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Home > CaseLaws > Mohamaed Habibullah Mahmood v Faridah Dato Talib [1992] 2
MLJ 793:
Mohamaed Habibullah Mahmood v Faridah Dato Talib
[1992] 2 MLJ 793:
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MOHD. HABIBULLAH MAHMOOD v. FARIDAH BT. DATO
TALIB
SUPREME COURT, KUALA LUMPUR
TAN SRI DATO HARUN BIN MAHMUD HASHIM TAN SRI DATO
HJ. MOHD AZMI BIN DATO HJ. KAMARUDDIN TAN SRI DATUK
GUNN CHIT TUAN SCJJ
[SUPREME COURT CIVIL APPEAL NO. 02-441-89]
15 DECEMBER 1992

Perintah injunksi interim dibubarkan.

JUDGMENT
Harun Bin Mahmud Hashim SCJ:
This was an application in the High Court to set aside an ex-parte interim injunction
and another application to strike out the plaintiffs writ and statement of claim. Both
applications were heard together when the Courts jurisdiction was challenged. The
learned Judge determined that the following questions were before the Court:
(a) whether the Court has jurisdiction to adjudicate on the plaintiffs action since it
involves a matter which falls exclusively within the jurisdiction of the Syariah Court;
and (b) whether the plaintiff could institute the present action against the
defendant when s. 9(2) of the Married Women Ordinance 1957 prohibited a wife
from suing her husband in tort.
In the event the learned Judge held that he had jurisdiction and that s. 9(2) of the
Married Women Ordinance did not apply. The defendant appeals against these
rulings. The applications proper have yet to be heard on the merits.
The plaintiff and defendant are Muslims. They were married on 5 August 1965 at
Batu Pahat in the State of Johor which marriage was registered by the Jabatan
Agama Johor on 9 August 1965 . On 3 March 1989 the plaintiff (wife) petitioned for
divorce in the Syariah Court of Kuala Lumpur. The hearing of the divorce petition
was pending at the material time.
The plaintiff alleges that during the course of her marriage she was battered by her
husband on numerous occasions. On 14 February 1989 she filed a Writ of Summons
in the High Court at Kuala Lumpur and claimed the following reliefs:
(i) damages and/or aggravated damages for acts of assault and battery committed
by the defendant against the plaintiff and the members of their family. (ii) an
injunction to restrain the defendant by himself, his servant, agent or otherwise
howsoever from assaulting, harassing, molesting or interfering, calling and
harassing by telephone calls, coming to the plaintiffs compound at any time of the
day with the intention of seeing the plaintiff, approaching the plaintiff or trying to
see the plaintiff or talk to the plaintiff, abusing or insulting the plaintiff by word or
action in any manner, way-laying the plaintiff at any place and using physical force
on the plaintiff, interfering or harassing or in any manner disturb any person or
persons, relatives and friends safeguarding the plaintiffs safety; and until further
order; (iii) costs of this action; and (iv) further and/or any other relief as this
Honourable Court deems fit to award.
At the same time she filed an ex-parte summons-inchambers praying for a
temporary injunction to restrain the defendant from inter alia assaulting, harassing
or molesting her and members of her family. On 15 February 1989 when the ex-
parte summons came on for hearing, the defendant appeared and gave an oral
undertaking that he would not assault, harass or molest the plaintiff. The learned
Judge therefore made no order and adjourned the matter sine die. However, on 12
April 1989, the solicitor for the plaintiff filed an affidavit complaining that the
defendant continued to harass the plaintiff and requested the Court to restore the
plaintiffs application for an interim injunction which application the learned Judge
granted ex-parte on 11 April 1989 with liberty to the defendant to set it aside.
On 21 April 1989 the plaintiff filed her statement of claim. On 28 April 1989 the
defendant filed a notice of motion to set aside the temporary injunction. On 12 May
1989 the defendant took out a summons-inchambers to strike out the plaintiffs writ
and statement of claim under O. 18 r. 19(1) of the Rules of the High Court 1980.
Both applications eventually came on for hearing on 30 August 1989.
Article 121 of the Federal Constitution states:
(1) There shall be two High Courts of co-ordinate jurisdiction and status, namely -
(a) one in the States of Malaya, which shall be known as the High Court in Malaya
and shall have its principal registry in Kuala Lumpur; and (b) one in the Borneo
States, which shall be known as the High Court in Borneo and shall have its
principal registry at such place in the Borneo States as the Yang di- Pertuan Agong
may determine;
and such inferior Courts as may be provided by federal law; and the High Courts
and inferior Courts shall have such jurisdiction and powers as may be conferred by
or under Federal law.
But Article 121(1A) which came into effect on 10 June 1988 provides:
The Courts referred to in Clause (1) shall have no jurisdiction in respect of any
matter within the jurisdiction of the Syariah Courts.
Section 23(1) of the Courts of Judicature Act 1964 confers general jurisdiction on
the High Court to try all civil proceedings. It follows that the High Court has
jurisdiction to try an action in tort claiming damages for assault and battery, and
consequently to grant an injunction to restrain the defendant from assaulting,
harassing, molesting the plaintiff.
The first question then is whether on the facts of this case the Syariah Court has
jurisdiction so as to oust the jurisdiction of the High Court under Article 121(1A).
In deciding that he had jurisdiction, the learned Judge said:
Since the plaintiff here is seeking for redress against an actionable wrong
committed against her person it cannot therefore be said that the actionable wrong
complained of fall exclusively within the jurisdiction of the Syariah Court when the
legislature of a State has no power to enact law relating to such matter.
Furthermore a cursory glance at the Selangor Administration of Muslim Law
Enactment 1952 is sufficient to convince me that such an actionable wrong as
pleaded by the plaintiff is not within the jurisdiction of the Syariah Court see s.
45(3) of the Enactment. Likewise such an actionable wrong is also excluded from
the Selangor Islamic Family Law Enactment 1984.
For the above reasons I have no hesitation, on the authority of Ali Mat v.
Jamaliah [1974] 1 MLJ 18, in holding that this Court has jurisdiction to entertain the
action of the plaintiff.
It is obvious that the intention of Parliament by Article 121(1A) is to take away the
jurisdiction of the High Courts in respect of any matter within the jurisdiction of the
Syariah Court: Dalip Kaur v. Pegawai Polis Daerah Bukit Mertajam & Anor. [1992] 1
MLJ @ 7 SC . I am therefore of the opinion that when there is a challenge to
jurisdiction (as here) the correct approach is to first see whether the Syariah Court
has jurisdiction and not whether the State Legislature has power to enact the law
conferring jurisdiction on the Syariah Court. The validity of a State Law can only be
questioned in a separate proceeding under Article 4(3) of the Federal Constitution
(which in so far as it is relevant) provides:
The validity of any law made by the Legislature of any State shall not be
questioned on the ground that it makes provision with respect to any matter to
which the Legislature of the State has no power to make laws, except in
proceedings for a declaration that the law is invalid on that ground
(Emphasis added)
And by Article 4(4) read with Article 128, only the Supreme Court may declare any
such law invalid in the proceedings referred to in Article 4(3).
In the present case s. 45(3) of the Selangor Administration of Muslim Law
Enactment 1952 referred to by the learned Judge states:
The Court of the Kathi Besar shall -
(a) in its criminal jurisdiction, try any offence committed by a Muslim and
punishable under this Enactment, and may impose any punishment therefor
provided; (b) in its civil jurisdiction, hear and determine all actions and proceedings
in which all the parties profess the Muslim religion and which relate to -
(i) betrothal, marriage, divorce, nullity of marriage, or judicial separation, (ii) any
disposition of, or claim to, property arising out of any of the matters set out in sub-
paragraph (i) of this paragraph, (iii) maintenance of dependants, legitimacy,
guardianship or custody of infants, (iv) division of, or claims to, sapencharian
property.
The Selangor 1952 Enactment (which applied to Kuala Lumpur before it became a
Federal Territory) has since been replaced by the Selangor Administration of Islamic
Law Enactment 1989 with effect from 14 September 1989 but parts of it continue
to apply to Kuala Lumpur whilst other parts of the 1952 Enactment have been
superseded by the Islamic Family Law (Federal Territory) Act 1984. The jurisdiction
of the Kuala Lumpur Syariah Court in this appeal is conferred by s. 45(3) of the
1952 Enactment.
Section 2 of the Syariah Courts (Criminal Jurisdiction) Act 1965 provides -
The Syariah Courts duly constituted under any law in a State and invested with
jurisdiction over persons professing the religion of Islam and in respect of any of
the matters enumerated in List II of the State List of the Ninth Schedule to the
Federal Constitution are hereby conferred jurisdiction in respect of offences against
precepts of the religion of Islam by persons professing that religion which may be
prescribed under any written law.
Provided that such jurisdiction shall not be exercised in respect of any offence
punishable with imprisonment for a term exceeding three years or with any fine
exceeding five thousand ringgit or with whipping exceeding six strokes or with any
combination thereof.
The Islamic Family Law (Federal Territory) Act 1984 provides:
Injunction against molestation
Section 107(1) The Court shall have power during the pendency of any matrimonial
proceedings or on or after the grant of an order of divorce, fasakh, or annulment,
to order any person to refrain from forcing his or her society on his or her spouse or
former spouse and from other acts of molestation. (2) Failure to comply with an
order made under this section shall be punishable as a contempt of Court.
Ill-treatment of wife
Section 127. Any person who ill-treats his wife or cheats his wife of her property
commits an offence and shall be punished with a fine not exceeding one thousand
ringgit or with imprisonment not exceeding six months or with both such fine and
imprisonment.
Failure to give proper justice to wife
Section 128. Any person who fails to give proper justice to his wife according to
Hukum Syara commits an offence and shall be punished with a fine not exceeding
one thousand ringgit or with imprisonment not exceeding six months or with both
such fine and imprisonment.
