/akn/my/act/act/1984/303
Text is served through the Arturio legal-data gateway. This reader shows the active Malaysia expression when available.
content_0
ONLINE VERSION OF UPDATED TEXT OF REPRINT Act 303 As at 1 January 2014 2 Date of Royal Assent … … … … 27 June 1984 Date of publication in the Gazette … … … … 28 June 1984 Latest amendment made by Act A1261 which came into operation on … … … … 1 November 2010 PREVIOUS REPRINT First Reprint … … … … 2001 Second Reprint … … … … 2005 Third Reprint … … … … 2006 3 Act 303 ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984 ARRANGEMENT OF SECTIONS Section
section_1
1. Short title, application and commencement 2. Interpretation 3. Saving of prerogative 4. Application 5. Criterion for deciding whether a person is a Muslim 6. Subsisting valid marriages deemed to be registered under this Act and dissoluble only under this Act
Part
content_3
MARRIAGE
section_4
7. Persons by whom marriages may be solemnized 8. Minimum age for marriage 9. Relationships prohibiting marriage 10. Persons of other religions 11. Void marriages 12. Non-registrable marriages 13. Consent required 14. Marriage of a woman 15. Betrothal 4 Laws of Malaysia ACT 303 Preliminaries to a Marriage Section
section_5
16. Application for permission to marry 17. Issue of permission to marry 18. Reference to an action by Syariah Judge 19. Permission necessary before solemnization 20. Place of marriage 21. Mas kahwin and pemberian 22. Entry in Marriage Register 23. Polygamy 24. Solemnization of marriages in Malaysian Embassies, etc., abroad
Part
content_7
REGISTRATION OF MARRIAGES
section_8
25. Registration 26. Marriage certificate and ta’liq certificate 27. Reporting of void or illegal marriages 28. Appointment of Chief Registrar, Senior Registrars, Registrars and Assistant Registrars of Muslim Marriages, Divorces, and Ruju’
section_9
29. Books and Registers to be kept of all marriages 30. Copies of entries to be sent to Chief Registrar 31. Registration of foreign marriage of a person resident in the Federal Territory 32. Unlawful registers 33. Voluntary registration of Muslim marriages previously solemnized under any law 34. Legal effect of registration
Part
content_11
PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNIZATION AND REGISTRATION OF MARRIAGES
section_12
35. Omission to appear before Registrar within prescribed time 36. Contravention of section 32 Islamic Family Law (Federal Territories) 5 Section
section_13
37. Interference with marriage 38. False iqrar or statement for procuring marriage 39. Unauthorized solemnization of marriage 40. Offences relating to solemnization of marriage 41. Sanction for prosecution 42. Correction of errors 43. Inspection of Marriage Register and index 44. Proof
Part
content_15
DISSOLUTION OF MARRIAGE
section_16
45. Extent of power to make any order 46. Change of religion 47. Divorce by talaq or by order 48. Arbitration by Hakam 49. Khul’ divorce or cerai tebus talaq 50. Divorce under ta’liq or stipulation 50A. Divorce by li’an 51. Resumption of conjugal relationship or ruju’
section_17
52. Order for dissolution of marriage or fasakh 53. Presumption of death 54. Maintenance of Register of Divorces and Annulments 55. Registration of divorces 55A. Registration of divorces outside the Court 56. Mut’ah or consolatory gift to woman divorced without just cause 57. Right to mas kahwin, etc., not to be affected 58. (Deleted) 6 Laws of Malaysia ACT 303
Part
content_19
MAINTENANCE OF WIFE, CHILDREN AND OTHERS Section
section_20
59. Power of Court to order maintenance of wife, and the effect of nusyuz 60. Power of Court to order maintenance of certain persons 61. Assessment of maintenance 62. Power of Court to order security for maintenance 63. Compounding of maintenance 64. Duration of orders for maintenance 65. Right to maintenance or pemberian after divorce 66. Power of Court to vary orders for maintenance 67. Power of Court to vary agreements for maintenance 68. Maintenance payable under order of Court to be inalienable 69. Recovery of arrears of maintenance 70. Interim maintenance 71. Right to accommodation 72. Duty to maintain children 73. Power of Court to order maintenance for children 74. Power of Court to order security for maintenance of a child 75. Power of Court to vary order for custody or maintenance of a child 76. Power of Court to vary agreement for custody or maintenance of a child 77. Recovery of arrears of maintenance of a child 78. Duty to maintain child accepted as member of family 79. Duration of order for maintenance of a child 80. Duty to maintain illegitimate children
Part
content_22
GUARDIANSHIP Hadhanah or Custody of Children
section_23
81. Persons entitled to custody of a child Islamic Family Law (Federal Territories) 7 Section
section_24
82. Qualifications necessary for custody 83. How right of custody is lost 84. Duration of custody 85. Custody of illegitimate children 86. Power of the Court to make order for custody 87. Orders subject to conditions Guardianship of Person and Property
section_25
88. Persons entitled to guardianship 89. Power over immovable and movable property 90. Appointment of guardians by the Court 91. Appointment of mother as testamentary guardian 92. Joint guardian with mother 93. Variation of power of guardian of property 94. Removal of guardian 95. Security to be given 96. Limitation of powers of guardian appointed by Court 97. Guardian may not give discharge for capital property 98. Guardian may support minor out of income 99. Special order in case of small estate 100. Application for opinion, etc.
section_26
101. Prohibition order by Court 102. Guardian of orphan 103. (Deleted)
section_27
104. Court to have regard to advice of welfare officers, etc.
section_28
105. Power of Court to restrain taking of child out of Malaysia 8 Laws of Malaysia ACT 303 Other Reliefs Section
section_29
106. Power of Court to set aside and prevent dispositions intended to defeat claims to maintenance
section_30
107. Restraining order 107A. Prohibiting order against the disposal of harta sepencarian
Part
content_32
MISCELLANEOUS
section_33
108. Recognition of Muslim marriages contracted outside the Federal Territory 109. Recognition of marriages contracted in Embassies, etc., in the Federal Territory Legitimacy
section_34
110. Ascription of paternity 111. Birth more than four years after dissolution of marriage 112. Birth after declaration of completion of ‘iddah 113. Syubhah intercourse 114. Conditions for valid acknowledgment 115. Presumption from acknowledgment rebuttable 116. Acknowledgment by a woman in ‘iddah 117. Acknowledging another as mother or father 118. Acknowledgment other than as a child, mother, or father 119. Acknowledgment irrevocable Order to Resume Cohabitation
section_35
120. Application by deserted wife Appeals
section_36
121. Appeal Islamic Family Law (Federal Territories) 9 Division of Harta Sepencarian Section
section_37
122. Power of Court to order division of harta sepencarian
Part
content_39
PENALTIES
section_40
123. Polygamy without Court’s permission 124. Divorce outside Court and without Court’s permission 125. Failure to report 126. Desertion of wife 127. Ill-treatment of wife or husband 128. Failure to give proper justice to wife 129. Disobedience of wife 130. Attempt to be murtad to annul marriage 131. Illicit intercourse between divorced persons 132. Wilful neglect to comply with order 133. Attempts and abetment
Part
content_42
GENERAL
section_43
134. Power to make rules 134A. Hukum Syarak 135. Cessation of application of Selangor Enactment 3 of 1952
schedule_44
SCHEDULE 11 Act 303 ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984 An Act to enact certain provisions of the Islamic Family Law in respect of marriage, divorce, maintenance, guardianship, and other matters connected with family life. [29 April 1987, P.U. (B) 236/1987] BE IT ENACTED by the Seri Paduka Baginda Yang di-Pertuan Agong with the advice and consent of the Dewan Negara and Dewan Rakyat in Parliament assembled, and by the authority of the same, as follows: PART I PRELIMINARY Short title, application and commencement *1. (1) This Act may be cited as the Islamic Family Law (Federal Territories) Act 1984 and applies only to the Federal Territories of Kuala Lumpur and Labuan. (2) This Act shall come into operation on a date to be appointed by the Yang di-Pertuan Agong by notification in the Gazette. *NOTE—This Act is extended to the Federal Territory of Putrajaya vide the Federal Territory of Putrajaya (Extension and Modification of Islamic Family Law (Federal Territory) Act 1984) Order 2002—see P.U. (A) 247/2002. 12 Laws of Malaysia ACT 303 Interpretation 2. (1) In this Act, unless the context otherwise requires— “Administration Act” means the Administration of Islamic Law (Federal Territories) Act 1993 [Act 505]; *“Administration Enactment” means the Administration of Muslim Law Enactment 1952 of the State of Selangor [En. Selangor 3 of 1952]— (a) in relation to the Federal Territory of Kuala Lumpur, as modified by the Federal Territory (Modification of Administration of Muslim Law Enactment) Orders 1974 [P.U. (A) 44/1974], 1981 [P.U. (A) 390/1981] and 1988 [P.U. (A) 163/1988, P.U. (A) 263/1988] made pursuant to subsection 6(4) of the Constitution (Amendment) (No. 2) Act 1973 [Act A206] and in force in the Federal Territory of Kuala Lumpur by virtue of subsection 6(1) of that Act; (b) in relation to the Federal Territory of Labuan, as modified and extended by the Federal Territory of Labuan (Modification and Extension of Administration of Muslim Law Enactment) Order 1985 [P.U. (A) 352/1985] made pursuant to section 7 of the Constitution (Amendment) (No. 2) Act 1984 [Act A585]; “anak dara” means a woman who has not had sexual intercourse, whether she has been married or not; “appointed date” means the date appointed under subsection 1(2) for the coming into operation of this Act; “baligh” means the age of puberty in accordance with Hukum Syarak; *NOTE—In relation to the Federal Territory of Putrajaya, as modified and extended by the Federal Territory of Putrajaya (Extension and Modification of the Islamic Family Law (Federal Territory) Act 1984) Order 2002 made pursuant to section 7 of the Constitution (Amendment) Act 2001 – see P.U. (A) 247/2002. Islamic Family Law (Federal Territories) 13 “Chief Registrar” means a Chief Registrar of Muslim Marriages, Divorces, and Ruju’ appointed under section 28; “Chief Syariah Prosecutor” means the officer appointed under subsection 58(1) of the Administration Act; “Court” or “Syariah Court” means the Syariah Subordinate Court or the Syariah High Court constituted under section 40 of the Administration Act; “darar syarie” means harm, according to what is normally recognized by Islamic Law, affecting a wife in respect of religion, life, body, mind, dignity or property; “fasakh” means the annulment of a marriage by reason of any circumstance permitted by Islamic Law in accordance with section 52; “Federal Territory” means the Federal Territory of Kuala Lumpur Labuan or Putrajaya, as the case may require; “Federal Territories” means the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; “fosterage” means the suckling of a baby up to sufficiency by a woman who is not its natural mother for at least five times during the first two years of its life; “harta sepencarian” means property jointly acquired by husband and wife during the subsistence of marriage in accordance with the conditions stipulated by Hukum Syarak; “Hukum Syarak” means Hukum Syarak according to the Mazhab Shafie, or according to one of the Mazhab Maliki, Hanafi or Hanbali; “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; 14 Laws of Malaysia ACT 303 “illegitimate” in relation to a child means born out of wedlock but not as a result of syubhah intercourse; “janda” means a woman who has been married and divorced after consummation; “kariah masjid” in relation to a mosque, means the area, the boundaries of which are determined under section 75 of the Administration Act; “Kitabiyah” means— (a) a woman whose ancestors were from the