS .chan robles
virtual law library
Art. 81. District Registrar. — The Clerk of Court of the Shari'a District Court shall, in
addition to his regular functions, act as District Registrar of M uslim M arriages, Divorces,
Revocations of Divorces, and Conversions within the territorial jurisdiction of said court.
The Clerk of Court of the Shari'a Circuit Court shall act as Circuit Registrar of M uslim
M arriages, Divorces, Revocations of Divorces, and Conversions within his jurisdiction.
Art. 82. Duties of District Registrar. — Every District Registrar shall exercise
supervision over Circuit Registrars in every Shari'a District. He shall, in addition to an
entry book, keep and bind copies of certificates of M arriage, Divorce, Revocation of
Divorce, and Conversion sent to him by the Circuit Registrars in separate general
registers. He shall send copies in accordance with Act. No. 3753, as amended, to the
office of the Civil Registrar-General.
Art. 83. Duties of Circuit Registrar. — Every Circuit Registrar shall:
(a) File every certificate of marriage (which shall specify the nature and amount of the
dower agreed upon,) divorce or revocation of divorce and conversion and such other
documents presented to him for registration;
(b) Compile said certificates monthly, prepare and send any information required of him
by the District Registrar;
(c) Register conversions involving Islam;
(d) Issue certified transcripts or copies of any certificate or document registered upon

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payment of the required fees;
(e) Send to the District Registrar during the first ten days of each month a copy of the
entries made during the previous month;
(f) Index the same for easy reference and identification in case any information is
required; and
(g) Administer oaths, free of charge, for civil registry purposes.
Art. 84. Cancellation or Correction of Entry. — Any entry in the District or Circuit
Register may, upon verified petition of any interested party, be corrected upon order of
the Shari'a District Court, subject to the provisions of the Rules of Court. Every
Registrar shall be civilly responsible for any unauthorized alteration made in the registry
to any person suffering damage thereby. However, the Registrar may exempt himself
from such liability if he proves that he has taken every reasonable precaution to prevent
the unlawful alteration.
Art. 85. Registration of revocation of divorce. — W ithin seven days after the revocation
of a divorce by ruju', the husband shall, with the wife's written consent, file a statement
thereof with the Circuit Registrar in whose records that divorce was previously entered.
Art. 86.Legal effects of registration. — The books making up the registry of marriage,
divorce, revocation of divorce, conversion, and all other documents relating thereto shall
be considered public documents and shall be prima facie evidence of the facts therein
contained. However, nothing herein provided shall affect the intrinsic validity or
invalidity of the acts registered..chan robles virtual law library
Art. 87. Applicability of other civil registry law. — To the extent not inconsistent with
the provisions of this Code, the provisions of other registry laws governing other civil
registrars shall be observed by district or circuit registrars.
.chan robles virtual law library
CHAPTER II
Other Acts Affecting Civil Status .chan robles virtual law library
Art. 88. W here registered. — All other acts, events, or judicial decrees affecting civil
status not mentioned in Chapter One of this Title shall be recorded in the existing civil
registry of the city or municipality in accordance with special laws.
.chan robles virtual law library BOOK THREE
Succession .chan robles virtual law library TITLE I
General Provisions .chan robles virtual law library
Art. 89. Succession defined. — Succession is a mode of acquisition by virtue of which
the estate of a person is transmitted to his heirs or others in accordance with this code.
Art. 90. Successional rights, when vested. — The rights to succession are transmitted
from the moment of the death of the decedent. The right to succession of any heir who
predeceases the decedent shall not be transmitted by right of representation to his own
heirs.
Art. 91. Requisites of succession. — No settlement of the estate of a deceased person
shall be effected unless:
(a) The death of the decedent is ascertained;
(b) The successor is alive at the time of the death of the decedent; and
(c) The successor is not disqualified to inherit.
Art. 92. Inheritance (M irath). — The inheritance of a person includes all properties of
any kind, movable or immovable, whether ancestral or acquired either by onerous or
gratuitous title, as well as all transmissible rights and obligations at the time of his
death and those that accrue thereto before partition. .chan robles virtual law library
Art. 93. Disqualifications to succession. — The following shall be disqualified to succeed:
(a) Those who have intentionally caused directly or indirectly the death of the decedent;
(b) Those who have committed any other act which constitutes a ground for
disqualification to inherent under Islamic law; and
(c) Those who are so situated that they cannot inherit under Islamic law. .chan robles virtual
law library
Art. 94. Succession from acknowledging person. — W ithout prejudice to the order of
succession of heirs, mutual rights of inheritance shall obtain:
(a) Between the acknowledging father and the acknowledged child; and
(b) Between the kinsman acknowledged through another person and the acknowledger.
Art. 95. Succession by illegitimate child. — A child who was the cause of the mother's
having been divorced by li'an shall have mutual rights of succession only with the
mother and her relatives.
Art. 96. Succession between divorced persons. — (1) The husband who divorces his wife

