PUTRAJAYA – The Federal Court, in a 2-1 majority decision, ruled that a Muslim individual cannot be cited as party in legal marital dispute involving non-Muslim married couples in the civil court.
In delivering the majority decision by a three-member bench, Chief Justice Tun Tengku Maimun Tuan Mat said Section 3(3) of the Law Reforms (Marriage and Divorce) Act 1976 (LRA) clearly provided that Muslims are excluded from the application of LRA.
Justice Tengku Maimun, however, said the law is applicable against Muslim converts in cases where their non-Muslim spouses file a petition after the former converted to Islam following a civil marriage.
She said the object of the LRA is not only to govern non-Muslim marriages and divorces, but it is also to demarcate the separate personal laws applicable to Muslims and non-Muslims in the country.
She said this is in the light of Article 121(A) of the federal constitution on the separation of jurisdiction between civil and shariah courts.
With the majority decision, supported by Federal Court judge Datuk Seri Mohd Zawawi Salleh, the court dismissed the appeal brought by a woman whose identity was withheld.
The other judge on the bench, Federal Court judge Datuk Nallini Pathmanathan, dissented.
The case today is pertaining to an appeal by the woman over her legal bid to include a Muslim woman as co-respondent in her judicial separation petition filed in July last year in the high court against her husband, claiming that her marriage broke down due to an alleged affair between her husband and a Muslim woman.
The high court ruled that a Muslim can be named as co-respondent in a divorce petition and not in judicial separation, and as such, the court has no jurisdiction to condemn the co-respondent for damages under Section 58 of the LRA.
In a divorce, a marriage contract is annulled, whereas in cases of judicial separation, the marriage continues to exist but the couple are permitted to live separately.
The Court of Appeal, in allowing the Muslim woman’s appeal, ruled that the law is not applicable to Muslims.
In her dissenting decision, justice Nallini said Section 3(3) of the LRA does not preclude a non-Muslim petitioner from citing a Muslim as co-respondent on an allegation of adultery to a petition for judicial separation.
She said the courts are empowered by Section 17(a) of the Interpretation Act 1997 to look at the intent and purpose of a legislation when interpreting a provision.
She said a contextual and purposive approach ought to be adopted in construing the relevant phrase “shall not apply to a Muslim” within Section 3(3) of the LRA. – Bernama, December 1, 2021
