TAN SUNG MOOI v TOO MIEW KIM
The petitioner and respondent were married couple and solemnized their marriage in 1967 under Chinese customary law. They cohabited until 1982 until they decided to live apart. In 1988, the petitioner left their matrimonial home and in 1989 filed an application under section 53 of LRA (breakdown of marriage sole to divorce). The High Court grants decree nisi and absolute after three months. In the mean time, the petitioner filed application for ancillary relief for the divorce respectively under sections 76 and 77 of LRA 1976. Opposed to the application, the respondent raise an issue, that is, the court has no jurisdiction over him as he has converted to Islam. The petitioner then, contended that, as she remained being non-muslim, she cannot seek for maintenance as she has no stand before the Syariah Court. With this regard, she contended that Section 3 of LRA, (Muslim are not subject to this act), are unconstitutional because, her former husband are now muslim and not subject to the act (LRA 1976) and she cannot seek for justice. This application the removed to the Supreme Court. Issues arose:
Whether section 3 of LRA was unconstitutional in the lights of Article(s) 11(1) and 121(1A) of Federal Constitutional of Malaysia? Whether the High Court has the power in continuing to grant ancillary relief? Judge (s): Abdul Hamid Omar LP, Gunn Chit Tuan, Edgar Joseph JR, Eusoff Chin and Mohamed Dzaiddin SCJJ For introduction, the Law Reform Act is intended to be a governing act for marriages which solemnized other than Muslim marriage. With this regard, for muslim marriage, are not govern by this act. It is pursuant to Section 3(3) of LRA, which stated this act cannot be applied to Muslim. With reference to the circumstance, it is clear that both parties, their marriage were solemnized under Chinese customary law and it is within the sphere of LRA and everything produced, triggered, or results from this marriage, are to be governed by the LRA. So, in this case, the governing act need to be LRA and it falls under the civil court jurisdiction. In regard with the husband, who has converted to Islam, it cannot be an excuse to be not falling for liability under the act. The act enables the petitioner to seek for ancillary relief from their former marriage and it does not matter whether her former husband has converted to Islam or not. It is because, the nature of their marriage, was fall under the act and any settle later should be governed by the act. In addition, section 51(2) also give favor to recover for justice where, in occasion, the ground of divorce due to one converted to Islam, should given justice (ie ancillary relief) the other party who remained to be non muslim. It is, in the view; give same effect of Sections 76 and 77. For question of Section 3 to be unconstitutional, it is negative. It only intend, that muslim marriage cannot be governed by this act. It is therefore remain be in the path of constitution and does not opposed the constitution. In term of jurisdiction, the civil has such capacity to serve the case and to preserve justice. Letchumy v Ramadason
Section 51 has also been used by the converted spouse as an excuse not to pay maintenance. In Letchumy v Ramadason, petitioner obtained a divorce from the respondent on the ground of desertion. After the decree was made she applied for maintenance and the matter came before the Judicial Commissioner after the decree became absolute. The Judicial Commissioner ordered the respondent to pay the petitioner $200 a month as her maintenance. The respondent subsequently applied for the order to be set-aside on the ground that he had become a Muslim and under Islamic law the petitioner has no right to claim maintenance because she has not converted to Islam with her husband during the eddah period. The High Court held that since section 3(1) of LRA precludes the operation of the Act to a Muslim, and as the respondent had become a...
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