CHE NOR’AZAM BIN NOOR DIN v RUHAIDA BT OTHMAN [2013] 2 ShLR 20

Syariah Court of Appeal (Terengganu)

Annulment of marriage (Fasakh)

2.  The Appellant claimed that the Syariah High Court had erred in both facts and procedures regarding the fasakh claim.  He submitted that the case should have been initiated in the Syariah Subordinate Court instead of the Syariah High Court.

3.  The Respondent argued that the Syariah High Court has the original jurisdiction to determine cases related to the dissolution of marriage through fasakh.

2. Whether there was any lacuna in determining which court should have the jurisdiction in cases related to  fasakh claim under Section 11 and Section 12 of the Enactment No.3 of 2001)?

3. Whether the application to transfer the case to Syariah Subordinate Court is necessary when the fasakh claim was first heard in the Syariah High Court?

4. Whether the hearing of the fasakh claim by the Syariah High Court deprived the Appellant’s right for two-tier appeals?

(a) Section 11 of Enactment No.3 of 2001 provides regarding the jurisdiction of Syariah High Court in relation to the fasakh as follows:

“Section 11.  Jurisdiction of Syariah High Court.

(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;”

(b) Hence, the aforementioned law clearly provides that the implementation of fasakh is encompassed within the original jurisdiction of the Enactment No.3 of 2001.

(c) Furthermore, a separate claim concerning child custody and maintenance had been heard and determined on 12 July 2011within the jurisdiction of the Syariah High Court Terengganu.

(d)  Hence, it is appropriate for the case to be addressed and heard within the jurisdiction of the Syariah High Court Terengganu as the primary authority having jurisdiction for divorce cases by way of fasakh is the Syariah High Court Terengganu.

(e)  Nevertheless, the Syariah Subordinate Court is not precluded from having jurisdiction over fasakh petition under Section 12 of the same Enactment.  Section 12 (2) (b) of the Enactment No.3 of 2001 provides that-

“Section 12.  Jurisdiction of Syariah Subordinate Courts.

(2) The Syariah Subordinate Court shall-

(b) in it civil jurisdiction, hear and determine all such actions and proceedings as a Syariah High Court is authorized to hear and determine, if the amount or value of the subject-matter in dispute does not exceed on hundred thousand ringgit or is not capable of estimation in terms of money (not including claims of hadhanah or harta sepencarian).”

(f)  Accordingly, the Syariah Appeal Court decided that the Syariah High Court would be the most appropriate to continue hearing the case until its full determination.  Should any of the parties dissatisfied with the decision, any of them may then appeal to the Syariah Appeal Court against of the Syariah High Court.

2. Whether there was any lacuna in determining which court should have the jurisdiction in cases related to fasakh claim under Section 11 and Section 12 of the Enactment No.3 of 2001)?

(a)  By reading together Section 11 of the Enactment No.3 of 2001, which refers to the jurisdiction of the Syariah High Court, and Section 12 of the same Enactment regarding the jurisdiction of Syariah Subordinate Court for the fasakh claim, the Syariah Appeal Court decided that there was no lacuna about the appropriate court to hear and determine the fasakh claim because both provisions of the Enactment had determined the jurisdictions of the said two courts.

3. Whether the application to transfer the case to the Syariah Subordinate Court is necessary when the fasakh claim was first heard in the Syariah High Court?

(a) The Syariah Appeal Court also decided that the transfer issue of the case did not arise as the Syariah High Court had continuously heard the case from the beginning.

4.  Whether the hearing of the fasakh claim by the Syariah High Court deprived the Appellant’s right for two-tier appeals?

(a)  Section 17 (1) (2) and (3) of the Enactment No.3 of 2001 provides as follows:

“Section 17.  Jurisdiction of Syariah Appeal Court.

(1) The Syariah Appeal Court shall have jurisdiction to and determine any appeal against any decision made by the Syariah High Court in the exercise of its original jurisdiction.

(2) When an appeal from a decision of a Syariah Subordinate Court has been determined by the Syariah High Court, the Syariah Appeal Court may on the application of any party grant leave for the determination by itself of any question of law of public interest which has arisen in the course of the appeal and the determination of which by the Syariah High Court has affected the result of the appeal.

(3) When leave has been granted by the Syariah Appeal Court shall hear and determine the question allowed to be referred for its determination and make such order as the Syariah High Court might have made and as it considers just for the disposal of the appeal.”

(b) In this instance, the Appellant appealed to the Syariah Court of Appeal, contending that the Syariah High Court had made errors in facts and procedures for the fasakh claim should have been initiated in the Syariah Subordinate Court, rather than Syariah High Court.

(c) The Court referred to  Section 17 of Enactment No.3 of 2001, which grants the right of appeal to parties dissatisfied or aggrieved by the court’s decision.

(d) However, in accordance with Section 17(2) of Enactment No.3 of 2001, the Court held that the right to appeal to the Syariah Court of Appeal is applicable to the Syariah Subordinate Court for which the Syariah High Court has determined.

(e) Hence, the Court decided that the right to appeal is subject to the permission of the Syariah Court of Appeal as specified in Section 17(2) of Enactment No.3 of 2001.

(f)  Therefore, as the Syariah High Court has the jurisdiction to preside the case of fasakh claim, Syariah Appeal Court dismissed the Appellant’s appeal and accordingly ordered the Syariah High Court to continue hearing the fasakh claim.

Key Take Away

2. Consequently, all parties are obligated to acknowledge and honour these jurisdictions, encompassing the rulings made by the court in alignment with the regulations outlined in Enactment No.3 of 2001. This approach ensures that the court can efficiently uphold justice while streamlining the legal proceedings.