Di Singapura kini segala tuntutan relif atau
remedi selepas perceraian pasangan orang Islam seperti tuntutan mut’ah
hendaklah di failkan di Mahkamah Syariah. Ini kerana Mahkamah tersebut yang
berbidangkuasa untuk mendengar, membicarakan dan memutuskan kes-kes sedemikian.
Terdapat beberapa kes Mahkamah Sivil Singapura telah dihadapkan kes-kes
sedemikian dan memutuskan bahawa Mahkamah yang sesuai dan berbidangkuasa adalah
Mahkamah Syariah.
Hakim Mahkamah Tinggi Sivil Singapura dalam kes SALIJAH
BTE AB LATEH v Mohd Irwan Abdullah
[1996] 1 SLR 63; [1995] SGHC 216 telah berkata:
28 I turn now to the other
major issue in the case which was whether I had the jurisdiction to hear the
application in the first place. The starting point for this discussion was s 16
of the SCJA. The civil jurisdiction of the High Court is set out in s 16(1) as
covering any action in personam where the defendant is served with the writ or
other originating process in accordance with the Rules of Court or the
defendant submits to the jurisdiction of the High Court. This general
jurisdiction is limited by s 16(2) which states:
Notwithstanding subsection (1), the High Court shall
have no jurisdiction to hear and try any civil proceeding which comes within
the jurisdiction of the Syariah Court constituted under the Administration of
Muslim Law Act.
29 The foregoing provision is
a very clear and uncompromising statement of the relationship between the
sphere of jurisdiction of the High Court and the sphere of jurisdiction of the
Syariah Court. As Chan Sek Keong J, commenting on the previous incarnation of sub-s
(2) as a proviso to sub-s (1) itself stated in Muhd Munir v Noor Hidah
[1991] 1 MLJ 276, if a civil proceeding comes within the jurisdiction of the
Syariah Court, the High Court has no jurisdiction to try that proceeding and to
exclude the jurisdiction of the High Court in any civil proceeding before that
forum, it is only necessary for the court to determine whether the Syariah
Court has jurisdiction over the same proceeding. In undertaking this exercise
it must always be borne in mind that, as stated by Chan Sek Keong J, the
intention behind the enactment of s 16(2) of the SCJA was to take into account
and prevent a conflict of jurisdiction between the High Court and the Syariah
Court.
30 It is also clear from Muhd
Munir’s case that in the determining the ambit of the Syariah Court’s
jurisdiction in any particular instance, the only section of AMLA to be
examined is s 35. This section provides as follows:
(1) The Court shall have jurisdiction throughout
Singapore and shall be presided over by a president to be appointed by
the President of Singapore.
(2) The
Court shall hear and determine all actions and proceedings in which all the
parties are Muslims or where the parties were married under the provisions of
the Muslim law and which involve disputes relating to —
(a) marriage;
(b) divorces
known in the Muslim law as fasakh, cerai taklik, khuluk and talak;
(c)
betrothal, nullity of marriage or judicial separation;
(d) the
disposition or division of property on divorce; or
(e) the
payment of emas kahwin, maintenance and consolatory gifts or mutaah.
(3) In all questions regarding betrothal,
marriage, dissolution of marriage, including talak, cerai taklik, khuluk and
fasakh, nullity of marriage or judicial separation, the appointment of hakam,
the disposition or division of property on divorce, the payment of emas kahwin
and consolatory gifts or mutaah and the payment of maintenance on divorce the
rule of decision where the parties are Muslims or were married under the
provisions of the Muslim law shall, subject to the provisions of this Act, be
the Muslim law, as varied where applicable by Malay custom.
31 Looking at s 35(2) of AMLA
it is clear that for the Syariah Court to have jurisdiction over any action or
proceeding certain prerequisites must be present. First, all the parties to
such section must be Muslim or the parties must have been married under Muslim
law. Secondly, the proceeding must relate to a dispute. Thirdly, the dispute
must involve one of the matters set out in sub-paras (a) to (e) of that
subsection. The meaning of ‘disputes’ and ‘relating to’ as these phrases appear
in the subsection has not been considered by a Singapore court. I was of the view
however that they should be given their ordinary and natural meanings and that
the court should not strain to restrict such meanings since it would subvert
the intention of the legislature if the natural width of the Syariah Court’s
jurisdiction was constricted.
