COMMENTARIES ‘ON THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES With Jurisprudence and Special Procedure by BENSAUDI I. ARABANI, SR. RTC-Judge, former SDC Judge, Member Philippine Bar Assn., Philippine Judges Ass. Past President, Philippine Shari'a Court Trial Judges League, and Philippine Shari’a 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 Administration of Muslim Personal Laws of the Philippines, former Lecturer on Philippine Shari'a Court Procedure, Philippine Judicial Academy, (S.C.), Lecturer on Philippine Muslim Law, Philippine Shari'a Institute (OMA), Reviewer, Philippine Shari'a Special Bar Review (OMA), former examiner on Philippine Shari'a Court Procedure, Shari'a Special Bar Examination (S.C.), former Professorial Lecturer on Philippine Muslim Law, NDJC Western Mindanao State University College of Law, and author, Philippine Shari’a Court Procedure. Published & Distributed by REX Book Store 856 Nicanor Reyes, Sr. St. 3-64 Tel. Nos. 736-05-67 + 735-1: 1977 C.M. Recto Avenue Tel. Nos. 735-55-27 + 735-55-34 Manila, Philippines ing.Philippine Copyright, 2011 BENSAUDI I. ARABANI, SR. ISBN 978-971-23-5907-1 No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the author except brief passages in books, articles, reviews, legal papers, and judicial or other official proceedings with proper citation. Any copy of this book without the correspond- ing number and the signature of the author on this page either proceeds from an illegitimate source or is in possession of one who has no authority to dispose of the same. ALL RIGHTS RESERVED BY THE AUTHOR Ne 0745 Printed by REX PRINTING COMPANY, INC. Typography & creative lithography £84 P. Florentino St, Quezon Ciy Tol. Nos, 71241-08+ 7124101This work is lovingly dedicated to: my parents, Former Judge Habib Abdul- hamid N. Arabani, and Hadja Indang A. Arabani; to my wife, the former Iluminada J. Alba; and my children: SCC Judge Bensaudi, Jr., Dra. Ludivina, Benilda, and Dra. Lovely-Nezza. iiiPREFACE The long time aspiration of the Filipino Muslims to have their personal laws applied to them gained recognition with the signing into law on February 4, 1977 by then President of the Philippines, Ferdinand E. Marcos of Presidential Decree No. 1083, otherwise called the Code of Muslim Personal Laws of the Philippines and the subsequent promulgation by the Supreme Court of the compliment- ing Special Rules of Procedure for the Shari’a Courts (Ijra-at Al Mahakim Al Shari’a). Commenting on the recognition of the Filipino Muslim Personal Laws, Prof. Esteban B. Bautista; a member of the Code Commission to review the Code of Filipino Muslim Laws, said: “As a result of its recognition as part of the law of the land, the Filipino Muslims entire legal system, not just what are known as the personal laws, must be observed, whenever and wherever it may apply, throughout the country and may now be enforced, like other Philippine laws, with full sanction of the state.”* In order to achieve an effective implementation of the said law, the government through its proper agencies, the Office of Muslim Affairs, in coordination with the Supreme Court of the Philippines and the Department of Justice, conducts Shari’a Institute Trainings for qualified Muslims and administers special Shari’a bar examina- tions to qualify those who will pass to practice the Muslim Law or As-Shari’a before the Shari’a Courts of the Philippines, and for ap- pointment as judges to the Shari’a Courts created pursuant to the Muslim Code. This humble work, therefore, is aimed to spread the knowledge of the Shari’a not only among those who practice it but as well as with those who may wish to learn As-Shari’a and to serve as a ready reference and material to the bench and the bar and to the students “Esteban B. Bautista, An Introduction to the Code of Muslim Personal Laws, p.3.of law and candidates to the Shari'a special bar examination, since there are not yet so many available local materials dealing on the subject. The author, aware of his limitations in writing this book, craves the indulgence of critics for mistakes, whether of omission or com- mission, which may be discovered in this work. This humble work is indeed even too short to span so wide a field such as the Muslim Law or As-Shari’a. But if this book can contribute in any way toward laying the foundation for the wider dissemination of the law and in attaining its other objectives, then the author’s efforts will not have been in vain. Finally, the author wish to acknowledge with profound grati- tude the authorities cited in this work, and the great help extended by the Pakistan Embassy, Ustadj Ibrahim Ghazali, Ustadj Habier Mohammad, Hadji Nizar Hassan, RTC Judge Jose T. Pifion, CIAO stenographic reporters Roqueta A. Sansawi and Trinidad D. Tomy, and above all, the author praises the Almighty God for giving him the strength to write this book. BENSAUDI I. ARABANT, SR.PREFACE TO SECOND EDITION Bismillah. Because of the insistent request of many for a second edition of this book, the author worked for this second revised edition to come out that would incorporate therein his latest researches on Muslim law and jurisprudence sinée the publication