It is true that the Syariah Court has not been conferred with jurisdiction, exclusive
or otherwise, to try an actionable wrong committed against the person as set out
by the learned Judge but the parties in the instant case are Muslims, they are
husband and wife and the allegations of assault and battery occurred during
marriage. A divorce petition is pending. The acts complained of by the plaintiff fall
within s. 127 of the Islamic Family Law Act and the Syariah Court has power to
grant an injunction as claimed by the plaintiff under s. 107 of that Act. There
cannot be any doubt that the Syariah Court has been conferred with jurisdiction in
respect of matters before the High Court in the present case.
With respect, I think that the learned Judge in arriving at his decision fell into the
error of isolating and treating the allegations of assault and battery as an actionable
wrong simpliciter (which is clearly within the jurisdiction of the High Court) without
regard to the fact that this is a matter for Islamic Family Law within the jurisdiction
of the Syariah Court. It seems to me that the learned Judge was under the
impression that if the High Court did not give a remedy the wife would not have any
remedy.
In Ali Mat Khamis v. Jamaliah Kassim [1974] 1 MLJ 18, the question was whether a
matter involving harta sapencharian should be heard in the Court of the Kathi
Besar or the High Court. There, the Negeri Sembilan Administration of Muslim Law
Enactment 1960 provides in s. 41(3)(b)(iv) that the Court of the Kathi Besar shall
in its civil jurisdiction, hear and determine all actions and proceedings in which all
parties profess the Muslim Religion and which relate to division inter vivos of
sapencharian property. The learned Judge in that case held:
short of specific words to that effect, the above provision of the Negeri Sembilan
enactment was not intended to take away the jurisdiction in civil matters given to a
High Court by s. 23 of the Courts of Judicature Act 1964 (Act 91) .
That case was decided in 1973. I am of the view that if such a question is to be
decided today, the answer would be that the jurisdiction of the High Court has
indeed been taken away by Article 121(1A) of the Constitution. During the course
of argument we were referred to the Penang case of Shahamin Faizul Kung
Abdullah v. Asma Hj. Junus [1991] 3 CLJ 723 which was concerned with the
custody of a male child six years of age. The father of the child (whose mother had
died) claimed custody of the child who was in the care of the childs maternal
grandmother. The parties are Muslims and a preliminary objection was taken that
the High Court had no jurisdiction by virtue of Article 121(1A) of the Constitution as
the jurisdiction had been conferred on the Court of the Kathi Besar by the Penang
Administration of Muslim Law Enactment 1959 which by s. 40(3)(b) provided:
(3) the Court of the Kathi Besar shall -
(b) in its civil jurisdiction, hear and determine actions and proceedings in which all
the parties profess the Muslim Religion and which relate to:
(iii) maintenance of dependants, legitimacy, guardianship or custody of infants
At p. 2225 the learned Judge in that case said:
The Courts of Judicature Act , except for s. 5 came into force on 16 March 1964.
Section 5 came into force on 16 September 1964. But Article 121(1A), as I have
already noted, came into force only as recently as 10 June 1988 by virtue of Act
A704. In other words, it was not in force at the date of the commencement of the
Courts of Judicature Act. Therefore, by virtue of s. 4 of the Courts of Judicature Act
, ss. 23 and 24 thereof would, in my opinion, still prevail to confer jurisdiction on
this Court to hear the present application. It would have been otherwise if Article
121(1A) had been enacted with retrospective effect so as to have been in force at
the date of commencement of the Court of Judicature Act .
After making reference to Article 4(1) of the Constitution which provides:
This Constitution is the supreme law of the Federation and any law passed after
Merdeka Day which is inconsistent with this Constitution shall, to the extent of the
inconsistency, be void.
and the interpretation of that Article in Phang Chin Hock v. Public Prosecutor [1979]
1 LNS 67, the learned Judge concluded:
Section 4 of the Courts of Judicature Act , in my view, is a provision affecting the
Constitution because its effect is to render ineffective amendments to the
Constitution pertaining to the jurisdiction of the High Courts made after the date of
its commencement unless made with retrospective effect.
In short, what the learned Judge there says is that the Constitutional amendment
resulting in Article 121(1A) has not achieved the desired objective of Parliament in
taking away the jurisdiction of the High Courts where the Syariah Courts have been
conferred with jurisdiction in any matter because of the effect of s. 4 of the Courts
of Judicature Act . That section provides:
Provision to prevent Conflict of laws
In the event of inconsistency or conflict between this Act and any other written law
other than the Constitution in force at the commencement of this Act, the
provisions of this Act shall prevail.
The Courts of Judicature Act 1964 repealed and replaced in part, the Courts
Ordinance 1948 which consolidated the law relating to the constitution and powers
of the Civil and Criminal Courts, viz. the Supreme Court (consisting of the Court of
Appeal and the High Court), the Sessions Courts, the Magistrates Courts and the
Penghulus Courts. The 1964 Act separated the Superior Courts from the
Subordinate Courts and makes provisions for the High Court and the Supreme
Court. The remaining parts of the 1948 Ordinance is now the Subordinate Courts
Act 1948 and provides for the Sessions Courts, the Magistrates Courts and the
Penghulus Courts.
Section 109 of the 1948 Ordinance which applied to all Courts until 1964 provided:
In the event of inconsistency or conflict between the provisions of this Ordinance
and the provisions of any written law in force at the commencement of this
Ordinance, the provisions of this Ordinance shall prevail.
This provision is retained in the present Subordinate Courts Act(s. 109) as follows:
In the event of inconsistency or conflict between this Act and any other written law
in force at the commencement of this Act, the provisions of this Act shall prevail.
Section 4 of the Courts of Judicature Act is actually a reproduction or continuation
of s. 109 of the 1948 Ordinance with the addition of the words:
other than the Constitution
It will be observed that although the 1948 Ordinance was revised in 1972 and
retitled the Subordinate Courts Act 1948 no change was made to s. 109 even
though s. 4 of the Courts of Judicature Act had been in existence in 1964. I do not,
however, think that this distinction makes any difference to the effect of s. 4 of the
Courts of Judicature Act . The intention of Parliament in adding the words other
than the Constitution in that section is to exclude the Constitution since the
Constitution is the Supreme Law of the land under Article 4(1). I do not, therefore,
see how s. 4 of the Courts of Judicature Act can render the constitutional
amendment ineffective. For that matter, no Act of Parliament however precisely
worded can nullify a provision of the Constitution. I accordingly hold that the words
in force at the commencement of this Act
do not refer to the Constitution but to laws made before 1 January 1949.
In stating that s. 4 is a provision affecting the Constitution, the learned Judge
referred to a passage in Phang Chin Hocks case at p. 72 which said:
In our judgment, in construing Article 4(1) and Article 159, the rule of harmonious
construction requires us to give effect to both provisions and to hold and we
accordingly hold that Acts made by Parliament, complying with the conditions set
out in Article 159, are valid even if inconsistent with the Constitution, and that a
distinction should be drawn between on the one hand Acts affecting the
Constitution and on the other hand ordinary laws enacted in the ordinary way. It is
federal law of the latter category that is meant by law in Article 4(1); only such law
must be consistent with the Constitution.
With respect to the learned Judge, I hold that the Courts of Judicature Act is a
federal law of the latter category. Acts of Parliament which are inconsistent with the
Constitution and therefore Acts affecting the Constitution referred to in that
passage are Acts enacted under the special provisions of Article 159. The Courts of
Judicature Act is enacted under Article 121(1). It follows that the Courts of
Judicature Act is not an Act affecting the Constitution and in my opinion there is no
necessity to make Article 121(1A) retrospective in effect in order to nullify the
effect of s. 4 of the Courts of Judicature Act as construed by the learned Judge.
Taking an objective view of the Constitution, it is obvious from the very beginning
that the makers of the Constitution clearly intended that the Muslims of this country
shall be governed by Islamic Family Law as evident from the Ninth Schedule to the
Constitution: see Item 1 of the State List:
Muslim Law and personal and family law of persons professing the Muslim religion
the constitution, organisation and procedure of Muslim Courts the
determination of matters of
Muslim Law and doctrine and Malay custom.
Indeed that Muslims in this country are governed by Islamic personal and family
laws has been in existence with the coming of Islam to this country in the 15th
Century. Such laws have been administered not only by the Syariah Courts but also
by the Civil Courts. What Article 121(1A) has done is to grant exclusive jurisdiction
to the Syariah Courts in the administration of such Islamic Laws. In other words,
Article 121(1A) is a provision to prevent conflicting jurisdictions between the Civil
Courts and the Syariah Courts.
Mr. Sidhu also raised the point that the plaintiff had by a Statutory Declaration
affirmed on 12 April 1989 renounced Islam and therefore the Syariah Court ceased
to exercise jurisdiction over her. This aspect of the matter was brought to the
attention of the Kathi of Petaling Jaya who reported on 10 May 1989 to the Director
of the Jabatan Agama Islam Selangor that the plaintiff had retracted her
renunciation of Islam before him. As such she is still a Muslim and Mr. Sidhus
argument fails.
The second question here which was pleaded as an alternative to the first question,
is the effect of s. 9(2) of the Married Women Ordinance 1957 which provides:
Remedies of married women for protection and security of separate
property
Except for the protection or security of his or her property no husband or wife shall
be entitled to sue the other for a tort.
The learned Judge held that this section did not apply
as the plaintiffs action is grounded on criminal offences committed or threatened to
be committed against her.
The rule that a married couple cannot sue each other in tort is derived from the
Common Law of England where it was held that marital status made the husband
and wife one person in the eye of the law and therefore a suit by one against the
other is like suing oneself. This common law rule has since been removed by the
(UK) Law Reform (Husband and Wife) Act 1962 and each of the parties to a
marriage has the same right of action in tort against the other as if they were not
married. But our law still stands.
Tort is an injury or wrong committed with or without force to the person or
property of another.
Section 10 of the Civil Law Act 1956 provides:
(1) Where damage is suffered by any person as a result of a tort (whether a crime
or not).
