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This court case is important as the Federal Court was given an opportunity to examine or touch on the civil and Shariah legal systems in Malaysia, and the country’s separate set of personal laws in terms of marriage and divorce for Muslims and non-Muslims. — Reuters pic
This court case is important as the Federal Court was given an opportunity to examine or touch on the civil and Shariah legal systems in Malaysia, and the country’s separate set of personal laws in terms of marriage and divorce for Muslims and non-Muslims. — Reuters pic

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KUALA LUMPUR, Dec 1 — Non-Muslims cannot name a Muslim person as the alleged adulterer with their spouse that led to the breakdown of a marriage between two non-Muslims, according to a majority decision by the Federal Court today.

Among other things, it said this was due to the Law Reform (Marriage and Divorce Act) (LRA) being applicable only to non-Muslims and not Muslims, and suggested that a non-Muslim can instead complain to Islamic authorities of the adultery — which is a Shariah offence — allegedly committed by a Muslim which led to the marriage breakdown.

This court case is important as the Federal Court was given an opportunity to examine or touch on the civil and Shariah legal systems in Malaysia, and the country’s separate set of personal laws in terms of marriage and divorce for Muslims and non-Muslims.

What happened in this case

In this case, a non-Muslim woman filed a judicial separation petition — or for a court order that she does not need to cohabit or live together with the non-Muslim husband, claiming that her marriage had broken down and that she had been abandoned by the husband as a result of the latter’s alleged adulterous relationship with a Muslim woman.

The non-Muslim woman named the husband as the respondent and the Muslim woman as the co-respondent in the judicial separation petition, asking for the respondent to be “condemned in damages” or to claim for money as compensation under LRA’s Section 58 and for both the husband and other woman to pay the petition costs.

Section 58 enables damages for adultery to be claimed against a co-respondent, but the Muslim woman had said she was wrongly named in the judicial separation petition as she argued Section 3(3) meant the LRA does not apply to Muslims and as she argued that Section 58 only applies to divorce petitions and not judicial separation petitions.

The High Court allowed the Muslim woman’s application to strike out the judicial review petition against her, as it ruled that the LRA governs the marriage and divorce of non-Muslims and not Muslims, and that an alleged adulterer can still be named as co-respondent in divorce proceedings despite being a Muslim and that damages for adultery can still be claimed against the Muslim co-respondent under Section 58.

The High Court had also decided Section 58 only applies to divorce petitions and that it has no jurisdiction to condemn the co-respondent for damages under Section 58 in a judicial separation petition.

The non-Muslim woman appealed against the High Court decision that no one — whether Muslim or non-Muslim — can be named as co-respondent in a judicial review petition for the purposes of damages under Section 58, while the Muslim woman appealed against the High Court’s decision for saying that a Muslim can be named as co-respondent in divorce proceedings under Section 58.

The Court of Appeal unanimously ruled in the Muslim woman’s favour by saying that the phrase “This Act shall not apply to a Muslim” in the LRA’s Section 3(3) means that the entire Act does not apply to a Muslim and that she cannot be named in a judicial separation petition.

While there is an exception in Section 3(3) when it comes to a Muslim convert spouse or an initially non-Muslim spouse in a civil marriage who later converts to Islam, the Court of Appeal said the exception does not extend to damages for adultery.

Section 3(3) states that the LRA “shall not apply to any Muslim or to any person who is married under Islamic law” and no marriage involving a Muslim shall be solemnised or registered under the LRA, but provides that the courts can still grant a decree of divorce when asked by a spouse whose other spouse has converted to Islam.

Today, the Federal Court’s three-judge panel differed in its views, with two judges dismissing the non-Muslim woman’s appeal, while one judge ruled in favour of the non-Muslim woman.

What the majority decision said

Chief Justice Tun Tengku Maimun Tuan Mat, who chaired the panel, wrote the majority decision which was agreed to by fellow Federal Court judge Datuk Seri Mohd Zawawi Salleh. A press summary of the decision was made available to the media, 

Tengku Maimun said the phrase “This Act shall not apply to a Muslim” in Section 3(3) has no ambiguity and clearly carried the literal meaning that the entire LRA shall not apply to all Muslims in toto or as a whole, and does not just exclude Muslims who are married under Islamic law.

