Adibah bt Mohd Salleh & Anor v Shareena bt Azali [2012] 4 SHLR 60

 

ADIBAH BT MOHD SALLEH & ANOR v SHAREENA BT AZALI [2012] 4 SHLR 60

Syariah High Court (Kuala Lumpur)

Validity of Polygamous Marriage based on Hukum Syarak

Facts 1.   The First Applicant (P1), Adibah bt Mohd Salleh and the Second Applicant (P2), Asrul Nizam bin Ishak, were married on 24 June 2009 in Songkhla, Thailand.

2.  The officer who acted as wali hakim of the Songkhla district purportedly solemnised their marriage.

3.  However, prior to P2’s marriage to P1, P2 was already married to Shareena bt Azali, the Respondent, and had two children from the previous marriage.

4.  P2 had contracted the polygamous marriage without prior permission of the Syariah Court.

5. On 16 July 2009, P1 and P2 filed a notice of application and affidavit on the same date.  Both applicants appeared in the Court on the first mention date ie 10 August 2009.

6. On 10 August 2009, the Court ordered that a copy of the application be served to P2’s first wife, the Respondent.

Issue 1. Does the Syariah High Court have jurisdiction over hearing and determining the application of affirmation and registration of the polygamous marriage?

2. Whether the polygamous marriage between P1 and P2 that has taken place on 24 June 2009 in Songkhla, Thailand was valid according to Hukum Syarak?

Ratios 1. Whether the Syariah High Court had the jurisdiction to hear and determine the application of affirmation and registration of the polygamous marriage?

(a) Section 46(2)(b)(i) of the Administration of Islamic Law (Federal Territories) Act 1993 (Act 505) provides that –

“Section 46.  Jurisdiction of Syariah High Court

2) A Syariah High Court shall –

(a) in its criminal jurisdiction, try any offence committed by a Muslim and punishable under the Enactment or the Islamic Family Law (Federal Territories) Act 1984 [Act 303], or under any other written law prescribing offences against precepts of the religion of Islam for the time being in force, and may impose any punishment provided therefor;

(b) in its civil jurisdiction, hear and determine all actions and proceedings in which all the parties are Muslims and which relate to –

(i) betrothal, marriage, ruju’, divorce, nullity of marriage (fasakh), nusyuz, or judicial separation (faraq) or other matters relating to the relationship between husband and wife;”

(b) Section 4 of the Islamic Family Law (Federal Territory) Act 1984 (Act 303) provides that –

“Section 4.  Application.

Save as is otherwise expressly provided, this Act shall apply to all Muslims living in the Federal Territory and to all Muslims resident in the Federal Territory who are living outside the Federal Territory.”

(c) Section 2 of Act 303 interprets the phrase “resident” as permanently or ordinarily living in a particular area.

(d) Therefore, the Syariah High Court Kuala Lumpur had the jurisdiction to hear and determine the application of affirmation and registration of the polygamous marriage.  The Court was of the view that P1 is a resident of the Federal Territories based on her statement, including the name and address stated in her identification card before submitted to the Court.

(e) The Court even referred to the Syariah Court Practice Direction No. 9 of 2007 in which provides for ‘the Practice of Verifying Marriage Contrary to the Provisions of Act/Enactment/Ordinance of Islamic Family Laws’

 “i)…If the marriage in question is polygamous, the Judge shall refer the application to the Syariah High Court.”

(f) The Syariah Court Practice Direction No. 9 of 2007 is consistent with the Syariah Court Practice Direction No. 14 of 2006 that provides as follows:

“The jurisdiction to hear polygamy cases and declaration and division of matrimonial assets and other related matters under Section 23 of the Islamic Family Laws Act/Enactment/Ordinance shall be heard in the Syariah High Court”

(g) The Court even referred to Section 23(1) of Act 303, which required a husband who intends to practise polygamy to obtain permission from the Syariah High Court.  The provision is as follows:

“23(1) No man, during the subsistence of a marriage, shall, except with the prior permission in writing of the Court, contract another marriage with another woman nor shall such marriage contracted without such permission be registered under this Act:

Provided that the Court may if it is shown that such marriage is valid according to Hukum Syara’ order it to be registered subject to Section 123.”

(h) Nevertheless, Section 123 of Act 303 elaborated that the Court may order an investigation by the Federal Territory Syarie Prosecutor for the offence of polygamy without the permission of the Court.

