Muhd Munir v Noor Hidah and other appplications

JurisdictionSingapore
CourtHigh Court (Singapore)
JudgeChan Sek Keong J
Judgment Date25 October 1990
Neutral Citation[1990] SGHC 78
Citation[1990] SGHC 78
Defendant CounselSusannah 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)
Plaintiff CounselRajan Nair (AL Hussein & Co),Mahendran s/o Mylvaganam (Mahen & Associates)
Docket NumberOriginating Summonses Nos 253,
Date25 October 1990
Publication Date19 September 2003
SubjectJurisdiction,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...

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35 cases
  • Madiah bte Atan v Samsudin bin Budin
    • Singapore
    • High Court (Singapore)
    • 22 September 1997
    ...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 t......
  • Rahimah bte Hussan v Zaine bin Yusoff
    • Singapore
    • High Court (Singapore)
    • 8 February 1995
    ...Hussain v Zainon binti OsmanOriginating Summons No 173 of 1994 (refd) Cox v O'Connor (1885) VLR 538 (folld) Muhd Munir v Noor Hidah [1990] 2 SLR (R) 348; [1990] SLR 999 (distd) Administration of Muslim Law Act (Cap 3, 1985 Rev Ed)s 52 (3) (consd);ss 34,35, 52,53, 145 Interpretation Act (Cap......
  • Salijah bte Ab Lateh v Mohd Irwan Abdullah
    • Singapore
    • Court of Three Judges (Singapore)
    • 8 May 1996
    ...519 (refd) Merker v Merker [1963] P 283 (distd) Morrison Rose & Partners v Hillman [1961] 2 QB 266 (refd) Muhd Munir v Noor Hidah [1990] 2 SLR (R) 348; [1990] SLR 999 (folld) Mutasa v Attorney General [1979] 3 All ER 257 (refd) Patten v Burke Publishing Co Ltd [1991] 1 WLR 541 (refd) Ra......
  • The "Jarguh Sawit"
    • Singapore
    • High Court (Singapore)
    • 23 January 1997
    ...11 Ch D 327 (folld) Corocraft, Ltd v Pan American Airways, Inc [1969] 1 QB 616; [1969] 1 All ER 82 (refd) Muhd Munir v Noor Hidah [1990] 2 SLR (R) 348; [1990] SLR 999 (folld) Nicolaos Pappis (1921) 9 Ll L Rep 493 (refd) Permina 108, The [1974-1976] SLR (R) 850; [1975-1977] SLR 221 (refd) Sh......
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