Jasmine binti Mohd Haneef (No KP: 751022-14-5284) v Amanda Jayne Spinks (Pasport British No.: 518382292) (W-02(IM)-2417-12/2019)

Robert Ingham Spinks … Responden [Pasport Australia No.: PE0368757]

Jasmine Binti Mohd Haneef … Responden Bersama) [No. K/P: 751022-14-5284] DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: W-02(IM)-2332-12/2019 ANTARA AMANDA JAYNE SPINKS …. PERAYU (PASPORT BRITISH NO.: 518382292) DAN JASMINE BINTI MOHD HANEEF .… RESPONDEN (No KP: 751022-14-5284) 3 (Dalam Mahkamah Tinggi Malaya Di Kuala Lumpur Dalam Negeri Wilayah Persekutuan Malaysia [Bahagian Keluarga] Petisyen Pemisahan Kehakiman No.: WA-33-364-07/2019 Dalam Perkara Seksyen-Seksyen 64, 76, 77, 79, 88, 89, 93, 94, 95, 102 dan 103 Akta Membaharui Undang-Undang (Perkahwinan dan Perceraian) 1976 Dan Dalam Perkara Seksyen-Seksyen 3, 5 dan 11 Akta Penjagaan Kanak-Kanak 1961 Dan Dalam Perkara Anak-Anak, Evelyn Rose Spinks [Sijil Kelahiran No.: 067144XA], Remington Igham Spinks [Sijil Kelahiran No.: 118463XA] dan Minnie Molly Spinks [Sijil Kelahiran No.: 118464XA] Antara Amanda Jayne Spinks … Pempetisyen [Pasport British No.: 518382292] Dan

Robert Ingham Spinks … Responden [Pasport Australia No.: PE0368757]

Jasmine Binti Mohd Haneef … Responden Bersama) [No. K/P: 751022-14-5284] 4 CORAM KAMARDIN BIN HASHIM, JCA YAACOB BIN HJ. MD SAM, JCA NOR BEE BINTI ARIFFIN, JCA GROUNDS OF JUDGMENT Introduction [1] These Appeals arose from a matrimonial dispute. The respondent (in Appeal No. W-02(IM)-2417-12/2019 (Appeal No. 2417)) had filed a Petition for Judicial Separation (Petition for JS) against her husband and cited the appellant who is a Muslim as a co-respondent, alleging that the appellant had committed adultery with her husband and should be condemned in damages pursuant to section 58 of the Law Reform (Marriage and Divorce) Act 1976 (Act 164). [2] The sole issue to be determined is whether Act 164 applies to a Muslim who is alleged to have committed adultery with a non-Muslim. The issue turns on the construction of subsection 3 (3) of Act 164. Background Facts [3] The respondent petitioned that her husband had behaved in a manner that she could not reasonably be expected to live with him, as a result of which their marriage has irretrievably broken down. The particulars of adulterous relationship between the appellant and the respondent’s husband were pleaded in paragraphs 40 to 64 of the Petition for JS. The 5 appellant was alleged to have admitted her extra-marital affairs with the respondent’s husband. The respondent further pleaded that she had been abandoned by her husband as a result of his adulterous affair with the appellant. [4] The appellant filed an application to strike out the Petition for JS pursuant to Order 18 rule 19 (1)(a),(b) and/or (c) and/or (d) of the Rules of Court 2012 and /or rule 13 of Act 164 and/or the inherent jurisdiction of the Court (Encl. 15) and prayed that paragraphs 40-64 of the Petition for JS be expunged and for consequential reliefs, based on two grounds –

(a) subsection 3(3) of Act 164 provides among others that Act 164 does not apply to a Muslim. The respondent had no cause of action against the appellant as she is a Muslim and have been practising the religion of Islam since birth; and

