Islamic Family Law (federal Territories) Amendment Act 2005

A BILL

intituled

An Act to amend the Islamic Family Law (Federal Territories) Act 1984.

ENACTED by the Parliament of Malaysia as follows: Short title and commencement 1. (1) This Act may be cited as the Islamic Family Law (Federal Territories) (Amendment) Act 2005. (2) This Act comes into operation on a date to be appointed by the Yang di-Pertuan Agong by notification in the Gazette. Amendment of section 2 2. The Islamic Family Law (Federal Territories) Act 1984 [Act 303], which is referred to as the "principal Act" in this Act, is amended in section 2— (a) in subsection (1)— (i) in the definition of "darar syarie", by substituting for the word "moral" the word "dignity";

Bill (ii) by inserting after the definition of "Syariah Appeal Court" the following definition: "Syariah Appeal Court Judge" means a Syariah Appeal Court Judge appointed under subsection 42(1) of the Administration Act;'; (iii) by substituting for the definition of' "Syariah Judge" or "Judge" ' the following definition: ' "Syariah Judge" or "Judge" means a Judge of the Syariah Subordinate Court or the Syariah High Court, as the case may be, appointed under subsection 44(1) or 43(1) of the Administration Act respectively;'; (iv) by substituting for the definition of "Hukum Syarak" the following definition: "Hukum Syarak" means Hukum Syarak according to the Mazhab Shafie, or according to one of the Mazhab Maliki, Hanafi or Hanbali;'; (v) by inserting after the definition of "Hukum Syarak" the following definition: ' "iqrar" means an admission made by a person, in writing or orally or by gesture, stating that he is under an obligation or liability to another person in respect of some right;'; (vi) by inserting after the definition of "ruju' " the following definition: ' "State" includes the Federal Territories of Kuala Lumpur, Labuan and Putrajaya;'; (vii) in the definition of "Federal Territory", by substituting for the words "or Labuan" the words ", Labuan or Putrajaya"; and (viii) in the definition of "Federal Territories", by substituting for the words "and Labuan" the words ", Labuan and Putrajaya"; and

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(b) in subsection (2), by inserting after the words "respectively by the Act" the words "to the extent that such meanings do not conflict with Hukum Syarak". Amendment of section 9 3.

Section 9 of the principal Act is amended(a) in subsection (1)— (i) in paragraph (b), by inserting after the word "grandmother" the words " or grandfather"; and (ii) in paragraph (f), by inserting after the words "ascendants;" the word "and"; (b) in subsection (2)— (i) by substituting for paragraph (c) the following paragraph: "(c) his stepgrandmother, being the wife of his grandfather, or her step grandfather, being the husband of her grandmother, whether on the side of the father or the mother;"; (ii) in paragraph (d)— (A) in the national language text, by substituting for paragraph (d) the following paragraph: "(d) menantu perempuannya atau menantu lelakinya; dan"; and (B) in the English language text, by inserting after the words "son-in-law;" the word "and"; and (iii) in the national language text, in paragraph (e), by inserting after the words "anak perempuan" the word "tirinya"; and (c) in subsection (4), by substituting for the word "two wives" the words "more than one wife".

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Amendment of section 13 4. Paragraph I3(b) of the principal Act is amended by substituting for the words "thereto as wall Raja" the words "to the wall Raja to solemnize the marriage". Amendment of section 14 5. Subparagraph 14(2)(7?Xiii) of the principal Act is amended by inserting after the words "janda;" the word "and". Amendment of section 23 6. Section 23 of the principal Act is amended— (a) by substituting for subsection (1) the following subsection: "(1) No man during the subsistence of a marriage shall, except with the prior permission in writing of the Court, contract another marriage with another woman."; (b) by inserting after subsection (1) the following subsection: "(1A) A marriage contracted without the permission of the Court under subsection (1) shall not be registered under this Act unless the Court is satisfied that the marriage is valid according to Hukum Syarak and the Court has ordered the marriage to be registered subject to section 123."; (c) in subsection (3)— (i) by substituting for the words "a declaration" the words "an iqrar"; and (ii) by substituting for the word "and" appearing after the words "to be just" the word "or"; (d) in subsection (4)— (i) by inserting after the words "existing wife or wives" the words ", the woman to be wedded, the wall of

