The Law Reform (Marriage and Divorce) Act 1976 excludes its application to Muslims, upholding clear separations of jurisdiction between civil and Syariah laws.

Tengku Maimun Tuan Mat CJ (Majority):

Introduction

[1] These appeals concern primarily the interpretation of ss 3 and 58 of the Law Reform (Marriage and Divorce) Act 1976 ('the LRA').

Background Facts

[2] The appellant in both these appeals filed a judicial separation petition in the High Court at Kuala Lumpur (Family Division) against her husband. The appellant alleged that the husband had committed adultery with the respondent in the present appeals.

[3] It is important to note that the appellant and her husband both of whom are non-Muslims, were married in New South Wales, Australia but were domiciled in Malaysia for a period of two years immediately preceding the commencement of the petition. It must also be clarified at the outset that I make no ruling as to the merits of the petition and its outcome.

Proceedings In The High Court

[4] The appellant pleaded, in accordance with s 54(1)(a) of the LRA, that as a result of her husband's adulterous relationship with the respondent, who is a Muslim, the appellant had been abandoned by her husband and that her marriage had broken down.

[5] In her judicial separation petition, the appellant cited her husband as the respondent and named the respondent in the instant appeals as co-respondent. The appellant prayed that the respondent be condemned in damages under s 58 of the LRA and that the husband as well as the co-respondent bear the costs of the petition.

[6] The respondent contended that she had been wrongly cited as a party. She filed an application under O 18 r 19(1)(a) of the Rules of 2012 ('ROC 2012') and/or Rule 103 of the Divorce and Matrimonial Proceedings Rules 1980 ('DMPR 1980') and/or the inherent jurisdiction of the Court to strike out the judicial separation petition against her.

[7] The application to strike out was premised on the following grounds:

(i) That by virtue of s 3(3) of the LRA, the LRA does not apply to a Muslim; and

(ii) That a claim for damages against a co-respondent under s 58 of the LRA only applies in respect of a petition for divorce and not a petition for judicial separation.

[8] Section 3 of the LRA reads:

"Application

3. (1) Except as is otherwise expressly provided this Act shall apply to all persons in Malaysia and to all persons domiciled in Malaysia but are resident outside Malaysia.

(2) For the purposes of this Act, a person who is a citizen of Malaysia shall be deemed, until the contrary is proved, to be domiciled in Malaysia.

(3) This Act shall not apply to a Muslim or to any person who is married under Islamic law and no marriage of one of the parties which professes the religion of Islam shall be solemnized or registered under this Act; but nothing herein shall be construed to prevent a Court before which a petition for divorce has been made under s 51 from granting a decree of divorce on the petition of one party to a marriage where the other party has converted to Islam, and such decree shall, notwithstanding any other written law to the contrary, be valid against the party to the marriage who has so converted to Islam.".

[9] While s 58 provides:

"Damages for adultery may be claimed against co-respondent

58. (1) On a petition for divorce in which adultery is alleged, or in the answer of a party to the marriage praying for divorce and alleging adultery, the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the Court on special grounds from doing so.

(2) A petition under subsection (1) may include a prayer that the co-respondent be condemned in damages in respect of the alleged adultery.

(3)..."

[10] The High Court allowed the respondent's striking out application. The learned judge adopted the purposive approach in holding that-

(i) The words 'to a Muslim or to any person' in s 3(3) of the LRA were an example of words in pairs with different and overlapping meanings. 'Muslim' means a person who professes the religion of Islam and 'any person' could mean a person who is a Muslim. It could also mean a person w