Hashim Yeop Sani CJ (Malaya):

The appellant in her statement of claims dated 30 June 1986 sought for a declaration from the High Court, Kuala Lumpur that she was a "dependant" as defined in s. 4 of the Pensions Adjustment (Amendment) Act 1983 and also a declaration that she was entitled to a derivative pension under s. 15 of the Pensions Act 1980.

In the statement of defence the respondent contended that the appellant was not a "widow" under the pension laws as claimed because "she did not convert to Islam within 3 months of her husband's conversion". This defence was obviously based on a fatwa as given in the affidavit of the Mufti, Wilayah Persekutuan in which the Mufti stated that:

I hereby state that according to Muslim law, if a married man embraces Islam but his wife fails to convert to Islam the marriage in question ceases to subsist on the date of the husband's conversion.

At the commencement of the hearing in the High Court parties arrived at the following agreed facts:

(1) appellant married Visuvalingam s/o Ponniah according to Hindu rites and the said marriage was registered on 15 November 1950.

(2) Visuvalingam s/o Ponniah embraced Islam on 16 July 1978 and adopted the name of Abd. Hamid bin Abdullah.

(3) Visuvalingam s/o Ponniah was a pensioner under the Pensions Act 1980.

(4) Visuvalingam s/o Ponniah died on 7 January 1985.

(5) By a letter of 7 March 1986 the plaintiff applied to the Public Services Department for derivative pension.

(6) On 16 April 1986 the Pensions Department rejected the plaintiff's application on the same grounds as stated in the statement of defence.

The registration of the said marriage on 15 November 1950 was under the Hindu Marriage Registration Enactment (Cap. 112). This Enactment was repealed by the Registration of Marriages Ordinance 1952 but s. 18 of the Ordinance saved the registration.

Section 4 of the Law Reform (Marriage and Divorce) Act 1976 provides that nothing in that Act shall affect the validity of any marriage solemnised under any law, religion, custom or usage prior to the appointed date and such marriage, if valid under that law, religion, custom or usage shall be deemed to be registered under the Act. That Act also provides that every such marriage shall continue until dissolved by the death of one of the parties or by order of a Court of competent jurisdiction or by a decree of nullity made by a Court of competent jurisdiction.

The issue before the High Court was as stated in the summons-in-chambers dated 8 June 1987 for the Court to deal with the question under O. 33 of the Rules of the High Court 1980:

whether the non-conversion of the plaintiff from her religion to that of Islam within 3 months of the conversion to Islam of her spouse dissolves the marriage between the plaintiff and her husband and thereafter disentitles her from being a "dependant" within the definition contained in s. 4 of the Pensions Adjustment (Amendment) Act 1983 and to a pension under s. 15 of the Pensions Act 1980.

First we must make it clear that we are not dealing with the question whether the appellant was entitled to any part of the estate of a deceased Muslim. We are only dealing with the question whether, following the question asked, she is entitled to a derivative pension under a particular law on pensions.

The word "dependant" is defined in s. 4 of the Pensions Adjustment Act 1980 as follows:

"dependant" means a widow, widower, child, mother or father of a deceased officer.

The word "widow" is defined in the Pensions Regulations 1980 as follows:

"widow" or "widower" means the surviving spouse of a deceased officer whose marriage is recognized in Malaysia as a valid marriage under any written law, religion, custom or usage. (Emphasis provided)

Section 15(1)(a) of the Pensions Act 1980 provides for derivative pension to persons prescribed in the Regulations.

The answer to the question posed is therefore straight forward. There is no evidence that the marriage has been dissolv