Part II

PERSONS INTRODUCTION

Preliminary statement

We have, in the preceding Part I of this book covered the first division of Islamic Jurisprudence, the
historical background and the second division, the legislative aspect of Muslim Law, which are
essential requisites to the study of the third division, the legal exposition or the substantive law
itself which in this work is the Code of Muslim Personal Laws of the Philippines. In this book, we
have arranged this third division into: Part II, Persons and Family Relations; and Part III,
Inheritance, Wills, and Succession. Henceforth. we shall proceed to take the third division of Muslim
Law in the order in which we have divided them into those three major parts

Meaning of Law

Law may be defined as a rule of civil conduct promulgated by the legislative body of a sovereign
authority which enforces it, designed to regulate the relation of its subject. A body of rules, whether
proceeding from a formal enactment or from custom, which a particular state or community
recognizes as binding on its subject or members. More briefly stated, it is a norm of human conduct
in social life established by a sovereign authority for the compulsory observance of all.

Sources of Law

1. Divine Law or God made law - its sources from the Supreme Being.

- Generally, i regulates the relation of man to God and in Anglo-American legal

systems is called Canon Law, and in the Muslim legal system, it is referred to as
those laws relating to ibadat (worship).

- The former is permanent and immutable

2. human law or man-made law -may be the work of a legislative body of a sovereign
authority.

-Human law or man-made law on the other hand, regulates the relation among man
in their civil acts or transactions. In the Muslim legal system, it is generally referred
as muamala't (wordly).

-changeable according to the circumstances of time and place.

Under the Muslim legal system, the law on muamala't has for its sources both the Divine law and
the Human law, for the Quran which Muslim believes is a law from the Divine Supreme Lawgiver
and the Hadith or tradition of the Prophet of Islam which is likewise believed to be divinely inspired
are its primary sources, and in matters of details or which requires specific rule, its other sources
are human or man-made law based on Ijtihad, Ijma, Qiyas and other secondary and extraneous
sources.

General Classification of Law

Thus, laws therefore, can be generally classified into: Divine law and Human law. The former,
insofar as it relates to Canon law, or those involving religion, we leave it to those indulged in the
study of that law

Human law or positive law which is the subject of our concern, is further classified into:
International law and Internal laws.

International Law subdivided into two parts:

1. Public International law which treats the relation between nations in peace and war, and

2. Private international law which treats the questions of nationality and the conflict of laws
in their application to foreigners, or which deals with the law of different nations and
determine which law should be applied to a national thereof.

Internal law

1. Private internal law- which deals with relations among individuals. It is divided into various
categories, chief among which are: Civil law which includes matters of personal status,
property, rights in rem, and rights in person; commercial law, which deals with transactions
among traders and with commercial matters; and laws of procedure, which define the
organization of the judiciary, its rules of jurisdiction, rules followed in instituting a claim,
pleadings, judgments and the method of enforcing such judgments. Other laws exist in addition
to these private laws; e.g., labor laws and agricultural laws.

2. Public Internal law - is that which pertains to the state and its relation to the individual. It
includes the fundamental or constitutional law; administrative law which defines the
function of government in detail together with its specific duties and its relation to
individuals; and criminal law which specifies the punishment for persons who violate public
order and security. Criminal law is considered a part of public law because of the
relationship of the state and the general public "right" to punishment. All French and most
English jurists agree with this view.
Distinction and Similarities of the Three Major Legal System

1. Romal Law

2. Anglo-American Law

3. Muslim Law

From a general point of view, the distinctions and similarities among these three major world legal
system are as follows:

Roman law has Rome as its place of origin. It comes into law by the process of legislative
enactment, and in the same way, that its amendments may be done. It is the system of law observed
in Spain, France, Italy and the Philippines, among others. Common law is the legal system that is
known to have originated from England, and has for its sources in main case law (stare decisis) and
legal books of authority, and which may be changed by subsequent rulings or opinions of legal
authorities. It is observed in England, Canada, and in the USA and;