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the woman to be wedded and any other person who, in the opinion of the Court, may provide information relating to the proposed marriage"; and (ii) in paragraph (a), by substituting for the word "and" appearing after the words "is just" the word "or"; (e) in subsection (5), by substituting for the words "statutory declaration" the word "iqrar"; (f) in subsection (6), by substituting for the words "Administration Enactment for appeals in civil matters" the words "Syariah Civil Procedure (Federal Territories) Act 1998 [Act 585]"; and (g) by inserting after subsection (8) the following subsection: "(9) Every Court that grants the permission or orders a marriage to be registered under this section shall have the power on the application by any party to the marriage— (a) to require a person to pay maintenance to his existing wife or wives; or (b) to order the division between the parties of the marriage of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the division of the proceeds of the sale.". Amendment of section 28 7. Section 28 of the principal Act is amended— (a) in the shoulder note, by substituting for the words "Registrars, Deputy Registrars" the words "Senior Registrars, Registrars"; and (b) in the national language text, in subsection (4), by substituting for the word "(1)" the word "(2)".

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Amendment of section 31 8. Paragraph 31 (2)(c) of the principal Act is amended by substituting for the word "declaration" the word "iqrar". Amendment of section 38 9. Section 38 of the principal Act is amended— (a) in the shoulder note, by substituting for the word "declaration" the word "iqrar"; (b) by substituting for the word "declaration" the word "iqrar"; (c) by substituting for the word "one" the word "two"; and (d) by substituting for the word "six" the word "twelve". Amendment of section 42 10. Subsection 42( 1) of the principal Act is amended by substituting for the words "statutory declaration" the words "an iqrar". Amendment of section 47 11. Section 47 of the principal Act is amended— (a) in subsection (1), by substituting for the words "a declaration" the words "an iqrar"; and (b) in subsection (2), by substituting for the words "statutory declaration" the word "iqrar". Amendment of section 52 12. Section 52 of the principal Act is amended— (a) in subsection (1)— (i) by inserting after the word "woman" the words "or man, as the case may be,";

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(ii) in paragraphs (a), (c) and (f), by inserting after the word "husband" the words "or wife"; (iii) by substituting for paragraph (d) the following paragraph: "(d) that the husband or wife has failed to perform, without reasonable cause, his or her, as the case may be, marital obligations (nafkah batin) for a period of one year;"; (iv) by substituting for paragraph (h) the following paragraph: "(h) that the husband or wife treats her or him, as the case may be, with cruelty, that is to say, inter alia— (i) habitually assaults her or him or makes her or his life miserable by cruelty of conduct; (ii) associates with women or men of evil repute or leads what, according to Hukum Syarak, is an infamous life; (iii) attempts to force the wife to lead an immoral life; (iv) disposes of her or his property or prevents her or him from exercising her or his legal rights over it; (v) obstructs her or him in the observance of her or his religious obligations or practice; or (vi) if he has more than one wife, does not treat her equitably in accordance with the requirements of Hukum Syarak;"; (v) by substituting for paragraph (i) the following paragraph: "(i) that even after the lapse of four months the marriage has still not been consummated owing to the wilful refusal of the husband or wife to consummate it;"; and

Bill (vi) in paragraph (k), by inserting after the words "unfit for marriage;" the word "or"; (b) by substituting for subsection (2) the following subsection: "(2) No order shall be made on the ground specified in paragraph (l)(c) until the sentence has become final and the husband or wife has already served one year of the sentence."; (c) in subsection (3)— (i) by inserting after the words "on the ground" the word "specified"; and (ii) by substituting for the word "six" the word "twelve"; and (d) in subsection (4), by inserting after the words "any of the grounds" the word "specified". Deletion of section 58 13. The principal Act is amended by deleting section 58. Amendment of section 59 14. Subparagraph 59(2)(b) of the principal Act is amended in the national language text by inserting after the words "kemahuan suaminya;" the word "atau". Amendment of section 61 15. Section 61 of the principal Act is amended in the English language text by substituting for the words "regardless of the word "having regard to". Amendment of section 73 16.

