1 MLJ 361, *; [1982] 1 MLJ 361

© 2003 LexisNexis Asia (a division of Reed Elsevier (S) Pte Ltd)

The Malayan Law Journal

HAMZAH BIN MUSA V FATIMAH ZAHARAH BINTI MOHAMED JALAL

[1982] 1 MLJ 361

CIVIL APPEAL NO 19 OF 1980

ACJ KOTA BHARU

DECIDED-DATE-1: 22 JULY 1981, 25 NOVEMBER 1981

MOHAMED ZAHIR J

CATCHWORDS:
Contract - Agreement by Muslim husband to pay wife $ 5,000 if he divorces her -
Whether contract can be enforced in Magistrate's Court - Whether contract is
immoral or opposed to public policy - Contract Act, 1950, s. 24

Islamic Law - Agreement by Muslim husband to pay wife $ 5,000 if he divorces her -
Whether enforceable in civil court - Kelantan Shairyah Courts and Muslim Matrimonial
Causes Enactment, 1966, ss. 9 & 60

HEADNOTES:
In this case the appellant on marrying the respondent had agreed to pay her $ 5,000
if he divorced her. Subsequently the appellant divorced the respondent and she
claimed the sum of $ 5,000. The learned Magistrate gave judgment in favour of the
respondent and the appellant appealed.

Held:
(1) the learned Magistrate had jurisdiction to hear the case;
(2) the contract in this case was not immoral or opposed to public policy
under section 24 of the Contract Act, 1950;
(3) in this case the appellant had agreed to marry the respondent on the
stipulation that if he were to divorce her he would pay her $ 5,000. She had
fulfilled her term of the obligation by marrying him and upon divorcing her,
the appellant was obliged to fulfil his term of the contract.

Cases referred to
Nafsiah v Abdul Majid [1969] 2 MLJ 174
Sak'amah binte Saridin v Tasmin bin Abdul Samad [1938] MLJ 38

CIVIL APPEAL

P Dorairaj for the appellant.

MS Nayagam for the respondent.

ACTION:

CIVIL APPEAL

LAWYERS: P Dorairaj for the appellant.

MS Nayagam for the respondent.

JUDGMENTBY: MOHAMED ZAHIR J

The defendant is appealing against the decision of the Magistrate ordering him to pay
the sum of $ 5,000 being the amount due as a result of a breach of an undertaking
given by the defendant to his ex-wife, the plaintiff, that he would not divorce the
plaintiff and that if he did so he would pay her$ 5,000.

In the trial below, the defendant did not dispute the undertaking but averred that the
undertaking was unenforceable as it was in violation of the provisions of Islamic law.
The defendant further pleaded that any remedy after the divorce should be in the
Kadhi's Court as both parties are Muslims.

According to the evidence it was the defendant, a school teacher, who prepared the
undertaking. It is termed as "Surat Perjanjian" which reads as follows: --
"Bahawa adalah saya Hamzah bin Musa, KP. No. 0839666, tinggal di
Kampong Kelubi, Jalan Machang, Pasir Puteh, Kelantan, dengan
sesungguhnya serta dengan hati yang suci mengaku bahawa:--
Saya bersetuju pada perjanjian yang telah saya buat dengan isteri saya
Fatimah Zaharah binti Mohd. Jalal KP. No. 1533783, tinggal di Kampong
Pauh Lima, Bachok, Kelantan. Saya tidak akan cerainya, sekiranya saya
cerai isteri saya Fatimah Zaharah binti Mohd. Jalal ini saya akan
didaawa dan dibayar sebanyak $ 5,000.
Tertulis pada 25hb. December, 1976.
Adalah saya yang benar
(HAMZAH BIN MUSA)"

The brief history of the couple is rather tragic. The defendant was married nine times
and had divorced his wives nine times and had 8 children. One of his wives was the
plaintiff and she was divorced by him three times. After her third divorce the plaintiff
became pregnant. According to the defendant, he had to remarry her in the interest
of the child. But after divorcing her the third time, the defendant had no further right
to "rujuk" or claim back the plaintiff as his wife as he was entitled to do after the first
two divorces. According to the Muslim law, after the third divorce the woman must
first remarry another person in a proper marriage ceremony and if she is again
divorced by the new husband, then she would be at liberty to remarry the former
husband.

