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CODE OF MUSLIM PERSONAL LAWS OF THE

PHILIPPINES

PRESIDENTIAL DECREE NO. 1083

COMMENTARIES ON THE CODE OF A DECREE TO ORDAIN AND PROMULGATE A
MUSLIM PERSONAL LAWS OF THE CODE RECOGNIZING THE SYSTEM OF FILIPINO
PHILIPPINES MUSLIM LAWS, CODIFYING MUSLIM PERSONAL
LAWS, AND PROVIDING FOR ITS
With Jurisprudence and Special ADMINISTRATION AND FOR OTHER PURPOSES.
Procedure
WHEREAS, pursuant to the spirit of the
by provision of the Constitution of the Philippines that, in
BENSAUDI I. ARABANI, SR. order to promote the advancement and effective
participation of the National Cultural Communities in
RTC-Judge, former SDC Judge, Member Philippine Bar the building of the New Society, the State shall
Assn., Philippine Judges Ass. Past President, Philippine consider their customs, traditions, beliefs and interests
Shari'a Court Trial Judges League, and Philippine Shari'a
in the formulation and implementation of its policies;
Bar Assn., Former Regional Director, Citizens Legal
Assistance Office, DOJ, Region IX-A, former member of
the Research Staff for the Codification of the Code for the WHEREAS, Islamic law and it principles of
Administration of Muslim Personal Laws of the Philippines, equity and justice, to which the Filipino Muslim
former Lecturer on Philippine Shari'a Court Procedure,
communities adhere, provide an essential basis for the
Philippine Judicial Academy, (S.C.), Lecturer on Philippine
Muslim Law, Philippine Shari'a Institute (OMA), Reviewer. fuller development of said communities in relation to
Philippine Shari'a Special Bar Review (OMA), the search for harmonious relations of all segments of
former examiner on Philippine Shari'a Court Procedure, the Filipino nation to enhance national unity;
Shari'a Special Bar Examination (S.C), former Professorial
Lecturer on Philippine Muslim Law, NDJC Western
Mindanao State University College of Law, and author, WHEREAS, the enforcement, with the full
Philippine Shari'a Court Procedure. sanction of the state, of the legal system of the Filipino
Muslims shall redound to the attainment of a more
ordered life amongst them;

Published & Distributed by: WHEREAS, it is the intense desire of the New
REX Books Store
Society to strengthen all the ethno-linguistic
Manila, Philippines
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.

MARCOS, 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 Muslim Personal Laws of the Philippines"
as part of the law of the land and hereby decree.
 1
BOOK ONE and purely religious laws, only those that are fundamentally
personal in nature were to be codified.
GENERAL PROVISIONS
Historical Background of the Code of Muslim
Personal Laws in the Philippines. - The present Code of
TITLE I. TITLE AND PURPOSES OF THE Muslim Personal Laws of the Philippines is the result of
CODE Islamic influence that was first introduced in Sulu by the early
Muslim missionaries. The period is believed to be about 710
Article 1. Title. This decree shall be known as the A.H. (after Hijra) or 1310 A.D. on the basis of the inscriptions
"Code of Muslim Personal Laws of the Philippines." in Arabic alphabet found in the tomb of Tuan Magbalu Rajah
Saginda at Bud (Mount) Datu, a place some kilometers from
Jolo, the capital town of Sulu. This is as far as the available
Notes/Comments historical artifact data is concerned, although earlier before
that, a certain "Tuan Mushaika came and it is believed that
Source of Article. - Code Commission at that time the inhabitants of Sulu islands were not yet
Muslims. It is not also certain whether Tuan Mashaika was a
Meaning of Decree. Decree is an ordinance or edict Muslim, though judging from the names of his reported
promulgated by civil or other authority. Thus, edict is a children Tuan Hajim, and Aisha, he must have been a
decree issued by a sovereign or other authority; an Muslim. Thereafter, another Arabian missionary named
authoritative proclamation. Karum-ul-Makidum, arrived in Sumawil, Sulu. It is said that
he built a mosque and people from different parts of the
Purpose of Title. - The Code is patterned from most islands flocked to him. Then he was followed by Sayyid Abu
modern code which contain a preliminary title providing for Bakr. The most notable of these early Muslim missionaries
the general principles of the law. By giving it a title as the is Sayyid Abu Bakr who came all the way from Arabia,
Code of Muslim Personal Laws of the Philippines, it is given passing through Sumatra, Malacca, then to Sulu. His
an identity that would distinguish it from the other laws and mission, according to sources, was ignited by an enthusiasm
provides an idea of what the law is all about. For the purpose to preach the doctrine of Abu Ishaq which were embodied in
of this work and for brevity, it shall be referred to in short as a book called "Dar-ul-Mazlum" (the House of the
the Muslim Code, or the Code. Oppressed).

Concept of Muslim Law. - Muslim law (Shari'a) According to the "Sarsila" (historical traditions) of
refers to all the ordinances and regulations governing the "Tausug the early natives of Jolo, an Arabian missionary
Muslims as found principally in the Quran and the Hadith Sayyid Abu Bakr, believed to have descended from the
(prophetic tradition) which Muslims believe are revealed law family of the Holy Prophet of Islam came to Buansa, Jolo,
from God or by God's divine guidance that envisages a the seat of government of the island's local chieftain Rajah
complete code of moral conduct for the guidance of Baginda. The knowledge of Sayyid Abu Bakr about Islam
mankind; a system of law generally referred to as Al- Shari'a. earned him the admiration of the Rajah who gave his
daughter Lady Paramisuli in marriage to the former. In due
Code Defined. - Code has been defined as a body time, because of the competence of Sayyid Abu Bakr in
of law established by legislative authority of the state, and promoting the cause of Isiam, and age prevented the Rajah
designed to regulate completely, so far as a statute may, the from administering the affairs of the state, and having no son
subject to which it relates.' he made Sayyid Abu Bakr his successor giving him the title
Paduka Mahasa-i Maulana al-Sultan al-Shariful Hashim and
Code of Muslim Personal Laws of the vested him with the powers and authority as the new ruler of
Philippines. - In the legal sense, personal laws are those the Islamic theocratic state. The Tausug refer to him as
which appertains to person.* It is that which follows the Sharif al Hashimite, meaning the Hashimite Sharif or noble.
person, as distinguished from the place where the person Abu Bakr established Madrasas (Islamic schools) and
may be. The Code of Muslim Personal Laws of the Mosque. He decrees laws according to Islamic injunctions
Philippines is a body of laws that treats of the personal laws and settled cases in accordance with laws. He is said to be
of the Muslim in the Philippines, and provides for the a famed jurist. He acted as the natives spiritual and
administrative machinery for its implementation. It applies temporary leader."
only to Muslims in matters relating to their personal status,
matrimonial and family relations, succession and The influence of Islam and the Islamic law in Sulu
inheritance, and property relations between spouses. Non- spread to the other islands in the archipelago, that more than
Muslim are not embraced in the law, except in those cases two centuries later in 1570, when the Spaniards colonizer
provided by the Code; a body of law the principal, direct and under Miguel Lopez de Legazpi arrived in this country, they
immediate object of which is the personal legal system of the found a noticeable influence of the religion of Islam among
Muslim in the Philippines. In this regard, the governing the natives, a religion practiced by the Moors of Spain as
principle of the Code Commission in reviewing the Muslim Spain herself was under the Muslim Moors for over seven
Code was guided principally by the fundamental criteria, hundred years, and consequently the Spanish historian
among which is that; of the Islamic legal system of the Legaspi, called the natives of the islands Moro after the Arab
Philippines, which is considered a complete system Moors of Mauritania, Morocco, and Spain.”
comprising civil, criminal, commercial, political, international
 2
In accordance with the tradition of Islam as started council investigated and studied such laws as it was able to
and developed in the Arabs land, the Sultans or Rajahs, as make use of. Copies of the "Code of Laws for the Moro
heads of the Muslim communities of these islands then, people" and the "Moro Civil Laws" which were then in force
were the protectors and upholders of the Islamic law or in Sulu were sent to the council. However, the American
Muslim law. They appoint Qadi, or Chief Judge (called Tuan Military Governor of the Moro Province Leonard Wood was
Kali in the native dialect), usually an Arab learned in Islamic obviously unpre pared because he claimed that "nothing has
law who serves as adviser in matters of legislation of all been found worthy of codification or imitation." The outright
important laws. On the other hand, some datus or local rejections must have been propelled by the conditions of the
chieftains stood as protectors of customary law, since they time. The Moro Province was then saddled with
stood to gain from it. Moreover, some datus had enough administrative problems aside from the fact that the
Islamic consciousness or sophistication that led them to government did not as yet comprehend the predicament of
moderate differences between customary law and the Divine the Mus- lims. Inspite of this cessation of their vitalizing force
Law, 10 under an orga- nized authority the Muslim communities have
continued to follow their "personal law" as a matter of internal
Thus, in order to guide the qadis, as well as their communal ordinance. Consequently, some laws were
subjects for whom customary laws and the Holy law in some passed such as Act No. 1283 of June 13, 1905 amending
areas were intermingled without basis for distinction, the Act 787, providing for the enactment of laws to suit local
sultans tried to codify some selective aspects of the personal conditions among Moros (Muslims), and to cause such laws
laws. It is said that Azimuddin, a learned Sultan of Sulu, tried to conform whenever practicable to their local customs and
such codification around the 1740s. But no evidence of this usages: And Act No. 2520 of the Philippine Commission,
work seems to have survived. Certainly, the Sulu Sultan passed on April 3, 1915, Section 3 of the Act authorizes
Pulalun (Fadl) around 1850 had one prepared and adhered judges to modify Philippine laws in civil cases involving
closely to the classical texts especially on punishments. His Muslim litigants to suit Muslim cus toms and practices. Thus,
successor, Jamal-ul-Azam (reigned 1862-1881), had in the Muslim Communities, the sanction for its ordinance
another code prepared where punishments were relatively has not relied upon the coercive power and author- ity of the
more moderate. This code was accepted by the leading government but rather the subtler influence
datus and other officials of the state in 1878 AD. It is of customs and practices, the traditional respect for their
sometime called "Diwan" (codex) of the Sultan of Sulu. leaders and the moral force of Muslim law,
Another code based on this was drafted in 1902; but it
appears that it was not, for many political and social reasons, After the American Commonwealth government in
even operatives. In Maguindanao, the qadis were guided by the Philippines and during the period of the Government of
the Luwaran consisting of 85 "articles" (some consisting of the Republic of the Philippines, some laws were enacted
various "sections," its bulk represented translated selections recognizing certain aspect of the Filipino Muslim Personal
from Arabic books, one of them being a 15th century law Law among which are RA No. 394, recognizing divorce
manual) but amended in some details to make them among Muslims in accordance with their customs and
practical in the context of local situations and customs. practices. Articles 78 and 79 of the new Civil Code or
Attached to most of these provisions are about 100 Arabic Republic Act No. 386, recognizing marriages among
marginal quotations taken from four Arabic law manuals Muslims or mixed marriages between Muslim male and non-
adhering to the Shafi'i Madhab. The intention was to make Muslim female solemnized in accordance with Muslim
these quotations serve as authoritative props to the customs, rites or practices; both laws however, were to be
provisions. It is calculated that the Luwaran was compiled in operatives for a period of twenty years, thereafter, the
the middle of the 18th century. It was quite universal in general law as provided in civil code regarding marriage and
Maguindanao divorce shall be the law to be observed the ultimate aim
or Cotabato area. Its provisions deal mainly with property, being the subsequent assimilation to the general laws of the
slaves, transactions, partnership, debts, nature of oaths, Filipino Muslims; and PD No. 410 of March 11, 1974,
testimony, homicide, marriage, divorce, adultery, gifts, recognizing Muslim ancestral lands, and many others all of
inheritance, wills, fines, and punishments. It does not deal which however are laws of special and non-permanent
with other aspects of Islamic law such as rituals and applications, which in due time will definitely give way to the
moralities." general laws of the land which was the state ultimate aim.
However, to take away from a people part of their way of life
With the coming of the American in 1898, came the handed from generation to generation is certainly not easy
establishment of the American System of Government and with the Muslim Filipinos who continued to work that the
law. Consequent ly, the power of the Sultan to implement its state recognizes their personal law.
laws began to waver especially with the introduction of the
American system of law in the islands. Immediately after the It has always been the genuine aspiration of the
organization of the Moro province in 1903, a careful study Filipino Muslims to have their personal laws recognized by
was made of the laws and customs of the "Moros" (Muslim the state. This aspirations was realized when President
Filipinos) with a view of determining whether "a consistent Ferdinand E. Marcos on August 13, 1973, signed
sensible and humane code of law" could be put in force, Act Memorandum Order 730 creating a Research Staff to
No. 787 of the Philippine Commission was approved on prepare a preliminary of the draft proposed Code of the
June 1, 1903, enjoining that it shall be the duty of the Philippines Muslim Laws and its implementing agencies.
Legislative Council of the Moro province "to enact a law Subsequently, on December 23, 1974, the President issued
which shall collect and codify the customary (adat) laws of EO No. 442, which created the Presidential Commission to
the Moros (Muslim Filipinos); over a period of one year," the review the Code of Filipino Muslim Laws, directing further
 3
that, in the performance of its task, it shall likewise consider Book V of the Muslim Code provides for the
the draft of the "Proposed Code of the Administration of the miscellaneous and transitory provision. There are six titles in
Philippine Muslim Laws of 1974," submitted by the Research it as follows: Title I which gives the Muslim Holidays; Title II
Staff. Consequently, on February 4, 1977, Presidential states what consist of Muslim communal property; Title III
Decree 1083, otherwise known as the "Code of Muslim states what are customary contracts; Title IV relates to
Personal Laws of the Philippines" was signed into law by conversion; Title V the penal provisions. Under this latter
then President Ferdinand E. Marcos, thereby finally giving title, there are two chapters: Chapter One, relating to
reality to the aspiration of the Filipino Muslims to have their bigamy; and Chapter Two enumerates the specific offenses
system of personal laws recognized, enforced and applied under the code; and, finally, Title VI is the transitory and final
to them. provisions.

Arrangement of the Code. - The arrangement of Language of the Muslim Code. - The Muslim Code
the Muslim Code is patterned after the new Civil Code of the was written in the English language and signed into law and
Philippines. It is grouped into five general headings or topics, implement- ed in that language. In its interpretation and
each of which is subdivided into different titles, some of construction, there- fore, the English text shall prevail over
which are in turn further subdivided into chapters and some any translation. It should be noted, however, that where the
chapters into sections, provision of the law was lifted from the primary text of Muslim
law, the Quran or the Hadith, or other primary sources of
Book I of the Muslim Code contains the General Muslim law, and literally translated into the English language
Provisions; it has the following titles; Title I, which is the title which do not have exactly the same meaning, such
and purposes of the Code, and Title II, the construction of provisions must be translated whenever practicable
the code and definition of terms. according to its original Arabic text;" otherwise, the rule on
statutory construction that the spirit of the original text should
Book II relates to Persons and Family Relations. It be considered and applied.
is made up of seven titles; Title I deals with Civil Personality
(saksiya madani- ya) and Title II covering marriage and Art. 2. Purpose of Code. - Pursuant to Section II
divorce. Title II consist of three chapters: Chapter One is the of Article XV of the Constitution of the Philippines,
applicability clause; Chapter Two Involves marriage (nikah), which provides that "The State shall consider the
which in turn consist of six sections. Section One provides customs, traditions, beliefs and interests of national
the requisites of marriage; Section Two enu- merates the cultural communities in the formulation of state
prohibited marriages; Section Three deals with subse quent policies," this code:
marriage; Section Four gives the batil and fasid marriages;
Section Five the rights and obligation between spouses and (a) Recognizes the legal system of the Muslims
Section Six treats the property relations between spouses. in the Philippines as part of the law of the land;
Chapter Three deals with divorce (talaq). It has two sections
under it. Section One refers to the nature and form of (b) Codifies Muslim personal laws; and
divorce; while Section Two is about idda (waiting period).
Title III concerns paternity and filiation; Title. IV on support (c) Provides for an effective administration and
(nafaga); and Title V on parental authority. The latter consist en- forcement of Muslim personal laws among Muslims.
of two chapters. Chapter One is about the nature and effects
of divorce; and Chapter Two relates to guardianship. The Notes/Comments
last title in Book II is about Muslim Civil Registry. It consist
of two chapters. Chapter One is about registration of Sources of Article. Code Commission.
marriage and conversion; and Chapter Two concerns acts
affecting civil status. Constitutional Basis of the Code. - Pursuant to
Section 11 of Article XV of the 1973 Constitution of the
Book III of the Muslim Code deals with the law on Philippines, which provides that: "The State shall consider
succession and inheritance. It is made up of four titles. Title the customs, traditions, beliefs and interests of national
I are the general provisions; Title II deals with testamentary cultural communities in the formulation of state policies," the
succession; the latter has one chapter dealing with wills; Muslim Personal Law of the Philippines was prepared,
Title III deals with legal succession. This too has also two signed and approved into law on February 4, 1977, as
chapters; Chapter one deals with shares; and Chapter Two Presidential Decree No. 1083. The present constitution of
about residuary heirs; and Title IV is about settlement and 1987, Section 22, Art. II, on Declaration of Principles and
partition of estate. State Policies also provides, and quote: "The State
recognizes and promotes the rights of indigenous cultural
Book IV of the Muslim Code deals with the communities within the framework of national unity and
adjudication and settlement of disputes and the rendition of development." This constitutional provision likewise gives
legal opinions. It has three titles under it. Title I provides for sanction to the present Muslim Code.
the Shari'a courts; there are two chapters under this title.
Chapter One relates to the Shari'a District Courts, Title II Objectives of the State in Providing for P.D.
relates to the Agama Arbitration Council; and Title III is about 1083.- The preamble of the Muslim Code (P.D. 1083) states
the jurisconsult in Islamic Law. the general objectives of the state as enunciated in the
above cited constitutional provision in making the law which
are, to state:
 4
Transportation Code, the Tax and Custom law, the
1. To promote the advancement and effective Commercial laws, the Civil Service law, all public laws in fact,
participation of the National Cultural Communities (in and many others. The Civil Code itself will continue to be
general, and the Filipino Muslim in particular) in the building applied to Muslims, except insofar as it relates to persons
of the New Society, by considering their customs, traditions, and family relations (ie., inheritance). (Indeed, even with
beliefs and interests in the formulation and implementation respect to those matters, the Civil Code is expressly given
of the state policies; suppletory application). Thus, if an ejectment suit should
arise between two Muslims or between Muslims and non-
2. To make Islamic law and its principles of equity Muslims, the Civil Code or any other applicable law would
and justice, to which the Muslim Filipino communities apply. If the dispute refers to a mining claim or to a piece of
adhere, provide for the fuller development of said land, the Mining law or the Land Registration Act or Public
communities in relation to the search for harmonious Land Act, as the case may be, will govern."
relations of all segments of the Filipino nation to enhance
national unity; Governing Principles Observed in the Codification of
Muslim Personal Laws. In reviewing the Proposed Code on
3. To attain a more ordered life among them (Filipino the Administration of Philippine Muslim Laws of 1974
Muslim); and prepared by the Research Staff, as well as in the drafting of
the "Code of Muslim Personal Laws of the Philippines," the
4. To strengthen all the ethno-linguistic communities Commission was guided principally by the following
in the Phil- ippines (particularly the Filipino Muslim) within fundamental criteria, namely:
the context of their respective ways of life in order to bring
about a cumula tive result satisfying the requirements of 1. Of the Islamic Legal System, which is considered
national solidarity and social justice. a complete system comprising civil, criminal, commercial,
political, in- ternational and purely religious laws, only those
In order to achieve those objectives, the state has in that are fundamentally personal in nature were to be
this Muslim Code (P.D. 1083) recognized the legal system codified:
of the Muslims in the Philippines as part of the law of the land
and thereby made Islamic institution in the Muslim 2. Of the Personal laws, those relative to acts, the
communities more effective; codified the Muslim personal practice of which are absolute duties under Muslim law were
laws; and provided an administrative machinery for an to be included. and those which according to Muslim law are
effective administration and enforcement of the Muslim forbidden and demand unconditional punishment were to
Personal law among the Muslims in the Philippines." remain prohibited.

