Muhd Munir v Noor Hidah and other appplications

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 25 October 1990
• Neutral Citation: [1990] SGHC 78
• Docket Number: Originating Summonses Nos 253,
• Date: 25 October 1990
• Published date: 19 September 2003
• Year: 1990
• Plaintiff Counsel: Rajan Nair (AL Hussein & Co),Mahendran s/o Mylvaganam (Mahen & Associates)
• Citation: [1990] SGHC 78
• Defendant Counsel: Susannah Roberta Siaw (Adrienne Chew & Partners),Salehah Johari (Saleha & Co),Mahadi Abu Bakar (Mahadi Abu Bakar & Associates),Sidhambaram (Ms) (Legal Aid Bureau),Noor Mohamed Marican (Noor Mohamed Marican & Associates)
• Court: High Court (Singapore)
• Subject Matter: Jurisdiction,Custody of Muslim children,Jurisdiction of Syariah Court to determine custody of Muslim children,Jurisdiction and powers of the High Court and Syariah Court to make custody orders,High Court's jurisdiction to be excluded when Syariah Court has jurisdiction,Family Law,Conflict in statutory jurisdiction between the High Court and Syariah Court in respect of custody of Muslim children,'Power',Whether Syariah Court has exclusive jurisdiction,Distinction between jurisdiction and power,Guardianship of Infants Act (Cap 122),Syariah Court,ss 35(1) & 52(3)(c) Administration of Muslim Law Act (Cap 3),'Jurisdiction',s 16(1) Supreme Court of Judicature Act (Cap 322),Courts and Jurisdiction,Words and Phrases,Syariah court,Muslim Law,Muslims,Whether Syariah Court has jurisdiction,Conflict of jurisdiction between High Court and Syariah Court

Cur Adv Vult

This clutch of cases raises a common issue as to the jurisdiction of this court to hear applications by Muslim parents with respect to custody of their children under the Guardianship of Infants Act (Cap 122). The relevant facts of each case are summarized below.

OS No 253/90

The plaintiff (father) and the defendant (mother) were divorced on 8 March 1990 by a decree of the Syariah Court, para 9 of which (as translated) states: `The issue of the child be referred to the High Court for a decision at the request of both parties.` The plaintiff now seeks the custody of the daughter.

OS No 336/90

The plaintiff (father) and the defendant (mother) were divorced by mutual agreement before a kadi who registered the divorce on 3 August 1989 in accordance with the provisions of the Administration of Muslim Law Act (Cap 3) (AMLA). No application for a custody order could be made before the kadi, but the parties, having mutually agreed on the custody of their children, appeared to have applied to the Syariah Court to register the terms of the divorce, including the terms of custody. The plaintiff has produced a copy of a certificate dated 3 August 1989 from the Syariah Court certifying that custody of the children had been awarded to the parties (two children to each). The certificate is endorsed with the following note: `The divorce certificate will be issued to them on 13 November 1989 after the `eddah` period expired.` The plaintiff now seeks the custody of the other two children on the ground (i) that the defendant has been detained as a drug addict and (ii) that she agreed to surrender custody of the two children to the plaintiff as she felt that she had no choice, having been advised by counsellors at the Syariah Court that that was the best course of action for her.

The defendant has also produced a copy of a letter dated 23 March 1990 from the Syariah Court stating that, as the divorce was registered by the kadi through a mutual agreement, `there is no order of court made with regards to the custody of their children`. The implication of this letter is that the certificate dated 3 August 1989 issued by the Syariah Court is not an order of court, but merely a record of the registration.

OS No 466/90

The applicant (father) and the respondent (mother) were divorced by a decree of the Syariah Court made on 26 June 1989 on payment of [nafkah] eddah of $800 and mutaah of $3,000. An order for custody of the children was made in favour of the mother, with access to the father. The husband was further ordered to transfer the matrimonial home to the wife upon her reimbursing his CPF contributions. The father wants custody of the children. In this action, he has obtained an ex parte order for custody to be given to him and another ex parte order directing the mother to deliver the children to him, if necessary with the assistance of the police.