32 With the above
considerations in mind, it appeared to me that all the prerequisites were
present in this case. First, the parties were both Muslims and had been married
under Muslim law. Secondly, the matter could not be characterised as other than
a dispute between the husband and the wife since whilst the wife wanted the
Syariah Court order enforced in accordance with its terms, the husband was
resisting this. Thirdly, while before this court the dispute presented itself
as a matter of whether a declaration in terms asked for by the wife should be
made, in substance, and I thought that the court should consider the substance
rather than the appearance only, the dispute was over the disposition of
property on the divorce of a Muslim couple and this was a matter that fell
squarely within the terms of s 35(2)(d) of AMLA. Further, it was a matter which
also fell within s 35(3) which meant that it would be governed by Muslim law, a
system of law in which I have no competence whatsoever and which is not
administered by the High Court.
33 At the end of the hearing
I was firmly of the opinion that I did not have the jurisdiction to hear the
wife’s application. Jurisdiction to determine any dispute arising out of its
order clearly rested with the Syariah Court. Her application had, therefore, to
be dismissed.
Berikut ialah keputusan penuh kes
SALIJAH BTE AB LATEH v Mohd Irwan Abdullah [1996]
1 SLR 63; [1995] SGHC 216 tersebut.
Penghakimannya di buat oleh YA Hakim Judith Prakash:
1 The parties are both Muslims. They were married in
December 1981 and subsequently had three children. In March 1988, the parties
purchased the flat known as Blk 638, Yishun Street 61 #01-150, Singapore (‘the
property’) in their joint names. This property was used as the matrimonial home
for some time.
2 In 1993, the plaintiff (whom I shall refer to as the
wife) brought a case in the Syariah Court asking for a divorce on the ground
that the defendant (whom I shall refer to as the husband) had deserted her on
18 August 1990 and had not thereafter maintained her and the family. The court
found her complaint to be true and on 18 June 1993, granted the wife a divorce.
In addition, the court ordered that custody of the three children be granted to
the wife with access to the husband. In relation to the property, the court
made the following order (as translated into English):
The flat at Blk 638 Yishun Street 61 #07-150,
Singapore 2776 shall be given to the wife. All the CPF contributions of the
husband used to purchase the flat shall be returned to his CPF Account without
interest. The husband shall transfer his interest in the flat to the wife. All
expenses relating to the transfer of ownership shall be borne by the wife.
3 The wife had no contact with the husband after he
deserted her. Although she inserted an advertisement in the Straits Times in
January 1993 asking him to contact the President of the Syariah Court in order
to arrange a reconciliation, the husband did not respond and was not present at
the Syariah Court hearing. After the decision, the wife tried to locate him in
order to arrange for the transfer of his interest in the property to her. She
was unsuccessful. Finally, after the wife had sought the assistance of the
Legal Aid Bureau, the husband was traced through his employer. The husband
attended once at the Bureau’s offices in September 1994 and stated that he was
willing to comply with the Syariah Court order relating to the transfer of the
property. He furnished the Legal Aid Bureau with a pager number by which he
could be contacted. When the wife tried to page him, however, the pager number
turned out to be a dead telephone line. The husband made no further effort to
contact the wife or to sign any of the papers necessary to effect the transfer.
4 In December 1994, the wife took out this originating
summons and sought the following orders:
(1) a declaration that the wife was entitled to
sole ownership of the property;
(2) an order that the husband, within 14 days
of the making of the order of court, do attend at the Yishun branch office of
the Housing and Development Board to execute such documents as would be
necessary to effect the transfer of the property solely to the wife and to
effectively vest ownership of the property in the wife;
(3) an order that in the event of the husband’s
failure to comply with the aforesaid order, the Registrar of the Supreme Court
be empowered and do execute all such documents as are necessary on behalf of
and in the name of the husband to effect the transfer to the wife.