of the first edition. It is hoped that this new edition will answer the need of the readers for an exhaustive reference material on Muslim law and jurisprudence. The author acknowledges with profound gratitude the authors of the different references cited in this work. In Islam, it is consid- ered a service to Allah to share one’s useful knowledge with the people for the greater benefit cf many. It is hoped and prayed that, this humble servant of Allah have attained that objective. Last but not the least, the author acknowledges the inspiration and support of his family in the accomplishment of this work. Subhanallah (praise be to Allah), for the accomplishment of this humble work by — The Author viiviiiFOREWORD To our Muslim brothers, the enactment and promulgation of the Code of Muslim Personal Law (Presidential Decree No. 1083) on February 4, 1977 meant the culmination of centuries of struggle to have their system of laws enforced within their community. Since colonial times, our Muslim brothers have felt that their most dearly held beliefs, customs, traditions and institutions were being gradu- ally replaced by laws totally alien to their culture. On several occa- sions, marriages solerhnized under their customs were declared void under our country’s civil laws. The passage of the Code of Muslim Personal Law strengthened the ethno-linguistic communities within the context of their respective ways of life and fulfilled the constitu- tional mandate under Section 11, Article XV of the 1973 Constitution which enjoined the state to consider the customs, traditions, beliefs and interests of national cultural communities in the formulation and implementation of its policies. Hailing from Jolo, Sulu, the cradle of Islamic culture in our country, Atty. Bensaudi I. Arabani, a faithful follower of the prophet Mohammad ventures into an exploration of the subject of Muslim Personal Laws in this book entitled, “Commentaries on the Code of Muslim Personal Laws of the Philippines with Jurisprudence and Special Procedure.” Realizing that a full appreciation of Muslim Personal Laws cannot be achieved without first introducing their origins, the author presents at the outset a perspective analysis of Islamic jurispru- dence to serve as a structural framework for the reader. The author achieves this: by citing noted Islamic authorities and presenting the Quran not only as a work of divine revelation but also as a master guide which our Muslim brothers derive rules of conduct covering and regulating all aspects of their secular and religious life. Atty. Arabani then proceeds to discuss the Muslim Personal Law sequentially by provision. This central part of his book consists of two parts: Persons and Succession, and the Special Procedure gov- erning the Shari’a Courts. Brief, simple and summary in nature, the ixspecial procedure governing the Shari’a Courts is a unique blending of civil and Islamic procedure. This book answers and serves the urgent need for a review book for prospective examinees for the special examination of the Shari’a. For the Shari’a Court judge, this scholarly work is a handy reference book in the determination and adjudication of cases. It is likewise a source of invaluable legal knowledge to practitioners and students of law. Indeed, this book is a welcome addition to the few existing books and treatises dealing on this recent development in Philippine Legal System. MARCELO B. FERNAN Chief JusticeCONTENTS Dedication Preface aes Preface to Second Edition. Foreword... PARTI INTRODUCTION TO JURISPRUDENCE (FIQH) OF MUSLIM LAW Introduction... Chapter I Historical Background Pre-Islamic Arabs ... Chapter II The Beginning and Development of Muslim Law ‘The Beginning of Muslim Law... Periods of Development of Muslim Law. First Period, The Legislative Period Second Period, The Period of Rightly Guided Caliph: ‘Third Period, The Period of the Umaiyad Caliphat. Fourth Period, The Period of the Abbasides Caliphate. Fifth Period, The Period of the Mustawjihun Jurists Sixth Period, The Period of Muqallidan Jurists .... : Seventh Period, The Advent of Commentators and Annotators...... Chapter II Jurisprudence (Fiqh) Preliminary Shari’ Shari’a — a Divine System of Law. Quranic Basis of Shari’a Meaning of Shari’ Fisq; in Contravention of Shari'a Essential Elements or Parts of Shari 55 56 56 57 57 58 59Objective of Shari’a Proofs of Shari’a (Al-Adillah Al-Shari’a) or Proofs or Sources of Figh... Classification of Proofs of Shar? Shari’a Distinguished from Canon (Arabic, Qanun) Law. The Science of Figh (Jurisprudence! Development of Fiqh .... Figh . Scope or Cov Figh Distinguished from Shari'a . Figh Distinguished from European Jurisprudence Figh Distinguished from Im... The Two Divisions of Science of Figh Usul al-figh Define Furu al-Figh Defined Distinctions Between Usul al-Figh Distinguished from Maxims of Figh Principal Themes of Usul al-Figh Objective or Aims of Usul al-Figh Primary Sources of Figh.... Quranic Verse on the Revelation of the Qura Meaning of Quran..ecene Nature of the Quranic Verses Revelations of the Quranic Verses . Reasons for Revelation of the Quranic Verses How Ashab Al-Nuzul is known. Kinds of Reasons Division