Bani Ya’qub; or (b) a Christian woman whose ancestors were Christians before the prophethood of the Prophet Muhammad; or (c) a Jewess whose ancestors were Jews before the prophethood of the Prophet Isa; “Majlis” means the Majlis Agama Islam Wilayah Persekutuan constituted under section 4 of the Administration Act; “mas kahwin” means the obligatory marriage payment due under Hukum Syarak by the husband to the wife at the time the marriage is solemnized, whether in the form of money actually paid or acknowledged as a debt with or without security, or in the form of something that, according to Hukum Syarak, is capable of being valued in terms of money; “mut’ah’ means a consolatory gift that is reasonable according to Hukum Syarak, given to a divorced wife; “nasab” means descent based on lawful blood relationship; “Peguam Syarie” means a person admitted under section 59 of the Administration Act to be Peguam Syarie; “pemberian” means a gift whether in the form of money or things given by a husband to a wife at the time of the marriage; Islamic Family Law (Federal Territories) 15 “Registrar” means a Senior Registrar of Muslim Marriages, Divorces, and Ruju’ appointed under section 28, and includes a Registrar and an Assistant Registrar; “resident” means permanently or ordinarily living in a particular area; “ruju’” means a return to the original married state; “State” includes the Federal Territories of Kuala Lumpur, Labuan and Putrajaya; “Syariah Appeal Court” means the Syariah Appeal Court constituted under subsection 40(3) of the Administration Act; “Syariah Appeal Court Judge” means a Syariah Appeal Court Judge appointed under subsection 42(1) of the Administration Act; “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; “syubhah intercourse” means intercourse performed on erroneous impression that the marriage was valid or intercourse by mistake and includes any intercourse not punishable by Had in Islam; “ta’liq” means a promise expressed by the husband after solemnization of marriage in accordance with Hukum Syarak and the provisions of this Act; “thayyib” means a woman who has had sexual intercourse; “wali Mujbir” means the father or paternal grandfather and above; “wali Raja” means a wali authorized by the Yang di-Pertuan Agong, in the case of the Federal Territories, Malacca, Penang, Sabah and Sarawak, or by the Ruler, in the case of any other States, to give away in marriage a woman who has no wali from nasab; 16 Laws of Malaysia ACT 303 “widow” means a woman whose husband has died; “widower” means a man whose wife has died. (2) All words and expressions used in this Act and not herein defined but defined in the Interpretation Acts 1948 and 1967 [Act 388] shall have the meanings thereby assigned to them respectively by the Act to the extent that such meanings do not conflict with Hukum Syarak. (3) For the avoidance of doubt as to the identity or interpretation of the words and expressions used in this Act that are listed in the
schedule_45
Schedule, reference may be made to the Arabic script form for those words and expressions shown against them therein. (4) The Yang di-Pertuan Agong may from time to time amend, delete from, or add, to the Schedule. Saving of prerogative 3. Nothing contained in this Act shall derogate from or affect the prerogative rights and powers of the Yang di-Pertuan Agong as the Head of the religion of Islam in the Federal Territories, as declared and set forth in the Federal Constitution. Application 4. Save as is otherwise expressly provided, this Act shall apply to all Muslims living in the Federal Territory and to all Muslims resident in the Federal Territory who are living outside the Federal Territory. Criterion for deciding whether a person is a Muslim 5. If for the purposes of this Act any question arises as to whether a person is a Muslim, that question shall be decided according to the criterion of general reputation, without making any attempt to question the faith, beliefs, conduct, behaviour, character, acts, or omissions of that person. Islamic Family Law (Federal Territories) 17 Subsisting valid marriages deemed to be registered under this Act and dissoluble only under this Act 6. (1) Nothing in this Act shall affect the validity of any Muslim marriage solemnized under any law wheresoever prior to the appointed date. (2) Such marriage, if valid under the law under which it was solemnized, shall be deemed to be registered under this Act. (3) Every such marriage, unless void under the law under which it was solemnized, shall continue until dissolved— (a) by the death of one of the parties; (b) by such talaq as may be pronounced under this Act; (c) by order of a Court of competent jurisdiction; or (d) by a declaration of nullity made by a Court of competent jurisdiction. PART II MARRIAGE Persons by whom marriages may be solemnized 7. (1) A marriage in the Federal Territory shall be in accordance with the provisions of this Act and shall be solemnized in accordance with Hukum Syarak by— (a) the wali in the presence of the Registrar; (b) the representative of the wali in the presence and with the permission of the Registrar; or (c) the Registrar as the representative of the wali. 18 Laws of Malaysia ACT 303 (2) Where a marriage involves a woman who has no wali from nasab in accordance with Hukum Syarak, the marriage shall be solemnized only by the wali Raja. Minimum age for marriage 8. No marriage may be solemnized under this Act where either the man is under the age of eighteen or the woman is under the age of sixteen except where the Syariah Judge has granted his permission in writing in certain circumstances. Relationships prohibiting marriage 9. (1) No man or woman, as the case may be, shall, on the ground of consanguinity, marry— (a) his mother or father; (b) his grandmother or grandfather or upwards, whether on the side of his father or his mother, and his or her ascendants, howhigh-soever; (c) his daughter or her son and his granddaughter or her grandson and his or her descendants, how-low-soever; (d) his sister or her brother of the same parents, his sister or her brother of the same father, and his sister or her brother of the same mother; (e) the daughter of his brother or sister, or the son of her brother or sister and the descendants, how-low-soever, of the brother or sister; (f) his aunt or her uncle on his father’s side and her or his ascendants; and (g) his aunt or her uncle on his mother’s side and her or his ascendants. Islamic Family Law (Federal Territories) 19 (2) No man or woman, as the case may be, shall, on the ground of affinity, marry— (a) his mother-in-law or father-in-law and the ascendants of his wife, how-high-soever; (b) his stepmother or her stepfather, being his father’s wife or her mother’s husband; (c) his stepgrandmother, being the wife of his grandfather, or her stepgrandfather, being the husband of her grandmother, whether on the side of the father or the mother; (d) his daughter-in-law or her son-in-law; and (e) his stepdaughter or her stepson and her or his descendants, how-low-soever from a wife or a husband with whom the marriage has been consummated. (3) No man or woman, as the case may be, shall, on the ground of fosterage, marry any woman or any man connected with him or her through some act of suckling where, if it had been instead an act of procreation, the woman or man would have been within the prohibited degrees of consanguinity or affinity. (4) No man shall have more than one wife at any one time who are so related to each other by consanguinity, affinity, or fosterage that if either of them had been a male a marriage between them would have been illegal in Hukum Syarak. Persons of other religions 10. (1) No man shall marry a non-Muslim except a Kitabiyah. (2) No woman shall marry a non-Muslim. 20 Laws of Malaysia ACT 303 Void marriages 11. A marriage shall be void unless all conditions necessary, according to Hukum Syarak, for the validity thereof are satisfied. Non-registrable marriages 12. (1) A marriage in contravention of this Act shall not be registrable under this Act. (2) Notwithstanding subsection (1) and without prejudice to subsection 40(2), a marriage which has been solemnized contrary to any provision of this Part but is otherwise valid according to Hukum Syarak may be registered under this Act with an order from the Court. Consent required 13. A marriage shall not be recognized and shall not be registered under this Act unless both parties to the marriage have consented thereto, and either— (a) the wali of the woman has consented thereto in accordance with Hukum Syarak; or (b) the Syariah Judge having jurisdiction in the place where the woman resides or any person generally or specially authorized in that behalf by the Syariah Judge has, after due inquiry in the presence of all parties concerned, granted his consent to the wali Raja to solemnize the marriage in accordance with Hukum Syarak; such consent may be given wherever there is no wali by nasab in accordance with Hukum Syarak available to act or if the wali cannot be found or where the wali refuses his consent without sufficient reason. Islamic Family Law (Federal Territories) 21 Marriage of a woman 14. (1) No woman shall, during the subsistence of her marriage to a man, be married to any other man. (2) Where the woman is a janda— (a) subject to paragraph (c), she shall not, at any time prior to the expiry of the period of ‘iddah, which shall be calculated in accordance with Hukum Syarak, be married to any person other than to the man from whom she was last divorced; (b) she shall not be married unless she has produced— (i) a certificate of divorce lawfully issued under the law for the time being in force; or (ii) a certified copy of the entry relating to her divorce in the appropriate register of divorce; or (iii) a certificate, which may, upon her application, be granted after due inquiry by the Syariah Judge having jurisdiction in the place where the application is made, to the effect that she is a janda; and (c) if the divorce was by ba-in kubra, that is to say, three talaq, she shall not be remarried to her previous husband, unless she has been lawfully married to some other person and the marriage has been consummated and later lawfully dissolved, and the period of ‘iddah has expired. (3) If the woman alleges she was divorced before the marriage had been consummated, she shall not, during the ordinary period of ‘iddah for a divorce, be married to any person other than her previous husband, except with the permission of the Syariah Judge having jurisdiction in the place where she resides. (4) Where the woman is a widow— 22 Laws of Malaysia ACT 303 (a) she shall not be married to any person at any time prior to the expiration of the period of ‘iddah, which shall be calculated in accordance with Hukum Syarak; (b) she shall not be married unless she has produced a certificate of the death of her late husband or otherwise proved his death. Betrothal 15. If any person has, either orally or in writing, and either personally or through an intermediary, entered into a betrothal in accordance with Hukum Syarak, and subsequently refuses without lawful reason to marry the other party, the other party being willing to marry, the party in default shall be liable to return the betrothal gifts, if any, or the value thereof and to pay whatever moneys have been expended in good faith by or for the other party in preparation for the marriage, and the same may be recovered by action in the Court. Preliminaries to a Marriage Application for permission to marry 16. (1) Whenever it is desired to solemnize a marriage in the Federal Territory, each of the parties to the intended marriage shall apply in the prescribed form for permission to marry to the Registrar for the kariah masjid in which the woman is resident. (2) If the man is resident in a kariah masjid different from that of the woman, or is resident in any State, his application shall bear or be accompanied by a statement of the Registrar of his kariah masjid or by the proper authority of the State, as the