(b) section 58 of Act 164 provides that a claim for damages against a co-respondent on the ground of adultery is only in respect of a petition for divorce and not in cases where the relief sought is for a judicial separation. [5] The respondent asserted that the appellant was rightly named as she could not be absolved of her role in breaking the marriage and that her claim against the appellant was for damages for breaking her marriage which is well within the jurisdiction of a civil court and it had nothing to do with the appellant’s personal law. [6] At the conclusion of the hearing of Encl.15, the learned Judge allowed 6 the appellant’s application and the Petition for JS was struck out against the appellant on the basis that the respondent’s action in citing the appellant as a co-respondent in the Petition for JS was scandalous, frivolous or vexatious and was an abuse of the process of Court, the reason being under section 58 of Act 164, only in a petition for divorce can an alleged adulterer or adulteress be made a co-respondent and damages for adultery be claimed against the said co-respondent. An alleged adulterer or adulteress cannot be cited as a co-respondent in a petition for judicial separation. [7] The learned Judge further held that the fact that an alleged adulterer or adulteress is a Muslim is not a bar against him/her being named as a co-respondent in a divorce petition and damages for adultery to be claimed against him/her under section 58 of Act 164. In other words, the learned Judge found that the appellant is not exempted from the application of subsection 3 (3) of Act 164. [8] The appellant appealed in Appeal No. 2417 against the decision that the High Court has jurisdiction over a Muslim under Act 164. [9] The respondent appealed in Appeal No. W-02(IM)-2332-12/2019 (Appeal No. 2332) against the decision that allowed the appellant’s application to strike out the Petition for JS on the basis that pursuant to section 58 of Act 164, a co-respondent cannot be cited therein. [10] We heard the two Appeals together. We unanimously allowed Appeal No 2417 and dismissed Appeal No 2332. 7 [11] This Judgment will canvass both Appeals. We begin with Appeal 2417. The High Court [12] The learned Judge identified in the ground of judgment (GOJ) these issues for determination for Appeal No 2417 -

(a) whether Act 164 excludes all Muslims? Or does it only exclude Muslims who are married under Islamic law? Does the LRA apply to a Muslim who is alleged to have committed adultery with a non-Muslim? and

(b) can a petitioner in a joint petition for judicial separation cite an alleged adulterer or adulterous as a co-respondent and claim damages for adultery against him/her? [13] Relevant to Appeal No 2417 is the issues in paragraph (a). [14] There are 3 issues identified in paragraph (a), namely –

(i) whether Act 164 excludes all Muslims;

(a) that by virtue of subsection 3(3) of Act 164, the Court has no jurisdiction over the appellant who is a Muslim, thus she was wrongly cited as a party to the Petition for JS;

(b) the word “or” in subsection 3(3) of Act 164 which means that the provision must be read disjunctively;

(c) the amendment made by the Joint Select Committee to the original Bill proposed by the Royal Commission on non-Muslim Marriage and Divorce Laws;

