N v. A [2022] SLRAU 23

Selangor Syariah Court of Appeal (Shah Alam)

Review to Set Aside Consent Judgment in a Sulh Session.

1.    The Applicant and Respondent were married on 22 February 2015 and subsequently divorced on 29 November 2021. From their marriage, the Applicant and Respondent were blessed with one child.

2.    The Respondent filed a claim for Hadhanah (custody) over the child at the Syariah High Court of Shah Alam.  On 5 April 2022, the Presiding Judge recorded a Consent Judgment between the Applicant and Respondent concerning the custody rights of the child, as set out in the Sulh Settlement Agreement.

3.    However, the Applicant was dissatisfied with the terms of the Consent Judgment and subsequently filed a review application, along with the Applicant’s Notice of Motion and Affidavit dated 28 April 2022. The following are the grounds for the Applicant’s application:

i.              The Applicant had consented under duress, as the Applicant had not been provided with adequate explanation or clarification regarding the legal implications arising from the order.

ii.             The Applicant had asserted that his right to obtain legal advice, both directly and indirectly, had been denied, as the Sulh Officer had not granted his request for an adjournment.

iii.            The Honourable Presiding Judge had erred and/or misdirected himself due to a contradiction with the law and Syariah principles, as the ‘consent’ had been recorded in circumstances where the Applicant had not been fully informed of the legal implications arising from the ‘Consent Judgement Order.’

iv.           At the time the Hadhanah claim was filed, the Applicant had not been represented by a Syariah lawyer, in contrast to the Respondent. Consequently, the Applicant believed undue influence had occurred, as the request for adjournment, in the absence of legal representation, had seemingly been dismissed in a negligent manner.

 

Whether the Appellant may seek a review of the Consent Judgement Order successfully reached in the Sulh Session?

(a) Based on the review powers granted under Section 68 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 [“Enactment No.1/2003”], the Court summoned and subsequently examined the case file or records related to this application. The Court found a report from the Sulh Council dated 5 April 2022, indicating that the Sulh process between the Applicant and the Respondent had been SUCCESSFUL, as evidenced by the signatures of the Applicant, Respondent, and the Sulh Officer on the Settlement Agreement document.

(b) The further Court referred to the notes of the Presiding Judge dated 5 April 2022, as follows:

Date: 5/2022, at 3:50 PM (Open Court)

STATEMENT OF PLAINTIFF’S SYARIAH COUNSEL

Today, for the record, there is a consent reached in the Sulh session.

PLAINTIFF’S MAIN STATEMENT

Yes, I agree. There is consent reached in the Sulh session.

DEFENDANT’S MAIN STATEMENT

Yes, there is a consent reached in the Sulh session.”

(c)  The Court in this case held that guidance on this matter has been provided by the Syariah Court of Appeal in several cases, including M v. N JH 36 (2), M v. S, Civil Case (Review) Federal Territory No: 14000-003-0033-2012, A v. A Selangor No: 10000-XXX-XXXX-XXXX, and M v. H [2017] SLRAU 44; [2018] JH 46(2).

(d) The Court also, in its judgment, held that based on Syariah Court Practice Direction No. 7 of 2014 from the Department of Syariah Judiciary Malaysia, which governs the Review Procedure in the Syariah High Court and Syariah Court of Appeal, has outlined the criteria for determining whether an application for review should be granted. The conclusion that can be drawn is that an application for review may only be allowed when there has been an error, defect, or material prejudice that is in direct conflict with legal principles and Syariah law during the proceedings before the Presiding Judge, or when the order/judgment issued by the Presiding Judge has disregarded the prevailing law or violated the principles of Syariah law, thus causing the denial or neglect of justice for any party involved.

(e)  The Court held that in the event that the Presiding Judge has issued a Consent Judgment after referring to and obtaining the agreement of the parties for the same to be recorded by the Court, it is to be understood that the rights of the parties have been duly taken into account and considered equitably by the Court.

(f)   The Court further explained that the Consent Judgment issued by the Presiding Judge of the Syariah High Court on May 4, 2022, constitutes a valid and proper order under Syariah Law, in full compliance with the applicable legal provisions.

(g) In light of the foregoing, the Court held that no error or misjudgement occurred in the process of issuing the consent order between the Applicant and the Respondent, and it is not appropriate for the Court to intervene in this application. Therefore, the Court held that this review application cannot be entertained.

2.    The Consent Judgement Order of the Syariah High Court of Selangor, case No: 10XXX-XXX-XXXX-XXXX, is maintained.

1.    The agreements or mutual consent reached in Sulh sessions, once consented to and recorded, are binding and hold significant weight, reflecting the sanctity of contracts (Al-‘Aqd) in Islamic law.