5 The wife’s solicitors managed to contact the husband
and, on 16 January 1995, he accepted service of the summons and supporting
affidavit outside the High Court building. The matter first came on for hearing
on 21 January 1995. The husband appeared in person and told me that he had not
been in the Syariah Court when the order regarding the transfer of the property
was made and that he had only learned about this order when informed of it by
the Legal Aid Bureau. He indicated that he wanted to instruct counsel in order
to contest the summons. I therefore adjourned the matter for one month.
6 At the next hearing, on 24 May 1995, the husband again
appeared in person. He informed me that he had been to see the Syariah Court
and had been advised to get a lawyer. He then had seen two Muslim organisations
which, unfortunately, had been unable to help him and he was not able to afford
a lawyer. He still wished to contest the application.
7 I had been aware since the first hearing of the
application that there were possible jurisdictional and other legal
difficulties in the way of the wife. Whilst I had given an order similar to
that sought by her in a previous matter, in that prior case, the defendant had
not attended the hearing or made any form of objection to the order requested.
In this case, however, since the husband was actively opposing the wife’s
application and since I harboured some doubts as to the correctness of my prior
order, I thought that the matter should be explored in some depth. As the
husband was obviously unable to deal with the somewhat complex legal arguments
involved, I decided that it was an appropriate case for the appointment of an
amicus curiae.
8 At the next hearing, I had the benefit of the
meticulous and detailed research and analysis of Ms Choi Yok Hung, the amicus
curiae. After considering the arguments put forward by Ms Yeo on behalf of the
wife and the research and contentions of Ms Choi, I dismissed the
application. My reasons are set out below.
9 The Syariah Court, first established by the Muslims
Ordinance 1957, is now governed by the Administration of Muslim Law Act (Cap 3)
(‘AMLA’). This is the statute which lays down the jurisdiction of the Syariah
Court and which sets out the powers which that court has to enforce the orders
made by it. Under s 53 of AMLA the Syariah Court has power to fine or imprison
any person who fails or neglects to comply with an order which it has made
under s 52. Among the orders which can be made pursuant to s 52 is an order
relating to the disposition or division of property on divorce.
10 The wife in the present case therefore had the option,
when the husband failed to effect the transfer of his interest in the flat to
her, to make an application to the Syariah Court for an enforcement order under
s 53. She did not do so. I understand that in fact very few persons, if any at
all, have asked the Syariah Court to invoke its powers under that section. That
court apparently (and my information may be wrong or incomplete) has never used
its enforcement powers due to a lack of manpower and facilities available for
this purpose.
11 Instead the wife, by this application, sought the
assistance of the High Court. The reason why the wife (and others before her in
a similar position) took this course is the existence of s 14(1) of the Supreme
Court of Judicature Act (Cap 322) (‘SCJA’). That section provides as follows:
If a judgment or order is for the execution of a deed,
or signing of a document, or for the indorsement of a negotiable instrument,
and the party ordered to execute, sign or indorse such instrument is absent, or
neglects or refuses to do so, any party interested in having the same executed,
signed, or indorsed, may prepare a deed, or document, or indorsement of the
instrument in accordance with the terms of the judgment or order, and tender the
same to the court for execution upon the proper stamp, if any is required by
law, and the signature thereof by the Registrar, by order of the court, shall
have the same effect as the execution, signing or indorsement thereof by the
party ordered to execute.
12 This power of the High Court is commonly resorted to
in situations where, a divorce having been granted by the High Court, one party
subsequently fails to comply with a High Court order to transfer certain property
to the other. There is no equivalent of this section in AMLA which is why
applications under s 14(1) have been made by Muslims seeking to enforce a
Syariah Court order.
