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Written by Parimitaa Krishna Moorthy
Introduction
A petition for judicial separation (hereinafter referred to JS) sought by the respondent (wife) against a Muslim (appellant, as co-respondent) and alleged that the latter has committed adultery with her husband and should be awarded to damages pursuant to S.58 of the Law Reform (Marriage and Divorce) Act 1976. The appellant appealed to the Court of Appeal, arguing that a Muslim is exempt from the application of subsection 3 (3) of Act 164. The Court of Appeal has set aside the order of the High court and allowed the appeal.
Arguments
The respondent petitioned that her husband had behaved in a manner that she could not reasonably be expected to live with him, a result of which, their marriage has irretrievably broken down. The appellant was alleged to have admitted her extra-marital affairs with the respondent’s husband. The respondent further argued that her husband had deserted her because of his adulterous affair with the appellant.
The appellant filed an application to strike out the Petition by JS pursuant to Order 18 rule 19(1)(a),(b) and/or (c) and/or (d) of the Rules of Court 2012 and /or rule 13 of Act 164 andprayed JS be expunged and for consequential reliefs under two grounds;
a) subsection 3(3) of Act 164 provides among others that Act 164 does not apply to a Muslim; and
b) section 58 of Act 164 provides that a claim for damages against a co-respondent on the ground of adultery is only in respect of a petition for divorce and not in cases where the relief sought is for a judicial separation.
The learned high court judge held that for (b) it is an abuse of process of Court because, under section 58 of Act 164, only in a petition for divorce and not a JS can an alleged adulterer or adulteress be made a co-respondent and damages for adultery be claimed against the said co-respondent.
As for (a) the court held that an alleged adulterer or adulteress is a Muslim is not exempted from the application of subsection 3 (3) of Act 164.
The appellant appealed against the decision that the High Court has jurisdiction over a Muslim under Act 164.
Issue of Law
The sole issue of this appeal was whether Act 164 excludes all Muslims.
Grounds of Appeal
The learned High Court Judge was said to have failed to consider four issues, inter alia that by virtue of subsection 3(3) of Act 164, the Court has no jurisdiction over the appellant who is a Muslim, thus she was wrongly cited as a party to the Petition for JS.
Dissenting Arguments
The case of Tan Sung Mooi (F) v Too Miew Kim3, the Supreme Court held in no uncertain terms that subsection 3(3) provides that the Act shall not apply to Muslims or Muslim marriages and that only non-Muslim marriages may be solemnised or registered under the Act. In short, Act 164 only applies tonon-Muslims and non-Muslim marriages. Thus, our courts have consistently held that section 3 (3) does not apply to Muslims or Muslim marriages but the converted spouse cannot use his or her conversion to Islam to avoid responsibilities under Act 164.
In dealing with the High Court judge in applying principle of noscitur a sociis concluding Act 164 applies to a Muslim who is alleged to have committed adultery with a non-Muslim embarking a purposive approach;
Her Ladyship has referred to a literal interpretation citing (per the words of Gopal Sri Ram JCA (as he then was) in Citibank Berhad v Mohamad Khalid Bin Farzalur Rahaman) & Ors 4) , NS Bindra’s on Interpretation of Statutes, Tenth Edn. explained at page 438 – 439 and the Hansard clarifying on the Draft Bill of 1972 was amended and the final Bill i.e. the Law Reform (Marriage and Divorce) Bill 1975 (1975 Bill) was tabled in July 1975. The amendment was intentionally and expressly to exclude the application of Act 164 to all Muslims.
In conclusion, her Ladyship was aware of the harsh and undesirable result but decided cases have demonstrated judicial policy of this country is “not to usurp the legislative role of Parliament but confined the province of the courts” only to expounding the law and the question whether the impugned Act is “harsh and unjust” is a question of policy to be debated and decided by Parliament, and therefore not meant for judicial determination.
Bibliography
2 [1994] 3 CLJ 708
3 [2018] 3 CLJ 145
4 [2000] 3 CLJ 739
Section 3 (3) of the Law Reform (Marriage and Divorce) Act 1976
Section 54(1)(b) of the Law Reform (Marriage and Divorce)
Section 54(1)(b) of the Law Reform (Marriage and Divorce) Act 1976