Atty. Julius Gregory Delgado
CONVERSION TO ISLAM NOT A GUARANTEE AGAINST PROSECUTION FOR BIGAMY:MALAKI, ET AL. VS. PEOPLE, G.R. NO. 221075 (15 NOVEMBER 2021)
The complainant, Nerrian Maningo-Malaki (Nerrian), claims that on March 26, 1988, she and Francis were married under the religious rites of Iglesia ni Cristo in Panabo City, Davao del Norte. They begot two children. In 2005, Francis left the family home for Tagum City to find a job. He later abandoned their family. Nerrian discovered that he was cohabiting with Jacqueline and that they contracted marriage on June 18, 2005, solemnized by a Municipal Trial Court judge. Francis and Jacqueline admitted that they got married while Francis’ marriage to Nerrian was subsisting. However, they claimed that they could not be penalized for Bigamy as they converted to Islam prior to their marriage. In its May 7, 2012 Decision, the Regional Trial Court found Francis and Jaqueline guilty beyond reasonable doubt of Bigamy. The Court of Appeals affirmed the decision of the trial court, hence, the petition for review with the Supreme Court.
The Supreme Court affirmed the rulings of the trial court and the appellate court. Article 349 of the Revised Penal Code penalizes the act of contracting a second or subsequent marriage before the former marriage has been legally dissolved, or before the absent spouses has been declared presumptively dead by means of a judgment rendered in the proper proceedings. Its elements are the following: (1) that the offender has been legally married; (2) that the first marriage has not been legally dissolved or, in case his or her spouse is absent, the absent spouse could not yet be presumed dead according to the Civil Code; (3) that he contracts a second or subsequent marriage; and (4) that the second or subsequent marriage has all the essential requisites for validity.
In the instant case, the accused maintains that they have converted to Islam and the Muslim Code provides them protection from prosecution for the crime of Bigamy. The Supreme Court held that it is not applicable to the accused. The Supreme Court held that Article 13 (2) of the Muslim Code explicitly provides that the Civil Code (superseded by the Family Code on family relations) governs marriages where either party is non-Muslim and which were not solemnized in Muslim rights. The Court held that Francis’ marriage to his first wife, Nerrian, its nature, consequences and incidents, still falls within the ambit of the Civil Code, and its counterpart penal provisions in the Revised Penal Code. The Court also underscored that Article 3 of the Muslim Code states that the provisions of the law should not be construed to prejudice non-Muslim.
Article 27 of the Muslim Code provides that, “Notwithstanding the rule of Islamic law permitting a Muslim to have 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.” Article 162 of the Muslim Code outlines 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 following steps, which Francis was found not to have complied with in his subsequent marriage with Jacqueline, for the subsequent marriage to be valid are as follows: (1) the Muslim husband must first notify the Shari’a Circuit Court, where his family resides, of his intent to contract a subsequent marriage; (2) the clerk of court shall then serve a copy to the wife or wives; (3) if any of them objects, the Muslim Code mandates the constitution of the Agama Arbitration Council, which shall hear the wife; and (4) the Shari’a Circuit Court decides whether to sustain the wife’s objection.
Hence, the consent to the wife is required, 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. Hence, Francis could not invoke the exculpatory provision of the Muslim Code, particularly Article 180 thereof, since it only exempts from the charge of bigamy a Muslim husband who subsequently marries “in accordance with the provisions of the Law (Muslim Code).” The Court sustained the findings of the trial court and the appellate court that Francis failed to comply with the formal requisites with respect to his subsequent marriage to Jacqueline.