11/08/2023
ALAMIN: NAG-CONVERT KA BA SA ISLAM PARA MAKAPAG-ASAWA ULIT? LEGAL BA ITO?
(Ang bigamy ay isang kasong criminal dahil kung pumasok ang isang tao sa isang kontratang kasal kahit na hindi pa pinawalang bisa ang naunang kasal. (Art 349, Revised Penal Code).
Nerrian Maningo-Malaki (Nerrian) ay kasal kay Francis Malaki (Francis) noong March 26, 1988 sa Panabo City, Davao del Norte at nagkaroon po sila ng mga anak.
Umalis si Francis para magtrabaho sa Tagum City noong 2005. Nalaman na lang ni Nerrian na kinikasama nya si Jacqueline Mae. Salanatin-Malaki (Jacque) at sila din ay kasal noong June 18, 2005 sa isang Municipal Trial Court judge.
Sinabi nila Francis at Jacque na alam nila kasal si Francis kay Nerrian. Subalit sinasabi nila na dapat ay hindi sila kasuhan ng bigamy dahil sila ay NAGCONVERT sa Islam bago ang kanilang kasal at kinasal sila sa Muslim rites.
Si Francis at Jacque ay hinatulan ng Regional Trial Court na guilty ng bigamay at ito naman ay kinatigan ng Court of Appeals. Ang kanilang penalidad ay nasa six (6) months and one (1) day of prision correccional as minimum, to six (6) years and one (1) day of prision mayor, as maximum na pagkabilango.
SUPREME COURT SAID:
Tama ang pagkatig ng Court of Appeals sa Decision Regional Trial Court sa pag-convict kay Francis at Jacque sa kasong bigamy.
Sa madaling salita, dahil ang kasal ni Nerrian at Francis ay nabilang sa Family Code, ang pag-convert ni Francis sa Islam at kasunod na kasal nito kay Jacque ay hindi naayon sa Muslim Code.
Ang kasal ng isang Muslim sa isang non-Muslim na hindi na solemnized sa Muslim Code, ang Civil Code / Family Code ang i-apply. Pwedi maging liable sa bigamy ang partido sa kasunod na kasal na hindi pa pinawalang bisa ang naunang kasal.
Kung ang non-Muslim na mag-asawa ay nag convert sa Islam na walang anumang legal impediment, ang kanilang kasal ay ratified na rin basta yun ay sinagawa alinsunod sa Muslim Code or Muslim Law.
Kung ang mag-asawa ay kinasal alinsunod sa Muslim Code, ang provision ng Art 349 ng Revised Penal Code sa Bigamy ay hindi ma e-apply.
Penalidad:
Pinalitan ang penalty ng mas mataas mula two years and four months of prisión correccional as minimum to eight years and one day of prisión mayor as maximum.
Bahagi ng Decision:
X x x x x
The Muslim Code applies to marriages, their nature, consequences, and incidents between fellow Muslims,[53] between a male Muslim and a non-Muslim solemnized in Muslim rites,[54] between spouses who both converted to Islam after their marriage,[55] and between a male Muslim and a non-Muslim entered into prior to the Code's effectivity.[56] It also penalizes specific offenses relative to marriages.[57]
The general law, the Civil Code (superseded by the Family Code), governs marriages not solemnized under Muslim rites, including those between a Muslim and a non-Muslim.[58] Crimes and offenses in connection with civil marriages are defined in the Revised Penal Code and special laws.
The Muslim Code allows subsequent marriages on certain conditions.[59] The ponente maintains his views on the separation of Church and State.[60] However, the reality is that the Muslim Code merely codified previously acknowledged customs which Moros have observed since time immemorial.
The Qur'an, the primary source of Islamic law, under Surah An-Nisã (The Women), 4:3, provides:
"If you fear that you will not deal fairly with the orphans, then marry such women as seem good to you, two, three, or four; but if you fear that you will not deal justly, then only one, or those whom your right hands possess. Thus it is more likely that you will not commit injustice."[61] (as translated)
Consequently, when married in accordance with the Muslim Code's provisions or under the Muslim law before the Muslim Code's effectivity,[62] a male Muslim shall not be indicted for bigamy when he subsequently marries, as provided in Article 180 of the Muslim Code.
Article 3 of the Muslim Code declares that its provisions shall not be construed to the prejudice of a non-Muslim. Certainly, granting the Muslim convert, like petitioner Francis, the recourse provided in Article 180 would be prejudicial to the abandoned wife, and the state, the aggrieved party in criminal prosecutions.
Moreover, Article 186 of the Muslim Code directs its prospective application on past acts, and that nothing "shall affect their validity or legality or operate to extinguish any right acquired or liability incurred thereby[,]" except as otherwise specifically provided. Acts done prior to the effectivity of the Muslim Code remain governed by the Civil Code, the then pre-existing law of general application. Similarly, any protection which the Muslim Code may afford petitioner Francis when he converted to Islam – which is when the Muslim Code became applicable to him – must also be prospectively applied.