To circumvent this restriction of the religious law, the parties, according to the
evidence, went into the shady marriage ceremony which is called "Cina Buta". This
was done by the parties making an arrangement with another man who was willing
to marry the woman on condition that after the marriage had been solemnised, the
man would divorce the woman and the former husband would then be able to
remarry the woman after the eddah period when a divorced woman can remarry.
This practice is being frowned by most Muslims as an attempt to circumvent the
religious law. The practice is at present on the decline in Malaya as compared to
many years ago. But it is none-the-less still being practised by the short tempered
couples and hasty decision-making husbands who later regret their decision. Feeling
that they must marry and live together again for the sake of their children or for
love alone or for whatever reason, some couples would be prepared to undergo the
"Cina Buta" ceremony however much distasteful it is.

The defence counsel in arguing the appeal before me submitted that the Magistrate
has no jurisdiction [*362] to hear the case and quoted An Introduction to the
Constitution of Malaysia by Tun Suffian at page 99. He also quoted section 9 of the
Shariyah Courts and Muslim Matrimonial Causes Enactment 1966. This section
enunciates the powers of the Shariyah Court to hear and determine all actions and
proceedings in which all the parties profess the Islamic religion and which relate to:
"(i) betrothal, marriage (including ta'at balek) divorce, nullity of
marriage or judicial separation;
(ii) any disposition of, or claim to, property arising out of any of
the matters set out in sub-paragraph (i) of this paragraph."

On this point the learned Magistrate ruled that the question of jurisdiction depended
entirely on the document, whether contractual or not. He was of the opinion that
since this matter came under the Contracts Act 1960, only the Adat Court (Courts
established under Courts of Judicature Act 1964 and Subordinate Courts Act 1948)
has jurisdiction. I am, however, of the different view. There are matters under the
Contracts Act 1950 which can as well be adjudicated by the Shariyah Court. Section
9(b)(ii) of the Shariyah Courts Enactment 1966 clearly envisages contracts under the
Contracts Act 1950 such as claims of properties made in pursuance or related to
betrothals, marriages or divorces and also cases under section 9(b)(vii) which relates
to settlements with or without consideration.

There are certain cases which the Shariyah Court and Civil Court are having
concurrent jurisdiction. For instance, claims for "harta sepencarian", wakaf or nazar
which are also being heard in the High Court. It is up to the plaintiff to choose
whichever court he or she feels that would give more advantages. For instance, the
Shariyah Court in a "harta sepencarian" case, cannot order specific performance of
half share of any land since the Shariyah Court has no power to issue an order for
specific performance. He or she may only claim the equivalent value in money.

Claims for breach of promise to marry can be initiated in both Adat Court or
Shariyah Court. But if it is initiated in the Subordinate Court, it appears to me that
the man cannot claim the dowry if paid as dowry is exclusively a matter for Shariyah
Court. He may claim for reimbursement of expenses incurred and general damages.
But section 60 of the Kelantan Shariyah Courts Enactment provides as follows: --
"... the party in default shall be liable, if a male, to pay as damages
the amount of the mas-kahwin which would have been payable together
with other monies expended in good faith in preparation for the
marriage, or, if a female, to return the betrothal gifts, if any, or
the value thereof and to pay as damages the amount of such other monies
as aforesaid, and the same may be recovered by action in the court."
"Court" here means the Kadhi's or Chief Kadhi's Court or the Court of Jumaah
Pengadilan which is the Shariyah's ultimate appeal court. Thus, in Kadhi's Court the
claimant may also make a claim in respect of dowry as well as damages.