Effects of Recognition of Muslim Legal System. 3. Where the provisions of the law on certain
Professor Esteban B. Bautista of the U.P. Law Center who subjects were too complicated for a Code, only the
was a member of the Presidential Code Commission that fundamental principles were to be stated, and the details left
drafted the Muslim Code (P.D. 1083) made the following to the judges for proper implementation.
observations regarding the effects of the recognition of the
Muslim Legal System. "As a result of its recognition as part 4. No precept, fundamental though it might be, was
of the law of the land, the Filipino Muslim's entire legal to be incorporated in the Code where it appeared to be
system, not just what are known as personal laws, must be contrary to the principles of the Constitution of the
observed, whenever and wherever it may apply, throughout Philippines; and
the country and may now be enforced, like other Philippine
Laws, with full sanction of the State. It does not mean, 5. No precept was to be included unless it was
however, that it is an independent legal system that will exist based on the principles of Islamic law, as expounded by the
and operate without regard to other laws of the national four orthodox (Sunni) school.
interest. Like the other laws, the Muslim legal system is
subject to the constitution." Therefore, anything in it that is From the aforequoted governing principles adopted
contrary to the Constitution is not deemed recognized as in the codification of the Muslim Code, it will thus be seen
part of the law of the nation. Even such of it, especially that only the purely personal laws of the Filipino Muslim were
custom law (ada), is not in accord with the Code, public codified. However, it does not mean that it has included all
order, public policy and public interest will not be given Muslim personal laws in the present Code. The Code
effect." Commission that drafted the Code reported: "The
Commission is, however, aware that this is not beyond
Effects on Other Laws of Muslim Code. The improvement." In other words, the Code did not codify all the
learned Professor Esteban B. Bautista went further to say: elements of Islamic law that applies to personal and family
"Nor is it true, contrary to the now current misconception or law, and it still allows the adoption of other Muslim personal
speculation, that the Muslims will now be governed solely by laws which are not included in the Code. In brief, the Code
their legal system and be exempt from observing other is not exclusive in details regarding Muslim Personal Laws.
Philippine laws. Muslims will continue to be governed by the Thus, the Code itself, particularly Article 4 thereof, allows the
laws of general application like the Revised Penal Code Shari'a Courts created pursuant to this Code to take into
(except, in certain cases, as to bigamy)" and other Penal consideration the primary sources of Muslim Law) in the
laws, the Land Registration Act, the Public Land Act, the construction and interpretation of the Code," and Article
Mining law, the Forestry law, the Fisheries Act, the Land 13(3) likewise provides that in matters mentioned therein,
 5
such as marriage, divorce, etc., the Code and other Muslim stated, the Muslim Code being a special law, shall prevail
laws shall govern." over a general law. For example, under Art. 340 of the
Revised Penal Code which is a law of general application,
Administration and Enforcement of Muslim contracting a subsequent marriage while the former
Code. - The administrative machinery created under the marriage subsist is prohibited and punishable as a crime of
Muslim Code for its effective implementation and bigamy. Under Article 27 of the Muslim Code which is a
enforcement are the Shari'a District Courts, the Shari'a special law, a subsequent marriage so long as it complies
Circuit Courts, the Agama Arbitration Council and the with the provided for its validity under the Muslim Code is
Jurisconsult in Islamic Law, the Muslim Civil Registry un- der valid, the latter being a special law, prevails over the former
the Shari'a District and Circuit Courts. The Supreme Court which is a general law. It has been held that in case of
has provided a Special Rules of Procedure (Ijra-at Al conflict between a general law and a special law, the latter
Mahakim Al Shari'a) for the Shari'a Courts placing the must prevail as an exception to the former regardless of the
Shari'a Courts and the personnel under its administrative dates of their enactments.
supervision, thereby securing them just like the other courts
of the state in the discharge of their functions in order to Same; Rule of Construction in Case of Conflict
make the administration and enforcement of the Muslim Between the Muslim Code and Another Special Law or
Code more effective. Laws of Preferential Application. The second situation
contemplates of two rules. The first is conflict between the
In order to ensure observance and compliance of its provision of the Muslim Code and laws of local application.
provisions the Code has also provided some specific By laws of local application are those laws which refers to
offenses in Articles 181 to 185 and providing penalties persons or things or particular persons or things of a class
therefore in case of violation. or which operates on or over a portion of a class instead of
all class in a certain jurisdiction. In case of conflict between
the provision of the Muslim Code and a special law, the latter
TITLE II. CONSTRUCTION OF THE CODE AND shall be liberally construed in order to carry out the former.
DEFINITIONS OF TERMS By liberal construction mean not that the words should be
forced out of their natural meaning, but simply they should
Art. 3. Conflict of Provisions. (1) In case of receive a fair and reasonable interpretation with respect to
conflict between any provision of this Code and laws of the objects and purposes of the instrument. For example,
general application, the former shall prevail. Presidential Decree 794 recognizes divorce among Filipino
Muslims in accordance with their customs and practices,
(2) Should the conflict be between any provision however, it did not specify the grounds for granting such
of this Code and special laws or laws of local divorce. Whereas, the provision of the Muslim Code, Articles
application, the latter shall be liberally construed in 45 to 52 of the Muslim Code enumerates the grounds for
order to carry out the former. granting divorce among Muslim Filipino. In case of conflict
(3) The provisions of this Code shall be between the provisions of the former law and the provision
applicable only to Muslims and nothing herein shall be of the latter law, the former shall be liberally construed in
construed to operate to the prejudice of a non-Muslim. favor of the provision of the Muslim Code. The same rule is
true regarding conflict between the provision of the Muslim
Notes/Comments Code and the provision of a law of local application; e.g.,
Under the Indigenous People's Act of 1997, R.A. No. 8371
Sources of Article. - Legal Hermeneutic; Sec. 4, there are some provisions on ancestral domain. The Muslim
Proposed Code of 1974 for the Administration of the Muslim Code in Article 173. likewise defines what are communal
Law; Code Commission. property which include ancestral property. In case of conflict
between the Muslim Code and the Indigenous People's Act
Rules of Construction in Case of Conflict of 1997, the rule under the Muslim Code is the provision of
Between Any Provision of the Muslim Code and Laws of a law of local application shall be liberally construed in order
General Application. The first situation is a conflict between to carry out the provision of Muslim Code. This is evident
any provision of the Muslim Code and laws of general from Section 52(a) of R.A. No. 8371.
application. By laws of general application or general laws
are those which apply to and operate uniformly upon all Same: Construction; Code Applicable Only to
members of any class of persons, places or things, requiring Muslim. -The third paragraph of Art. 13 of the Code should
legislation peculiar to themselves in matter covered by the have been worded as follows: "The provisions of this Code
laws,' e.g., the Revised Penal Code and the New Civil Code. shall be applicable only to Muslim and except as otherwise
Special laws are those the principal, direct and immediate provided herein, nothing shall be construed to operate to the
purpose is to regulate a particular subject, object, or for a prejudice of non-Muslim." The reason for this is that it would
special purpose, e.g., the Muslim Code. A general law is not be appropriated to construe that "the provisions of this
distinguished from a special law like the Muslim Code, in that Code shall be applicable only to Muslims and nothing therein
generally, the former applies to all persons within the state shall be construed to the prejudice of non-Muslim." There
or community, while in the case of the latter, it deals with the are many instances under the Code when its provisions shall
affairs of a specific or particular group or class or interest of apply to non-Muslim. For example, under Art. 13, the
a people within the state or community. The rule is in case provision of the Code on marriage and divorce shall apply to
of conflict between any provision of the Muslim Code and a couple where the male is a Muslim and the female is non-
laws of general application, the former shall prevail. Briefly Muslim whose marriage was solemnized in accordance with
 6
the Muslim Law or this Code in any part of the Philippines; their marriage retroactively as though it was performed in
Art. 93(c), a non-Muslim is disqualified to inherit from a accordance with the Code or Muslim law.
Muslim relation; Art. 107, a non-Muslim who is disqualified As regard alien Muslim, the Muslim law takes
to inherit from a Muslim relation is entitled however, to a one exception to the nationality and the territoriality theories
third of what he or she would have receive from the concerning the applicability of personal laws. Islam ordains
decendent estate where it not for such disqualification; Arts. a common code of life for all Muslims. It lays down a
146, 156, 164 and 168, the non-Muslim officers and other universal rule that all Muslim countries shall be governed by
personnels of the Shari'a District Courts, the Shari'a Circuit the same Code of Personal Laws." This rule is evident from
Courts, and the Office of the Jurisconsult, will have to paragraph 3, of the treated Article 3 of the Code when it
perform the duties of their office as provided under the provided therein: "This Code shall be applicable only to
Muslim Code:* Arts. 169 to 172 on Muslim legal holidays, Muslim, in general without making any distinction.
non-Muslim employers and employees in Muslim
communities in the Philippines are bound to observe them Applies to Filipino Muslims Outside of the
Arts. 176 to 179 on conversion would involve non-Muslims Country. - The Code applies to Muslim Filipinos abroad, or
accepting Islam as their faith;" and Arts. 181 and 185 on those outside of the country for the reason that the Code is
specific offenses will apply to non-Muslim who would be a personal law, or a law which appertain to person," that
found guilty of violating them. which follows the person, as distinguished from the place
where the person may be. According to Muslim law
Who Are Those Muslim Covered by the Muslim jurisprudence, the Muslim law is personal in its application,
Code. The term Muslim is given a definite meaning in this that is to say, it is not affected by the constitution of a
Code as: "a person who testifies to the oneness of God and particular political society. This is because the authority of
the Prophethood of Muhammad (P.B.U.H.) and professes the law, according to Muslim law theory is primarily based
Islam." Muslim in the Philippines may be classified into: (1) on men's conscience rather than on political force regardless
those born of Muslim Fili- pino parents; (2) those who were of the existence of a political authority which may be
converted to Islam who are now popularly called "Convert changed with its enforcement. Thus, if a Muslim goes from
Islam" (convert to Islam) or Balik Islam (one who has one state to another, he is bound by the same laws and if he
returned to Islam); and (3) those foreigners or aliens who are does not live within the jurisdiction of a non- Muslim State,
Muslims residing in the Philippines. the Muslim law still applies to his conscience."

In the case of those whose parents are Muslim Under the Muslim law theory, Islam has ordained for
Filipinos, the Code applies specifically to them. There is no all Muslim a common Code of Personal Law applicable to all
accurate official census made of the total Muslim Filipino Muslims regardless of his domicile and nationality."
population in the country at present. It is believed to be
approximately over five million who are distributed Art. 4. Construction and Interpretation. – (1) In
throughout the nation but the greatest number of them are the construction and interpretation of this Code and
generally distributed into thirteen (13) ethnic groups and other Muslim laws, the court shall take into
scattered over the islands of Mindanao, Sulu, Basilan, and consideration the primary sources of Muslim law.
Tawi-Tawi archipelago, and the island of Palawan, South of
Puerto Princesa, as follows: (1) Maguindanao (largest (2) Standard Treatises and works on Muslim law
group), in Cotabato Region; (2) Tausug (second largest and jurisprudence shall be given persuasive weight in
group), in Sulu and Tawi-Tawi archipelago, mainly in Jolo; the interpretation of Muslim law.
(3) Badjaos, Bangigih, Samal in Zamboanga, Basilan and
Tawi-Tawi and Sulu Archipelago; (4) Jama Mapun (Samal, Notes/Comments
Cagayan), in Cagayan de Sulu now called Cagayan de
Tawi-Tawi, now Mapun Municipality, when Tawi-Tawi was Sources of Article. Sec. 5, Proposed Draft of 1974,
created into anoth- er province separate from Sulu); (5) Code for the Administration of Muslim law.
Kalibugan, in Zamboanga del Sur; (6) Sangil, a small group
in Sarangani island; (7) Yakan, in Basilan; (8) Ilanun, (third Construction and Interpretation; Its Meaning. -
largest group) from Buldon, Parang, Maguindanao Province, Construction means determining the meaning and
North along the shores of Illana Bay in Lanao del Sur, (9) application as to the case in question of the provision of
Maranao, in Lanao Region; (10) Kalagan (kin of Tagaka- statute" by the court, while interpretation is the discovery of
olo), in Davao Provinces, on the shore of Davao gulf; (11) the true meaning of any word used to convey ideas. In other
Palawani in Southern Palawan; and (12) Molbog, a small words, in the case of statute, determining the meaning of a
group in Balabac Island, Southern Palawan. Due to the word used therein. Under Article 4, paragraph 1, the
migration of the Muslims to Visayas and Luzon, Muslims are conjunction "and" is used which means that the words
now found all throughout the country. construction and interpretation are two different methods
that may be used in ascertaining any provision of the Muslim
In the case of the Muslim converts, the Muslim Code Code. Although the two words are often times used
shall apply to them from the moment of the registration of the interchangeably as synonymous terms, however, in the strict
act of conversion with the Muslim District or Circuit Civil sense while interpretation is confined to the act of
Registrar. Non-Muslim spouses converted to Islam, the determining the meaning of the word used in a statute,
provision of the Code shall apply to them from the moment construction on the other hand goes beyond knowing the
of their marriage, since conversion has the effect of ratifying literal meaning, of the word to determining the intention of
the lawmaker in enacting the law. Accordingly, the province
 7
of interpretation is limited to the written test, while and the quotations from Muslim text could be so applied as
construction goes beyond, such as where the text to be to suit modern circumstances and condition.
construed is to be reconciled with a rule of law, or where we
reason out from the aim or object of the law or determine its It is also dangerous to pick out illustrations out of
ap- plication to cases unprovided for.20 their context and apply them literally.
Illustrations merely illustrate a principle and what the
Construction of this Code and other Muslim Court should try to do is to deduce the principle which
Law. - Under paragraph 1 of the treated article, it recognizes underlies the illustration.
recourse to other Muslim law not included in this Code. The
other Muslim law referred to herein must be understood as
those relating to Muslim personal law which may be found When the judge is faced with a conflict of opinions
applicable in the light of the governing principles observed in among the jurists of authority (in civil cases in the Indo
the codification of this Code which we have herein earlier Pakistan sub-continent), it is for the judge to decide for
given. Such Muslim law not embodied in this Code must be himself which opinion he will follow and why.
proven in evidence as a fact. (Art. 15, p. 1083). In construing
such other Muslim law, the court must be guided in like However, the opinion which the presiding judge
manner as when construing any provision of the Code, by considers in particular circumstances and adopts, it must be
the primary sources of Muslim law which are primarily the in accordance with the norms of justice.
Quran, and the Hadith (tradition) of the Prophet of Islam.
Where there is no unanimity. This will have the effect
Meaning of the Court shall take into of leaving the question open. Qadi is of the opinion that judge
Consideration. - It means that the court in the construction has free choice.
and interpretation of the provision of this Code and other
Muslim law, the primary sources of the Muslim law which are In consonance with the sources of Muslim law, the
the Quran, Hadith (tradition) of the Prophet of Islam, Ijma courts in administering Muslim law, should not, as a rule,
and Qiyas are to be considered (Lat. consideratum est per attempt to put their own construction on the Quran in
curiam) in giving its judgment. opposition to the express ruling of commentator and fuqaha
of great traditional and high authority."
Standard Treatises and Works on Muslim Law.
Standard treatises and works on Muslim law shall have However, the courts may in cases where there is no
persuasive weight upon the court and although the court is direct authority available, use the texts of the Quran, the
not bound to follow them, nevertheless on the strength of Hadith or Ijma by means of illustration, or effective cause and
their merit as being just, sound, or equitable, it may make Himat (wisdom) apply the genious of the law to changed
use of them as aids in the interpretation or construction of circumstances keeping in view of the policy of the law."
the Code or other Muslim law in order to ascertain the
meaning of the terminology of the law or the aim of the Illustrative Cases:
lawmaker in enacting it.
In the case of Khurshid Jan (PDD, 1964 L. 518) it
Rules in Case of Conflict Among the Sources of has been said that the courts in Pakistan can interpret the
Muslim. - When there exist in the Shari'a evidence, one of fundamental sources of law in the Quran and Sunna for
which Law. refutes what other establishes, the following further evolution, and they may differ from views of earlier
courses are possible. Muslim jurists on matters not governed by the fundamental
sources (P.608.612). In cases of conflicts in the textbooks
1. Where both evidences are of equal strength, but where there is no Quranic or traditional text on the point, the
one is later in time, the latter repeals the former, except: (a) courts may come to their own conclusion by process of
attribute of Allah, and (b) a provision connected with a Ijtihad (analytical reasoning)."
circumstances which negates the possibilities of time
limitation - abrogation. In the case of Khurshid Bibi, PLD 1967 S.C. 97 (113)
it was also held that the Imams of the Sunni Schools never
2. Both evidences are of equal strength, but it is not claimed finality for their opinions and as such the Courts
known which is the later. Attempt should be made at occupying a position akin to Qadi, are competent to interpret
reconciliation by references to their value, subject-matter or the fundamental sources of law on new points of the law."
time; if not in the Quran, reference should be made to Sunna; The Court viewed that the doctrines of Taqlid (adherence to
if none, to Qiyas and the saying of the companions. existing precedent) was invented by the followers of the
Imams, but it is submitted that the Quran itself provides for
3. Where one of the evidence is stronger as against the same in Quran 1:5-6 and other places including Sunna
another evidence. In the case of inequality, the stronger and Ijma.
evidence is always preferred to the weaker. But in all cases,
the text must be considered with the utmost respect. To the same effect was the case of Mst. Bilqis
However this classical text must not be followed blindly. But Fatima PLD 1959, L 566, where the power of the court to
it must also be remembered at the same time that the Muslim exercise Ijtihad was held to exist, but the case was dissented
jurisprudence is not a static jurisprudence. It is a from; in Mst. Resham Bibi vs. Muhammad Shafi, PLD 1967
jurisprudence which has grown and developed with time, A.J. & K. 32, where it was upheld that the judges are
 8
incompetent to interpret the Quran not fully conversant with contrary to the constitution of the Philippines, the Muslim
the Arabic language. as they are Code, other Muslim law, public order, public policy or public
interest; (4) It must be proven in evidence as a fact.
It is submitted that the view of interpretation of the
Quran and Ijtihad, is in consonance with requirement of time Art. 6. Conflict in Islamic Schools of Law. - (1)
in cases where there is no direct authority available, but it Should there be any conflict among the orthodox
should be done under an Islamic legal system for better (Sunni) Muslim schools of law (madhahib), that which is
appreciation of the Finally, it has been down that where there in consonance with the constitution of the Philippines,
are two opinions on a point of Muslim law, the rule of equity, this Code, public order, public policy and public interest
justice and good conscience should be the guiding shall be given effect.
principle."
(2) The Muslim schools of law shall for the
However, in case of conflict among the four major purpose of this Code be the Hanafi, the Hanbali, the
schools of law recognized by this Code, Article 6, hereof Maliki and the Shafi'i.
shall be observed.
Notes/Comments
Art. 5. Proof of Muslim law and "Ada." - Muslim
law and ada not embodied in this Code shall be proven Sources of Article. - Secs. 7 and 10, par. 15,
in evidence as a fact. No "ada" which is contrary to the Proposed Draft of the 1974 Code for the Administration of
Constitution of the Philippines, this Code, Muslim law, Muslim.
public order, public policy or public interest shall be
given any legal effect. Conflict Among the Islamic Schools of Law. be
noted that all the four schools of Muslim law are essentially
Notes/Comments the same in the sense that all relies on the Quran and the
Hadith. The differences lies in their respective approach in
Sources of Article. Sec. 5, par. 3, Ord. 7, par. 2, formulating a rule of law based on those original texts, or not
Proposed Draft of the 1974 Code for the Adm. of Muslim law; contrary thereto. On this, one authority on Muslim law said:
and Arts. 11 and 12 of the Civil Code. "If one closely examines the figh, of the four schools of
Muslim law (Madhahib), one will never find any differences
Muslim Law not Embodied in this Code. - The of opinions as far as the basic principles of Islam are
Muslim law referred to in this treated article which are concerned. The differences center around the furuat (tiny
required to be proven in evidence as a fact must be branches) of theology rather than the usul (fundamental
understood as those other Muslim personal laws not principles) of belief." Similarly, on the law on muamala't
embodied in this Code other than the Quran and the Hadith (regulating men). the differences lies only in interpretation of
(tradition) which are already recognized under the first the law and not on the bases of the law. However, in matters
paragraph of the preceding Article 4, when it mandated where their analysis opinions or conclusions differs as to
therein that "The Court shall take into consideration the what ought to be the rule applicable to a particular case at
primary sources of Muslim law." issue among Muslim Filipinos, the Code pursuant to the
treated article has provided the means of settling the conflict
Proof of Muslim Customary (Ada) Law and of rules among the four schools of law, which is, that the
Muslim Law. Ada usually means custom; Technically, it is school of law whose school of thought or view is in
also used to refer to customary law, which is a body of rules conformity with the Constitution of the Philippines, this Code,
of norms of conduct traditionally and continually recognized, public order, public policy and public interest shall be given
accepted and observed as a binding rule of law by a effect. Also, Muslim jurists of recent times developed and
community of people for a long period of time. applied two methods to meet this situation, the first is
takhayur which is the selection of rules from the various
The Court is not bound to take judicial notice of the schools to apply to different problems, and the second is
Muslim law or customs or usages of the Muslim Filipinos talfiq, which is the method of combining the rules from
relating to their person, property and family relation which different schools to apply to specific problems." It must
are not embodied in this Code, unless it is first proven as a
fact in evidence, which means that the party invoking such One important aspect in this regard that should not
Muslim law or ada must prove by means of evidence the be overlooked is the fact that in the course of time and
existence of such Muslim law or ada as a fact to the court development of the Muslim law in this country, the school of
and once it is established as such, then it shall have the force law that has become predominant among Muslim Filipinos is
of law between the parties to the case and the court will have the Shafi'i madhab," a fact which in this Code is recognized.
to countenance such Muslim law or ada as a binding rule of Thus, Article 134, of the Code on the law of succession, in
law among the people of the place where such law or custom matter involving the settlement and partition of estate, the
is observed. court is enjoined to take into consideration the school of law
of the decedent, but if his madhab is not known, the Shafi'i
Requisites of Ada to Be Admissible as a Binding madhab is given preference together with the Special Rules
Rule.— Ada (custom), in order to be considered as a binding of Procedure adopted pursuant to this Code."
rule by the court, must meet the following requisites: (1) It
must have the force of law upon the community; (2) It must Art. 7. Definition of Terms. - Unless the context
be generally acceptable to the community; (3) It must not be otherwise provides:
 9
transactions and rights, or mores and behavior, or customs
(a) "Agama Arbitration Council" means a body or social conduct,
com- posed of the chairman and a representative of
each of the parties to constitute a council to take all Ada Distinguished from Adab. - Ada must be
necessary steps for resolving conflicts between them; distinguished from Adab, which refers to the upright moral
behavior. It also refers to respect, courtesy and manners; it
(b) "Ada" means customary law; governs the propriety of one's behavior in relation to parents,
elders and superiors."7
(c) "General Register" means the General
Register of marriages, divorces, revocation of divorces, Ihram; Its Meaning. - Ihram literally means robe. A
conversions and such other deeds or instruments kept garment consisting of two seamless clothes that the pilgrims
by the Registrar under this Code; wraps around the waist and the other thrown loosely over
the shoulder. Technically, it means entering upon a state of
(d) "Ihram" signifies the state of ritual of a pilgrimage.
person while on pilgrimage to Mecca;
Periods or Places Covered by Ihram. - basic rite
(e) "Madhab" (plural, Madhahib) means any of of the pilgrimage to Mecca, is entered upon at a certain
the four orthodox (Sunni) schools of Muslim law; Ihram, as the first time or place known as Migat by the
pilgrims who upon reaching the final stage of the pilgrimage
(f) "Month" means a period of thirty days; near Mecca, bathes themselves and performs two rak'at
prayers and then divest themselves of their clothes and
(g) "Muslim" is a person who testifies to the wears the pilgrim's robe which is called ihram" and refrain
oneness of God and the Prophethood of Muhammad completely from obscenity and wranglings and proceeds on
and professes Islam; right conduct. Migat is of two categories: (1) Chronical and
(2) Local. The chronical migat begins on the first day of the
(h) "Muslim Law" (Shari'a) refers to all the month of Shawwal and ends on the tenth day following
ordinances and regulations governing Muslims as thereafter, on the Day of Sacrifice (Yaw Mul-Nahri) and
found principally in the Quran and the Hadith; and celebrated throughout the Muslim world as Eid-el-Ad-Ha or
the great feast known in the western world as Kurban
(i) "Muslim Personal Law" includes all laws Bairam. The local migat differs according to the countries the
relating to personal status, marriages, succession and pilgrims come from. The places appointed en route to Mecca
inheritance, and property relation between spouses as for Ihram are:
provided for in this Code.
- Juhfa for those coming from Egypt, Syria, Lebanon
and Morocco;
Notes/Comments - Dhat Irg for those coming from Iraq and the East;
- Dhul Hulaifa for those coming from the direction of
Sources of Article. Art. 7, par. (a) taken from Sec. Yemen;
10, par, 2, Proposed Draft of the Adm. of Muslim Law Code - Qarn Al-Managil for those coming from Najd."
of 1974; par. (b) from Shari'a and the Hindu-Malay Ada't law;
par. (c) from Sec. 9, of the said Draft Code of 1974; par. (d), The Ihram for the people of Mecca and for the
Quran II:197, par. (e), Sec. 15 of the Draft Code of 1974; par. people from other countries staying in Mecca begins when
(f), Art. 13, Civil Code; par. (g) Hadith; par. (h), Sec. 22 of they see the moon of Al-Hijjah." It ends once the pilgrims
the Draft Code of 1974; par. (1), Sec. 23 of the Draft Code enters the state of haram;" or when the pilgrims divest
of 1974. himself of the pilgrims robe (Ihram) after having completed
the pilgrimage and resume ordinary life's activities.
Agama Arbitration Council. See Title II, Art. 160 of
the Code Acts Prohibited While Under the State of Ihram.
- The Holy Quran states: "The pilgrimage is (in) the well-
Ada; Its Meaning and Sources. - The word ada is known months and whoever is minded to perform the
derived from the Arabic word meaning, custom," and the pilgrimage therein (let him remember that) that there is (to
Hindu-Malay word adala't, meaning justice and equity. be) no lewdness nor abuse nor angry conversation on the
Literally, therefore, ada means custom. Sometimes it is pilgrimage. And whatsoever good ye do Allah knoweth it. So
replaced by the term urf or usage. As a term in law, it refers make provision for yourselves (hereafter); for the best
to the customs of the Muslim community which were given provision is to ward off evil. Therefore, keep your duty unto
through consistent general usage the force of law in the Me, O men of understanding."
course of time. It has three sources, namely: (1) the ancient
Malay Ada't law; (2) the Indian Ada't law (Hindu); and (3) the A pilgrim therefore, upon entering the state of Ihram,
Huk'm Shari'a law. It is regarded as a material source of is required to change from his ordinary clothes and put on
Islamic jurisprudence under the guise of Ijma, or the the pilgrim robe called Ihram. He is not allowed to use scent
consensus of Muslim jurists or Muslim community and as an on his garment or body, nor to clip his nails, anoint his head,
extraneous source of law in Islamic jurisprudence; It shave any part of his body or use any shoes although
approves of customary practices as have been the subject sandals are allowed, or make amorous relations to his wife
of consensus of Muslim community. They may be relative to through kissing or sexual intercourse. He is not permitted to
 10
disobey God by committing prohibited acts, or to dispute with The Hijra Calendar. - The Muslim era began with
his mate or servant, and he should not pursue the land the Great Event of the Hijra from Mecca to Medina or the
game." Thus, contracting marriage while in the state of Ihram Emigration of Prophet Muhammad (P.B.U.H.) and his
is disallowed and one contracted by a person while in state companions from Mecca to Medina. The adoption of this
of Ihram is under the Code, considered an irregular event as the beginning of the Muslim era took place in the
marriage." Therefore, if marriage which is an act encourage caliphate of Umar Ibn Al-khatab, the second Caliph after
in Islam, is not allowed of Muslim while in a state of Ihram, Muhammad.
more so of acts which though allowed but is regarded with
disfavor like for example divorce (talaq)." It is submitted that The Muslim Calendar is lunar, and its months are
divorce pronounced by or upon a while in a state of Ihram is determined by the various positions of the moon. In every
not valid. year, there are twelve months, and each month is either
thirty or twenty-nine days depending on the position of the
Madhab. (See part I, on Jurisprudence regarding moon. The months in the Hijra Calendar, and the number of
madhab). Months; Rules Involving Computation. It must be days in each in their order, are: Jumadil Awal or Jumada Al-
borne in mind that the Gregorian calendar differs in some Cola, thirty days; Jumadil Ahil or Jumadah Al- Thamiyah,
aspects from the Hijra calendar of the Muslims. However, in twenty-nine days; Rajab, thirty days; Saban, twenty- nine
as much as Art. 7(f) of the Code was taken from Art. 13 of days; Ramadan, twenty-nine days; Shawwal, thirty days;
the Civil Code of the Philippines, as a general rule, the Julkaida or Thul Qa'dah, twenty-nine days; Julhadji or Thul-
construction therefore of the term month under that law must Hijjah, thirty days; Muharram, thirty days; Safar, twenty-nine
be followed. days; Rabie Al-Awwal or Rabiyyal Awal, thirty days; Rabie
Al-Thani or Rabiyyal Ahil, thirty days; a year therefore, has
The provision of Art. 13 of the Civil Code of the three hundred fifty-five total number of days. If the calendar
Philippines provides: used as basis of computing time is the Hijra Calendar, it is
submitted that a year must be understood
"When the law speaks of years, months and nights,
it shall be understood that years are of three hundred sixty Computation of Periods; Conversion from
five days; and months of thirty days; days of twenty- four Gregorian Calendar to Hijra Calendar and Vice-versa;
hours; and nights from sunset to sunrise. Etc. It may be interesting and useful to know the following
methods in determining the exact period or time from both
If months are designated by their name, they shall the Gregorian and the Hijra calendar.
be computed by their number of days which they
respectively have. 1. Conversion of a year of the Christian era into
coinciding year of Hijra;
In computing the period, the first day shall be 2. Conversion of a year of the Hijra into coinciding year
excluded and the last day included." of the Christian era;
The term month under Art. 13 of the Civil Code and 3. Finding out the first day of the Hijra year; and
Art. 70 of the Muslim Code which these laws fixes as 4. Finding out the first day of any Arabic month (By Isik
consisting of thirty days if not designated by its name is Method)
referred to as a legal month. It is to be distinguished from the
calendar months of January to December in the Gregorian Conversion of a Year of the Christian Era into the
calendar which are of unequal portion of time." The term Coinciding Year of the Hijra. - For finding out the hijri year
month therefore, if it is not designated by its name must be coinciding with the beginning of a year of the Christian era,
understood as consisting of thirty days regardless of the 621.54 is subtracted from the Christian year. The remainder
Gregorian calendar or the Hijra calendar. However, following shows the solar year. In other words, it shows the number of
the rule under the third paragraph of Article 13 of the Civil solar years that have elapsed since the Hijra (the date of the
Code, when the month is designated by its name, the hijri solar year). We divide this solar year by 32.5. The hijri
number of days that it has under Gregorian calendar if it be lunar year is found by adding the result of the division to the
by that calendar, or the Hijra calendar if it be the latter, shall solar year. For example, let us find the hijri lunar year
be followed. coinciding with the beginning of 1911:

