Madiah bte Atan v Samsudin bin Budin

• Jurisdiction: Singapore
• Judge: Lim Teong Qwee JC
• Judgment Date: 22 September 1997
• Neutral Citation: [1997] SGHC 239
• Docket Number: Originating Summons No 1072 of
• Date: 22 September 1997
• Published date: 19 September 2003
• Year: 1997
• Plaintiff Counsel: S Bhaskaran (Hameed & Co)
• Citation: [1997] SGHC 239
• Defendant Counsel: Defendant absent
• Court: High Court (Singapore)
• Subject Matter: s 16(2) Supreme Court of Judicature Act (Cap 322),s 35(2)Administration of Muslim Law Act (Cap 3),Jurisdiction,Whether proceeding within jurisdiction of Syariah Court or High Court,Whether wife's claim within jurisdiction of Syariah Court despite divorce not being effected on application to Syariah Court,Syariah court,Muslim Law,s 35(2), (3) & s 52(3)Administration of Muslim Law Act (Cap 3),Courts and Jurisdiction,Disposition of matrimonial property on divorce,Disposition of matrimonial property on divorce -Divorce registered by kadi,Powers

Judgment:

LIM TEONG QWEE JC

This action by originating summons issued on 29 October 1996 raises a short but important point as to the jurisdiction of this court. The plaintiff claims a declaration that she and the defendant hold the property at Apt Blk 11 Upper Boon Keng Rd #07-925 Singapore 380011 as joint tenants in trust for the plaintiff as to the entirety and she also claims certain other consequential reliefs. The terms of the declaration stated in the originating summons are in fact different but not to any substantial extent and I have stated the terms given by counsel in his application to amend.

2.The parties were married in 1972 under the provisions of the Muslim law and they have three children who were aged between 22 and nine years at the commencement of this action. In 1987 they purchased the property from the Housing & Development Board (HDB) for $43,000. The plaintiff said she paid $17,000 and together they raised a mortgage loan to pay the balance. She has been paying off the loan since. She said the defendant had not paid anything for the purchase of the property at all. A substantial part of the loan is still unpaid. The parties are and since their purchase of the property have been together entitled as joint tenants and they are the mortgagors under the mortgage to secure the loan.

3.The plaintiff said in her affidavit:

On 30 January 1991 on my application for divorce, we were divorced before a Kathi of the Shariah Court who has duly registered our divorce. Since the matter was not heard by the President of the Shariah Court, no orders were made with regard to the ancillary matters. However, the defendant agreed to transfer the matrimonial flat known as Blk 11, Upper Boon Keng Road #07-925, Singapore (hereinafter referred to as `the HDB flat`) to me and agreed to give the custody care and control of the said three (3) children of the marriage to me. Accordingly, the said three children of the marriage were given to me in custody and since then I am having custody care and control of the said three children.

She said the defendant attended at the office of the HDB for the transfer of the property in 1992 but has not proceeded with it and has since `disappeared` and she does not know where he is. Service of the proceedings was effected by substituted service and he was not present at the hearing.

4.Mr Bhaskaran submitted that the Syariah Court established under the Administration of Muslim Law Act (Cap 3) (AMLA) has no jurisdiction in regard to the matters in these proceedings. He said there was `no divorce proceeding or divorce application before the Syariah Court as the divorce was granted by a kadi `. He referred to Muhd Munir v Noor Hidah and other applications [1990] SLR 999 . He submitted that this court has jurisdiction and the plaintiff is entitled to the declaration as she has made all monetary contributions towards the purchase of the property and the defendant has contributed nothing.

5.In Muhd Munir v Noor Hidah there were four separate applications before the court. The parties in all the cases were Muslims and had been married under the provisions of the Muslim law. In OS 336/90 the parties were divorced by mutual agreement before a kadi who registered the divorce. In the other three cases the parties were divorced by a decree of the Syariah Court. In all the four cases applications were made with respect to custody of the children under the Guardianship of Infants Act (Cap 122). Chan Sek Keong J (as he then was) considered s 35(2) of AMLA and said at p 1009C:

As s 35(2) does not confer jurisdiction on the Syariah Court in guardianship of infants, it has no jurisdiction in relation to custody of children arising from the rights of guardianship per se.

6.Section 35(2) of AMLA provides:

The [Syariah 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.

It is apparent that the jurisdiction conferred on the Syariah Court by s 35(2) does not extend to actions or proceedings which involve disputes relating to the custody or maintenance or education of the minor children of the parties. All the four cases were concerned with custody of children. In the case before me the plaintiff`s claim is for a declaration concerning her interest in the property.

7.Section 16(2) of the Supreme Court of Judicature Act provides:

Notwithstanding subsection (1), the High Court shall have no jurisdication to hear and try any civil proceeding which comes within the jurisdiction of the Syariah Court constituted under the Administration of Muslim Law Act.

If a proceeding comes within the jurisdiction of the Syariah Court then this court has no jurisdiction.

8.In Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo [1996] 2 SLR 201 the parties were Muslims and their marriage had been dissolved by a decree of the Syariah Court. The Syariah Court also ordered that:

the flat shall be given to the wife. All the CPF contributions of the husband used to purchase the flat shall be returned to his CPF account without interest. The husband shall transfer his interest in the flat to the wife. All expenses relating to the transfer shall be borne by the wife.

The husband defaulted and the wife applied for a declaration concerning her interest in the property. Her application was dismissed and she appealed. In the Court of Appeal Yong Pung How CJ said at p 210:

the crucial test is whether in substance 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

See also Rahimah bte Hussan v Zaine bin Yusoff [1995] 2 SLR 391 where the Syariah Court decreed that the marriage be dissolved and made a substantially similar order as regards property.

9.In Salijah bte Ab Latef v Mohd Irwan bin Abdullah Teo and Rahimah bte Hussan v Zaine bin Yusoff the marriage was dissolved by a decree of the Syariah Court. In the case before me the marriage was not so dissolved. Mr Bhaskaran`s submission is that following Muhd Munir v Noor Hidah the Syariah Court has no jurisdiction. This is clearly untenable. The proceedings in those four cases were concerned with custody of children. The proceedings before me are concerned with disposition of property on divorce which is one of the matters specified in s 35(2) of AMLA. Mr Bhaskaran`s alternative submission is that `divorce` in s 35(2)(d) refers to a divorce granted by the Syariah Court on an application made to it.

10.Section 102(2) of AMLA provides:

In the case of every divorce effected in Singapore and which has not been registered in accordance with subsection (1), the husband and wife shall -

(a) attend personally within 7 days of the divorce at the office of a Kadi;

(b) furnish such particulars as are required by the Kadi for the due registration of such divorce ; and

(c) apply in the prescribed form for the registration of such divorce .

When the kadi has registered a divorce he must send a copy of the certificate of divorce to the President of the Syariah Court. Where an application is made to the kadi to register a divorce by three talak or when the kadi is...