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shall have mutual rights of inheritance with her while she is observing her 'idda. After
the expiration of the 'idda, there shall be no mutual rights of succession between them.
(2) The husband who, while in a condition of death-illness, divorces his wife shall not
inherit from her, but she shall have the right to succeed him even after the expiration of
her 'idda.
Art. 97. Succession by conceived child. — A child conceived at the time of the death of
the decedent shall be considered an heir provided it be born later in accordance with
Article 10; its corresponding share shall be reserved before the estate is distributed.
Art. 98. Succession by absentee. — The share of an heir who is missing or otherwise
absent at the time of the death of the decedent shall be reserved:
(a) Until he reappears and claims it;
(b) Until he is proven dead; or
(c) Until the lapse of ten years after which he shall be presumed dead by decree of the
court.
Art. 99. Order of succession. — The heirs of a decedent shall inherit in the following
order: .chan robles virtual law library
(a) Sharers (ashab-ul-furud) shall be entitled to fixed shares;
(b) Residuaries (ashab-ul-mirath) shall be entitled to the residue; .chan robles virtual law
library
(c) In the absence of the foregoing, the distant kindred (dhaw-ul-arham) who are blood
relatives but are neither sharers nor residuaries; and
(d) In default of the above, the acknowledged kinsman, universal legatee, or the public
treasury (bait-ul-mal), in that order.
Art. 100. M odes of Succession. — Succession my be:
(a) By will (wasiya);
(b) By operation of this Code; or
(c) By combination of both.
.chan robles virtual law library
TITLE II
Testamentary Succession .chan robles virtual law library CHAPTER I
W ills .chan robles virtual law library
Art. 101. W ill defined. — A will (wasiya) is a declaration whereby a person is permitted,
with the formalities prescribed by law, to control the disposition after his death of not
more than one-third of his estate, if there are heirs, or the whole of it, if there are no
heirs or distant kindred.
Art. 102. Formalities. — (1) The making of a will is strictly a personal act; it cannot be
left in whole or in part to the discretion of a third person or accomplished through the
instrumentality of an agent.
(2) A will may be declared orally or in writing in a manner that shows clearly the
intention of the testator to execute it in the presence of a least two competent, credible
and disinterested witnesses.
Art. 103. Proof of will. — (1) No nuncupative will shall pass any property of the decedent
unless it is proved and allowed in accordance with a solemn oath or affirmation of all the
witnesses who attested to its declaration.
(2) No will of any other kind, holographic or formal, shall pass any property unless it is
proved and allowed in accordance with this Code.
Art. 104. Testamentary wagf . — An endowment for Islamic purposes to take effect after
the death of the donor (wagf-bill-wasiya) partakes of the nature of a testamentary
disposition..chan robles virtual law library
Art. 105. Capacity to make a will. — Any person of sound and disposing mind and who is
not expressly prohibited by Islamic law may make a will. Persons of either sex under the
age of puberty cannot make a will.
Art. 106. Disposable third. — (1) The testator, in his will, cannot dispose of more than
one-third of his estate. Any bequest in excess thereof shall not be given effect unless
ratified by the heirs. In any case, the bequest must be accepted by the legatee.
(2) A bequest to any sharer or residuary shall not be valid unless ratified by the testator's
heirs existing at the time of his death.
Art. 107. Bequest by operation of law. — Should the testator die without having made a
bequest in favor of any child of his son who predeceased him, or who simultaneously dies
with him, such child shall be entitled to one-third of the share that would have pertained
to the father if he were alive. The parent or spouse, who is otherwise disqualified to
inherit in view of Article 93 (c), shall be entitled to one-third of what he or she would
have received without such disqualification.

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have received without such disqualification.
Art. 108. Revocation of will. — W ill may be expressly or impliedly revoked by the
testator at any time before his death. Any waiver or restriction of this right shall be void.
Art. 109.Partial invalidity of will. — The invalidity of one of several provisions of a will
shall not result in the invalidity of the others, unless it is to be presumed that the
testator would not have made such other provisions if the first invalid provision had not
been made.
.chan robles virtual law library
TITLE III
Legal Succession .chan robles virtual law library CHAPTER I
Shares .chan robles virtual law library
Art. 110. W ho are sharers. — The following persons shall be entitled to the inheritance
as sharers to the extent set forth in the succeeding articles:
(a) The husband, the wife;
(b) The father, the mother, the grandfather, the grandmother;
(c) The daughter and the son's daughter in the direct line;
(d) The full sister, the consanguine sister, the uterine sister and the uterine brother.
Art. 111. Share of surviving husband. — The husband surviving together with a
legitimate child or a child of the decedent's son shall be entitled to one-fourth of the
hereditary estate; should there be no such descendants, he shall inherit one-half of the
estate.
Art. 112. Share of surviving wife. — The wife surviving together with a legitimate child
or a child of the decedent's son shall be entitled to one-eight of the hereditary estate; in
the absence of such descendants, she shall inherit one-fourth of the estate.
Art. 113. Share of surviving father. — The father succeeding together with the
legitimate son of the decedent or a son of the decedent's son shall be entitled, as sharer,
to one-sixth of the hereditary estate. The father who succeeds together with a legitimate
daughter of the decedent or a daughter of the decedent's son shall inherit, as sharer,
one-sixth of the inheritance without prejudice to his share as residuary. .chan robles virtual
law library
Art. 114. Share of surviving mother. — The mother succeeding as sharer together with a
child or a child of the decedent's son, or with two or more brothers or sisters of the
decedent, shall be entitled to one-sixth of the hereditary estate. Should she survive
without any such descendant or with only one brother or sister, she shall inherit one-
third of the estate.
Art. 115. Share of paternal grandfather. — The paternal grandfather succeeding together
with the child of the decedent or, in default thereof, with his descendants in the direct
male line however, distant, shall be entitled to one-sixth of the hereditary estate. Should
he survive with any sharer other than the brothers or sisters of the decedent, he shall be
entitled to one-sixth without prejudice to his right as a residuary.
Art. 116. Share of paternal grandmother. — The paternal grandmother succeeding in
default of the mother, father, or intermediate grandfather of the decedent shall be
entitled, as sharer, to one-sixth of the hereditary estate.
Art. 117. Share of surviving daughter. — (1) If the decedent leaves no son but one
daughter, the latter shall be entitled to inherit, as sharer, one-half of the hereditary
estate. Two or more daughters shall share equally two-thirds thereof. Should one or more
daughters survive with one or more sons of the decedent, the latter shall be entitled to
double the share of the former.
(2) Should a lone daughter of the decedent survive together with his son's daughter, the
two-thirds share shall be divided between them, one-half thereof to pertain to the former
and one-sixth of the latter.
Art. 118. Share of son's daughter. — The son's daughter shall, in the absence of any
child of the decedent, be entitled to one-half of the hereditary estate. Two or more
daughters of the decedent's son shall share the two-thirds of the estate per capita.
Art. 119. Share of full sister. — Should the decedent leave neither descendant, father,
nor full brother, the full sister, shall be entitled as sharer to the extent of one-half of the
hereditary estate. Two or more full sisters shall inherit two-thirds of the estate per
capita.
Art. 120. Share of consanguine sister. — Should the decedent leave neither descendent,
full brother, nor full sister, the consanguine sister shall be entitled to one-half of the
hereditary estate. Two or more consanguine sisters shall inherit two-thirds of the estate
per capita.
Art. 121. Share of uterine brother or sister. — The share of a uterine brother or sister