Computation of Legal Period. Id., Under the last 1911- 621.54 = 1289.46
paragraph of Article 13 of the Civil Code, it provides: "In
computing a period, the first day shall be excluded and the The number 1289 is the hijri solar year. If we divide
last day included." A similar provision is not provided, under this hijri solar year by 32.5, the answer is 39.67. Then we
the Muslim Code, therefore, applying Art. 187 of the Muslim add 39.67 to the hijri solar year 1289.46:
Code, said Art. 13 of the Civil Code can be applied
suppletorily for purposes of the Muslim Code. 1289.46 + 39.67 = 1329.13

The aforestated provision of Art. 13 of the Civil Code So the beginning of the year 1911 is in (0.13 x 12 =
applies where a given period of time must be counted from 1.56), the second month of the hijri lunar year 1329. Since
a certain date in order to determine the date on which an act (0.13) is a fraction of year, when you multiply it by 12, the
must be performed, but not when the date for the act to take answer gives you the number of months.
place is specifically fixed.
 11
Conversion of a Year of the Hijra into the Hopeless Zeal of Earth!
Coinciding Year of the Christian Era. - The beginning of Jibing Dansel Was to the
the hijri lunar year coincided with the sixteenth day of July of Zealous its Beauty's Joy.
the 621st year of the Christian era, which was a Friday. That
is, it was 197 days after the first day of the January of The succession of the twelve capital letters in the
621.197 days time is 0. 54th fraction of a 365 days year. So, couplet is the same as the succession of the twelve Arabic
the Christian year was exactly 621.54. months beginning with Muharram. Each letter is the
assigned number of the month occupying the same position
One hijri lunar year covers 354.367 days. And one in the series of twelve.
solar year has 365.242 days. Because one solar year is
10.875 days longer than a lunar year, after each thirty-two- In the words "Ebjed hewwez hutty": E = 1, b=2,j=3,
and-a-half years, the lunar year gets one year ahead of the d=4, he =5, w = 6, Z = 7, hu = 8, t = 9, y = 10. Accordingly,
solar year. the first letters of the capitalized words in the couplet above
denote the following
For finding out the Christian solar year with which
the beginning of any hijri lunar year coincides, the concerned Hilmi = 8 Muharram
hijri lunar year is multiplied by basic number 0.97. The result =
shows the hijri solar year. The coinciding Christian year is Be = 2 Safar
found out by adding 621.54 to the hijri solar year. For =
example, let us find out the Christian year coinciding with the Drifted = 4 Rabi-ul-awwal
beginning of the hijri year 1329: =
Hopeless = 5 Rabi-ul-akhir
1329 x 0.971289.13 =
Zeal =7
when 621.54 is added to this, the answer shows the
Christian year:

1289.13 +621.54 1910.67

So, the first day of the month Muharram, the Let us multiply number 1361 by 4.367; the answer is
beginning of the hijri lunar year 1329, was in (0.67 x 12 = 5943. Now let us add two to this - for the number assigned
8.04) the ninth month of the Christian solar year 1910. to Zu'l-qa'da is two; the answer is 5945. If we divide this by
seven, the remainder is two. So, the first day of Zu'l-qa'da is
Finding out the First Day of Hijri Year. The first the second day beginning with Friday. It is Saturday. And the
day of Muharram is the beginning of the hijri year. To find out twenty-ninth day is again, naturally Saturday. This method,
what. day it is (it was, it will be), the concerned year is discovered by this faqih (Huseyn Hilmi ISIK), the compiler
multiplied by five. The number obtained is divided by eight. and the publisher of the book, Endless Bliss, is very precise
The remainder shows the number of days from Thursday. and accurate.
For example, the first day of Muharram, 1357:
of 1376:
Five times 1357 is 6785. When this is divided by
eight the remainder is one. The first day of Muharram is As another example, let us find out the first day of
Thursday. the Ramadan We multiply number 1375 by 4.367, and the
answer is 6004. Since the number assigned to the month of
The First day of Muharram is the beginning of the Ramadan-i-sharif is six the total is 6010. This divided by
Muslim year. It is New Year's Day for the Believers. On this seven, the remainder is four. So the fourth day of the week
day, the Believers wish one another a happy new year. On beginning with Friday (which is Monday), is the first day of
this day, they visit their elders, relatives and religious sages. Ramadan-i-sharif."
On this day, like on any other feast day, they dress
themselves up cleanly. They give presents to one another Muslim; Its Meaning. In order to know who is a
and alms to the poor. Muslim, we have to understand first what is Islam. Islam is
an Arabic word. It means the act of resignation to the will of
Finding Out the First Day of any Arabic Month God. The root word is SLM pronounced "silm," also salam,
(By Isik Method). - One minus the number of the year is which means peace from which comes the word "aslama"
multiplied by 4.367. The figure assigned to the month which means submitted, he resigned himself. Al- Islam or
concerned is added to the unit figure of the number obtained. Islam is the religion which brings peace to mankind when
When the total is divided by seven, the remainder shows the man commits or submits himself completely to God and
number of days from Friday. professes Al-Islam as his religion."

The figures assigned to the twelve Arabic months It was narrated that the Holy Prophet of Islam on
are relatively the first letters of the twelve capitalized words being asked what is Islam and how to be a Muslim said:
in the following mnemonic couplet: "Islam is to testify an la ilaha illa'llah wa ashadu anna
Muhammadan abduhu wa rasuluhu (there is no God but
Hilmi, Be not Drifted By Allah and Muhammad is the Messenger of Allah); to perform
 12
prayers (namaz, salat, five times a day in accordance with BOOK TWO
its conditions and fards when time for prayers come); to give
zakat (legal alms, alms tax or poor due of one's property or PERSONS AND FAMILY RELATIONS
a tax on man's wealth and distribution among the poor); to
fast in Ramadan (month of a fast); and to take a pilgrimage TITLE I. CIVIL PERSONALITY (SHAKSIYA
to the House (the Ka'aba and the Holy Mosque once in a
lifetime). MADANIYA)

The first article of faith in Islam is the absolute belief Art. 8. Legal capacity. - Juridical capacity, which
in the ONENESS of God. It is this principle around in which is the fitness to be the subject of legal relations, is
the religion of Islam revolves. Oneness implies the complete inherent in every natural person and is lost only through
denial of polytheism (belief in the multiplicity of Gods) and of death. Capacity to act which is the power to do acts with
associating anything with God. Tawheed, the Arabic word by legal effect, is acquired and may be lost.
which this basic principles is known, means unity. To declare
his or her Islam, an individual professes belief in this first Notes/Comments
article of faith by reciting "LA ILAHA ILLALLAH" which
means "There is no deity but Allah." This dec- laration is Sources of Article. - Article 37, Civil Code; Fiqh.
known as "AL-KALIMAH which means "The Word." One who
would become a member of the community of Islam needs Muslim Law Jurisprudence on Legal Capacity.
to profess his belief in the absolute ONENESS or unity of According to Muslim law jurisprudence, legal capacity
Allah. Because of the Muslim's steadfast belief in the (dhimma) is the fitness (ahliat) of a person for the application
universality of God, anyone who profess such a faith is of law to his action. It is also defined as the quality by which
welcomed into Islam without regard to his race, color, a man becomes fit for what he is entitled to (ma lahu) and
nationality, or political loyalty. Because Allah is the universal what he is subject to (ma alai). Legal capacity is divided into
God, the One God, Islam perceives all persons as equal two parts, capacity for the inherence of rights and obligations
under God's laws, to which all adhere. When one submits to (ahliatu'l wajub) and capacity for the ex- ercise of rights and
Allah by professing Islam, he confesses God's power and obligations (ahliatu'l-ada). The former may be described as
held God's will as expressed in His laws which in part the receptive and the latter as the active legal capacity.
revealed through His Apostles and in part manifested in His Every man according to Muslim law theory is inherently
creation. True belief in AL-KALIMAH liberates the believer clothed with legal capacity, which is at once a privilege and
from all affinities other than affinity to God." responsibility inseparable from the dignity of human nature.
As already observed, such capacity had its origin when the
Any person who professes the religion of Islam and human specie was first created, but in individual, it only
acknow. ledge that there is but one God (Allah), and that becomes manifest along with the events connected with his
Muhammad (P.B.U.H.) is the Messenger, is a Muslim, and earthly existence. The active part of such capacity is
as such a person may be by birth or by conversion. In the necessarily conditional on maturity of the human faculties,
case of Mst. Atia Wlaris us. Sultan Ahmad Khan PLD 1959, mental and physical, and, therefore, comes into play
L. 205, it was held: That it is a well recognized principle of gradually and by degrees. For instance, when the child is still
Shari'a that a person who has pronounced the "Khalima" in the womb as an embryo, its life is joined to that of its
(declaration of Islamic faith) even once, believes in the unity mother and hence even its inherent capacity is defective
(tawheed) of God (that there is only one God), and while it has no active capacity at all on birth, the receptive
acknowledges that Muhammad (P.B.U.H.) is a Prophet and capacity in the child becomes complete and his active
Messenger of God, and profess to be a Muslim must be capacity gradually develop itself, until it is perfected with the
accepted as such. And, similarly, in Maula Bakhsh vs. maturity of his mental and physical faculties. A person with
Charul, PLD 1952 Sind 1954, the Courts are to accept the full capacity therefore, a living human being of mature age
same for they cannot test to gauge the sincerity of religious and understanding, and not otherwise under any of the
belief. circumstances impairing such capacity.

A Muslim, therefore, is one who professes Al-Islam It be doubted whether the earlier jurists would
as his or her religion. The word was announced in Sura V, recognize an artificial or juristic person. The State or
Verse 4 of the Holy Quran as the Muslim's religion. This community is regarded by them as holding and exercising
verse was revealed to the Prophet Muhammad (P.B.U.H.) the right of God through the Imam or a high religious leader.
during his last pilgrimage to Mecca. A part of the verse But later jurists seem inclined to recognize an artificial
reads: "This day have I perfected your religion for you, and person, for instance, they would allow a gift to be made
completed my favor unto you, and have chosen for you as directly to a Mosque while the ancient doctors would require
religion Al-Islam." the intervention of trustee.

Concept of Legal Capacity Under the Civil Code.

- Since Art. 8 of the Code is taken entirely from Art. 37 of the
New Civil Code, the meaning of legal capacity as understood
under the latter law should be considered suppletory in
relation to the former law. Legal or juridical capacity is one
of the essential attributes of a person whether natural or
human being, or juridical person or those created by
operation of law. It is inherent and attaches, in case of
 13
natural person, from the moment that it develops a human Sources of Article. Art. 39, Civil Code; Quran XXV;
form even while still in the mother's womb although at this 22; Fiqh.
stage its capacity is only limited, its complete legal capacity
being conditioned upon its live delivery and independent Hajr (legal disability). - Hajr literally means man (to
existence of the umbilical cord that sustained its life while prohibit, refuse, prevent, deprive, detain). Legally, it implies
still in its mother's womb and remains with the person until prohibiting the dispositions of a person with respect to all or
death extinguishes it, and, in the case of a juridical person, some of his property. The causes of disability which we will
it acquires a legal personality from the moment it is conferred discuss here are (a) those as provided in this Code, and (b)
that juridical personality by law, remains with it until those as provided under the Muslim law.
withdrawn by the authority that conferred its legal existence.
Once a natural or artificial person acquires a full juridical Circumstances affecting capacity to Act under
capacity or legal personality it becomes susceptible of being the Code not Exclusive. Art. 9, provides: "The following
the subject of legal relation for the acquisition and enjoyment circumstances among others, modify or limit capacity to act."
of the rights or, of being bound to legal obligation. x x x By the words, "among others" simply means that the
enumeration in the article is not exclusive, and that aside
Juridical Capacity Distinguished from Capacity from those circumstances enumerated. there are other
to Act. Capacity to act which is referred to merely as causes affecting capacity to act which may be found
"Capacity" is the ability, power, qualification, or competency elsewhere in the Code, e.g., apostasy, state of ihram,
of a person, natural or juridical for the performance of civil difference of religion, etc. other Muslim laws, in other
acts depending on the state of condition as defined or fixed suppletory laws like the Civil Code and the Rules of Court.
by law. This condition, begins in the case of natural person, Hence, the last sentence of Art. 9. provides: "The
upon attaining maturity of age to intelligently contemplate on consequences of these circumstances are governed by this
the volition of his act and in the case of artificial person, upon Code and other Islamic laws, and in suppletory manner by
meeting all, the conditions of the law that would enable it other laws" which shows that the Code recognizes other
through its officers to legally exercise the rights appertaining circumstances aside from those enumerated in Art. 9.
to an artificial being. While juridical capacity is inherent in
every natural person and is lost only by death. Capacity to Restrictions on Capacity or Legal Disability (Al-
act is acquired and may be lost. Briefly stated, while juridical Tahjir). -Under the Muslim law, there are some
capacity is the fitness of a person, natural or juridical to be circumstances restricting a person's capacity to act. The
the subject of legal relation, capacity to act is the power of facts which impair an individual's capacity are called awarid
such person or entity to do acts with legal effects. (singular aridah) by which the process of intellect and body
are affected making a person so impaired as to be defective
Illustrative Examples of Legal Capacity and in the power of discharge of obligations or holding the rights
Capacity to Act in Natural Person. - For example, the fetus in the law."
while still in the mother's womb has already the legal
capacity of being the subject of legal relation, e.g., to be the The Muhammadan jurists grouped the
beneficiary of a donation, conditioned that thereafter, it circumstances which generally affect legal capacity of a
acquires a full legal capacity by its being born when the right person or interfere with the proper legal effect of a man's
under the donation attaches. However, although it has actions in particular cases into two classes: (1) Samawi or
already acquired the legal capacity, but it has no capacity to circumstances which are the work of providence, that is
act yet, say, to make a disposition of property until he attains those which are beyond the control of man, and (2) Kasabi
sufficient age and intellect to exercise his own independent or Maksuba, that is those which are created by man. Infancy,
discretion when both juridical and capacity to act are already idiocy lunacy, a fainting fit, sleep, forgetfulness, and death
present in his person. From that example, we can see that are circumstances of the former class, while ignorance of the
juridical capacity can exist even without capacity to act, but truth of Islamic religion as in the case of non-Muslim and
not the latter without the former. The age of capacity to act heretics, or ignorance of fact or law with respect to particular
is provided under Republic Act No. 6809, an Act lowering the matter, drunkenness, jest, folly, mistake, duress, insolvency
Age of Majority from Twenty-one to Eighteen years and apostasy are circumstances belonging to the latter
amending for the purpose Executive Order No. 209. class.

Art. 9. Restrictions on capacity. The following It may also be observed here that circumstances like
circum- stances, among others, modify or limit capacity apostasy and death are also devastative and translative
to act: age, insanity, imbecility, the state of being a deaf- facts, extinguishing certain rights and obligations in others.
mute the condition of death-illness (marad-ul-maut), But since, neither death nor apostasy in Muhammadan law
penalty, prodigality, absence, family relations, alienage, divests a person of his rights and obligations altogether,
insolvency, and trustee- ship. The consequences of these circumstances are regarded as affecting the general
these circumstances are governed by this Code and legal capacity of the apostate and the deceased not as
other Islamic Law and, in a suppletory manner, by other purely divestitive or translative facts.
laws.
Samawi Circumstances. Infancy or minority (Al-
Notes/Comments sighar). The competence of an infant possessed of
understanding to per- form juristic acts and to enter into legal
transaction is defective because his understanding is
immature. Generally speaking, he is entitled to do any acts
 14
which are entirely beneficial to him such as acceptance of a
gift and the like, even though his guardian does not accord As to a non-discerning child, none of his dispositions
permission and whatever is injurious to his interest will be are valid, irrespective of the permission of the guardian, and
disallowed. But an infant with or without permission of his regardless of the thing involved being of petty or
guardian cannot do any act which is absolutely injurious to considerable worth.
his interest, such as divorcing his wife or making a gift for
waqf of his property. As regards his liability for his acts or Hanbali. - A discerning child's dispositions are valid
conduct, an infant is subject to such liabilities for infringing with the permission of the guardian; so are those of non-
private rights as can be satisfied by substitution of property, discerning child, even without the guardian's permission, if
that is, by compensation. The reason is that an obligation of the thing involved is of petty worth, e.g., where he buys from
this kind may be discharged out of the infant's property by confectioner what children usually purchase.
the guardian acting as his agent. He is, therefore, liable to
make good out of his property whatsoever loss he causes Shafi'i. - A transaction by a child whether discerning
others by his tortuous acts, the principle of such liability is altogether illegal, irrespective of whether he acts as an
being the loss to the owner of the property and not the moral agent or for himself, or whether he gives or takes delivery,
culpability of the person causing the loss. He is also subject even if the object transacted is trivial and insignificant."
to such obligations of a benevolent nature (silat), towards his
kindred and wife as are imposed by the law by way of tax or The Hanafi's view is more in accord with our laws.
in exchange for benefits received. His property shall be
chargeable for the compensation due his guardian, if one is Idiocy (Matu or Al-Safah). - An idiot is a person,
appointed for him by the court. who though past the years of discretion, is yet of defective
understanding; who is confused in speech and speaks
Lunacy or Insanity (Majnun or Al-janun). - A sometimes like a sensible man and sometimes like a lunatic.
lunatic or insane (majnun) person is one who has no power In like manner, idiocy is the state of a person who is an idiot,
of understanding. Lunacy or insanity is the state of a person and whose legal capacity stands on the same basis as that
who is insane or lunatic. Insanity completely negates the of an infant possessed of discrimination. An idiot differs from
legal capacity (ahliyat al-ada) because of lack of aguel a child due to majority and from an insane on account of
(intellect). sanity. Thus, idiocy as such is accompanied with the
capacity to comprehend and distinguish. An "idiot" is one
The legal capacity of an insane person except as to who cannot manage his property, irrespective of whether he
acts done in lucid intervals is affected in the same way as has all the qualities necessary for its management but is
that of an infant. negligent and does not apply them, or lacks these qualities
and acts in a manner detrimental to his own interest and
In accordance with explicit traditions as well as those of his dependent, such that he is viewed as having
consensus, insane person is prohibited from all dispositions. strayed from the practice of rational persons in the
irrespective of whether his insanity is permanent or management of his property."
recurring. But if a person suffering from recurring insanity
manages his property during the it is uncertain whether a Fainting Fit (Bihushi). If a person is seized with a
particular disposition belongs to the period he is free from it, fainting fit which is brought about by disease, he losses his
his dispositions are of sanity, it will not become binding. power of perception and voluntary motion. As long as it lasts
Because sanity is a condition for the validity of an all his acts, will be treated on the same footing as those done
agreement, and uncertainty regarding it amounts to in a sleep, 12
uncertainty concerning the existence of the contract itself,
not its validity, consequently its very basis is negated. In Forgetfulness (Nisyam). Forgetfulness according
other words, where there is uncertain about the validity of a to Muslim law jurists is brought by God; in other words, it is
contract due to uncertainty concerning the presence of not a condition attributable to any act of men. Such a state
sanity at the time of its conclusion, the presumption is that implies absence of volition, but it does not negative legal
the situation before the contract continues to exist." capacity. Since, however, the condition is due to providential
interference, it forms a good excuse in matters purely the
Sunnis Doctrines. -The Sunnis makes a distinction right of God, provided they are such in connection with them.
between a minor who acted with discernment and one who A man is likely to be forgetful by reason of his ordinary
did not A discerning child (mumayyiz), is one who can in habits, for instance when a man during a fast eats or drinks
general distinguish between that which is harmful and something. Forgetfulness, however, forms, no excuses if the
beneficial, and who understands the difference between act which is the result of it, affects private rights. The reason
contracts of sale and rent and between profitable bargain is that the inviolability of man's right is absolute and is not
and one entailing loss. measured by the culpability of the person violating them.
Therefore, if a man in a state of forgetfulness destroys or
Hanafi. The dispositions of a discerning child without damages another's property, he will be held liable."
his guardians' permission are valid provided they involve
sheer benefit e.g., the acceptance of a gifts, bequests, and Sleep (Naum). Sleep is a condition which
waqfs without giving anything in return. But the dispositions incapacitates a man during the time it lasts from perceiving
in which the possibility of profit and loss exists, such as by means of his senses and from all voluntary movements.
transactions of sale, mortgage, rent and bailment are not As sleep negates volition any speech or utterance whether
valid except by the permission of the guardian. in the nature of a creative act or information made in such a
 15
state would be void and of no effect in law, such as for it is the duty of every Muslim to make himself acquainted
confession of faith, apostasy, divorce, admissions, with it, except ignorance of law in a question which is not
manumission, sale, gift and the like. But a sleeping person covered by an express text or consensus of opinion, or when
happening to cause damage to another's property will be the law though not ambiguous but there are sufficient
held responsible in the same way as a person acting in a grounds in a particular case to hold that it is not applicable
state of forgetfulness and for the same reason." to certain individual.

