SAJ v NHJ [2022] 1 ShLR

 

SAJ v NHJ [2022] 1 ShLR

Syariah High Court (Shah Alam, Selangor)

Appeal on application for confirmation of marriage.

Facts of the case

1.    This case is an appeal against the application for the confirmation of marriage filed through Suit No: 10012-010-0006-2020, which was decided by the Trial Judge of the Lower Shariah Court of Ampang on 24 June 2020.

2.    The Appellants in this case were dissatisfied with the overall decision and have filed a Notice of Appeal on July 3, 2020, against the judgment of the Trial Judge on June 24, 2020. The grounds of judgment and the Record of Proceedings have been provided to the Appellants, and they filed the grounds of appeal on September 11, 2020.

3.    Referring to the case facts, the appellants were married on 8 January 2019 in Satun, Thailand.

4.    In this case, the Appellants expressed considerable dissatisfaction with the decision made by the Lower Court Judge regarding the issue of the guardian (wali) in deciding the application for the confirmation of the Appellants’ marriage.

Issue 1.    Whether the considerations made by the Trial Judge regarding the element of the guardian (wali) are erroneous or not in deciding the application for the confirmation of the Appellants’ marriage?
Ratios

1.    Whether the considerations made by the trial judge regarding the element of the guardian (wali) are erroneous in deciding the application for the confirmation of the Appellants’ marriage?

(a) Section 61 (1) (e) of Syariah Court Evidence (State of Selangor) Enactment 2003, (Enactment No.5 2003) provides that-

61. The following public documents may be proved as follows:

(e) public documents of any other class in a foreign country, by the original or by a copy certified by the lawful keeper thereof, with a certificate under the seal of a notary public or of a consular officer of Malaysia that the copy is duly certified by the officer having the lawful custody of the original and upon proof of the character of the document according to the law of the foreign country.”

(b)   The Appellant’s marriage is documented through the Marriage Certificate No. 11549 and the Marriage Confirmation Letter No. 256 from the Islamic Religious Council of Satun dated January 8, 2019. Additionally, these marriage documents have been acknowledged and certified by the Consulate General of Malaysia on December 23, 2019, as indicated in page 67 of the Appeal Record.

(c)   The Court, after reviewing the evidence presented by both parties during the proceedings at the Syariah Subordinate Court, determined that the documents provided were satisfactory and conclusive in establishing the validity of the Appellant’s marriage on January 8, 2019. Additionally, the Court concurred with the appellant’s argument that there was no submission of a faraq nikah by the wali nasab of the second Appellant during the trial to challenge the legality of the Appellant’s marriage.

(d)   In this case, the Court agrees with the Appellants that the marriage of the Appellants has complete documentation, the same has been validated and complied with Section 61(1)(e) of Enactment No.5 2003. Furthermore, the Court is required examine whether the marriage of the Appellants fulfils the essential elements of marriage as stipulated in Hukum Syara’.

(e)   Regarding the application for the confirmation of marriage filed by the Appellants in the Syariah Lower court, the Court refers to the provisions of Section 12(2) of the Islamic Family Law Enactment (State of Selangor) 2003, which provides –

“Section 12, non-registerable marriages

(2) Notwithstanding subsection (1) and without prejudice to subsection 40(2), a marriage which has been solemnized contrary to any provision of this Part but is otherwise valid aacording to Hukum Syarak may be registered under this Enactment with an order from the Court.”

 

 

 

Decision

1.    The Syariah High Court of Shah Alam held that the Appellants’ appeal is allowed.

2.    The Court revoked the decision made by the Trial Judge of the Lower Shariah Court in Ampang as per Case No: 10012-010-0006-2020, which was decided on 24 June 2020.

3.    The Court also found that the marriage between the Appellant 1 and the Appellant 2, held on January 8, 2019, at the Islamic Religious Council of Satun, Thailand, is valid and in accordance Hukum Syarak.

4.    Order was given for the marriage needs to be registered at the Selangor Islamic Religious Affairs Office.

 

Key Take Away

1.    The appellants were married on January 8, 2019, in Satun, Thailand, and their marriage documentation was certified by the Consulate General of Malaysia, meeting legal requirements.  The Court determined that the documents provided were satisfactory in establishing the validity of the marriage, and there was no challenge to its legality from the wali nasab of the second appellant.

2.    The Court agreed with the appellants that their marriage fulfilled legal requirements and complied with relevant enactments and Islamic law.  The Syariah High Court of Shah Alam allowed the appeal, revoking the lower court’s decision and confirming the validity of the marriage.

 

 

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