(4) Nothing in this section shall (a) affect any criminal proceedings against any
person in respect of any wrongful act;
The cause of action in the present case is clearly a tort. If the allegations of assault
and battery can be proved, this may be the subject of criminal proceedings against
the defendant but this fact stands independently from an action in tort. As the
plaintiff and defendant are husband and wife and the allegations of assault and
battery constituting the tort are not related to the protection or security of
property, the plaintiff is barred by s. 9(2) of the Married Women Ordinance from
suing the defendant. Section 9(2) therefore applies and the High Court is in error in
deciding that it did not.
For the reasons stated, I hold that on the facts of this case, the High Court has no
jurisdiction to adjudicate on the plaintiffs claim for damages for assault and battery
against her husband and to the grant of an injunction arising therefrom. I would
allow the appeal with costs here and below. The rulings of the learned Judge are
reversed. The order of interim injunction is dissolved and the application to strike
out the writ and statement of claim be allowed.
Deposit to be refunded to the appellant.
Hj Mohd Azmi SCJ: The crucial issue of jurisdiction in this appeal arises on an
application by the appellant to set aside an ex-parte interlocutory injunction
granted to his wife (the respondent) on 13 February 1989 and on another
application by him to strike out her statement of claim under O. 18 r. 19, RHC
1980. It is not in dispute that after applying for dissolution of her marriage in the
Kuala Lumpur Syariah Court under the Islamic Family Law (Federal Territory) Act
1984, and whilst waiting for a date of hearing to be fixed, the respondent
(hereinafter referred to as Faridah ) has taken another course of action by
filing a writ action in the Kuala Lumpur High Court against the appellant
(hereinafter referred to as Habibullah) in which she is claiming for damages and
injunction for acts of assault and battery allegedly committed by Habibullah against
her. It is the argument of Counsel for Habibullah, both here and in the court below
that the High Court has no jurisdiction to hear Faridah s claim, nor issue the
interlocutory injunction because both parties to the proceedings are Muslims, and
the proceedings relate to Islamic Family Law, and as such only the Syariah Court
has jurisdiction to hear the claim by virtue of the new clause (1A) of Article 121 of
the Federal Constitution. Alternatively, it is also contended that Faridah s claim
against her husband in tort is prohibited by s. 9(2) of the Married Act 1957 .
In both applications to strike out and to set aside the ex-parte injunction, the legal
argument was heard jointly by the learned Judge as preliminary points of law by
way of objection to the jurisdiction of the High Court. The two issues are as follows:
(1) Whether the High Court has jurisdiction to adjudicate on Faridah s action
since it involves a matter which falls exclusively within the jurisdiction of the
Syariah Court, and (2) whether Faridah can institute the present action against
Habibullah when s. 9(2) of the Married Women Act 1957 prohibits a wife from suing
her husband in tort.
The learned Judge dismissed the objection and ordered the Senior Assistant
Registrar to fix a date for the hearing of both applications on the merits. The sealed
order of the High Court dated 14 October 1989 reads:
IT IS HEREBY ORDERED that this Honourable Court has jurisdiction to deal with the
plaintiffs action, and IT IS FURTHER ORDERED that s. 9(2) of the Married Women
Ordinance 1957 is not applicable AND IT IS LASTLY ORDERED that leave to appeal
is granted.
Dealing with the constitutional argument first, the amended clause (1) of Article
121 provides that there shall be two High Courts of co-ordinate jurisdiction and
status, namely the High Court in Malaya and the High Court in Borneo. This is
followed by a new clause (1A) which was inserted by s. 8(c) of the Constitution
(Amdt.) Act 1988 (Act A704) with effect from 10 June 1988 in the following terms:
The courts referred to in clause (1) shall have no jurisdiction in respect of any
matter within the jurisdiction of the Syariah Courts.
(Emphasis supplied)
The learned Judge construed Article 121 clause (1A) as a provision which excludes
the jurisdiction of the High Court of any matter falling within the jurisdiction of the
Syariah Court. At p. 4 of his judgment he states:
In considering the constitutional issue, it is necessary to examine whether the
action of the plaintiff falls within the jurisdiction of the Syariah Court. If it does then
by virtue of s. 8(c) of the Constitution (Amdt.) Act 1988, this court shall have no
jurisdiction in respect of any matter within the jurisdiction of the Syariah Court. In
this connection it is important to identify the cause of action of the plaintiff from the
statement of claim.
Thus, the learned Judge construed clause (1A) correctly and he certainly
appreciated the importance of identifying Faridah s cause of action in the
statement of claim. If it falls within the jurisdiction of the Syariah Court, then that
court has exclusive jurisdiction. It should be noted that in civil matters, apart from
general jurisdiction under s. 23 of the Courts of Judicature Act 1964 , a Judge
sitting in the High Court, can exercise a variety of specific jurisdiction under s. 24 .
Depending on the nature of the case before him the Judge may for instance be
sitting as a Bankruptcy Judge, a Probate Judge, or a Family Court Judge exercising
jurisdiction in divorce and matrimonial causes, guardianship of infants and so on.
In Beard v. Beard [1946] P. 8, although the English Court of Appeal was dealing
with the doctrine of condonation in relation to fresh matrimonial wrong or
misconduct, Scott LJ at p. 11 discussed the meaning of the term matrimonial
offence, thus,
It is said by the one side that matrimonial offence means only such a breach of
matrimonial duty as will entitle and, perhaps, require the Divorce Court to grant a
decree to the aggrieved spouse, and that no degree of matrimonial breach of duty,
short of what calls for such a decree, can constitute a matrimonial offence within
the meaning of the decisions. Their argument is based on the contention that the
word offence correctly construed carries their meaning. The other side reply that
the word offence has no statutory force, and is merely a word used
compendiously in the cases to cover any matrimonial wrongdoing, whether any
decree could or could not be based on the particular wrongdoing in fact established.
The dispute has thus seemed to turn on a problem of interpreting a judicial phrase.
I think the boarder viewpoint is the sounder and that it would be fallacious to limit
the argument of principle of any such verbal and restrictive interpretation of a
convenient judicial phrase.
From the statement of claim and ex-parte summons for interlocutory injunction, the
present dispute is clearly between a Muslim married couple where the wifes
petition for dissolution of marriage is still pending in the Syariah Court. The
subsequent claim in the High Court for damages and injunction are based on
alleged acts of assault and battery by the husband arising from or connected with
the petition for dissolution of marriage in the Syariah Court. It is pertinent to refer
to the basis of Faridah s claim for damages and injunction under para 4 which
alleges:
4.During the course of marriage between the plaintiff and the defendant, the
defendant had battered the plaintiff on numerous occasions.
(Emphasis supplied)
Thus, the root of her complaint relates to the conduct of Habibullah as a husband
during the course of a Muslim marriage. It is not really a civil or criminal matter
simpliciter as suggested by the trial Judge. In fact and in law the alleged assault
and battery constitute matrimonial offence or misconduct by Habibullah which may
entitle Faridah to a dissolution of her marriage under Muslim law as enacted in
the Islamic Family Law (Federal Territory) Act 1984. Under s. 52(1)(h)(i) of the Act,
a woman married in accordance with Hukum Syara shall be entitled to obtain an
order for the dissolution of marriage or fasakh if the husband treats her with
cruelty, that is to say inter alia, habitually assaults her or makes her life miserable
by cruelty of conduct. Since the complaint relates to marriage, the matter should if
at all be dealt with by the Court in its matrimonial and not in its general civil
jurisdiction.
In support of her application in the High Court for interlocutory injunction,
Faridah admitted in para eight of her affidavit dated 11 February 1989 that her
application was made after she had filed divorce papers in the Syariah Court and
was then waiting for a hearing date. Once the parties have submitted themselves to
the jurisdiction of the Syariah Court, and once the Syariah Court has taken
cognisance of the matrimonial cause on the ground of the husbands misconduct, it
would in my view be an abuse of process under para (d) of O. 18 r. 19 of RHC 1980
for Faridah to go to the High Court and complain over the same misconduct.
Lord Diplock in Hunter v. Chief Constable of the West Midlands Police & Ors. [1982]
AC 529 at 536 had this to say:
My Lords, this is a case about abuse of the process of the High Court. It concerns
the inherent power which any court of justice must possess to prevent misuse of its
procedure in a way which, although not inconsistent with the literal application of
its procedural rules, would nevertheless be manifestly unfair to a party to litigation
before it, or would otherwise bring the administration of justice into disrepute
among right-thinking people. The circumstances in which abuse of process can arise
are very varied; those which give rise to the instant appeal must surely be unique.
It would, in my view, be most unwise if this House were to use this occasion to say
anything that might be taken as limiting to fixed categories the kinds of
circumstances in which the court has a duty (I disavow the word discretion) to
exercise this salutary power.
Applying the above principle, it is difficult to imagine how the administration of
justice can be served if the parties are allowed to abuse the process of the Court by
hopping from one jurisdiction to another over the same subject matter. There is no
suggestion by anyone both here and in the court below that the High Court has the
jurisdiction to alter the matrimonial status of Faridah either by divorce or
dissolution of her Muslim marriage under s. 24 of the Courts of Judicature Act 1964
. If not for anything else the application under O. 18 r. 19 ought to have been
allowed forthwith on the ground of prejudice and unfairness to Habibullah in the
proceedings pending against him in the Syariah Court.
In England, the jurisdiction of, and the law applied by the Probate, Divorce and
Admiralty Division, sitting in divorce is purely statutory, but by the combined effect
of s. 6 of the Matrimonial Causes Act 1857, of the Judicature Acts and of s. 21 of
the Supreme Court of Judicature (Consolidation) Act 1925, the whole of the
matrimonial jurisdiction of the ecclesiastical courts is now vested in it (see
judgment of Scott, LJ in Beard v. Beard at p. 12). In this country as far as Islamic
Family Law is concerned, the reverse appears to be taking place though not of
similar historical events.
In Ramah binti Taat v. Laton binti Malim Sutan [1925- 1938] Vols. 5-6, FMSLR
128, the main issue before the Supreme Court was whether the principle of Islamic
Law on what is now known as Harta Sepencarian had application in the case.
