Hartinah bte Sahlan v Mohamed Juma`at bin Dollah and another action

• Jurisdiction: Singapore
• Judge: Christopher Lau JC
• Judgment Date: 23 April 1998
• Neutral Citation: [1998] SGHC 132
• Docket Number: Originating Summons Nos 696 of 1996 and 396 of 1997
• Date: 23 April 1998
• Published date: 19 September 2003
• Year: 1998
• Plaintiff Counsel: S Hameed (Hameed & Co)
• Citation: [1998] SGHC 132
• Defendant Counsel: Defendant in person in OS 696/96 - absent,G Pereira (Pereira & Tan)
• Court: High Court (Singapore)
• Subject Matter: Application to determine the extent of divorced parties' interest in matrimonial home,Whether High Court or Syariah Court has jurisdiction,Syariah court,Whether Syariah Court has occasion to exercise power of division,Courts and Jurisdiction,Division of matrimonial home,s 16(1) Supreme Court of Judicature Act (Cap 322),s 35 Administration of Muslim law Act (Cap 3),Muslim Law,ss 16(1) and 16(2) Supreme Court of Judicature Act (Cap 322),If not, whether the matter comes within High Court's jurisdiction,Family Law,Factors to be taken into account,Jurisdiction,Matrimonial home,Division of matrimonial home of couples married and divorced under Muslim laws

Judgment:

CHRISTOPHER LAU JC

Cur Adv Vult

Both these originating summonses concern the same principal issue, that of jurisdiction.

2.These two actions concern an application by the plaintiff in each of the actions for an order deciding on the extent of the plaintiff`s interest on a property registered in the names of the plaintiff and the defendant and for orders for the partition and sale of such property and the division thereafter of the sale proceeds between the parties.

3.The principal issue in each of these actions is whether the court has jurisdiction to make the orders sought as the plaintiff and the defendant in each of the actions were married in accordance with Muslim laws and subsequently divorced by consent before a Kadi of the Syariah Court. In each case there was no application before the Syariah Court for divorce and the Syariah Court did not grant the divorce. In each case, the Kadi also recorded an order as to who was to have custody of the children of the marriage but made no order for the division of the property. The Kadi had neither the jurisdiction nor the power to make such order. In each of the actions also the defendant had been served with the originating summons in accordance with Rules of Court 1996 and the Syariah Court has not in response to enquiries made by the plaintiff`s solicitors, said that it has the jurisdiction or that it wishes to exercise power to hear the dispute.

4.The defendant in OS 396/97 opposed the plaintiff`s application on the ground that this court has no jurisdiction since the application relates to the division or disposition of property on divorce. The defendant relied on s 16(2) of the Supreme Court of Judicature Act (Cap 322) (SCJA) and s 35 of the Administration of Muslim Law Act (Cap 3) (AMLA). The defendant in OS 696/96 was unrepresented and was absent during the proceedings.

5.The authority for the defendant`s submission (OS 396/97) on jurisdiction is the decision of the Court of Appeal in Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo [1996] 2 SLR 201 and the decision of Lim Teong Qwee JC in Madiah bte Atan v Samsudin bin Budin [1998] 1 SLR 610 .

6.In Salijah , Yong Pung How CJ in delivering the judgment of the Court of Appeal said at p 210:

the crucial test is whether the subject matter of the present dispute has been demarcated for determination by the Syariah Court. Where the Syariah Court has such jurisdiction, the High Court cannot deliberate on the issue. Section 16 SCJA speaks of `any civil proceeding which comes within the jurisdiction of the Syariah Court`, while s 35 AMLA states that the Syariah Court `shall hear and determine all actions and proceedings [involving] disputes relating` to the various matters specified. At this stage of analysis, what has to be discerned is the subject matter of the application in question. It requires a statement of the wife`s interest in the property, and such interest arises from the divorce. Therefore, in the appeal at present, the declaration is undoubtedly one involving the disposition or division of property on divorce. The result is thus that the High Court has no jurisdiction to enter into determination at all

7.Section 16(1) SCJA provides for the High Court to have jurisdiction where the defendant is served with an originating process such as the originating summons in each of these actions in Singapore in the manner prescribed by Rules of Court, or outside Singapore in the circumstances authorised by and in the manner prescribed by Rules of Court or where the defendant submits to the jurisdiction of the High Court.

8.Section 16(2) SCJA provides that the High Court shall have no jurisdiction in respect of matters coming within the jurisdiction of the Syariah Court. Section 35 AMLA provides that the Syariah Court is to hear and to determine all disputes relating inter alia, to the division of or disposition of property on divorce.

9.It is common ground that but for s 16(2) SCJA and s 35 AMLA, there would have been no doubt that under section 16 SCJA, this court would have jurisdiction.

10. Salijah did not concern a divorce registered by a Kadi. In Madiah bte Atan v Samsudin bin Budin , it did. In that action, on an application by the plaintiff in that summons for a declaration of her sole right to the matrimonial property, Lim Teong Qwee JC held that the plaintiff`s claim for disposition of the property on divorce fell within the jurisdiction of the Syariah Court under s 35(2)(d) of AMLA even though in the context of that claim the divorce was not one effected on an application to the Syariah Court for divorce but one registered by the Kadi, as was the plaintiff`s divorce in each of the actions before me.

11.So the principal point for determination is whether, on the facts of each of the actions before me, this court has jurisdiction to hear the plaintiff`s claim. For the reasons set out below, I think it has.

12.In Salijah , the factual background was quite different. In that case, the Syariah Court had already on an application made to it by the plaintiff wife, made an order for the disposition of the matrimonial property on the divorce and the issue before the Court of Appeal was whether the High...