INSIGHTS INTO THE INTER-RELATIONSHIP AND THE

ASSOCIATED TENSION BETWEEN SHARIAH AND CIVIL

FAMILY LAW IN MALAYSIA*
Dr Zaleha Kamaruddin
Professor of Law International Islamic University Malaysia
[Paper presented at the 20th LAWASIA Biennial Conference, Law Society of Hong
Kong, Hong Kong, 68 June 2007. The author would like to acknowledge the much
valued assistance of Mr Baharudeen Abu Bakar]
INTRODUCTION
As different family laws apply to different communities within the same national legal
system, by right, there should be minimal inter-relationship. However, on the few
occasions that they intersect, there is much confusion and tension created as much by
adjective law and juridical issues as the conflicting substantive family laws.The just
resolution of these inherently complicated matters is aggravated by a third element
seeking to be another, and even overriding source of substantive law, international
instruments on certain aspects of family life.1
Muslim Civil Society and The Legal Setting
Islamic law including Muslim family law was revealed by Allah SWT; it is therefore
superior to man-made law. Observing Islamic law and teachings in all aspects of life is
the over-arching Islamic duty of all Muslims encompassed in the concept of tauhid.
Practising Islamic law and having it applied to Muslims is to Muslims, the practise of
Islam.
British colonisation has resulted in the marginalisation of Islamic law; from being the
basic law applicable to all matters to being restricted to some narrow though
significant aspects of life namely, the family. The efforts of mainly human rights and
feminist groups in promoting secular international law documents as the standard by
6 MLJ lxxvi at lxxvii
which all laws including Islamic law should be judged is an infuriating interference to
Muslims although reaction to such interference appears surprisingly subdued so far.
Muslims are therefore determined to ensure that Islamic law is not reduced any
further in its application to Muslims in the Malaysian legal system.
The family law in Malaysia now comprises of:

(1)
Islamic law or Shariah law for all Muslims contained in state legislation
comprising administrative provisions and the substantive law based on
the Quran and Sunnah (the primary sources) and authoritative
interpretations (fiqh) (hereafter collectively referred to as the Muslim
Family Law); and

(2)
since 1976, the Law Reform (Marriage and Divorce) Act ( the Act) for all
non-Muslims.

The separation extends to the courts; Shariah courts for Muslim family matters, which
is the substantial part of the jurisdiction of all Shariah courts in any case, and it is a
state entity; and the civil court, a federal entity, for non-Muslim families. Significantly
(as will be seen later), Muslims are expressly excluded from the civil court, except as
respondents.
The Shariah Court is prohibited by the Federal Constitution from assuming jurisdiction
over non-Muslims.2 Notwithstanding the same provision spelling out that the matters
listed in it (mainly family matters) are within the jurisdiction of the Shariah Court, 3 the
civil courts have encroached on the remit of the Shariah courts, in some instances,
even in the same case.4 To overcome this problem, the Constitution was amended to
provide that the civil court will not encroach on matters within the jurisdiction of the
Shariah Court.5 However, the separation is still not complete.
The Inter-relationship Problems Conversion to Islam
The question of the inter-relationship between the Muslim and non-Muslim family laws
in Malaysia will be discussed in the context of non-Muslim marriages where one
spouse becomes a Muslim after the marriage.
6 MLJ lxxvi at lxxviii
The legal issues and problems that arise may be adumbrated as follows:

(1)
Under Muslim family law a Muslim cannot marry a non-Muslim, so upon
conversion the marriage becomes invalid after a fixed period; 6 the Act
requires that it be formally dissolved;7

(2)
The Act recognises conversion to Islam as a grounds for divorce (s 51)
and an imperative one at that; in such circumstances the 2-year minimum
period of marriage that must elapse before a petition may be presented, is
dispensed with (s 51(3);

(3)
The non- Muslim spouse who converts to Islam is not allowed to petition
for divorce; the spouse who has so converted may appear in the civil court
only in response to the proceedings initiated by the non-Muslim spouse (s
51(1) of the Act);8

(4)
If the spouse who converst to Islam is the wife, and acting on the strength
of a declaration by the Shariah Court that she cannot remain married to a
non-Muslim, she marries again, is she guilty of any offence? 9

(5)
If the spouse who converst to Islam is the wife, and her non-Muslim
husband refuses to divorce her or is lackadaisical about it, what are his
rights against her?10

(6)
If the non-Muslim spouse does not petition for a divorce, does the nonMuslim spouse become entitled to the estate of the Muslim spouse?, 11and
what are the rights of the Muslim spouse who had married the spouse who
has since converted to Islam?

(7)
Which law is to apply (the Act or the Shariah law) to the dissolution of the
marriage?
6 MLJ lxxvi at lxxix

(8)
Which law is to apply to the question of the custody of the children? They
are human beings in their own right, and unlike other interests between
their parents;

(9)
Who decides about the religious upbringing of the children; each parent
would want to raise the children according to his/her religion. The children
are often too young to decide the matter on their own (on top of the
emotional turmoil of the breakdown of their family life), and religious
education from the earliest stages of life is often decisive, and favours the
parent with custody.

