Chaytor v Zaleha bte A Rahman

• Jurisdiction: Singapore
• Judge: Lai Siu Chiu J
• Judgment Date: 23 March 2001
• Neutral Citation: [2001] SGHC 56
• Docket Number: District Court Appeal No 710003 of 2000
• Date: 23 March 2001
• Published date: 19 September 2003
• Year: 2001
• Plaintiff Counsel: Mirza Namazie (as counsel) with Chua Boon Beng and Alice Yeo (Tan Peng Chin & Partners)
• Citation: [2001] SGHC 56
• Defendant Counsel: Mary Edmonds (Chiang Wee & Partners)
• Court: High Court (Singapore)
• Subject Matter: Appeal against liability for maintenance,Status of Muslim wife after pronouncement of talak,s 69(1) Women's Charter (Cap 353, 1997 Ed),Whether civil courts should treat Muslim wife as still married until divorce confirmed by Syariah Court,Maintenance,Jurisdiction,Whether considered married for purposes of maintenance,Family Law

: This was an appeal against the decision of district judge Regina Ow-Chang Yee Lin wherein she ordered the appellant Alan James Chaytor (`Chaytor`), to pay the respondent Zaleha bte A Rahman (`Zaleha`), $1,500 per month as her maintenance until the conclusion of Syariah Court Summons No 18599 of 2000 and, $1,000 per month as maintenance for their daughter, Deanna Shah Azlan Chaytor (`Deanna`).

The facts

Chaytor and Zaleha were lawfully married at the Registry of Muslim Marriages Singapore, on 10 December 1995; Deanna was born on 5 December 1996. On 11 April 2000, Chaytor pronounced a single talak in the presence of two witnesses, Mr Noorman bin Mohtar and Mr Mohd Rosli Sawi. On 24 May 2000, Chaytor filed Syariah Court Summons No 18599 of 2000 (`the Syariah Court Summons`). Amongst other things, the Syariah Court Summons dealt with the ancillary matters relating to the divorce, such as the amount of nafkah iddah (maintenance during the three-month period of iddah ) and mutaah (consolatory gift) to be paid to Zaleha, custody of Deanna and division of the matrimonial assets.

Prior to the pronouncement of the talak , Chaytor had been paying Zaleha a monthly sum as maintenance for her and Deanna; this stopped in May 2000. On 16 June 2000, Zaleha filed Maintenance Summons No 3175 of 2000 (`the Maintenance Summons`) in the Family Court, for maintenance for herself and Deanna, pursuant to s 69(1) and (2) of the Women`s Charter (Cap 353, 1997 Ed) (`the Charter`).

The Maintenance Summons was heard on 24 August 2000. At the hearing, Chaytor objected to Zaleha`s application for maintenance for herself, on the ground that they were divorced as from the date of the pronouncement of the talak, and that consequently, Zaleha was no longer eligible for maintenance under s 69(1) of the Charter since she was no longer a ` married woman ` as required by the section.

The decision of the district judge

The court below held that until the divorce was registered by the Syariah Court and a divorce certificate issued, the civil courts would still view the parties as married. As of the date of the hearing in the District Court, the Syariah Court had yet to adjudicate on the validity of the talak divorce. The judge therefore treated Zaleha as a ` married woman ` for the purposes of s 69(1) of the Charter.

Chaytor was ordered to pay Zaleha $1,500 per month as maintenance until the conclusion of the Syariah Court Summons and $1,000 per month as maintenance for Deanna. If the Syariah Court held that the divorce was valid as of the date of the talak , the judge held it was open to Chaytor to apply to the Family Court for rescission of the maintenance order.

The appeal

Chaytor appealed only as regards liability; he did not challenge the amount of maintenance awarded to Zaleha. The issue is: was Zaleha, on 16 June 2000, still a ` married woman ` for the purposes of s 69(1) of the Charter? Section 69(1) provides:

Any married woman whose husband neglects or refuses to provide her reasonable maintenance may apply to a District Court or a Magistrate`s Court and that Court may, on due proof thereof, order the husband to pay a monthly allowance or a lump sum for her maintenance. [Emphasis is added.]

Section 69(1) of the Charter is applicable to a woman who is married under Muslim law. Section 3(2) of the Charter provides that Pts II to VI and Pt X of the Charter shall not apply to any person who is married under the provisions of the Muslim law. Thus, s 113 of the Charter, which falls under Pt X of the Charter and which empowers the court to order a man to pay his wife or former wife maintenance during the course of any matrimonial proceedings or subsequent to the divorce, is not applicable to a woman married under Muslim law . Section 69 of the Charter, however, falls under Pt VIII of the Charter, and is not circumscribed by s 3(2).

