Back
FEDERAL COURT PUTRAJAYA
ROBINDER SINGH JAJ BIJIR SINGH – Appellant
Versus
JASMINDER KAUR BHAJAN SINGH – Respondent
[Civil Appeal No: 02(i)-48-08-2023(N)]
Case Details and Citation
- Federal Court decision in Civil Appeal No: 02(i)-48-08-2023(N), decided on 09-02-2024. (!)
Questions of Law for Determination
- Whether petitions for judicial separation or divorce under the Law Reform (Marriage & Divorce) Act 1976 (Act 164) and Divorce and Matrimonial Proceedings Rules 1980 (DMPR) may be filed in English only. (!)
- Whether all other cause papers in such matrimonial proceedings may be filed in English only. (!)
- If answers to (i) or (ii) are negative, whether filing in English only is an irregularity curable by court directions to file in Bahasa Malaysia. (!)
Court's Answers to Questions
- First two questions answered affirmatively; third question unnecessary. (!)
Jurisdiction Despite Academic Nature
- Appeal proceeded despite respondent's argument of academic status due to withdrawal of judicial separation petition and joint divorce petition with decree nisi. (!)
- Courts may hear academic appeals on public law matters involving significant legal principles, especially to avoid confusion from lower court decisions. (!)
- Judicial notice taken of numerous pending and anticipated matrimonial proceedings affected by Court of Appeal decision via stare decisis. (!)
- Lack of uniformity in practice across High Courts (e.g., Kuala Lumpur/Penang accept English filings, Malacca rejects). (!)
- Implications extend to winding-up petitions under Companies (Winding-Up) Rules 1972, as Registrar's Circular applies there too. (!)
- Respondent's strike-out application dismissed. (!)
Factual Background
- Respondent filed ex parte application for interim custody on 7 January 2022; granted on 24 January 2022 but lapsed without service. (!)
- Respondent refiled similar application on 27 January 2022. (!)
- Appellant filed application on 24 March 2022 to set aside ex parte order, citing lack of urgency, non-disclosure, and rule non-compliance. (!)
- Appellant filed application on 18 April 2022 for interim guardianship, custody, care, control, and access; consent order recorded. (!)
- High Court dismissed appellant's set-aside application (encl 20) for failure to file National Language translation within ordered time. (!)
High Court Decision
- Dismissal based on O 92 rr 1(1) and (4) Rules of Court 2012 requiring translation, even in urgent cases within 2 weeks. (!)
- Registrar's Circular No 5 of 1990 not overriding; dismissal due to non-compliance after 3 months, not initial English filing. (!)
- Failure to translate is irregularity to be remedied. (!)
- Unavailability of DMPR translation irrelevant after 30+ years since s 8 National Language Act amendments. (!)
Court of Appeal Decision
- Registrar's Circular administrative, cannot prevail over O 92 r 1(1) Rules of 2012. (!)
Registrar's Circular No 5 of 1990
- Permits petitions and proceedings for divorce/matrimonial, bankruptcy, and company winding-up to be filed in English until relevant rules translated and gazetted. (!) (!) (!) (!)
- Remains valid; confirmed in Circular No 153/2019 for family law matters as DMPR untranslated. (!)
Legal Framework and Analysis
- Matrimonial proceedings governed by Act 164 and DMPR (made under s 108(1) Act 164); DMPR untranslated, English authoritative. (!) (!)
- Rules of High Court 1980/Rules of Court 2012 made under s 17 Courts of Judicature Act 1964, but do not apply to proceedings with specific rules. (!)
- National Language Acts 1963/67 s 8 permits English use in interests of justice. (!) (!)
- Practice Direction No 2 of 1990 facilitated s 8 amendments for urgent/pending proceedings. (!)
- O 92 r 1 Rules of 2012 applies only to documents under "these Rules" (Rules 2012). (!) (!)
- Rules 2012 expressly excluded from matrimonial proceedings by O 1 r 2(2) (generalia specialibus non derogant). (!) (!) (!)
- O 94 r 2 and Appendix C item 5 confirm Act 164/DMPR rules prevail over Rules 2012. (!) (!) (!)