(10)
Which court is to decide? Strictly speaking, this is not a substantive
family law question but experience has shown that it has complicated
matters with the civil and Shariah courts making conflicting, pre-emptive
decisions. It is in urgent need of reform before the question of what law
is to apply to both parties is addressed. Some converts maintain that the
civil court has no jurisdiction over them as such matters are with the
Shariah courts, and they are, after all, statutorily precluded from going
to the civil court. Non-Muslim spouses maintain that as the marriage was
contracted under the civil law, the civil court retains jurisdiction. 12 The
real issue is that the Muslim spouse is only allowed to go to the civil
court if the non-Muslim goes there first; the Muslims interests may
become academic particularly in custody matters where the children are
with the non-Muslim parent and the latter decides to wait till the children
reach adulthood before applying for divorce, and in the meantime applies
only for maintenance from her Muslim husband.

The Crux of the Problem Section 51 of the Law Reform (Marriage and
Divorce) Act 1976
For these complex questions to be resolved, there should to begin with, be only one
forum for both parties to go to as of right. Why does the Act give the right only to the
non-Muslim spouse to petition for divorce? The Royal Commission on Non-Muslim
Family Law Reform (hereafter the Ong Commission), which drafted the Act, was
headed by former Chief Justice HT Ong and took the view, as stated in its Report, that

married individuals, nearly always men, converted to Islam only to escape their
obligations under their existing marriages which is, of course, insulting to Islam and
Muslims. Presumably, their innocent non-Muslim spouses are to decide on the
sincerity of the conversion and petition for divorce or imprison the Muslim spouse to
6 MLJ lxxvi at lxxx
a marriage that had broken down in a fundamental sense in that different laws now
applied to the two spouses.
The failure to amend s 51 of the Act is all the more difficult to understand as other
provisions have been amended to ensure that the non-Muslim wifes rights are not
affected by the other spouses conversion to Islam,13 and should discourage
conversion to Islam for the perceived purpose of avoiding marital obligations.
The position taken by the Ong Commission is also incompatible with its avowed aim to
do away with fault in the sense of matrimonial misconduct as the basis for divorce,
and to replace it with the modern concept of breakdown of the marriage:14 whether
taking the relationship in totality the marriage could be said to have broken down
irretrievably. As (e)ither party to a marriage may petition for a divorce on the ground
that the marriage has irretrievably broken down15(it would appear possible, in theory
at least, for an adulterous spouse to bring about the breakdown of his/her marriage
and petition the court for divorce but not a spouse who converts to
Islam).16 Conversion to Islam though a right under Islamic law and the Federal
Constitution17 is insofar as the Act is concerned to be seen as a matrimonial offence
for which the converting spouse has to be put at a considerable disadvantage. 18
In providing that the Muslim spouse should remain trapped in a marriage that has
broken down, the legislation goes against one of the principal considerations of the
Ong Commission that estranged spouses should be given an expeditious dissolution of
their marriages.19
Authoritative Muslim and non-Muslim family laws scholars20 and lawyers21 are of the
view that the Act should be amended to allow the Muslim spouse to go to the civil
court on his own initiative as the
6 MLJ lxxvi at lxxxi
marriage was at its inception a civil law marriage. In fact, as matters stand, the law
applicable to the Muslim spouses position is the civil law 22 where the non-Muslim
spouse had gone to the civil court first and the Muslim spouse merely responded.
If the amendment had been made in time, the civil court could by now have
developed a jurisprudence appropriate to the religious identity of both parties. The
only important caveat I would add is: the civil court must take into account the
Muslim spouses position under Islamic law and try to achieve a middle ground.
The Manifestations of the Problem and Solutions
The hope of the Ong Commission that the converting spouse will wait patiently for the
non-Muslim spouse to initiate proceedings for divorce has proved to be nave. As the
converting spouse is denied access to the civil courts, such a spouse can only go to
the court available to him/her ie the Shariah Court, for a solution. In such
circumstances it is found that the civil court acknowledges, if only tacitly, the dilemma
of the Muslim spouse, and has done no more than give its imprimatur as the following
cases illustrate.