Death-Illness (Marad-ul-maut), and Death Ignorance of Fact. - In Muslim law jurisprudence,

(Murtad). - Death illness is defined as illness from which ignorance of fact is a good excuse in law. An illustrative
death is ordinarily apprehended in most cases, provided in example of ignorance of fact is for instance, a Muslim girl,
the particular case in question, it has actually ended in death. who is given in marriage by her guardian other than her
But if the disease be of long standing and does not so father or grandfather, a right on attaining the age of puberty
increase from day to day that death may be apprehended to repudiate such marriage ensues in her favor. In such
from it or does not ultimately end in death, it will not be case, if the minor wife not being aware of the fact of marriage
regarded as death illness. It will, however, be reckoned as did not repudiate it on attaining puberty, she may do so when
death illness from the date when the patient becomes she comes to know of it. But when she knows of the fact of
bedridden thereby, provided he dies within a year of it." If the such marriage when she reached the age of puberty but
illness protracts itself into chronic condition and last like that says that she was not aware of her right under the law, that
for a year, the patient will be regarded as if he was in health, would not be an error of fact but of law, and the court will not
and his disposition will be treated like those of a healthy consider her plea since ignorance of law is not a valid
person, so long as his illness does not increase and his excuse."
condition does not change. But if such chronic illness
increases and his condition changes so that he dies of it, Drunkenness (Nashah). - spirit. As regards its
then such illness from the date of change in his condition if effect on a man's legal capacity, the law looks to its cause
the change be of the nature above described will be that is, how it is brought about. Regarded in this light, it is of
regarded as death illness. two kinds, either it is such as forbidden (haram) by the
religion or is permitted as being spiritually indifferent. In the
The definitions as given by the Shafi'i and Hanbali case of the former that is if the intoxication is caused by a
jurists are also to the same effect, namely, that death illness man voluntary drinking of forbidden liquor, his legal capacity
is illness dangerous to life, that is which mostly ends in death is regarded to remain unaffected, and the general rule is that
provided the patient actually dies of it. It is laid down that it legal effect will be given to whatever declarations and
is to be left to the judgment of competent doctors to say what dispositions he might make in such state, such as divorce,
diseases would come within the category." A subjective marriage, etc." The reason is that man's legal capacity is
apprehension on the part of the patient himself cannot be regarded as complete on his attaining majority and if a
decisive of the injury and is hardly of much importance. It is temporary suspension of judgment and understanding due
a cardinal principle of Muhammadan jurisprudence that the to an overpowering accession of pleasurable excitement is
laws take note only of the perceptible facts." Death brought about by willful transgression, the law will not take
extinguishes a person juridical personally, except that for notice of it as otherwise it would be encouraging
some purposes and to a certain extent, his estate can be disobedience of the injunctions of religion," against the
dealt with concerning his rights and obligations which drinking of intoxicants.
survives his death.
Intoxication when permitted, such as when it is
There are still more of these natural causes, e.g., taken medicinally, or by the use of preparation having the
menstruation, but which have bearing in acts of devotion properties of food made from wheat, barley or honey, is
(ibada't) and, not transactions (muamalat). permitted by the law as spiritually indifferent." The legal
capacity of a man is affected by intoxication when not
Ignorance (Jahl) of the Truth of Islamic Religion; caused by forbidden means in the same way as by a fit of
Heretics. - Since the application of law in the Muslim legal unconsciousness; that is to say all his dispositions and legal
system is based on Islam, a non-Muslim's legal capacity is declarations such as waqf, hiba, sale, divorce, and
regarded as defective or in the language of Muslim jurists, manumission would be void in law. But he is liable for any
the application of the Muslim law in his case is affected by loss caused by him to another's property.
his ignorance or lack of knowledge of Islam and its legal
system. The Muslim law applies generally only to Muslim, or Jest or folly (Hazl). - If a person utter words and
a person of Islamic faith (Iman), which consist in expression without intending to convey either their primary
acknowledging the authority of God, as the Supreme Divine or secondary meaning, he is said to speak in haze or jest. If
Lawgiver, and. the truth of Muhammad's mission as Hist such intention is only a matter of inference, the law pays no
Prophet." heed to it and effect is given to what has been expressed.
Otherwise, such words are not to be given effect on the
Ignorance of Law. - In Muslim law jurisprudence, underlying juristic principle that the parties to it, while
the effect of ignorance of law on a person's act is thus dealt intending and consenting to the constitution of the
with. The exposition of law is regarded, as a juristic act transaction in question, do not intend or consent that they
entitling the expounder, if he has done his best, to spiritual should have their ordinary result.
reward and the decree of the judge is a juristic act in a
secular sense. Ignorance of law is not held to be an excuse,
 16
Mistake (Khata). - An act done under a mistake not A judge will not declare a person insolvent unless
amounting to an offense, the person doing it will be given the the following conditions exist:
benefit of doubt and the doer will not be held liable for it;
however, if it resulted to another's injury, or loss is caused to 1. Where he is indebted and the debt is proven in
another's right, mistake will not be regarded as a good accordance with the Shari'a.
excuse in law, at most it can be a good ground for mitigating 2. Where his assets are less than his liabilities.
liability. There is a consensus among the schools on
these two conditions.
According to the Hanafi, a person is liable for his act Apostasy (Irtidad or Murtad). - Apostasy or
without regard to his intention on the general principle that change of faith from Islam to infidelity places the apostate
the law accords full effect to a man's words and deeds and outside the protection of Islamic law. The law, however, by
does not undertake to ascertain the hidden facts which way of indulgence gives the apostate a certain locus
according to them cannot be done with any certainty. As it is poenitentiae. For instance, he will be asked to conform to the
difficult to say when a man's act is attributable to his intention faith, and if he entertains any doubt, efforts must be made to
and when to a mistake, the law presumes that the words remove it by argument. He will be given an option of three
uttered by e grown-up person are intentional and not the days, to re-embrace the faith before the sentence is passed
result of a slip. The Shafi'is, however, do not agree with the on him. Thereafter, according to two disciples, judgment
Hanafis on this point. The Shafi'is argue that an act rendered of his becoming an apostate but according to Abu
pronounced under a mistake is inoperative because of want Hanifa, the apostasy takes effect immediately upon a
of intention, and that a case stands on the same basis as person's declaration renouncing his Islamic faith." According
words uttered by a sleeping man which admittedly have no to Abu Hanifahan Apostate is incapacitated of selling or
effect. The Shafi'i view of the law appears to one's common disposing of his property. But Abu Yusuf can be and Imam
sense more than the subtle distinctions of the Hanafi Muhammad differ from their master upon this point, and
school.27 consider a male apostate to be capacitated to exercise every
right."
Coercion (Maljiun) or Duress (Ikrah). -- Coercion
or duress having regard to the intensity of its effect on the Circumstances Under the Muslim Code (P.D. 1083)
freedom of action of the person subjected to it is of two kinds. Affecting Capacity to Act
If it consist of a threat to destroy a man's life or limb, it is to
translate the language of Arab writers, called constraining Article 8 of the Muslim Code gives the following
(maljiun), and if it is exercised by imprisoning, confining or circumstances as affecting a person's capacity to act by
beating a man, it is regarded as non- constraining (ghairu- either restricting, limiting or modifying to a certain degree the
maljiun). Both forms of coercion deprive a man's act of the same, viz.: Age, insanity, imbecility, state of being deaf-
element of consent while only the extreme form of it also mute, death-illness (marad-ul-maut), prodigality, absence,
vitiates his intention or freedom of choice. Coercion does not family relations, alienage, insolvency, trustee- ship.
destroy the legal fitness of the person who is subjected to it.
According to the Hanafis, coercion does not have negative Age. Age limits or restricts a person juridical
choice of intention of the person subjected to it because in capacity to act. For example under the Code, in order that a
fact he chooses between two alternatives, not doing the act person may be capacitated to contract marriage, in the case
he is asked to do, and suffering the threatened pain or doing of the Muslim male, he should at least be fifteen years of
what he is asked to do and thus escaping the threatened age, and for the female, she should have attained the age of
suffering. Coercion, nevertheless, vitiates such intention and puberty which is presumed upon reaching the age when she
negates consent. The results is that acts of the nature of begins to menstruate which in the absence of proof is also
utterance (gaul) when entered under coercion would be presumed upon attaining the age of fifteen.
vitiated but would become valid if ratified afterwards.
As a law, is addressed to human intelligence, the
Insolvent Person (Al-Muflis). “Mufis”, literally immaturity of a person affects his general capacity. Human
means someone who has neither money nor a job to meet beings do not mature their understanding until a certain point
his needs. In legal terminology it means someone who has in their lives which varies in individual cases and under
been declared legally incapable by the judge because his different conditions. But as the law requires something
liabilities exceed his assets. certain and uniform to proceed upon, it fixes upon a certain
period in human life as the dividing line between immaturity
Sunnis doctrines: The schools concur that an and maturity of understanding. A person until he has
insolvent person may not be prohibited from disposing his reached that age is said to be a minor (saghir), and after he
wealth, regardless of the extent of his liabilities, unless he has attained it is regarded as major." The Code, however,
has been declared legally incapable by the judge. Hence, if did not provide when a Muslim Filipino is deemed to have
he has disposed of all his wealth before being declared reached the age of majority and have full legal capacity for
incapable, his dispositions will be considered valid and his all civil acts. It is submitted however, that except as
creditors, or anyone else, is not empowered to stop him from otherwise provided in the Muslim Code, the provision of
doing so, provided these dispositions are not with intent to Article 402 of the Civil Code, now provided in Article 234 of
elude the creditors, especially where there is no reasonable Executive Order No. 209, which fixes the age of majority at
hope of his wealth returning. eighteen when a person becomes qualified for all acts of civil
life shall apply suppletory to the Muslim Code, except as
provided by law, e.g., for purposes of contracting marriage,
 17
upon attaining, under the Muslim Code, the age of puberty one day to twenty years or to a higher penalty of reclusion
which is presumed at fifteen years of age. perpetua.

Insanity. Insanity is such deprivation of reason that Prodigality. - In Civil Law, a prodigal is a person
the subject is no longer capable of understanding and acting who, though of full age, is incapable of managing his affairs,
with discretion in the ordinary affairs of life." As a cause of and of the obligations which attends them in consequence
civil incapacity, it is such defect or weakness as prevents of his bad conduct" or extravagant habit; a spend-thrift
rational assent to a contract or due consideration of the facts person who by excessive drinking, gambling, idleness or
properly and naturally. Capacity to act must be supposed to debauchery of any kind, shall so spend, waste, or lessen his
attach to a person who has not previously been declared state as to expose himself or his family to want or suffering."
incapable, and is presumed to continue so long as the or to deprive the compulsory heirs of the legitime and for
contrary is not proved, that is, at the moment when the act whom a guardian appointed by the court is therefore
was executed that the person whose capacity is in question necessary.
was incapable for being crazy, insane, or out of his mind."
The law presumes that every person is of sound mind, in the However, the mere fact of prodigality alone does not
absence of proof to the contrary," An insane or demented restrict the capacity of a person for any juridical act that will
person cannot give consent to a con- tract neither could a bind himself and subject his property, but the fact of his being
person who is not of sound mind make a will." placed by order of the court under guardianship by reason
of prodigality that renders him incompetent to act, except
Imbecility and idiocy. - Imbecility in medical through his guardian appointed by the court. The same is
jurisprudence is a form of mental disease consisting in true with respect to hospitalized lepers and persons not
mental deficiency, either congenital or resulting from an being of an unsound mind, but by reason of age, disease,
obstacles to the development of the faculties supervening weak mind and other similar cases, cannot without outside
infancy and according to another medical authority, an aid, take care of themselves and manage their property,
imbecile is higher than that of an idiot who never develop becoming thereby a easy prey for deceit and exploitation.
over the intelligence scale of two years while the former, their
mental ages from 2 years old up to the eight years; a feeble- Family Relations. - Certain family relations or tie by
minded or moron comprise the mental ages of 9 to 12. blood or marriage creates grounds restricting a person
Touching the question of responsibility the law makes no capacity to act. For instance, certain persons related by
distinction between imbecility and insanity. consanguinity cannot validly marry" one another; the wife
without the husband's consent cannot receive gifts from
The State of Being a Deaf-Mute. - It was formerly strangers; she cannot without her husband's consent
said that persons who are deaf and dumb were presumably exercise any profession, occupation or engage in lawful
idiot. But that doctrine was formulated at a period when the business." Husband and wife, during the marriage cannot
subject of education of such unfortunate persons was not yet give donations to each other, neither could they enter into a
developed. Such persons are now considered as capable of contract between themselves," or acquire the other's
entering into contracts if shown to have sufficient mental property by prescription." A married woman may not sue or
capacity," and able to read and write." He can make a will be sued without joining the husband, except in the cases
provided he could personally read the will, if able to do so, allowed by law. A husband or the wife cannot testify for or
or could understand the contents if communicated in some against the other as to matters in which they are interested
practicable manner by two persons whom he may designate. in directly or indirectly, except in a civil case by one against
He may accept or repudiate an inheritance personally. the other, or in a criminal case for a crime committed by one
against the other.
Death-Illness. - (See preceding discussion on
Marad-ul- maut as a restriction to capacity as under the Absence. Under the law, a person is absent when
Muslim law). he disappears from his domicile, his whereabouts being
unknown." Absence is the state of being away or
Penalty. - Whenever the courts shall impose a disappearance from one domicile or usual place of
penalty which by provision of law carries with it other residence. The mere fact of a person being absent from his
accessory penalties of perpetual or temporary usual place of residence, no matter how long, will not entitle
disqualification to hold public office and employment, to another to take charge of the administration of his property,
exercise a profession or calling, or the right of suffrage, the or entitle anyone to any right thereto. An order of the court
convict shall suffer such restrictions upon his capacity to act declaring his absence after the lapse of certain period is
with or without pronouncement of their imposition." The required. For instance, for the purpose of appointing an
penalty of civil interdiction shall deprive the offender during administrator or trustee of his property, a person must have
the time of his sentence of the rights of parental authority, or been absent for two (2) years without any news about him,
guardianship, either as to the person or property of any ward, or since the receipt of the last news if he has not left an agent
of marital authority, of the right to manage his property and to administer his property and five (5) years if he has left one.
of the right to dispose such proper- ty by any act or any The effects therefore of absence with regard the property left
conveyance inter vivos. The accessory penalty of civil behind by the absentee, is that he cannot be deemed to be
interdiction is imposed upon a convict who is sentenced to a in a position to administer them, hence, a guardian will have
principal penalty either of reclusion perpetua or reclusion to be appointed by the court for that purpose. But the
temporal“ or a penalty which has a range of 12 years and absentee, if living elsewhere and not suffering from other
 18
causes of incapacity, has of course the juridical capacity to renders a person suffering therefrom from giving consent to
act. the marriage is psychological incapacity."

Alienage. - Alienage is the state of being an alien or Under Article 36 of the Family Code, a marriage
foreigner in a particular country by a person who is a citizen contracted by any party who, at the time of the celebration
of another country. As a matter of a state policy intended to was psychologically incapacitated to comply with the
protect the interest of its own citizen, a state may by law essential marital obligations of marriage is void. The
provide that the enjoyment or exercise of certain rights or essential and determinative factor therefore is whether or not
privileges are for its citizens only and are not allowed of the other party to the marriage was at the time of the
aliens or foreigners. Thus, for example, aliens are celebration psychologically incapacitated to comply with the
disqualified from exercising political rights like the right of essential marital obligations. Where such other party was
suffrage; the right to be elected or appointed to public office," suffering of psychological incapacity to comply with the
the exploitation, acquisition, development and utilization of essential marital obligation, e.g., to procreate, to give
all lands of public domain and all other natural resources of support, to provide right c consortium or to live together as
the Philippines," and the right to own private lands," the right husband and wife, to observe mutual love, respect and
to secure franchise, certificate, or any of other form of fidelity and render mutual help and support, not to commit
authorization for the operation of public utility; the right to acts which will bring danger, dishonor or injury to each other
certain profession like law or medicine;" and the right to etc.," it is submitted that, the other party under Article 35 of
engage in certain business" which are authorized by law for the Family Code (E.O. No. 209), a suppletory law to the
the citizen, e.g., Retail Trade Law. Muslim Code (P.D. No. 1083), may bring an action to have
the marriage nullified by the Court.
Insolvency. Insolvency is the state of a person,
whether natural or juridical, whose total liabilities has already Guidelines Issued in Determining Psychological
exceeded his entire assets. Incapacity. The Supreme Court has issued the following
guidelines in determining psychological incapacity, viz.:
The Civil Code provides: "Insolvency shall be
governed by special laws insofar as they are not inconsistent 1) The burden of proof to show the nullity of the marriage
with this Code. The special law on insolvency is Act No. belongs to the plaintiff. Any doubts should be resolved
1956, as amended. in favor of the existence and continuation of the marriage
and against its dissolution and nullity.
Under the said law, upon receiving and filing of the
petition of insolvency, the court, or the judge thereof, shall 2) The root cause of the psychological incapacity must be
make an order declaring the petitioner insolvent, and forbid (a) medically or clinically identified, (b) alleged in the
the payment of any debts due him, or the delivery of any complaint, (c) sufficiently proven by experts, and (d)
property belonging to him, and the tribute of any property by clearly explained in the decision.
him, which shall be course through the Court's Sheriff, until
a receiver or assignee to take charge of them is appointed 3) The incapacity must also be proven to be existing at "the
by court." time of the celebration" of the marriage.