Indeed, in case of conflict with a general law, the Muslim Code prevails.[63] However, Article 13(2) of the Muslim Code explicitly spells out that the Civil Code[64] governs marriages where either party is non-Muslim and which were not solemnized in Muslim rites. There is no conflict with general law here. The nature, consequences, and incidents of petitioner Francis' prior and admittedly subsisting marriage to Nerrian remain well-within the ambit of the Civil Code,[65] and its counterpart penal provisions in the Revised Penal Code.
Whether petitioner Francis converted to Islam before or after his marriage with petitioner Jacqueline, the subsequent marriage consummated the crime of bigamy. He cannot successfully invoke the exculpatory clause in Article 180, considering that the Muslim Code finds no application in his then subsisting marriage with Nerrian, the marriage recognized by law that bars and penalizes a subsequent marriage.
III
Article 27 of the Muslim Code conditionally allows the Muslim husband's subsequent marriage in exceptional cases. The substantive requisites are:
Notwithstanding the rule of Islamic law permitting a Muslim to have more than one wife but not more than four at a time, no Muslim male can have more than one wife unless he can deal with them with equal companionship and just treatment as enjoined by Islamic law and only in exceptional cases. (Emphasis supplied)
The general rule is that a married Muslim cannot marry another. However, in exceptional cases, the male Muslim may do so if "he can deal with them with equal companionship and just treatment as enjoined by Islamic law."
Article 162 spells out the formal requisites for the Muslim husband's subsequent marriage:
Any Muslim husband desiring to contract a subsequent marriage shall, before so doing, file a written notice thereof with the Clerk of Court of the Shari'a Circuit Court of the place where his family resides. Upon receipt of said notice, the Clerk shall serve a copy thereof to the wife or wives. Should any of them object, an Agama Arbitration Council shall be constituted in accordance with the provisions of paragraph (2) of the preceding article. If the Agama Arbitration Council fails to obtain the wife's consent to the proposed marriage, the Court shall, subject to Article 27, decide whether or not to sustain her objection.
The Muslim husband must first notify the Shari'a Circuit Court, where his family resides, of his intent to contract a subsequent marriage. The clerk of court shall then serve a copy to the wife or wives. If any of them objects, the Muslim Code mandates the constitution of the Agama Arbitration Council,[66] which shall hear the wife. Ultimately, the Shari'a Circuit Court decides whether to sustain the wife's objection.
"In other words, the consent of the wife, or the permission of the Shari'a Circuit Court if the wife refuses to give consent, is a condition sine qua non with respect to the subsequent marriage."[67] Absent the wife's consent or the court's permission, the exculpatory provision of Article 180 shall not apply, since it only exempts from the charge of bigamy a Muslim husband who subsequently marries "in accordance with the provisions of [the Muslim Code]."[68]
The wife's knowledge of the impending subsequent marriage is essential and may not be waived:
The lack of knowledge of the wife from the prior subsisting marriage does not only deprive her of the opportunity to consent or object, but also prevents the Shari'a Circuit Court from ruling on any objection. The subsequent marriage therefore fails to satisfy the requirement of prior consent or permission under Article 162.[69]
...
The subsequent marriage in the contemporary practice is not contracted in accordance with the Muslim Code or Muslim Law. Article 349 of the Revised Penal Code may validly regulate such subsequent marriage.[70] (Citation omitted)
Moreover, failure to comply with the statutory requirements under the Muslim Code shall be punished by arresto mayor or a fine.[71]
The Muslim Code classifies marriages with infirmities into batil (void)[72] and fasid (irregular).[73] However, there is no provision on the status of a male Muslim's subsequent marriage which failed to comply with the formal requisites laid down in Article 162. Renowned shari'a jurists Justice Jainal Rasul[74] and Judge Bensaudi I. Arabani, Sr.[75] opine that it is bigamous. As a bigamous marriage, it is declared as void from the beginning by the Family Code,[76] and penalized under the Revised Penal Code.
In any case, even granting that the parties' circumstances fell exclusively within the coverage of the Muslim Code, noncompliance with the condition precedent to subsequent marriages belies petitioners' good faith and manifests their intent to circumvent the law. The Court of Appeals found that:
Francis did not comply with the requisites provided, and even testified that he does not know that such is required, as he declared in open court that he only knew he can remarry. The failure of Francis to comply with the requisites betrays his invocation of Islamic law as an excuse for his indiscretion.[77] (Emphasis supplied)
Petitioners' apparent nonchalance in complying with the Muslim Code is an evidentiary matter where the Regional Trial Court and the Court of Appeals' findings are in complete harmony. Factual matters are not the province of the present Petition. Absent any showing that they are grossly in error, the findings of the Regional Trial Court and the Court of Appeals stand undisturbed.