Thorne J. delivering the majority judgment held that Islamic Law is not a foreign
law but a local law, and in the course of his judgment, he addressed his opinion to
the then Colonial Government in these words:
It is perhaps not out of place for me to remark that the time has now arrived when
the attention of the executive might well be drawn to the existing state of the law
as affecting Mohammedans in the Federated Malay States. Mohammedan Law is
varied in the different States in the Federation, and in some instances in different
districts of the same State, by local customs having the force of law, and it would
not be practicable therefore to pass a Federal Enactment dealing with all the States
of the Federation.
It seems to me, however, that State Enactments might well be passed dealing with
the questions of the rights of parties upon divorce, and upon succession to the
estate of deceased intestates, which more commonly arise, and giving power to the
Courts to take evidence in more involved cases not covered by the provisions of the
Enactment as to the law of the matter in debate. Although I have held that the
Supreme Court has jurisdiction to deal with such cases as the present, the further
question emerges as to whether or not the Supreme Court is the proper tribunal for
dealing with these cases, and whether it would not be more consonant with the
views of those professing the Mohammedan religion that His Highness the Sultan in
Council in each State should establish special courts for dealing with these cases
with an appeal to His Highness the Sultan in Council in each case; of course the
jurisdiction of the Supreme Court and of the Court of Appeal would properly be
excluded by such Enactment.
The proposed exclusion of the jurisdiction of the civil courts in Islamic Family Law
as envisaged by the Supreme Court in 1927, is now a reality with the coming into
force of clause (1A) of Article 121 of the Federal Constitution with effect from 10
June 1988. It would have been a source of satisfaction to Thorne J. and Acton J. to
know that in 1952 the first modern Enactment on Administration of Muslim Law was
enacted by the Selangor State Legislature. Other states in the former FMS and
unfederated Malay States followed suit.
On Merdeka Day, the Federal Constitution in Article 3(1) has declared that Islam in
the religion of the Federation; but other religions may be practised in peace and
harmony in any part of the Federation. The very fact that people professing
religions other than Islam are constitutionally guaranteed the right to practise their
faith in peace and harmony, must necessarily mean that Muslims are also similarly
guaranteed the right to practise Islam in the like manner. Being the religion of the
Federation, Islam has a special position in Malaysia. The Ruler of a State of the
Federation is the head of the religion of Islam in his State and the Yang di Pertuan
Agong is Head of the religion of Islam in the Federal Territories of Kuala Lumpur
and Labuan in addition of being so in his own State and in the states of Malacca,
Penang, Sabah and Sarawak. Article 74(2) read with the Second List of the Ninth
Schedule, confers the power to make law on the State Legislatures, and on
Parliament in respect of the Federal Territories of Kuala Lumpur and Labuan on the
subject of Islamic Law and personal and family Law of persons professing the
religion of Islam. This includes inter alia the Islamic Law relating to betrothal,
marriage, divorce, dowry and maintenance, the constitution, organisation and
procedure of Syariah Courts which shall have jurisdiction only over persons
performing the religion of Islam. Thus, under para 4(e), that is, the Federal
Legislature List of the Ninth Schedule, the power of Parliament to make law on civil
and criminal law and procedure and the administration of justice including inter
alia actionable wrongs, marriage and divorce; married womens property and
status, do not include Islamic personal law relating to marriage, divorce, family law,
etc.
With effect from 10 June 1988, the new exclusion clause (1A) was introduced by
the Constitution (Amdt.) Act 1988 (Act A704) which expressly excludes the
jurisdiction of the High Court in Malaya and the High Court in Borneo, in respect of
any, matter within the jurisdiction of the Syariah Court. By such exclusion, the
intention of the new Clause (1A) is clearly to confer exclusive jurisdiction to the
Syariah Courts to adjudicate on any matter which has been lawfully vested by law
within the jurisdiction of the Syariah Court. In short, any jurisdiction lawfully vested
in the Syariah Court is now exclusively within the jurisdiction of that court. Whether
the vesting of such jurisdiction is valid is of course another matter which can be
challenged under Article 4(3). As far as this appeal is concerned, the validity of the
Administration of Islamic Law Enactment 1952 and the Islamic Family Law (Federal
Territory) Act 1984 has not been challenged. Section 4 of the 1984 Act applies to all
Muslims living in the Federal Territory and as well to all Muslims residing in the
Federal Territory who are living outside the Federal Territory. The Act makes
provisions on Islamic Law in respect of marriage, divorce, maintenance,
guardianship and other matters connected with family life. The jurisdiction of the
Syariah Court in Kuala Lumpur to deal with these matters is conferred by s.
45(3)(b) of the Administration of Muslim Law Enactment 1952 (State of Selangor
Enactment No. 3 of 1952) which has been in force in Kuala Lumpur even before the
creation of the Federal Territory. Although the 1952 Enactment has ceased to apply
in the State of Selangor by the Administration of Islamic Law Enactment 1989
(which came into effect on 1 September 1991), the 1952 Selangor Enactment
continues to be in force in Kuala Lumpur as modified by the Federal Territory
(Modification of Administration of Muslim Law Enactment) Orders 1974 and
1981, vide PU(A) 44/1974 and PU(A) 390/1981.
Since s. 45(3)(b) Administration of Muslim Law Enactment 1952 confers jurisdiction
on the Kuala Lumpur Syariah Court to hear and determine all actions and
proceedings which relate to marriage or divorce in which all the parties profess the
Muslim religion, the High Courts specific jurisdiction under s. 24 Courts of
Judicature Act 1964 on the subject matter of divorce and matrimonial causes and
matters relating thereto are excluded by virtue of Article 121 clause (1A). The
principle of interpretation of statutes demands that a general provision cannot
override a specific one, and as such the High Court cannot invoke its general civil
jurisdiction under s. 23 to revive a specific jurisdiction under s. 24 which has been
excluded by the Constitution. The cause of action pleaded in Faridah s
statement of claim is so intertwined with and ancillary to the main petition for a
dissolution of the Muslim marriage in the Syariah Court that the High Court must
clearly be held to have no jurisdiction in the matter. Any rivalry between the two
jurisdictions must now be solved in terms of Article 121 clause (1A).
At p. 8 p of his judgment, the learned Judge stated that he had no hesitation on the
authority of Ali Mat v. Jamaliah [1974] 1 MLJ 18 in holding that the High Court had
jurisdiction to entertain the action of Faridah . But that authority was decided
before the new clause (1A) was enacted and it should have been distinguished on
that ground. The learned Judge also erred in law and in fact in his conclusion that
the Administration of
Muslim Law Enactment 1952 as in force in the Federal Territory of Kuala Lumpur,
and the Islamic Family Law (Federal Territory) Act 1984 do not confer adequate
power to the Syariah Court for the protection of battered wives, and as such
Faridah s predicament seems to have generated so much sympathy that the
injunctive remedy would appear to have been granted as if on the basis of the
doctrine of necessity, notwithstanding the provision of Article 121 clause (1A).
Whilst there is room for concern, for the long delay in fixing the date of hearing due
apparently to uncertainty on the part of the Syariah judges whether the petition
should be filed in Selangor or in the Federal Territory, the fear of the learned Judge
that the Syariah Court is powerless to protect battered wives, is unfounded. The
alleged ill-treatment or act of cruelty by Habibullah, is amply covered by s. 127 of
both the Selangor Islamic Family Law Enactment 1984 and the Islamic Family Law
(Federal Territory) Act of 1984 which provides:
Any person who ill-treats his wife or cheats his wife of her property commits an
offence and shall be punished with a fine not exceeding one thousand ringgit or
with imprisonment not exceeding six months or with both such fine and
imprisonment.
As regards injunctive remedy against molestation of a wife pending divorce
proceedings, the 1984 Act provides the necessary power to the Syariah Court to
make restraining orders. Section 107(1) provides:
The court shall have power during the pendency of any matrimonial proceedings or
on or after the grant of an order of divorce, fasakh or annulment, to order any
person to refrain from forcing his or her society on his or her spouse or former
spouse and from other acts of molestation.
On the facts of this case, it is reasonable to conclude that Faridah s application
for dissolution of marriage in the Syariah Court must necessarily fall squarely under
s. 52(1)(h)(i) of the 1984 Act, viz., dissolution of her marriage on the ground that
her husband, Habibullah treats her with cruelty, that is to say habitually assaults
her or makes her life miserable by cruelty of conduct.
On the constitutional issue, Mr. Balwant Singh Sidhu for Faridah has raised
before us an interesting argument that clause (1A) of Article 121 is ineffective
because the Constitution (Amdt) Act 1988 (Act A704) has failed to make the new
provision retrospective from a date prior to 16 March 1964, that is, prior to the
effective date of the Courts of Judicature Act 1964. Section 4 provides:
In the event of inconsistency or conflict between the Act and any other written
law other than the Constitution in force at the commencement of this Act, the
provision of this Act shall prevail.
(Emphasis supplied)
It is contended that since the new exclusion clause (1A) of Article 121, is
inconsistent or in conflict with the provisions of the Courts of Judicature Act , by
taking away the jurisdiction of the High Court conferred by ss. 23 and 24 , in
respect of any matter within the jurisdiction of the Syariah Courts, the provision of
the Act would prevail over the constitutional amendment unless the Constitution
Amendment Act is made retrospective. Clause (1A) came into force only on 10 June
1988 and as such it is argued that the jurisdiction of the High Court under ss. 23
and 24 shall continue to prevail over or at least to be concurrent with the
jurisdiction of the Syariah Court.
The learned Judge did not expressly state any particular opinion on how s. 4 of the
1964 Act should be construed. But Mr. Balwant Singh Sibhu contends that the
conclusion of the learned Judge on jurisdiction is correct in law on the authority of
Shahamin Faizual Kung Abdullah v. Asma Hj Junus [1991] 3 CLJ 2220 . There the
High Court held that s. 4 of the Courts of Judicature Act 1964 is a provision
affecting the Constitution as envisaged by the Federal Court in Phang Chin Hock
v. Public Prosecutor [1979] 1 LNS 67 at 72. After recognizing that the intention of
Article 121 clause (1A) is to take away the jurisdiction of the High Courts in respect
of any matter within the jurisdiction of the Syariah Courts, the judgment in
Shahamin case concluded that the new clause (1A) had however failed in its
objective for failure to make it retrospective and thereby was caught by s. 4 of the
1964 Act . The relevant part of the judgment in Shahamin case is as follows:
I have not overlooked Article 4(1) of the Constitution which provides:
This Constitution is the supreme law of the Federation and any law passed after
Merdeka Day which is inconsistent with this Constitution shall, to the extent of the
inconsistency, be void.
