Chief Justice Tengku Maimun Tuan Mat said a literal interpretation of Section 3 (3) of the Law Reform (Marriage and Divorce) Act (LRA) 1976 did not apply to Muslims, and any other construction would lead to absurdity.
Judge Mohd Zawawi Salleh concurred with Tengku Maimun while Nallini Pathmanathan dissented.
The issue for determination before the apex court was whether the Act excluded all Muslims in toto or it only excluded Muslims who were married under Islamic law.
Tengku Maimun said there was no ambiguity in the meaning of the words, “This Act shall not apply to a Muslim”.
“Applying a plain and literal construction to Section 3(3) does not lead to an absurdity, rather it accords with the object and the underlying purpose of the LRA and with the demarcation of jurisdictions ordained by Article 121(1A) of the Federal Constitution,” she said in dismissing the appeal by AJS, a non-Muslim wife.
The top judge also ruled that a co-respondent, JBMH, being a Muslim, was not capable of being condemned in damages under Section 58(2) of the LRA.
Nallini, however, said a 1997 amendment to Section 17A in the Interpretation Act had altered the rules of constructing written laws over common law rules.
“However, our courts have continued to apply the common law rules, often in preference over Section 17A,” she said, adding that Section 3 (3) must not be read literally but one must look into the intention of Parliament.
AJS had filed a petition in 2019 for judicial separation against her husband, identified as RIS, as he was alleged to be involved in an affair with JBMH.
The identities of the parties were withheld, as provided for in a High Court ruling.
JBMH then filed an application to remove her name on the basis that the LRA did not apply to Muslims.
The High Court ruled a Muslim can be named as a co-respondent in a divorce petition and not in a judicial separation as the court had no jurisdiction to ask JBMH to pay damages for adultery.
In a divorce, a marriage contract is annulled, whereas in cases of judicial separation, the marriage continues to exist but the couple can live separately.
Last year, the Court of Appeal had allowed JBMH’s appeal, saying the law is not applicable to a Muslim.