OS No 705/90

The applicant (mother) and the respondent (father) were divorced by a decree of the Syariah Court made on 21 September 1988. No application for an order for custody was made as the parties had mutually agreed that each would have custody of one child. The mother now wishes to have custody of the other male child as well on the ground that he desires to live with her and that she only agreed to give custody to the father at the time of the divorce because she was still a probationary officer in a bank and had to work overtime and was also financially unable to look after him.

Jurisdiction

The issue of jurisdiction arises by reason of the proviso in s 16(1) of the Supreme Court of Judicature Act (Cap 322) (SCJA) which provides as follows:

(1) 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 issue was first raised by counsel for the defendant in OS No 253/90. Her contention is that the Syariah Court has jurisdiction with respect to proceedings for custody of Muslim children under s 52(3)(c) of the AMLA (under which the Syariah Court may make an order with respect to custody) and accordingly the High Court`s jurisdiction in the said proceeding has been excluded. Counsel for the plaintiff contends otherwise on the ground that AMLA does not affect the operation of the SCJA, which is a statute of general application. He refers to the decision of the Court of Appeal in Shaik Salleh v Mariambee [1948] MLJ 186 .

Counsel for the plaintiff in OS No 466/90 also contends the jurisdiction of this court is not affected by AMLA and relies also on Shaik Salleh `s case. Additionally, she adopts the argument of counsel for the respondent in OS No 705/90 that the Syariah Court has no jurisdiction or power to make any custody order under s 52(3)(c) of AMLA except a consent order.

Counsel for the applicant in OS No 705/90 argues that the Syariah Court`s power to make a custody order is not limited to consent orders as it is not a mere recording agency. It is a judicial tribunal with power to hear and determine such disputes. He further contends that as the expression `In any application for divorce` in s 52(3)(c) of AMLA is unqualified, it should be construed broadly so as to include a divorce application to the kadi. The argument of counsel for the plaintiff in OS No 336/90 is that the said expression can only refer to an application before the Syariah Court as the jurisdiction of the kadi is separate and independent of the Syariah Court.

The jurisdictional issue has never been raised before in this court. It is not free from difficulty. However, I can proceed by stating that in my view, Shaik Salleh `s case, decided in 1948, is not relevant to the issue as the proviso to s 16(1) of the SCJA was enacted in 1970 to take into account and prevent a conflict of jurisdiction between the High Court and the Syariah Court with respect to Muslims in Singapore. Before AMLA came into effect in 1968, the legal position was that the High Court had exclusive jurisdiction with respect to the custody of all children, whatever their race or religion, under the Guardianship of Infants Act 1934-1965 (Cap 50, 1936 Ed), that statute being recognized by the Court of Appeal in Shaik Salleh `s case as a statute of general application. I should point out, however, that Shaik Salleh `s case did not decide that the High Court had jurisdiction under the said statute with respect to the custody of Muslim children. The jurisdiction of the High Court was not in issue in that case as the parties, both Muslims, had voluntarily submitted to its jurisdiction by litigating under that statute. The issue there was whether Muslim law or English law (or the law as enacted in Cap 50, 1936 Ed itself) was the applicable law to determine which party had the better right to custody. The father relied on a Muslim law principle which, if applicable, would have given him custody. The mother relied on Cap 50, and in particular s 11 which provided that primary regard must be had to the welfare of the child. The Court of Appeal, affirming the decision of the High Court, held that the modification provision in the Second Charter of Justice could not be applied to Cap 50 which was intended to be of general application and also that no injustice or inconvenience would be done to Muslims in applying the statute to them.

Section 16(1) of the SCJA seems clear enough. It says that if a civil proceeding comes within the jurisdiction of the Syariah Court, the High Court has no jurisdiction to try that proceeding. To...