Separation cases: Muslims can be cited for adultery in civil courts, says lawyer

 

Gopal Sri Ram told the Federal Court the law should not be interpreted in such a way to prevent a Muslim from being cited as a co-respondent on grounds of adultery.

PUTRAJAYA: The Law Reform (Marriage and Divorce) Act 1976 does not stop a non-Muslim from applying for judicial separation or divorce by naming a Muslim with whom the spouse committed adultery, the Federal Court heard today.

Lawyer Gopal Sri Ram said any obstacle in doing so would lead to injustice and it is not in line with the law that was passed 45 years ago.

“Section 3(3) of the act should not be interpreted in such a way to prevent a Muslim from being cited as a co-respondent on grounds of adultery,” he said, adding that a cause of action did not depend on the religion of the co-respondent.

“Otherwise, it amounts to a violation of the appellant’s fundamental rights guaranteed under Articles 5(1) and 8(1) of the Federal Constitution,” said Sri Ram, who was assisted by Ravi Nekko.

He said Parliament never intended to make the law in violation of any fundamental right.

“A minister could give his views in Parliament but the responsibility of interpreting a law is with the courts.”

Gopal Sri Ram.

The former judge is appearing for a non-Muslim housewife, identified as AJS, who is appealing to include a Muslim woman, in her judicial separation suit.

The identities of the parties have been withheld as provided for in a High Court ruling.

On Nov 5, the Federal Court allowed the housewife’s leave application after a three-member bench approved two legal questions.

The questions up for argument are:

• Whether Section 3(3) of the Law Reform (Marriage and Divorce) Act (LRA) precludes a non-Muslim petitioner from citing a Muslim as a co-respondent on an allegation of adultery for judicial separation; and,
• Whether a court, in interpreting the same provision of the LRA, should have regard to the presumption that Parliament does not intend to legislate in violation of Articles 5(1) and 8(1) of the Federal Constitution.

Today’s proceeding, which was conducted virtually, was chaired by Chief Justice Tengku Maimun Tuan Mat. The other judges were Mohd Zawawi bin Salleh and Nallini Pathmanathan.

Meanwhile, lawyer Kiran Dhaliwal, appearing for the Muslim woman identified as JBMH, said Section 3 (3) of the LRA did not apply to a Muslim or to any person who is married under Islamic law.

“The court must give effect to the intention of the legislature and justice is for both parties,” said Kiran.

She said Muslims could not be asked to appear in a civil court just as the shariah court had no jurisdiction over non-Muslims.

“If not, there will be chaos and confusion.

“My client will also suffer double jeopardy,” added Kiran, who was assisted by Siew Choon Jern.

She said Article 121 of the Federal Constitution had also demarcated the jurisdiction and power of the civil and religious courts.

AJS had filed a petition for judicial separation against her husband, identified as RIS, in 2019 as he was alleged to be involved in an affair with JBMH.

JBMH then filed an application to remove her name on the basis that the LRA did not apply to Muslims.

The High Court then ruled a Muslim can be named as a co-respondent in a divorce petition and not in a judicial separation as the court has no jurisdiction to ask JBMH to pay damages for adultery.

In a divorce, a marriage contract is annulled, whereas in cases of judicial separation, the marriage continues to exist but the couple can live separately.

Last year, the Court of Appeal allowed JBMH’s appeal saying the law is not applicable to a Muslim.

It also dismissed AJS’s appeal, leading to the matter to go to the apex court.

The bench has reserved judgment. - FMT