Muslim law originated from the cradle of Islam, which is Arabia. It has for its principal sources the
law of God contained in the Quran and the Hadith (tradition) of the Prophet of Islam which Muslim
believe were made under the Divine guidance and are therefore, not subject to amendment by
Human law. In Muslim law, courts decisions are not considered law. The judge in each case is duty
bound to exercise his own power of ijtihad (analytical reasoning), or interpretation, and there is no
judge made law; while Roman law, courts decision is considered interpretation of the law, and
supplemental thereto. In common law, legal precedents is considered one of its principal sources. It
is observed in Muslim countries and communities throughout the world."

The main similarities between these three legal systems consists in the fact that all three
provides for a rule of law for the observance of man in the conduct of his affairs; they are all aimed
at upholding what is right and just and forbidding what is wrong and unjust; and, man-made laws
regulating the relation of man, they need the sanction of the state for compliance and enforcement.

The Muslim law is not borrowed from Roman or English laws. - Some legal analysts claimed
that the Shari'a or Muslim law is influenced by Roman Law. This is the view of the orientalist.
Eastern jurist disputes this claim, although, some takes a middle view. However, a deeper and
thorough investigation of the issue will show that the similarities between the two legal system is
negligibly few while the differences are noticeably numerous.
It is evident that the various civilization show striking similarities in their fundamental principles
and present occasional resemblance in some of their subsidiary rules if the causes of these. rules
and the interest they are intended to serve were the same, and similarities are almost inevitable
between legal systems. Therefore, such similarities as may exist are not themselves sufficient
evidence of borrowing.

The Shari'a likewise was not borrowed from the English law. The former is older than the latter and
was in existence even before the latter came into being. The English legal system originally did not
even draw on neighboring European systems; how much less is the possibility of borrowing from a
distant system such as the Islamic legal system.

Codified Law Distinguished from Case Law

(1) Continental jurisprudence has been decisively influenced by the reception of Roman law; Anglo
American law has not. Instead, it is largely the product of gradual historical growth and therefore
still shows considerable elements of feudalism;

(2) All continental systems are essentially codified; Anglo Ameri can law is still based on the
common law;

(3) From this follows a different approach to problems of legal interpretation. Judicial decisions in
Continental systems are not primary sources of law, but only a gloss on the law. On the other hand
in Anglo American law, precedent is one of the principal sources of law;

(4) It is an aspect of contrast of inductive and deductive approach that continental systems,
proceeding from general, rules to individual decision, establish general and legal principles,
whereas, Anglo-American law centers around a decisions of individual problems and builds up the
principle, from case to case. Such principles as there are, have been developed from a gradual
adjustment to practical requirements.

(5) As a corollary to this difference in legal development, Anglo American legal thinking gives a
predominant place to the law courts, whereas Continental Jurisprudence thinks of law not only in
terms of litigation but largely in terms of its general function.
(6) The dualism of common law and equity in Anglo American law is unknown in continental
systems, where equity is a principle. of interpretation applied to any legal question, but not a
special body of law.

(7) All continental systems distinguish in substance and procedure. between private law and
administrative law. The former deals with legal relations between subjects, as equals, the latter
with legal relations between authority of all types and the subject. Anglo-American law has, until
recently, rejected this dichotomy and has adhered at least in theory, to the principle of equality of
all before the law.

(8) The more abstract and generalizing approach to law of continental jurisprudence has been
conducive to the development of legal philosophy, whereas the pragmatic and empiricist character
of Anglo-American law has had the opposite effect. Hence, the pre-eminence in Anglo-American law
of the analytical school of jurisprudence, compared with the infinite variety of continental legal
theories.

Difference between Islamic Law and Roman Law

The fundamental differences between Roman Law and Islamic Law as pointed out by Mahmassani
are:

(1) Roman women were under perpetual tutelage. They were not empowered their lives to deal
with their property without the permission of their guardians. The Shari'a, on the other hand,
recognizes in principle the complete capacity of women to perform all kinds of lawful transactions.

