Hafiani bte Abdul Karim v Mazlan bin Redzuan

• Jurisdiction: Singapore
• Judge: Kan Ting Chiu J
• Judgment Date: 04 November 1995
• Neutral Citation: [1995] SGHC 264
• Docket Number: Originating Summons No 410 of 1995
• Date: 04 November 1995
• Year: 1995
• Published date: 19 September 2003
• Plaintiff Counsel: Mohd Muzammil bin Mohd (MPD Nair & Co)
• Citation: [1995] SGHC 264
• Defendant Counsel: Mastan Marican (MM Marican & Co)
• Court: High Court (Singapore)
• Subject Matter: Syariah court,Variation of custody order made by Syariah court,Jurisdiction of Syariah Court to make custody orders,ss 35(2) & 52(3) Administration of Muslim Law Act (Cap 3),Custody,Family Law,Jurisdiction,Civil Procedure,High Court,Jurisdiction of High Court to hear application for custody,s 16(1) Supreme Court of Judicature Act (Cap 322),Muslim child,Whether High Cour or Syariah Court had jurisdiction,Muslim Law,Variation of custody order made under s 52(3) of Administration of Muslim Law Act (Cap 3),Hearing of custody application,Hearing of application for custody of Muslim children

The question of the High Court`s jurisdiction to hear an application for custody of Muslim children was raised in this case. Although several judgments have addressed this issue, it was necessary to review the law before coming to a decision on this application because the High Court`s jurisdiction to hear these applications depends very much on the circumstances in which they are brought before it, and whether the parties want the court to hear them.

It is helpful to set out the provisions of law that have to be considered. Section 16(1) of the Supreme Court of Judicature Act (Cap 322) provides that:

The High Court shall have jurisdiction to try all civil proceedings where -

(a) the cause of action arose in Singapore;

(b) the defendant or one of several defendants resides or has his place of business or has property in Singapore;

(c) the facts on which the proceedings are based exist or are alleged to have occurred in Singapore; or

(d) any land the ownership of which is disputed is situated within Singapore;

Provided that the High Court shall have no jurisdiction to try any civil proceedings which comes within the jurisdiction of the Syariah Court constituted under the Administration of Muslim Law Act.

The Administration of Muslim Law Act provides under s 35(2) that:

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.

And it provides under s 52(3) that:

In any application for divorce the Court may, at any stage of the proceedings or after a decree or order has been made, make such orders as it thinks fit with respect to -

(a) the payment of emas kahwin to the wife;

(b) the payment of a consolatory gift or mutaah to the wife;

(c) the custody, maintenance and education of the minor children of the parties; and

(d) the disposition or division of property on divorce.

These provisions were discussed in Muhd Munir v Noor Hidah and other applications [1991] 1 MLJ 276 by Chan Sek Keong J (as he then was). Chan Sek Keong J pointed out that s 35(1) confers jurisdiction on the Syariah Court over Muslim divorces and s 52(3) empowers the Syariah Court to make orders touching on the matters set out. He explained the distinction between jurisdiction and power:

The jurisdiction of a court is its authority, however derived, to hear and determine a dispute that is brought before it. The powers of a court constitute its capacity to give effect to its determination by making or granting the orders or reliefs sought by the successful party to the dispute. The jurisdiction and powers of the High Court are statutorily derived. Whether it has any common law jurisdiction or powers is a question which is not relevant here. A court may have jurisdiction to hear and determine a dispute in relation to a subject matter but no power to grant a remedy or make a certain order because it has not been granted such power, whereas if a court has the power to grant a remedy or make a certain order, it can only exercise that power in a subject matter in which it has jurisdiction.

... [T]he expression `jurisdiction` as used in s 16(1) of the SCJA with reference to the Syariah Court, when read together with s 35 of AMLA, means the authority of the Syariah Court to exercise any judicial power given by AMLA in respect of the types of subject matter prescribed by s 35(2) which are, specifically, marriage, divorce, betrothal, nullity, separation of marriage, disposition or division of property on divorce or the payment of emas kahwin, maintenance, and consolatory gifts and mutaah. As custody of children is a subject matter expressly omitted from s 35(2), I should hold, applying the expressio unius rule of construction, that the legislature did not intend to confer jurisdiction on the Syariah Court to hear and determine issues with respect to custody of children.

And he came to the conclusion that `s 52(3)(c) confers power and not jurisdiction`.

He added that in the exercise of its divorce jurisdiction, the Syariah Court has powers to make custody orders:

If section 52(3)(c) merely confers power, as I think is the case, then the High Court in construing the proviso to s 16(1) of the SCJA, will be concerned only with whether in the particular case before it, the Syariah Court is in a position to exercise its judicial power in relation to a subject matter in which it has jurisdiction, if that application was or is capable of being brought before the Syariah Court. This is a question of fact and law.

He then identified the preconditions for the Syariah Court to have jurisdiction over any matter:

(i) it must have jurisdiction in relation to the subject matter,

(ii) the matter must be capable of being brought to the Syariah Court for determination, eg the parties have not agreed that the matter be decided by the High Court,

(iii) where the Syariah Court has power to decide on a matter, the power can only be exercised if there is occasion to exercise it. There would be no occasion for the power to be exercised where:

(a) there is no divorce application before the Syariah Court,

(b) there is a divorce application, but there is no application for custody in the divorce application, and

(c) the Syariah Court does not wish to exercise the power.

The learned judge deferred making his decision on one of the applications, OS 466/90, a...