Religious differences

This is another interesting case of  battle for custody of a child between husband and wife. The general rule in this regard is to uphold the best interest of the child. Custody became an issue here because the parents belong to different religions, the father being a Muslim and the mother, a Catholic. This is the case of Alma and Ahmed.

Alma was a registered nurse working in a hospital in Southern Mindanao when she first met Ahmed, a doctor of medicine working in the same hospital. Since their work complete and complement each other, they met oftentimes while doing their jobs and immediately fell in love with each another. Their relationship eventually bore fruit as Alma gave birth to a baby girl whom they named Alana.

Since birth, Alma took care and raised Alana on her own until she was six years old even when Ahmed decided to marry her under Muslim rites and when she embraced the Islamic faith. In fact, shortly after their marriage, problems already arose between the couple. Alma could not immediately change and adapt the moral attitude and social lifestyle of Muslims particularly about Muslim men having several wives. So despite Ahmed’s pleas for her to accept and remain faithful to the ways of Islam, Alma remained defiant especially after learning the Ahmed had three other wives with three other children.  This was aggravated by Ahmed’s being so busy in his profession as he had other families to take care and had been remiss in his obligation to support her and Alana.

So, not long after their wedding, Alma went to Manila and brought Alana with her without the knowledge and consent of Ahmed. A few months later, she reverted to Christianity and taught Alana how to practice Christianity by enrolling her in a Catholic school.

Two years thereafter, Ahmed went to visit Alma and Alana in Manila. Alma agreed to give custody of Alana to Ahmed with the understanding that he would bring her back the following day. But when Alma went with her cousin to fetch her daughter, Ahmed threatened to kill them. Thus Alma had to file a complaint-affidavit with the NBI for kidnapping and failure to return a minor. On the other hand, Ahmed filed with the Sharia Court a petition for divorce known as Talaq pursuant to Muslim Code (PD 1083) or the confirmation of the repudiation of the wife by the husband. In the same petition he prayed for the temporary custody of Alana pending resolution of the case because of the irreconcilable religious differences between the spouses as to the upbringing of their daughter in the economic, social and religious aspects of life. Ahmed claimed that in Shari’a law, a mother might be legally disentitled to the custody of her child if she turned apostate and disqualified until she returned to the Islamic faith, and that the father as a Muslim was in a better position to take care of the child’s well being and raise her as a Muslim.

After just two days, and before Alma could file her answer,  the Shari’a Court granted Ahmed’s motion. The Court deemed it proper for Alana to stay with the father because of his social, financial and religious standing and considering that she was then already under his custody; that he raised her a a good Muslim daughter as evidenced by her appearance and that their parents were married under Muslim rites. Eventually the Court granted the divorce, confirming the petition for Talaq, awarding permanent custody of Alana to Ahmed and ordering him to give a consolatory gift of P24,000 to Alma.

Alma questioned this ruling before the Supreme Court in a petition for certiorari. She contended                                   that Ahmed only filed his petition for Talaq when she discovered that she had filed a complaint-affidavit before the NBI; that he had been totally remiss in his material and moral obligation to support her and Alana; that he was unfit to take care of Alana as his numerous wives had been confusing the child; that she was a registered nurse who could provide for all the needs of Alana and who in fact had cared for her from birth until she was six years old and sent her to an exclusive school all without the assistance of Ahmed. Was Alma correct?

The Supreme Court said that Alma is correct in so far as the ruling on the custody of Alana is concerned. In the first place, there is no factual and legal basis on which the ruling awarding custody to Ahmed was based. On the other hand the disqualification due to apostasy under the Muslim Code pertains to disinheritance and not to custody of children. And most of all, under Article 54 of the Muslim Code, the custody of children shall be determined in accordance with Article 78 of the Code. And Article 78 provides that the care and custody of children below seven whose parents are divorced shall belong to the mother, and the minor above seven but below the age of puberty may chose the parent with whom he/she wants to stay. Since Alana is only six years old, custody belongs to Alma (Mendez vs. Shai’a District Court etc and Maliga, G.R. 201614, January 17, 2016)

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