It is true that the Constitution is the supreme law of the land. But Law in Article
4(1), with reference to Acts of Parliament, means federal law consisting of ordinary
laws enacted in the ordinary way and not Acts affecting the Constitution. As Suffian
LP said in Phang Chin Hock v. Public Prosecutor [1979] 1 LNS 67, 71 col. 1, H & I.
construction requires us to give effect to both provisions and to hold and we
accordingly hold that Acts made by Parliament, complying with the conditions set
out in Article 159, are valid even if inconsistent with the Constitution, and that a
distinction should be drawn between on the one hand Acts affecting the
Constitution and on the other hand ordinary laws enacted in the ordinary way. It is
federal law of the latter category that is meant by law in Article 4(1); only such law
must be consistent with the Constitution.
Similarly, in the instant appeal, the learned Judge seemed to hold that because of
s. 4 of the Courts of Judicature Act 1964 , the new clause (1A) is ineffective and
therefore s. 23 of the Act prevails over the amendment to the Constitution. In the
event, the learned Judge required expressed provisions in the Administration of
Muslim Law Enactment or the Islamic Family Law Enactment to exclude the
jurisdiction of the High Court. Thus at p. 12 of his judgment he said:
The jurisdiction of this court to entertain the plaintiffs action is provided under s.
23 of the Courts of Judicature Act 1964 . Furthermore s. 4 of that Act states:
in the event of inconsistency or conflict between this Act and any other written law
other than the Constitution in force at the commencement of this Act, the
It follows therefore unless there are specific words in the Selangor Administration of
Islamic Law Enactment 1952 or the Selangor Islamic Family Law Enactment 1984
(These two Enactments were relied by the learned Counsel for the defendant to
support her contention about the jurisdiction of the Syariah Court) empowering the
Syariah Court to deal exclusively with the dispute raised before this Court and to
grant the reliefs sought by the plaintiff in this action, I am not prepared to accede
to the contention of the defendants Counsel.
Before this court, it is never suggested that the Federal Constitution cannot be
amended. Nor is it put in argument that Article 121 (1A) has destroyed the basic
structure of the Constitution, or that it has failed to comply with all the conditions
precedent and subsequent regarding manner and form prescribed by the
Constitution itself. The general proposition (not raised in this appeal) that an
amendment is not valid unless it is consistent with the existing Constitution, has
been rejected by the Federal Court, in Phang Chin Hock v. Public Prosecutor [1979]
1 LNS 67, LP delivering the judgment of the court said at p. 72:
If it is correct that amendments made to the Constitution are valid only if consistent
with its existing provisions, then clearly no change whatsoever may be made to the
Constitution; in other words, Article 159 is superfluous, for the Constitution cannot
be changed or altered in any way, as if it has been carved in granite. If our
Constitution makers had intended that their successors should not in any way alter
their handiwork, it would have been perfectly easy for them to do so provide; but
nowhere in the Constitution does it appear that that was their intention, even if
they had been so unrealistic as to harbour such intention. On the contrary apart
from Article 159, there are many provisions showing that they realized that the
Constitution should be a living document intended to be workable between the
partners that constitute the Malayan (later Malaysian) polity, a living document that
is reviewable from time to time in the light of experience, and, if need be,
amended.
Thus, it is not the case for Faridah that the new clause (1A) introduced by s.
8(c) Constitution (Amdt.) Act 1988 (Act A704) is invalid because of inconsistency
with the existing Constitution by virtue of Article 4(1). The interplay between Article
4(1) and Article 159 has been resolved in Phang Chin Hock case by the application
of the rule of harmonious construction. The Federal Court speaking through Suffian
LP gave effect to both provisions by holding that:
Acts made by Parliament, complying with the conditions set out in Article 159,
are valid even if inconsistent with the Constitution, and that a distinction should be
drawn between on the one hand Acts affecting the Constitution and on the other
hand ordinary laws enacted in the ordinary way. It is federal law of the latter
category that is meant by law in Article 4(1); only such law must be consistent with
the Constitution.
Now, arising from the judgment just quoted, what are Acts affecting the
Constitution which the Federal Court was distinguishing from ordinary laws
enacted in the ordinary way? In the context of the judgment, on the construction
of Article 4(1) and Article 159, Acts affecting the Constitution mean no more than
Acts of Parliament which amend the Constitution through the legislative process
under Article 159, such as the one under consideration, namely the Constitution
(Amdt.) Act 1988 which introduces the new clause (1A) of Article 121. Accordingly,
the Courts of Judicature Act 1964 including s. 4 does not qualify as an Act or a
statutory provision affecting the Constitution because it is an ordinary law or an
ordinary statutory provision enacted not under Article 159 but enacted in the
ordinary way.
In the circumstances, this court must depart from the judgment of the High Court
in Shahamin case relied upon by Mr. Balwant Singh Sidhu, as an authority for the
proposition that s. 4 of the Courts of Judicature Act is a provision affecting the
Constitution in the context understood in Phang Chin Hock v. Public Prosecutor
[1979] 1 LNS 67. If indeed, s. 4 is intended to affect the Constitution by rendering
ineffective amendment to the Constitution properly enacted under Article 159,
unless made with retrospective effect to a date prior to the date of coming into
force of the Courts of Judicature Act 1964 , then to that extent, it is clearly
ineffective under Article 4(1) because federal law enacted in the ordinary way
cannot override the provision of the Constitution as amended from time to time.
Further the provision of s. 4 of the Courts of Judicature Act itself, does not support
the proposition that is is capable of rendering ineffective for whatever reason the
provisions of any Constitution Amendment Act enacted under Article 159. The
words, other than the Constitution in s. 4 are not mere surplusage. Under Article
160 the term written law includes the Constitution and the word law and
federal law includes any Act of Parliament which amends the Constitution under
Article 159. The intention of Parliament in s. 4 is expressly to exclude the
Constitution or any Act of Parliament enacted under Article 159 which amends the
Constitution. In any event, therefore, s. 4 of the 1964 Act is not applicable to the
Constitution (Amdt.) Act 1988, and it cannot prevail over clause (1A) Article 121 of
the Constitution. In the result, the learned Judge erred in law in holding that the
High Court has jurisdiction in Faridah s claim on the ground that clause (1A) is
lame and ineffective.
As regards the alternative argument on jurisdiction under the Married Women Act
1957, s. 9(2) provides:
Except for the protection or security of his or her property, no husband or wife shall
be entitled to sue the other for a tort.
In view of the Courts conclusion on the constitutional issue under Article 121
clause (1A), there is no real necessity to deal with it. But for the sake of
completeness, even if the Court were to treat the statement of claim as a claim
unconnected with marriage and divorce, Faridah s cause of action against
Habibullah would still remain in tort for actionable wrong arising from the alleged
criminal acts under ss. 323 and 324 of the Penal Code. In rejecting s. 9(2)
argument, the learned Judge in the final para of his judgment had this to say: For
the above reasons, I hold that s. 9(2) of the Married Women Ordinance 1957 does
not apply as the plaintiffs action is grounded on criminal offences committed or
threatened to be committed against her.
The above reasoning does not appear to be correct. Merely because a cause of
action is grounded on criminal offences does not alter a civil claim in tort to a
criminal matter. When dealing with Faridah s claim and application for ex-
parte interlocutory injunction, the learned Judge is obviously exercising the civil
jurisdiction of the High Court. It is trite law that an offender against the Penal Code
may be sued in tort for the wrongful act. In this case, the alleged liability of
Habibullah, as pleaded in the statement of claim, is in tort arising from the
commission of a matrimonial offence or misconduct, and as such the learned Judge
also erred in the alternative in holding that Faridah s claim is not in tort and in
rejecting the argument under s. 9(2). On this issue the argument put forward by
Mr. Balwant Singh Sidhu is extremely weak. Learned Counsel is forced to admit
that Faridah s claim before the learned Judge is in tort, and that damages and
injunction are civil remedies, notwithstanding that the cause of action has arisen
from the commission of criminal offences, committed in the course of a subsisting
marriage.
The final argument canvassed by Mr. Balwant Singh Sidhu, is that Faridah is no
longer a Muslim, and as such the Syariah Court has no jurisdiction in the matter at
all.
It is true that in para 12 of her statement of claim, Faridah alleges that on 12
April 1989, she had revoked her Muslim Faith by means of a statutory declaration
before a commissioner of oath owing to her belief that Islam could not provide
enough protection for battered wife. But it is equally true that there is an
uncontradicted documentary evidence in a form of a letter dated 20 Mat 1989
(Exhibit MH-1) from the Kadi of Petaling Jaya, Selangor to the effect that on 16
May 1989, at his office Faridah had retracted her renunciation of Islam and
renewed her faith in the religion. The particulars of this matter are contained in
paras 3 and 6 of Habibullahs supplementary affidavit dated 28 August 1989. For
the determination of this question, it is relevant to refer to s. 5 of the Islamic
Family Law (Federal Territory) Act 1984 which provides:
If for the purposes of this Act any question arises as to whether a person is a
Muslim, that question shall be decided according to the criterion of general
reputation, without making any attempt to question the faith, beliefs, conduct,
behaviour, character, acts or omissions of that person.
In Dalip Kaur v. Pegawai Polis Daerah Bukit Mertajam [1992] 1 MLJ 1 at 9 ,
Mohamed Yusoff SCJ, has also expressed the following views:
It is apparent from the observation made by the learned Judicial Commissioner that
the determination of the question whether a person was a Muslim or had renounced
the faith of Islam before death, transgressed into the realm of Syariah Law which
needs serious considerations and proper interpretation of such law. Without proper
authority to support his contention, it is not sufficient to say whether there is or
there is not a condition precedent for a person to become a Muslim; or that if the
deceased were proved to have had said his prayers at a Sikh temple he was
definitely an apostate.
