Abdul Aziz bin Mohamad

JUDGMENT

The Facts

The parties will be referred to respectively as the Wife and the Husband. They were married on 26 July 2001, the marriage being solemnized and registered under the Law Reform (Marriage and Divorce) Act 1976

It was and still is, to employ the term used in section 46(2) of the Islamic Family Law (Federal Territories) Act 1984 (Act 303) (“the Family Law Act”), a “non-Muslim marriage” governed by the Law Reform Act, which, according to its section 3(3), does not apply to a Muslim or to any person who is married under Islamic law and under which, according to that section, no marriage where one of the parties is a Muslim may be solemnized or registered. But that section provides for an exception which relates to section 51, whose subsections (1) and (2) provide as follows:

(1)Where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce:

Provided that no petition under this section shall be presented before the expiration of the period of three months from the date of the conversion.

(2)The Court upon dissolving the marriage may make provision for the wife or husband, and for the support, care and custody of the children of the marriage, if any, and may attach any conditions to the decree of the dissolution as it thinks fit.”

For the States of Malaya, the “Court” in subsection (2) is the High Court in placeMalaya that is mentioned in Article 121(1)(a) of the Federal Constitution (“the Constitution”). The aforesaid exception provided by section 3(3) of the Law Reform Act is that a decree of divorce granted on a petition under section 51 “shall, notwithstanding any other written law to the contrary, be valid against the party who has … converted to Islam”.

Two male children were born of the marriage: Dharvin Joshua on 11 May 2003 and Sharvind on 16 June 2005.

Until the marriage broke down, the parties and their children had been living at a three-room apartment in the name of the Husband and his mother in Taman Miharja in the Federal Territory of Kuala Lumpur, where also lived the husband’s mother, his two sisters and his niece (“the marital home”).

The Husband’s account of events relating to the breakdown of the marriage conflicts with that of the Wife. The Wife’s account is essentially this. Since about October 2005 the Husband had kept staying away from the marital home for long periods. She believed he had a girlfriend. After leaving in February 2006 he did not show up until 11 May 2006, Dharvin’s third birthday, when he verbally attacked her with the accusation that Sharvind was another man’s son and threatened to kill her if she did not leave the marital home. He also told her that he had converted to Islam. His mother and sisters joined him in the verbal attack. She ended up attempting to commit suicide by slitting her wrist and swallowing fifty pills. Her female cousin, a birthday guest, took her to the placePlaceNameKuala Lumpur PlaceTypeHospital where she was warded for about four days. Upon her discharge, her aunt and uncle took her back to the marital home from the hospital. The Husband and Dharvin were not there. The Husband’s mother told her that she had nothing more to do with Dharvin and asked her to leave the marital home. So, feeling scared, she took Sharvind, packed some of her things and left with Sharvind and her things for her grandmother’s house in Seremban.

The Husband’s account is essentially this. He denies staying away from the marital home. He denies the Wife’s account of what happened on 11 May 2006. He denies the Wife’s account of her coming back to the marital home from the hospital and taking away Sharvind. His account is that on 14 May 2006 at about 10.00 p.m. he had a quarrel with the Wife, after which he left the marital home. In his absence, the Wife left the marital home without the children. On 16 May 2006 at about 11.00 p.m. she came back with three unknown men to the marital home, when the Husband was not th