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Art. 121. Share of uterine brother or sister. — The share of a uterine brother or sister
shall be one-sixth of the hereditary estate should there be no surviving descendant,
father, paternal grandfather, or full brother and sister of the decedent. Two or more
uterine brothers or sisters shall inherit one-third of the estate per capita. .chan robles
virtual law library
Art. 122. Participation of full brother. — (1) One or more full brothers and sisters
surviving together, or one or more consanguine brothers or sisters surviving together,
shall participate in the hereditary estate, a brother to inherit double the share of a
sister.
(2) The provision of the next succeeding article notwithstanding, the full brother shall, if
nothing is left for him after the distribution of shares and he survives with uterine
brothers, participate with the latter in the one-third of the hereditary estate per capita.
Art. 123. Exclusion among heirs. — The exclusion of heirs from the inheritance shall be
governed by the following rules:
(a) In the same line, the relative nearest in degree excludes the more remote.
(b) Full-blood relatives exclude the consanguine and the uterine.
(c) W hoever is related to the decedent through any person shall not inherit while the
latter is living, except in the case of a mother concurring with her children.
(d) Heirs who, in a particular case, do not succeed by reason of disqualification on any
ground shall not exclude others.
.chan robles virtual law library
CHAPTER II
Residuary Heirs .chan robles virtual law library
Art. 124. Residuaries. — Any residue left after the distribution of the shares shall be
partitioned among the residuaries in accordance with the following articles. An heir may
succeed as residuary in his own right (asaba-bin-nafs), in another's right (asaba-bil-ghair),
or together with another (asaba-ma'al-ghair).
Art. 125. Residuaries in their own right. — The following persons are residuaries in their
own right:
(a) M ale descendants of the decedent in the direct line, however, distant in degree;
(b) M ale ascendants of the decedent in the direct line, however distant in degree; .chan
robles virtual law library
(c) Full-blood or consanguine brothers of the decedent and their male descendants,
however, distant in degree; and
(d) Full-blood or consanguine paternal uncles of the decedent and their male
descendants, however distant in degree.
Art. 126. Residuaries in another's right. — The following persons shall succeed as
residuaries in another's right:
(a) Daughters surviving with the son of the decedent;
(b) Son's daughters surviving with their own brothers;
(c) Full sisters surviving with their full brothers; and
(d) Consanguine sisters surviving with their consanguine brothers.
Art. 127. Residuaries together with another. — Full-blood or consanguine sisters,
surviving with daughters of the decedent or with the son's daughters, however, distant in
degree from the decedent, are residuaries together with another. .chan robles virtual law
library
Art. 128. Preference among residuaries. — Preference among residuaries shall be
governed by the following rules:
(a) The residuary nearer in degree shall be preferred to the more remote of the same
class.
(b) The residuary with full-blood relationship shall be preferred to those of the half-blood
of the same degree of relationship in the same class.
(c) The residuaries of the same class, degree and blood relationship shall share equally,
subject to the rule of the male having a share double that of the female in proper cases.
Art. 129. Reduction of shares. — If the totality of all the shares assigned to each of the
sharers exceeds the whole inheritance, the shares shall be reduced proportionately.
Art. 130. Reversion of residue. — If, after distributing the portions of the sharers, a
residue is left in the inheritance and there is no surviving residuary heir, the same shall
revert in its entirety to the lone sharer or to all the sharers in proportion to their
respective shares. However, the husband or the wife shall not be entitled to any part of
the reverted portion as long as there are other sharers or distant kindred.
.chan robles virtual law library
CHAPTER III

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CHAPTER III
Distant Kindred (Dhaw-ul-arham) .chan robles virtual law library
Art. 131. Relatives included. — Distant kindred includes the following:
(a) The daughter's children and the children of the son's daughter and their
descendants;.chan robles virtual law library
(b) The excluded grandfather and the excluded grandmother;
(c) The sister's children, the brother's daughters, the sons of the uterine brother, and
their descendants; and
(d) The paternal aunts, the uterine uncles and the maternal aunts and uncles.
Art. 132. Extent and distribution of shares. — In default of all sharers and residuaries,
the distant kindred shall inherit the entire hereditary estate, the same to be distributed
among them in accordance with Articles 123 and 128.
.chan robles virtual law library
TITLE IV
Settlement and Partition of Estate .chan robles virtual law library
Art. 133. Administration. — The administration of the estate of a decedent shall, for
purposes of settlement, vest at the time of his death in the executor appointed in the
will or, in the absence thereof, in his heir or administrator to whom the court has
granted letters of administration.
Art. 134. Governing school of law. — (1) In every petition for probate of will or for the
settlement of the estate of a decedent, all matters relating to the appointment of
administrator, powers and duties of administrator or executor, the court shall take into
consideration the school of law (madhhab) of the decedent.
(2) If the decedent's madhhab is not known, the Shafi'i school of law may be given
preference together with the special rules of procedure adopted pursuant to this Code.
Art. 135. Order of preference of claims. — The estate of a decedent shall be applied to
claims and charges in the following order:
(a) unpaid taxes; .chan robles virtual law library
(b) reasonable funeral expenses; .chan robles virtual law library
(c) the expenses for probate, administration and other judicial expenses; .chan robles virtual
law library
(d) the debts of the decedent; .chan robles virtual law library
(e) the legacies to the extent of the disposable one-third;
(f) the distribution of shares among heirs; and
(g) unpaid dower.
Art. 136. Liability of heirs. — The liability of the heirs of a decedent for the payment of
the matter's debts shall not exceed the hereditary estate. Each heir shall be liable only
for the payment of the decedent's debt in proportion to his share.
.chan robles virtual law library
BOOK FOUR
Adjudication and Settlement of Disputes and Rendition of Legal Opinions .chan robles
virtual law library TITLE I
The Shari'a Courts .chan robles virtual law library
Art. 137. Creation. — There are hereby created as part of the judicial system, courts of
limited jurisdiction, to be known respectively as Shari'a District Courts and Shari'a
Circuit Courts, which shall exercise powers and functions in accordance with this Title.
Shari'a courts and the personnel thereof shall be subject to the administrative
supervision of the Supreme Court.
.chan robles virtual law library
CHAPTER I
Shari'a District Courts .chan robles virtual law library
Art. 138. Shari'a judicial districts. — Five special judicial districts, each to have one
Shari'a District Court presided over by one judge, are constituted as follows:
(a) The First Shari'a District shall comprise the Province of Sulu; .chan robles virtual law
library
(b) The Second Shari'a District, the Province of Tawi-Tawi;
(c) The Third Shari'a District, the Province of Basilan, Zamboanga del Norte and
Zamboanga del Sur, and the Cities of Dipolog, Pagadian and Zamboanga;
(d) The Fourth Shari'a District, the provinces of Lanao del Norte and Lanao del Sur, and
the Cities of Iligan and M arawi; and
(e) The Fifth Shari'a District, the Provinces of M aguindanao, North Cotabato and Sultan