13 Rahimah bte Hussan v Zaine
bin Yusoff [1995] 2 SLR 39 was one such case. The
judge there dismissed the application on the basis that the plaintiff in that
case should not have sought the assistance of the High Court because she could
have got a similar remedy from the Syariah Court. He took the view that the
Syariah Court has the power to make the kind of orders provided for by s 14(1)
of the SCJA. His Honour referred to the powers of imprisonment and fining under
s 53 of AMLA and concluded that the greater power to dispose of and divide
property on divorce, to interfere with liberty and to seize property to enforce
a court order, must include the lesser power to sign documents.
14 With due respect, I am unable to agree with the
reasoning and conclusion in Rahimah’s case. In Singapore, the Syariah Court is
a creature of statute. Its jurisdiction and powers flow solely from enacted
law. Any powers that it has must be spelt out specifically either in AMLA
itself or in other legislation. It is not possible to imply powers which are
not so expressed simply because the powers which one seeks to imply may have a
less significant impact on the freedom or property of the person affected than
the powers which have actually been granted to the Syariah Court. No doubt if
the problems which many beneficiaries of Syariah Court orders now face in
making such orders effective had been anticipated in 1961 when the court was
given the power to dispose of or divide property upon divorce, it would not
have been difficult to have inserted in the statute, as well, a power similar
to that conferred on the High Court by s 14(1) of the SCJA. This was not done,
however, and it is not for this court to endow the Syariah Court with powers
which Parliament has not given it. If it is felt that the Syariah Court needs
additional powers Parliament is well able to remedy the deficiency. My reasons
for dismissing this application therefore were not the same as those which
applied in Rahimah bte Hussain’s case.
15 It appeared to me that the application had been framed
in the way it was in order to overcome a problem with s 14(1) of the SCJA. That
section applies to a ‘judgment or order … for the execution of a deed, or the
signing of a document’. The wife’s solicitors obviously took the view (with
which, incidentally, I agree) that the words ‘judgment or order’ meant a
judgment or order of the High Court and could not be extended to include a
judgment or order of the Syariah Court. Accordingly, if they had simply asked
the High Court to empower the Registrar to sign, on behalf of the husband, such
documents as were necessary to give effect to the Syariah Court’s order, they
faced being met with a rejection of their application on the basis that s 14(1)
did not apply to Syariah Court orders. To overcome that difficulty, the first
prayer in the originating summons was a prayer for a declaration as to the
ownership of the flat. The following prayers could therefore be described as
consequential and proper for the enforcement of the order given pursuant to the
first prayer, which order would be an order of the High Court. I therefore had
to consider whether it was an appropriate case for a declaration to be made.
16 The power of the High Court to make a declaratory
order is derived from para14 of the First Schedule to the SCJA. The extent of
this power is indicated by O 15 r 16 of the Rules of the Supreme Court which
provides that the court may make binding declarations of right whether or not
any consequential relief is or could be claimed. This does not mean, however,
that the court must in all cases where a declaration is asked for, if it finds
the facts on which the application is based to be correct, grant the declaration
requested. As the Supreme Court Practice (1995 Ed) makes clear, there are
several factors which have to be considered before a declaration may be
granted. The following observations of such factors as are relevant to the
present case are culled from paras 15/16/1 to 15/ 16/4 of the Supreme Court
Practice.
17 First, the jurisdiction of the court to make a
declaration of right is confined to declaring contested legal rights,
subsisting or future, of the parties represented in the litigation. Secondly,
the remedy being a discretionary one, it will not be granted to a plaintiff if
it would not give him ‘relief’ in any real sense, ie relieve him from any
liability or disadvantage or difficulty. Thirdly, the power to make a
declaratory judgment is confined to matters which are justiciable in the High
Court. Finally, it has been held that there is nothing in O 15 r 16 which
enables the court to make a declaration in a matter in which its jurisdiction
is excluded by a statute which gives exclusive jurisdiction to another
tribunal.