of the Quran. Divisions of the Legal Prescriptions in the Quran Classification of the Verses in the Quran... Classification of the Nature of the Quranic Verses . Spirit of the Quran....... Quran, its Subject, Central Theme and Ai Quran, a Complete Code... Ta’weel (Interpretation) of the Qurai Bases of Ta’weel.. Rules on Interpretation of the Quran Rule of Interpretation of the Definitive and Speculative Text of the Quran. Rules of Interpretation of the Literal and Metaphorical Words of the Quran . Rules of Interpretation of the Expl Words of the Quran . Effect of Ibarah al-nass. Divergent Meaning. Classifications of Textual Implications according to Shafi’ Dalalah al-Mafhum (Implied meaning) ... Conditions Set by the Shaf'i for the Application of Mafhum al-Mukhalafah. it and the Implicit xii 90 91 92 93 94 95 95Tapsir (Commentary on the Quran)... Bases of Tapsit...... Tradition on Taps Meaning of Tapsir (Exegesis) Tapsir Distinguished from Ta’weel . Beginning of Tapsir... Different Methods of Tapsir Other Classification of Tapsir Isra ‘iliyat ee. Limitations to the Exercise of Tapsir of the Quran by Opinion Importance of Tapsir. Qualifications of Commentator (Mufassir) to the Holy Quran ... Necessary Conditions for Making Correct Tapsir ve... Translation of the Qur'an... a Early Translation of the Quran... foes Qualifications Required of Translators of the Quran (Tarjama al Quran). Meaning of Hadith. Purpose of Hadith.. Stages of Collection of the Hadith. Selection of Hadith..... ‘The Two Parts of the Methodology or Science of Transmission Rules Observed in the Selection of Traditions Compilation of the Hadith ... Distinctions between Hadith and the Sunna.... Classification of Hadith Legal Effect of a Mutawatir and Ahad Tradition Other Classification of Hadith... Degree of Application and Attitude of Sunni Jurists ‘Towards Tradition... Rules on Abrogation; Al-Naskh Defined .. Rules of Abrogation of Quranic Verses Views on Repeal of one Quranic Text by Anothe! How Abrogation came about...... Importance of the knowledge of the Rule of Al-nasikh wa Almansukh osseous at How to know which Quranic Verse is Abrogating and which one is abrogated «0.1. Rules in Case of Conflicts in the Sentences of the Quran . Rule in Case of Contradiction between those Kinds of Sentences in the Quran... Rule on Repeal of Tradition by another Traditio Rule on Repeal of Tradition by Quranic Text .. : Rule about the Question whether the Quranic Text may be Repealed by the Prophet’s Tradition Abrogation by Ijma or Qiyas...ecc- Rules on How to Reconcile Conflicting Texts. ‘Types of Abrogation 96 96 96 96 97 98 98 pee 101 101 102 102 103 106 106 108 109 109 lit 116 117 118 119 122 123 125 126 129 130 131 131 132 132 132 133 134 134 135 135 137 137 138Cases when the Rule of Abrogation is not Applicable. Conditions before Abrogation may take place.. Determination of Legal Rule from Quran and Hadith. Secondary Sources of Muslim Law. Jitihad Quranic Verse on Ijtihac Origin of Ijtihad and Authority of Iitihad . Meaning of Ijtihad . When Ijtihad can be Resulted to; Example When Ijtihad cannot be resulted t¢ Modes of Ijtihad . Imam Al-Ghazali Theory of Finding the General Principles of the Quran and the Sunn: Who can Exercise Ijtihad..... Legal Effect of Ijtihad. The Door of Ijtihad Conditions for the Exercise of Ijtihad .. Rule in Cases Where the Shari’a is Silent Ijtihad Distinguished from Ta’wil Ijtihad Distinguished from Taqlid. How [jtihad Attains the Status of Law . Taqlic Division of Taqli Taglid distinguished from Ittibaa Who can Avail of the Method of Taqlid .. Ijma Quranic verses and Traditions Basis of Ijm: Meaning of Ijm: Origin of Ijmi Authority of Iima... Its Authority by Hadiths. Ijma Based on Qiyas. Validity and Binding Force of Ijma.... Classification of Ijma... Ijma Classified on the Basis of its Constitution.. Effect of Explicit and Tacit Ijma .. ‘Who may participate in Constitution of Iima and who are disqualified. Qualifications of Mujtahid . Conditions Relating to the Constitution of Iima When is Ijma Completed. Tima, Once Completed, May not be reopene Modes of Constitution of Ijma... Legal effect of opinion (fatwa) of a Mufti, Legist or Jurist Condition when Fatwa of Mujtahid or Decree of Qadi Will have the Force of Ijma. Proof of Ijma.... Conditions for Tjma to attain absolute authority xiv 140 141 143 144 144 144 145 146 147 148 148 148 150 150 151 152 153 154 154 155 156 156 156 156 157 157 158 159 160 161 162 162 164 165 166 166 168 169 170 170 171 172 172 173 173Repeal of Ijma by another Jima Meaning of Qiyas. Classification of Qiyas Element of Qiyas .. Illustrative Examples of the application of the principles of Qiyas based on the Quran. Conditions of Valid Analogical Deduction Qiyas Distinguished from Taqlid, Ta’wil and Tafsir Qiyas distinguished from Ijtihad Ijma.. Subsidiary Sources of Islamic Law Istihsan............... Basis of Istihsan ... Meaning of Istihsan. Other definitions... Reason for the use of Istihsan .. Meaning of Equity....... Istihsan distinguished from equity in common law. Classification of Istihsan Examples of Istihsan.. Istihsan distinguished from Ra’y Ijtihad and Qiyas Istislah or Maslahah Origin of