Harun Mahmud Hashim SCJ:

[1] This was an application in the High Court to set aside an ex-parte interim injunction and another application to strike out the plaintiff's writ and statement of claim. Both applications were heard together when the Court's jurisdiction was challenged. The learned Judge determined that the following questions were before the Court:

(a) whether the Court has jurisdiction to adjudicate on the plaintiff's action since it involves a matter which falls exclusively within the jurisdiction of the Syariah Court; and

(b) whether the plaintiff could institute the present action against the defendant when s 9(2) of the Married Women Ordinance 1957 prohibited a wife from suing her husband in tort.

[2] In the event the learned Judge held that he had jurisdiction and that s 9(2) of the Married Women Ordinance did not apply. The defendant appeals against these rulings. The applications proper have yet to be heard on the merits.

[3] The plaintiff and defendant are Muslims They were married on 5 August 1965 at Batu Pahat in the State of Johor which marriage was registered by the Jabatan Agama Johor on 9 August 1965. On 3 March 1989 the plaintiff (wife) petitioned for divorce in the Syariah Court of Kuala Lumpur. The hearing of the divorce petition was pending at the material time.

[4] The plaintiff alleges that during the course of her marriage she was battered by her husband on numerous occasions. On 14 February 1989 she filed a Writ of Summons in the High Court at Kuala Lumpur and claimed the following reliefs:

(i) damages and/or aggravated damages for acts of assault and battery committed by the defendant against the plaintiff and the members of their family.

(ii) an injunction to restrain the defendant by himself, his servant, agent or otherwise howsoever from assaulting, harassing, molesting or interfering, calling and harassing by telephone calls, coming to the plaintiff's compound at any time of the day with the intention of seeing the plaintiff, approaching the plaintiff or trying to see the plaintiff or talk to the plaintiff, abusing or insulting the plaintiff by word or action in any manner, way-laying the plaintiff at any place and using physical force on the plaintiff, interfering or harassing or in any manner disturb any person or persons, relatives and friends safeguarding the plaintiff's safety; and until further order;

(iii) costs of this action; and

(iv) further and/or any other relief as this Honourable Court deems fit to award.

[5] At the same time she filed an ex-parte summons-inchambers praying for a temporary injunction to restrain the defendant from inter alia assaulting, harassing or molesting her and members of her family. On 15 February 1989 when the ex-parte summons came on for hearing, the defendant appeared and gave an oral undertaking that he would not assault, harass or molest the plaintiff. The learned Judge therefore made no order and adjourned the matter sine die. However, on 12 April 1989, the solicitor for the plaintiff filed an affidavit complaining that the defendant continued to harass the plaintiff and requested the Court to restore the plaintiffs application for an interim injunction which application the learned Judge granted ex-parte on 11 April 1989 with liberty to the defendant to set it aside.

[6] On 21 April 1989 the plaintiff filed her statement of claim. On 28 April 1989 the defendant filed a notice of motion to set aside the temporary injunction. On 12 May 1989 the defendant took out a summons-inchambers to strike out the plaintiffs writ and statement of claim under O 18 r 19(1) of the Rules of the High 1980. Both applications eventually came on for hearing on 30 August 1989.

[7]Article 121 of the Federal Constitution states:

(1) There shall be two High Courts of co-ordinate jurisdiction and status, namely-

(a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry in Kuala Lumpur; and

(b) one in the Borneo State