“Section 123.  Polygamy without Court’s permission.

 Any man who, during the subsistence of a marriage, contracts another marriage in any place without the prior permission in writing of the Court commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment.”

(i) In the present case, the marriage conducted in Songkhla region between P1 and P2 was polygamous and performed without obtaining the prior written permission from the Syariah Court of the Federal Territories, contrary to Section 123 of Act 303.  Hence, the Court decided to hear the application based on Section 23 of Act 303, and accordingly the Court  had issued an order for registration subject to the validity of the marriage.

2.  Whether the polygamous marriage between P1 and P2 that has taken place on 24 June 2009 in Songkhla, Thailand was valid according to Hukum Syarak

(a) The pillars of marriage as in the book of al-Khatib al Syarbini, Mughni al-Muhtaj, Juz 3, Dar al-Fikr, provides as follows:

“(meaning) ‘the pillars of marriage are five, namely the sighah (expression of offer and acceptance), the bridegroom, the bride, to male witnesses, the groom and guardian (wali).”

(b) In the case of Re Wan Norsuriya (applicant) JH Jld XI Bhg II 1418/1997 hal 217, in the reasoning of the presiding Judge’s judgment, it is stated-

“According to Islamic law, for a marriage to be valid, it must fulfil the pillars of marriage.  In the book Bujairimi ala al-Khatib, Jil. 3, pages 326 to 327, it is mentioned, which means: “Regarding discussing the pillars of marriage, there are five pillars, namely the contract (sighah), the bride, the groom, the guardian.  The groom and the guardian are the parties who perform the marriage contract through the contract (sighah), which involves the utterance of the proposal (ijab) and acceptance (qabul), and the fifth pillar is the presence of two witnesses.”

(c) In the present case, the Court had decided that all the pillars and conditions of a valid marriage had been fulfilled as follows:

(i) The first pillar: The bridegroom, P2 was present during the marriage ceremony held at a mosque in Songkhla, Thailand.  At the time of the marriage, the bridegroom already had a wife named Shareena bt Azali.

(ii) The second pillar: The bride (P1) was also present during the marriage ceremony held at the same mosque in Songkhla, Thailand.  The bride’s status at the time of the marriage was that of a virgin.

(iii) The third pillar: The marriage contract was conducted between the officer, Naib Kadhi Syarie of Songkhla District named Haji Zakaria bin Salleh, and the bridegroom.  The wording of the marriage contract was as follows: “I marry you, Asrul Nizam bin Ishak, to Adibah binti Mohd Salleh, with a dowry of RM 100.00 in cash.” The groom accepted the marriage contract by stating: “I accept the marriage of Adibah binti Mohd Salleh with a dowry of RM 100.00 in cash.”

 (iv) The fourth pillar: The guardian for this marriage was a wali hakim.  According to P1’s testimony, the closest guardian ie the father of the bride and the grandfather (father of the father) had passed away.

P1 is the only child in her family and had no male siblings.  The paternal uncles (father’s male siblings) who could act as guardians had also passed away.  P1 is not closely acquainted with the paternal cousins (father’s male cousins).  The transfer of guardianship from wali nasab to a wali hakim can be done for various reasons, including the absence of a wali nasab or when the wali nasab is unknown and located beyond two marhalah.

(v)  The fifth pillar: Two male witnesses, namely Abd Ghani and Abdul Halim bin Che Hak, were present as witnesses during the marriage contract.

(d) Therefore, the Court confirms the marriage that took place between P1, Adibah bt Mohd Salleh, and P2, Asrul Nizam bin Ishak, on 24 June 2009, with the presence of wali hakim named Haji Zakaria bin Salleh, serving as the Naib Kadhi Syarie of Songkhla District, Thailand, and a dowry of RM100 in cash, in the region of Songkhla, Thailand, as a valid marriage according to Islamic law.

Decision 1.  The Court ordered the marriage to be registered accordingly.

2. The Court ordered that the case should be investigated by the Federal Territory Syarie Prosecutor for the offence of polygamy without the permission of the Court based on Section 123 of Act 303.

Key Take Away The affirmation and registration of polygamous marriage in Malaysia must fulfil and attain all requirements of marriage based on Islamic law or Hukum Syarak.  Therefore, although polygamous marriage is permissible in Islam, polygamous marriage without obtaining the Court’s permission is considered an offence under Malaysian law.

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