Subsection 73(1) of the principal Act is amended— (a) in paragraph (c), by deleting the word "or" appearing after the semicolon;

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(b) in paragraph (d) t by substituting for the full stop the words "; or"; and (c) by inserting after paragraph (d) the following paragraph: "(e) when permitting him to practice polygamy under subsection 23(1).". Amendment of section 79 17. Subparagraph 79fc)(i) of the principal Act is amended by inserting after the words "herself;" the word "or". Amendment of section 81 18. Subsection 81(2) of the principal Act is amended in the national language text— (a) in paragraph (a), by deleting the word "peringkatnya"; and (h) in paragraph (c), by deleting the word "peringkatnya". Amendment of section 107 19. Section 107 of the principal Act is amended in the shoulder notes by substituting for the words "Injunction against molestation" the words "Restraining order". New section 107 A 20. The principal Act is amended by inserting after section 107 the following section: "Prohibitory order against the disposal of harta sepencarian 107A. (1) The Court may, on the application of any party to a marriage— (a) where any matrimonial proceeding is pending; or

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Bill (b) in any proceeding where the Court may make an order under section 122, make an order prohibiting the wife or husband, as the case may be, from disposing of any assets acquired by them, jointly or solely, during the subsistence of their marriage if the Court is satisfied that it is necessary to do so. (2) The failure to comply with an order made under subsection (1) shall be punishable as a contempt of Court.".

Amendment of section 114 21. Paragraph 114(g) of the principal Act is amended by inserting after the words "of legitimacy;" the word "or". Amendment of section 121 22. The principal Act is amended by substituting for section 121 the following section: "Appeal 121. Any appeal against any decision of the Syariah Subordinate Court shall be made to the Syariah High Court, and any appeal against any decision of the Syariah High Court shall be made to the Syariah Appeal Court.". New section 122 23. The principal Act is amended by inserting after section 121 the following heading and section: "Division of Harta Sepencarian Power of Court to order division of harta sepencarian 122. (1) The Court shall have power, when permitting the pronouncement of talaq or when making an order of divorce, to order the division between the parties of any assets acquired

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by them during their marriage by their joint efforts or the sale of any such assets and the division between the parties of the proceeds of sale. (2) In exercising the powers conferred by subsection (1), the Court shall have regard to— (a) the extent of the contributions made by each party in money, property, or labour towards the acquiring of the assets; (b) any debts owing by either party that were contracted for their joint benefit; and (c) the need of the minor children of the marriage, if any, and, subject to those considerations, the Court shall incline towards equality of division. (3) The Court shall have power, when permitting the pronouncement of talaq or when making an order of divorce, to order the division between the parties of any assets acquired during the marriage by the sole efforts of one party to the marriage or the sale of any such assets and the division between the parties of the proceeds of sale. (4) In exercising the powers conferred by subsection (3), the Court shall have regard to— (a) the extent of the contributions made by the party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family; and (b) the need of the minor children of the marriage, if any, and, subject to those considerations, the Court may divide the assets or the proceeds of sale in such proportions as the Court deems reasonable, but, in any case, the party by whose efforts the assets were acquired shall receive a greater proportion.

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Bill (5) For the purposes of this section, references to assets acquired during a marriage include the assets owned before the marriage by one party that have been substantially improved during the marriage by the other party or by their joint efforts.".