(d) that section 58 is not one of the specific exceptions under subsection 3(3) which allows jurisdiction to be extended only to a Muslim convert who was a party to a civil marriage prior to his/her conversion to Islam. 9 Our Decision [17] At the outset we need to point out that the construction of subsection 3(3) of Act 164 in relation to the non-application of the Act to a Muslim, is not a new issue. Our Apex Courts and the High Courts have considered and ventilated the same issue. Even though in most cases the issues on the application of subsection 3(3) relate to the conversion to Islam of one spouse to the marriage contracted under Act 164, nevertheless, the decision expounded by the Courts are also instructive to the issue at hand. Some of the case laws are summarised as follows. [18] The case of Tan Sung Mooi (F) v Too Miew Kim [1994] 3 CLJ 708 is a landmark case decided by the Supreme Court on the interpretation of the application provision in subsection 3(3) of Act 164. The Supreme Court had comprehensively deliberated and interpreted the ambit and scope of the application section in Act 164. The Supreme Court held in no uncertain terms that subsection 3(3) provides that the Act shall not apply to Muslims or Muslim marriages and that only non-Muslim marriages may be solemnised or registered under the Act. In short, Act 164 only applies to non-Muslims and non-Muslim marriages. [19] There are three other Federal Court decisions on the ambit and scope of subsection 3 (3). [20] The issue before the Federal Court in Subashini Rajasingam v Saravanan Thangathoray & Other Appeals [2008] 2 CLJ 1; [2008] 2 MLJ 147 concerns which court has jurisdiction over parties who had contracted civil marriage and over children of the said marriage. The relevant excerpts 10 from the judgment of the Court delivered by Nik Hashim FCJ are as follows: [34] It was and still is, to employ the term used in s.46 (2) of the Islamic Family Law ( Federal Territories ) Act 1984 (Act 303) (“the Family Law Act”), a “non-Muslim marriage” governed by the Law Reform Act, which, according to its s.3 (3), does not apply to a Muslim or to any person who is married under Islamic law and under which, according to that section, no marriage where one of the parties is a Muslim may be solemnised or registered. But that section provides for an exception which relates to s.51… The aforesaid exception provided by s. 3 (3) of the Law Reform Act is that a decree of divorce granted on a petition under s.51 “shall, notwithstanding any other written law to the contrary, be valid against the party who has …converted to Islam.” [Emphasis added] [21] In Viran Nagapan v Deepa Subramaniam & Other Appeals [2016] 3 CLJ 505, the issue is whether the civil court still retains jurisdiction over the custody of the children of the civil marriage under Act 164 despite the husband’s conversion to Islam. The observation by Raus Sharif PCA (as he then was) is instructive - “ [17] The issue is whether the civil court still retains jurisdiction over the custody of the children of the civil marriage under the LRA despite the ex-husband’s conversion to Islam. Section 3 (3) of the LRA specifically excludes Muslims from its application except where a petition for a divorce is filed by the non-converting spouse against the converted spouse on the ground of conversion to Islam. It is provided for under s.51 of the LRA that the conversion to Islam of one spouse can be a ground for the non-converting spouse to petition for divorce and seek ancillary reliefs. …. [21] Thus, the issue is not new. The civil courts had consistently held that the 11 converted spouse cannot use his conversion to Islam to escape responsibilities under the LRA. (Also see Tey Siew Choo v Teo Eng Hua [1999] 6 CLJ 308, Kung Lim Siew Wan lwn. Choong Chee Kuan [2003] 3 CLJ 482; [2003] 6 MLJ 260 and Shama Sathiyaseelan v Dr Jeyaganesh C Mogarajah [2004] 1 CLJ 505; [2004] 2 MLJ 241). [22] We have no reason to depart from the earlier decisions. We are of the same view that a non Muslim marriage does not automatically dissolve upon one of the parties converting to Islam. The civil courts continue to have jurisdiction in respect of divorce as well as custody of the children despite the conversion of one party to Islam. [23] In the present case, the ex-husband and the ex-wife were Hindus at the time of their marriage. By contracting the civil marriage under the LRA they are bound by its provisions in respect of divorce as well as custody of the children of the marriage…” [Emphasis added] [22] In Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ 145, the appellant and the sixth respondent were married under Act 164. There were three children of the marriage. The sixth respondent converted to Islam and converted the three children to Islam as well. The crux issue in the Federal