(2) The dowry in Roman Law was a payment to the husband by his wife or one of her family while
in Muslim law the payment is to the wife by the husband.

(3) Adoption is not recognized in the Shari'a while it was an accepted institution in Roman Law. (4)
Formalism and compilation were evident in Roman contracts and in Roman rules of procedure,
while the contrary is the case in the Shari'a. In the latter it is a maxim that effect is given to
intention and meaning and not to words and forms.

(5) The transfer of debt was illegal in Roman Law, while in Islamic Law it is sanctioned by all
schools of jurisprudence without exception.

(6) There are distinct differences between the two systems in questions of inheritance and wills. In
the Shari'a (Sunni view), for example, a bequest (in a will) to an heir is unlawful, while in Roman
Law wills were originally instituted for the purpose of appointing the heirs.
(7) The rules of pre-emption and family waqf (endowments) have no parallel in Roman Law,'

[PRESIDENTIAL DECREE No. 1083]

A DECREE TO ORDAIN AND PROMULGATE A CODE RECOGNIZING THE SYSTEM OF FILIPINO

MUSLIM LAWS, CODIFYING MUSLIM PERSONAL LAWS, AND PROVIDING FOR ITS
ADMINISTRATION AND FOR OTHER PURPOSES

WHEREAS, pursuant to the spirit of the provision of the Constitution of the Philippines that, in
order to promote the advancement and effective participation of the National Cultural Communities
in the building of the New Society, the State shall consider their customs, traditions, beliefs and
interests in the formulation and implementation of its policies;

WHEREAS, Islamic law and its principles of equity and justice, to which the Filipino Muslim
communities adhere, provide an essential basis for the fuller development of said communities in
relation to the search for harmonious relations of all segments of the Filipino nation to enhance
national unity;

WHEREAS, the enforcement, with the full sanction of the State, of the legal system of the Filipino
Muslims shall redound to the attainment of a more ordered life amongst them; WHEREAS, it is the
intense desire of the New Society to strengthen all the ethno-linguistic communities in the
Philippines within the context of their respective ways of life in order to bring about a cumulative
result satisfying the requirements of national solidarity and social justice;

NOW, THEREFORE, I, FERDINAND E. 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
hereby decree:

BOOK ONE

GENERAL PROVISIONS

TITLE I TITLE AND PURPOSES OF CODE

Article 1. Title. This decree shall be known as the "Code of Muslim Personal Laws of the
Philippines."

 Source of article: Code Commission

 Decree- is an ordinance or edict promulgated by civil or other authority. Thus, it is a decree

issued by a sovereign or other authority, an authoritative proclamation.
  Muslim Law (Sharia) refers to all the ordinances and regulations governing Muslims as found
principally in the Qur’an and hadith

CMPL of the PHILIPPINES:

 In legal sense, personal laws are those which appertains to person.

 CMPL in the Philippines is a body of laws that treats of the personal laws of the Muslim in the
Philippines and provides for the administrative machinery for its implementation. It applies
only to MUSLIMS in matters relating to:

1. Personal Status

2. Matrimonial and Family relations

3. Succession and Inheritance

4. Property relations between spouses.

 NON-MUSLIM are not embraced in the law, except in those cases provided by the code.

 Personal in nature were to be codified

HISTORICAL BACKGROUND OF THE CMPL in the PHILIPPINES

 The present code of Muslim personal laws of the Philippines is the result of Islamic
Influence that was first introduced in SULO by the early missionaries. (710 A.H. or 1310
A.D.).

Article 2. Purpose of Code. Pursuant to Section 11 of Article XV of the Constitution of the

Philippines, which provides that "The State shall consider the customs, traditions, beliefs and
interests of national cultural communities in the formulation and implementation of state policies,"
this Code:

(a) Recognizes the legal system of the Muslims in the Philippines as part of the law of the land and
seeks to make Islamic institutions more effective;

(b) Codifies Muslim personal laws; and

(c) Provides for an effective administration and enforcement of Muslim personal laws among
Muslims.