Amendment of section 127 24. The principal Act is amended by substituting for section 127 the following section: "Ill-treatment of spouse 127. (1) A man who ill-treats his wife or cheats his wife of her property, or a woman who ill-treats her husband or cheats her husband of his property, commits an offence and shall on conviction be punished with a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both. (2) The Court may as an additional order direct the man or woman who has been convicted under subsection (1) to compensate the wife or husband who has been cheated of her or his property, as the case may be.". Amendment of section 130 25. Section 130 of the principal Act is amended-— (a) in the shoulder note, by substituting for the word "Apostacy" the words "Attempt to be murtad"; and (b) in the English language text, by substituting for the word "an apostate" the word "murtad". Amendment of section 134 26. Section 134 of the principal Act is amended— (a) in subsection (1), by substituting for the word "Enactment" the word "Act"; (b) in subsection (2), by substituting for the word "Enactment" the word "Act"; and

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(c) in paragraph (3)(c), by substituting for the word "declarations" the word "iqraf*. New section 134 A 27. The principal Act is amended by inserting after section 134 the following section: "Hukum Syarak 134A. (1) Any provision or interpretation of the provisions under this Act which is inconsistent with Hukum Syarak shall to the extent of the inconsistency, be void. (2) In the event of a lacuna or where any matter is not expressly provided for in this Act, the Court shall apply Hukum Syarak.".

EXPLANATORY STATEMENT This Bill seeks to amend the Islamic Family Law (Federal Territories) Act 1984 ("Act 303"). 2. Clause I contains the short title and provisions on the commencement of the proposed Act. 3. Clause 2 seeks to amend section 2 of Act 303 to introduce new definitions, to substitute certain definitions and to delete the definitions of certain terms used in Act 303 consequent upon the amendments proposed in this Bill. 4. Clause 3 seeks to amend section 9 of Act 303 to clarify further on the existing provisions regarding relationships prohibiting marriage. 5. Clause 6 seeks to amend section 23 of Act 303 to enable the Court to require a man who has been given permission to practice polygamy or who has his polygamous marriage registered under the section to pay maintenance to his existing wife or wives, or order the division of assets acquired by them during the marriage by their joint efforts, if there is any application by any party to the marriage. 6. Clause 9 seeks to amend section 38 of Act 303 to increase the penalty provided for the offence of intentionally making any false iqrar or statement. The maximum fine is increased from RM1000.00 to RM2000.00 and the maximum term of imprisonment is increased from six months to twelve months.

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I. Clause 12 seeks to amend section 52 of Act 303 to make the section consistent with Hukum Syarak by giving the right offasakh to the husband and wife. 8. Clause 16 seeks to amend section 73 of Act 303 to enable the Court to order a man to pay maintenance for his child when permitting him to practise polygamy under subsection 23(1). 9. Clause 20 seeks to introduce a new section, namely section 107A, into Act 303. The new section seeks to enable the Court, upon the application of any party to a marriage, to make a prohibitory order against the disposal of harta sepencarian by the wife or husband where any matrimonial proceedings is pending in the Court. 10. Clause 22 seeks to amend section 121 of Act 303 to set out clearly that appeals against any decision of the Syariah Subordinate Court shall be made to the Syariah High Court and appeals from the Syariah High Court shall be made to the Syariah Appeal Court . I1. Clause 23 seeks to insert a new section, namely section 122, into Act 303. This new section deals with the power of the Court to order the division of harta sepencarian. 12. Clause 24 seeks to amend section 127 of Act 303 to provide that ill-treatment of a spouse or cheating a spouse of his or her property is an offence and on conviction shall be punished with a fine or to imprisonment or to both. This amendment also gives the power to the Court to make an additional order to direct the man or woman who has been convicted for cheating his wife or her husband of her or his property to compensate the cheated spouse. 13. Clause 27 seeks to insert a new section, namely section 134A, into Act 303. This new section provides that Hukum Syarak will be applied if there is any lacuna or inconsistency in Act 303. 14. Other amendments not specifically dealt with in this Statement are minor or consequential in nature. FINANCIAL IMPLICATIONS

This Bill will not involve the Government in any extra financial expenditure. [PN(U2)2381]