SC affirms divorce of Muslim couple

If some people say that love is a religion in itself, does it mean it will remain regardless of the couple’s faith?

This is not the case for a Muslim couple whose talaq (divorce) has been affirmed by the Supreme Court.

In a 19-page decision, the high court en banc through Associate Justice Jose Catral Mendoza upheld a Shari’a Circuit Court (ShCC) order confirming the pronouncement of talaq (divorce) between a Muslim doctor and his former Roman Catholic now Muslim-convert wife.

The high court also affirmed the ShCC’s decision to give the wife the amount of P24,000 mut’a (consolatory gift).

However, the high court remanded to the Shari’a Circuit Court for appropriate proceedings to determine who should have the custody of the couple’s daughter.

The couple, a Muslim doctor and his wife, were married under Muslim rites in 2008. They have a daughter.

The marriage turned sour shortly after their marriage when the husband filed with the 1st ShCC in Cotabato City a petition for judicial confirmation of Talaq with a prayer for the grant of probational custody of their minor child pending resolution of the case.

READ: 3 out of 5 Filipinos want legalization of divorce – SWS survey

The husband said his wife only embraced the Islamic faith on their Muslim wedding. He said she did not truthfully submit to the Islamic faith because her moral attitude and her lifestyle remained the same.

He said he pleaded with her to follow the Islamic ways but she remained defiant. The husband said she subsequently reverted back to Christianity.

The wife, on the other hand denied the allegations and accused her husband of being totally remiss in his material and moral obligations to support her and their child, adding that he had several wives and three other children.

The 1st ShCC, Cotabato City issued an order confirming the talaq between petitioner and private respondent and awarding the custody of their minor child to the husband and ordered that he give his former wife a consolatory gift. The wife appealed the decision to the ShDC who upheld the ruling prompting her to take the case to the Supreme Court.

In its ruling, the high court partly granted the appeal filed by the wife nullifying the Sharia’h court’s order in relation to the custody and visitation of their child.

The high court said the Sharia’h Court’s award of custody of the child to the father was void because it violated the wife’s right to due process.

Court records showed that she did not receive summons on the motion for temporary custody of their child nor was there a notice of hearing.

“It is immediately evident from the face of the motion that it did not contain the notice of hearing required by the Rules of Court which has suppletory application to the present case,” the high court said.

The high court said “[t]he notice of hearing is intended to prevent surprise and to afford the adverse party a chance to be heard before the motion is resolved by the court.”

The high court added that the award of custody of the child to the father by the Sharia’h court has no evidentiary basis “because no hearing was actually conducted prior to the issuance of the order granting the urgent motion.” It added that there was no explanation given as to why the motion was resolved without notice to, or the participation of the wife.

The High Court noted that there was no express finding by the ShCC that the mother was unfit in any way, or a hint of an explanation as to why the husband was in a better position to take custody of their daughter.

The ShDC, in its ruling said the wife is not entitled to the custody of their child because she had turned apostate, and held that she would remain disqualified until she return to the Islamic faith in accordance with the Muslim Law. The High Court noted that “[i]t appears, however, that disqualification due to apostasy under the Muslim Code pertains to disinheritance under Article 93 of the Muslim Code, and not to the custody of children.