That, however, only resolves that s 69(1) is potentially applicable to Zaleha as a Muslim. Whether s 69(1) is in fact applicable depends on whether she is still a ` married woman ` after the pronouncement of the talak or, if she remains a ` married woman ` despite the pronouncement of talak , until the Syariah Court determines that the divorce is valid. Counsel for Chaytor argued that under Muslim law, a married woman is effectively divorced as of the date that the husband pronounces the talak . An explanation of the talak is to be found at p 150 of AAA Fyzee`s Outlines of Muhammadan Law (4th Ed, 1974), a treatise on Muslim law which was referred to the court by counsel:

The word talaq (talak) is usually rendered as `repudiation`; it comes from a root (tallaqa) which means `to release (an animal) from a tether`; whence, to repudiate the wife, or free her from the bondage of marriage. In law, it signifies the absolute power which the husband possesses of divorcing his wife at all times ...

A Muslim husband of sound mind may divorce his wife whenever he so desires without assigning any cause. Such a proceeding, although abominable, is nevertheless lawful. The divorce operates from the time of the pronouncement of talaq. The presence of the wife is not necessary, nor need notice be given to her. [Emphasis is added.]

The learned author went on to explain that there are four forms of talaq : the ahsan form, hasan form, the triple declaration form, and the one irrevocable declaration form. The ahsan form is described in the following manner at pp 152-153:

The ahsan (or most approved) form consists of one single pronouncement in a period of tuhr (purity, i.e. when the woman is free from her menstrual courses), followed by abstinence from sexual intercourse during that period of sexual purity ( tuhr) as well during the whole period of `idda ...

A pronouncement made in the ahsan form is revocable during `idda. This period is three months from the date of the declaration or, if the woman is pregnant, until delivery. The husband may revoke the divorce at any time during the `idda. Such revocation may be by express words or by conduct ...

After the expiration of the `idda the divorce becomes irrevocable.

A Muslim wife, after divorce, is entitled to maintenance during the `idda, and so also her child, in certain circumstances.

The hasan form consists of three successive pronouncements of talaq during three consecutive periods of tuhr . The triple declaration form consists of three pronouncements of talaq made in a single tuhr , either in a single sentence or in three sentences. It is called at-talaqu`l-ba`in , irrevocable divorce. The one irrevocable declaration form, is also called at-talaqu`l-ba`in . It consists of a single, irrevocable pronouncement and may be given in writing.

The learned author went further to say (at p 155):

In theahsan form, the divorce is effective on the expiration of the`idda. In the hasan form, the divorce is effective on the third pronouncement. In the talaq al-bid`a [the irrevocable forms], the divorce is effective from the moment of pronouncement or the execution of the writing of divorce. [Emphasis is added.]

There appears to be some inconsistency in the learned author`s treatment of when divorce is effective. At p 150, he stated that divorce operates from the time of pronouncement of talaq . For Zaleha, that would be on 11 April 2000. However, the author had also stated (at p 156) that divorce in the ahsan form is effective on the expiration of the iddah period, which for Zaleha, occurred around 11 July 2000.

This disparity does not dramatically affect counsel`s argument, since by the date of the hearing in the court below (24 August 2000), the iddah (period) had in any event expired. On counsel`s line of argument, by either definition, Zaleha would no longer be a ` married woman `, as at 24 August 2000.

This apparent inconsistency in the author`s treatment of when divorce is effective, does, however, suggest that any attempt by the civil courts to apply Muslim law should be made with much care, if at all, even where the principle of law seems cut and dried. Indeed, the possibility of the civil courts misapplying Muslim marriage laws was foreseen by Parliament, when it enacted s 17A(1) of the Supreme Court of Judicature Act (Cap 322, 1999 Ed) (`the SCJA`) and s 19(5) of the Subordinate Courts Act (Cap 321, 1999 Ed) (`the SCA`), which provide that the power to determine what constitutes a valid Muslim marriage or divorce lies solely within the jurisdiction of the Syariah Court. The relevant provisions are:

Section 35(2) of the Administration of Muslim Law Act (Cap 3, 1999 Ed) which states:

The [Syariah] Court shall have jurisdiction to 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;

Section 17A(1) of the SCJA states:

Notwithstanding sections 16 and 17, the High Court shall have no jurisdiction to hear and try any civil proceedings involving matters which come within the jurisdiction of the Syariah Court under section 35 (2) (a), (b) or (c) of the Administration of Muslim Law Act (Cap. 3) in which all the parties are Muslims or where the parties were married under the provisions of the Muslim law.

Section 19(5) of the SCA states:

A District Court`s 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 (Cap. 3) shall be the same as the High Court as if section 17A of the Supreme Court of Judicature Act (Cap. 322) applies to the District Court with the modification that any reference therein to the High Court shall be read as a reference to a District Court.

The...