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Kudarat, and the City of Cotabato;
Art. 139. Appointment of judges. — The judicial function in the Shari'a District Courts
shall be vested in Shari'a District judges to be appointed by the President of the
Philippines. .chan robles virtual law library
Art. 140. Qualifications. — No person shall be appointed Shari'a District judge unless, in
addition to the qualifications for judges of Courts of First Instance fixed in the Judiciary
Law, he is learned in Islamic law and jurisprudence.
Art. 141. Tenure. — Shari'a District judges shall be appointed to serve during good
behavior until they reach the age of sixty-five years, or become incapacitated to
discharge the duties of their office, unless sooner removed for the same causes and in
the same manner provided by law for judges of Courts of First Instance.
Art. 142. Compensation. — Shari'a District judges shall receive the same compensation
and enjoy the same privileges as the judges of Courts of First Instance.
Art. 143. Original jurisdiction. — (1) The Shari'a District Court shall have exclusive
original jurisdiction over:
(a) All cases involving custody, guardianship, legitimacy, paternity and filiation arising
under this Code;
(b) All cases involving disposition, distribution and settlement of the estate of deceased
M uslims, probate of wills, issuance of letters of administration or appointment of
administrators or executors regardless of the nature or the aggregate value of the
property;
(c) Petitions for the declaration of absence and death and for the cancellation or
correction of entries in the M uslim Registries mentioned in Title VI of Book Two of this
Code;
(d) All actions arising from customary contracts in which the parties are M uslims, if they
have not specified which law shall govern their relations; and
(e) All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all
other auxiliary writs and processes in aid of its appellate jurisdiction. .chan robles virtual
law library
(2) Concurrently with existing civil courts, the Shari'a District Court shall have original
jurisdiction over:
(a) Petitions by M uslims for the constitution of a family home, change of name and
commitment of an insane person to an asylum;
(b) All other personal and real actions not mentioned in paragraph 1 (d) wherein the
parties involved are M uslims except those for forcible entry and unlawful detainer, which
shall fall under the exclusive original jurisdiction of the M unicipal Circuit Court; and
(c) All special civil actions for interpleader or declaratory relief wherein the parties are
M uslims or the property involved belongs exclusively to M uslims.
Art. 144. Appellate jurisdiction. — (1) Shari'a District Courts shall have appellate
jurisdiction over all cases tried in the Shari'a Circuit Courts within their territorial
jurisdiction..chan robles virtual law library
(2) The Shari'a District Court shall decide every case appealed to it on the basis of the
evidence and records transmitted as well as such memoranda, briefs or oral arguments as
the parties may submit.
Art. 145. Finality of decision. — The decisions of the Shari'a District Courts whether on
appeal from the Shari'a Circuit Court or not shall be final. Nothing herein contained shall
affect the original and appellate jurisdiction of the Supreme Court as provided in the
Constitution.
Art. 146. Clerks and other subordinate employees. — Shari'a District Courts shall have
the same officers and other personnel as those provided by law for Courts of First
Instance.
The pertinent provisions of the Judiciary Law regarding the number, qualifications,
appointment, compensation, functions, duties and other matters relative to the
personnel of the Courts of First Instance shall apply to those of the Shari'a District
Courts.
Art. 147. Permanent stations; offices. — (1) The Shari'a District Courts shall have their
respective permanent stations in the following places:.chan robles virtual law library
(a) First Shari'a District, Jolo, Sulu; .chan robles virtual law library
(b) Second Shari'a District, Bongao, Tawi-Tawi; .chan robles virtual law library
(c) Third Shari'a District, Zamboanga City; .chan robles virtual law library
(d) Fourth Shari'a District, M arawi City; .chan robles virtual law library
(e) Fifth Shari'a District, Cotabato City;.chan robles virtual law library

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(e) Fifth Shari'a District, Cotabato City;.chan robles virtual law library
(2) The Shari'a District Courts may hold sessions anywhere within their respective
districts..chan robles virtual law library
(3) The provinces, cities or municipalities concerned shall provide such courts with
adequate court office, supplies and equipment in accordance with the provisions of the
Judiciary Law. .chan robles virtual law library
Art. 148. Special procedure. — The Shari'a District Courts shall be governed by such
special rules of procedure as the Supreme Court may promulgate.
Art. 149. Applicability of other laws. — The provisions of all laws relative to the Courts of
First Instance shall, insofar as they are not inconsistent with this Code, be applicable to
Shari'a District Courts.
.chan robles virtual law library
CHAPTER II
Shari'a Circuit Courts .chan robles virtual law library
Art. 150. W here established. — (1) Shari'a Circuit Courts shall be established as follows:
(a) Six such courts in the Province of Sulu;
(b) Eight in the Province of Tawi-Tawi;
(c) Ten in and for the Provinces of Basilan, Zamboanga del Norte and Zamboanga del Sur,
and the Cities of Dipolog, Pagadian, and Zamboanga; .chan robles virtual law library
(d) Twelve in and for the Provinces of Lanao del Norte and Lanao del Sur and the Cities of
Iligan and M arawi;
(e) Fifteen in and for the Province of M aguindanao, North Cotabato and Sultan Kudarat
and the City of Cotabato.
(2) The territorial jurisdiction of each of the 'Shari'a Circuit Courts shall be fixed by the
Supreme Court on the basis of geographical contiguity of the municipalities and cities
concerned and their M uslim population.
Art. 151. Appointment of judges. — Each Shari'a Circuit Court shall be presided over by
a Shari'a Circuit Judge to be appointed by the President of the Philippines..chan robles
virtual law library
Art. 152. Qualifications. — No person shall be appointed judge of the Shari'a Circuit
Court unless he is a natural-born citizen of the Philippines, at least twenty-five years of
age, and has passed an examination in the Shari'a and Islamic jurisprudence (fiqh) to be
given by the Supreme Court for admission to special membership in the Philippine Bar to
practice in the Shari'a Courts.
Art. 153. Tenure. — Shari'a Circuit judges shall be appointed to serve during good
behavior until they reach the age of sixty-five years or become incapacitated to
discharge the duties of their office, unless sooner removed for the same causes and in
the same manner provided by law for judges of M unicipal Circuit Courts.
Art. 154. Compensation. — Shari'a Circuit judges shall receive the same compensation
and enjoy the same privileges as judges of M unicipal Circuit Courts.
ARTICLE 155. Jurisdiction. — The Shari'a Circuit Courts shall have exclusive original
jurisdiction over;
(1) All cases involving offenses defined and punished under this Code.
(2) All civil actions and proceedings between parties who are M uslims or have been
married in accordance with Article 13 involving disputes relating to: .chan robles virtual law
library
(a) M arriage;
(b) Divorce recognized under this Code; .chan robles virtual law library
(c) Betrothal or breach of contract to marry; .chan robles virtual law library
(d) Customary dower (mahr);
(e) Disposition and distribution of property upon divorce;
(f) M aintenance and support, and consolatory gifts, (mut'a); and
(g) Restitution of marital rights.
(3) All cases involving disputes relative to communal properties.
Art. 156. Clerks and other subordinate employees. — (1) Shari'a Circuit Courts shall
have the same officers and other personnel as those provided by law for M unicipal
Circuit Courts..chan robles virtual law library
(2) The pertinent provisions of the Judiciary Law regarding the number, qualifications,
appointment, compensation, functions, duties and other matters relative to the
personnel of the M unicipal Circuit Courts shall apply to those of the Shari'a Circuit
Courts.
Art. 157. Place of sessions; stations. — Shari'a Circuit Court may hold session anywhere

