AJS v. JMH & ANOTHER APPEAL
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
MOHD ZAWAWI SALLEH FCJ
NALLINI PATHMANATHAN FCJ
[CIVIL APPEAL NOS: 02(i)-77-11-2020(W) & 02(i)-82-12-2020(W)]
1 DECEMBER 2021
[2021] CLJ JT (17)

Abstract

Given the clear wordings of s. 3(3) of the Law Reform (Marriage and Divorce) Act 1976 ('LRA') and the plain meaning of word 'or', the LRA is not applicable to a Muslim. The LRA does not merely govern monogamous marriages registered under the LRA, but more than that, it is a personal law for non-Muslims. Muslims have a different set of personal laws. If one is to read s. 3(3) only in respect of marriage and divorce, without regard to art. 121(1A) of the Federal Constitution read with art. 8(5)(a) of the same, the clear demarcation between the personal laws of Muslims and non-Muslims in Malaysia will be in a state of disarray.

FAMILY LAW: Marriage – Judicial separation – Petition – Wife filed petition for judicial separation against husband following allegation of adulterous relationship – Alleged adulteress Muslim – Wife named alleged adulteress as co-respondent – Whether Law Reform (Marriage and Divorce) Act 1976 ('LRA') applies to Muslims – Whether s. 3(3) of LRA precludes non-Muslim petitioner from citing Muslim as co-respondent on allegation of adultery, to petition for judicial separation – Whether court, when interpreting s. 3(3) of LRA, should have regard to presumption that Parliament does not intend to legislate in violation of arts. 5(1) and 8(1) of Federal Constitution

FAMILY LAW: Marriage – Judicial separation – Petition – Claim for damages – Wife filed petition for judicial separation against husband following allegation of adulterous relationship – Alleged adulteress Muslim – Wife named alleged adulteress as co-respondent and claimed for damages – Whether claim for damages against co-respondent on ground of adultery applies in petition for divorce only – Whether could apply in petition for judicial separation – Law Reform (Marriage and Divorce) Act 1976, s. 58

STATUTORY INTERPRETATION: Law Reform (Marriage and Divorce) Act 1976 – Section 3(3) – Whether Law Reform (Marriage and Divorce) Act 1976 ('Act') applies to Muslims – Whether s. 3(3) of LRA precludes non-Muslim petitioner from citing Muslim as co-respondent, on allegation of adultery, to petition for judicial separation – Whether language of s. 3(3) plain, unambiguous and unequivocal – Rule of construction – Whether required literal or purposive approach of interpretation – Whether court, when interpreting s. 3(3) of LRA, should have regard to presumption that Parliament does not intend to legislate in violation of arts. 5(1) and 8(1) of Federal Constitution

read more