Trusteeship. or expressly Trusteeship is the result 4) Such incapacity must also be shown to be medically or
of a creation of a trust relation. A trust is an obligation clinically permanently incurable.
imposed either by implication of law whereby the obligor
known as the trustee is bound to deal with property over 5) Such illness must be grave enough to bring about the
which he has control of the benefit of another person called disability of the party to assume the essential obligations
the beneficiary. When a been established by the court to of marriage.
carry into effect, say the provisions of a written instrument,
the beneficiaries to the trust cannot deal directly concerning 6) The essential marital obligations must be those
any matter subject of the trust except through the trustee embraced by Articles 68 to 71 of the Family Code as
appointed by the court. trusteeship has regards the husband and wife as well as Articles 220,
221 and 225 of the same Code in regard to parents and
Psychological Incapacity. - A new circumstance their children.
which incapacitate a person from contracting marriage is
psychological incapacity. Article 36 of the Family Code, 7) Interpretations given by the National Appellate
Executive Order No. 209 provides: "A marriage contracted Matrimonial Tribunal of the Catholic Church in the
by any party who, at the time of the celebration, was Philippines, while not controlling or decisive, should be
psychologically incapacitated to comply with the essential given great respect by our courts.
marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its 8) The trial court must order the prosecuting attorney or
solemnization." fiscal and the Solicitor General to appear as Counsel for
the State."
The Family Code (E.O. No. 209) did not define the
meaning of psychological incapacity. In one case the Art. 10. Personality how acquired. - Birth
Supreme Court held that, the condition of habitual determines personality; but the conceived child shall be
drunkenness or alcoholism and mental immaturity which considered born for all purposes that are favorable to it,
 19
provided it be born alive, however briefly, at the time it deemed born if it dies within twenty- four hours after its
is completely delivered from the mother's womb. complete delivery from the maternal womb. The fact that the
last sentence of the said article of the Civil Code was not
Notes/Comments carried to the provision of the Muslim Code shows that it was
deliberately intended to delete the same. What then would
Sources of Article. Art. 419, Civil Code of the be the rule in case of pre-mature birth? It would seem that
Philippines, Muslim Law/Fiqh. all that the law requires is that the child be born alive,
however briefly. However, this writer believes that in such a
Beginning of Legal Personality. A living child in case, the child must have a human form, otherwise, it would
the womb of its mother is a person in contemplation of law be inconceivable to consider it a human being if it has not
and is, therefore, possessed of inherent legal capacity, acquired that form, that in case it survives it would grow up
which, however, is regarded as defective in as much as an into a person whether normal or abnormal.
embryo's life is not independent of its mother, and which
becomes manifest on birth. Because of such inherent Art. 11. Extinction of Personality. - (1) Civil
capacity, the law recognized its lineage, and it is held to be Personality is extinguished by death. The effect of death
capable of acquiring rights, such as inheritance, a legacy upon the rights and obligations of a deceased person is
and the like." A child in the womb cannot, however, be determined by this Code, by contract, and by will.
fastened with liabilities. On being born, a child acquires
capacity to discharge obligations though of defective (2) After an absence of seven years, it being
character, the law requiring him to discharge such unknown whether or not the absentee still lives, he shall
obligations as are possible to discharge. And gene- rally be presumed dead.
speaking, only such acts and transactions of a minor will be
upheld as are of benefit to him and whatever is injurious to Notes/Comments
his interest will be disallowed."
Sources of Article. Par. 1 is copied from Art. 42,
Born Alive. - The Code provides that it be born alive Civil Code, but instead of the word law, it is changed to
however briefly, at the time it is completely delivered from Code; Art. 83, on contracting a subsequent marriage after a
the mother's womb. It does not provide that it be capable of spouses absence of seven years; and par. 2 from Rule 131,
surviving after its complete delivery from the mother's womb Sec. 5, par. (x), Rules of Court, except the last words which
which shows the intention of the law that it is sufficient that it reads "except for those of succession" was deleted.
be born alive however briefly, because had it been intended
otherwise, it would have so provided. And according to the Fiqh. - Absence of seven years will give rise to
majority view of the Sunnis, a child shall be considered alive presumption of death. (Shafi'i)."
when it takes birth fully crying. But merely the pruriens of
some limb its being born alive shall not arise. Effect of Death on Legal Personality Under
Muslim Law. The effect of death upon the rights and
The Code therefore, under the present article obligations of the deceased is determined by this Code, by
recognizes a fetus, in the womb as a juridical person for all contract, and by will.
purposes favorable to it on condition that it be born alive
however briefly, otherwise, if it is not born alive, it is deemed As regards his rights they continue to inhere in him
to have never acquired a legal personality in law. in so far as may be necessary for his last requirements, such
as payment of the expenses of his coffin and burial, and his
Suppletory Law/Jurisprudence debts and legacies, the legacies to be paid from one third of
the residue which may be left after making the other
Civil Law on Legal Personality. Under the Civil payments. The expenses of the burial of the deceased take
law, a natural person acquires a legal personality from the precedence over his unsecured debts but secured debts
moment of birth. Birth is the act of being wholly brought into must be paid off before the property mortgaged or charged,
this world. The conditions of live births are not satisfied when such as lien for unpaid purchase-money can be available
a part only of the body is born. The whole body must be even for the payment of his funeral expenses. Rights which
brought into the world and detached from that of the mother, are purely personal to the person himself are extinguished
and after this event the child must be alive." The circulatory upon his death but those which are not and are transmissible
system must also be changed and the child must have an passes to his heirs.
independent circulation. According to one authority, the total
separation of the fetus from the mother's womb is produced As regards his obligations relating to this world, a
by the cutting of the umbilical cord, whether the removal person on his death is necessarily released from all
takes place naturally or by surgical operation. And, another obligations which are to be discharged personally, for
authority says that it is not necessary that there should have example, obligation to perform a work which he alone can
been a separation of the umbilical cord. do. But his liability with respect to any property recoverable
from him in specie remains unaffected, for example,
Pre-Mature Child. Another aspect of which the anything which he was holding in trust at the time of the
Muslim Code is silent about is concerning premature birth. death will be restored to the owner of the succeeding trustee.
Under the Art. 41 of the Civil Code from which the treated Similarly, any property of which he was in wrongful
provision was partly taken, it further provides: that if the fetus possession may be recovered by the rightful owner. When a
has an intra-uterine life of less than seven months, it is not deceased person's obligation does not assume the form of
 20
liability to restore a thing in specie but is in the nature of a presumed dead by decree of court after no one of his
debt, the creditor can have recourse to his estate. If during contemporaries is still living. This view finds support from
the lifetime, a person committed a wrongful act which Imam Shafi'i; although according to another view of the
resulted after his death in loss to another, his estate will be Hanafi, the law of the Husband's state regarding the period
liable to make it good. Any obligation of the nature of a of absence will be controlling.
benevolent act (sila) ceases on a man's death, such as
maintenance of relatives." The deceased is spoken of as Hanbali. - According to Imam Hanbali if he has been
having rights and obligations and not his estate, for the law missing in a dangerous situation, likewise, his death can be
deals both with man's spiritual, and even the wordy rights declared by the court after four years. However, if he is
and obligations of a person cannot be said altogether lost on missing under normal situation, it depends upon the
his death, inasmuch as he is entitled to have his funeral discretion of the court.
expenses and his debts and other obligations discharge out
of his estate. Later, jurists seem inclined now to recognize Maliki. - According to the Maliki's, the wife of a
an artificial person." In the reality, however, the civil person whose whereabouts is not known, shall have the
personality of a person is extinguished by his death but for right of contracting another marriage after waiting for four
purposes of his rights and obligations which survive after his years from the time of having recourse to the Court and after
death, they shall continue through his estate until his estate confirmation of decree of dissolution of marriage from the
is fully settled. court on termination of iddat (term of probation). The Maliki's
view is the one in accord with Article 41 of the Family Code,
When Article 11(2) of the Muslim Code Apply. - the latest rule on the matter.
Art. 11(2) of the Muslim Code, except for the phrase "for all
purposes, except for succession" which was deleted is Suppletory Law; Jurisprudence
copied or lifted from Art. 390 of the Civil Code which provides
that, after an absence of seven years, it being unknown Meaning and Effect of Death According to the
whether or not the absentee still lives. he shall be presumed Civil Law. By death is the state of a natural person who,
dead for all purposes except for those of succession. The though possessing natural life, has by the cessation of life
deletion of the phrase "except for those of succession" was from his being has lost all his civil rights by the
probably made inasmuch as respecting succession it is extinguishment of his civil personality." Once a person is
covered by another provisions of the Muslim Code under Art. dead, he ceases to be a person in law, and his corpse is
98(c), which is until the lapse of ten years when the absentee reduced into a matter, a thing, a corporeal object although it
shall be presumed dead by decree of Court. can not be a lawful object of commerce unlike other things.
The effect of death upon the rights and obligations of a
In what case will a Article 11(2) of the Muslim Code person is determined by law, by contract and by will." The
therefore apply? It appears that, except as otherwise rights and obligations of a persons are of two kinds, those
provided by the Muslim Code and other suppletory laws that are personal to himself alone, or which he himself alone
such as the Civil Code now also the Family Code, the Rules can exercise or be required to perform; and those which he
of Court, and other laws, it is intended to apply to all cases, can assign, transfer, or cede. The former are not
including that of contracting of a subsequent marriage by the transmissible and are extinguished by his death; while the
spouse present in accordance with Art. 83(2) of the Civil latter kind passes to his heirs, however, respecting his
Code which provides that "where the first spouse had been obligation, only to the extent of the estate left by him. The
absent for seven consecutive years without the spouse extent of such transmission or extinguishment depends
present having news of the absentee being alive" x x x which upon the law, the contract, or the will involved. Under the
provision of the Civil Code is now amended by Article 41 of present legal system, rights and obligations which survive
E.O. No. 209 of 1987 otherwise called the Family Code of after death shall be exercised and fulfilled only by the state
1987 in which absence of four consecutive years is sufficient of the deceased."
where the spouse present had a well founded belief that the
absent spouse was already dead. In case of disappearance Presumption of Death of Absent Person Under
where there is danger of death under the circumstances set Civil Law. -Person who have been once shown to have
forth in the provisions of Article 391 of the Civil Code, an been in life are always presumed thus to continue until the
absence of only two years shall be sufficient. (For more of contrary is shown; so that the burden is on the party
this topic, see succeeding topic under suppletory law on asserting the death to make proof of it. But proof of long
presumptive death under the civil law following hereof.) continued absence unheard from and unexplained will lay a
foundation for a presumption of death. The general rule, as
Sunnis Doctrines now understood, is that the presumption of the duration of
life ceases at the expiration of seven years from the time
Hanafi, Shafi'i. According to Abu Hanifa and Al when the person was last heard of or known to be living; and
Shafi'i, the wife of a person whose whereabouts is not known after the lapse of that period there is a presumption of
cannot be considered to have been released from the death." Under Article 83(2) of the Civil Code, where a spouse
marriage-tie till her husband's death is known with certainty had been absent for seven consecutive years at the time of
or while all other persons of the husband's age, meaning his the subsequent marriage of the present spouse, without the
contemporaries are still living. They say that marriage is latter having news of the absentee being alive, or if the
impermissible for the wife of a missing person as long as he absentee, though he has been absent for less than seven
may be considered alive on the basis of a usual life span, (7) years, is generally considered dead and believed to be
According to this school the missing person shall be so by the spouse present at the time of contracting such
 21
subsequent marriage, or if the absentee is presumed dead considered presumptively dead for purposes of contracting
according to Articles 390 and 391, such subsequent a subsequent marriage by the spouse present,
marriage is valid, until annulled by the a spouse who
reappears." Judicial declaration of presumptive death Sunnis Doctrines. If the First Husband Returns; Effects
absent or absence is not required. It is sufficient that the
required period has passed since the last time the absentee Abu Hanifa and Al-Shafi'i state that if the first
has been heard of However, under Arts. 41 and 42 of husband returns after she marries another, the second
Executive Order No. 209 of 1987, otherwise known as the marriage shall become void and she will become the wife of
Family Code of the Philippines, an absence of four years will the first husband.
entitle the spouse present to institute a summary proceeding
for the declaration of presumptive death of the absent Imam Malik says that if the first husband return
spouse, and the reappearance of the absent spouse shall before the consummation of the second marriage, she will
automatically terminate the subsequent marriage by the belong to the first husband. But if he returns after the
recording of affidavit of reappearance in the office of the civil consummation, she will remain the wife of the second
registry of the residence of the parties to the subsequent husband. It will be wajib (incumbent) however. for the
marriage with due notice to the spouses of the subsequent second husband to pay mahr (dower) to the first husband.
marriage and without prejudice to the fact of reappearance
being judicially determined in case such fact is disputed. According to Ahmad Hanbali if the second husband
Articles 41 and 42 of Executive Order No. 209 of 1987 which have not consummated the marriage she belongs to the first;
is a special law repealed Article 83, par. 2, Title III of Book I but if he has, the choice belongs to the first husband. He may
of R.A. No. 386, otherwise known as the Civil Code which is either reclaim her from the second husband and give mahr
a general law, or parts thereof inconsistent to the former, (dower) or allow her to remain with him by taking the mahr.
pursuant to Art. 253 of said executive order. Considering The Hanafi and Shafi'i rule is the one in accord with Article
therefore, that Article 11(2) of the Muslim Code was copied 42 of the Family Code.
from Article 83(2) of the Civil Code which is in turn amended
by Articles 41 and 42 of Executive Order No. 209 or the Art. 12. Simultaneous Death. If, as between two
Family Code of 1987 it is this author's opinion that Article or 1 more persons who are called to succeed each other,
11(2) of the Muslim Code must likewise now also conform to there is a doubt as to which of them died first, whoever
Articles 41 and 42 of the Family Code. alleges the death of one prior to the other shall prove
the same; in the absence of such proof, it is presumed
Article 41 of Executive Order No. 209, provides: "A that they died at the same time and there shall be no
marriage contracted by any person during the subsistence transmission of rights from one to the other. However,
of a previous marriage shall be null and void, unless before the successional rights of their respective heirs shall
the celebration of the subsequent marriage, the prior spouse not be affected.
had been absent for four consecutive years and the spouse
present had a well-founded belief that the absent spouse Notes/Comments
was already dead. In case of disappearance where there is
danger of death under the circumstances set forth in the Sources of Articles. Art. 43 of the Civil Code;
provisions of Article 391 of the Civil Code, an absence of Muslim Law, Figh
only two years shall be sufficient. For the purpose of
contracting the subsequent marriage under the preceding Rule 131, Sec. 3, Presumption on Simultaneous
paragraph, the spouse present must institute a summary Death Under Revised 1 Rules on Evidence of the Rules
proceeding as provided in this Code for the declaration of of Court. par. (j.j) provides: That except for purposes of
presumptive death of the absentee, without prejudice to the succession, when two persons perish in the same calamity,
effect of reappearance of the absent spouse such as wreck, battle, or conflagration, and it is not shown
who died first, and there are no particular circumstances
Article 42 of Executive Order No. 209, provides: from which it can be inferred, the survivorship is presumed
"The subsequent marriage referred to in the preceding from the probabilities resulting from the strength and age of
Article shall be automatically terminated by the recording of the sexes, according to the following rules:
the affidavit of reappearance of the absent spouse, unless
there is a judgment annulling the previous marriage or (1) If both were under the age of fifteen years, the older is
declaring it void ab initio.. presumed to have survived;

A sworn statement of the fact and circumstances of (2) If both were above the age of sixty, the younger is
reappear- ance shall be recorded in the civil registry of the presumed to have survived.
residence of the parties to the subsequent marriage at the
instance of any interested person, with due notice to the (3) If one is under fifteen and the other above sixty, the
spouses of the subsequent marriage and without prejudice former is presumed to have survived;
to the fact of reappearance being judicially determined in
case such fact is disputed." (4) If both be over fifteen and under sixty, and the sexes be
different, the male is presumed to have survived; if the
The period of four years is not without support from sexes be the same, then the older;
the Muslim law. According to Imam Hanbal and Imam Malik,
a husband who has been absent for four years can be
 22
(5) If one be under fifteen or over sixty, and the other be (2) In case of a marriage between a Muslim and
between those ages, the latter is presumed to have a non- Muslim, solemnized not in accordance with
survived. Muslim law or this Code, the Civil Code of the
Philippines shall apply; and
Application of Art. 12 of the Muslim Code and
Rule 131, Sec. 3, Par. (j.j) of the Rules of Court; (3) Subject to the provisions of the preceding
Distinguished. -Art. 12 of the Code is a substantive law, para- graphs, the essential requisites and legal
while Rule 131, Sec. 3, par. (jj) of the Rules of Court is a impediments to marriage, divorce, paternity and
procedural law. The provision of Article 12 of the Code which filiation, guardianship and custody of minors, support
states: "If, as between two or more persons who are called and maintenance, claims for customary dower (mahr),
to succeed each other," shows that this article applies only betrothal, breach of contract to marry, solemnization
in case of the simultaneous deaths of two or more persons and registration of marriage and divorce, rights and
and an issue arises as to which of them died first for obligations between husband and wife, parental
purposes of succession; on the other hand, Art. 12, does not authority, and the property relations between husband
provide for a situation of simultaneous death of two persons and wife shall be governed by this Code and other
who although the question of succession between them applicable Muslim laws.
does not arise, but certain rights and obligations are made
to depend, say for example between persons who are Notes/Comments
mutually insured and the issue as to who as between them
survive the other arises for purposes of determining the Sources of Article. - Quran, II:221. "Do not marry
rightful beneficiary of the insurance benefit. In such, and unbelieving women (idolaters), until they believe;" x x x "Nor
other cases, not involving question or issue on the right to marry (your girls) to unbeliever until they believe."
succeed, the Rules of Court applies. 60:10."And hold not the ties of marriage of
unbelieving women."
The opening paragraph of par. (j.j), Sec. 3 of Rule
131, provides: That except for purposes of succession, when V:5 and V:6.- "Lawful unto you in marriage are (not
two or more persons perish in the same calamity," shows only) chaste women who are believers, but chaste women
that the said rule applies to a situation of simultaneous death among the People of the Book." Chapter IV, on Marriage and
arising from the same occurrence of certain calamity such Divorce, Article I, applicability clause, Sec. 130, Draft of the
as wreck, battle, or conflagration. While Article 12 of the Adm. of the Muslim Law Code of 1974; Muslim law and Fiqh.
Muslim Code covers a situation where simultaneous death
takes place though not necessarily arising from the Application of the Muslim Code. - Islam ordains a
occurrence of the same calamity say for example in the case common code of law for all Muslims. It lays down a universal
of two persons dying at or about the same time, at different rule that all Muslim countries shall be governed by the same
places, occurrences, or events or, to simultaneous death code of personal laws. It does not recognize any
arising from the same calamity. geographical or cultural barriers, race or creed. The modern
times concept of "domiciliary theory" which holds that the
Sec. 3, par. (jj) of Rule 131 of the Rules of Court personal law of a person is determined by his domicile, and
creates a disputable presumption, which is satisfactory if the "citizenship theory" which makes the citizenship or
uncontradicted and transmit whatever right arising therefrom nationality of the person the basis for such determination,
except that of right of succession, whereas, under Article 12 are foreign in Islamic law. In other words, it lays down a rule
of the Muslim Code, whoever alleges the death of one prior that all Muslims whether by birth or by conversion is
to the other shall prove same, in the absence of proof, it is governed by the Islamic law, wherever he or she may be
presumed that they died at the same time and there shall be living and wherever he or she may go and reside.'
no transmission of successional rights from one to the other,
and their respective heirs if qualified, shall succeed them Mussulman (Muslim) law generally is a personal
respectively. law; that is, its incidents remain attached to the individual
Mussulman (Muslim) whatever the domicile, so long as (he)
continues even outwardly faithful to the Islamic faith. A
TITLE II. MARRIAGE AND DIVORCE "Mussulman" (Muslim) says the Kifaya, "is absolutely subject
to the laws of Islam, whatever the domicile.
Chapter One Illustrative Case. - Yusuf Abbas v. Ismat Mustafa, 1968,
APPLICABILITY CLAUSE PLD Karachi 480, p. 502.