The present question, in my view, cannot be determined by a simple application of
facts as has been found by the learned Judicial Commissioner on the basis of
veracity and relevancy of evidence according to civil law. Such a serious issue
would, to my mind, need consideration by eminent jurists who are properly
qualified in the field of Islamic jurisprudence.
On this view it is imperative that the determination of the question in issue requires
substantial consideration of the Islamic law by relevant jurists qualified to do so.
The only forum qualified to do so is the Syariah Court.
On the test of general reputation, there is no evidence before the court, apart the
statutory declaration sworn before Madam Navamoni (see Exhibit RJ-1) to
suggest that Faridah has effectively renounced her Islamic faith and thereby
committed apostasy. She is lawfully married to Habibullah in 1965 under Islamic
law as evidenced by the Marriage Certificate (see p. 76 of Appeal Record). There
are four children to the marriage, all of whom, like their parents, have Muslim
names.
The writ in this case was filed on 14 February 1989 and it is interesting to note that
the statutory declaration was made by Faridah on 12 April 1989, that is, the
very date that her solicitor, Rubiah bte Jaafar affirmed an affidavit exhibiting the
statutory declaration. The identical date is startling and gives rise to a strong
probability that the declaration was hastily made on inadequate legal advice to
forestall any application to set aside the interlocutory injunction. Be that as it may,
s. 46 of the Islamic Family Law (Federal Territory) Act 1984 provides that the
renunciation of Islam by either party to a marriage or his or her conversion to a
faith other than Islam shall not by itself operate to dissolve the marriage, unless
and until so confirmed by the Syariah Court. Further, under s. 130, a spouse who
by deception makes himself or herself an apostate in order to annul his or her
marriage commits an offence.
This Court, as indeed it seems the trial Judge, can only conclude that both
Faridah and Habibullah are Muslims at all material times. The argument that Mr.
Balwant Singh Sidhu tried to introduce in this court on apostasy, or that Faridah
was not a Muslim at any material time must therefore be rejected.
The appeal is accordingly allowed with costs both here and in the Court below. The
ruling of the High Court on jurisdiction is reversed, and both the application under
O. 18 and 19 RHC and the application to set aside the ex-parte interlocutory
injunction must necessarily succeed, and they are hereby allowed. The deposit in
this appeal is refunded.
Gunn Chit Tuan SCJ: One Faridah bt. Dato Talib (the plaintiff) had on
14 February 1989, filed a suit in the High Court at Kuala Lumpur against her
husband, one Mohd. Habibullah bin Mahmood (the defendant). In a statement of
claim, the plaintiff averred that she is the wife of the defendant by way of marriage
solemnised on 5 August 1965.
She alleged that during the course of marriage, the defendant had battered her on
numerous occasions. It was also averred that the plaintiff, through her lawyers
Messrs. Sheikh Shatar Cheah & Tan, had petitioned for an irrevocable divorce at the
Mahkamah Syariah, Kuala Lumpur, but the Syariah Court Judge had on 24 March
1989, dismissed the petition for want of jurisdiction until and unless consent is
obtained from the Jabatan Agama Islam, Petaling Jaya.
And on 29 March 1989, the plaintiffs solicitors duly applied for the said consent
which is still pending. On 12 April 1989, the plaintiff by way of a statutory
declaration affirmed that she had renounced her Muslim faith. She therefore
claimed damages for acts of assault and battery committed by the defendant
against her and also an injunction to restrain the defendant by himself, his servant,
agent or otherwise howsoever from assaulting, harassing, molesting or interfering,
calling and harassing by telephone calls etc. or in any manner disturb her. The
plaintiff had also applied for by summons in chambers and on 14 April 1989,
obtained a temporary injunction restraining the defendant from assaulting,
harassing, molesting or interfering with her, with liberty to the defendant to apply
to set it aside.
A notice of motion was filed by the defendant on 28 April 1989, to set aside the
order of 14 April 1989, granting the temporary injunction. When the parties
appeared before Lim Beng Choon J. on 30 August 1989, the High Court was asked
to decide two issues, namely:
(i) whether the High Court had jurisdiction to adjudicate on the plaintiffs action
since it involved a matter which fell exclusively within the jurisdiction of the
Syariah Court; and
(ii) whether the plaintiff could institute the action against the defendant when s.
9(2) of the Married Women Act 1957 , prohibited the wife from suing her husband
in tort;
Lim Beng Choon J. held on 14 October 1989, that a perusal of the statement of
claim had convinced him that the plaintiffs action is based on an actionable wrong
of assault and battery which is both a civil and criminal wrong. Although His
Lordship had not overlooked the fact that the plaintiff had instituted divorce
proceedings in the Syariah Court, he was however of the view that a divorce action
before the Syariah Court could not render her cause of action in the High Court less
defective, nor can the said divorce action prevent her from seeking an injunction
from the High Court to prevent her personal safety from being violated. His
Lordship stated further, relying on Rediffusion (Hong Kong) v. Attorney General of
Hong Kong[1970] AC 1136, 1154, that for purposes of answering the jurisdictional
question, the High Court must assume that if the action were allowed to proceed,
the plaintiff would be able to establish that the act and conduct of the defendant as
alleged in the statement of claim would be unlawful and would affect adversely her
personal safety.
Lim Ben Choon J. also held that the jurisdiction of the High Court to entertain the
plaintiffs action is provided under s. 23 of the Courts of Judicature Act 1964 , as
well as s. 4 of that Act which states that:
4. In the event of inconsistency or conflict between this Act and any other written
law other than the Constitution in force at the commencement of this Act, the
He concluded that he had no hesitation, on the authority of Ali Mat v.
Jamaliah [1974] 1 MLJ 18, in holding that the High Court had jurisdiction to
entertain the action of the plaintiff.
As regards the second issue, the learned Judge held that s. 9(2) of the Married
Women Act 1957 , did not apply as the plaintiffs action was grounded on criminal
offences committed or threatened to be committed against her.
The defendant appealed to the Supreme Court and before us Encik Mohd. Raziff bin
Mohd. Zahir, the first Counsel for the defendant, referred to Article 121(1A) of the
Constitution which reads as follows:
(1A) The Courts referred to in Clause (1) shall have no jurisdiction in respect of
any matter within the jurisdiction of the Syariah Courts. and contended that the
learned Judge had erred in relying on ss. 23 and 24 of the Courts of Judicature Act
1964 . Counsel stated that with the amendment of the Constitution, Ali Mat v.
Jamaliah was no longer good law and he then referred to the views of Hashim A.
Yeop Sani CJ and Mohd. Yusoff SCJ (as they then were) in Dalip Kaur v. Pegawai
Polis, Daerah, Bukit Mertajam & Anor. [1992] 1 MLJ 1 , 7, 10, both of whom had
stated that the new clause (1A) of Article 121 of the Constitution, which came into
effect on 10 June 1988, had taken away the jurisdiction of the civil courts in respect
of matters within the jurisdiction of the syariah courts.
Counsel then referred to the Islamic Family Law (Federal Territory) Act 1984, and
stated that the learned Judge had also erred when he relied on Rediffusion (Hong
Kong) v. Attorney General of Hong Kong, which he contended was irrelevant to the
present case. He referred to the following s. 107 of the Islamic Family Law (Federal
Territory) Act 1984:
107(1) The Court shall have power during the pendency of any matrimonial
proceedings or on or after the grant of an order of divorce, fasakh, or annulment,
to order any person to refrain from forcing his or her society on his or her spouse or
former spouse and from other acts of molestation. (2) Failure to comply with an
order made under this section shall be punishable as a contempt of Court.
and pointed out that a Court of a Kathi or Kathi Besar in the Federal Territory
constituted under the Administration of Muslim Law Enactment 1952, of the State
of Selangor has power to grant an injunction against acts of molestation. Reference
was also made to the following s. 127 of the Islamic Family Law (Federal Territory)
Act 1984:
127. Any person who ill-treats his wife or cheats his wife of her property commits
an offence and shall be punished with a fine not exceeding one thousand ringgit or
with imprisonment not exceeding six months or with both such fine and
imprisonment.
which, Counsel pointed out, punishes any person for ill-treatment of his wife.
Counsel stated that the Syariah Courts also have criminal jurisdiction and referred
to the following s. 2 of the Syariah Courts (Criminal Jurisdiction ) Act 1965 (Revised
1988):
2. The Syariah Courts duly constituted under any law in a State and invested with
jurisdiction over persons professing the religion of Islam and in respect of any of
the matters enumerated in List II of the State List of the Ninth Schedule to the
Federal Constitution are hereby conferred jurisdiction in respect of offences
against precepts of the religion of Islam by persons professing that religion which
may be prescribed under any written law:
Provided that such jurisdiction shall not be exercised in respect of any offence
punishable with imprisonment for a term exceeding three years or with any fine
exceeding five thousand ringgit or with whipping exceeding six strokes or with any
combination thereof.
Encik Pawancheek bin Marican, the second Counsel for the appellant, contended
that the intention of Parliament in enacting Article 121(1A) was to take away the
Syariah Courts. He also contended that s. 4 of the Courts of Judicature Act 1964 ,
cannot affect the application of Article 121(1A) of the Constitution as the former is
inconsistent with Article 121(1A) and is therefore null and void by virtue of Article
4(1) of the Constitution, which declares that the Federal Constitution is the
supreme law of the Federation. He then referred us to the following passage in the
judgment of Suffian FJ (as he then was) in Assa Singh v. Menteri Besar,
Johore [1969] 2 MLJ 30, 39:
The first part of clause (1) of article 4 provides that the Constitution shall be the
supreme law of the land and one would therefore expect it to follow that any law
which is inconsistent with the Constitution is void, at least to the extent of the
inconsistency, but the Constitution, as the learned Solicitor-General points out,
draws a distinction between:
(a) pre-Merdeka law and (b) post-Merdeka law
which is inconsistent with the Constitution.