18 It appeared to me that the requirement of a
justiciable right was one of paramount importance. Did the plaintiff have such
a right in the present case? I did not think so. Prior to her divorce, she had
had the right, as a Muslim married under Muslim law, to go to the court of
competent jurisdiction, the Syariah Court, to ask it to grant her a divorce
and, if it decided to do so, to further request it to exercise its power to
dispose of the property owned jointly by herself and the husband. She exercised
this right and, as a result, not only was the divorce granted but the husband
was ordered to transfer the property to her. What justiciable right remained
thereafter with the wife and what was there for the High Court to do? The wife
already had the order she wanted. There was no necessity for the High Court to
make such an order again, even if it had the jurisdiction to do so. Further,
bearing in mind that the order was made by another court of competent
jurisdiction and therefore that the High Court was bound to accept it as
determining the rights of the parties to the property, it appeared to me that
it would be farcical if I presumed to ‘confirm’ the Syariah Court order by
making the declaration sought.
19 When a declaration is asked for there must be some
ambiguity or uncertainty about the issue so that the court’s determination will
have the effect of laying such doubts to rest. In the present case there was no
uncertainty over what the wife’s rights were: she was entitled, upon refunding
certain moneys to the husband’s account with the Central Provident Fund, to
have the property transferred to her. This being the case, the High Court
declaration could not in fact give her anything more than she already had. As
such there really was no justiciable issue for the High Court to decide in
relation to the declaration. Furthermore, as the declaration would not have
given the wife ‘relief’ in any real sense the proper exercise of the court’s
discretion was to refuse to make the declaration.
20 Miss Choi also submitted that it would be
unprecedented for the High Court to make a declaration about the rights of a
party under an order made by another judicial tribunal of competent
jurisdiction. Whilst she was unable to find any authority dealing with the
issue, a lacuna which is not surprising given the scarcity of common law
territories operating two separate judicial systems aimed at different segments
of the population, each with its own court, I accepted her submission that on
the basis of public policy it would not be right to do as the wife had asked.
By granting the declaration asked for, the High Court would, in effect, be
saying that the Syariah Court’s order was valid. Quite apart from the
presumption of such a stand, its danger would be the implication that the High
Court’s intervention was needed to establish the validity of a Syariah Court
order. This implication would unnecessarily undermine the standing of the
Syariah Court and would be antithetical to the aim of Parliament which was to
set up a court so that Muslim personal law could be administered to Muslims
completely outside the court system established by the SCJA which applied laws
arising or developed from the English common law. The further problem that
arose was that asking the High Court to confirm a valid order of another court
was, in effect, taking away the discretion which the court was supposed to have
in the granting of declaratory relief and turning the High Court into a rubber
stamp. In my view, these points served to confirm that the wife did not possess
any justiciable right upon which the High Court could make a declaratory order.
21 Ms Yeo relied on Barnard & Ors v National Dock
Labour Board & Ors [1953] 2 QB 1 in which, she submitted, the
English Court of Appeal held that in proper cases where persons would otherwise
be without a remedy for an injustice, the English High Court had a
discretionary power to intervene by way of declaration and injunction in the
decisions of statutory tribunals. In Barnard’s case, however, the basis of the
court’s intervention was that the quasi-judicial tribunal which made the
decision did not have the competence to make the orders that it did. The very
basis of the present application was the diametrically opposite situation. It
was common ground that the Syariah Court had made a valid order well within the
powers given to it. The last thing the wife here wanted to do was to impugn the
validity of that order.
22 A further difficulty which the wife faced in asking
the court for declaratory relief arose from the doctrine of res judicata. As
The Doctrine of Res Judicata (2nd Ed) by Spencer Bower
and Turner at para 422 explains, res judicata works in two ways. First, it
estops the parties from afterwards controverting any question or issue decided
by a court of law and, secondly, it bars the party who has obtained relief
thereby from receiving again the same relief against the same party. Bower and
Turner state the rule as follows (para 423):
any person in whose favour an English judicial
tribunal of competent jurisdiction has pronounced a final judgment, whether
civil or criminal, is precluded from afterwards recovering before any English
tribunal a second judgment for the same civil relief on the same cause of
action, or a second judgment of conviction for the same offence, against the
same party.