TITLE II.

CONSTRUCTION OF CODE AND DEFINITION OF TERMS

Article 3. Conflict of provisions.

 (1) In case of conflict between any provision of this Code and laws of general application,
the former shall prevail.

(2) Should the conflict be between any provision of this Code and special laws or laws of
local application, the latter shall be liberally construed in order to carry out the former.

(3) The provisions of this Code shall be applicable only to Muslims and nothing herein shall
be construed to operate to the prejudice of a non-Muslim.

Article 4. Construction and interpretation.

(1) In the construction and interpretation of this Code and other Muslim laws, the court shall
take into consideration the primary sources of Muslim law.

(2) Standard treatises and works on Muslim law and jurisprudence shall be given persuasive
weight in the interpretation of Muslim law.

Article 5. Proof of Muslim law and 'ada. Muslim law and 'ada not embodied in this Code shall be
proven in evidence as a fact. No 'ada which is contrary to the Constitution of the Philippines, this
Code, Muslim law, public order, public policy or public interest shall be given any legal effect.

Article 6. Conflict in Islamic schools of law.

(1) Should there be any conflict among the orthodox (Sunni) Muslim schools of law
(Madhahib), that which is in consonance with the Constitution of the Philippines, this Code,
public order, public policy and public interest shall be given effect.

(2) The Muslim schools of law shall, for purposes of this Code, be the Hanfi, the Hanbali, the
Maliki and the Shafi'i.

Article 7. Definition of terms. Unless the context otherwise provides:

(a) "Agama Arbitration Council" means a body composed of the Chairman and a representative of
each of the parties to constitute a council to take all necessary steps for resolving conflicts between
them.

(b) "Ada" means customary law.

(c) "General Register" means the General Register of marriages, divorces, revocation of divorces,
conversion and such other deeds or instruments kept by the Registrar under this Code.

(d) "Ihram" signifies the state of ritual consecration of a person while on pilgrimage to Mecca.

(e) "Madhhab" (plural, Madhahib) means any of the four orthodox (Sunni) schools of Muslim law.

(f) "Month" means a period of thirty days.

(g) "Muslim" is a person who testifies to the oneness of God and the Prophethood of Muhammad
and professes Islam.

(h) "Muslim Law" (Shari'a) refers to all the ordinances and regulations governing Muslims as found
principally in the Qur'an and the Hadith.

(i) "Muslim Personal Law" includes all laws relating to personal status, marriage and divorce,
matrimonial and family relations, succession and inheritance, and property relations between
spouses as provided for in this Code.

BOOK TWO

PERSONS AND FAMILY RELATIONS

TITLE I CIVIL PERSONALITY (SHAKHSIYAH MADANIYA)

Article 8. Legal capacity. Juridical capacity, which is the fitness to be the subject of legal relations, is
inherent in every natural person and is lost only through death. Capacity to act, which is the power
to do acts with legal effect, is acquired and may be lost.

Article 9. Restrictions on capacity. The following circumstances, among others, modify or limit
capacity to act: age, insanity, imbecility, the state of being deaf-mute, the condition of death-illness
(marad-ul-maut), penalty, prodigality, absence, family relations, alienage, insolvency, and
trusteeship. The consequences of these circumstances are governed by this Code and other Islamic
laws and, in a suppletory manner, by other laws.

Article 10. Personality, how acquired. Birth determines personality; but the conceived child shall be
considered born for all purposes that are favorable to it, provided it be born alive, however, briefly,
at the time it is completely delivered from the mother's womb.

Article 11. Extinction of personality.

(1) Civil personality is extinguished by death. The effect of death upon the rights and
obligations of a deceased person is determined by this Code, by contract, and by will.

(2) After an absence of seven years, it being unknown whether or not the absentee still
lives, he shall be presumed dead. Article 12. Simultaneous death. If, as between two or more
persons who are called to succeed each other, there is a doubt as to which of them died first,
whoever alleges the death of one prior to the other shall prove the same; in the absence of
such proof, it is presumed that they died at the same time and there shall be no
transmission of rights from one to the other. However, the successional rights of their
respective heirs shall not be affected.

