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Family Law 1: LAW 605

CHAPTER 1: Administration of Islamic Law under Federal Constitution

Overview – Jurisdiction of Syariah Court in criminal jurisdiction is imprisonment up to 3 years or fine up to RM 5000 or

whipping up to 6 strokes. Syariah Court has a limited jurisdiction compared to civil court. Position of Syariah Court before

amendment of Article 121(1A) of FC:

- Matters relating to the jurisdiction of Syariah Court was interfered by civil court

- Conflict of jurisdiction occurs in 2 situations:

1. High Court claims jurisdiction in matter falling within the jurisdiction of Syariah Court.

Case – Ainan b Mahmud v Syed Abu Bakar (legitimacy of child)

HC decided that a child born to muslim woman 4 month after the marriage to a muslim

man is a legitimate child based on section 112 of Evidence Enactment.

This is contrary to Islamic Law. Evidence Enactment is statute of general application

and all inhabitants in Federated Malay state are subject to its provision irrespective

their race/religion.

Case – Nafsiah v Abd Majid (betrothal)

Plaintiff brought an action for damages for breach of promise to marry on the ground

that she had been seduced by the defendant and she had given birth to a child.

HC decided – has jurisdiction to hear the case and awarded damages of RM 1200.

2. Where HC interfere with the decision of Syariah Court by reversing the decision and by claiming their superiority.

Case – Myriam v Ariff (custody case)

A divorce between parties before a Qhadi. Qhadi made a consent – that custody of

the children (a girl age 8 and a boy age 4) to their father

HC held that the order made by the Qhadi does not prevent the mother from making

the application to HC. HC decided that the son was ordered to be given to mother

and the daughter remain to the father.

The effect after the amendment of Article 121 (1A):

- The Syariah Court has exclusive jurisdiction whereby civil court cannot vigorously interfere.

- Removes the jurisdiction of the civil court in respect of the matters specified in the state list as set out in

PARA 1 LIST II of the Ninth Schedule of the FC.

- Noted that parties before the Syariah Court must be muslims. The Syariah Court has no jurisdiction where one

of the parties involved is a non muslim.

- The effect of amendment also can be seen in 2 periods, before the year 1992 and after 1992.

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Before 1992

HC still claims jurisdiction over personal matters by virtue of S.4 of COJA. The section reads :

- In the event of inconsistency between this Act and any other law other than the constitution in force at the

commencement of this Act, the provisions of this Act shall prevail.

Case – Shahamin Faizul Abdullah v Aimah Yunus

The court observed that the amendment in 1988 did not state that it has a retrospective effect.

Thus section 4 of COJA still applies to the jurisdiction conferred on the HC and HC still has

jurisdiction over matter involving muslims in Family Law.

After 1992

HC began to recognize the status of Islamic Law.

Case – Nurkhursiah Baharudin v Sharil Lamin

Where HC held that it has no jurisdiction in matters relating to

muslim parties in custodianship.

Problem not solved, in a family dispute between a muslim and non-muslim, conflict of law still arise and the dispute pertaining

to the jurisdiction of court remains unsolved, such as in cases where one party to a marriage converts to Islam where the other

spouse remains a non-muslim.

Case – Subashi A/P Rajasingam v Saravana

Both originally Hindus and wife married under Law Reform (Marriage and Divorce) on 26/7/2001.

They have 2 children, both boys.

The husband converted to Islam in 18/5/2006. Husband commenced proceeding in Syariah Court for

dissolution of marriage and custody of the elder son. (wife received notice from Syariah HC)

4TH August 2006, the wife file a petition for dissolution of marriage under section 51 of LR (M&D) Act

and custody of child.

With this problem, Federal Court held that HC has exclusive jurisdiction to decide on matter

involving divorce and custody rights of a couple which one spouse has become a muslim.

HC has jurisdiction to hear the case even husband had converted to Islam before her petition.

Court look at the status of husband and wife at the time of registering their marriage. Otherwise, the husband conversion

would cause injustice to the unconverted wife and children. On the other hand, it ruled that non-muslim cannot go to the

Syariah Court and it restricted to person professing religion of Islam only.

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