Art. 13. Application. - The deceased died in 1964 seized of

property, both moveable and immoveable in
(1) The provisions of this Title shall apply to Pakistan and in the Persian (Arabian) Gulf. At the
marriage and divorce wherein both parties are Muslims, time of his death, he was a national of and domiciled
or wherein only the male party is a Muslim and the in Pakistan. On the preliminary point of jurisdiction,
marriage is solemnized in accordance with Muslim law Noorul Arfin J held that the court had jurisdiction
or this Code in any part of the Philippines; under Section 20 of the Civil Procedure Code (1908)
to entertain an action with respect to properties
situated outside Pakistan. The judge then went on
 23
to consider the principles which should apply to the Muslim Law Rules on Mixed Marriages. The
succession of the deceased's estate situated within Muslim law classifies mixed marriages where one of the
the foreign territory. He held that Muslim law, the parties is a Muslim and the other is a non-Muslim as follows:
personal law of the propositus does not recognize
any principle of succession 1. Mixed Marriage between a Muslim male with a Muslim
female belonging to two different Muslim sects;
He then went on to make the following
proposition, if a Muslim dies domiciled in England, 2. Mixed Marriage between a Muslim male with a non-
the courts in this country (.e., Pakistan) will apply, Muslim female who belongs to the people with a
not lex domicile but his personal law that is, Islamic revealed book (Kitabiyyah);
law as administered in this country to succession to
his moveable in Pakistan. Even the will with regard 3. Mixed Marriage between a Muslim male with an
to these movables, though valid in English law, will idolatress; and
be recognized by the courts of this country only so
far as it is consistent with Islamic law. 4. Mixed Marriage between a Muslim female with a non-
Muslim male.
The Marriage is Solemnized in Accordance with
Muslim Law or this Code in Any Part of the Philippines; Differences Between Muslim Marriage under PD 1083,
And, the Rule of the Civil Code on Lex Loci and Civil Marriage Under the Civil Law of the Philippines
Celebrationis. 13(1) of the Muslim Code states that the
provisions of this title on marriage and divorce shall apply Under Muslim law, a dower (mahr) is an essential
wherein both parties are Muslims or wherein only the male requisite of marriage; under the Civil Code, it is not.
party is a Muslim and the marriage is solemnized in
accordance with Muslim law or this Code in any part of the The guardian in marriage (wali) of the female or any
Philippines which seems to require that the Muslim competent person authorized by him may solemnize
marriage, in order to be subject to the Muslim Code, should marriage under Muslim law, whereas only authorized
be contracted in the Philippines. However, considering that officers mentioned in Article 7 of the Family Code which
the Muslim Code is a personal law, and as such under the amended Article 56 of the Civil Code may solemnize
Muslim law it's incidents remain attached to the individual marriage.
Muslim whatever the domicile, as long as he continues even
outwardly faithful to Islamic faith, it is the author's OPINION A marriage license is not required for a Muslim
that the provision of this Code on marriage and divorce marriage. It is essential in a civil law marriage.
which are generally based from Muslim law shall apply to
Muslims married in accordance with the Muslim law or this Fosterage (rada'a) is an impediment to Muslim
Code abroad. This contention finds support with the rule on marriage; it is not so in a civil law marriage.
lex loci celebrationis in Article 71 of the Civil Code, and now
Article 26 of the Family Code which provides that, "all The property relations between the spouses during
marriages solemnized outside the Philippines in accordance the marriage is presumed to be separation of property
with the laws in force in the country where they were unless another regime has been agreed upon in the
solemnized, and valid there as such, shall also be valid in marriage settlements or in any other contract; whereas
this country, except those prohibited under Articles 35(1), under Article 75, the Family Code, which amended Article
(4), (5) and (6), 36, 37, and 38." Those exceptions, of course, 119 of the Civil Code the regime of property relations in the
is subject to the exceptions under the Muslim Code on absence of any agreement in the marriage settlement or
bigamous marriages, and marriage between consanguineal when the regime agreed upon is void, the system of
relations within the fourth civil degree, or first cousins. community of property as established in the Family Code
shall govern. The marriage between a Muslim male and a
Article 26 of the Family Code further provides that, woman who belong to the people with a revealed book
"Where a marriage between a Filipino citizen and a foreigner (alkitab), i.e., Christians, Jews, Hebrews, solemnized in
is validly celebrated and a divorce is thereafter validly accordance with the Muslim law or this Code in any part of
obtained abroad by the alien spouse capacitating him or her the Philippines, is valid and the present Muslim Code shall
to remarry, the Filipino spouse shall likewise have capacity apply to such marriages," those between a Muslim male and
to remarry under Philippine law." The provision says that the a non-Muslim female who is not a believer of a revealed
divorce is validly obtained abroad by the alien spouse book (khitabiyyah), i.e.. idolatress, fire worshipper, Hindus,
without including if the divorce is obtained abroad by the the marriage is unlawful or invalid under the Muslim law
Filipino spouse. That may be because the Civil Code, the Some authorities including Sir Ameer Ali however, consider
Family Code, and this country does not allow divorce among such marriage as irregular (fasid) and not void ab initio, and
Christian or non-Muslim Filipinos, except divorce among if cohabitation takes place, the wife would be entitled to get
Muslim Filipinos in accordance with the Muslim law or the her dower, and the issues shall be legitimate. The present
Muslim Code. It is the author's OPINION that divorce Muslim Code conform to the latter view under Arts. 32(f).
obtained abroad by Muslim Filipinos in accordance with the 33(f), that the marriage is irregular (fasid) which can be made
Muslim law or the Muslim Code has the same effects as a regular, however, not by cohabitation but by the conversion
divorce done in the Philippines in accordance with the of the non- Muslim in accordance with Art. 178 of the Code;
Muslim law or the Muslim Code. and those between a Muslim female and a non-Muslim male,
whether belonging to a people with a revealed book or a
 24
polytheist is void according to all Sunnis of Muslim law. prior to the effectivity of the Code can be placed under its
Consequently, such marriage contract even in case of operation by the spouses by means of registering it with the
consummation, neither the legitimacy of the issues shall be Shari'a Civil Registrar, there is no reason why marriages
established nor the term of probation "idda" or (waiting contracted thereafter should not be allowed. The only reason
period) on separation shall become incumbent upon the seems to be, that since the Muslim Code P.D. 1083, is also
female. One authority, however, considers such marriage in effect, therefore, the contracting parties can choose which
contract as "irregular" on the analogy of marriage contract of law would they want to govern their marriage, and by
a Muslim male with a polytheist female. Under the Muslim contracting a Civil marriage and not a Muslim Marriage,
Code, Article 32(f) mixed marriages not allowed under therefore, they chose the civil law to govern their marriage.
Islamic law is considered irregular, and under Article 33(f) On the other hand, Islam has left wide open its door to those
can be made regular after conversion by the non-Muslim wishing to embrace it and be put within the fold of its law,
spouse to Islam. The arguments against the latter view rather than putting a bar to its door. Even in the case of
seems to be that the analogy would not apply because in the apostasy, according to a Shafi'i legist, an attempt should be
case where the male is a Muslim because of his made to induce the apostate to retract from his or her error.
predominance as head of the family, the possibility that he Where a person who has apostatized returns from his or her
exercises a stronger influence over his family to follow his error, his conversion must be accepted as sincere, the
faith is greater, hence, for the same reason the marriage of converted person left alone. This view finds support under
a Muslim woman to a non-Muslim man is not permitted under the Code's provision that: The conversion of non-Muslim
the Muslim law. spouses to Islam shall have the legal effect of ratifying their
marriage as if the same had been performed in accordance
Application of the Code and Other Muslim Law. with the provisions of this Code or Muslim law, pro- vided
- Under Art. 13, par. 3, the Code and other applicable Muslim that there is no impediment to the marriage under the Muslim
laws shall govern the acts mentioned therein. In other words, law.15 RECOMMENDATION: They should be allowed to
such other applicable Muslim laws not embodied in this have their marriages placed under the coverage of the
Code has the same category with the Muslim Code itself as Muslim Code.
to their applicability as distinguished from being merely a
suppletory law. A similar provision is also found in Art. 9 of Civil Code Governs Validity of Muslim Marriages
the Muslim Code on restrictions on capacity. It is provided Celebrated Before the Effectivity of P.D. 1083. - The law
therein that the consequences of those circumstances are that governs the validity of Muslim marriages contracted
governed by this Code and other Islamic laws, and in a before the effectivity of the Muslim Code, P.D. 1083, on
supple- tory manner, by other laws. Islamic laws and Muslim February 4, 1977 is the Civil Code. Article 78 of the Civil
laws are two synonymous terms without any significant Code recognizes the right of Muslims to contract marriage in
difference, other than the fact that in the former, the law is accordance with their customs and rites.
designated in relation to Islam as its source or of Islamic
origin, while in the latter, it is referred to in relation to the Suppletory Law/Jurisprudence
Muslims as their personal law. Technically, by Islamic law
refers to all those laws embraced by the Shari'a as embodied Civil Law Rule on Mixed Marriages Between a
in the Quran and the hadiths while Muslim law refers to those Christian Male with a Muslim Female. - Under Article 79
laws promulgated by Muslim state whether based from the of the Civil Code mixed marriage between a Christian male
Quran and the Hadiths or not. Sometimes, it is also referred and a Muhammedan (Muslim) female shall be governed by
to as Muhammadan law in relation to Prophet Muhammad the general provisions of Title III of the Civil Code and not by
(P.B.U.H.) the messenger of that Divine Law of God. Article 78 of the said Code on exceptional marriages. In
However, such other Muslim Laws not embodied in this mixed marriages, the law of the male is generally followed.
Code, in order to be given applicability, under Article 5 of the Thus, if the male is a Christian the general provisions of the
Muslim Code, it is required that it must be proven in evidence Civil Code shall govern, and the marriage cannot be
as a fact. considered as a marriage of exceptional character. On the
other hand, if the male is a Muhammedan (Muslim), it is
Marriages Involving Muslims Subject to Civil optional to follow either his religious or tribal rites of the
Code; Exception. Marriages between Muslims" or where general provisions of the Civil Code."
one of them is a Muslim solemnized in the Philippines not in
accordance with the Muslim law or the Muslim Code shall be However, that rule should now be understood as
governed by the Civil Code of the Philippines. Under the modified by Article 13 of the Muslim Code (P.D. 1083)
Code," a marriage contracted by a Muslim male prior to the paragraph no. 1, in accordance with Article 3, paragraph (1)
effectivity of this Code in accordance with non-Muslim law of the same Code.
can be placed under the operation of the Muslim Code by
the spouses by registering their mutual desire to that effect Differences between Marriages under the
with the Muslim Civil Registrar. QUERY: The Code is silent Muslim Code and the Civil Code on Age to Contract
regarding marriages between Muslims or where the male is Marriage. As regard the age when a person may contract
a Muslim but not solemnized in accordance with the Muslim marriage Article 5 of E.O. 209, the Family Code which
law or the Code after the date of its effectivity whether or not amended Article 54 of the Civil Code, any male or female of
they could also be placed under the operation of the Muslim the age of eighteen years or upwards not under any of the
Code by registering them with the Muslim Civil Registrar. impediments mentioned in Articles 37 and 38, may contract
AUTHOR'S OPINION: It is the author's humble opinion that marriage; Whereas, under Article 16 of the Muslim Code,
this should also be allowed. If those marriages contracted any Muslim male at least fifteen years of age and any Muslim
 25
female of the age of puberty or upwards which is presumed sexual relations between two members of the opposite
upon attaining the age of fifteen, and not suffering from any sexes with a view to the preservation of the human species,
impediment under the provisions of this Code may contract the fixing of descent, restraining men from debauchery, the
marriage. encouragement of chastity and the promotion of love and
union between the husband and the wife and of mutual help
Under the Muslim law in relation to the present in earning a livelihood.
Muslim Code, the foregoing mixed marriages have the
following legal effects or consequences, to wit: those Nature of Marriage. Marriage regarded as a basic
between a Muslim male and a Muslim female belonging to social institution under the Muslim law is essentially a civil
different sects, e.g., Sunni and Shiah the marriage is valid, contract, for Muslim marriage requires no religious rites and
and the present Code shall apply to such marriages; those ceremonies. It is founded on the essential requirement of
between a Muslim male and non-Muslim female Kitabiyyah, contract that both of the contracting parties shall give their
a woman who belongs to the people of a revealed book consent thereto. As such the rights and obligations between
(scripturist), i.e., Christian, Hebrew, Jews, the marriage is the husband and the wife arising therefrom, being civil in
valid: mixed marriages between a Muslim male with an nature are enforceable through the courts. They arise
idolatress, fire worshipper, Hindus, under purely Muslim law, immediately upon the perfection of the contract and are not
not valid; however under the Code (P.D. No. 1083) it is dependent on any condition precedent such as the payment
considered irregular marriage; and mixed marriages of the dower by the husband.
between a Muslim female and a non-Muslim male under
purely Muslim law, it is also considered unlawful, but under On the other hand, marriage (nikah) is also regarded
the present Code, is also considered irregular. as a sacred covenant, since its constitution and performance
is governed by Islamic Shari'a. If the religious ritual is not an
essential part of the transaction, it does not mean that it has
Chapter Two no sacred and a higher religious purpose enjoying the
MARRIAGE (NIKAH) sanctity of religion and pleasure of God. There is a sanctity
attached to it from the beginning to the end by conceptions
SECTION 1. REQUISITES OF MARRIAGE of rights and obligations which, if treated without holiness
which they possess in their nature, would be profane and
Art. 14. Nature. - Marriage is not only a civil cease to be Islamic in character. The rights and obligations
contract but a social institution. Its nature, arising thus are a cohesive whole based on the biddings of
consequences and incidents are governed by this Code God and traditions of the Prophet. Hence, Muslim jurists
and the Shari'a and not subject to stipulation, except regard nikah to be both temporal or muamalat (wordy affairs)
that the marriage settlements may to a certain extent fix and religious (ibadat) at the same time.' In its constitution, it
the property relations of the spouses. is a civil contract in which the free consent of both parties is
essential; on the accomplishment of it, however, the
Notes/Comments relationship of both contracting parties is not determined as
of a pure civil contract, but determined in combination with
Sources of Article. - Quran, VII:190 "He (God) it is its religious connotation. The parties after consenting to it,
who created you from a single being and of the same did He are bound to respect it and live within the limits of Allah.
make his mate that he might incline to her."
Distinguished from Contracts. - Although a
XLII:11 - "He (God) has made for you pairs from marriage contract under Muslim law partakes of the nature
among yourselves." of civil contract in that both requires the consent of both
parties as an essential element, however, there are distinct
XXV:54- "And He (God) it is Who has made differences between the two:
marriage. relationship.”
1. A civil contract is governed by the law of contract, while
Hadith (Miskat Al-Masabih 13:I-III) - Anas reported a Muslim marriage contract is governed by the Islamic
that the Prophet said: "The man who marries perfect half his Shari'a; the law is the one that fixes the rights and duties
religion." of the parties;

Taken from Art. 52, Civil Code, only the word "law" 2. The parties to a civil contract can be either natural
is replaced by the word "Code and the Shari'a," and the persons of either sex or juridical persons, regardless of
words "during the marriage" were deleted and replaced by their number, while a marriage contract can only be
the words "of the spouses." made by man and a woman who are not under legal
impediment to marry each other;
Meaning of Marriage under the Muslim Law. -
The Arabic word for marriage is "nikah" which literally means
"union of sexes"; Technically, "nikah" or marriage is defined 3. A civil contract can be terminated by mutual agreement
as a contract, for the legalization of intercourse and the of both parties or by either one of them subject to certain
procreation of children. A legal contract, in consequence liability for damages in case of breach thereof, while a
whereof, the married couple acquires the right of enjoyment marriage contract can only be terminated if the
of all benign association between themselves allowed under conditions of the law intended to safeguard the sanctity
the Shari'a. A basic social institution sanctioning thereby of a marriage contract are complied and any breach by
 26
either spouse of their marital obligations renders the
offending spouse to certain liability under the law; and (b) Mutual consent of the parties freely given;

4. In a civil contract, the presence of witnesses is not (c) Offer (ijab) and acceptance (qabul) duly
essential. for its validity, while in a marriage contract, the witnessed by at least two competent
presence of witness is an essential requirement for its persons after the proper guardian in
validity. marriage (wali) has given consent; and

Legal Consequences or Incidents of a Muslim (d) Stipulation of customary dower (mahr) duly
Marriage. The nature consequence and other incidents of a witnessed by two competent persons.
Muslim marriage are governed by this Code, other
applicable Muslim laws, and by suppletory laws of the Notes/Comments
Philippines such as the Civil Code and the Family Code and
the parties cannot stipulate contrary thereto. A validly Sources of Article. Quran, XXIV:32 "Marry those
contracted marriage produces certain legal effects, to among you, who single; IV: 16 - "Make trial of orphan's
mention some: (discretion) until they reach the age of marriage," IV:4 - "And
give the women (on marriage) their dower as free gift."
1. It makes lawful the sexual relationship between a man
and a woman; 11:232 "And when you divorce women, and they
end their term of probation (idda), do not prevent them from
2. Legitimizes children born of the marriage and marrying the husband when they agree among themselves
establishes their paternity and filiation. in a lawful manner."

3. It gives rise to the husband obligation to support the wife Hadith as reported by Abu Huraira; "A grown up girl
and his family; shall be asked permission about herself, if she is silent it is
her permission; and if she declines there shall be no
4. It establishes the mutual rights to inheritance between compulsion on her." (Tirmisi, Abu Daud, Nisai) He further
the spouses; narrated that the Messenger of Allah said: "A previously
married woman (ayyam) shall not (be) married till she gives
5. It affects to a certain extent the parties' capacity to act, her consent" (Agreed)." A widow shall not be married until
i.e., restrictions to contract marriage with affinal relatives she be consulted." A young man upon attaining the life of
within the prohibited degree;" the wife's right to receive puberty can marry.
donation from stranger;" to give donation to one another;
Hadith: "There is no nikah (marriage) without
6. Certain mutual rights and obligations ensues between witnesses." (Al-Hedaya)
the spouses, and their children;
Hadith. "The marriage of a woman who marries
7. The woman is emancipated from her wali, gets entitled without the consent of her guardian is void."
to contract subsequent marriage, after the dissolution of
the first marriage, without a wali, or a guardian in Conditions (Surut) of Valid Marriage. - Muslim
marriage; jurists gives the following conditions (surut) of a valid
marriage.
8. The condition of idda (waiting period) becomes
incumbent upon the wife before contracting a 1. Shurut al-in'igad, which are the formal conditions of
subsequent marriage, after the dissolution of her former marriage - namely, the offer and acceptance
marriage;" pronounced at the same meeting, and must issue from
persons competent to make contract;
9. The wife becomes entitled to her dower; and
2. Shurut al-sihha are the conditions which decide
10. 10. Marriage settlement becomes effective, and nuptial whether the contract, valid as to form actually creates a
gift becomes due. marriage valid as to essence; For instance are the
parties outside the prohibited degree of relationship;
Marriage Settlement. - The future spouses may
agree and fix to a certain extent the system of property 3. Shurut al-luzum, concern whether the contract is
relations that will govern them during their marriage. binding - for example, the option of puberty and inability
However, should the marriage not take place, such of the husband to consummate the marriage;
agreement shall be rendered void except stipulations that do
not necessarily depend thereon. 4. Shurut al-sijill, refers to the modern innovation of
registration. Sanctions are imposed, for failure to
Art. 15. Essential Requisites of Marriage. - No register, although the marriage may be valid, if it can be
marriage contract shall be perfected unless the proven by other means."
following essential requisites are complied with:

(a) Legal capacity of the contracting parties;

 27
Requisites of Marriage Under the Muslim Code; marriage contract is affected and is classified as irregular
Explained (fasid) by law."

