AN ANALYSIS OF THE LEGAL IMPLICATIONS OF MALAKI V. PEOPLE OF THE PHILIPPINES ON POLYGYNY UNDER THE CODE OF MUSLIM PERSONAL LAWS OF THE PHILIPPINES

Abstract

This article, using case analysis, examines the legal implications of polygyny under the Code of Muslim Personal Laws of the Philippines of the case of Francis D. Malaki and Jacqueline Mae Salanatin-Malaki v. People of the Philippines, G.R. No. 221075, November 15, 2021, which not only affirmed the settled doctrine - that the non-Muslim male party to a subsisting civil marriage who converts to Islam and subsequently marries another woman in accordance with the Code of Muslim Personal Laws of the Philippines commits the crime of bigamy - but also suggests a novel proposition that a Muslim husband who contracts a subsequent marriage without the consent of the wife or permission of the Shari’ah court in case of wife’s refusal to consent is also bigamous; therefore, the subsequent marriage is void from the beginning under the Family Code of the Philippines and penalised as a crime under the Revised Penal Code of the Philippines. After analysing the case, this article concludes that the subsequent marriage of a Muslim husband who has subsisting Muslim marriage should not constitute the crime of bigamy, as there is no legal framework in the Qur’an or Sunnah which requires the consent of the wife for the Muslim husband to contract a subsequent marriage. It further concludes that this novel doctrine should be treated as an obiter dictum to avoid its practical effect of criminalising what the Qur’an and Sunnah have made legal and permissible. Nonetheless, existing legal provisions against abuse of the privilege to contract subsequent marriage may be enhanced.