The constitutional treatment of the two categories of inconsistent laws is quite
different. Article 4(1) provides that any post-Merdeka law which is inconsistent with
the Constitution shall, to the extent of the inconsistency, be void.
Article 162 on the other hand provides that any pre-Merdeka law such as the
Enactment shall continue in force on and after Merdeka Day. That is so even if it is
inconsistent with the Constitution. It may, however, be repealed by the appropriate
legislature. Until so repealed it may be modified without going to Parliament, simply
by order of His Majesty within a period of two years beginning with Merdeka Day for
the purpose of bringing its provisions into accord with the Constitution. If it has not
been modified by His Majesty under article 162 or if it has not been modified
otherwise, then under clause (6) any court applying its provision must apply it with
the necessary modifications to bring it into accord with the Constitution. Counsel
stated that as the Courts of Judicature Act 1964 , is a post-Merdeka law, s. 4
thereof is void by virtue of Article 4(1) of the Constitution as it is inconsistent with
Article 121(1A). He contended that the learned Judge had no power to hear the
proceedings filed by the plaintiff in the High Court which had no jurisdiction to
entertain her claim by virtue of the fact that the subject matter of the claim falls
within the jurisdiction of the Syariah Courts.
Encik Pawancheek bin Marican then referred to Shahamin Faizul Kung bin Abdullah
v. Asma bt. Haji Junus [1991] 3 CLJ 2220 , 2225, in which case Datuk Edgar
Joseph Jr. J. (as he then was) had an opportunity to construe s. 4 of the Courts of
Judicature Act 1964 , in the light of a conflict arising between the jurisdiction of the
Penang Syariah Court and that of the Penang High Court in respect of the
guardianship of a Muslim infant. His Lordship in that case had stated that:
It is obvious that the draftsman had intended by Article 121(1A) to take away the
Syariah Courts. The only question which now arises is whether he had succeeded in
that objective. If he has not then the Court will not come to his aid
In view of its pivotal importance regarding this part of the case, I must now, once
again, reproduce s. 4 of the Courts of Judicature Act ; it reads:
In the event of inconsistency or conflict between this Act and any other written
law other than the Constitution in force at the commencement of this Act,
the provisions of this Act shall prevail.
(Emphasis supplied by the learned Judge)
The Courts of Judicature Act , except for s. 5 , came into force on 16 March 1964.
Section 5 came into force on 16 September 1964. But, Article 121(1A), as I have
already noted, came into force only as recently as 10 June 1988 by virtue of Act
A704. In other words, it was not in force at the date of the commencement of the
Courts of Judicature Act . Therefore, by virtue of s. 4 of the Courts of Judicature Act
, ss. 23 and 24 would, in my opinion, still prevail to confer jurisdiction on this Court
to hear the present application. It would have been otherwise if Article 121(1A) had
been enacted with retrospective effect so as to have been in force at the date of
commencement of the Courts of Judicature Act .
For support of the above view, the learned Judge cited the following passage in the
judgment of Suffian LP (as he then was) in the Federal Court case of Phang Chin
Hock v. Public Prosecutor [1979] 1 LNS 67, 72:
construction
requires us to give effect to both provisions and to hold and we accordingly hold
that Acts made by Parliament, complying with the conditions set out in Article 159,
are valid even if inconsistent with the Constitution, and that a distinction should be
drawn between on the one hand Acts affecting the Constitution and on the other
hand ordinary laws enacted in the ordinary way. It is Federal Law of the latter
category that is meant by law in Article 4(1); only such law must be consistent with
the Constitution.
After referring to the above passage, the learned Judge then concluded as follows:
It was the appellants contention that His Lordship had erred in coming to the
decision that he did in the Shahamin case. Counsel submitted that the learned
Judge had misconstrued the meaning of the words Acts affecting the Constitution
used by Suffian LP (as he then was) inPhang Chin Hocks case. He contended that
in Phang Chin Hocks case, Suffian LP (as he then was) has used those words to
mean Acts of Parliament enacted for the purpose of amending the Constitution.
Counsel submitted that that meaning could be easily gauged from the following
paragraph preceding the passage quoted by the learned Judge:
If it is correct that amendments made to the Constitution are valid only if consistent
with its existing provisions, then clearly no change whatsoever may be made to the
Constitution; in other words, Article 159 is superfluous, for the Constitution cannot
be changed or altered in any way, as if it has been carved in granite. If our
Constitution makers had intended that their successors should not in any way alter
their handiwork, it would have been perfectly easy for them to so provide; but
nowhere in the Constitution does it appear that that was their intention, even if
they had been so unrealistic as to harbour such intention. On the contrary apart
from Article 159, thee are many provisions showing that they realized that the
Constitution should be a living document intended to be workable between the
partners that constitute the Malayan (later Malaysian) polity, a living document that
is reviewable from time to time in the light of experience and, if need be, amended.
Counsel reiterated that from the above-quoted passage in the judgment of Suffian
LP (as he then was), it is obvious that the words Acts affecting the Constitution
mean Acts of Parliament enacted for the purpose of amending the Constitution
following the procedure laid down in Article 159 of the Constitution. He submitted
that in essence there are two kinds of Acts of Parliament, namely:
(i) ordinary Acts of Parliament; and (ii) Acts of Parliament enacted for the purpose
of amending any provision of the Constitution.
Encik Pawancheek further submitted, with respect to Datuk Edgar Joseph Jr. J. (as
he then was), that there is no such thing as Acts affecting the Constitution as the
unhappy choice of words by Suffian LP (as he then was) in Phang Chin Hocks case
had led the learned Judge in Shahamins case to reach a wrong conclusion as to the
import of the words. Counsel added that it is pertinent to note that Suffian LP (as
he then was) in Phang Chin Hocks case had drew a distinction between the Indian
Constitution and the Malaysian Constitution with regard to the power of Parliament
to enact Acts of Parliament which are inconsistent with the provisions of the
Constitution. His Lordship had traced the history of the two Constitutions in order to
show that the Malaysian Parliament has power to enact Acts of Parliament for the
purpose of amending the Constitution even if such Acts are inconsistent with the
subsisting provisions of the Constitution. Counsel said that in Shahamins case, the
learned Judge had construed Article 121(1A) of the Constitution in the way that
ordinary statutes are interpreted by suggesting that Article 121(1A) should have
been made retrospective in order not to fall foul of s. 4 of the Courts of Judicature
Act 1964 .
It was the final submission of Encik Pawancheek bin Marican that based on his
contention above Article 121(1A) should override s. 4 of the Courts of Judicature
Act 1964 , so as to enforce the legislatures intention to take away the jurisdiction
of the High Courts in respect of any matter within the jurisdiction of the Syariah
Courts.
The defendants third Counsel, Cik Kamar Ainiah bt. Kamaruzaman, referred to the
following s. 3 of the Married Women Act 1957 , and stated that the application of
that Act to Muslims is subject to Islamic Law:
3. This Act shall have effect in the States of Johore, Kedah, Kelantan, Negeri
Sembilan, Pahang, Perak, Perlis, Selangor, Trengganu and the Federal Territory of
Kuala Lumpur in relation to Muslim married women and their property, rights and
obligations subject to the Islamic Law and the customs of the Malays governing the
relations between husband and wife so far as the same may be applicable, and in
the States of Malacca and Penang subject to the Islamic Law of the States in all
cases to which such lastmentioned Islamic Law extends.
Counsel then referred to s. 9(2) of that Act , which reads as follows:
9(1) 9(2) Except for the protection or security of his or her property no husband
or wife shall be entitled to sue the other for a tort.
and stated that the remedies of a married woman for protection and security of her
separate property do not include the right to sue her husband for a tort.
Mr. Balwant Singh Sidhu, Counsel for the plaintiff, submitted, without stating any
reasons, that the decision of Datuk Edgar Joseph Jr. J. (as he then was) in the
Shahamins case should apply. He then stated that in considering whether the
plaintiff is an apostate, the relevant date is the date when the order was made by
the High Court because jurisdiction was not exercised before that date. Counsel
pointed out that the plaintiff had made the following surat akuan on 12 April
1989:
SURAT AKUAN
Saya, HAJJAH FARIDAH BT. DATO TALIB (NO. K/P. 4608422) yang
beralamat di No. 73, Lorong Titawangsa 9, Taman Tasik Titiwangsa, Kuala Lumpur
dengan sesungguhnya dan sebenarnya mengaku bahawa:
1. Saya adalah seorang Melayu berugama Islam. 2. Saya telah berkahwin dengan
seorang Islam bernama Mohd. Habibullah bin Mahmud, keturunan India sejak 5
Ogos 1965. 3. Saya dengan fikiran yang waras tanpa sebarang dorongan dan
tekanan daripada mana-mana pihak istihar diri saya terkeluar daripada ugama
Islam. 4. Saya masih dan ingin mengekalkan nama saya seperti tercatit didalam
surat beranak dan kad pengenalan saya. 5. Dan saya membuat Surat Akuan ini
dengan kepercayaan bahawa butir-butir yang diberi adalah benar serta mengikut
Undang-Undang Surat Akuan 1960.
Diperakukan dan ditandatangani ) oleh FARIDAH BT. DATO TALIB ) DI
KUALA LUMPUR, WILAYAH ) t.t. Persekutuan pada 12 April 1989 ) .. pada pukul
10 pagi )
Dihadapan saya, t.t. .. NAVAMONI PESURUHJAYA SUMPAH MAHKAMAH TINGGI
KUALA LUMPUR
Mr. Balwant Singh Sidhu also referred us to the following letter written on 20 May
1989 by the Pejabat Agama Islam, Petaling Jaya, to the Dato Pengarah,
Jabatan Agama Islam Selangor:
Assalamualaikum wr. wb. PEJABAT AGAMA ISLAM 46000 PETALING JAYA Ruj.
