Lathibaby Bevi v Abdul Mustapha

• Jurisdiction: Singapore
• Judge: G P Selvam J
• Judgment Date: 12 November 1996
• Neutral Citation: [1996] SGHC 260
• Docket Number: Originating Summons No 930 of 1995
• Date: 12 November 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: RT Tiwary (R Tiwary & Co)
• Citation: [1996] SGHC 260
• Defendant Counsel: Noor Mohamed Marican (Noor Mohamed Marican & Associates)
• Court: High Court (Singapore)
• Subject Matter: Custody of Muslim children,Muslim Law,Syariah court,s 35(2) Administration of Muslim Law Act (Cap 3),Order sought in High Court varying existing custody order made by Syariah Court,Courts and Jurisdiction,ss 32(2) & 35(2) Administration of Muslim Law Act (Cap 3),Whether High Court had jurisdiction to grant order,High court,Powers,Marriage dissolved by Syariah Court

Judgment:

1.GP SELVAM CJ

This matter concerns a divorced Muslim couple and three children of the dissolved marriage. On 24 August 1994, the Syariah Court dissolved the marriage on the application of the husband. The wife was not represented by counsel. In addition the Syariah Court made an order, it would seem with the agreement of the parties, that the husband was to have custody of one child, a girl, and the wife to have custody of the other children, two boys.

2.After the divorce both parties remarried. The husband married a Muslim lady and the wife married a non-Muslim.

3.The wife has taken out this application by way of an originating summons in the High Court under the Guardianship of Infants Act (Cap 122) seeking an order that she be given custody of the daughter so that she can have custody of all three children. If the order sought is granted, it will nullify the custody order made by the Syariah Court. The question that rose in my mind is whether the High Court had the jurisdiction to grant it assuming of course that the applicant could make out her case on merits.

4. Jurisdiction of High Court

The Supreme Court of Judicature Act (Cap 322) by s 16(1) spells out the civil jurisdiction of the High Court and says in s 16(2) that `the High Court shall have no jurisdiction to hear and try any civil proceedings which comes within the jurisdiction of the Syariah Court constituted under the Administration of Muslim Law Act` (the AMLA).

5.The AMLA in s 35 says, inter alia, that the Syariah Court shall hear and determine all claims and proceedings in which all the parties are Muslims and where the parties were married under the provision of the Muslim Law and which involve disputes relating to divorces, inter alia, marriage, nullity of marriage and judicial separation, disposition or division of property on divorce and maintenance. This section says nothing about the custody, maintenance and education of the minor children of the marriage.

6.Finally, s 52 of the AMLA provides, inter alia, that in any application for divorce, that is in an application under s 52, the Syariah Court may, at any stage of the proceedings or after the decree or order has been made, make such orders as it thinks fit with respect to, inter alia, (c) the custody, maintenance and education of minor children of the parties and further (d) the disposition or decision of property on divorce. The provision is a repetition of what is already stated in s 35.

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