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Art. 157. Place of sessions; stations. — Shari'a Circuit Court may hold session anywhere
within their respective circuits, but each shall have a principal station to be fixed by the
Supreme Court.
Art. 158. Special procedure. — The Shari'a Circuit Courts shall be governed by such
special rules of procedure as the Supreme Court may promulgate..chan robles virtual law
library
Art. 159. Applicability of other laws. — The provisions of all laws relative to M unicipal
Circuit Courts shall, to the extent that they are not inconsistent with this Code, be
applicable to the Shari'a Circuit Courts.
.chan robles virtual law library
TITLE II
The Agama Arbitration Council .chan robles virtual law library
Art. 160. Constitution. — The Shari'a District Court or the Shari'a Circuit Court may, in
appropriate cases, constitute an Agama Arbitration Council in the manner specified in
this Title.
Art. 161. Divorce by talag and tafwid. — (1) Any M uslim male who has pronounced a
talag shall, without delay, file with the Clerk of Court of the Shari'a Circuit Court of the
place where his family resides a written notice of such fact and the circumstances
attended thereto, after having served a copy thereof to the wife concerned. The talag
pronounced shall not become irrevocable until after the expiration of the prescribed
'idda. The notice filed shall be conclusive evidence that talag has been pronounced.
(2) W ithin seven days from receipt of notice, the Clerk of Court shall require each of the
parties to nominate a representative. The representatives shall be appointed by the
Court to constitute, together with the Clerk of Court as Chairman, an Agama Arbitration
Council. The Agama Arbitration Council shall submit to the Court a report on the result
of the arbitration, on the basis of which and such other evidence as may be allowed, the
Court shall issue the corresponding order..chan robles virtual law library
(3) The provisions of this article shall be observed should the wife exercise tafwid.
Art. 162. Subsequent marriages. — Any M uslim husband desiring to contract a
subsequent marriage shall, before so doing, file a written notice thereof with the Clerk of
Court of the Shari'a Circuit Court of the place where his family resides. Upon receipt of
said notice, the Clerk shall serve a copy thereof to the wife or wives. Should any of them
object, an Agama Arbitration Council shall be constituted in accordance with the
provisions of paragraph (2) of the preceding article. If the Agama Arbitration Council fails
to obtain the wife's consent to the proposed marriage, the Court shall, subject to Article
27, decide whether or not to sustain her objection.
Art. 163. Offenses against customary law. — The Shari'a Circuit Court, in cases involving
offenses against customary law which can be settled without formal trial, may, at its
discretion, direct the Shari'a Clerk of Court to constitute a council of not less than two
nor more than four members, with him as chairman, to settle the case amicably..chan
robles virtual law library
.chan robles virtual law library
TITLE III
Jurisconsult in Islamic Law .chan robles virtual law library
Art. 164. Creation of office and appointment. — (1) There shall be a Jurisconsult in
Islamic law, who shall be appointed by the President of the Philippines and hold office
for a term of seven years, without prejudice to re-appointment, unless sooner removed
for cause or incapacitated to discharge the duties of his office.
(2) The Office of the Jurisconsult shall be under the administrative supervision of the
Supreme Court of the Philippines which shall also fix its permanent station, preferably in
the City of Zamboanga.
Art. 165. Qualifications. — No person shall be appointed Jurisconsult in Islamic Law
unless he is a citizen of the Philippines, at least forty years of age, of good moral
character and proven integrity, and an eminent scholar in the Qur'an and Hadith and in
Islamic jurisprudence as well as proficient in Arabic.
Art. 166. Functions. — (1) The Jurisconsult shall, on the written request of any
interested party, have the authority to render legal opinions, based on recognized
authorities, regarding any question relating to M uslim Law. For this purpose, he may, if
he deems it necessary, consult or ask for a consensus of the 'ulama.
(2) The Jurisconsult shall consider and act on every such request unless, in his opinion
and for good reason, the question need not be answered.
(3) The Office of the Jurisconsult shall keep a compilation and cause the publication of
all his legal opinions.

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all his legal opinions.
Art. 167. Compensation. — Until otherwise provided by law, the Jurisconsult shall
receive an annual compensation of forty-eight thousand pesos which shall not be
diminished during his term of office.
Art. 168. Office personnel. — The Jurisconsult may, in accordance with the Civil Service
Law and subject to the approval of the Supreme Court, appoint and fix the compensation
of such personnel as may be necessary for the performance of his functions.
.chan robles virtual law library
BOOK FIVE
M iscellaneous and Transitory Provisions .chan robles virtual law library TITLE I
M uslim Holidays .chan robles virtual law library
Art. 169. Official M uslim holidays. — The following are hereby recognized as legal
M uslim holidays:
(a) 'Amun Jadid (New Year), which falls on the first day of the first lunar month of
M uharram; .chan robles virtual law library
(b) M aulid-un-Nabi (Birthday of the Prophet M uhammad), which falls on the twelfth day of
the third lunar month of Rabi-ul-Awwal;
(c) Lailatul Isra W al M i'raj (Nocturnal Journey and Ascension of the Prophet M uhammad),
which falls on the twenty-seventh day of the seventh lunar month of Rajab;
(d) 'Id-ul-Fitr (Hari Raya Pausa), which falls on the first day of the tenth lunar month of
Shawwal, commemorating the end of the fasting season; and
(e) 'Id-ul-Adha (Hari Raja Haji), which falls on the tenth day of the twelfth lunar month of
Dhu 1-Hijja.
Art. 170. Provinces and cities where officially observed. — (1) M uslim holidays shall be
officially observed in the Provinces of Basilan, Lanao del Norte, Lanao del Sur,
M aguindanao, North Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte
and Zamboanga del Sur, and in the Cities of Cotabato, Iligan, M arawi, Pagadian, and
Zamboanga and in such other M uslim provinces and cities as may hereafter be created.
(2) Upon proclamation by the President of the Philippines, M uslim holidays may also be
officially observed in other provinces and cities.
Art. 171. Dates of observance. — The dates of M uslim holidays shall be determined by
the Office of the President of the Philippines in accordance with the M uslim Lunar
Calendar (Hijra).
Art. 172. Observance of M uslim employees. — (1) All M uslim government officials and
employees in places other than those enumerated under Article 170 shall also be
excused from reporting to office in order that they may be able to observe M uslim
holidays.
(2) The President of the Philippines may, by proclamation, require private offices,
agencies or establishments to excuse their M uslim employees from reporting for work
during a M uslim holiday without reduction in their usual compensation.
.chan robles virtual law library
TITLE II
Communal Property .chan robles virtual law library
Art. 173. W hat constitute. — The following are communal properties:
(a) Customary heirloom, which shall include artifacts and ancestral implements or things
of cultural value handed down from a common ancestor;
(b) Ancestral property, which shall comprehend hallowed ancestral plot, ancestral shrine,
royal court, and similar properties; and
(c) charitable trust property.
Art. 174. Administration or disposition. — (1) Except as otherwise provided in this Code,
communal property shall be administered or disposed of in accordance with M uslim law,
'ada, and special provisions of law.
(2) Any provision of existing law to the contrary notwithstanding, the trustee of any
communal property shall be the person who is in lawful possession thereof, either
personally or through an agent..chan robles virtual law library
(3) The Shari'a Circuit Court may appoint a trustee of a communal property when there
is a dispute as to its custody, possession, or administration.
.chan robles virtual law library
TITLE III
Customary Contracts .chan robles virtual law library
Art. 175. How construed. — Any transaction whereby one person delivers to another any