- DMPR r 105 empowers Chief Justice directions for uniformity in matrimonial practice. (!)
- DMPR r 3 applies prior High Court Rules "subject to these Rules" and with modifications, but Rules 2012 self-exclude. (!) (!)
- Circular ensures uniformity and justice; litigants entitled to rely on it for English filings. (!) (!) (!)
- Non-compliance with translation frustrates Circular's purpose, denying access to justice. (!) (!)
- Applies to all cause papers in matrimonial proceedings, not just petitions. (!)
Outcome
- Appeal allowed; lower court decisions set aside. (!)
[1] The three questions of law for which leave to appeal was granted under s 96 of the Courts of Judicature Act 1964 [Act 91] revolve around the issue of whether cause papers, from petition to interlocutory applications and associated affidavits, filed under the Law Reform (Marriage & Divorce) Act 1976 [Act 164] read with the Divorce and Matrimonial Proceedings Rules 1980 [DMPR] may be filed in the English Language without an accompanying translation in the National Language in view of Registrar's Circular No 5 of 1990 [Registrar's Circular]. The three questions of law are:
i. Whether petitions for judicial separation or divorce (matrimonial proceedings) filed pursuant to the provisions of the Law Reform (Marriage & Divorce) Act 1976 [Act 164] and the Divorce and Matrimonial Proceedings Rules 1980 [DMPR] may be filed in the English Language only.
ii. If so, whether all other cause papers filed in the matrimonial proceedings may be filed in the English Language only.
iii. If the answers to either one or both of the questions above are in the negative, whether the filing of the documents in English only is an irregularity that can be cured with the necessary directions by the Court that the said cause papers be filed in Bahasa Malaysia.
[2] We answered the first two questions in the affirmative leaving the third question unnecessary for determination. Aside from counsel representing the respective parties, the Malaysian Bar appeared as amicus curiae. We place on record our appreciation for all submissions made.
[3] We must point out the fact that even before we started with the hearing of the substantive appeal, we were urged by the respondent to strike out the appeal on the basis that it was academic. The respondent had filed an application to this effect - encl 6. According to the respondent, the parties had withdrawn the petition for judicial separation, proceeded to file a joint petition for divorce and had obtained a decree nisi with the necessary orders for custody and guardianship of the child from the marriage. Given these circumstances, the Federal Court was said to be without jurisdiction to hear the appeal as the matter was now academic; essentially because there was no longer any lis pending in the Courts below.
[4] We disagreed. Although the general principle is that the Court does not answer academic questions [see Bar Council Malaysia v. Tun Dato' Seri Arifin bin Zakaria & Ors & Another Reference; Persatuan Peguam-Peguam Muslim Malaysia (Intervener), [2020] 4 MLJ 773, applying Sun Life Assurance Co of Canada v. Jervis [1944] AC 111 and Ainsbury v. Millington [1987] 1 All ER 929], there are exceptions. In R v. Secretary of State for the Home Department, Ex parte Salem [1999] AC 450, the House of Lords explained that it will exercise its discretion to hear the appeal on a question of public law, even though by the time of the appeal, there was no longer an issue which will directly affect the rights and obligations of the parties concerned in the appeal.
[5] Two instances of such exception are illustrated in Kerajaan Malaysia v. Mudek Sdn Bhd, [2017] 5 MLJ 133 and SPIND Malaysia Sdn Bhd v. Justrade Marketing Sdn Bhd & Anor; [2018] 4 MLJ 34; [2018] 4 CLJ 705; [2018] 3 AMR 32. In Mudek, the parties had reached an amicable settlement with each other before the appeal was heard. Yet, the Federal Court proceeded to hear the appeal, troubled with the majority decision of the Court of Appeal which "would remain on record, and unless dealt with, would cause confusion to parties and legal advisers alike as it does not reflect the correct position of the law".
[6] Care and caution must, of course, be exercised when considering whether a given set of circumstances warrant the exercise of this sparingly used discretion. In this regard, we found that in order to deal with the questions of law for which leave had already been granted, a detailed consideration of facts will not be required. More impor
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