Court was on the conversion of the three children of the marriage. On subsection 3 (3) of Act 164, Zainun Ali FCJ delivering the judgment of the Court held that the civil marriage was still subject to Act 164 notwithstanding one party had converted to Islam. The relevant excerpts from the case are as follows: “[169] In this regard, parallels may be drawn between the GIA and the LRA. Section 3 (3) of the LRA likewise excludes the application of the Act to non-Muslims, except in relation to divorce petitions where one party to 12 a civil marriage has converted to Islam… [170] It is settled law that conversion does not absolve a person from his antecedent legal obligations ( Kamariah Ali & Yang Lain lwn. Kerajaan Negeri Kelantan & Satu Lagi [2004] 3 CLJ 409; [2005] 1 MLJ 197 at [37]. Hence, notwithstanding the restrictions in s. 3 (3) of the LRA, the courts have consistently affirmed their jurisdiction over parties to a civil marriage after the conversion of one partner to Islam, in granting reliefs beyond decrees of divorce..” [23] There are also the High Court decisions on similar subject. In Tey Siew Choo v Teo Eng Hua [1999] 6 CLJ 308, the issue in this case is whether the unconverted spouse may file a petition. Suriyadi Halim Omar J (as he then was) observed - “ Under this Act, no less than half the Malaysian population in particular the Muslims populace, is outside the purview of the Act. But not all is lost, as under s. 51 of the Act Parliament provides that where one party to a marriage has converted to Islam, the other party who is not a convert (hereinafter interchangeably referred to as the “unconverted spouse or party”) may petition for divorce. The general provision of s.3 (3) also clearly provides that the decree of divorce successfully obtained by the unconverted spouse, shall be valid against the converted partner.” [Emphasis added] [24] In Zubeydah Shaik Mohd v Kalaichelvan & Yang Lain [2003] 8 CLJ 840, the issue in this case is whether the applicant as a Muslim can marry a non-Muslim under Act 164. Raus Sharif J (as he then was) held that section 3(3) of Act 164 prohibits Muslims from marrying or registering their marriage according to the Act. The marriage will be fatal and void if they did 13 so. [25] In Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah [2003] 3 CLJ 690, in the preliminary objection posed by the defendant, the issue posed concerns which court has jurisdiction over parties who had contracted civil marriage and over children of the civil marriage. Raus Sharif J ( as he then was ) ruled - “… Dalam memutuskan sama ada mahkamah ini mempunyai bidang kuasa untuk mendengar permohonan plaintif saya memang sedar akan peruntukan s. 3(3) Akta tersebut yang memperuntukkan bahawa Akta tersebut tidak terpakai kepada seseorang yang beragama Islam. Untuk menjadi jelas, diperuntukkan s. 3 (3) Akta tersebut yang berbunyi: 3 (3). This Act shall not apply to a Muslim or to any person who is married under Muslim Law and no marriage of one of the parties professes the religion of Islam shall be solemnised or registered under this Act. Namun demikian, walaupun defendan sekarang beragama Islam, tetapi fakta kes ini menunjukkan bahawa plaintif dan defendan telah berkahwin di bawah Akta tersebut sebelum defendan memeluk agama Islam. Kesahihan perkahwinan defendan dengan plaintif masih tertakluk di bawah Akta tersebut di mana s.8 memperuntukkan seperti berikut: Every marriage solemnised in Malaysia, after the appointed date, other than a marriage which is void under the Act, shall continue until dissolve: a) by death of one of the parties b) by the order of a court of competent jurisdiction, or 14 c) by a decree made by a court of competent jurisdiction that the marriage is null and void. Berdasarkan peruntukan s.8 Akta tersebut, saya berpendapat meskipun plaintif dan defendan tidak lagi tinggal bersama ataupun meneruskan kehidupan mereka sebagai suami isteri setelah defendan memeluk agama Islam, perkahwinan mereka dianggap berterusan sehinggalah ianya dibubarkan di bawah mana-mana keadaan di bawah s 8 Akta tersebut. Dengan ini defendan masih tertakluk kepada bidang kuasa mahkamah ini. Tambahan pula permohonan plaintif di sini ialah berkaitan hak jagaan dan kebajikan anak-anak serta nafkah. Sudah tentu plaintif tidak boleh lari dari tanggungjawabnya untuk menanggung anak-anak tersebut.” [ Emphasis added] [26] In Yong Fuat Meng v Chin Yoon Kew [2008] 5 CLJ 705, the issue in this case again concerns which court has jurisdiction over parties who had contracted civil marriage and over children of the civil marriage. The High Court ruled that the status of the parties at the time of the marriage is the material consideration for the purpose of determining the question of jurisdiction. The Court further held that as the petitioner is not a born Muslim, under the