The non-Muslim woman had argued that the civil court has jurisdiction over the Muslim woman, as it will be the latter woman’s conduct and not her personal law that will come under scrutiny when the court decides if the latter was responsible for causing the breakdown of marriage.

But Tengku Maimun disagreed, saying that although the Muslim woman or respondent’s personal law was not an issue in the determining of the grounds of judicial separation petition in the High Court, her conduct in the alleged adultery impacts her personal law.

“For instance, the respondent can be charged in the Syariah court for the offence of khalwat and for instigating the husband to neglect his duties to the petitioner, which will in turn lead to double jeopardy,” the judge said, referring to the Muslim woman as the respondent and the non-Muslim woman as the petitioner.

The judge also said the Section 58 power for the court to condemn in damages a co-respondent is a specific power given to the court as part of non-Muslim personal law, and that allowing a Muslim to be named in such court proceedings would amount to imposing personal laws for non-Muslims on a Muslim.

“Allowing a non-Muslim petitioner to condemn a Muslim co-respondent is tantamount to enforcing non-Muslim personal law on a Muslim,” the judge said. 

“Similar options are not and cannot be legally made available to Muslim parties in litigation with each other in the Syariah Court but which might involve a non-Muslim as well. 

“It follows that just as a non-Muslim co-respondent cannot be brought to Syariah court, a Muslim correspondent cannot be brought to a civil court — in light of the clear demarcation of jurisdictions under Article 121(1A) of the Federal Constitution,” the judge said.

Article 121(1A) provides that civil courts shall have no jurisdiction over any matter that is within the Shariah courts’ jurisdiction.

Beyond the purpose of governing marriages and divorces — especially monogamous marriages among non-Muslims, the judge had cited parliamentary records when viewing the LRA as having the bigger purpose of clearly demarcating or separating the personal laws that apply to Muslims and non-Muslims in Malaysia as shown by parliamentary records.

As for the non-Muslim woman’s argument that a non-Muslim adulterer could escape liability — after being named as a co-respondent — by converting to Islam, the chief justice pointed out that there have been many court judgments that state that a person’s previously existing obligations under the LRA would not be avoided by the person’s conversion to Islam.

In cases such as the current case where the co-respondent is a Muslim, the chief justice said that the non-Muslim person would still have the option to pursue the legal remedy of informing the Islamic authorities about the alleged Muslim adulterer.

“Firstly, a Muslim, if found to engage in the immoral act of committing adultery, is answerable to the criminal side of the Shariah system. 

“It remains open for the non-Muslim party to lodge a complaint with the religious authorities that the Muslim co-adulterer/adulteress has committed an offence under Syariah law,” the judge said, citing as example the Syariah Criminal Offences (Federal Territories) Act’s Section 24 and Section 27 which makes it an offence to have intercourse out of wedlock or to commit khalwat (close proximity between men and women who are not or cannot be married).

The judge said this would be in line with LRA’s Section 58’s purpose of being compensatory in nature and not to punish despite the use of the phrase “condemn in damages”, noting: “The point of seeking condemnation of the co-respondent who committed adultery is not to profit from the fact of breakdown of the marriage by seeking a windfall in damages.”

Citing Section 58, the judge said this means that the civil secular courts do not have the power to punish a non-Muslim for adultery even if they are found to have committed adultery, adding that this is different for Muslims who are subject to moral laws under their personal laws that are both religious and customary in nature.

“Thus, any person is entitled to file a criminal complaint against a Muslim for committing ‘adultery’ in the manner recognised by Shariah law for either intercourse out of wedlock or khalwat,” the judge said, adding that the petitioner could still seek for sufficient financial or monetary redress by asking for maintenance from the other spouse after breakdown of the marriage.

Section 58 provides that the person in a civil marriage claiming that there was adultery “shall” name the alleged adulterer as a co-respondent in a divorce petition unless the court gives exemption based on “special grounds”, with Tengku Maimun saying that the fact that the co-respondent is a Muslim would fall under the special grounds or special reasons.

