PETALING JAYA: The controversial issue of whether Muslims can be made a party in the wrecking of the marriage of non-Muslim couples is going to the Federal Court for final determination, lawyer Ravi Nekoo said.
Counsel said his client, identified as AJS, had filed an application for leave to appeal in the apex court yesterday.
“We hope the Federal Court will find the legal questions framed are of public advantage or are constitutional issues, as provided for under Section 96 of the Courts of Judicature Act 1964,” he told FMT, adding that six questions of law have been framed.
A civil appeal to the Federal Court is not automatic.
On July 6, a three-member bench of the Court of Appeal, in reversing a High Court ruling, held that a Muslim cannot be made a party in a matrimonial dispute involving non-Muslim couples.
Judge Kamardin Hashim said there was merit in the appeal though he did not provide the grounds for overruling the ruling.
High Court judge Faizah Jamaluddin had ruled that a co-respondent could only be named in a divorce petition and not a judicial separation, regardless of his or her religion.
In July last year, AJS filed a petition for judicial separation against her husband, known as RIS.
AJS also included JBMH, a Muslim woman, as co-respondent, as she was said to be having an affair with RIS.
JBMH then filed an application to remove her name on the basis that the Law Reform (Marriage and Divorce) Act 1976 (LRA) did not apply to Muslims.
The identities of the parties involved have been withheld as provided in the High Court ruling.
Lawyer Siew Choon Jern, who appeared for JBMH, had told the Court of Appeal on July 6 that Section 3(3) of the LRA was clear that it excluded Muslims.
“It is a blanket exclusion. The only exception is in relation to Muslim converts who had civil marriages,” Siew said.
Ravi, who represented AJS, said the court had to look into the legislative intent of Section 3(3). “Parliament would not have given a cloak of immunity to a Muslim who wrecks the marriage of non-Muslim couples and allow them to get away with it,” he said.
In 2001, the late VT Singham, then a High Court judge, said marriage was a sacred union and parties should strive to maintain this relationship for life as any breakdown in the marriage would have adverse effects on the children who were innocent parties.
Therefore, he said in the judgment in a separate case, third parties should stay away from attempting to interfere or enter into any kind of immoral relationship with the wife or husband of another, which no doubt was likely to cause the breakdown of the marriage of a happily married couple.
The judge ordered the third party to pay RM20,150 in damages to the divorced wife as she had committed adultery with the husband.
However, in that case, the third party was a non-Muslim woman.