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real estate, plantation, orchard or any fruit-bearing property by virtue of sanda, sanla,
arindao, or similar customary contract, shall be construed as a mortgage (rihan) in
accordance with M uslim law.
.chan robles virtual law library TITLE IV
Conversions .chan robles virtual law library
Art. 176. Effect of registration of conversion to Islam. — (1) Registration of a person's
conversion to Islam shall constitute a prima facie proof that he professes Islam.
(2) W hoever disputes the profession or renunciation of Islam by any person shall have
the burden of proving the contrary.
Art. 177. Regulation on conversion. — No conversion of a minor below the age of
eighteen years shall be registered by the District or Circuit Registrar without the written
consent or permission of the parents or guardian, except when such minor has been
emancipated from parental authority in accordance with law.
Art. 178. Effect of conversion to Islam on marriage. — The conversion of non-M uslim
spouses to Islam shall have the legal effect of ratifying their marriage as if the same had
been performed in accordance with the provisions of this Code or M uslim law, provided
that there is no legal impediment to the marriage under M uslim law.
Art. 179. Effect of change of religion. — The change of religion by a M uslim shall not
have the effect of extinguishing any obligation or liability whatsoever incurred prior to
said change.
.chan robles virtual law library
TITLE V
Penal Provisions .chan robles virtual law library CHAPTER I
Rule of Bigamy .chan robles virtual law library
Art. 180. Law applicable. — The provisions of the Revised Penal Code relative to the
crime of bigamy shall not apply to a person married in accordance with the provisions of
this Code or, before its effectivity, under M uslim law.
.chan robles virtual law library CHAPTER II
Specific Offenses .chan robles virtual law library
Art. 181. Illegal solemnization of marriage. — Any person who shall, without authority,
solemnize any marriage purportedly under this Code, or shall do so in a manner contrary
to the provisions thereof, shall be punished by imprisonment of not less than two
months but not more than two years, or a fine of not less than two hundred pesos but
not more than two thousand pesos, or both, in the discretion of the court.
Art. 182. M arriage before expiration of 'idda. — Any widow or divorced woman who,
having been married under M uslim law or under this code, contracts another marriage
before the expiration of the prescribed 'idda shall suffer the penalty of a fine not
exceeding five hundred pesos.
Art. 183. Offenses relative to subsequent marriage, divorce, and revocation of divorce. —
A person who fails to comply with the requirements of Articles 85, 161, and 162 of this
Code shall be penalized by arresto mayor or a fine of not less than two hundred pesos but
not more than two thousand pesos, or both, in the discretion of the court.
Art. 184. Failure to report for registration. — Except as provided in the article
immediately preceding, a person who knowingly fails to perform his duty under this
Code to report for registration any fact concerning the civil status of persons shall be
punished by a fine of not less than one hundred pesos but not more than one thousand
pesos. .chan robles virtual law library
Art. 185. Neglect of duty by registrars. — Any district registrar or circuit registrar who
fails to perform properly his duties in accordance with this Code shall be penalized in
accordance with Section 18 of Act No. 3753.
.chan robles virtual law library
TITLE VI
Transitory and Final Provisions .chan robles virtual law library
Art. 186. Effect of code on past acts. — (1) Acts executed prior to the effectivity of this
Code shall be governed by the laws in force at the time of their execution, and nothing
herein except as otherwise specifically provided, shall affect their validity or legality or
operate to extinguish any right acquired or liability incurred thereby.
(2) A marriage contracted by a M uslim male prior to the effectivity of this Code in
accordance with non-M uslim law shall be considered as one contracted under M uslim law
provided the spouses register their mutual desire to this effect.
Art. 187. Applicability Clause. — The Civil Code of the Philippines, the Rules of Court
and other existing laws, insofar as they are not inconsistent with the provisions of this

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and other existing laws, insofar as they are not inconsistent with the provisions of this
Code, shall be applied suppletorily.
Art. 188. Separability clause. — If, for any reason, any article or provision of this Code is
held to be invalid, the same shall not affect the other articles or provisions hereof..chan
robles virtual law library
Art. 189. Repealing clause. — All laws, proclamations, executive orders, rules and
regulations, or any part thereof, inconsistent with provisions of this Code are hereby
correspondingly modified or repealed..chan robles virtual law library
Art. 190. Effectivity. — This Code shall take effect immediately. .chan robles virtual law
library
DONE in the City of M anila this 4th day of February in the year of Our Lord nineteen
hundred and seventy-seven.