case may be, to the effect that as far as he has been able to ascertain the matters stated in the application are true. Islamic Family Law (Federal Territories) 23 (3) The application of each party must be delivered to the Registrar at least seven days before the proposed date of marriage, but the Registrar may allow a shorter period in any particular case. (4) The applications of the parties shall be treated as a joint application. Issue of permission to marry 17. Subject to section 18, the Registrar, on being satisfied of the truth of the matters stated in the application, of the legality of the intended marriage, and, where the man is already married, that the permission required by section 23 has been granted, shall, at any time after the application and upon payment of the prescribed fee, issue to the applicants his permission to marry in the prescribed form. Reference to and action by Syariah Judge 18. (1) In any of the following cases, that is to say— (a) where either of the parties to the intended marriage is below the age specified in section 8; or (b) where the woman is a janda to whom subsection 14(3) applies; or (c) where the woman has no wali from nasab, according to Hukum Syarak, the Registrar shall, instead of acting under section 17, refer the application to the Syariah Judge having jurisdiction in the place where the woman resides. (2) The Syariah Judge on being satisfied of the truth of the matters stated in the application and the legality of the intended marriage and that the case is one that merits the giving of permission for the purposes of section 8, or permission for the purposes of subsection 14(3), or his consent to the marriage being solemnized by 24 Laws of Malaysia ACT 303 wali Raja for the purposes of paragraph 13(b), as the case may be, shall, at any time after reference of the application to him and upon payment of the prescribed fee, issue to the applicants his permission to marry in the prescribed form. Permission necessary before solemnization 19. No marriage shall be solemnized unless a permission to marry has been given— (a) by the Registrar under section 17 or by the Syariah Judge under section 18, where the marriage involves a woman resident in the Federal Territory; or (b) by the proper authority of a State, where the marriage involves a woman resident in that State. Place of marriage 20. (1) No marriage shall be solemnized except in the kariah masjid in which the woman resides, but the Registrar or Syariah Judge giving permission to marry under section 17 or 18 may give permission for the marriage to be solemnized elsewhere, whether in the Federal Territory or in any State. (2) A permission under subsection (1) may be expressed in the permission to marry given under section 17 or 18. (3) Notwithstanding subsection (1), a marriage may be solemnized in a kariah masjid other than that where the woman resides if— (a) in a case where the woman resides in the Federal Territory, a permission for the marriage to be solemnized in that kariah masjid has been given under section 17 or 18 and the permission for the solemnization of the marriage in other kariah masjid has been given under subsection (1); or Islamic Family Law (Federal Territories) 25 (b) in a case where the woman resides in a State, a permission to marry and a permission for the marriage to be solemnized in other kariah masjid have been given by the proper authority of that State. Mas kahwin and pemberian 21. (1) The mas kahwin shall ordinarily be paid by the man or his representative to the woman or her representative in the presence of the person solemnizing the marriage and at least two other witnesses. (2) The Registrar shall, in respect of every marriage to be registered by him, ascertain and record— (a) the value and other particulars of the mas kahwin; (b) the value and other particulars of any pemberian; (c) the value and other particulars of any part of the mas kahwin or pemberian or both that was promised but not paid at the time of the solemnization of the marriage, and the promised date of payment; and (d) particulars of any security given for the payment of any mas kahwin or pemberian. Entry in Marriage Register 22. (1) Immediately after the solemnization of a marriage, the Registrar shall enter the prescribed particulars and the prescribed or other ta’liq of the marriage in the Marriage Register. (2) The entry shall be attested to by the parties to the marriage, by the wali, and by two witnesses other than the Registrar, present at the time the marriage is solemnized. (3) The entry shall then be signed by the Registrar. 26 Laws of Malaysia ACT 303 Polygamy 23. (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. (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. (2) Subsection (1) applies to the marriage in the Federal Territory of a man who is resident within or outside the Federal Territory and to the marriage outside the Federal Territory of a man resident in the Federal Territory. (3) An application for permission shall be submitted to the Court in the prescribed manner and shall be accompanied by an iqrar stating the grounds on which the proposed marriage is alleged to be just or necessary, the present income of the applicant, particulars of his commitments and his ascertainable financial obligations and liabilities, the number of his dependants, including persons who would be his dependants as a result of the proposed marriage, and whether the consent or views of the existing wife or wives on the proposed marriage have been obtained. (4) On receipt of the application, the Court shall summon the applicant and his existing wife or wives, the woman to be wedded, the wali of the woman to be wedded and any other person who, in the opinion of the Court, may provide information relating to the proposed marriage to be present at the hearing of the application, which shall be in camera, and the Court may grant the permission applied for if satisfied— (a) that the proposed marriage is just or necessary, having regard to such circumstances as, among others, the following, that is to say, sterility, physical infirmity, physical unfitness for conjugal relations, wilful avoidance of an order for restitution Islamic Family Law (Federal Territories) 27 of conjugal rights, or insanity on the part of the existing wife or wives; (b) that the applicant has such means as to enable him to support as required by Hukum Syarak all his wives and dependants, including persons who would be his dependants as a result of the proposed marriage; (c) that the applicant would be able to accord equal treatment to all his wives as required by Hukum Syarak; and (d) that the proposed marriage would not cause darar syarie to the existing wife or wives. (e) (Deleted by Act A902). (5) A copy of the application under subsection (3) and of the iqrar required by that subsection shall be served together with the summons on each existing wife. (6) Any party aggrieved by or dissatisfied with any decision of the Court may appeal against the decision in the manner provided in the Syariah Civil Procedure (Federal Territories) Act 1988 [Act 585]. (7) Any person who contracts a marriage in contravention of subsection (1) shall pay immediately the entire amount of the mas kahwin and the pemberian due to the existing wife or wives, which amount, if not so paid, shall be recoverable as a debt. (8) The procedure for solemnization and registration of a marriage under this section shall be similar in all respects to that applicable to other marriages solemnized and registered in the Federal Territory under this Act. (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 28 Laws of Malaysia ACT 303 (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. Solemnization of marriages in Malaysian Embassies, etc., abroad 24. (1) Subject to subsection (2), a marriage may be solemnized in accordance with Hukum Syarak by the Registrar appointed under subsection 28(3) at the Malaysian Embassy, High Commission, or Consulate in any country that has not notified the Government of Malaysia of its objection to solemnization of marriages at such Embassy, High Commission, or Consulate. (2) Before solemnizing a marriage under this section, the Registrar shall be satisfied— (a) that one or both of the parties to the marriage are residents of the Federal Territory; (b) that each party has the capacity to marry according to Hukum Syarak and this Act; and (c) that, where either party is not a resident of the Federal Territory, the proposed marriage, if solemnized, will be regarded as valid in the place where that party is resident. (3) The procedure for solemnization and registration of a marriage under this section shall be similar in all respects to that applicable to other marriages solemnized and registered in the Federal Territory under this Act as if the Registrar appointed for a foreign country were a Registrar for the Federal Territory. Islamic Family Law (Federal Territories) 29 PART III REGISTRATION OF MARRIAGES Registration 25. The marriage after the appointed date of every person resident in the Federal Territory and of every person living abroad who is resident in the Federal Territory shall be registered in accordance with this Act. Marriage certificate and ta’liq certificate 26. (1) Upon registering any marriage and upon payment to him of the prescribed fees, the Registrar shall issue marriage certificates in the prescribed form to both parties to the marriage. (2) The Registrar shall also, upon payment of the prescribed fees, issue a ta’liq certificate in the prescribed form to each of the parties to the marriage. Reporting of void or illegal marriages 27. It shall be the duty of every person to report to the Registrar the circumstances of any case in which it appears to him that any alleged marriage was void or that any registrable marriage was solemnized in contravention of this Act. Appointment of Chief Registrar, Senior Registrars, Registrars and Assistant Registrars of Muslim Marriages, Divorces, and Ruju’ 28. (1) The Yang di-Pertuan Agong may appoint any qualified public officer to be the Chief Registrar of Muslim Marriages, Divorces, and Ruju’ for the purposes of this Act, who shall have general supervision and control over Registrars and the registration of marriages, divorces, and ruju’ under this Act. 30 Laws of Malaysia ACT 303 (2) The Yang di-Pertuan Agong may appoint so many qualified persons as may be necessary, to be Senior Registrars, Registrars, or Assistant Registrars of Muslim Marriages, Divorces, and Ruju’ for such kariah masjid in the Federal Territories as may be specified in the appointments. (3) The Yang di-Pertuan Agong may, by notification in the Gazette, appoint any member of the diplomatic staff of Malaysia in any country to be the Registrar of Muslim Marriages, Divorces, and Ruju’ for the purposes of this Act in that country. (4) Every person appointed under subsection (2) who is not a public officer shall be deemed to be a public officer for the purposes of the Penal Code [Act 574]. Books and Registers to be kept of all marriages 29. Every Registrar shall keep a Marriage Register and such books as are prescribed by this Act or rules made under this Act, and every marriage solemnized in the Federal Territory shall be duly registered by the Registrar in his Marriage Register. Copies of entries to be sent to Chief Registrar 30. (1) Every Registrar shall, as soon as practicable after the end of each month, deliver to the Chief Registrar a true copy certified under his hand of every entry made in the Marriage Register. (2) All such copies shall be kept by the Chief Registrar in such manner as may be prescribed and shall constitute the Marriage Register of the Chief Registrar. Registration of foreign marriage of a person resident in the Federal Territory 31. (1) Where any person who is a resident of the Federal Territory has contracted a valid marriage according to Hukum Syarak abroad, Islamic Family Law (Federal Territories) 31 not being a marriage registered under section 24, the person shall, within six months after the date