Siti Nur Farhana Al-Akiti v Idral bin Hj Ariffin [2016] 4 SHLR 1

Siti Nur Farhana Al-Akiti v Idral bin Hj Ariffin [2016] 4 SHLR 1

Syariah Court of Appeal (Shah Alam)

Committal proceedings on the custodial rights of the infant

Facts 1.     The Applicant and the Respondent were married on 28 February 2003 and divorced on 8 March 2010 at the Syariah Subordinate Court of Gombak Timur District, Selangor.

2.     The parties had a daughter during their marriage who was born on 15 December 2003.

3.     In 2007, the parties had signed an agreement regarding the custody of the child and the Syariah High Court Shah Alam issued an order via summon which included the terms as follows:

(a)   The Respondent is granted the custody of the child; and

(b)  The Applicant is granted the right to visit and spend nights with the child on every two (2) weeks, taken on Saturday at 8 am and returned on the following Sunday before 8 pm.

4.     However, the Syariah High Court Shah Alam issued two show cause notice orders on 26 November 2013 and 27 January 2014 because the Applicant did not comply with the given visitation and overnights rights based on the previous order in 2007.

5.     The issuance of show cause notice orders is to compel the Applicant to explain why he should not be imprisoned not exceeding three years for non-compliance with the terms in the said order.

6.     Therefore, the Applicant applied for a review of the show cause notice order on the clause ‘prison not more than three years’ which he contended that the term ‘prison not exceeding three years’ was not included in any provisions of the Syariah Court Civil Procedure (Selangor) Enactment 2003 (the Enactment).

7.     In fact, the Applicant submitted that Section 151 (a)(aa) of the Enactment for the committal order must be read together with Section 299(1) of the Enactment which provided that the sentence must not exceed six months.

Issue 1.     Whether the term ‘prison not more than three years’ exceeds subject to this Enactment’ based on Section 151 (a)(aa) of the Enactment?

2.     Whether Section 151 (a)(aa) of the Enactment for the committal order must be read together with Section 299(1) of the Enactment which provides that the sentence shall not exceed six months.

Ratios 1.     Section 151 (a)(aa) of the Enactment provides that-

“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 act 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

then, subject to this Enactment, the judgment or order may be enforced by one or more of the following means, that is to say—

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

2.     Section 229 (1) of the Enactment provides that-

“Section 229. Notice to show action or cause.

(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.”

3.     The Syariah Court of Appeal addressed the said provision of Section 151 (1)(a) (aa) of the Enactment shall comply the penalty requirement as provided in Section 229.

Decision 1.    The Court having reviewed the application notice and the Applicant’s supported affidavit and allowed for that clause ‘prison not exceeding three years’ in the show notice order to be changed to ‘prison not exceeding six years’.  Also, it was ordered for the show cause proceeding to have proceeded before the Syariah High Court Judge.
Key Take Away 1.     The similarities of the term regarding ‘committal order’ in the said Enactment may differ in terms of the purpose of implementation in particular relating to the amount of sentences and its application.

2.     The application of every law including its limitation is subject to the provisions of that law itself.

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