Abdul Aziz bin Mohamed Yatim v Rubiah bte Rahmat

• Jurisdiction: Singapore
• Judge: Jocelyn Ong
• Judgment Date: 31 August 2005
• Neutral Citation: [2005] SGDC 182
• Published date: 21 November 2005
• Court: District Court (Singapore)
• Plaintiff Counsel: A Mohamed Hashim (A Mohamed Hashim and Magdelene Sng)
• Defendant Counsel: Mohd Lutfi (Lutfi and Co)

31 August 2005

District Judge Jocelyn Ong:

Introduction

1 The Parties were divorced in the Syariah Court on 24 July 2002. By the Decree of Court dated 24 July 2002, the Syariah Court granted the wife custody, care and control of the couple’s only child. The husband was given access to the child every Sunday from 10 am to 1 pm. The access was to be exercised at the Yishun North Police Centre. The husband appealed against the custody order. On 28 June 2003, the Appeal Board constituted under the Administration of Muslim Law Act (Cap 3) dismissed his appeal but extended the period of his access to the child to once every weekend from 10 am to 5 pm.

2 On 1 August 2003, the husband applied by way of Originating Summons 650142 of 2003, to register the order of the Appeal Board dated 28 June 2003 as a judgement of the District Court pursuant to Section 53(2) of the Administration of Muslim Law Act (Cap 3). The husband alleged in the affidavit filed in support of his application that the wife had deliberately refused to comply with the order of the Appeal Board by refusing to hand over the child to him for access. The order for registration of the Appeal Board’s order was duly made on 18 August 2003. Subsequently, on 10 October 2003, the husband took out an ex parte application by way of Summons-in-Chambers 651863 of 2003 for leave to apply to court for an order of committal against the wife under Order 52 Rule 2 of the Rules of Court (“the Rules”). Leave was granted on 27 October 2003. The husband then applied for an order of committal against the wife on 6 November 2003 by way of Summons-in-Chambers 652073 of 2003 under Order 52 Rule 3 of the Rules.

3 The application for committal first came up for hearing before me on 15 April 2004. But it was adjourned to give the counsels of both the husband and the wife time to look into the issue of whether the absence of a penal notice in the order of the Appeal Board as required under Order 45 Rule 7 (4)(a) of the Rules was fatal to the husband’s application. After being postponed twice when the Defendant wife was hospitalised and unable to attend court on both occasions, the matter was finally heard on 11 April 2005. It was not disputed that the order of the Appeal Board dated 28 June 2003 is a mandatory order (as opposed to a prohibitory order) and that the order was not endorsed with a penal notice. After hearing submissions from both counsels, I was persuaded by the wife’s counsel to follow the decision of District Judge Lim Hui Min in GM v GN [2004] SGDC 284, where she held that the absence of a penal notice in a mandatory order was fatal to the committal proceedings. Accordingly, I made no order on the committal application. I did however order the parties and the child to attend counselling at the Family Juvenile and Justice Centre

4 GM v GN concerned an application for committal which was also based on a Syariah Court order under which the applicant husband had been granted access to the children of the marriage and where he alleged that the defendant wife had breached the order by failing to bring his the children for access. The Syariah Court order did not contain a penal notice. District Judge Lim Hui Min concluded from her review of the decisions of the High Court and the Court of Appeal in Allport Alfred James v Wong Soon Lan [1988] SLR 987 and [1992] 2 SLR 385 that the absence of a penal notice in the order (which was a mandatory order) was fatal to the committal application.

5 The relevant extracts of paragraphs 6 to 8 of her Judgement are set out below.

“6 In the High Court...