IV
To this day, the Philippines outlaws divorce for its non-Muslim majority. A contemporary practice in the Philippines has been observed, where males convert to Islam as their alternative to divorce.[78] A website[79] offering visa services to immigrants to the United States touted:
The Philippines is the only country other than the Vatican that outlaws divorce. That's why it's no surprise that so many of our customers are surprised to find out that their Filipina fianc[é] cannot qualify for a K1 fianc[é] visa and be with them in the United States due to a previous unresolved marriage. While she may be living completely separated from the first husband for many years, under the eyes of the law, she's still married.
There is one exception that some may think is a viable loophole – "Convert to Islam and be able to legally divorce. " Unfortunately for them, it's not that simple. According to Presidential Decree No. 1083, there are divorces allowed in very specific circumstances under Shari'a District Court, subject to the provisions of the Rules of Court. But in terms of obtaining a U.S. visa, bear in mind that it's a U.S. issue, and the consular officer still has the final say.[80] (Emphasis supplied)
This illegal practice where they convert to Islam solely to remarry eludes proper documentation and was described in this manner:
Males that have subsisting valid marriages under Civil Law purposely convert to Islamic faith with the sole intention of contracting another marriage that is legally recognized. The contemporary practice capitalizes on the permissibility of polygamy in Islam, whereby the act of conversion to Islamic faith capacitates the male to contract a subsequent marriage.
The contemporary practice is characterized by two overriding objectives on the part of the male. First, the male aspires to possess the capacity to remarry without any legal impediment and liability. Second, the male seeks to contract another marriage that is legally recognized. Islamic conversion proves to be a viable means of achieving these overriding objectives.
It is critical to underscore the dearth of published reports concerning the contemporary practice. By its very nature, the reason for the lack of reports is readily apparent—the practice is carried out with a considerable degree of secrecy to mask the real intentions of the male converting to Islam.[81]
Conversion to Islam to remarry and circumvent the laws on bigamy generates legal tensions as it exploits the protective mantle of religious freedom under the Constitution.[82] However, this is not a novel case.
V
Nollora v. People,[83] People v. Ong,[84] and Sayson v. People,[85] affirmed appellants' conviction for bigamy on defenses invoking Article 180 of the Muslim Code or the parties' religion.
These cases involved similar facts with the case at hand. The male party to a subsisting civil marriage converted to Islam and subsequently married another woman. On charges of bigamy, appellants invoked Article 180 of the Muslim Code, countering that Muslims may not be indicted of the crime.
This Court rules in the same manner and maintains its stance.
Sayson echoed Nollora in ruling that "a Muslim man who shall knowingly contract a subsequent marriage without complying with the conditions set forth under [the Muslim Code] . . . cannot claim exemption from liability for the crime of [b]igamy."[86] Ong also ruled the same.[87]
None of the cases which petitioners cited apply here.
Sulu Islamic Association of Masjid Lambayong v. Judge Malik[88] involved an administrative complaint for immorality and nepotism against Judge Malik who admitted having two wives. This Court held that he was not immoral considering that he is a Muslim, and shari'a conditionally permits polygamy. This Court acknowledged that his first wife consented to the subsequent marriage, and has no ill feelings about it. His first wife stated that Judge Malik did not neglect his duties to his children.
Zamoranos[89] neither applies. Zamoranos, a Muslim, was exculpated from bigamy since she was previously divorced from her first husband, who is also a Muslim. This Court upheld the finding that there was a valid divorce which allowed her to marry Pacasum.[90] The circumstances surrounding Zamoranos are completely different from this Petition, as it involved marriages between Muslims.
Artadi-Bondagjy v. Bondagjy[91] must be revisited when a proper case calls for it. There, petitioner converted to Islam and married a fellow Muslim under Muslim rites. She reverted to Catholicism upon her separation from her husband. In granting her custody of their children – which is merely incidental to the couple's separation – this Court applied the Family Code, ruling that the Muslim Code no longer governed since petitioner converted back to Catholicism. This appears to be anomalous. It is inconsistent with how the Muslim Code governs the nature, consequences, and incidents of Muslim marriages and divorce.[92] In contracts of marriage, the applicable law is that which governs at the time of marriage, and is not dependent on petitioner's religion at the time of filing the suit.
All told, this Court affirms the Court of Appeals' ruling that petitioners are guilty of bigamy under Article 349 of the Revised Penal Code.
The penalty is, however, modified. Petitioners are each sentenced to an indeterminate penalty of two years and four months of prisión correccional as minimum to eight years and one day of prisión mayor as maximum.
Our pluralist society recognizes that legal institutions may not be subsumed in a homogenous legal system. We enact laws to "preserve and develop [the] cultures, traditions and institutions"[93] of indigenous cultural communities and religious minority which come from various sources. Concomitantly, we enabled a system where these laws co-exist and simultaneously operate.[94]
X x x x x
G.R. No. 221075. November 15, 2021
FRANCIS D. MALAKI AND JACQUELINE MAE A. SALANATIN-MALAKI, PETITIONERS, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