Istislah. Basis of Istislah Meaning of Istislal Components of Masalah.. Reason for the Use of Istislah or Maslaha al-Mursalah Classification of Maslahah al-Mursalah....... Istihsan and Istislah, distinguished. Classification of Interests... When Istislah may be resulted to Conditions for the Adoption of Masalih al-Mursala Conditions (Sharat) of Maslahah Mursalah Istidlal.... Meaning of Istidlal Kinds of Istidlal Other classification of Istidlal... Istishab or concordance or legal presumption of continuity . Meaning of Istishab or Istishabu’l-hal Example of Istishab. Limitation on the Rule of Istishab.. Presumption of Positive and Negative Condition . Condition for the use of Istishab... Classification of Istishab..... Views of the Major Schools of Laws on the Use of Istishab . The Extraneous Sources of Muslim Law Legal fiction... xv 174 174 174 175 175 176 177 17 179 180 180 181 181 181 182 182 183 183 184 184 185 185 185 186 186 187 187 188 189 190 190 190 191 192 192 193 194 195 195, 196 197 197 197 198 199 200 200Quranic basis ... Its meaning .. Fiction distinguished from presumption Some limitations to fiction... Classification and Examples of legal fiction... Legal maxim. Origin of al-ashbah wa-al Nazair. Its meaning .. Distinctions between Usul from Qawa’id al fiqhiyyah . Authoritativeness of Maxims. Examples of Maxims .. Custom (Ada) or Usages (Urf) Meaning of custom.. Quranic basis of customs or usages Classification or types of customs Essential elements of Custom Conditions to establish a custom as a binding rul Customs in accord to sources of law Legislation Its meaning Forms of legislation during the time of Prophet Muhammad Authority to enact laws... Legislation distinguished from jurisprudence. Distinction between the law and fatwa .. Chapter IV Acts and Their Shari’a Value, Rights and Obligations Acts (Fiil) ... General and specific classifications . : Originating acts classified according to revocability........cs:ssossee Acts classified according to its secular or temporal purpose or nature... eee Essential elements (arkan) of an act of ‘the nature of secular transaction (muamala'’t).... Meaning of legal capacity (Dhimmah) Circumstances (Awarid) affecting a person legal capacity. Acts classified according to its religious nature or its spiritual effects.... Classification of acts according to shari’a value.. Elements of Hukm Shara’ Right... Meaning of right Classification of rights.. Obligations .. f Its meaning .. Classification of obligation . Extinguishment of Obligation. 212 212 213 213 214 215 216 216 247 219 220 220 220 222 222, 222 223Chapter V ‘The Dar-Ul-Islam, Dar-Ul-Harb, Dar-Ul-Aman and Conflict of Laws Basi eosentntnnenentnsene seo sess Dar-ul-Islam, Dar-Ul-Harb, and Dar-Ul-Aman distinguished .. Laws applicable in litigation between Ahl al-Kitab out with Muslim Conflict of Laws Rules Interpersonal Conflict of Laws PART Ii PERSONS Introduction Preliminary statement ... Meaning of la’ Sources of law General classification of law ‘The Three Major World Legal System. Distinction and Similarities of the Three Codified Law Distinguished from Case Law... Difference between Islamic Law and Roman Law, THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES Presidential Decree No. 1083 BOOK ONE General Provisions Title I. Title and Purposes of the Code Article 1. Title ... Notes/Comments Article 2. Purpose of the Code... Notes/Comments .... Title II. Construction of the Code and Definitions of Terms Article 3. Conflict of Provisions . Notes/Comments .......-..0+ Article 4. Construction and Interpretation. Notes/Comments xvii 224 224 225 226 227 235 235 235 236 237 239 240 242 244 244 251 251 256 256 260 260Article 5. Proof of Muslim Law and Ada. Notes/Comments Article 6. Conflict in Islamic Schools of Law. Notes/Comments Article 7. Definitions of terms .. Notes/Comments ... BOOK TWO Persons and Family Relations Title I. Civil Personality (SHAKSIYA MADANTYA) Article 8. Legal Capacity. Notes/Comments Article 9. Restrictions on Capacity Notes/Comments Article 10. Personality how acquired .. Notes/Comments ... Article 11, Extinction of Personality Notes/Comments .. Article 12. Simultanéous death Notes/Comments ... Title I. Marriage and Divorce Chapter I Applicability Clause Article 13. Application Notes/Comments Chapter I Marriage (Nikah) Section 1. Requisites of Marriage Article 14. Nature. Notes/Comments Article 15. Essential Requisites of Marriage Notes/Comments ... Article 16. Capacity to Contract Marriage Notes/Comments .... Article 17. Marriage Ceremony Notes/Comments Article 18. Authority to Solemnize Notes/Comments .. Article 19. Place of Solemnization of Marriage. Notes/Comments Article 20. Specification of Dower xviii 264 264 265 266 267 267 277 277 279 279 295 296 297 298 303 304 306 306 315 315 318 319 339 339 345 345 347 347 349 349 350Notes/Comments ... Article 21. Payment of Dower... Notes/Comments ....... Article 22. Breach of Contract . Notes/Comments ..... Section 2. Prohibited Marriages Article 23. Bases of Prohibition ... Notes/Comments Article 24. Prohibition by Consanguinity (Tahrim-Bin-Nasab) Notes/Comments .... Article 25. Prohibitions by Affinity (Tahrim-Bil-Musahara Notes/Comments ... Article 26, Prohibition due to Posteraue (Tahrim-Birrada’a) Notes/Comment ....see Section 3. Subsequent Marriages Article 27. By a Husband Notes/Comments Article 28. By widow. Notes/Comments Article 29. By Divorce. Notes/Comments Article 30. Marriage after Notes/Comments .... Section 4. Batil and Fasid Marriages Article 31, Batil Marriages Notes/Comments .... Article 32, Fasid Marriages Notes/Comments Article 33, Validation of Irregular Notes/Comments ..... Section 5, Rights and Obligations between Spouses Article 34, Mutual Rights and Obligation: Notes/Comments Article 35. Rights and Obligations of the Husban Notes/Comments Article 36. Rights and Obligations of the Wife . Notes/Comments .... Section 6. Property Relations between Spouses Article 37. How governed... 