Islamic personal law, there is no prohibition for the petitioner to appear before the civil court to settle his obligations and/or liabilities as required by the law which he himself has previously subscribed to by contracting a civil marriage under LRA 1976. [27] Thus, our courts have consistently held that section 3 (3) does not apply to Muslims or Muslim marriages but the converted spouse cannot use his or her conversion to Islam to avoid responsibilities under Act 164. [28] It is noteworthy that none of the cases cited above was canvassed in 15 the GOJ. We would like to think that the learned Judge might have arrived at a different view had there been references made to the cases cited above. After all, the Supreme Court and the Federal Court decisions bind the High Court and this Court by the application of the principle of doctrine of stare decisis the principle of which is well defined in law. Both this Appeal and Appeal 2332 can be disposed of on this ground alone. We shall nevertheless proceed to show why the Court below had erred in the construction of the said provision. [29] The crux of the respondent’s case is as follows. Subsection 3 (3) of Act 164 should be not construed to mean that Act 164 shall not apply to Muslims but must be read in the context of Muslim marriages. The term “Muslim” cannot be read in a vacuum. The reason being since Act 164 governs marriages and divorces, any reference to the word “Muslim” must necessarily refer to a Muslim who is married under Islamic Law. This interpretation is consistent with the fact that Muslim marriages in Malaysia is a State matter, governed by the Syariah principles and any issues arising therein will be dealt by the Syariah Courts. Reference was made on the Federal Court case of Latifah Bte Mat Zin v Rosmawati Bte Sharibun & Anor [2007] 5 MLJ 101. Muslim marriages would not fall within the purview of the Act 164 and to that extent, it is Muslim marriages and not Muslims, that is exempted from the said Act. The words “This Act shall not apply to a Muslim..”, cannot be left at that as there is no reason for Parliament to exclude a Muslim from the Act 164. It cannot be that on the ground of religion alone, the civil court will lose its jurisdiction to hear the allegation of adultery against the appellant. Whether the appellant should be condemned for having committed adultery has nothing to do with her personal law. Therefore Act 164 and in particular section 58 does not 16 exclude the appellant from being cited as a party for the alleged adultery and whether she should be condemned in damages. [30] The learned Judge agreed with the position taken by the respondent. In applying the principle of noscitur a sociis (meaning “it is known from its associates”) which requires that the terms be construed in the light of the surrounding words ( reference was made to Francis Bennion’s book Understanding Common Law Legislation : Drafting and Interpretation, Oxford University Press, Reprinted 2013) and in making references to the Hansard, among others, Her Ladyship concluded that Act 164 does not apply to a Muslim who is married under the Islamic Law or to a non-Muslim and Muslim married under the Islamic Law. It follows that Act 164 applies to a Muslim who is alleged to have committed adultery with a non-Muslim. The Rules of Interpretation [31] Understanding the rules of interpretation will facilitate interpretative task. We are of the view that the construction undertaken by the learned judge does not appear to be consistent with the established principle of construction of statutes that we understand it to be. [32] Case authorities and text books on construction of statutes have laid down established principles on how judges as judicial interpreters are to interpret the laws. In interpreting the law, if the court finds that the law has ambiguities, the court can always call in aid the rules of interpretations commonly referred to as cannons of construction. They are the literal rule, the golden rule, the mischief rule and the purposive rule. 17 [33] It is important to bear in mind that the court should begin the task of interpreting interpretative issues by using the ordinary meaning rule or the plain meaning rule, commonly referred to as the literal interpretation. The ordinary and plain meaning rules pay attention to nothing more and nothing than the actual words used by the statute (per the words of Gopal Sri Ram JCA (as he then was) in Citibank Berhad v Mohamad Khalid Bin Farzalur Rahaman & Ors [2000] 3 CLJ 739). [34] In this regard, NS Bindra’s on Interpretation of Statutes, Tenth Edn. explained at page 438 – 439 - “In constructing a statutory provision, the first and foremost rule of construction is the literary construction. All that we have to see at the very outset is what that provision says. If the provision