Legal Capacity of the Contracting Parties. - The Sunnis Doctrines

first essential requisites (arkan) of marriage under the
Muslim Code is legal capacity which means that the parties All the Muslim jurists are unanimous that a Muslim
must be adult (bulugh), sane and not otherwise suffering male of major age and of sound mind is himself capacitated
from any inhibition from contracting marriage to one another of contracting his marriage. But a Muslim male who is minor
under the law. Under Article 16 of the Muslim Code any of age, or who has not attained puberty or below fifteen years
Muslim male at least fifteen years of age and any Muslim old is not capacitated to give consent to his marriage without
female of the age of puberty or upwards and not suffering the intervention of a guardian."
from any impediment under the provisions of the Muslim
Code may contract marriage. A female is presumed to have As regard a Muslim female capacity to give consent
attained puberty upon reaching the age of fifteen. to her own marriage, there is also a unanimity among the
Muslim jurists regarding a "thayibbah" or a woman with
Sunnis Doctrines coverture experience either as a divorcee or a widow, that
such a woman who is already emancipated by a former
Hanafi. - A girl can be contracted in marriage when marriage that was dissolved, can already give con- sent to
she begins to menstruate, which may also occur when she her own marriage without the intervention of a guardian.
is twelve years old, and in the absence of any evidence,
when she is seventeen years old, and for the male, when he However, with respect to a Muslim female who is a
begins having night pollution which at the earliest occurs at virgin, one who has no marriage experience, of major age
the age of nine, otherwise he will be considered capacitated and of sound mind, the major schools of Muslim laws differs
for marriage contract when he is eighteen years of age." in their view about the matter. Following are their respective
Adulthood is attained at the age of eighteen in the case of doctrines.
male, and at seventeen, for the female."
Sunnis Doctrines
Maliki. Adulthood is attained by both sexes at age
seventeen. Hanafi. - A Muslim female can give her consent to
her own marriage without the intervention of a guardian in
Shafi'i. -The legal capacity for the purpose of marriage. It is argued that marriage gets contracted by the
contracting marriage is determined by adulthood (bulugh) consent of the woman and becomes operative by the
which in the case of the male, when he begins to experience permission of the guardian." Under the Hanafi law she can
night pollution or discharge of semen, and in the case of a give consent to her marriage with or without a wali. The nikah
female, when she begins to menstruate at the earliest time of an adult girl is not invalid merely because the permission
when the girl reaches the age of nine and in the absence of of her wali is not sought."
evidence of her puberty, when she becomes fifteen years
old, Maliki. - A woman cannot give consent to her own
marriage without the intervention of her guardian in
Hanbali. - Adulthood of both sexes is established on marriage.
their completing fifteen years. The Hanbali rule is the one in Shafi'i. - The contracting words in such a marriage,
accord with Article 16(1) of the Muslim Code. i.e., the words of proposal and acceptance, have to be
exclusively pronounced by the guardian while the ambit of
Mutual Consent of the Parties Freely Given her authority of guardianship over herself is limited to giving
her consent. The consent to marriage must come from the
The second essential requisites of marriage under bride. The wali or guardian in marriage only communicates
the Muslim Code is the mutual consent of the contracting the wish of the bride."
parties to the marriage contract. The law requires that the
consent of the contracting parties must be freely or The Hanafi rule is in accord with Article 15(b) of the
voluntarily and knowingly given by them in person except in Muslim Code.
the case of betrothal marriage under Article 16 of the Muslim
Code. There is a unanimity among the Muslim schools of law Manner of Giving of Consent in Marriage
that in the case of minor girl, the father may give her in
marriage with or without her consent, provided she is under Marriage is called mithag (covenant)" in the Holy
age, a virgin or without any marriage experience, and that it Quran, a covenant between the husband and the wife. The
is in her best. interest." The giving of consent must be done marriage contract is entered into by mutual consent
in one and the same occasion personally by the bride and expressed by the two parties, the groom and the bride in the
the groom. Hence, marriage by proxy is not allowed under presence of witnesses. The expression of consent is in the
the Muslim Code. preterite (past tense) form according to the Hedaya. For
instance, the parties would say, qabiltu (I have accepted) or
Where the consent of either of the contracting zawaztu (I have taken as my mate or partner) but no
parties is ob- tained by means of violence, intimidation, particular words are essential. Any expression which
fraud, deceit or misrep- resentation, the validity of the conveys the intention of the parties in clear words is
sufficient. And, even if the Arabic words are mispronounced,
 28
and they are used with the object of contracting marriage, the words used are derived from al- ijaran (niring) and al-
such marriage is valid, for the chief point to be considered is isarah (lending) because these words do not convey the
the intention of the parties. Foreign words, are also sufficient meaning of perpetuity and continuity.
provided they convey the meaning of marriage, and it is not
necessary that the words used should be Arabic. It is Maliki and Hanbali. - The contract is valid if recited
necessary that the proposal should come from one side and by using the words al-nikah and al-zawaj or their derivatives
the acceptance from the other, or that the one should and is also valid when the word used is al-hiban, with the
precede the other. The words of mutual consent may be condition that the amount payable as dower (mahr or sidaq)
addressed to each other by the two parties, but generally it is also mentioned. Words other than these cannot be used.
is the khatib (the man who delivers the marriage khutba Shafi'i. - Scholars consider wajib that the words
(message) who puts the proposal before each party, the used in the contract should be either the derivatives of the
latter giving consent to the proposal, or the Qadi or person root al-zawaj or that of al-nikah."
solemnizing the marriage as the case may be."
Language used in Marriage. All the schools concur
The words by which the marriage are contracted that the contract can be recited in any language when it is
must be clear (surceh) and not ambiguous (kinayat) terms impossible to recite it in Arabic, but differ as regards the
whereby the declaration and acceptance are expressed in validity of the contract when so recited despite the possibility
words of past, or when one of them is expressed in the past of its being recited in Arabic. The Hanafi, the Maliki and the
and the other in the imperative present, i.e., I marry thee for Hanbali schools consider this as valid. The Shafi'i schools
this (dower), or "marry thyself to me" and she has said "I consider it as invalid." The majority rule is in accord with
have accepted," the contract is perfected. Expression in the Article 17 of the Muslim Code.
imperative forms, such as "marry me," or "marry thyself to
me" "be thou my wife are considered not proper."" Kinds of Forms of Consent. - The parties consent
to the marriage contract may either express or implied.
Marriage may also be contracted by the parties There is an ex- press consent when the party expressly state
expressing themselves, one in the imperative, and the other in an unequivocal words or acts that he or she is agreeing to
in the preterite; as if a man were to say to another "contract the marriage contract, by the utterance of the words "I do" or
your daughter in marriage to me," and he were to reply "I "yes," or by the nodding of the head, or in the case of a deaf
have contracted" (my daughter to you) because his words and dumb, by a sign language clearly and intelligibly
"contract your daughter to me" are expressive of a manifesting conformity to the marriage contract, or in writing,
commission of agency, empowering to contract in marriage; if able to do so." The bride's consent to the marriage is
and one person may be authorized to act on both sides in implied when upon being ask of her consent, she merely
marriage, wherefore the reply of the father, "I have maintain her silence, simply smile, or weep silently." If the
contracted," stands in the place both of declaration and laughter is contemptuous or mere buffoonery, as usual
consent as if he had said "I have contracted."" among people, it shall not be construed as her implied
consent.
Sunnis Doctrines
Implied consent is applicable only in the case of a
All the four major schools of Muslim law (madhahib) virgin, a woman who has had no coverture experience but
concur that marriage is performed by the recital of a not in the case of a divorcee or a widow. Provided further
marriage contract which contains an offer made by the bride that such implied consent is solicited by her proper guardian
or her deputy (na'ib), such as her guardian or agent (wakil), in marriage, i.e., father, grand- father, of a virgin who is a
and a corresponding acceptance by the groom or her minor. According to both the Hanafi and the Shafi'i, where
deputy. A mere agreement without the recital of the contract the woman to the marriage is one with marriage experience
does not amount to marriage. being a widow or a divorcee, her express consent is re-
quired."
The schools also agree that a marriage contract is
valid when recited by the bride or her deputy by employing Consent in Writing; Sunnis Doctrines
the words, ankahtu or sawajtu (both meaning, I gave in
marriage) and accepted by the groom or his deputy with the As regard consent in writing, the Hanbali and the
words, qabiltu (I have accepted) or raditu (I have agreed). Shafi'i schools considers a written consent as invalid. The
Hanafi schools differs and considers it valid, in case where
The schools of fiqh differ regarding the validity of the the bride and the groom are not present together at the place
contract when not recited in the past tense or recited by of the contract. But all the ma jor schools of Muslim law
using the words other than those derived from the roots al- (Madhahib) concur that a dumb person can convey his
zawaj and al-nikah, such as al-nibah and al-bay. intention to marry by signs in case he is incapable of
expressing it in writing. If he can express it in writing. It is
Following are their respective doctrines: better for him to combine both writing and signs in conveying
his intention"
Hanafi. - A marriage contract is valid if recited by any
word conveying the intention of marriage, even if the words
belong to the roots al-tawlik, al-hibah, al-bay, al-ata, al- Suppletory Law; Ruling
ibahah and al-ihlal, provided these words indicate their being
used for the marriage. But the contract will not conclude if
 29
Consent of deafmute; How made. If the contracting the woman herself. If the marriage agent should act mala
parties are deafmutes, signs will be sufficient. fide towards his principal, or prejudicially to the interest of
such principal by marrying her for example to a eunuch, a
Consent (Rida) Obtained by Violence, Intimidation, lunatic, or the like, the marriage is invalid."
Fraud, Deceit or Misrepresentation
According to the Sunnis, a proposal of marriage may
A Muslim woman upon attaining age of puberty be made by proxy or by letter, but when it is made by letter,
becomes a sui juris (dhimma) and is capacitated to give it is necessary, under the Sunni Law, that the woman should
consent to her marriage. If her consent was obtained give her consent in the presence of two witnesses who have
through coercion (maljiun) threat (tahdid) or deception seen the letter delivered and aware of its contents."
(tagrir), these circumstances shall vitiate the marriage
contract which shall be deemed to be fasid (irregular) till it is The Radd-ul-Muhtar says the substance of the letter
ratified afterwards. Where the woman at the time of her should be read to the witnesses, and so also the consent
marriage was suffering from illness which prevented when given by letter. But when a proposal is made by letter,
consummation and subsequently resulted in her death, and and the answer is merely "I accept," the Bahr-ur-Raik thinks
the fact of her illness was concealed from her husband, his it is not sufficient, for it is difficult to apprehend whether the
consent to marriage is said to be obtained by fraud and the acceptance refers to the proposal of marriage. But if the
marriage invalid (irregular) unless ratified (after the true case assent is worded thus, "I accept thee for or as my husband,"
has come to the knowledge of the party deceived). Where or "I accept thy proposal of marriage," it would be sufficient.
consent to the marriage has not been obtained,
consummation against the will of the woman will not validate In the Fath-ul-Kadir, it is stated that when a woman
the marriage.5 receives the letter, she should read it out to the witnesses or
explain its support to them;" and that she should say, "I
Legal Effects of Marriage in which the Consent accept this proposal," or "I marry myself to him." All this will
of the Woman is Thrust Upon Her by the Wali. - The constitute a valid marriage.
guardian are enjoined by Islam to contract their daughter in
marriage after getting their consent. Thrusting or forcing But when a proposal is couched in these terms
marriage without one's consent is against the Hadith of the "marry me to thyself," in such a case it is not necessary for
Holy Prophet (P.B.U.H.). Thus, if a man gives his daughter the woman to read the letter to the witnesses, for the man
in marriage inspite of her disagreement, such marriage is has made her his proxy. It is enough for her to say, "I marry
invalid. According to a tradition, the Prophet declared such myself to so-and-so."
marriage invalid." The Fatawa Alamgiri also lays down the
rule that marriage without the consent of either party is null It is also a condition that the contracting parties or
and void." their proxies should hear each other's words, or see the
proposal and acceptance in writing. This of course does not
Marriage by Proxy Under the Muslim Law. It is apply to a case where one or the other is both deaf and blind.
reported by Abu Dawood and Nisai, that it was related by In such a case the proxy of the party who is laboring under
Umm-Habiba, that when the Muslims were persecuted the physical incapacity or the proxies of both, if they are both
mercilessly in Mecca, some of them had, on the Prophet's incapable, must hear the words or see the proposal and
advice, migrated to Abyssinia. Among them were Abdullah acceptance in writing.
bin Hajsh and his wife Umm-i-Habiba. It so happened that
Abdullah bin Hajsh died in Abyssinia, and, his widow Umm- (Note: Marriage by proxy is not allowed under the Muslim
i-Habiba deeply mourned her husband death. When news Code, Art. 15[b], P.D. 1083)
about it reached the Prophet (P.B.U.H.), he decided to marry
Umm-i-Habiba in order to bring her solace and comfort, and Suppletory Law/Ruling
show his appreciation of her resoluteness in the path of Presence of Parties at the Time of Giving Consent
Islam. The Prophet, sent a messenger to King Negus of
Abyssinia requesting the latter to make the proposal of Marriage by proxy that is where the consent of one
marriage, on his behalf to Umm-i-Habiba, who gladly of the contracting parties to the marriage who is absent
accepted the proposal, and appointed a near relation from during the marriage ceremony, is given by that party's agent
among the immigrant Muslims, named Khalid bin Saeed El- or representative in his or her behalf, is not allowed under
Aasi, as her agent in marriage, and King Negus married her Article 6 of the suppletory provision of the Family Code which
to the Apostle of God, and himself paid the marriage portion requires that it is necessary for the contracting parties to
(mahr) of 5,000 dirhams, on behalf of the Holy Prophet, and appear personally before the solemnizing officer and declare
thereafter sent her to the Prophet accompanied by in the presence of not less than two witnesses of legal age
Shurabeel bi bin Hasana. that they take each other as husband and wife, and, a
marriage contracted without one of the contracting parties
Sunnis Doctrines. - Marriage may be considered among present to give his or her consent is invalid. Although, under
the Sunnis and the Shiahs through the agency of proxies or Article 26 of the Family Code, it provides: That all marriages
wakils. For their appointment witnesses are not necessary, solemnized outside the Philip- pines in accordance with the
and their powers are governed by the same rules of law as laws in force in the country where they were solemnized, and
applied to other contracts. However, it is illegal for an agent valid there as such, shall also be valid in this country, except
to contract the principal (if she be a female) to himself or to those prohibited under Articles 35(1), (4), (5) and (6), 36, 37
any of his own relations, unless empowered to the effect by and 38.
 30
35. However, an irregularity in the formal requisites shall not
Requisites; Offer (ljab) and Acceptance (Qabul) Duly affect the validity of the marriage but the party or parties
Witnessed by Two Witnesses responsible for the irregularity shall be civilly, criminally, and
administratively liable. And, among the formal requisites is
The third requisite of marriage under the Muslim "a marriage ceremony which takes place with the
Law is the presence of witnesses. Almost all the legist- appearance of the contracting parties before the solemnizing
doctors are agreed that witnesses are essential to the officer and their personal declaration that they take each
performance of a marriage. It is related by Abdullah bin other as husband and wife in the presence of not less than
Abbas that the Apostle of God said: "The woman who marry two witnesses of legal age.
without witnesses, i.e., in secrecy, are adulteress." There is
no nikah (marriage) without witness." Hence, the marriage is Requisites; Guardian in Marriage
null and void if it is solemnized without the presence of
persons who testify that the event has duly taken place. One Under Article 15, paragraph letter (c), of the Muslim
authority however, classifies marriage without witnesses of Code, the offer (ijab) in marriage of the woman, and the
the proper number and quality as fasid (irregular), but not acceptance (qabul) of the offer of marriage by the man shall
void. The claim to marriage must not fail merely on account be made after the proper guardian (wali) in marriage, has
of absence or non-availability of witnesses. Circumstantial given his consent to the marriage his ward.
evidence is very much relevant and at times conclusive."
The Guardianship in marriage under this Article
The words of proposal and acceptance must be refers to that of the guardian (wali) of the woman to be
uttered by the contracting parties or their agents (wakils) in wedded.
each other's presence and hearing and in the presence and
hearing of the two male or one male and two female Under the Muslim law which is now provided in
witnesses, who must be sane and adult Muslims; and the Article 16, paragraph 1, of this Code, a Muslim male or
whole transactions must be completed at one meeting female who is fifteen years old has the legal capacity to
contract marriage, in the case of a female who is a virgin or
Sunnis Doctrines without any marriage experience, with the consent of her
guardian in marriage (wali). However, there is no unanimity
Hanafi, Shafi'i and Hanbali. - These schools of opinions or rules among the major schools of Muslim law
consider the presence of witnesses as an essential condition and jurisprudence as to up to what age of a Muslim female
of a valid marriage. is she required to have a guardian in order to contract
marriage. Following are the rules of the major schools of
According to the Al-Hidaya of a Hanafi jurist Muslim law.
marriage between two Muslims cannot be contracted,
except in the presence of two witnesses, both of them should Sunnis Doctrines
be free, sane, adult, Muslim men or one male and two female
Muslim witnesses. According to Justice Ameer Ali when the As regard the male, guardianship is required of a
wife (bride) is a non-Muslim she may have a witness who is male who is not of major age" that is when he has not yet
of the same faith as herself. If all the witnesses are women reached the age of fifteen at the time of the marriage, though
the contract according to the Hanafi schools is not valid." he has already attained puberty. But all the Muslim jurists
According to this school, the presence of witness at the time are unanimous that a Muslim male of major age which they
of the nikah (marriage is a condition for the validity of the two have fixed at fifteen, of sound mind is capacitated to contract
constituents of nikah, i.e., proposal and acceptance). In the marriage without the need of a guardian.
opinion of these jurists the presence and hearing of the
witnesses at the time of the nikah, unlike other contracts, is As regard a Muslim female, there is likewise a
not for the proof of marriage along but is for the validity of unanimity among the Muslim jurists regarding a thayibah or
the contract of marriage itself because of the tradition from a female who has a marriage experience, i.e., divorced or a
the Prophet that there can be no nikah (marriage) without widowed, to the effect that she can contract her own
witnesses. marriage without the intervention of a guardian. There is a
difference of views, however, with regards a Muslim female
Maliki. The presence of witnesses in marriage is who is a virgin or without a marriage experience. though of
quite immaterial. He maintains that it is publicity which is the major age and of sound mind regarding her capacity to
condition for the validity of the marriage." contract marriage by herself without the intervention of a
proper guardian.
The Hanafi doctrine is in accord with the provision of
Article 4 of the Family Code of the Philippines, Executive The Hanbali, Maliki, and Shafi'i, schools (madhahib)
Order No. 227 of 1987. have the same view, that such a female Muslim cannot by
herself enter into a contract of marriage without the
Suppletory Law/Ruling intervention of her proper guardian. But, the Hanafi's differs
from that view and hold that such a Muslim female can
Under Article 4 of the Family Code, Executive Order contract her own marriage without the intervention of a
No. 227 of 1987 as amended by R.A. Nos. 6809 and 8533, proper guardian.
absence of any of the essential or formal requisites shall
render the marriage void ab initio except as stated in Article Following are their respective doctrines:
 31
when the latter did not consent or ratify the marriage, was
Hanafi. A woman cannot be contracted into void; and that consummation. would not validate the
marriage by her guardian without her consent." If she is of marriage."
sound mind and of major age, she can enter into a contract
of marriage without the need of a guardian (wali) to her The fact that a guardian has been appointed by the
marriage." According to a tradition, the Holy Prophet Court of the person of a minor does not take away the power
(P.B.U.H.) rendered ineffective the marriage of a woman of the guardian for the marriage to dispose of the minor in
whose consent was not obtained, although her uncle from marriage. But the minor being in such case a ward of the
her father's side acting in lieu of her father who is deceased, Court, the guardian for the marriage should not dispose of
as her guardian (wali) in marriage, was the one who got her the minor in marriage without the sanction of the Court to the
contracted to the marriage. proposed marriage.

Maliki. - Malik ibn Anas in his book the "Muwatta" Age of Guardianship in Marriage
cited a tradition from the Holy Prophet (P.B.U.H.), reported
by Ibn Abbas, that the Holy Prophet (P.B.U.H.) has said that The Muslim Code has fixed the capacity for a
a woman with marriage experience (thayibbah) has greater Muslim contract to marry in the case of the male, at age
authority over herself than her guardian, that consent shall fifteen, and in the case of the female, at the age of puberty
be required in the case of woman without marriage which the law likewise presumed upon reaching the age of
experience and that her silence, shall amount to her fifteen. However, it has not provided up to what age of a
consent. Malik concludes from the tradition that a guardian Muslim female is guardianship in marriage (wali) required.
(wali) has no compulsive or imperative authority over a And there is no unanimity of rule among the major schools
woman with marriage experience (thayibbah), but a of Muslim law on this question. In the Islamic country of
guardian has compulsive authority over a virgin. Pakistan, under the Majority Act of Pakistan of 1975 minority
ceases on the completion of eighteen years."
Shafi'i. A marriage got contracted of a virgin or a girl
who has attained puberty, but still unmarried, by her father The Holy Quran, in Sura, IV, Verse 6, says "Make
or grandfather, her consent is not necessary, but if she is trial of orphans until they reached the age of marriage; if then
contracted into marriage by any other person other than her ye find sound judgment in them release their property to
father or grand father, her consent in clear term is them; which mentioned of the age of marriage or capacity to
necessary." marry on one hand; and, the age when one is deemed to be
of sound judgment or legal capacity for all civil acts without
The Hanafi doctrine is in accord with Article 15(b) of needs of a guardian.
the Muslim Code.
Suppletory Laws; Rulings
Who Can Be a Guardian (wali) in Marriage
Marital Consent or Advice. - Under Article 15,
The Muslim Code has in Article 79 fixed the persons paragraph (c) of the Muslim Code (P.D. 1083), it is required
who can act as guardian in marriage of a Muslim woman in that the guardian in marriage (wali) must give his consent to
the following order of procedure, namely: the father, paternal the marriage of the woman under his marital guardianship.
grandfather, brother and other paternal relatives, paternal The Muslim Code did not provide up to what age of the
grandfather's executor nominee, or the court, in that order. woman is guardianship in marriage required? Although the
All Muslim jurists agree that on the basis of the verses of the Code has in Article 16 provided the age when a Muslim male
Holy Quran, "And never will Allah grant to the unbelievers a or female may contract marriage which is for the male at age
way over the Believers" and another, "O ye who believe! fifteen and for the female at age of puberty or upwards which
Take not for protectors your fathers and your brothers if they is presumed at the age of fifteen also, however, the Muslim
love infidelity above faith,"" non-Muslim cannot be a Code has not provided regarding the age of majority.
guardian (wali) in Muslim marriage." In the same manner Applying therefore, Article 187 of the applicability clause of
also, on the bases of the tradition that a non-Muslim relation the said Code, which provides, that the Civil Code of the
cannot inherit from his Muslim relation, such incapacity, also Philippines, the Rules of Court and other existing laws, i.e.,
holds true in the matter of guardianship (wali) in Muslim Family Code, insofar as they are not inconsistent with the
marriages. Thus, an apostate cannot be a guardian (wali) in provisions of this Code, shall be applied suppletory, hence,
a Muslim marriage. However, where the woman is a non- Article 234 of the Family Code on the age of majority applies
Muslim, her non-Muslim father, paternal grandfather, etc., it and under said law it provides that unless otherwise
is submitted is her proper guardian in marriage following the provided, majority commences at the age of eighteen. And,
rule that if a Muslim contracts a marriage with a non- Muslim, under Article 14 of the same Family Code, in case either or
it may be contracted in the presence of two non-Muslim both of the contracting parties, not having been emancipated
witnesses belonging to her faith." (For more discussion on by a previous marriage, are between the ages of eighteen
wali, see notes to Article 78 hereof). and twenty-one, they are required to exhibit to the local civil
registrar the written consent to the marriage of their father,
Legal Effect of Marriage of Minor Contracted By a guardian and other persons mentioned therein, and under
Remote Guardian Article 15, if either or both of the contracting party be
between the age of twenty and twenty-five they shall be
The marriage of a minor contracted by a remote obliged to ask their parents or guardian for advice in writing
guardian when a nearer one was present and available and upon the intended marriage. Should the parents or guardian
 32
refuse to give any advice, this fact shall be stated in the The Maliki and the Shafi'i view are in conformity to
sworn statement; and, in addition under Article 16 a the Muslim
Certificate of Marriage Counselling, which is to be attached
to the application for marriage license is also required. Mahr, Dower, Dowry Distinguished. Under Article
However, the absence of such written consent will not 15(d) of the Muslim Code, Mahr is interpreted to mean
invalidate the marriage contract which remain unaffected customary dower. In the strict sense of the meaning of these
and valid notwithstanding the absence of the written consent terms, mahr is different from dower, the former being
and the Certificate of Marriage Counselling. anything of value and lawful (halal) under the Muslim law
which the man gives to the woman he shall be marrying
Under Article 33 of the Family Code, a Muslim pursuant to an agreement to marry, as a token of his love,
marriage is exempted from a marriage license. affection and esteem of the woman, it becomes the
exclusive property of the woman. In the Anglo-
Requisites; Mahr (Dowry). The fourth essential Muhammadan legal system it is also referred as dower." In
requisite of a Muslim marriage is dower (mahr). The Holy the strict sense dower which is called among the Tausug
Quran in Surah IV, Verse 4, enjoins the giving of dower. Muslims of Sulu as "ungsod" or "hatag," refers to that money
Thus, it says: "And give woman their free gift (ajr)."" or property, i.e., cow, rice, etc. and other material objects
which the man will give to the woman's family for the purpose
The word "mahr" as used in the Muslim Code is primarily of the expenses of the marriage celebration. On the
interpreted to mean customary dower. It is a token of the other hand, "dowry" is a gift given by the parents to their
man's love, affection and esteem of the integrity and honour daughter at the time of their marriage. While dower is
of the woman he is marrying. It is not a consideration enjoined in the Holy Quran in Surah IV, Verse 4, and is
proceeding from the husband for the contract of marriage, therefore an essential requisite of marriage, dowry is not,
but an obligation imposed by law on the husband as a mark and depend upon the will of the woman's parent. Sometimes
of respect for the wife as is evident from the fact that the non- dowry refers to that which is rendered by the bride or her
specification of dower at the time of the marriage does not family to the groom or his family. However, in this Code, the
affect the validity of the marriage. There is no difference term mahr dower, and dowry are used interchangeably to
among the Muslim jurists on the point that a marriage mean mahr.
contract without mentioning a dower is valid, even with
denial to pay dower is valid, but not in which no dower is to Objects that are Lawful or Unlawful for Dower.
be given at all. Abu Zahra said of dower as follows: "It is not Any lawful object in accordance with the Muslim law, that is
a condition which affects the validity of the contract nor is an of value or anything that is within the commerce of man, or
essential requisite. Therefore, if the mahr is not mentioned that may be legally sold and not forbidden (haram) under
in the contract, the contract is still valid. The Court shall, in Islamic law (Shari'a) may be used as dower.
those cases, fix the proper dower for the woman.
A tradition was reported that teaching of the Holy
Sunnis Doctrines Quran was considered proper for a dower"

Hanafi. - A marriage contract without the fulfillment However, things which are unlawful under the
of the stipulation that property (dower) shall be given, shall Muslim law, Le., pork, wine, or, those that cannot be the
not be valid. subject of lawful, commerce, i.e., things not yet in existence
such as next year's crop, can- not be considered as property
Maliki. Dower as an essential requirement of a valid for the purpose of giving it as dower. And, even personal
Muslim marriage, once there has been a valid retirement, services to be rendered by the husband, notwithstanding the
that is when the husband and the wife have gotten together tradition in which personal services was considered proper,
in privacy where if they so desire, carnal relation is possible cannot be considered proper for dower."
without any impediment, becomes incumbent upon the man
to pay the same, following the tradition in which the Holy Following are the doctrines of the four major schools
Prophet (P.B.U.H.) said: "The person who removes the veil of Muslim law on the legal effects upon the contract of
of a woman, and looks at her, the whole of the dower marriage where the mahr is unlawful.
becomes due on him, whether the act of penetration takes
place or not." This is also concurred by the Shafi'i. Sunnis Doctrines

Shafi. A free woman given in marriage without Among the conditions is the being halal of the mahr
dower may insist upon her husband assigning her a dower and its being valued in terms of a commodity whose
before cohabitation and she need not place herself at her transaction is considered legal by the Islamic Shari'a.
husband's disposition until it has been assigned and Therefore, if it is mentioned in terms of liquor, swine or
delivered. It is also necessary that the wife should declare maytah or anything else whose ownership is invalid its legal
herself to be satisfied with the dower assigned her by her effect according to the Sunnis are
husband." Moreover, the Shafi'i contends that for fulfillment
of the purposes of marriage contract, and without being Hanafi, Shafi'i and Hanbali. - The marriage contract
specifically settled, it cannot become incumbent upon the is valid and she shall be entitled to the mahr al-mithl (proper
man on the basis of the marriage, except where dower).
consummation has taken place."
 33
Maliki. The contract shall be invalid if it has not been female of the age of puberty or upwards and not
1 consummated, and if consummated, shall be valid and suffering from any impediment under the provisions of
mahr mithl or proper dower shall be payable. this Code may contract marriage. A female is presumed
to have attained puberty upon reaching the age of
If the mahr is unsurped property, such as when she fifteen.
is married for a farm as her mahr and later it is known to
belong to the groom's father or someone else, following are However, the Shari'a. District Court may, upon
their doctrines: petition of a proper wali, order the solemnization of the
marriage of a female who though less than fifteen but
Hanafi. - The contract is unconditionally valid: but not below twelve years of age, has attained puberty.
regarding the mahr he says: if the owner agrees she shall
receive the farm itself; if the owner refuses, she shall be Marriage through a wali by a minor below the
entitled to receive a similar farm or its price because the prescribed ages shall be regarded as betrothal and may
stipulated mahr in this case is capable of being validly owned be annulled upon the petition of either party within four
though ownership does not materialize, in contract with years after attaining the age of "puberty," provided no
liquor or swine which cannot be owned at all or are voluntary cohabitation has taken place and the wali who
unconditionally prohibited in Islam. contracted the marriage was other than the father or
paternal grandfather.
Maliki. If the farm is known to the two and both
happen. to be sane, the contract shall be invalid if not
consummated and if consummated shall be considered valid
on the basis of mahr al- mithl. Notes/Comments

Shafi'i and Hanbali. The contract is valid and entitles Sources of Article. Quran, IV:4 “Make trial of
her to mahr al-mithl. The latter view is in accord with the orphan's (discretion) until they reach the age of marriage."
Code.
Quran, III:228 – “There is no blame on you if ye
Legal Effects of Marriage Without Stipulation of make an offer of betrothal."
Dower. - There is no difference among the Muslim Law
jurists on the point that a marriage contract without Hadith. A tradition about Aisha who was contracted
mentioning dower, even with denial to pay dower, is valid. into marriage by her father, Abu Bakr, with the Prophet in her
The Court shall, in those cases, fix the proper dower (mahr tender age. Upon reaching the age of puberty, she did not
mithl). exercise the option of puberty.

Hadith. - Ibn Abbas reported that a virgin girl came

Sunnis Doctrines to the Prophet (P.B.U.H.) and said that her father had given
her in marriage, which was not to her liking. The Messenger
Hanafi. - A marriage contract without the fulfillment (P.B.U.H.) of Allah, then gave her option.
of the stipulation that property (dower), shall be given, shall
not be valid. 10 Maliki. - The marriage contract shall be Ijma. According to the Hanafi school of law, there is
irregular and can be rescinded before consummation takes a consensus of opinion that the marriage of minor boys or
place. If cohabitation takes place, the marriage contract shall girls got contracted during their minority by their guardians,
be come valid and the woman shall be entitled to proper other than their fathers and grandfathers, may on their
dower. attainment of majority, be repudiated by them.