351 356 357 364 364 367 367 367 368 369 369 372 373 378 378 382 382 385, 385, 387 387 391 391 392 393 400 400 402 402 404 404 407 408 411Notes/Comments ... Article 38, Regime of Property Relations Notes/Comments Article 39, Stipulation in the Notes/Comments .. Article 40. Ante-Nuptial Property... Notes/Comments .. Article 41. Exclusive Property of Each Spouse Notes/Comments .. Article 42. Ownership and Administration Notes/Comments ... Article 43. Household Property Notes/Comments ... Article 44. Right to Sue and be Sue Notes/Comments ... Chapter IIT DIVORCE (TALAQ) Section 1. Nature and Form Article 45. Definition and Forms Notes/Comments ..... Article 46. Divorce by Talaq Notes/Comments ....... Article 47. Divorce by Ila Notes/Comments Article 48. Divorce by Ziha: Notes/Comments Article 49. Divorce by Liai Notes/Comments ... Article 50. Divorce by Khul. Notes/Comments .. Article 51. Divorce by Tafwid .. Notes/Comments ... Article 52. Divorce by Faksh Notes/Comments .. Article 53. Faskh on the Ground of Unusual Cruelty Notes/Comments .. Article 54. Effects of Irrevocable Talaq or Faskh Notes/Comments .. Article 55. Effects of Other Kinds of Divorce Notes/Comments .. Section 2. Idda Artide 56. Idda defined. Article 57. Period... Notes/Comments 411 413 413 414 414 415 416 416 AlT 420 420 421 421 422 422 424 424 432 433 439 439 442 442 446 446 451 451 456 456 460 460 476 476 479 A479 488 488 488 488 489Title IL. Paternity and Filiation Article 58. Legitimacy, how established ... Notes/Comments .... Article 59, Legitimate children....... Article 60. Children of subsequent marriage .. Notes/Comments . Article 61, Pregnancy after dissolution. Notes/Comments . Article 62. Rights of legit imate chil Notes/Comments .. Article 63. ‘Acknowledgment te father. Notes/Comments . Article 64. Adoption. Notes/Comments Title IV. Support (NAFAQA) Article 65. Support defined .. Notes/Comments .. Article 66. Amount ef Support. Notes/Comments .. Article 67. Support for the wife and infan Notes/Comments ..... Article 68. Support between ascendants and descendants Notes/Comments . Article 69. Payment. Notes/Comments .. Article 70. Extinguishment of support. Notes/Comments . Title V. Parental Authority Chapter I Nature and Effects Article 71. Who exercises .. Notes/Comments . Article 72. Duty of Parents . Notes/Comments ... i Article 73. Duty to children Notes/Comments ....... Article 74. Effects upon person of children Notes/Comments ... Article 75. Effects upon property of children Notes/Comments ... Article 76. Parental authority non-transferrable. Notes/Comments ..........0:scscccseeeeeseeeeeee ai 495 495 496 496 496 507 507 508 508 509 509 516 517 518 518 520 520 521 522 527 527 535, 535 537 537 539 539 542 543 545 545 552 552 554 554 555 555Article 77. Extinguishment of parental authority ....... Notes/Comments .... Chapter I Custody and Guardianship Article 78. Care and custody Notes/Comments . Article 79. Guardian for Marriage (Wali) Notes/Comments Article 80. Guardian of Notes/Comments .... Title VI. Civil Registry Chapter I Registry of Marriage, Divorce and Conversions Article 81. District Registrar... Article 82. Duties of District Registrar Article 83. Duties of Circuit Registrar..... Article 84. Cancellation or Correction of Entry Article 85. Registration of Revocation of Divorce . Notes/Comments ... Article 86. Legal Effects of Registration... Notes/Comments .. Article 87. Applicability 0 of other Civil Registry Notes/Comment ..-.cecoccorsses Chapter I Other Acts Affecting Civil Status Article 88. Where Registered Notes/Comments PART THREE WILLS AND SUCCESSION Historical Background..... The Law of Succession or Inheritance (Al-Mawarith) .. Succession or Inheritance as a Science in the Law... Knowledge of Iimul-Faraid Enjoined by the Holy Prophet Sources of the Muslim Law on Succession or Inheritance (mul-mirath).. sod 559 559 568 568 571 571 575 575 575 576 576 576 576 577 577 578 582 582 585 587 587 588 589BOOK THREE Succession Title I. General Provisions Article 89. Succession defined.. Notes/Comments Article 90. Successional Rights; When vested Notes/Comments Article 91. Requisites of Successio: Notes/Comments .... Article 92, Inheritance (Mirath) Notes/Comments - Article 93. Disqualification to Succession. Notes/Comments .... Article 94. Succession from Acknowledging Person. Notes/Comments .... Article 95. Succession by Illegitimate Child. Notes/Comments .... Article 96. Succession Between Divorced Persons Notes/Comments .... Article 97, Succession by Conceived Chil Notes/Comments .... Article 98. Succession by Absentee Notes/Comments .... ‘Article 99. Order of Succession. Notes/Comments .... Article 100. Modes of Succession. Notes/Comments .... Title IIL. Testamentary, Succession Chapter I Wills Article 101, Will defined........ Notes/Comments Article 102. Formalities Notes/Comments Article 103. Proof of Wi Notes/Comments ..... Article 104. Testamentary Waa} Notes/Comments ..... Article 105. Capacity to Make a Will. Notes/Comments Article 106. Disposable third . Notes/Comments . Article 107. Bequest by Operation of Law. Notes/Comments.... xxiii 590 590 591 591 594 594 598 598 604 604 609 609 611 611 613 613 616 616 620 620 624 624 629 629 630 630 631 632 645 645 648 649 655 655 659 659 667 668 eeArticle 108. Revocation of Will Notes/Comments ... Article 109. Partial Invalidity of Will Notes/Comments Title HII. Legal Succession Chapter I Sharers Article 110. Who are sharers Notes/Comments .... Article 111. Share of Surviving Husband Notes/Comments ... Article 112. Share of Surviving Wife Notes/Comments Article 113. Share of Surviving Father. Notes/Comments .... Article 114, Share of the Surviving Mother Notes/Comments ... Article 115. Share of Paternal Grandfather Notes/Comments .... Article 116. Share of Paternal Grandmother Notes/Comments .... Article 117. Share of Surviving Daughter Notes/Comments Article 118. Share of Son’s Daughter. Notes/Comments .... Article 119. Share of Full Sister. Notes/Comments .... Article 120. Share of Consanguine Sister Notes/Comments......... Article 121. Share of Uterine Brother or Sister.. Notes/Comments Article 122. Participation of Full Brother. Notes/Comments Article 123. Exclusion among Heirs Notes/Comments ....... Chapter II Residuary Heirs Article 124. Residuaries Notes/Comments a Article 125. Residuaries in their own right. Notes/Comments Article 126. Residuaries in another's right... Notes/Comments ....... Article 127. Residuaries together with another xxiv 670 671 672 672 674 674 677 6717 679 679 681 681 683 683, 688 6838 691 691 692 693 695, 695 698 698 700 701 702 702 704 104 ‘107 708 715 715 716 717 719 719 721Notes/Comments Article 128. Preference among Residuaries... Notes/Comments .. co Article 129. Reduction of. Shares Notes/Comments ... Article 130. Reversion of Residue Notes/Comments ..... Chapter I Distant Kindred (Dhaw-ul-Arham) Article 131. Relatives included Notes/Comments .., Article 132. Extent and Distribution of Shares Notes/Comments ... Title IV. Settlement and Partition of Estate Article 133. Administration .. Notes/Comments ... Article 134, Governing School of Law. Notes/Comments . Article 135. Order of Preference of Claims. Article 136, Liability of Heirs. Notes/Comments ..... PART IV SHARIA COURTS AND SPECIAL RULES OF PROCEDURE BOOK FOUR Adjudication and Settlement of Disputes and Rendition of Legal Opinions Title I. The Shari’a Court Introduction Article 137. Creation ... Notes/Comments ... Chapter I Shari’a District Courts Article 138. Shari’a Judicial District. Notes/Comments Article 139. Appointment o: 721 722 723 724 724 732 732 738 738 740 740 742 742 744 744 746 746 746 778 778 784 784 785Article 140. Qualifications. Article 141. Tenure. Article 142. Compensation Notes/Comments fe Article 143. Original jurisdiction, Notes/Comments Article 144. Appellate Jurisdiction. Notes/Comments .. Article 145. Finality of Decisions Notes/Comments . Article 146. Clerks and Other Subordinate employee . Article 147. Permanent Stations; Offices .... Article 148. Special Procedure. Article 149. Applicability of Other Laws. Notes/Comments ... Chapter I Shari’a Circuit Courts Article 150, Where established... Article 151. Appointment of Judges. Article 152. Qualifications. Article 153. Tenure... Article 154. Compensation Notes/Comments Article 155. Jurisdiction Notes/Comments Article 156. Clerks and Other Subordinate Employees. Article 157. Place of sessions; stations .... Article 158. Special Procedure Article 159. Applicability of other laws Notes/Comments ... Title II. The Agama Arbitration Council Article 160. Constitution Article 161. Divoree by Talaq and Tafwid . Article 162. Subsequent Marriages... Article 163. Offenses Against Customary Law Notes/Comments Title Il. Jurisconsult in Islamic Law Article 164. Creation of Office and Appointment. Article 165. Qualification Article 166. Functions . Article 167. Compensation Article 168. Office Personnel Notes/Comments ... 785 785 785 785 787 788 830 831 831 831 833 833 833 834 834 836 836 836 837 837 837 837 838 846 847 847 847 847 849 849 849 850 850 854 854 854 854 855 855SPECIAL RULES OF PROCEDURE IN SHARI’A COURTS. (jra-at al Mahakim Al Shari’a) Preliminary I. General Procedure Section 1.Commencement of actions (da’wa) Notes/Comments . Section 2. Complaint Notes/Comments . Section 3. Service of Summon: Notes/Comments . Section 4. Answer..... Notes/Commerts Section 5. Failure to Answer .. Notes/Comments Section 6. Pre-trial. Notes/Comment: Section 7. Hearing or trial Notes/Comments .. Section 8. Judgmen Notes/Comment: Section 9. Appeal... Section 10. Appeal to the Shari'a District Court Notes/Comments ....... Section 11. Appeal to the Supreme Court . Notes/Comments . Section 12. Legal Opinion Notes/Comments .. Section 13. Pleadings and Motions Disallowe Notes/Comments . Tl. Oath Section 13a. Administration of Oath Section 14. Mutual Oath Notes/Comments . Section 15. Mutual Imprecation Notes/Comments . II. Supplemental Proceedings Section 16. Suppletory rule in civil cases Notes/Comment: Section 17. Suppletory rule in Special Notes/Comments ..... xxvii 859 859 869 870 874 874 879 879 881 881 882 882 883. 