is unambiguous, and if from that provision the intent is clear, we need not call into aid the other rules of the construction of statutes. The other rules of construction of statute are called into aid only when the legislative intention is not clear. When the language of a statute is plain and unambiguous, that is to say, admits but of one meaning, there is no occasion for construction. The task of interpretation can hardly be said to arise in such a case. The most common rule of statutory interpretation is the rule that a statute, clear and unambiguous on its face, need not and cannot be interpreted by a court, and only those statutes which are ambiguous and of doubtful meaning, are subject to the process of statutory interpretation. It is not allowable to interpret what has no need of interpretation. Absoluta sentantia expositore non indigent – plain words need no exposition. Such language best declares, without more, the intention of the law-giver, and is decisive of it. Moreover, no question of main interpretation arises when the court does not interpret the words used by the legislative. 18 Where the words of the statute are clear enough, it is not for the courts to ‘travel beyond the permissible limit’ under the doctrine of implementing legislative intention.” [35] Similar stance was taken by the Federal Court in All Malayan Estate Staff Union v Rajasegaran & Ors [2006] 4 CLJ 195. In this case, Theappellant obtained leave to appeal on the following issue: “Whether an Advocate and Solicitor within the meaning of the Legal Profession Act 1976 who has not been practising for 7 years preceding his appointment is qualified to be appointed as Chairman of the Industrial Court under section 23A Industrial Relations Act 1967.” The Federal Court ruled that the correct meaning to be accorded to the words “advocate and solicitor in section 23A(1)” involved a question of statutory interpretation the immediate concern of which was the nature and effect of section 17A of the Interpretation Acts 1948 And 1967 (Act 388) but made the following remark: “The choice prescribed in s. 17 A of “…. A construction that would promote the purpose or object underlying the Act …. shall be preferred to a construction that would not promote that purpose or object…” can only arise when the meaning of a statutory provision is not plain and is ambiguous. If, therefore, the language of a provision is plain and unambiguous s. 17A will have no application as the question of another meaning will not arise. Thus it is only when a provision is capable of bearing two or more different meanings can s.17A be resorted to in order to determine the one that will promote the purpose or object of the provision. Such an exercise must be undertaken without doing any violence to the plain meaning of the provision. This is a legislative 19 recognition of the purposive approach and is in line with the current trend in statutory interpretation.” [Emphasis added] [36] The Federal Court did not say that the pendulum had swung towards a purposive approach. The Federal Court was clear that the purposive approach as set out in section 17A of Act 388 only applies when the plain meaning is in doubt and not otherwise. [37] The House of Lords in the case of Pinner v. Everett [1969] 3 All ER 257 at pages 258 -259 even warned against substituting some other words for the words of the statute. In this regard, the House of Lords held as follows: "In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word or phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature, that it is proper to look for some other possible meaning of the word or phrase. We have been warned again and again that it is wrong and dangerous to proceed by substituting some other words for the words of the statute." [38] It is equally important to appreciate that when interpreting an interpretative issue, one must read and construe the law as a whole and in the context of the law. Construed as a whole means the whole and every part of the statute must be taken into consideration in determining the meaning of any of its part. Different sections and provisions relating to the same subject must be construed together and read in the light of each other. The court must not confine its attention only to the particular 20 provision which requires its consideration (see Lembaga Minyak Sawit Malaysia v Arunamari Plantation Sdn Bhd and Ors [2015] 7 CLJ 149). [39] Section 3 is an application section. Eminent author in drafting legislation G.C Thornton in his book Legislative Drafting 4th Edn. at p 482; 212 said that the purpose of an application provision is to draw the boundaries of the scope of the legislation with precision. We say that section 3 of Act 164 has drawn the boundaries of the application with precision and clarity. [40] Section 3 reads – “ Application

