The Law Reform (Marriage and Divorce) Act 1976 excludes Muslims from its application, affirming civil courts' jurisdiction in cases involving non-Muslims only.

Nor Bee Ariffin JCA:

Introduction

[1] These appeals arose from a matrimonial dispute. The respondent (in Appeal No W-02(IM)-2417-12-2019 (Appeal No 2417) had filed a Petition for Judicial Separation (Petition for JS) against her husband and cited the appellant who is a Muslim as a co-respondent, alleging that the appellant had committed adultery with her husband and should be condemned in damages pursuant to s 58 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164).

[2] The sole issue to be determined is whether Act 164 applies to a Muslim who is alleged to have committed adultery with a non-Muslim. The issue turns on the construction of subsection 3(3) of Act 164.

Background Facts

[3] The respondent petitioned that her husband had behaved in a manner that she could not reasonably be expected to live with him, as a result of which their marriage has irretrievably broken down. The particulars of adulterous relationship between the appellant and the respondent's husband were pleaded in paras 40 to 64 of the Petition for JS. The appellant was alleged to have admitted her extra-marital affairs with the respondent's husband. The respondent further pleaded that she had been abandoned by her husband as a result of his adulterous affair with the appellant.

[4] The appellant filed an application to strike out the Petition for JS pursuant to O 18 r 19(1)(a),(b) and/or (c) and/or (d) of the Rules of 2012 and /or s 13 of Act 164 and/or the inherent jurisdiction of the Court (encl 15) and prayed that paras 40-64 of the Petition for JS be expunged and for consequential reliefs, based on two grounds:

(a) subsection 3(3) of Act 164 provides among others that Act 164 does not apply to a Muslim. The respondent had no cause of action against the appellant as she is a Muslim and have been practising the religion of Islam since birth; and

(b) section 58 of Act 164 provides that a claim for damages against a co-respondent on the ground of adultery is only in respect of a petition for divorce and not in cases where the relief sought is for a judicial separation.

[5] The respondent asserted that the appellant was rightly named as she could not be absolved of her role in breaking the marriage and that her claim against the appellant was for damages for breaking her marriage which is well within the jurisdiction of a civil Court and it had nothing to do with the appellant's personal law.

[6] At the conclusion of the hearing of encl 15, the learned judge allowed the appellant's application and the Petition for JS was struck out against the appellant on the basis that the respondent's action in citing the appellant as a co-respondent in the Petition for JS was scandalous, frivolous or vexatious and was an abuse of the process of Court, the reason being under s 58 of Act 164, only in a petition for divorce can an alleged adulterer or adulteress be made a co-respondent and damages for adultery be claimed against the said co-respondent. An alleged adulterer or adulteress cannot be cited as a co-respondent in a petition for judicial separation.

[7] The learned judge further held that the fact that an alleged adulterer or adulteress is a Muslim is not a bar against him/her being named as a co-respondent in a divorce petition and damages for adultery to be claimed against him/her under s 58 of Act 164. In other words, the learned judge found that the appellant is not exempted from the application of subsection 3(3) of Act 164.

[8] The appellant appealed in Appeal No 2417 against the decision that the High Court has jurisdiction over a Muslim under Act 164.

[9] The respondent appealed in Appeal No W-02(IM)-2332-12-2019 (Appeal No 2332) against the decision that allowed the appellant's application to strike out the Petition for JS on the basis that pursuant to s 58 of Act 164, a co-respondent cannot be cited therein.

[10] We heard the two appeals together. We unanimously allowed Appeal No 2417 and dismissed Appeal No 2332.

[11] This judgment will canvass both