There are, however, cases which although they may well come under the Contracts
Act, are under the exclusive province of the Shariyah Court. For instance, a case
where there is agreement by a party to a marriage to defer the payment of dowry to
a later date. Since dowry is a requirement in the Muslim law in marriage, the matter
would be properly adjudicated by the Shariyah Court. But if the husband were to
contract with the wife or would-be wife to give her a piece of land in the event of a
divorce specifically not as a dowry, then this matter can be adjudicated by an Adat
Court. The instant case comes under this category. In this case, the sum of $ 5,000
was never intended to be a dowry which according to the evidence had been settled.

There are, however, cases under the exclusive jurisdiction of the Adat Court where
the parties may have been husband and wife but what they agree upon may not
have anything to do with the Shariyah law which should be confined to those parts of
the Muslim law enacted under the various State Enactments intended to be
administered by the various State religious departments or courts. Other Muslim laws
such as distribution of Muslim estates or even murder, robbery and theft which are
also provided by the Muslim law are being adjudicated by the Adat Courts.
Maintenance of Muslim children and widows which before was under the Adat Court,
has now been transferred to the exclusive jurisdiction of Shariyah Court.

Another question to be decided here as submitted by counsel for the defendant is

that the contract is immoral or opposed to public policy under section 24 of the
Contract Act. There are cases where the court refused to enforce agreements as
being against public policy where the objects of the agreements are illegal. Chitty on
Contracts, 24th Edition at paragraph 904 has this to say on the scope of public
policy:
"Objects which on grounds of public policy invalidate contracts may,
for convenience, be generally classified into five grounds: first,
objects which are illegal by common law or by legislation; secondly,
objects injurious to good government either in the field of domestic or
foreign affairs; thirdly, objects which interfere with the proper
working of the machinery of justice; fourthly, objects injurious to
family life; and fifthly, objects economically against the public
interest."

The only category under which this case may be considered is perhaps it is injurious
to family life. It is not against any established law, for there is no law in the Muslim
religion that prohibits a wife or would-be wife entering into a contract with her
husband. But an agreement entered into before marriage by which it is provided that
the wife should be at liberty to live with her parents is void, as under the Muslim law
the wife must live with her husband. Similarly, an agreement entered into after
marriage between a husband and wife who were for some time before the date of
the agreement living apart from each other, providing that they should resume
cohabitation, but that if the wife should be unable to agree with the husband, she
should be free to leave him, is void. But an agreement to allow a second wife to live
in a separate house and to give her a maintenance allowance has been enforced (see
Mulla on Principles of Mahomedan Law, 17th Ed. page 275).

Claims for damages by a woman for breach of contract to marry for the return of
monies expended are enforceable (see Nafsiah v Abdul Majid [1969] 2 MLJ 174).

Thus, whether these contracts are enforceable or not would depend entirely on the
object of the contracts. [*363] An agreement contemporary with the marriage
whereby the husband undertook not to ill-treat his wife and also agreed that the wife
would be entitled to claim the customary maintenance allowance if relations between
them became strained is not void as being against public policy (see Pollock on
Indian Contract and Specific Relief Acts, 8th Ed. page 171).

In Sak'amah binte Saridin v Tasmin bin Abdul Samad [1938] MLJ 38, the parties
being husband and wife entered into a contract wherein the wife agreed to transfer a
piece of land held in trust by her in favour of her husband in the event she asked for
a divorce from her husband. She did ask for a divorce and the ex-husband claimed
for the transfer of the land to him. It was held by Cussen J.:
"the agreement as to the disposition of the property in the event of
divorce was consonant with the principles of Muhammadan law and custom
among Malays and was therefore a perfectly legal one."

Another ground of appeal is that the document is not a "Surat Akuan" as in the sense
of statutory declaration. It is admittedly not a statutory declaration. It is a contract in
which the plaintiff agreed to marry the defendant on the stipulation that if he were
to divorce her to pay her$ 5,000. She had fulfilled her term of the obligation by
marrying him and upon divorcing her, the defendant is obliged to fulfil his term of the
contract.

I dismiss the appeal with costs. The $ 150 deposit paid by the appellant be paid to
the respondent as part of the costs.

Appeal dismissed.

SOLICITORS:
Solicitors: Dorairaj & Co; Nayagam & Co.

LOAD-DATE: June 3, 2003