Khamis, 9 Mei 2013

Bidangkuasa Mahkamah Syariah Singapura dalam Tuntutan Mut’ah.


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.

Tiada ulasan:

Catat Ulasan