of the marriage, appear before the nearest or most conveniently available Registrar of Muslim Marriages, Divorces, and Ruju’ abroad in order to register the marriage, and the marriage, upon being registered, shall be deemed to be registered under this Act. (2) Where, before the expiry of the period of six months, the return of either or both parties to the Federal Territory is contemplated and the marriage has not been registered abroad, registration of the marriage shall be effected within six months of the first arrival of either or both of the parties in the Federal Territory by the party or both parties appearing before any Registrar in the Federal Territory and— (a) producing to the Registrar the certificate of marriage or such evidence, either oral or documentary, as may satisfy the Registrar that the marriage did take place; (b) furnishing such particulars as may be required by the Registrar for the due registration of the marriage; and (c) applying in the prescribed form for the registration of the marriage and subscribing the iqrar therein. (3) The Registrar may dispense with the appearance of one of the parties if he is satisfied that there exists good and sufficient reason for the absence of the party and in that case the entry in the Marriage Register shall include a statement of the reason for the absence. (4) Upon the registration of a marriage under this section, a certified copy of the entry in the Marriage Register signed by the Registrar shall be delivered or sent to the husband and another copy to the wife, and another certified copy shall be sent, within such period as may be prescribed, to the Chief Registrar who shall cause all such certified copies to be bound together to constitute the Foreign Muslim Marriages Register. (5) Where the parties to a marriage required to be registered under this section have not appeared before a Registrar within the 32 Laws of Malaysia ACT 303 period specified in subsection (1), the marriage may, upon application to the Registrar, be registered later on payment of such penalty as may be prescribed. Unlawful registers 32. No person other than a Registrar appointed under this Act shall— (a) keep any book that is or purports to be a register kept in accordance with this Act; or (b) issue to any person any document that is or purports to be a copy of a certificate of a marriage or a certificate of marriage registered by the Registrar. Voluntary registration of Muslim marriages previously solemnized under any law 33. (1) Notwithstanding sections 6 and 31, the parties to any marriage according to Hukum Syarak solemnized under any law prior to or after the appointed date may, if the marriage has not been registered, apply at any time to a Registrar in the prescribed form for registration of the marriage. (2) The Registrar may require the parties to the marriage to appear before him and to produce such evidence of the marriage, either oral or documentary, and to furnish such other particulars as may be required by him. (3) The Registrar may, on being satisfied of the truth of the statements contained in the application, register the marriage by entering the particulars thereof in the Marriage Register prescribed for this purpose. (4) The entry of the marriage in the Marriage Register shall be signed by the Registrar making the entry and by both parties to the marriage, if available, or, otherwise, by whichever party who appears before the Registrar. Islamic Family Law (Federal Territories) 33 (5) Upon the registration of the marriage, a certified copy of the entry in the Marriage Register signed by the Registrar and sealed with his seal of office shall be delivered or sent to the husband and another copy to the wife and a third shall be sent to the Chief Registrar. (6) The Registrar shall not register a marriage under this section if he is satisfied that the marriage is void under this Act. Legal effect of registration 34. Nothing in this Act or rules made under this Act shall be construed to render valid or invalid any marriage that otherwise is invalid or valid, merely by reason of its having been or not having been registered. PART IV PENALTIES AND MISCELLANEOUS PROVISIONS RELATING TO THE SOLEMNIZATION AND REGISTRATION OF MARRIAGES Omission to appear before Registrar within prescribed time 35. Any person who, being required by section 31 to appear before a Registrar, fails to do so within the prescribed time commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both. Contravention of section 32 36. Any person who contravenes section 32 commits an offence and shall be punished with a fine not exceeding five hundred ringgit or with imprisonment not exceeding three months or with both such fine and imprisonment; and for a second or subsequent offence shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both. 34 Laws of Malaysia ACT 303 Interference with marriage 37. Unless permitted under Hukum Syarak, any person who uses any force or threat— (a) to compel a person to marry against his will; or (b) to prevent a man who has attained the age of eighteen years or a woman who has attained the age of sixteen years from contracting a valid marriage, commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both. False iqrar or statement for procuring marriage 38. Any person who for the purpose of procuring any marriage under this Act intentionally makes any false iqrar or statement commits an offence and shall be punished with a fine not exceeding two thousand ringgit or with imprisonment not exceeding twelve months or both. Unauthorized solemnization of marriage 39. Any person who, not being authorized thereto under this Act, solemnizes or purports to solemnize any marriage, commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both. Offences relating to solemnization of marriage 40. (1) Any person who knowingly solemnizes or purports to solemnize, or officiates at, a marriage— (a) without there being a permission to marry as required by section 19; or Islamic Family Law (Federal Territories) 35 (b) otherwise than in the presence of at least two credible witnesses other than the person solemnizing the marriage, commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both. (2) Any person who marries, or purports to marry, or goes through a form of marriage with, any person contrary to any of the provisions of Part II commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both. Sanction for prosecution 41. No prosecution for an offence under sections 35 to 40 shall be instituted except with the sanction in writing of the Chief Syariah Prosecutor. Correction of errors 42. (1) If the Registrar is satisfied by an iqrar or otherwise that any entry relating to a marriage is erroneous in form or substance, he may, in the presence of the persons married, or, if they are absent, in the presence of two credible witnesses, correct the error by ruling through the entry and making the correct entry and he shall thereupon cause the entry in the local Marriage Register to be corrected in the same manner. (2) The Registrar shall sign and date the correction made in the certificate of marriage and the local Marriage Register. (3) Every entry made under subsection (1) shall be attested by the witnesses in whose presence it was made. (4) A certified copy of the correction shall be sent forthwith to the Chief Registrar for a similar correction to be made in his Marriage Register. 36 Laws of Malaysia ACT 303 Inspection of Marriage Register and index 43. (1) Every Marriage Register and index kept by the Chief Registrar or Registrar under this Act shall be open to inspection by any person upon payment of the prescribed fee. (2) The Chief Registrar or Registrar, as the case may be, shall, upon payment of the prescribed fee, furnish to any person requiring it a copy of the entry in the Marriage Register and index, certified under the hand and seal of office of the Chief Registrar or Registrar, as the case may be. Proof 44. Every Marriage Register kept by the Chief Registrar or Registrar under this Act and any copy of any entry therein, certified under his hand and seal of office to be a true copy or extract, shall be prima facie evidence in all courts and tribunals of the dates and acts contained or set out in the Marriage Register, copy or extract. PART V DISSOLUTION OF MARRIAGE Extent of power to make any order 45. Save as is otherwise expressly provided, nothing in this Act shall authorize the Court to make an order of divorce or an order pertaining to a divorce or to permit a husband to pronounce a talaq except— (a) where the marriage has been registered or deemed to be registered under this Act; or (b) where the marriage was contracted in accordance with Hukum Syarak; and Islamic Family Law (Federal Territories) 37 (c) where the residence of either of the parties to the marriage at the time when the application is presented is in the Federal Territory. Change of religion 46. (1) The renunciation of Islam by either party to a marriage or his or her conversion to a faith other than Islam shall not by itself operate to dissolve the marriage unless and until so confirmed by the Court. (2) The conversion to Islam by either party to a non-Muslim marriage shall not by itself operate to dissolve the marriage unless and until so confirmed by the Court. Divorce by talaq or by order 47. (1) A husband or a wife who desires divorce shall present an application for divorce to the Court in the prescribed form, accompanied by an iqrar containing— (a) particulars of the marriage and the names, ages and sex of the children, if any, of the marriage; (b) particulars of the facts giving the Court jurisdiction under section 45; (c) particulars of any previous matrimonial proceedings between the parties, including the place of the proceedings; (d) a statement as to the reasons for desiring divorce; (e) a statement as to whether any, and, if so, what steps had been taken to effect reconciliation; (f) the terms of any agreement regarding maintenance and habitation of the wife and the children of the marriage, if 38 Laws of Malaysia ACT 303 any, the care and custody of the children of the marriage, if any, and the division of any assets acquired through the joint effort of the parties, if any, or, where no such agreement has been reached, the applicant’s proposals regarding those matters; and (g) particulars of the order sought. (2) Upon receiving an application for divorce, the Court shall cause a summons to be served on the other party together with a copy of the application and the iqrar made by the applicant, and the summons shall direct the other party to appear before the Court so as to enable it to inquire whether or not the other party consents to the divorce. (3) If the other party consents to the divorce and the Court is satisfied after due inquiry and investigation that the marriage has irretrievably broken down, the Court shall advise the husband to pronounce one talaq before the Court. (4) The Court shall record the fact of the pronouncement of one talaq, and shall send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration. (5) Where the other party does not consent to the divorce or it appears to the Court that there is reasonable possibility of a reconciliation between the parties, the Court shall as soon as possible appoint a conciliatory committee consisting of a Religious Officer as Chairman and two other persons, one to act for the husband and the other for the wife, and refer the case to the committee. (6) In appointing the two persons under subsection (5), the Court shall, where possible, give preference to close relatives of the parties having knowledge of the circumstances of the case. (7) The Court may give directions to the conciliatory committee as to the conduct of the conciliation and it shall conduct it in accordance with such directions. Islamic Family Law (Federal Territories) 39 (8) If the committee is unable to agree or if the Court is not satisfied with its conduct of the conciliation, the Court may remove the committee and appoint another committee in its place. (9) The committee shall endeavour to effect reconciliation within a period of six months from the date of it being constituted or such further period as may be allowed by the Court. (10) The committee shall require the attendance of the parties and shall give each of them an opportunity of being heard and may hear such other persons and make such inquiries as it thinks fit and may, if it considers it necessary, adjourn its proceedings from time to time. (11) If the conciliatory committee is unable to effect reconciliation and is unable to persuade the parties to resume their conjugal relationship, it shall issue a certificate to that effect and may append to the certificate such recommendations as it thinks fit regarding maintenance and custody of the minor children of the marriage, if any, regarding division of property, and regarding other matters related to the marriage. (12) No Peguam Syarie shall appear or act for any party in any proceeding before a conciliatory committee and no party shall be represented by any person, other than a member of his or her family, without the leave of the conciliatory committee. (13) Where the committee reports to the Court that reconciliation has been effected and the parties have resumed their conjugal relationship, the Court shall dismiss the application for divorce. (14) Where the committee submits to the Court a certificate that it is unable to effect reconciliation and to persuade the parties to resume the conjugal relationship, the Court shall advise the husband to pronounce one talaq before the Court, and where the Court is unable to procure the presence of the husband before the Court to pronounce one talaq, or where the husband refuses to pronounce one talaq, the Court shall refer the case to the Hakam for action according to section 48. 