23 According to Bower and Turner, judges have given
varying theoretical justifications for this doctrine. One justification, the
public policy justification, is that the general interest of the community in
the speedy and final termination of disputes between litigants demands the
imposition and rigid observant of such a rule. The second theory deals with the
interest of the individual litigant in having matters finally settled. The
third justification, the merger doctrine, is ‘that any cause of action which
results in a judgment of [a] … judicial tribunal, whereby relief is granted to
the plaintiff, or other ‘actor’ in the proceedings, is in contemplation of law
merged in the judgment, as soon as it is pronounced, and thereby loses its
individual vitality and disappears as an independent entity, any … judgment
even of the lowest degree being regarded as of a higher nature than any, even
the most important, cause of action’ (supra at para 427).
24 In my judgment it would not have been right for me to
have exercised my discretion in favour of the wife and granted her the
declaration asked for when the effect of doing so would have been to redetermine
an issue which had already been decided by a Singaporean judicial tribunal of
competent jurisdiction. I could not disregard the doctrine of res judicata
simply on the basis of sympathy for the position in which the wife found
herself. In any case, I was impressed by the argument that the wife’s rights to
relief had been merged in the order issued by the Syariah Court. That being the
case those rights could not be resurrected in another tribunal under the guise
of a declaratory order. In the language of Bower and Turner, the wife’s cause
of action had merged into the Syariah Court order as soon as it was pronounced
and had disappeared as an independent entity. This had the result, as I stated
earlier, that she had no longer any justiciable right to put before this court
and the further result of the court being in danger of violating the doctrine
of res judicata if it made the order she wanted.
25 Miss Yeo contended that the wife would be without a
remedy for injustice if she was constrained to attempt to enforce the Syariah
Court order under the provisions of AMLA instead of applying to the High Court
for a declaratory judgment. Whilst conceding that s 53 of AMLA prescribed
methods of enforcing Syariah Court orders, she submitted that these enforcement
methods did not offer a solution to the wife’s problems. The most that the
Syariah Court could do would be to imprison or fine the husband and neither of
these steps would in itself result in a transfer of the husband’s interest in
the property to the wife. That could only be effected if the husband, or
someone on his behalf, signed the relevant documents.
26 I was unable to accept the above arguments. Whilst the
remedy provided by AMLA for non-compliance with its orders might not be the
remedy which the wife wanted or might not give direct effect to the order, this
did not mean that the remedy was ineffective. The wife in this case had not
even asked the Syariah Court to enforce its order. She could not know for
certain whether if the husband had been faced with those enforcement
proceedings he would still have refused to comply with the order. I could not
in these circumstances justify any intervention by the High Court on the basis
that without it the wife would be left without a remedy and thus suffer an
injustice.
27 In passing, I should also mention that I had
difficulty with the language of the declaration which the wife wanted in that
she wanted a statement that she was ‘entitled to sole ownership of the
property’. I did not think that the wife had such an entitlement. The order
that was made by the Syariah Court was that the husband was to transfer his
share in the property to her and that his CPF moneys were to be repaid. In my
view this meant that the wife had to repay such moneys in order to obtain the
transfer of her husband’s interest. Until she made such payment she would not
be entitled to be the sole owner of the property. At the time the application
was filed, the wife had not made the payment and, therefore, had not fulfilled
a necessary pre-condition to obtaining sole ownership.
28 I turn now to the other major issue in the case which
was whether I had the jurisdiction to hear the application in the first place.
The starting point for this discussion was s 16 of the SCJA. The civil
jurisdiction of the High Court is set out in s 16(1) as covering any action in
personam where the defendant is served with the writ or other originating
process in accordance with the Rules of Court or the defendant submits to the
jurisdiction of the High Court. This general jurisdiction is limited by s 16(2)
which states:
Notwithstanding subsection (1), the High Court shall
have no jurisdiction to hear and try any civil proceeding which comes within
the jurisdiction of the Syariah Court constituted under the Administration of
Muslim Law Act.