Muslim judges in the civil court have been sympathetic with the position of the nonMuslim spouse in not being able to go the Shariah Court for matrimonial remedies
where objection was made by the Muslim spouse to the jurisdiction of the civil courts
over them, and have allowed non-Muslims to proceed in the civil courts.23
A Muslim husband who had left the matrimonial home and was prevented from seeing
his children, and prevented by the Act from applying for divorce and from applying for
custody, obtained a declaration from the Shariah Court that his marriage was no
longer valid and converted his children to Islam to strengthen his case for custody
and to raise the children as Muslims. The civil court had to recognise the conversion
as a ground for divorce which was granted. On the more difficult question of the
validity of the conversion raised by the non-Muslim mother, the court had to accept
the fact of their conversion as valid under Islamic law and laid down conditions to
prevent her from undermining their faith.24
To thwart such a move, in a recent case25 which has yet to be disposed of finally, the
non-Muslim has applied to the civil court for
6 MLJ lxxvi at lxxxii
an injunction to prevent the Muslim spouse from going to the Shariah Court so that
the Muslim is denied access to any court!26
Three clear conclusions may be drawn:

(1)
Muslim spouse has been denied the right to initiate proceedings in the civil
courts even though all non-Muslim rights are provided for under the Act.

(2)
By driving Muslims to the Shariah Court, the Act has ensured that Islamic
law applied to the Muslims positions in their disputes with their nonMuslim spouses though it is uncertain if the civil court would have done so
if they had not gone to the Shariah Court.

(3)
Looking at the problems arising in Muslim and non-Muslim marriages, the
requirement of Islamic law that both parties to the marriage should be
Muslims is vindicated.

Law Reform Proposals

After three decades of its existence and after the anguish it has caused Muslims and
non-Muslims, s 51 of the Act is said to be amended to allow the converting spouse to
initiate proceedings in the civil court. To reduce uncertainty to the minimum, there
will be specific provisions on most questions.
Unlike the Ong Commission, the current Attorney-General, Tan Sri Abdul Ghani Patail
has organised a series of face-to-face meetings between Muslim and non-Muslim
groups to arrive at fair, practically negotiated, solutions to all questions of ancillary
relief consequential upon divorce. To both Muslims and non-Muslims the discussions
have been salutary; they had to think not only in terms of what was demanded by

their side only but had to think in terms of what was fair and acceptable to both sides.
And Muslim representatives, exhausted the whole range of interpretations of Islamic
law to find solutions rather than relying on some basic propositions.
It is expected that that the provisions having been accepted by both sides, will be an
interesting instance of harmonisation of Malaysian civil law with Islamic law and will
be a truly Malaysian contribution to the resolution of a conflict of laws within a
national legal system. A study of the specific provisions in terms of their sources and
the methodology of the compromise will have to await another day.
1 Article 16 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
This convention has been subject to considerable political debate over its alleged cultural and religious
hegemonistic character.2 Ninth Schedule List 2 State List.3 Ibid.4 Myriam v Mohamed Ariff [1971] 1 MLJ
265.5 Article 121(1A) The courts referred to in clause 1 (the High Court and Subordinate courts) shall have
no jurisdiction in respect of any matter within the jurisdiction of the Shariah courts.6 A petition may be
presented only after 3 months to enable the non-Muslim spouse to decide whether or not to convert;
proviso to s 51(1) of the Act which applies as a Muslim family law requirement.7 Sections 3(3), 4(3),
51(1), Shamala a/p Sathiyaseelan v Dr Jeyaganesh a/l C Mogarajah [2003] 6 MLJ 515.8 Section 51 of the
LRA, Where one party to a marriage has converted to Islam, the other party who has not so converted may
petition for divorce.9 The question would not arise in the case of the Muslim husband even if marriage to a
non-Muslim has not been dissolved.10 See Pedley v Majlis Ugama Islam Pulau Pinang & Anor. Penang
Originating Summons No 31-717 of 87 where the husband asked for a declaration that their marriage was
not dissolved by her conversion to Islam.11 Eeswari Visuvalingam v Government of Malaysia [1990] 1 MLJ
86.12 Tang Sung Mooi v Too Miew Kim [1994] 3 MLJ 117.13 Section 51(2) of the LRA.14 Breakdown of
marriage to be sole ground for divorce; marginal note to s 53(1) of the LRA.15 Section 53(1) of the
LRA.16 The problems to the parties arising from this provision were noted at the time the legislation was
enacted in 1975. See [1975] 2 MLJ Notes lxix.17 Article 11(1) of the Federal Constitution.18 Prof. Emeritus
Ahmad Ibrahim Recent Developments in the Administration of Islamic law in Malaysia in Administration of
Islamic Laws Ahmad Mohamed Ibrahim and Abdul Monir Yaacob (eds) IKIM, (1997).19 Ong
Report.20 Prof Ahmad Ibrahim The Need to Amend Section 51 of the Law Reform (Marriage and Divorce)
Act 1976 [1990] 2 MLJ lviii.21 Discussions with Tuan Haji Sulaiman Abdullah and Mdm Foo Yet
Ngo.22 Section 51(2).23 Ganga Devi Chelliah v Santanan [2001] 2 CLJ 359.24 Shamala a/p Sathyaseelan v
Dr Jeyaganesh a/l C.Mogarajah [2003] 6 MLJ 515.25 Subashinis case.26 The non-Muslim wife was told by
the judge, obviously in riposte or as a throwaway line (as it was not a decision), that she should go to the
Shariah Court!