40 Laws of Malaysia ACT 303 (15) The requirement of subsection (5) as to reference to a conciliatory committee shall not apply in any case— (a) where the applicant alleges that he or she has been deserted by and does not know the whereabouts of the other party; (b) where the other party is residing outside Peninsular Malaysia and it is unlikely that he or she will be within the jurisdiction of the Court within six months after the date of the application; (c) where the other party is imprisoned for a term of three years or more; (d) where the applicant alleges that the other party is suffering from incurable mental illness; or (e) where the Court is satisfied that there are exceptional circumstances which make reference to a conciliatory committee impracticable. (16) A talaq raj’i pronounced by a husband unless revoked earlier, either expressly or constructively, or by an order of the Court, shall not operate to dissolve the marriage until the expiry of the ‘iddah period. (17) If the wife is pregnant at the time the talaq is pronounced or the order is made, the talaq or the order shall not be effective to dissolve the marriage until the pregnancy ends. Arbitration by Hakam 48. (1) If satisfied that there are constant quarrels (shiqaq) between the parties to a marriage, the Court may appoint in accordance with Hukum Syarak two arbitrators or Hakam to act for the husband and wife respectively. Islamic Family Law (Federal Territories) 41 (2) In appointing the Hakam under subsection (1), the Court shall, where possible, give preference to close relatives of the parties having knowledge of the circumstances of the case. (3) The Court may give directions to the Hakam as to the conduct of the arbitration and they shall conduct it in accordance with such directions and Hukum Syarak. (4) If the Hakam are unable to agree, or if the Court is not satisfied with their conduct of the arbitration, the Court may remove them and appoint other Hakam in their place. (5) The Hakam shall endeavour to obtain from their respective principals full authority, and may, if their authority extends so far, pronounce one talaq before the Court if so permitted by the Court, and in that event the Court shall record that pronouncement of one talaq, and send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration. (6) If the Hakam are of the opinion that the parties should be divorced but are unable for any reason to order a divorce, the Court shall appoint other Hakam and shall confer on them authority to order a divorce and shall, if they do so, record the order and send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration. (7) Unless he is a close member of the family of the parties, no person or Peguam Syarie shall be allowed to be present or represent any of the parties in the presence of the Hakam. Khul’ divorce or cerai tebus talaq 49. (1) Where the husband does not agree to voluntarily pronounce a talaq, but the parties agree to a divorce by redemption or cerai tebus talaq, the Court shall, after the amount of the payment of tebus talaq is agreed upon by the parties, cause the husband to pronounce a divorce by redemption, and such divorce is ba-in sughra or irrevocable. 42 Laws of Malaysia ACT 303 (2) The Court shall record the cerai tebus talaq accordingly and send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration. (3) Where the amount of the payment of tebus talaq is not agreed upon by the parties, the Court may assess, in accordance with Hukum Syarak, the amount, having regard to the status and the means of the parties. (4) Where the husband does not agree to a divorce by redemption or does not appear before the Court as directed, or where it appears to the Court that there is a reasonable possibility of a reconciliation, the Court shall appoint a conciliatory committee as provided under section 47 and that section shall apply accordingly. Divorce under ta’liq or stipulation 50. (1) A married woman may, if entitled to a divorce in pursuance of the terms of a ta’liq certificate made upon a marriage, apply to the Court to declare that such divorce has taken place. (2) The Court shall examine the application and make an inquiry into the validity of the divorce and shall, if satisfied that the divorce is valid according to Hukum Syarak, confirm and record the divorce and send one certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration. Divorce by li’an 50A. (1) Where the parties to a marriage have taken oath by way of li’an according to Hukum Syarak before a Syariah Judge, upon judgment, the Syariah Judge shall order them to be farak and be separated and live apart forever. (2) The Court shall record the divorce by li’an accordingly and send a certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration. Islamic Family Law (Federal Territories) 43 Resumption of conjugal relationship or ruju’ 51. (1) In this section “revocable divorce” means a divorce by one or two talaq not followed by completion of ‘iddah, and “recohabit” means resume conjugal relations within the period before the divorce has become irrevocable. (2) If, after a revocable divorce, recohabitation takes place by mutual consent, the parties shall within seven days report the fact of recohabitation and other relevant particulars to the Registrar for the kariah masjid in which they reside. (3) The Registrar shall make such inquiry as may be necessary and, if satisfied that recohabitation has taken place in accordance with Hukum Syarak, shall register the recohabitation by endorsement upon the entry relating to that divorce in the Register of Divorce, if the divorce was registered by him, and shall require the parties to deliver to him the relevant certificates of divorce and shall issue to them certificates of recohabitation in the prescribed form. (4) The Registrar shall also deliver a copy of the certificate of recohabitation to the Chief Registrar who shall register the recohabitation by endorsement upon the entry relating to that divorce in the Register of Divorce kept by him. (5) Any party to a marriage who fails to report the fact of recohabitation as required by subsection (2) commits an offence and shall be punished with a fine not exceeding five hundred ringgit or with imprisonment not exceeding six months or with both such fine and imprisonment. (6) If the divorce was not registered by the Registrar to whom the report under subsection (2) is made, he shall record on the certificates of divorce the serial number and particulars of the certificates of recohabitation and shall forward the certificates of divorce to the Registrar by whom they were issued together with a copy of the certificates of recohabitation, and the other Registrar shall thereupon register the recohabitation by endorsement upon the entry relating to that divorce in the Register of Divorce and shall deliver the copy of the certificate of recohabitation to the Chief Registrar who shall 44 Laws of Malaysia ACT 303 register the recohabitation by endorsement upon the entry relating to that divorce in the Register of Divorce kept by him. (7) If a revocable divorce has taken place without the knowledge of the wife, the husband shall not require or request the wife to recohabit with him without disclosing to her the fact of the divorce. (8) If after a revocable divorce the husband pronounces a ruju’ and the wife has consented to the ruju’, she may, on the application of the husband, be ordered by the court to resume conjugal relations, unless she shows good cause to the contrary, according to Hukum Syarak, in which case the Court shall appoint a conciliatory committee as provided under section 47 and that section shall apply accordingly. (9) If after a revocable divorce the husband pronounces a ruju’ but the wife has not consented to the ruju’ for reasons allowed by Hukum Syarak, she shall not be ordered by the Court to resume conjugal relations, but the Court shall appoint a conciliatory committee as provided under section 47 and that section shall apply accordingly. Order for dissolution of marriage or fasakh 52. (1) A woman or man, as the case may be, married in accordance with Hukum Syarak, shall be entitled to obtain an order for the dissolution of marriage or fasakh on any one or more of the following grounds, namely— (a) that the whereabouts of the husband or wife have not been known for a period of more than one year; (b) that the husband or wife has neglected or failed to provide for her maintenance for a period of three months; (c) that the husband or wife has been sentenced to imprisonment for a period of three years or more; Islamic Family Law (Federal Territories) 45 (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; (e) that the husband was impotent at the time of marriage and remains so and she was not aware at the time of the marriage that he was impotent; (f) that the husband or wife has been insane for a period of two years or is suffering from leprosy or vitilago or is suffering from a venereal disease in a communicable form; (g) that she, having been given in marriage by her wali Mujbir before she attained the age of baligh, repudiated the marriage before attaining the age of eighteen years, the marriage not having been consummated; (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; 46 Laws of Malaysia ACT 303 (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; (j) that she did not consent to the marriage or her consent was not valid, whether in consequence of duress, mistake, unsoundness of mind, or any other circumstance recognized by Hukum Syarak; (k) that at the time of the marriage she, though capable of giving a valid consent, was, whether continuously or intermittently, a mentally disordered person within the meaning of the Mental Disorders Ordinance 1952 [Ord. 31 of 1952] in the case of the Federal Territory of Kuala Lumpur, or the Lunatics Ordinance of Sabah [Sabah Cap. 74] in the case of the Federal Territory of Labuan, and her mental disorder was of such a kind or to such extent as to render her unfit for marriage; or (l) any other ground that is recognized as valid for dissolution of marriages or fasakh under Hukum Syarak. (1A) Any person married in accordance with Hukum Syarak shall be entitled to obtain an order for the dissolution of marriage or fasakh