884 887 887 889 889 889 891 891 895 895 896 896 897 898 898 920 920 924 924 925 925IV. Arbitration Proceedings Section 18. Agama Arbitration; how conducted Notes/Comments ... BOOK FIVE Miscellaneous and Transitory Provisions Title I. Muslim Holidays Article 169. Official Muslim Holidays ... Article 170.Provinces and Cities Where officially observed Article 171. Dates of Observance .. Article 172. Observance of Muslim Employees Notes/Comments .. Title Il. Communal Property Article 173. What constitute ..... Article 174.Administration or Disposition. Notes/Comments .. Title II. Customary Contracts Article 175. How construed.. Notes/Comments ..... Title IV. Conversions Article 176. Effect of legislation of Conversions Article 177. Regulation on Conversion to Islam . Article 178. Effect of Conversion to Islam on Marriage Article 179. Effect of Change of Religion. Notes/Comments .. Title V. Penal Provisions Chapter I Rule on Bigamy Article 180. Law applicable .... Notes/Comments ... Chapter II Specific Offenses Article 181. egal Solemnization of Marriage . Article 182. Marriage before the expiration of Idda 925 926 934 934 935 935 935 937 937 937 939 939 941 941 941 941 941 944 944 945 945Article 183. Offenses relative to subsequent marriage, divorce and revocation of divorce... Article 184. Failure to Report for Registration Article 185. Neglect of Duty by Registrar Notes/Comments : Title VI. Transitory and Final Provisions Article 186. Effect of Code on Past Acts Article 187. Applicability Clause. Article 188. Separability Claus Article 189. Repealing Clause.. Article 190. Effectivity 945 945, 946 946 947 947 947 947 947Part I INTRODUCTION TO JURISPRUDENCE (FIQH) OF MUSLIM LAW Introduction. — The study of Muslim Law revolves in the over all encompassing meaning of the term “Jurisprudence” which is derived from the latin word jurisprudentia which means the knowledge of the law which in its generic sense includes the entire body of the legal doctrine. Jurisprudence in this sense is divided into three parts: First, legal history; Second, the science of legislation; Third, the legal exposition. The purpose of the fitst-is.to-set forth the historical process whereby any legal system came to be what it is or was; the purpose of Ge_psoansiontont forth the law, not as it is or has been, but as ought to be. It deals not with the past or the present of any legal system, but with its ideal future, and with the purposes for which it exists; and the purpose of the third,.is to set forth the contents of an actual legal system as existing at anytime whether past or present. The complete scientific treatment of any body of law involves the adoption of each of these system. (*) Hence, in this work, we shall proceed along that line first, the historical background of the Muslim law, next “figh” which is considered the legislation proper of the Muslim law, and finally, the substantive law itself in our case, “The Code of Muslim Personal Laws of the Philippines.” Prof. J. Schacht commenting on the quality and characteristics of Islamic Law as a whole, said; “Islamic Law is the epitome of the Islamic way of life, the kernel of Islam itself. For the majority of the Muslims, the law has and always been and still is of much greater practical importance than the dogma. Even today, the law remains a decisive element in the struggle which is being fought in Islam, between the traditionalism and modernism under the impact “Moh. Muslehuddin, Islamic Jurisprudence, p. 6. L2 COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE of Western ideas. It is impossible to understand the present legal development in the Islamic countries in the Middle East (including Islamic Communities, i.e., like the Moros of the Philippines) without a correct appreciation of the past history of legal theory of positive law and of legal practice in Islam. (**) Let us therefore take first the historical background of Muslim Law. **Moh. Qureshi, Islamic Jurisprudence, p. 9Chapter | HISTORICAL BACKGROUND Pre-Islamic Arabs. — The Arabs century preceding the rise of Islam, was characterized as the Age of Ignorance (Ayyam Jahiliya). Tribal wars, idolatry, and social degredation were prevalent.’ The Arab was generally nomadic and were called Beduin’s, though there were town dwellers who to some extent led a more settled form of existence.? Law proper, as we understand today, was unknown. Tribes and chieftains acted in accordance with tradition and conven- tion. No settled form of government or administration of law existed. The affairs of the tribe (qabilah) were guided by a Shayikh or chief, a man who, by his nobility of birth age and reputation for wisdom, had the respect and confidence of his tribesmen. To decide cases of disputes, the Arabs had a confederation of “Hill fall Fardul.” Sometimes the chief of the tribe was assisted in the discharge of his duties by council of elders. Within the limits of his tribe, orders and decisions were enforced not by any fixed machinery at his disposal, but by force of public opinion.