Shafi'i. - A free woman given in marriage without Ijma. There is a consensus among the major school
dower may insist upon her husband assigning her a dower of Muslim law that menses and pregnancy are the proof of
before cohabitation, and, she need not place herself at her female adult- hood because a child comes into being as a
husband's disposition until it has been so assigned and result of the uniting of the sperm with the ovum; and menses,
delivered. However, they contend that for the fulfillment of because, like the production of sperm in male, is a mark of
the purposes of marriage contract, creation of valuable female puberty.
consideration is not necessary, and without specifically
settled, it cannot become incumbent upon on the basis of the All schools, except the Hanafi consider, the growth
marriage, except where consummation has taken place or of pubic hair as a sign of adulthood.
after a valid retirement, that is after being left in privacy, that
if they so desire carnal relation is possible without any Capacity to Contract Marriage. - According to the
impediment, in which case it become incumbent upon the general principles of Islamic law, a boy attains maturity at the
husband to pay dower to his wife. first appearance of ihtilam (ejaculation of semen) and a girl
attains puberty (baligha bululamut) at the appearance of
The Shafi'is doctrine is in accord with Articles 20 and menstrual blood or ihtilam. The declaration of a girl that she
35(a) of the Muslim Code. was adult, when there was nothing in her appearance to lead
to the contrary conclusion, would be accepted to established
Art. 16. Capacity to contract marriage. - (1) Any majority. If those things do not appear in a boy or a girl, he
Muslim male at least fifteen years of age and any Muslim or she shall be presumed to have attained majority (baligha
 34
bissin) at the completion of fifteen years of age. It is generally the ground that the consent of the other party is initiated by
supposed that ihtilam cannot occur below the age of twelve fraud, the fraud being that she was contracted into marriage
years in the case of the boy and nine years in the case of the by her guardian though she has not yet attained puberty, and
girl. Puberty is presumed on the completion of the fifteen which may be validated by the girl upon attaining puberty,
years, according to most of the schools, unless there is that is after the cause initiating her consent have ceased
evidence to the contrary. As a general rule, a Muslim upon without prejudice to the liability of the guardian under Article
reaching fifteen years of age is considered to be adult and 181 of the Code for illegal solemnization of the marriage. But
sui juris. the marriage of a girl below the age of twelve is certainly void
for being contrary to law The Code under paragraph 2 has
Sunnis Doctrines fixed the minimum age when a girl may be contracted into a
betrothal marriage at above twelve but below fifteen. Also,
Shafi'i. According to the Shafi'i and the Hanbali where a boy is contracted is below fifteen years of age, the
schools, the adulthood of both sexes gets established on marriage is likewise a betrothal marriage which he can
their completing fifteen years of age. petition the court to annul within five years upon attaining the
age of puberty pursuant to paragraph 3 of the present article.
Maliki. According to the Maliki's, it is seventeen
years for both sexes. Legal Effect of Marriage Wickedly Contracted by
Minors Wali Valid for the Minor. According to one authority
Hanafi - The Hanafi's, considers eighteen years for where the father or grandfather wickedly contracts a minor
a boy, and seventeen years for a girl as the age of in marriage, the contract can be set aside by the minor."
maturity.100 The Shafi'i viev is the one in accord with the
Code. Sunnis Doctrines

Betrothal Marriage Hanafi: According to the majority view of the Hanafi

jurists, a marriage got contracted during their minority by
Under paragraph 2 of Article 16, of the Muslim Code their guardians, other than their fathers or grandfathers, may
a betrothal marriage is one contracted of a girl over twelve be repudiated by them.
but below fifteen years old but who has already attained
puberty, by her guardian upon authority of the Shari'a District Shafi'i: According to the Shafi'is, the father and
Court. grandfather only have the right of guardianship in marriage
in such a case.
The second paragraph of Article 16 treats of the
marriage of a girl over twelve but below fifteen years of age Malikis: Only the father. The question of exercising
but has already attained puberty. The Shari'a District Court, the option of puberty in the marriage got contracted by any
may upon petition of the proper wali of the girl, order the guardian other than the father or does not arise. They
solemnization of her marriage. Such marriage is regarded as contend guardian are invalid.i grandfather does not arise.
a betrothal marriage. The order of the court authorizing the They contend guardian are invalid. The father's concerns for
solemnization of such marriage must first be secured by the the welfare of his child is undoubted which may not be of
girl proper guardian before contracting her into marriage, others.
otherwise should the guardian contract her into marriage
without such authorization from the proper Shari'a District The Hanafi's view is the one in accord with the
Court, it is submitted that the guardian will be liable for illegal Code.
solemnization of marriage under Article 181 of the Code.
The marriage contract, however, is annullable under Option of Puberty. (Khiyar al-bulugh) is the right of
paragraph 3, of Article 16 for noncompliance of the a minor boy or girl who was contracted into marriage by their
requirement under paragraph (2), of the same article but not guardian other than their father or grandfather during their
invalid since the condition regarding the authorization of the minority of repu- diating their marriage upon attaining
court is not an essential requirement for the validity of the puberty or the age of fifteen, provided that in the interim no
marriage, but is merely intended to protect or safeguard the cohabitation has taken place. It is one of the safeguards
girl's welfare by ascertaining that she has already attained which the Muslim law provides against an undesirable
puberty which makes her fit for cohabitation and procreation marriage. The basic idea underlying the doctrine of option of
which are among the important purposes of marriage. puberty is to protect a minor from an unscrupulous or
undesirable exercise of authority by his or her guardian for
It is incumbent upon the guardian who petitioned the marriage.
court for the marriage of the minor girl to prove that the girl
has attained puberty. Requisites for the Exercise of the Option of Puberty

A girl, though over twelve but below fifteen years old The following are the essential requisites for the
who has not attained puberty cannot under Article 16(2), be exercise of the option of puberty:
contracted by her guardian into marriage. QUERY: But,
supposing the girl's guardian contracts her into marriage, 1) That she was given in marriage while she was a
what is the legal effect of such marriage? AUTHOR'S minor;
OPINION: The marriage should be considered irregular in
the light of Article 32, paragraph (c) of the Muslim Code on
 35
2) The person who gave her in marriage was some of age be informed that of the marriage, and her right of
guardian other than her father or paternal option is reserved for her until she is duly informed but does
grandfather; not avail of the option, because ignorance of law is not a
valid excuse. The silence of a virgin is tantamount to her
3) She expressed her choice as soon as the sign of acquiescence, but not in the case of the man whose
puberty appear; and approbation will have to be either express or "tacit."

4) She has not acquiesced to the marriage on attaining Art. 17. Marriage Ceremony. - No particular form
puberty by voluntarily cohabiting with him. of marriage ceremony is required but the ijab and, the
qabul in marriage shall be declared publicly in the
Waiver of the Option of Puberty. The option is lost presence of the person solemnizing the marriage and
by the affirmative act of consummation of the marriage at two competent witnesses. This declaration shall be set
least if con- summation has taken place without duress and forth in an instrument in triplicate, signed or marked by
after the acquisition of puberty. However, the option is not the contracting parties and said witnesses, and attested
lost by consummation without her consent." by the person solemnizing the marriage. One copy shall
be given to the contracting parties and another sent to
Who Can Contract the Minor Girl in Marriage the Circuit Registrar by the solemnizing officer who
shall keep the third.
Sunnis Doctrines
Notes/Comments
Hanafi. A marriage got contracted during their
minority by their guardian other than their father or Sources. Hadith. "Perform marriage openly." Fiqh.
grandfather may on their attainment of majority be
repudiated by them. Marriage Ceremony (Rusumat)

Shafi'i. Only the father and grandfather have the The Holy Quran provides: "O Ye who believe! When
right of guardianship in marriage. you deal with each other, in transactions involving future
obligations, in a fixed period of time reduce them into writing.
Malikis. Only the father alone and does not extend it Let a scribe write down faithfully as between parties. x x x
to the grandfather; therefore the question of exercising the And get two witnesses, out of your men, and if there are not
option of puberty in marriage got contracted by any guardian men, then a man and two women, such as you choose, for
other than the father does not arise. They contend that witnesses, so that if one errs, the other can remind her." This
marriage contracted by other guardians are invalid. verse is the Quranic bases of the Muslim law concerning the
number of witnesses in marriage contract, and except for the
Cohabitation during the period of minority with or Maliki Madhab, the other madhahibs, the Hanafi and
without the girl's consent does not destroy her right because Hanbali, share the same view that the requirement as to the
a minor is not capable of giving her consent to any act as witnesses in marriage, is essential for its validity, while the
long as she is a minor, and secondly, because the right to Maliki's however, maintains that is publicity which is the
exercise the option arise only after she has become a major condition for the validity of marriage relying on the tradition
and so is not lost by anything done or happening before the of the Prophet "Perform the marriage openly (publicly) x x x."
period of time. A rational analysis of the views a forecited will show that the
tradition of the Prophet that marriage must be performed
Ignorance of Fact or Law; Effects on the Exercise of openly simply means that it must not be held in secrecy as
the Option of Puberty ordained in the Quran, and the presence of the required
numbers of witnesses during the marriage ceremony been
The minor, upon attaining the age of puberty, may held sufficient to fulfill this condition.
not have exercise her option of puberty due to ignorance of
the fact of marriage, or ignorance of law. As regards a minor As a general principle, a Muslim marriage requires
ignorance of the fact of her marriage the law according to the no particu lar or formal rites to constitute it valid in law; and
Hanafi is that the miner returns the option of repudiating the a marriage is legal and binding if celebrated per verba de
same until she becomes aware of the fact. The minor must praesenti.
however exercise the right within a reason- able time from
the time she comes to know of her marriage. "Marriage is contracted" says the Hedaya, "by
means of a declaration and consent, both expressed in the
Exercise of the option of puberty. The marriage, preterite. According to the Hawi-ul-Kudsi, it is not necessary
though betrothal, would not be effected as a valid marriage that the proposal should come from one side particularly. So
by the mere statement of the spouse who was contracted long as there is intelligent absent to the proposal for a
into marriage while a minor by her guardian. He or she can permanent contract, it is valid. In making the proposal as well
exercise the option of puberty (Khiyar al-bulugh) even if as in expressing assent, the past tense is used, says the
there is a separation in fact. According to Hedaya of the Kaddul Muhtar, in order that the contract may not be referred
Hanafi Madhab a decree of the qadi is a necessary condition to a future time. But it adds significantly, marriage does not
in all cases of option exercised after maturity. The Hanafis depend on the use of any express terms so long as the
makes it a condition for the exercise that one who was purpose is distinctly understood; and may, therefore, be
contracted into marriage while a minor must upon becoming contracted in the present tense.
 36
who are authorized to act as wali in marriage for the woman.
Marriage are celebrated generally speaking, in the In that same order of preference, they are also the proper
house of the bride's father or guardian in the presence of the wali referred to in the present article who are authorized
agents (wakils), if any, of the parties, and the guests, some therefore, to solemnize marriage, or who can deputize
of whom become witnesses to the deed of marriage (kabin- another person who is competent under Muslim law, i.e.,
nameh) or marriage contract. In this document are embodied imam or Muslim religious leader, sultan, qadi, or an adil (hon-
the personal circumstances of the parties which will show orable) person learned in Islamic law, to solemnize the
their legal capacity for marriage, and, that they are not marriage. Should the proper wali refuses without justifiable
inhibited by law in marriage to each other, the amount of reason to solemnize or cause the solemnization of the
dower (mahr) and manner of payment and the marriage marriage by a person competent under Muslim law to
settlement. It is attested by the guardian in marriage (wali), solemnize marriage, the judge of the Shari'a District Court or
by the wakils (agents) if any, of the bride and the bridegroom, Shari'a Circuit Court, upon the application of any of the
and by the witnesses, and signed by them and the parties to the marriage may solemnize the marriage or
solemnizing imam or judge, or person authorized to designate a competent person to do so.
solemnized the marriage.
Sunnis Doctrines
However, under Muslim law, the contract of
marriage called "kabin-nameh or mahar nameh" in which the Hanafi. - The asbah-binafsihi (an agnate-residuary),
essential requisites, i.e., name of the contracting parties, in his own right has the authority to solemnize or delegate
consent of the wali or guardian in marriage, witnesses, and the authority to solemnize the marriage of a Muslim male or
amount of mahr, the absence of a written contract, will not female, and in their absence, the dhaw'l-arham (distant
affect the validity of the marriage. kindred), the uterine relation (relation from the mother's
side), shall have the right of getting a minor boy or girl
Suppletory Law; Rulings contracted into marriage; should there be none, the qadi on
authority of the ruler, otherwise by the ruler himself. The
No Particular Form. There is no prescribed form for the executor who is not the heir cannot be executor for the
solemnization of the marriage. However, although no purpose of marriage contract, though the deceased father
particular form or rite is required, there must be a ceremony may have appointed him guardian through his will.
before a duly authorized officer. The parties need not recite
the precise words of law, it is sufficient if they use the words Maliki. Nobody except the father has the right of
evidencing their mutual consent to the marriage, that is, that getting the minor contracted into marriage. When there is no
they take each other as husband and wife. father the right shall get transferred to the executor or the
qadi.
The certificate is just an evidence of the marriage
and for that purpose is to be the best evidence to prove the Shafi'i. - Except the father and the grandfather,
marriage, nobody else has the right of guardianship.

Art. 18. Authority to Solemnize Marriage. - Suppletory Law; Ruling

Marriage may be solemnized: (a) By the proper Pursuant to Article 7 of the Family Code, Marriage
wali of the woman to be wedded. may be solemnized by:

(b) Upon authority of the proper wali, by any (1) Any incumbent member of the judiciary within the
person Court's jurisdiction of which the solemnizing officer is the
judge.
who is competent under Muslim law to (2) Any priest, rabbi, imam, or minister of any church
solemnize marriage; or or religious sect, duly authorized by his church or religious
sect and registered with the Civil Registrar, acting within the
(c) By the Judge of the Shari'a District Court or limits of the written authority granted him by his church or
Shari'a Circuit Court or any person designated by the religious sect and provided that at least one of the
judge, should the proper wali refuse without justifiable contracting parties belongs to the solemnizing officer's
reason to authorize the solemnization. church or religious sect.

Notes/Comments Area of Coverage of the Authority of

Solemnizing Official. A priest who is commissioned and
Source of Article . Hadith. - "Persons being allowed by his local order to marry the faithful, is authorized
destitute of guardian have a guardian in the Sultan." to do so within the area of the diocese or place allowed by
the Bishop. An Appellate Court Justice or a Justice of this
Hadith. - "Abu Bakr got his minor daughter Aisha Court has jurisdiction over the entire Philippines to
contracted in marriage to the Prophet." The Prophet solemnize marriages, regardless of the venue, as long as
solemnized the marriage of a woman and a man. (Agreed). the requisites of the law are complied with. However, judges
who are appointed to specific jurisdictions, may officiate in
Persons Who Can Solemnize Marriage. - Article 79 weddings only within the said areas and not beyond.
of the Code gives the persons in the order of their priority
 37
Requirements for Religious Personality, i.e., is a resultant irregularity in the formal requisite laid down in
Imam to Be Able to Solemnize Marriage. There are three Article 3, which while it may not affect the validity of the
requisites for a religious personality, such as an "imam" marriage, may subject the officiating (judge) to
(Islamic religious head) in order be authorized to solemnize administrative liability.
marriages, namely:
Art. 20. Specification of Dower. The amount of or
1. That he is duly authorized in writing by his church or value of dower may be fixed by the contracting parties
religious sect, (mahr-musamma) before, during, or after the celebration
of the marriage. If the amount or the value thereof has
2. That he is registered with the Office of the Civil Registrar not been so fixed, a proper dower (mahr-mithl) shall,
General as a Solemnizing Officer; and upon petition of the wife, be determined by the court
according to the social standing of the parties.
3. That he must act within the limits of the written authority
granted him by the church or religious sect. Notes/Comments

Art. 19. Place of Solemnization of Marriage. - Sources of Article. Quran, S. IV; V:4. - "And give
Marriage shall be solemnized publicly in any mosque, women their dowries as free gift." (ajr).
office of the Shari'a judge, office of the District or Circuit
Registrar, residence of the bride or her wali, or at any S. IV; V:20. "If you decide to take one wife in place
other suitable place agreed upon by the parties. of another even if ye had given the latter a whole treasure
for dower, take not the least bit of it back."
Notes/Comments
S.IV; V:24. "Give them their dower as prescribed;
Sources of Article. Hadith. - "Perform marriage but if, after a dower is prescribed, ye agree mutually (to vary
openly, and in Mosque;" Section 5, Act No. 3613; Art. 57, it), there is no blame on you."
Civil Code; Code commission.
S.V.; V:6.-"(Lawful unto you in marriage) are (not
Place of Solemnization of Marriage. - According only chaste women who are believers, but chaste women
to a tradition, the Holy Prophet said: "Perform the marriage among the people of the Book, revealed before your time,
openly, and in the mosque." The solemnization of the when you give them their due dowers and desires chastity,
marriage therefore, should be performed publicly, and not in not lewdness."
secrecy, and preferably in a mosque, where apart from the
blessedness of the place, no special invitation is needed for Hadiths. The Prophet's daughter Fatima was given
the occasion, and the condition concerning publicity and a dower; and the Prophet himself gave dower to the woman
witnesses is easily fulfilled. In like manner, therefore, where he married.
the marriage is to be solemnized in the office of the Shari'a
District or Circuit judge, preferably it must be in open court, Stipulation of Dower. - The Holy Quran requires
instead of in their office or in chamber and similarly, even in regarding the giving of dower (mahr) in marriage as follows:
those other places mentioned in the Code, it must be open "And give woman their dowries as a free gift." The Wealthy
to public view in order to fulfill the condition of the law according to his means and the poor according to his
concerning publicity and witnesses. means.""

Suppletory Law; Ruling On the other hand, the Sunna has introduced the
practice of stipulating in the contract of marriage a fixed
Place of Solemnization; When Venue or, dower, though this stipulation is not rigorously necessary.
Jurisdictional, - Art. 8 of the Family Code provides: "The And anything useful, of value and lawful (halal) in Islam,
marriage shall be solemnized publicly in the chambers of the which can be the subject of a valid contract, can be given as
judge or in open court, in church, chapel or temple (for a dower.
Muslim, mosque), or in the office of the consul-general,
consul or vice-consul as the case may be, and not The position of Islam on the limits of dower is also
elsewhere, except in cases of marriages in this Code, where significant. The general principle is that dower should be
both parties request the solemnizing officer in writing in estimated according to circumstances with emphasis on
which case the marriage may be solemnized at a house or moderation. Hence, the great majority of jurists set no
places designated by them in a sworn statement to that minimum to dower, and, all schools of law agreed
effect," that there is no maximum limit to dower. However,
moderation is recommended.
Article 8. which is a directory provision, refers only
to the venue of the marriage ceremony and does not alter or Classification of Dower
qualify the authority of the solemnizing officer as provided in
article (-) of the Family Code. Non-compliance therewith will 1. Fixed Dower (Mahr Musamma)
not invalidate the marriage. However, judges who are 2. Proper Dower (Mahr Mithl)
appointed to specific jurisdictions, may officiate weddings
only within the said areas and not beyond. A judge who
solemnizes a marriage outside his court's jurisdiction, there
 38
Fixed Dower (Mahr Musamma). The dower may Sunnis Doctrines
be ag reed and fixed by the contracting parties in marriage,
in which case it is referred to as specified dower or mahr Hanafi. The local practice shall be observed; i.e., the
musamma. portions to be immediately paid and deferred will follow local
customs. If the mahr is deferred without mentioning the
Specified dower is an incident of a valid marriage. period of deferment (such as when it is said, "Half of it is
This kind of dower may be either a prompt dower or that immediately payable and the rest deferred"), the full mahr
which is payable promptly on demand, or at the time of the shall immediately be payable;
marriage contract or, deferred dower or that which is payable
on dissolution of the marriage by death or divorce, or, at such Maliki. Such marriage is voidable before
specified time during the marriage. consummation, but is validated after consummation, and
mahr al mithl becomes due; Shafi'i. The mahr stipulated shall
Kinds of Fixed Dower (Mahr Musamma). - Mahr become invalid and the mahr mithi shall be payable;
musamma or specified dower, may be either:
Hanbali. - If the mahr has been mentioned without
(1) A prompt dower. That which is payable promptly specifying whether its payment is immediate or deferred, the
on demand or at the time of the marriage. This is also called entire mahr shall be immediately payable. The mahr can be
as mahr-i-muajjal, meaning "prompt or exigible." deferred until death or divorce.

Where, no time is specified for the payment of the The Hanafi doctrine is more in accord with Article 5
dower, under the Hanafi doctrines, each case will be decided and 6 of the Muslim Code.
on its own individual merits. "Where it has been explained
how much of the dower is prompt," says the Alamgiri, citing Purpose of Deferred Dower. Deferred dower is
the Fatawa Kazi Khan (Jam'a-ash-Shittat), "that much intended to put a check to the unlimited right of the husband
should be promptly paid. When this has not been done, to divorce his wife, because if the amount of deferred dower
regard should be had to the (qualifications of the) woman is big, the husband will find it difficult to divorce his wife,
and the dower mentioned in the contract, with the object of unless he can pay the whole of the deferred dower because
determining how much dower should be considered prompt the dissolution of the marriage by divorce will make the
in the case of such woman; and the amount so determined deferred dower due and demandable by the wife.
is to be prompt accordingly, without regard to the proportion
of a fourth or a fifth, but what is customary is also to be Distinction between Prompt and Deferred Dower. –
considered. But when it is stipulated that the whole is to be The main difference between prompt and deferred is this;
prompt, the entire dower should be promptly paid without the portion of the dower specified in the contract as prompt
any regard to custom."" is payable and realizable at once, and the wife can refuse all
conjugal right’s on the part of the husband until it is paid. As
(2) Deferred Dower. The deferred portion which regards postponed dower it becomes payable only on the
remains unpaid until the dissolution of the marriage by death expiration of the specified period or event. There is no rule
or divorce of either of the spouses or on such other time that by which it necessarily follows that postponed or deferred
its payment may have been postponed. There is no rule by dower becomes realizable only on the death of the husband,
which it necessarily follows that postponed or deferred or if he happen to divorce the wife, on such divorce.
dower becomes realizable only on the death of the husband However, if no period is fixed, then it becomes payable, on
or if he happen to divorce the wife, on such divorce; Deferred the dissolution of the marriage contract either by divorce or
dower is also called as mahr-i-muwajjal. death of the husband.

Sunnis Doctrines Where the marriage contracts, do not specify

whether the dower is prompt or deferred, in these
All the major schools of Muslim law concur circumstances, the presumption, in the absence of any
regarding the validity of deferred payment of mahr, fully or usage of the particular community, is that the dower is
partly, provided that the period be known, either exactly prompt.
(such as when it is said, "I marry you for a hundred, which
fifty shall be paid immediately and the rest after one year") Proper Dower (Mahr Mithl). If the dower is not
or in an indeterminate manner (such as when it is said, "The mentioned in the contract of marriage or that the dower
mahr is deferred till death or divorce"). The Shafi'i school stipulated consist of articles forbidden (haram) under the
disapproves of the latter form of deferment. Islamic law, or an excessive dower is promised but proved
to be only for show, it being a legal requisite of marriage, a
The majority view is in accord with Article 21 of the proper dower shall become incumbent upon the man, and
Muslim Code. the Shari’a Court, shal upon petition of the wife, fix the
amount or value thereof, having regards to the means,
If the period so mentioned is totally vague, such as personal attributes or qualification of the woman, the means
when it is stated that the payment of mahr shall be made on of the husband, and the social standing of the parties.
the return of ascertain traveler the time clause shall be void.
Also in an irregular marriage contract, if penetration
Where No Period is Mentioned, following are their (sexual intercourse) has taken place, proper dower becomes
Doctrines:
 39
due because of the cohabitation and not on account of the
marriage contract itself.