on the ground that the wife is incapacitated which prevents sexual intercourse. (2) No order shall be made on the ground specified in paragraph (1)(c) until the sentence has become final and the husband or wife has already served one year of the sentence. (3) Before making an order on the ground specified in paragraph (1)(e) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of twelve months from the date of the order that he has ceased to be impotent, and if the husband so satisfies the Court within that period, no order shall be made on that ground. (4) No order shall be made on any of the grounds specified in subsection (1) if the husband satisfies the Court that the wife, with knowledge that it was open to her to have the marriage repudiated, so Islamic Family Law (Federal Territories) 47 conducted herself in relation to the husband as to lead the husband reasonably to believe that she would not seek to do so, and that it would be unjust to the husband to make the order. Presumption of death 53. (1) If the husband of any woman has died, or is believed to have died, or has not been heard of for a period of four years or more, and the circumstances are such that he ought, for the purpose of enabling the woman to remarry, to be presumed in accordance with Hukum Syarak to be dead, the Court may, on the application of the woman and after such inquiry as may be proper, issue in the prescribed form a certificate of presumption of death of the husband and the Court may on the application of the woman make an order for the dissolution of marriage or fasakh as provided for under section 52. (2) A certificate issued under subsection (1) shall be deemed to be a certificate of the death of the husband within the meaning of paragraph 14(4)(b). (3) In the circumstances mentioned in subsection (1), a woman shall not be entitled to remarry in the absence of a certificate issued under subsection (1), notwithstanding that the High Court may have given leave to presume the death of the husband. (4) A certificate issued under subsection (1) shall be registered as if it effected a divorce. Maintenance of Register of Divorces and Annulments 54. (1) Every Registrar as well as the Chief Registrar shall each maintain a Register of Divorces and Annulments and shall forthwith enter therein the prescribed particulars of all orders of divorce and annulment sent to him under subsection (2) and of all orders of divorce and annulment for the registration of which application is made under subsection (3). 48 Laws of Malaysia ACT 303 (2) Every Court that grants and records an order of divorce or annulment or that permits and records any talaq or any other form of divorce shall forthwith send one certified copy of the record to the appropriate Registrar and to the Chief Registrar for registration. (3) Where a marriage that is solemnized in the Federal Territory is dissolved or annulled by an order of a Court of competent jurisdiction outside the Federal Territory, either of the parties may apply to the appropriate Registrar and to the Chief Registrar for registration of the order, and the appropriate Registrar and the Chief Registrar, on being satisfied that the order is one that should be recognized as valid for the purposes of the law in the Federal Territory, shall register the order. (4) Where a pronouncement of talaq before the Court or an order of divorce or annulment, wherever granted, has dissolved a marriage that was solemnized in the Federal Territory and has been registered under this Act or any written law in force before this Act, the appropriate Registrar and the Chief Registrar shall, on registering the talaq or order, cause the entry relating to that marriage in the Marriage Register to be marked with the word “Dissolved” and a reference to the proceedings in which the talaq was pronounced or the order was made. (5) Upon registering the talaq or order of divorce or annulment and upon payment to him of the prescribed fees, the Chief Registrar shall issue the divorce or annulment certificates in the prescribed form to both parties. Registration of divorces 55. No pronouncement of talaq or order of divorce or annulment shall be registered unless the Chief Registrar is satisfied that the Court has made a final order relating to it. Islamic Family Law (Federal Territories) 49 Registration of divorces outside the Court 55A. (1) Notwithstanding section 54, a man who has divorced his wife by the pronouncement of talaq outside the Court and without permission of the Court, shall within seven days of the pronouncement of the talaq report to the Court. (2) The Court shall hold an inquiry to ascertain whether the talaq that was pronounced is valid according to Hukum Syarak. (3) If the Court is satisfied that the talaq that was pronounced is valid according to Hukum Syarak, the Court shall, subject to section 124— (a) make an order approving the divorce by talaq; (b) record the divorce; and (c) send a copy of the record to the appropriate Registrar and to the Chief Registrar for registration. Mut’ah or consolatory gift to woman divorced without just cause 56. In addition to her right to apply for maintenance, a woman who has been divorced without just cause by her husband may apply to the Court for mut’ah or a consolatory gift, and the Court may, after hearing the parties and upon being satisfied that the woman has been divorced without just cause, order the husband to pay such sum as may be fair and just according to Hukum Syarak. Right to mas kahwin, etc., not to be affected 57. Nothing contained in this Act shall affect any right that a married woman may have under Hukum Syarak to her mas kahwin and pemberian or any part thereof on the dissolution of her marriage. 58. (Deleted by Act A1261). 50 Laws of Malaysia ACT 303 PART VI MAINTENANCE OF WIFE, CHILDREN AND OTHERS Power of Court to order maintenance of wife, and the effect of nusyuz 59. (1) The Court may, subject to Hukum Syarak, order a man to pay maintenance to his wife or former wife. (2) Subject to Hukum Syarak and confirmation by the Court, a wife shall not be entitled to maintenance when she is nusyuz, or unreasonably refuses to obey the lawful wishes or commands of her husband, that is to say, inter alia— (a) when she withholds her association with her husband; (b) when she leaves her husband’s home against his will; or (c) when she refuses to move with him to another home or place, without any valid reason according to Hukum Syarak. (3) As soon as the wife repents and obeys the lawful wishes and commands of her husband, she ceases to be nusyuz. Power of Court to order maintenance of certain persons 60. The Court may order any person liable thereto according to Hukum Syarak, to pay maintenance to another person where he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health and the Court is satisfied that having regard to the means of the first-mentioned person it is reasonable so to order. Islamic Family Law (Federal Territories) 51 Assessment of maintenance 61. In determining the amount of any maintenance to be paid, the Court shall base its assessment primarily on the means and needs of the parties, having regard to the proportion the maintenance bears to the income of the person against whom the order is made. Power of Court to order security for maintenance 62. The Court may, when awarding maintenance, order the person liable to pay the maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay the maintenance or a part thereof out of the income from the property. Compounding of maintenance 63. An agreement for the payment, in money or other property, of a capital sum in settlement of all future claims to maintenance shall not be effective until it has been approved, with or without conditions, by the Court, but when so approved shall be a good defence to any claim for maintenance. Duration of orders for maintenance 64. Except where an order for maintenance is expressed to be for any shorter period or is rescinded, and subject to section 65, an order for maintenance shall expire on the death of the person against whom or in whose favour the order was made, whichever is the earlier. Right to maintenance or pemberian after divorce 65. (1) The right of a divorced wife to receive maintenance from her former husband under any order of Court shall cease on the expiry of the period of ‘iddah or on the wife being nusyuz. 52 Laws of Malaysia ACT 303 (2) The right of a divorced wife to receive a pemberian from her former husband under an agreement shall cease on her remarriage. Power of Court to vary orders for maintenance 66. The Court may at any time and from time to time vary, or may at any time rescind, any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or against whom the order was made, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances. Power of Court to vary agreements for maintenance 67. Subject to section 63, the Court may at any time and from time to time vary the terms of any agreement as to maintenance made between husband and wife, whether made before or after the appointed date, where it is satisfied that there has been any material change in the circumstances, notwithstanding any provision to the contrary in the agreement. Maintenance payable under order of Court to be inalienable 68. Maintenance payable to any person under any order of Court shall not be assignable or transferable or liable to be attached, sequestered, or levied upon for, or in respect of, any debt or claim. Recovery of arrears of maintenance 69. (1) Arrears of unsecured maintenance shall be recoverable as a debt from the defaulter and, where they accrued due before the making of a receiving order against the defaulter, shall be provable in his bankruptcy and, where they accrued due before his death, shall be a debt due from his estate. Islamic Family Law (Federal Territories) 53 (2) Arrears of unsecured maintenance that accrued due before the death of the person entitled thereto shall be recoverable as a debt by the legal personal representatives of the person. Interim maintenance 70. (1) Where the Court is satisfied that there are grounds for payment of maintenance, the Court may make an order against the husband for payment of interim maintenance to take effect at once and to be in force until an order of Court is made on the application for maintenance. (2) The husband may adjust the interim maintenance paid against the amount ordered to be paid for maintenance under the order of the Court, provided that the amount received by the wife, after any deduction, is sufficient for her basic needs. Right to accommodation 71. (1) A divorced woman is entitled to stay in the home where she used to live when she was married, for so long as the husband is not able to get other suitable accommodation for her. (2) The right to accommodation provided in subsection (1) shall cease— (a) if the period of ‘iddah has expired; or (b) if the period of guardianship of the children has expired; or (c) if the woman has remarried; or (d) if the woman has been guilty of open lewdness (fahisyah), and thereupon the husband may apply to the Court for the return of the home to him. 54 Laws of Malaysia ACT 303 Duty to maintain children 72. (1) Except where an agreement or order of Court otherwise provides, it shall be the duty of a man to maintain his children, whether they are in his custody or the custody of any other person, either by providing them with such accommodation, clothing, food, medical attention, and education as are reasonable having regard to his means and station in life or by paying the cost thereof. (2) Except as aforesaid, it shall be the duty of a person liable under Hukum Syarak, to maintain or contribute to the maintenance of children if their father is dead or his whereabouts are unknown or if and so far as he is unable to maintain them. Power of Court to order maintenance for children 73. (1) The Court may at any time order a man to pay maintenance for the benefit of any child of his— (a) if he has refused or neglected to provide reasonably for his child; (b) if he has deserted his