The judge also cited the Divorce and Matrimonial Proceedings Rules 1980’s Rule 11(1) which allows a petition to state that the co-adulterer’s identity is unknown to the petitioner or if the court directs so, adding that she did not see how there can be any “procedural injustice” to the petitioner if he or she cannot name the co-adulterer when the law has made contingencies for not naming them. 

While saying that Section 58 does not limit a claim for damages against a co-adulterer to only be made in a divorce petition and that such claim for damages could also be made in a judicial separation petition, the judge however said a claim for damages could not be made against the Muslim woman in this case as the LRA does not apply to her due to her religious status as a Muslim.

Ultimately, the majority decision said the Court of Appeal was correct to strike out or remove the Muslim woman’s name from the judicial separation petition due to her Muslim status.

What the minority decision said 

In a separate press summary of the minority judgment by the sole dissenting judge Datuk Nallini Pathmanathan, the judge said Section 3(3) would not stop a non-Muslim from naming a Muslim as a co-respondent on an allegation of adultery in a petition for judicial separation.

Nallini said that if Section 3(3) is to be interpreted in its proper context instead of in a vacuum, it would mean that the law enforcing monogamy and registration and dissolution of non-Muslim marriages — which is what the LRA’s purpose is — does not apply to Muslims.

In other words, Nallini said that a Muslim can be named as a co-respondent in a judicial separation petition, as it is mainly a procedural matter where this Muslim person is just incidental or related to the main matter involving two non-Muslims’ marriage.

Naming the Muslim woman as co-respondent in this case would not result in the law of monogamy or marriage and divorce for non-Muslims — the LRA — being applied or being imposed on the Muslim person, the judge said.

The judge said this is because the Muslim woman is not a party or a spouse in the non-Muslim marriage and is not being required to comply with the LRA law on monogamy or marriage or divorce, but the Muslim person is simply required to provide evidence in the civil court to enable the court to determine whether the alleged adultery has been proven.

“None of the provisions are being applied ‘against’ the third party but ‘against’ the husband in the non-Muslim marriage. The third party is merely an incidental party who is required to

establish the fact of breakdown of the marriage,” the judge said.

As for the “double jeopardy” argument that a Muslim person may have to face prosecution and potential punishment in the Shariah court after being named as a co-respondent in a judicial separation petition in the civil courts and potentially facing the need to pay damages, the judge indicated that there would actually be no double jeopardy.

Nallini highlighted that the Shariah courts would not act on the civil courts’ findings that there was adultery, and that an independent investigation and cogent and independent evidence would be required before any charges under the Shariah law is brought against the alleged adulterer.

The judge said that the strict evidence required to establish that there was a Shariah offence of “zina” or intercourse outside wedlock would include confession of both parties or eyewitness testimony by four men of credible character, with other evidence being merely circumstantial and not admissible for such a prosecution.

“This is necessitated by reason of the severity of the punishment for such a crime,” the judge said when noting the strict nature of evidence required in the Shariah court for adultery.

As the damages that the court may possibly order the third party — the Muslim woman in this case — to pay damages if it was indeed the third party who induced the adultery and the adultery allegation is proven, the judge noted that such damages would be of a compensatory nature and not intended to punish.

“That means that the third party is not being punished for having engaged in an adulterous act. Rather it is compensatory for the petitioner who has suffered the loss of her husband and marriage as a consequence of the act of adultery. 

“The fact of the damages being compensatory means that there is no issue of ‘double jeopardy’ in relation to the third party’s personal law or Islam,” the judge said.

If the Muslim woman is not allowed to be named as a co-respondent, the judge said that the non-Muslim woman would not be able to seek the remedy of judicial separation due to the husband’s adultery with the other woman.

This is because the allegation of adultery has to be proven in such court proceedings to have been committed by one spouse (in this case the husband with the Muslim woman), and as naming the Muslim woman as a co-respondent would be important for proving that the marriage had broken down due to adultery.

If the third party is disallowed from giving testimony in the civil courts for this judicial separation petition, the judge said it would be “virtually impossible to procure her presence in court” and also noted that the petition cannot be sustained without a co-respondent.

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