Kami: (18)dlm.PAI.PJ.020/04/89 Tarikh: 14 Syawal 1409 20 Mei 1989
Dato Pengarah Jabatan Agama Islam Selangor 40676 Shah Alam SELANGOR
DARUL EHSAN Ybh. Dato ,
Puan Hajjah Faridah binti Dato Talib
Dengan segala hormatnya dimaklumkan, sehubungan dengan pengakuan penama
ini di Mahkamah Tinggi Kuala Lumpur telah keluar dari Islam telah dimaklumkan ke
pejabat ini. 2. Dan sehubungan dengan itu lagi pejabat ini telah membuat
panggilan hadir pada tarikh 16 Mei 1989 jam 10.00 pagi. Dengan rasa syukur Puan
Hajjah Faridah telah pun hadir mengikut yang diberikan:
a. Puan Hajah Faridah memperakui yang ia ada membuat pengumuman keluar
Islam di Mahkamah Tinggi Kuala Lumpur; b. Tetapi ia telah memberi pengakuan
selepas itu ia telah taubat dan rujuk kepada Islam semula dan ada menuaikan
ibadah sembahyang.
Sekian permakluman mengenai perkara ini.
Wassalam.
BERKHIDMAT KERANA ALLAH UNTUKNEGARA. Saya yang jujur, t.t.
Counsel then referred to the following s. 5 of the Islamic Family Law (Federal
Territory) Act 1984:
5. If for the purposes of this Act any question arises as to whether a person is a
Muslim, that question shall be decided according to the criterion of general
reputation, without making any attempt to question the faith, beliefs, conduct,
behaviour, character, acts, or omissions of that person.
and contended that the criterion for deciding whether a person is a Muslim is
provided in that section.
With respect to the submission of Mr. Balwant Singh Sidhu regarding whether the
plaintiff could be considered an apostate, reference ought to be made to
the dictum of Mohamed Yusoff SCJ (as he then was) in the recent decision of this
Court in Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam &
Anor (supra). , when it was pointed out that in determin- ing whether a Muslim has
renounced Islam, the only forum qualified to answer the question is the Syariah
Court. But in deciding the first issue raised in this case, it is not necessary for a civil
court to consider that point. And in any event it would appear from the evidence
adduced that both parties were Muslims when this case was adjudicated by the
High Court.
As regards the first issue concerning jurisdiction for the determination of the High
Court, we could start by looking at Article 4(1) of the Constitution, which is as
follows:
4(1) This Constitution is the supreme law of the Federation and any law passed
after Merdeka Day which is inconsistent with this Constitution shall, to the extent of
the inconsistency, be void.
It will be noticed that the word law is followed by the word passed. The word
law must therefore mean Acts passed by Parliament and I would, with respect,
agree with the judgment of Suffian LP (as he then was) in Phang Chin Hock v.
Public Prosecutor [1979] 1 LNS 67 that Acts made by Parliament complying with
Article 159, which provides for amendment of the Constitution, are valid even if
inconsistent with the Constitution. On the other hand, Acts which do not amend the
Constitution must be consistent with it.
For an explanation on how the Constitution should be interpreted, I cannot do
better than to refer to the following passage in the judgment of Raja Azlan Shah
Ag. LP (as he then was) in Dato Menteri Othman bin Baginda & Anor. v. Dato
Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29:
In interpreting a Constitution two points must be borne in mind. First, judicial
precedent plays a lesser part than is normal in matters of ordinary statutory
interpretation. Secondly, a Constitution, being a living piece of legislation, its
provisions must be construed broadly and not in a pedantic way with less rigidity
and more generosity than other Acts (see Minister of Home Affairs v. Fisher [1979]
3 All ER 21). A Constitution is sui generis, calling for its own principles of
interpretation, suitable to its character, but without necessarily accepting the
ordinary rules and presumptions of statutory interpretation. As stated in the
judgment of Lord Wilberforce in that case: A Constitution is a legal instrument
giving rise, amongst other things, to individual rights capable of enforcement in a
Court of law. Respect must be paid to the language which has been used and to the
traditions and usages which have given meaning to that language. It is quite
consistent with this, and with the recognition that rules of interpretation may apply,
to take as a point of departure for the process of interpretation a recognition of the
character and origin of the instrument, and to be guided by the principle of giving
full recognition and effect to those fundamental rights and freedoms. The principle
of interpreting Constitutions with less rigidity and more generosity was again
applied by the Privy Council in Attorney-General of St. Christopher, Nevis and
Anguilla v. Reynolds [1979] 3 All ER 129, 136.
It is in the light of this kind of ambulatory approach that we must construe our
Constitution.
Turning to s. 4(1) of the Courts of Judicature Act 1964 , I note that the marginal
note indicates that it is a Provision to prevent conflict of laws. That, in my view,
cannot mean a conflict between any written law and the Constitution which is the
supreme law as provided in Article 4 and which was in force when the Courts of
Judicature Act 1964 , was enacted. By the use of the words other than the
Constitution, the legislature had in mind Article 4 which declared the Constitution
as the supreme law. It follows, in my view, that the legislature intended the words
in force at the commencement of this Act to refer to the provisions of any other
written law which, in the event of inconsistency or conflict between the Courts of
Judicature Act and that other written law (other than the Constitution), shall not
prevail over the provisions of the Courts of Judicature Act 1964 . Sections 4 , 23
and 24 of the Courts of Judicature Act 1964 , which prevail over the provisions of
any other written law, cannot prevail over Article 121(1A) of the Constitution. And
it is clear from the provisions of Article 121(1A) of the Constitution that Parliament
had declared and intended that as from 10 June 1988, the civil courts should have
no jurisdiction in respect of any matter within the jurisdiction of the syariah courts.
What then are matters within the jurisdiction of the Syariah Courts? Both the
learned trial Judge and Counsel for the parties were aware of and have referred to
the following s. 45 of the Administration of Muslim Law Enactment 1952, (the said
Enactment) as modified by the Federal Territory (Modification of Administration of
Muslim Law Enactment) Order 1974, regarding the local limits and extent of
jurisdiction of Religious Courts:
45(1) The Court of the Kathi Besar shall have jurisdiction throughout the Federal
Territory and shall be presided over by the Kathi Besar.
(2) Subject as in this Enactment otherwise provided a Court of a Kathi shall have
jurisdiction in respect of any civil or criminal matter of the nature hereinafter
specified arising within the local limits of jurisdiction prescribed for it under the
preceding section, or, if no local limits are so prescribed, within the Federal
Territory, and shall be presided over by the Kathi appointed hereto.
(3) The Court of the Kathi Besar shall -
punishable under this Enactment, and may impose any punishment therefor
provided; (b) in its civil jurisdiction, hear and determine all actions and proceedings
in which all the parties profess the Muslim religion and which relate to -
(i) betrothal, marriage, divorce, nullity of marriage, or judicial separation, (ii) any
disposition of, or claim to, property arising out of any of the matters set out in sub-
paragraph (i) of this paragraph, (iii) maintenance of dependants, legitimacy,
guardianship or custody of infants, (iv) division of, or claims to, sapencharian
property, (v) determination of the persons entitled to share in the estate of a
deceased person who professed the Muslim religion, or of the shares to which such
persons are respectively entitled, (vi) wills or death-bed gifts of a deceased person
who professed the Muslim religion,
(vii) gifts inter vivos, or settlementsmade without consideration in money or
moneys worth by a person professing the Muslim religion, (viii) wakaf or
nazr, or (ix) other matters in respect of which jurisdiction is conferred by
any written law:
Provided that it shall not ordinarily try any offence or hear or determine any action
or proceeding in respect of which any Court of a Kathi has jurisdiction.
(4) The Court of a Kathi shall -
punishable under this Enactment for which the maximum punishment provided by
law does not exceed imprisonment for three months or a fine of five hundred
dollars or both, and may impose any punishment therefor provided;
(b) in its civil jurisdiction, hear and determine all such actions and proceedings as
the Court of the Kathi Besar is authorized to hear and determine, in which the
amount or value of the subjectmatter does not exceed ten thousand dollars, or is
not capable of estimation in terms of money.
(5) No decision of the Court of the Kathi Besar or a Kathi shall affect any right of
property of any non-Muslim.
(6) Nothing in this Enactment contained shall affect the jurisdiction of any Civil
Court and, in the event of any difference or conflict arising between the decision of
a Court of the Kathi Besar or a Kathi and the decision of a Civil Court acting within
its jurisdiction, the decision of the Civil Court shall prevail.
It would appear from the above-quoted section that the Court of the Kathi Besar in
the Federal Territory has civil jurisdiction to hear and determine all actions and
proceedings in which all the parties profess the Muslim religion and in only matters
specified in the above s. 45(3)(b) of the said Enactment but does not at present
have civil jurisdiction to hear an action for a tort albeit by a wife against her
husband and that therefore such an action could be heard by a civil court in the
exercise of its jurisdiction. But that was not the end of the matter in this case
because of the second issue.
As regards the second issue, there were no arguments from Counsel for both
parties as to how the Married Women Act 1957 , should be applied to the plaintiff in
accordance with s. 3 of the Married Women Act 1957 . In the absence of any
assistance on the Islamic law and the customs of the Malays governing the relations
between husband and wife so far as may be applicable to the parties, I can only
state for the purposes of this case that the remedies of a Muslim married woman
for the protection and security of her separate property are also to be found in s.
9(2) of the Married Women Act 1957 , as a married woman has been defined in
that Act to include any woman married in accordance with the rites and
ceremonies required by her religion, manners or customs. If that is correct, then,
in my view, the plaintiff could not have instituted the action for a tort against the
defendant by virtue of the present s. 9(2) of that Act because s. 9 of that Act only
enables a wife to sue here husband for the protection and security of her property
but otherwise forbids actions of tort between them. It follows that the plaintiff could
not have instituted this action for damages for acts of assault and battery against
the defendant because of that section. On that ground, the learned Judge should
have struck out the plaintiffs suit and also set aside his order of 14 April 1989,
granting the temporary injunction.
For the reasons stated, I would therefore allow this appeal with half costs here and
below, dissolve the temporary injunction and also order that the deposit be
refunded to the appellant.
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