wife and the child is in her charge; (c) during the pendency of any matrimonial proceedings; (d) when making or subsequent to the making of an order placing the child in the custody of any other person; or (e) when permitting him to practice polygamy under subsection 23(1). (2) The Court shall have the corresponding power to order a person liable under Hukum Syarak to pay or contribute towards the maintenance of a child where it is satisfied that having regard to his means it is reasonable so to order. Islamic Family Law (Federal Territories) 55 (3) An order under subsection (1) or (2) may direct payment to the person having custody or care and control of the child or to the trustee for the child. Power of Court to order security for maintenance of a child 74. (1) The Court may, when ordering the payment of maintenance for the benefit of any child, order the person liable to pay the maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay the maintenance or a part thereof out of the income from the property. (2) Failure to comply with the order requiring the person liable to vest any property in trustee for the purpose of subsection (1) shall be punishable as a contempt of Court. Power of Court to vary order for custody or maintenance of a child 75. The Court may, on the application of any interested person, at any time and from time to time vary, or at any time rescind, any order for the custody or maintenance of a child, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances. Power of Court to vary agreement for custody or maintenance of a child 76. The Court may at any time and from time to time vary the terms of any agreement relating to the custody or maintenance of a child, whether such agreement was made before or after the appointed date, notwithstanding any provision to the contrary in the agreement, where it is satisfied that it is reasonable and for the welfare of the child so to do. 56 Laws of Malaysia ACT 303 Recovery of arrears of maintenance of a child 77. Section 69 shall apply, mutatis mutandis and according to Hukum Syarak, to orders for the payment of maintenance for the benefit of a child. Duty to maintain child accepted as member of family 78. (1) Where a man has accepted a child who is not his child as a member of his family, it shall be his duty to maintain the child while he or she remains a child, so far as the parents of the child fail to do so, and the Court may make such orders as may be necessary to ensure the welfare of the child. (2) The duty imposed by subsection (1) shall cease if the child is taken back by either of his or her parents. (3) Any sum expended by a man in maintaining a child as required by subsection (1) shall be recoverable from the father or mother of the child. Duration of order for maintenance of a child 79. Except— (a) where an order for maintenance of a child is expressed to be for any shorter period; or (b) where any such order has been rescinded; or (c) where any such order is made in favour of— (i) a daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself; or (ii) a son who is, by reason of some mental or physical disability, incapable of maintaining himself, Islamic Family Law (Federal Territories) 57 the order for maintenance shall expire on the attainment by the child of the age of eighteen years, but the Court may, on application by the child or any other person, extend the order for maintenance to cover such further period as it thinks reasonable, to enable the child to pursue further or higher education or training. Duty to maintain illegitimate children 80. (1) If a woman neglects or refuses to maintain her illegitimate child who is unable to maintain himself or herself, other than a child born as a result of rape, the Court, upon due proof thereof, may order the woman to make such monthly allowance as the Court thinks reasonable. (2) (Deleted by Act A902). (3) A monthly allowance under this section shall be payable from the date of commencement of the neglect or refusal to maintain or from such later date as may be specified in the order. PART VII GUARDIANSHIP Hadhanah or Custody of Children Persons entitled to custody of a child 81. (1) Subject to section 82, the mother shall be of all persons the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution. (2) Where the Court is of the opinion that the mother is disqualified under Hukum Syarak from having the right to hadhanah or custody of her children, the right shall, subject to subsection (3), pass to one of the following persons in the following order of preference, that is to say— 58 Laws of Malaysia ACT 303 (a) the maternal grandmother, how-high-soever; (b) the father; (c) the paternal grandmother, how-high-soever; (d) the full sister; (e) the uterine sister; (f) the sanguine sister; (g) the full sister’s daughter; (h) the uterine sister’s daughter; (i) the sanguine sister’s daughter; (j) the maternal aunt; (k) the paternal aunt; (l) the male relatives who could be their heirs as ‘asabah or residuaries: Provided that the custody of such person does not affect the welfare of the child. (3) No man shall have a right to the custody of a female child unless he is a muhrim, that is to say, he stands to her within the prohibited degrees of relationship. (4) Subject to sections 82 and 84, where there are several persons of the same line or degree, all equally qualified and willing to take charge of the child, the custody shall be entrusted to the one most virtuous who shows the greatest tenderness to the child, and where all are equally virtuous, then the senior among them in age shall have the priority. Islamic Family Law (Federal Territories) 59 Qualifications necessary for custody 82. A person to whom belongs the upbringing of a child, shall be entitled to exercise the right of hadhanah if— (a) she is a Muslim; (b) she is of sound mind; (c) she is of an age that qualifies her to bestow on the child the care, love, and affection that the child may need; (d) she is of good conduct from the standpoint of Islamic morality; and (e) she lives in a place where the child may not undergo any risk morally or physically. How right of custody is lost 83. The right of hadhanah of a woman is lost— (a) by her marriage with a person not related to the child within the prohibited degrees if her custody in such case will affect the welfare of the child but her right to custody will revert if the marriage is dissolved; (b) by her gross and open immorality; (c) by her changing her residence so as to prevent the father from exercising the necessary supervision over the child, except that a divorced wife may take her own child to her birth-place; (d) by her abjuration of Islam; (e) by her neglect of or cruelty to the child. 60 Laws of Malaysia ACT 303 Duration of custody 84. (1) The right of the hadhinah to the custody of a child terminates upon the child attaining the age of seven years, in the case of a male, and the age of nine years, in the case of a female, but the Court may, upon application of the hadhinah, allow her to retain the custody of the child until the attainment of the age of nine years, in the case of a male, and the age of eleven years, in the case of a female. (2) After termination of the right of the hadhinah, the custody devolves upon the father, and if the child has reached the age of discernment (mumaiyiz), he or she shall have the choice of living with either of the parents, unless the Court otherwise orders. Custody of illegitimate children 85. The custody of illegitimate children appertains exclusively to the mother and her relations. Power of the Court to make order for custody 86. (1) Notwithstanding section 81, the Court may at any time by order choose to place a child in the custody of any one of the persons mentioned therein or, where there are exceptional circumstances making it undesirable that the child be entrusted to any one of those persons, the Court may by order place the child in the custody of any other person or of any association the objects of which include child welfare. (2) In deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child and, subject to that consideration, the Court shall have regard to— (a) the wishes of the parents of the child; and (b) the wishes of the child, where he or she is of an age to express an independent opinion. Islamic Family Law (Federal Territories) 61 (3) It shall be a rebuttable presumption that it is for the good of a child during his or her infancy to be with his or her mother, but in deciding whether that presumption applies to the facts of any particular case, the Court shall have regard to the undesirability of disturbing the life of a child by changes of custody. (4) Where there are two or more children of a marriage, the Court shall not be bound to place both or all in the custody of the same person but shall consider the welfare of each independently. (5) The Court may, if necessary, make an interim order to place the child in the custody of any person or institution or association and the order shall forthwith be enforced and continue to be enforced until the Court makes an order for the custody. Orders subject to conditions 87. (1) An order for custody may be made subject to such conditions as the Court thinks fit to impose and, subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the child. (2) Without prejudice to the generality of subsection (1), an order for custody may— (a) contain conditions as to the place where the child is to live and as to the manner of his or her education; (b) provide for the child to be temporarily in the care and control of some person other than the person given custody; (c) provide for the child to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the Court considers reasonable; 62 Laws of Malaysia ACT 303 (d) give a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody the right of access to the child at such times and with such frequency as the Court considers reasonable; or (e) prohibit the person given custody from taking the child out of Malaysia. Guardianship of Person and Property Persons entitled to guardianship 88. (1) Although the right to hadhanah or the custody of the child may be vested in some other person, the father shall be the first and primary natural guardian of the person and property of his minor child, and where he is dead, the legal guardianship devolves upon one of the following persons in the following order of preference, that is to say— (a) the father’s father; (b) the executor appointed by the father’s will; (c) the father’s executor’s executor; (d) the father’s father’s executor; (e) the father’s father’s executor’s executor: Provided that he is a Muslim, an adult, sane, and worthy of trust. (2) The father shall have, at all times, the amplest power to make by will such dispositions as he thinks best relative to the guardianship of his minor children and the protection of their interests, provided that he is in full possession of his senses. (3) Subsection (1) shall not apply where the terms and conditions of the instrument vesting the property in the minor expressly exclude the persons mentioned therein from exercising guardianship over the Islamic Family Law (Federal Territories) 63 property, and in that case the Court shall appoint a guardian of the property of the minor. (4) A person shall, for the purposes of guardianship of person and property, be deemed to be a minor unless he or she has completed the age of eighteen years. Power over immovable and movable property 89. (1) As regards immovable property, a legal guardian shall have no power to sell, except in the following cases, that is to say— (a) where at least double the price of the property may be obtained by him from a stranger by the sale of the property; (b) where the minor has no other means of livelihood, and the sale is absolutely necessary for his maintenance, and the minor has no other property; (c) where the property is required to be sold for the purpose of paying off the debts of the testator, which cannot otherwise be liquidated; (d) where there are some general provisions