(1) Except as is otherwise expressly provided this Act shall apply to all persons in Malaysia and to all persons domiciled in Malaysia but are resident outside Malaysia.

(a) he elects to marry under thus Act;

(b) he contracted his marriage under the Christian Marriage Ordinance [Sabah Cap. 24]; or

(c) he contracted his marriage under the Church and Civil Marriage Ordinance [Sarawak Cap. 92].” [41] Subsection 3(3) can be dissected into three parts -

(a) the first part provides that Act 164 shall not apply to a Muslim;

(b) the second part provides that Act 164 shall not apply to any person who is married under Islamic Law and no marriage of one of the parties which professes the religion of Islam shall be solemnized or registered under this Act;

(c) the third part provides that Act 164 will however apply as against a party who was married under the provisions of Act 164 and who subsequently converts to Islam, and the court can grant a decree of divorce and makes orders under Part VII and Part VIII of Act 164. This is an exception provision. 22 [42] It is our view, the clear, categoric and mandatory language of the first part of subsection 3(3) is a blanket exclusion of Muslims from the entire Act 164. In other words, subsection 3(3) of Act 164 excludes the legislation entirely, including section 58, as against Muslims whether in relation to marriage or divorce or in any manner whatsoever. In short, the civil court do not have jurisdiction over Muslims by virtue of this provision. [43] The second part of subsection 3(3) covers the Muslim marriages under the Islamic Law and if one party of the marriage is a Muslim (see Zubeydah Shaik Mohd, supra). In similar vein, the civil court do not have jurisdiction over Muslim marriages. [44] The only exception where the civil court will have jurisdiction over a Muslim is expressly set out in the third part, i.e. where it is a non-Muslim who, subsequent to their civil marriage, has converted to Islam. The express exception is only in that limited circumstances where one non-Muslim party to a non-Muslim marriage has converted to Islam, that the Court has jurisdiction to grant a decree of divorce and other orders under Part VII and Part VIII of Act 164 and that “such decree and orders made shall, notwithstanding any other written law to the contrary, be valid against the party to the marriage who has so converted to Islam”. [45] The above is the ordinary and plain meaning of subsection 3 (3) of Act and from the decided cases that we had averted to, there cannot be any other meaning attributed to it. [46] We wish to refer to the case of Sung Mooi (F) v Too Miew Kim, supra where the application section was dealt with at length by the Supreme 23 Court. In that case, the parties were married according to Chinese customary rites on 20 February 1964. On a petition by the wife, the High Court dissolved the marriage on 17 December 1991 and granted a decree nisi to be made absolute after three months on the ground that the marriage had irretrievably broken down. Pending the decree nisi being made absolute, the petitioner filed an application under sections 76 and 77 of Act 164 for an order of division of matrimonial assets and for maintenance. The respondent opposed the application on the grounds that the High Court had no jurisdiction over him with respect to the ancillary relief arising from the divorce because of his conversion to Islam on 9 January 1993. On an application for reference to the Supreme Court under s. 48 of the Courts of Judicature Act 1964, the learned Judicial Commissioner referred the following questions for the opinion of the Supreme Court:

(a) is s. 3 of the Act unconstitutional, in the light of Articles 11(1) and 121(1A) of the Federal Constitution?