TITLE II
 MARRIAGE AND DIVORCE

Chapter One

APPLICABILITY CLAUSE

Article 13. Application.

(1) The provisions of this Title shall apply to marriage and divorce wherein both parties are
Muslims, or wherein only the male party is a Muslim and the marriage is solemnized in
accordance with Muslim law or this Code in any part of the Philippines.

(2) In case of marriage between a Muslim and a non-Muslim, solemnized not in accordance
with Muslim law or this Code, the Civil Code of the Philippines shall apply.

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

Chapter Two

MARRIAGE (NIKAH)

Section 1. Requisites of Marriage

Article 14. Nature. Marriage is not only a civil contract but a social institution . Its nature,
consequences and incidents are governed by this Code and the Shari'a and not subject to
stipulation, except that the marriage settlements may to a certain extent fix the property relations
of the spouses.

Article 15. Essential requisites. No marriage contract shall be perfected unless the following
essential requisites are compiled with:

(a) Legal capacity of the contracting parties;

(b) Mutual consent of the parties freely given;

(c) Offer (ijab) and acceptance (qabul) duly witnessed by at least two competent persons after the
proper guardian in marriage (wali) has given his consent; and

(d) Stipulation of customary dower (mahr) duly witnessed by two competent persons.

Article 16. Capacity to contract marriage.

(1) Any Muslim male at least fifteen years of age and any Muslim female of the age of puberty or
upwards and not suffering from any impediment under the provisions of this Code may contract
marriage. A female is presumed to have attained puberty upon reaching the age of fifteen.

(2) However, the Shari'a District Court may, upon petition of a proper wali, order the solemnization
of the marriage of a female who though less than fifteen but not below twelve years of age, has
attained puberty.

(3) Marriage through a wali by a minor below the prescribed ages shall be regarded as betrothal
and may be annulled upon the petition of either party within four years after attaining the age of
puberty, provided no voluntary cohabitation has taken place and the wali who contracted the
marriage was other than the father or paternal grandfather.

Article 17. Marriage ceremony. No particular form of marriage ceremony is required but the ijab
and the gabul in marriage shall be declared publicly in the presence of the person solemnizing the
marriage and two competent witnesses. This declaration shall be set forth in an instrument in
triplicate, signed or marked by the contracting parties and said witnesses, and attested by the
person solemnizing the marriage. One copy shall be given to the contracting parties and another
sent to the Circuit Registrar by the solemnizing officer who shall keep the third.

Article 18. Authority to solemnize marriage. Marriage may be solemnized: (a) By the proper wali of
the woman to be wedded; (b) Upon authority of the proper wali, by any person who is competent
under Muslim law to solemnize marriage; or (c) By the judge of the Shari'a District Court of Shari'a
Circuit Court or any person designated by the judge, should the proper wali refuse without
justifiable reason, to authorize the solemnization.

Article 19. Place of solemnization. Marriage shall be solemnized publicly in any mosque, office of
the Shari'a judge, office of the District or Circuit Registrar, residence of the bride or her wali, or at
any other suitable place agreed upon by the parties.

Article 20. Specification of dower. The amount or value of dower may be fixed by the contracting
parties (marh-musamma) before, during, or after the celebration of the marriage. If the amount or
the value thereof has not been so fixed, a proper dower (mahr-mithl) shall, upon petition of the
wife, be determined by the court according to the social standing of the parties.

Article 21. Payment of dower. Subject to the stipulation of the parties, the dower may be fully or
partially paid before, during, or after the marriage. The property or estate of the husband shall be
liable for the unpaid dower, or any part thereof.

Article 22. Breach of contract. Any person who has entered into a contract to marry but
subsequently refuses without reasonable ground to marry the other party who is willing to perform
the same shall pay the latter the expenses incurred for the preparation of the marriage and such
damages as may be granted by the court.