S v M [2024] SLRHU 9

High Court Syariah (Seremban)

Interlocutory Application for Preliminary Objection

1. The Applicant and Respondent were married on 4 April 1981 and were blessed with four children.  However, on 7 February 2011, their marriage was dissolved by the Syariah Subordinate Court, Seremban.

2. A Matrimonial Property Division Order was issued by the Syariah High Court (Seremban) on 4 July 2017 (SHC’s Order) as follows:

(a) A house and its land was allocated with 1/3 share to the Respondent and 2/3 share to the Applicant.  The division ratio is based on the current market value; and

(b) A plot of land in Rembau, Negeri Sembilan was allocated with 1/8 share to the Plaintiff and 7/8 share to the Defendant.  The division ratio is based on the current market value; and

(c) A car was allocated with 1/6 share to the Plaintiff and 5/6 share to the Defendant.  The division ratio is based on the current market value; and

(d) A plot of land in Seremban, Negeri Sembilan was given as hibah (gift) and the Plaintiff’s claim for matrimonial property division on this property was rejected.

3. The Respondent was not satisfied with part of the SHC’s order

4. Therefore, the Respondent filed an appeal at the Syariah Court of Appeal (Negeri Sembilan).

5. On 1 October 2019, the Syariah Court of Appeal held that:

(a) The Appellant’s (Respondent) appeal is allowed.

(b) Paragraph (d) of the SHC’s Order is to be amended as follows:

(i) The Court held that a plot of the land in Seremban, Negeri Sembilan is a Matrimonial Asset and shall be divided in the ratio of 70% to the Appellant and 30% to the Respondent.

6. On 29 November 2023, the Respondent has filed an application for a Notice to Show Cause under section 229 of the Enactment of Syariah Court Procedure (State of Negeri Sembilan) (Enactment No. 14 of 2003), on the grounds that the Applicant has violated the terms of the Matrimonial Asset Order issued by the SHC (Seremban), as well as the matrimonial asset appeal order issued by the Syariah Court of Appeal (Negeri Sembilan).

7. The Applicant disagreed with the Respondent’s application for the notice to show cause and filed an objection on the ground that the Respondent’s application is contrary to section 229 of Enactment No. 14 of 2003.

1. Whether the action of the Respondent in initiating committal proceedings under section 229 of Enactment No. 14 of 2003 meets the legal requirements or otherwise?

1. Whether the action of the Respondent in initiating committal proceedings under section 229 of Enactment No. 14 of 2003 meets the legal requirements or otherwise?

(a) The authority to hear committal proceedings and contempt of Court, as well as the form of punishment that can be imposed, is provided under two sections of the Enactment No. 14 of 2003, namely:

(i) Subparagraph 151(1)(aa); and

(ii) Section 229

(b) The provision of the subparagraph 151(1)(aa) of Enactment No. 14 of 2003 provides –

“ Section 151 – Enforcement of judgment to do or abstain from doing an act.

1)        Where –

(a)      a person required by a judgment or order to do an at within a time specified in the judgment or order refuses or neglects to do it within that time or within that time as extended or abridged under section 238, as the case may be; or

(aa)   with the leave of the Court, an order of committal; ”

(c) Meanwhile, section 229 of Enactment No. 14 of 2003 enunciates that –

   “ (1) The Court shall have the jurisdiction to commence proceedings against any person for contempt of Court and may, in such proceedings, make an order of committal for a period not exceeding six months or may impose a fine not exceeding two thousand ringgit.

(2) Where contempt is committed in the face of the Court, it shall not be necessary for the Court to serve the notice to show cause but the Court shall ensure that the person alleged to be in contempt understands the nature of the offence alleged against him and has the opportunity to be heard in his own defence, and shall make a proper record of the proceedings.

(3) In the case of contempt committed outside Court, notice to show cause why an action or proceedings should not be taken against him shall be served personally on the person alleged to have committed such contempt. ”

(d) The use of subsections 229(1) and subparagraph 151(1)(b)(aa) in committal and contempt of Court proceedings was clarified by the Appellate Judge in the case of NMR v. NK [2011] SLRAU 9; [2013] 1 CLJ (SYA) 46, and the case of ZZ v. MRY [2011] SLRAU 20; [JH] 36 BHg,  which explained the followings:

(i) The difference between these two provisions is that, under the section 229, contempt of Court proceedings are initiated by the Judge themselves.  This can be understood from subsection 229(1) that provides – ” The Court shall have the jurisdiction to commence proceedings.“

(ii) Whereas, committal proceedings under subparagraph 151(1)(b)(aa) of Enactment No. 14 of 2003 can be understood to be initiated by the judgment creditor, based on the phrase “…with the leave of the Court, an order of committal.” This entails that a permission from the Court is required when the judgment creditor wishes to initiate committal proceedings.

(iii) Therefore, both provisions differ in meaning and purpose and stand independently. Section 229 is specifically for contempt of Court proceedings initiated by a judge, while subparagraph 151(1)(b)(aa) is specifically for judgment creditors in cases of non-compliance with Court orders.

(e) Furthermore, Practice Direction 2/2018 provides that in any committal proceedings, permission from the Court must firstly be obtained before enforcement is carried out. This is in accordance with the provision of subsection 151(1) of the Act/Enactment/Ordinance on Syariah Court Procedure in the States.

(f) However, the Respondent has failed to meet the legal requirements in initiating committal proceedings due to non-compliance with section 229 and subparagraph 151(1)(aa) of Enactment No. 14 of 2003, as well as Practice Direction 2/2018. The main failure was due to the Respondent’s failure to obtain prior permission for committal from the Court before initiating such proceedings.

(g) Furthermore, section 5 of the Enactment of Syariah Court Civil Procedure (State of Negeri Sembilan) (Enactment No. 14 of 2003) provides as follows:

“Non-compliance with any provisions of this Enactment or any rules made under this Enactment shall not render any proceedings void unless the Court shall so order, but the Court may, of its own motion or on the application of any party, set aside any proceedings wholly or in part as irregular, or order such amendments to be made on such terms as it thinks just”

(h) In this matter, the Court reminds all parties, particularly the Applicant, to comply with and execute the Matrimonial Property Distribution order issued on 4 July 2017 (Case No. Mal: 05XXXXX3) and the Syariah Court of Appeal order (No. 05XXXXX7) dated 1 October 2019. Non-compliance with these orders has resulted in the Respondent having to file a Show Cause Notice Application, which has consequently caused this case to persist until the present day.

1. The Court approves the Applicant’s preliminary objection.

2.The Court orders that the Respondent’s Show Cause Notice through application Case No. 23XXXXX4 be struck out.

3. Costs to be borne by respective parties.

1. The Court emphasized that any non-compliance with orders may lead to imprisonment, as provided under section 151.

2. It is reminded that compliance with Court’s orders is a responsibility that must be fulfilled to ensure the rights of all parties are protected and justice can be upheld.