(b) is the High Court entitled to exercise its continuing jurisdiction to grant ancillary relief, in view of the fact that the High Court had dissolved the marriage? [47] The respondent contended that being a Muslim, the High Court no longer had jurisdiction over him in view of s. 3(3) of Act 174 and that only the Syariah Court had jurisdiction in respect of matters ancillary to the divorce. The petitioner, on the other hand, contended that since she remained a non-Muslim, she could not come under the jurisdiction of the Syariah Court. Hence, the High Court should continue to exercise its 24 jurisdiction in the matter. In this regard, she contended that s. 3(3) was unconstitutional insofar as it prevented the High Court from granting her the order for ancillary reliefs, as she would effectively have no remedy in law against the respondent. [48] The Supreme Court answered the above question (1) in the negative and question (2) in the affirmative. [49] On question (2), based on the facts in this reference, the Supreme Court confirmed that the High Court has jurisdiction to hear the petitioner’s application for ancillary reliefs under the Act, notwithstanding the respondent’s conversion to Islam after the divorce. [50] Mohamed Dzaiddin bin Hj Abdullah SCJ (as he then was) delivering the decision of the Supreme Court explained at pages 712 the reasons why the Apex Court formed the opinion that the High Court has jurisdiction to continue to hear the application despite ruling that section 3(3) does not apply to Muslim – “… There are two main reasons why we form the opinion that, on the facts of the reference, the High Court has jurisdiction to continue to hear the application. Section 3 of the Act states as follows:

(a) jurisdiction under any written law relating to divorce and matrimonial matters In our opinion, the words “any written law relating to divorce and matrimonial matters” must include the Act because the High Court may derive jurisdiction in matrimonial matters under some other law, e.g. under s. 9, the Married Women and Children Maintenance Act 1950 (Revised 1981).” [51] Thus, the reason why the High Court still has jurisdiction to hear the ancillary application was because both the petitioner and the respondent were non-Muslims who contracted a non-Muslim marriage. It follows that despite the respondent’s conversion to Islam, he cannot avail himself of 27 the opening words of sub-section (3) that "The Act shall not apply to a Muslim...", because he had legal obligations under his non-Muslim marriage which cannot be extinguished or avoided by his conversion to Islam. [52] The facts in Tan Sung Mooi v Too Miew Kim, supra is far different from the facts in the present case. The appellant in this Appeal is a Muslim since birth. She was never a non-Muslim party in a non-Muslim marriage at any time. The issue of conversion is wholly irrelevant. [53] Turning back to subsection 3 (3) of Act 164, it is without doubt that the language of the said provision is plain, unambiguous and unequivocal. There is nothing difficult about understanding the language used. [54] Equally clear is the purpose for which Act 164 was enacted as stipulated in the long title which reads “an Act to provide for monogamous marriages and the solemnisation and registration of such marriages; to amend and consolidate the law relating to divorce and to provide for matters incidental thereto.” [55] Thus the legislative intent of subsection 3 (3) must be construed within the framework and the general purpose as stipulated in the long title to Act 164 which is to specify the persons to whom the Act applies or does not apply (see Tan Sung Mooi v Too Miew Kim, supra). [56] By reason of the appellant’s assertion that Act 164 does not apply to her as a Muslim, Her Ladyship is called upon to construe the words “This Act shall not apply to a Muslim”. 28 [57] The first and foremost rule of construction that should have been considered by the learned Judge is the literal interpretation. She should have given the words their ordinary and plain meanings. But she did not. [58] The learned Judge had instead chosen to embark on the purposive approach. There was no reason given the learned Judge why the purposive approach was used. The learned Judge took into consideration the juridical nature of an enactment, the plain meaning rule and the common sense rule, traced the history leading to the enactment of Act 164 with reference was made to observation by Thompson LP the Federal Court cases of Re: Ding Do Ca [1966] 2 MLJ 220 on the need for the Legislature to look at the personal law of non-Muslim in Malaysia relating to marriage, divorce and succession, the setting up of the Royal Commission on Non-Muslim Marriage and Divorce Laws in 1971 (the Royal Commission), the tabling of the Law Reform (Marriage and Divorce) Bill in Parliament in 1972 and the statement made by the Minister of Law in the Parliamentary debate in the Second and Third Reading of the Bill. [59] We observed there was quite a heavy reliance on the rule of construction of noscitur a sociis. Premised on this approach, the interpretation of subsection 3 (3) can be found in paragraphs 18, 19 and 20 of the GOJ as reproduced below – “[18] In the instant case, the words “to a Muslim or to any person” in section 3