* The procedure that used to be adopted when a dispute or claim had to be decided was to call upon the plaintiffs to adduce proof in support of his claim. If he has no witness, the defendant, in case he denied the charge, would be given the oath, and if he took it, he would be absorbed thereby from liabilities. Oath formed an important part of the procedure in setting dispute. Several forms of marriage were in vogue. A form of marriage which has been sanctioned by Islam, namely a man ask another for the hand of the latter’s ward or daughter, and then marries her giving her a dower; another form of marriage that the Arabs used °R. Levy, Sociology of Islam (London, 1937) p. 135; Fyzee, Outline of Muham- madan Law. "bid., p. 76; Fyzee, Muh. Law, p. 7. ®Pol. History of the Muslims, S.M. Imamuddin, p. XVIT 34 COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE to contract is what has been called a temporary marriage under the name of “muta” whereby a man takes a woman as wife for as long as he needs her.* A woman was not a free agent in contracting marriage. It was the right of her father, brother, cousin or any other guardian to give her in marriage, whether she was old or young widow or virgin to whomsoever he chose. Her consent® was of no moment. There was no restriction as to the number of wives an Arab could take. The only limit was imposed by his means, opportunity and inclinations. Unrestricted polygamy, which was sanctioned*by usage was universally prevalent. This was exclusive of the number of slave girls, which a man might possess.* The limits of. relationship within which marriage was prohibited were narrow and defined only by close degrees of consanguinity.” Unrestrained as an Arab was in the number of his wives, he was absolutely free to release himself from the tie. His power in this connection was absolute.* On the other hand, the wife had no corresponding right to release herself from the marriage bond. Adoption among the Arabs was also in vogue as a legitimate mode of affiliation. It was not restricted by any condition. The adopted son passed into the family of the adopter and assumed his name, and his rights and obligations similarly as those of a natural-born son.’ The Arabs regarded the birth of a daughter as a calamity. Female infanticide was prevalent."° The property of an Arab, generally was of simple description. Camels, cattles, tents, clothes, and few utensils. Slaves were a common and valuable form of property. No distinctions were made between ancestral and self-acquired, movable, and immovable property. The woman was debarred from inheriting, though she was under no disability in the matter of owning property. Anything that she might receive as dower or gift from him or her parents ‘Vide, Vol. III, p. 151; Muh. Juri, Abdur Rahim, p. 8. *Tafsir-i-Ahmadi, p. 226; Abdur Rahim, Muh. Jurisprudence, p.d *Kashfu'l-Ghumma, Vol. II, p. 546; Abdur Rahim, Muh. Jur., p. 9. 7W. Robertson Smith, Kinship and Marriage in Karly Arabia, p. 164; Muh. Jur., Abdur Rahim, pp. 9-10. *Tafsir-i-Ahmadi, p. 130; Abdur Rahim, Muh. Jur., p. 10. “Ibid., p. 160; Ibid., p. 12. ©Tafsir-ul Kabir (Egyptian Ed.), Vol. VI, 357; Abdur Rahim, Muh. dur, pp. 12-13-15.INTRODUCTION TO JURISPRUDENCE (FIQH) OF MUSLIM LAW 5 Chapter I — Historical Background and relatives was absolutely hers. Trade and commerce were the most common means of livelihood of the pre-Islamic Arabs. Arabs had absolute power of disposal over his property. He used to lend money on interest, and usury was rampant under the name of riba.” Loans of articles by way of accommodation were designated as ariya, the borrower in this form of contract enjoying the use and income without consuming or disposing of the substance. Arab’s capacity to dispose of his property by will was as full as his power to deal with it by act inter vivos, He could make bequest in favor of any one he choose. On his death his possessions devolved on his male heirs, capable of bearing arms, and females and minors being excluded." The heirship was determined by consanguinity, adoption or compact. There was little prospect of religious reform. The foundation of idolatry was so deep rooted, although there were some few Arab called “Hanif” (sing. Hanafa) who felt disgust at idolatry and tried to find out what had been the teaching of Abraham. They were the agnostics of the day, each seeking the truth by the light of their inner consciousness,’ Muhammad, son of Abdullah was one of them. These conditions in Arabia just before Islam, the religious unrest and moral degradation, had stirred a section among the Arabs and Arabia was just ripe for reforms, and Muhammad (P.B.U.H.) appeared at an opportune time to effect that. ‘Ibid. »Tafsir-i-Asmadi, p. 60-V; Abdur Rahim, Muh. Jur., p. 16. ©The Glorious Quran, English Transl., M. Picktall, p. 4,