29 The foregoing provision is a very clear and
uncompromising statement of the relationship between the sphere of jurisdiction
of the High Court and the sphere of jurisdiction of the Syariah Court. As Chan
Sek Keong J, commenting on the previous incarnation of sub-s (2) as a proviso
to sub-s (1) itself stated in Muhd Munir v Noor Hidah [1991] 1 MLJ 276,
if a civil proceeding comes within the jurisdiction of the Syariah Court, the
High Court has no jurisdiction to try that proceeding and to exclude the
jurisdiction of the High Court in any civil proceeding before that forum, it is
only necessary for the court to determine whether the Syariah Court has
jurisdiction over the same proceeding. In undertaking this exercise it must
always be borne in mind that, as stated by Chan Sek Keong J, the intention
behind the enactment of s 16(2) of the SCJA was to take into account and
prevent a conflict of jurisdiction between the High Court and the Syariah
Court.
30 It is also clear from Muhd Munir’s case that in the
determining the ambit of the Syariah Court’s jurisdiction in any particular
instance, the only section of AMLA to be examined is s 35. This section
provides as follows:
(1) The Court shall have
jurisdiction throughout Singapore and shall be presided over by a
president to be appointed by the President of Singapore.
(2) The Court shall hear and determine all actions
and proceedings in which all the parties are Muslims or where the parties were
married under the provisions of the Muslim law and which involve disputes
relating to —
(a) marriage;
(b) divorces known in the Muslim law as
fasakh, cerai taklik, khuluk and talak;
(c) betrothal, nullity of marriage
or judicial separation;
(d) the disposition or division of property on
divorce; or
(e) the payment of emas kahwin,
maintenance and consolatory gifts or mutaah.
(3) In all questions regarding
betrothal, marriage, dissolution of marriage, including talak, cerai taklik,
khuluk and fasakh, nullity of marriage or judicial separation, the appointment
of hakam, the disposition or division of property on divorce, the payment of
emas kahwin and consolatory gifts or mutaah and the payment of maintenance on
divorce the rule of decision where the parties are Muslims or were married
under the provisions of the Muslim law shall, subject to the provisions of this
Act, be the Muslim law, as varied where applicable by Malay custom.
31 Looking at s 35(2) of AMLA it is clear that for the
Syariah Court to have jurisdiction over any action or proceeding certain
prerequisites must be present. First, all the parties to such section must be
Muslim or the parties must have been married under Muslim law. Secondly, the
proceeding must relate to a dispute. Thirdly, the dispute must involve one of
the matters set out in sub-paras (a) to (e) of that subsection. The meaning of
‘disputes’ and ‘relating to’ as these phrases appear in the subsection has not
been considered by a Singapore court. I was of the view however that they
should be given their ordinary and natural meanings and that the court should
not strain to restrict such meanings since it would subvert the intention of
the legislature if the natural width of the Syariah Court’s jurisdiction was
constricted.
32 With the above considerations in mind, it appeared to
me that all the prerequisites were present in this case. First, the parties
were both Muslims and had been married under Muslim law. Secondly, the matter
could not be characterised as other than a dispute between the husband and the
wife since whilst the wife wanted the Syariah Court order enforced in
accordance with its terms, the husband was resisting this. Thirdly, while
before this court the dispute presented itself as a matter of whether a
declaration in terms asked for by the wife should be made, in substance, and I
thought that the court should consider the substance rather than the appearance
only, the dispute was over the disposition of property on the divorce of a
Muslim couple and this was a matter that fell squarely within the terms of s
35(2)(d) of AMLA. Further, it was a matter which also fell within s 35(3) which
meant that it would be governed by Muslim law, a system of law in which I have
no competence whatsoever and which is not administered by the High Court.
33 At the end of the hearing I was firmly of the opinion
that I did not have the jurisdiction to hear the wife’s application.
Jurisdiction to determine any dispute arising out of its order clearly rested
with the Syariah Court. Her application had, therefore, to be dismissed.
34 I must, in conclusion, express my appreciation of Ms
Choi’s detailed researches and clear and analytical presentation of the legal
arguments involved in this application. I derived much assistance from them.
Application
dismissed.
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