Pasted from <http://www.chanrobles.com/presidentialdecreeno1083.htm>

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October 11 Islamic Law Notes
Monday, October 11, 2010
10:06 AM

Divorce
-generic term
-translated in English
-Arabic words used:
Talaq Other types of divorce
Idda
Sihar
Faskh

Actual case (but not before the courts yet)

Lady got married when she was 20 years old to an Iranian, in the Philippines
After a few years, according to her, they divorced. Husband got a certificate of divorce from Zamboanga
DC (2000)
All the time, this lady developed other love affairs, latest of which is to a man she intended to marry. But
the man still has to annul his marriage. Woman was told that the Certificate of Marriage has to go to
Philippine Courts (Art. 26, FC ). Asked if advise of lawyers is correct?
Art. 26. All marriages solemnized outside the Philippines, in accordance with the laws in force in the country
where they were solemnized, and valid there as such, shall also be valid in this country, except those
prohibited under Articles 35 (1), (4), (5) and (6), 3637 and 38. (17a)
So would this article apply in this case? But this marriage was celebrated in Philippines.
Not necessary because CMPL is part of the Philippine legal system so no need to go through the
regular courts. The lawyers whom the lady consulted probably did not have all the facts right.
That divorce being recognized under Philippine law would entitle the woman to get married the
2nd time around.

Applicability Provisions: supposed you have a Muslim Man + nonmuslim Woman getting married under
Muslim Law, woman before getting married got converted into Islam. What law would cover their
marriage? MUSLIM Law because already converted (Bondadgy v. Bondagy)
If did not convert but married under muslim laws: Muslim laws still apply:
CITE CMPL PROVISIONS!!!!
Art. 13. Application. — (1) The provisions of this Title shall apply to marriage and
divorce wherein both parties are M uslims, or wherein only the male party is a
M uslim and the marriage is solemnized in accordance with M uslim law or this Code
in any part of the Philippines.

When it's the man is a nonmuslim, woman is a muslim, marriage solemnized under Islamic Law, what
would happen? Islamic law would apply because the marriage was celebrated under Islamic Law. But
under strict Islamic law, when the man is not converted into a Muslim, under the rules, marriage
between them is VOID.
WHY: The woman actually follows the man. In a Muslim family, the boss is the man (the provider of the
family) and the woman is the manager of the house. But usually, the decision of the man prevails in
many instances. Patriarchal sense/inclination of Islamic Law which came about because the Semitic
society was like that.
In your opinion, should that practice be also followed here in RP?
NO. NO such prohibition applicable under Philippine Laws (including CMPL).

Concept of Necessity
Necessity (Tarurah): one that would allow a lesser evil over a greater evil.
-how applied: in instances where the Muslims are left with very few choices (society which is not Islam

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Necessity (Tarurah): one that would allow a lesser evil over a greater evil.
-how applied: in instances where the Muslims are left with very few choices (society which is not Islam
friendly)
e.g.
a. When Muslims pray, we go in a state of purification. If after you pray and you have to go pray
afterwards, you don't need to go again in the state of purification if it was not voided. But if you
have been tainted (purification voided) but you don't have means to again purify yourself, Tarurah
would allow you to still pray.
b. In marriages where Muslim woman + Nonmuslim Man, not converted + Islamic Marriage: allowed
under Tarurah in the Philippines
c. Allowed to eat pork if no other food to eat and he would die
d. Abortion in Islam: Allowed in instances when there would be danger in the life of the mother
Contraception: prevention of pregnancy
- No life involved yet. Life only exists upon pregnancy
Abortion: extraction of the fetus from the mother
- Involves life already
*Islam allows contraception: Muslim Medical practitioners were already talking about
contraceptive methods which the women could use to prevent pregnancy (IUD). It is allowed
because if you look in the marriage in Islam, God did not make it obligatory for married muslim
couples to have children. Having Children (number of children) is the discretion of the couple. But
once you have children, you cannot take their lives.
*WHAT ARE THEREFORE THE LIMITS OF CONTRACEPTION: started with the withdrawal concept
(Azal). The logic therefore, if you allow withdrawal, then other methods for preventing pregnancy
should be alllowed. But even if you are allowed to practice contraceptive methods, if it would
result to permanent sterility, it is not allowed. Because this kills your chances of having children.
(vasectomy, tubal ligation) - unless medical reasons that would allow it
* MEDICAL REASONS which would allow abortion: if the pregnancy would result to the death of
the mother...(already discussed last meeting) - Mother already has full personality vs. Fetus
(defective)
* Recently however, included the following exemptions from prohibition on abortion:
• Child is a child of rape, especially in times of war (e.g. In Bosnia)
• If there is a danger that the child would be deformed
*When can you allow abortion: 3 views in Islam
1. Maliki: once fertilization sets in, then can no longer abort it (minority view)
2. Hanbali: Begins when child reaches 40 days in the womb of the mother
3. More liberal view: Begins after 120 days (4 months)
-reason: refer to the Quran and the hadis (pronouncement of the prophet)
C32 V7-9
Ensoulment: breathed into him something of His spirit
So san nakalagay ung "ensoulment": In Haddi
• The fetus starts as a fertilized ovum in the uterus of the mother and stays there
for 40 days, then it grows into a clot for 40 days, then it turns into a morsel of
flesh for 40 days (now 120), then an angel is sent to that fetus to blow the spirit
into it
 But note that the abortion is only allowed for valid reasons (TARURAH) + w/n the specific
period (BEFORE 120 DAYS)
 WHERE ENSOULMENT CAME FROM: those jurist depended on the Quran and the words of
the jurists; not scientific basis yet then but recently, there are recent scientific findings:
□ On Week 18 of the development of the fetus, tiny air sacs called Aveoli forms on the
fetus. The baby is approx. 16 ". Chest moves up and down to mimic breathing. = proof
of ensoulment because what marks the death of the person? When you stop
breathing.

Suppose both couples are nonmuslim. Married under Civil law in 1980. Subsequently, both are
converted to Islam. What law govern their marriage:
A178, CMPL:

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 converted to Islam. What law govern their marriage:
○ A178, CMPL:
Art. 178. Effect of conversion to Islam on marriage. — The conversion of non-
M uslim spouses to Islam shall have the legal effect of ratifying their marriage as if
the same had been performed in accordance with the provisions of this Code or
M uslim law, provided that there is no legal impediment to the marriage under
M uslim law.
○ They got married when CMPL already in Effect. So the CMPL would now apply to them as if they
got married under Muslim law?
If they got married before effectivity of CMPL + Civil marriage: Still NCC
○ What operates is WHEN THEY CONVERTED: if they got married earlier, and then converted later
when the law was not yet applicable, CMPL Still would not apply!
○ What if they want a Muslim marriage, do they still have to do something else? 2 views (no firm
answer to this - but depending on how to argue)
 Allow law to retroact: so as if married under Muslim marriage (sir prefers this view)
 Law applies prospectively; problem is it may be possible that some other persons would be
jeopardized (e.g. Successional rights): so get married under Muslim marriage if they want to
get married under Muslim laws (but sir said that this view may be deemed more valid by SC)
• TAMANO CASE:
Father of Abdel Tamano married twice (to two Muslims), allegedly under Civil rights. First wife
alleged that the two marriages were celebrated under civil rights, filed complaint for nullification
of the 2nd marriage before the RTC for being bigamous. MTD filed by 2nd wife, saying Muslim
marriage was celebrated, so RTC does not have jurisdiction - all of them were Muslims. Court held
that RTC has jurisdiction over marriage disputes, and the allegation in the MTD does not divest the
court of jurisdiction. Besides, it was only belatedly that the Petitioner raised the fact that there
was a Muslim Marriage to divest the RTC of jurisdiction vs. Shari'a Courts.
...As to Art. 13, PD 1083: does not provide for a situation where the parties were married
both in civil and Muslim rites. Consequently, the shari'a courts are not vested with original
and exclusive jurisdiction when it comes to marriages celebrated under both civil and
Muslim laws. Consequently, the Regional Trial Courts are not divested of their general
original jurisdiction under Sec. 19, par. (6) of BP Blg. 129.
If you go to BP 129, you have the concept of the integrated judicial system. Would the Shari'a Courts
belong to the Integrated Judicial System of the Philippines?
• Section 2, BP 129: Shari'a courts not mentioned.
• In terms of jurisdiction, is there distinction? YES
RTC Shari'a

General jurisdiction Limited jurisdiction
• SIR: enumeration for integrated judicial system does not include the Shari'a courts, but it includes
it in appropriation for Shari'a courts (SECTION 45). So Shari'a courts cannot grant Notarial
Commissions . In short, the Shari'a courts does not have all the powers of the RTC.
• BUT IF THE QUESTION IS, WON SHARI'A COURTS ARE PART OF THE JUDICIAL SYSTEM: YES
 Decisions of Shari'a courts are appealable to the SC
 CONSTI: one judicial system
 SC exercises power of supervision (including disciplinary jurisdiction)
• SO not part of the integrated judicial system (BP 129) but part of the judicial system in general.
WHY: First shari'a courts were established after the effectivity date of BP 129. If BP 129 be
amended, the Shari'a court system would probably be included in the INTEGRATED JUDICIAL
SYSTEM

Art 75 & Art 80

Art. 75. Effects upon property of children. — (1) The father, or in his absence the
mother, shall be the legal administrator of the property of the child under parental
authority. If the property is worth more than five thousand pesos, the father or the
mother shall give a bond to be approved by the court.
(2) The court may appoint a guardian (wasi) in the absence of one who is natural or
testamentary.
***

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***
Art. 80. Guardian of minor's property. — The following persons shall exercise
guardianship over the property of minors in the order of precedence:
(a) Father;
(b) Father's executor or nominee;
(c) Paternal grandfather;
(d) Paternal grandfather's nominee; or
(e) The court.

WHAT SEEMS TO BE THE PROBLEM?

Art 80 has an entirely different set of guardians vs. Art 75 (where mother is the alternative of the
father in the legal administration of the property of the child). What is the reason of the conflict?
• Art. 75 concerns parental authority; Art. 80 concerns guardianship
• Art. 80 is closer to Islamic law; and Islamic law and Islamic society is patriarchal. Art. 75 is
civil law provision (and the authors seemed to have overlooked the concept in Art. 80)
BUT IN CASE OF PROPERTY OF CHILD, WHICH WOULD PREVAIL?
• If the case involves the guardianship of the minor child, use Art. 80 (and if this is brought
before the shari'a courts)
• If the case involves parental authority/custody over the minor child, use Art. 75
• Construe the code using the sources of Islamic Law
• Cf: Bondagjy v. Bondagjy
"The Court" in Art. 80 (e): the court is to be guided by Islamic law on who it should consider as the
guardian of the minor's property. It should consider paternal side down the line:
Father
Grandfather
Brother of the father
Son of the brother of the father
Uncle of the father
• Mother not included in the enumeration: Tries to avoid the possibility where the mother
gets married to another man later on. The mother would now be subject to the authority of
the new husband. SO protect the property of the minor child from the authority of the
subsequent husband (step-father of the minor child).

AGAMA ARBITRATION COUNCIL

Art. 160. Constitution. — The Shari'a District Court or the Shari'a Circuit Court
may, in appropriate cases, constitute an Agama Arbitration Council in the manner
specified in this Title.
Art. 161. Divorce by talag and tafwid. — (1) Any M uslim male who has pronounced
a talag shall, without delay, file with the Clerk of Court of the Shari'a Circuit Court
of the place where his family resides a written notice of such fact and the
circumstances attended thereto, after having served a copy thereof to the wife
concerned. The talag pronounced shall not become irrevocable until after the
expiration of the prescribed 'idda. The notice filed shall be conclusive evidence that
talag has been pronounced.
(2) W ithin seven days from receipt of notice, the Clerk of Court shall require each of
the parties to nominate a representative. The representatives shall be appointed by
the Court to constitute, together with the Clerk of Court as Chairman, an Agama
Arbitration Council. The Agama Arbitration Council shall submit to the Court a
report on the result of the arbitration, on the basis of which and such other
evidence as may be allowed, the Court shall issue the corresponding order.
(3) The provisions of this article shall be observed should the wife exercise tafwid.
Art. 162. Subsequent marriages. — Any M uslim husband desiring to contract a
subsequent marriage shall, before so doing, file a written notice thereof with the
Clerk of Court of the Shari'a Circuit Court of the place where his family resides.
Upon receipt of said notice, the Clerk shall serve a copy thereof to the wife or
wives. Should any of them object, an Agama Arbitration Council shall be
constituted in accordance with the provisions of paragraph (2) of the preceding
article. If the Agama Arbitration Council fails to obtain the wife's consent to the
proposed marriage, the Court shall, subject to Article 27, decide whether or not to

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 proposed marriage, the Court shall, subject to Article 27, decide whether or not to
sustain her objection.
Art. 163. Offenses against customary law. — The Shari'a Circuit Court, in cases
involving offenses against customary law which can be settled without formal trial,
may, at its discretion, direct the Shari'a Clerk of Court to constitute a council of
not less than two nor more than four members, with him as chairman, to settle the
case amicably.

• Note that ADR law does not apply in Shari'a courts

• What under jurisdiction:
• Divorce
• Subsequent marriages, when wife does not consent
• Offenses against customary law
• Art. 36, CMPL: when the husband does not allow the wife to exercise her profession
• What are the subject matter covered under the AAC: the subject matter is not limited to divorce
and marriage alone, but would include ancillary issues which are necessarily discussed in the issue
at hand. Subject matter is broader! Otherwise, useless. It's actually an ADR council.

FINALS: next Monday, same room.

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