AWAI v MM [2022] 2 SHLR 1

Syariah High Court (Shah Alam)

Jurisdiction of Pronouncement of Divorce by Ta’liq

2.    On 23 December 2020, the Respondent filed a writ and statement of claim (‘Rekod Rayuan m/s 3′) for the ta’liq pronounced by the Appellant on 18 March 2019.

3.    Based on the statement of claim, there was one occurrence of divorce pronouncement that has taken place between the Parties as follows:

“3.1 On 18 March 2019, at 12.00 am, the Appellant pronounced divorce through ta’liq with the words ‘If I meet Nxxx or intentionally communicate through the phone, then there shall be one talaq one against to xx.’ The Appellant violated the conditions of this ta’liq on 19 August 2020.”

4.    On 2 September 2020, the trial judge of Syariah Subordinate Court Gombak Timur allowed the Respondent’s claim based on the four (4) grounds as follows:

(a)  The Court approved the claim based on section 57 of the Islamic Family Law (State of Selangor) Enactment 2003 (‘Enactment No.2 of 2003’);

(b)  The Court decided that the pronouncement of ta’liq made outside and without the Court’s permission in March 2019 was valid. Hence a divorce by way of talaq is pronounced if the conditions of ta’liq were met;

(c)   The Court held that the conditions of ta’liq were met the following day in March 2019.  Therefore, from that date and time, the first of threefold “talaq raj’i” divorce took effect, with an “iddah” period of three menstrual cycles or “iddah raj’i“; and

(d)  The Court ordered that the divorce to be registered at the Gombak District Islamic Religious Office and that the Marriage Certificate of Terengganu State be annulled.

5.    The Appellant had then appealed the decision to the Syariah High Court.

1.    Whether the trial judge allowed the trial to proceed without determining the validity of the Surat Akuan Mastautin?

(a) First, the Appellant claimed that the learned trial judge had made a mistake based on facts and law where the Respondent and the Appellant were actual residents at No. xx Jalan Hijau x/x Green Valley Park, 48000, Bandar Tasik Puteri, Rawang Selangor Darul Ehsan, in which the competent Court that has the jurisdiction to hear over matter should be the Subordinate Court of Gombak Barat.

(b) Second, the Appellant contended that the learned trial judge also erred in facts and law without first reviewing the validity of the Surat Akuan Mastautin attached by the Respondent, even though both parties were aware that they had never lived at the address No. x Jalan AU2 xC/x, Taman Lembah Keramat, 54200 Kuala Lumpur Selangor.

(c)  Referring to paragraph 61(3)(b) (i) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (‘Enactment No.1 of 2003’), it provides that –

“Section 61.  Jurisdiction of Syariah High Court.

3) The Syariah High Court shall –

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

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

(d) Meanwhile, sections 2 and 4 of the Islamic Family Law (State of Selangor) Enactment 2003 (‘Enactment No.2 of 2003) enunciates that –

“Section 2.  Interpretation.

 “resident” means permanently living or ordinarily residing in a particular area;           ……..

Section 4.  Application.

Save as otherwise expressly provided, this Enactment shall apply to all Muslims living in the State of Selangor and to all Muslims resident in the State of Selangor who are living outside the State.”

(e)  The Court of Appeal referred to the Record of Appeal and found that the Respondent’s current residential address is No. x Jalan AU2 xC/x, Taman Lembah Keramat, 54200 Kuala Lumpur Selangor. This is based on the Surat Akuan Mastautin signed and verified by the Chairman of the Village Community Management Council (MPKK) of Kg. Pasir, Mukim Hulu Kelang on 25 August 2020.

(f)   The Court was of the view that it is beyond the Court’s jurisdiction to scrutinise or investigate further into the Surat Akuan Mastautin that had been verified by the person-in-charge himself (Pengerusi).

(g) The Court also was of the view that the documents of residence have been established and validated.   It is unreasonable for the Court to disrupt the method or means for parties in obtaining such verification. The Court’s jurisdiction over the Respondent’s claim is provided under paragraph 61(3)(b)(i) of Enactment No. 1 of 2003.

(h)  In actual fact, the Respondent is a resident of Selangor and has fulfilled the requirements of sections 2 and 4 of Enactment No.2 of 2003.

(i)    As such, based on the aforementioned provisions, the Court was satisfied that the Syariah High Court Shah Alam was competent and had the power to try, hear, and decide the matter, given no objections regarding jurisdiction from the Appellant and since the Respondent was a resident of Selangor.   Therefore, the matter sought by the Respondent falls within the scope of this Court’s jurisdiction.

(j)    Based on aforementioned provisions, the Court was satisfied that the Syariah Court Shah Alam is competent and has the power to try, hear and decide the case.  Further, the Court has no objections regarding the residency of the Appellant and the Respondent who are both residents of Selangor.  Therefore, the matter sought by the Respondent falls within the jurisdiction of the Court.

The Court allowed the appeal by the Appellant and ordered the judgment case dated 2 September 2020 to be revoked and the case be retried before another judge promptly as there were contradictory facts between the parties regarding the pronouncement of Ta’liq.

1.    Pronouncement of divorce by way of Ta’liq refers to a conditional divorce where the husband pronounces divorce with a condition attached to it. The divorce becomes effective only if that condition is met within a specified period. If the condition is not fulfilled within the specified time, the divorce does not take effect.

2.    Hence, it is essential to determine the residency of the parties to ensure that the Syariah Court has the jurisdiction to hear and adjudicate the divorce case. In addition, each jurisdiction may have its procedural requirements for filing divorce petitions and conducting hearings.  As such, knowing the residency of the parties will ensure the divorce proceedings comply with the proper procedural requirements and enforcement of court orders, such as custody arrangements.