Why non-Muslims now can't name a Muslim as cause for marriage breakdown in court and must instead complain to Islamic authorities

Published date01 December 2021
Publication titleMalay Mail Online

Non-Muslims cannot name a Muslim person as the alleged adulterer with their spouse that led to the breakdown of a marriage between two non-Muslims, according to a majority decision by the Federal Court today.

Among other things, it said this was due to the Law Reform (Marriage and Divorce Act) (LRA) being applicable only to non-Muslims and not Muslims, and suggested that a non-Muslim can instead complain to Islamic authorities of the adultery which is a Shariah offence allegedly committed by a Muslim which led to the marriage breakdown.

This court case is important as the Federal Court was given an opportunity to examine or touch on the civil and Shariah legal systems in Malaysia, and the country's separate set of personal laws in terms of marriage and divorce for Muslims and non-Muslims.

What happened in this case

In this case, a non-Muslim woman filed a judicial separation petition or for a court order that she does not need to cohabit or live together with the non-Muslim husband, claiming that her marriage had broken down and that she had been abandoned by the husband as a result of the latter's alleged adulterous relationship with a Muslim woman.

The non-Muslim woman named the husband as the respondent and the Muslim woman as the co-respondent in the judicial separation petition, asking for the respondent to be 'condemned in damages' or to claim for money as compensation under LRA's Section 58 and for both the husband and other woman to pay the petition costs.

Section 58 enables damages for adultery to be claimed against a co-respondent, but the Muslim woman had said she was wrongly named in the judicial separation petition as she argued Section 3(3) meant the LRA does not apply to Muslims and as she argued that Section 58 only applies to divorce petitions and not judicial separation petitions.

The High Court allowed the Muslim woman's application to strike out the judicial separation petition against her, as it ruled that the LRA governs the marriage and divorce of non-Muslims and not Muslims, and that an alleged adulterer can still be named as co-respondent in divorce proceedings despite being a Muslim and that damages for adultery can still be claimed against the Muslim co-respondent under Section 58.

The High Court had also decided Section 58 only applies to divorce petitions and that it has no jurisdiction to condemn the co-respondent for damages under Section 58 in a judicial separation petition.

The non-Muslim woman appealed against the High Court decision that no one whether Muslim or non-Muslim can be named as co-respondent in a judicial separation petition for the purposes of damages under Section 58, while the Muslim woman appealed against the High Court's decision for saying that a Muslim can be named as co-respondent in divorce proceedings under Section 58.

The Court of Appeal unanimously ruled in the Muslim woman's favour by saying that the phrase 'This Act shall not apply to a Muslim' in the LRA's Section 3(3) means that the...

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