in the will of the testator that cannot be carried into effect without the sale of the property; (e) where the income accruing from the estate is insufficient to defray the expenditure incurred in its management and the payment of the land revenue; (f) where the property is in imminent danger of being destroyed or lost by decay; (g) where the property is in the hands of a usurper, and the guardian has reason to fear that there is no chance of fair restitution; or 64 Laws of Malaysia ACT 303 (h) in any other case where it is absolutely necessary to sell the property on other grounds permitted by Hukum Syarak and the sale is to the manifest or evident advantage of the minor. (2) As regards movable property, a legal guardian shall have power to sell or pledge the goods and chattels of the minor, if he is in need of imperative necessities, such as food, clothing, and nursing; and where the movable property of a minor is sold bona fide for an adequate consideration, with the object of investing the proceeds safely and for an increased income, its sale shall be held valid. Appointment of guardians by the Court 90. (1) In the absence of the legal guardians, the duty of appointing a guardian for the protection and preservation of the minor’s property shall be upon the Court, and in making an appointment the Court shall be guided chiefly by considerations of the minor’s welfare. (2) In considering what will be for the welfare of the minor, the Court shall have regard to the age and sex of the minor, the character and the capacity of the proposed guardian and his nearness of relationship to the minor, the wishes, if any, of the deceased parents, and any existing or previous relations of the proposed guardian with the minor or his property, and where the minor is old enough to form an intelligent preference, the Court may consider that preference. Appointment of mother as testamentary guardian 91. A mother, whether a Muslim or Kitabiyah, may be validly appointed executrix of the father, and in that case she may exercise her powers as a testamentary guardian or, in the absence of a legal guardian, she may be appointed legal guardian by the Court, but in the absence of such appointment she shall not deal with the minor’s property. Islamic Family Law (Federal Territories) 65 Joint guardian with mother 92. Where the Court appoints the mother to be guardian, the Court may also appoint some other person to be guardian of the minor’s person and property, or either of them, to act jointly with the mother. Variation of power of guardian of property 93. The Court may, in appointing any guardian of a minor’s property, by order define, restrict, or extend the power and authority of the guardian in relation thereto, to such extent as is necessary for the welfare of the minor. Removal of guardian 94. The Court may at any time and from time to time remove any guardian, whether a parent or otherwise and whether of the person or the property of the minor and may appoint another person to be guardian in his place. Security to be given 95. (1) Where a person is appointed by the Court to be the guardian of a minor’s property he shall, unless the Court otherwise orders, give security in such sum as may be appointed for the due performance of his duties as guardian. (2) Such security shall be given in the manner prescribed for the time being in the case of receivers appointed by the Court; and the guardian appointed shall render his accounts at such periods as may be ordered, and shall pay in any balance certified to be due from him into Court in the manner prescribed in the case of receivers. 66 Laws of Malaysia ACT 303 Limitation of powers of guardian appointed by Court 96. (1) A guardian of the property of a minor appointed by the Court shall not, without the leave of the Court— (a) sell, charge, mortgage, exchange, or otherwise part with the possession of any movable or immovable property of the minor; or (b) lease any land belonging to the minor for a term exceeding one year. (2) Any disposal of a minor’s property in contravention of this section may be declared void and on such declaration the Court may make such order as appears requisite for restoring to the minor’s estate the property disposed of. (3) The Court shall not make any order under subsection (2) unless it is necessary or advisable in the interests of the minor. Guardian may not give discharge for capital property 97. A guardian of the property of a minor appointed by the Court shall not, unless in any case the Court otherwise orders, be empowered to give a good discharge for any legacy or other capital moneys payable to or receivable by the minor. Guardian may support minor out of income 98. (1) A guardian of the property of a minor appointed by the Court may make reasonable provision out of the income of the property for his maintenance and education, having regard to his station in life; but no sum exceeding three hundred ringgit per month may be so applied without the leave of the Court. (2) Where the income of the minor’s property in the hands of the guardian is insufficient for such purpose, or money is required for the minor’s advancement, the Court may order the provision for such Islamic Family Law (Federal Territories) 67 purpose be made out of the capital of the minor’s property, and for such purpose may authorize the sale, charge, or mortgage of any part of the minor’s property and give such directions in regard thereto as may be necessary in the interests of the minor. Special order in case of small estate 99. (1) If it appears that, having regard to the station in life of a minor and to the value of his property and to all the circumstances of the case, it would be expedient that the capital property of the minor be made available for his maintenance, education, or advancement in such manner as to avoid the expense of making application to the Court, the Court may, instead of appointing a guardian of the property of the minor, order that all the property of the minor, of whatsoever description, be placed in the hands of a person to be appointed by the Court, with full power to deal with and apply the property for the purpose aforesaid in his sole and uncontrolled discretion; and in that case the receipt of the person appointed shall be a good discharge to any person making any payment or transfer of any property to him on behalf of the minor. (2) Any persons appointed under subsection (1) may be ordered by the Court to render an account of his dealings with the minor’s estate. (3) The Court may for any sufficient reason discharge any order, or revoke any appointment, made under subsection (1), and may appoint another person with the same power or such greater or lesser power as may appear advisable, or may appoint a guardian of the minor’s property. Application for opinion, etc. 100. Any guardian may apply to the Court for its opinion, advice, or discretion on any question respecting the management or administration of the minor’s property. 68 Laws of Malaysia ACT 303 Prohibition order by Court 101. (1) Notwithstanding the provisions of section 89, the Court may, where it considers it necessary so to do, make an order prohibiting the father of a minor or the father’s father or their respective executors or their respective executors’ executors from— (a) selling, charging, mortgaging, exchanging, or otherwise parting with the possession of any movable or immovable property of the minor; or (b) leasing any land belonging to the minor for a term exceeding one year, without the prior leave of the Court. (2) Any disposal of a minor’s property in contravention of the order may be declared void, and on such declaration the Court may make such order as appears requisite for restoring to the minor’s estate the property disposed of. (3) The Court shall not make any order under subsection (2) unless it is necessary or advisable in the interests of the minor. Guardian of orphan 102. Where the father and the grandfather of a minor have died without appointing a testamentary guardian, any penghulu, police officer not below the rank of Sergeant, any person having the custody of the minor, or any person with the powers of a Protector under the *Child Act 2001 [Act 611], may cause the minor to be taken before the Court and the Court may appoint a guardian of the minor’s person and property or either of them. 103. (Deleted by Act A902). *NOTE—This Act has repealed the Child Protection Act 1991 [Act 468] (see section 130 of Act 611), which repealed the Children and Young Persons Act 1947 [Act 232]—see subsection 50(2) of Act 468. Islamic Family Law (Federal Territories) 69 Court to have regard to advice of welfare officers, etc. 104. When considering any question relating to the custody or maintenance of any child, the Court shall, whenever it is practicable, take the advice of some person, whether or not a public officer, who is trained or experienced in child welfare but shall not be bound to follow the advice. Power of Court to restrain taking of child out of Malaysia 105. (1) The Court may on application of the father or mother of a child— (a) where any matrimonial proceeding is pending; or (b) where, under any agreement or order of Court, one parent has custody of the child to the exclusion of the other, issue an injunction restraining the other parent from taking the child out of Malaysia or may give leave for the child to be taken out of Malaysia either unconditionally or subject to such conditions or such undertaking as the Court thinks fit. (2) The Court may, on the application of any interested person, issue an injunction restraining any person, other than a person having custody of the child, from taking a child out of Malaysia. (3) Failure to comply with an order made under this section shall be punishable as a contempt of Court. Other Reliefs Power of Court to set aside and prevent dispositions intended to defeat claims to maintenance 106. (1) Where— (a) any matrimonial proceeding is pending; or 70 Laws of Malaysia ACT 303 (b) an order has been made under section 56, 59 or 73 and has not been revoked; or (c) maintenance is payable under any agreement to or for the benefit of a wife or former wife or child, the Court shall have power on application— (i) if it is satisfied that any disposition of property has been made by the husband or former husband or parent of the person by or on whose behalf the application is made, within the preceding three years, with the object on the part of the person making the disposition of reducing his or her means to pay maintenance or his means to pay mut’ah or of depriving his wife of any rights in relation to the property, subject to subsection (2), to require the person making the disposition to revoke the same; and (ii) if it is satisfied that any disposition of property is intended to be made with any such object, to grant an injunction preventing the disposition. (2) For the purposes of this section— “disposition” includes a sale, gift, lease, mortgage, or any other transaction whereby ownership or possession of the property is transferred or encumbered but does not include a disposition made for money or money’s worth to or in favour of a person acting in good faith and in ignorance of the object with which the disposition is made; “property” means property of any nature, movable or immovable, and includes money. (3) Failure to comply with an order made under this section shall be punishable as a contempt of Court. Islamic Family Law (Federal Territories) 71 Restraining Order 107. (1) The Court shall have power during the pendency of any matrimonial proceedings or on or after the grant of an order of divorce, fasakh, or annulment, to order any person to refrain from forcing his or her society on his or her spouse or former spouse and from other acts of molestation. (2) Failure to comply with an order made under this section shall be punishable as a contempt of Court. 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 (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. PART VIII MISCELLANEOUS Recognition of Muslim marriages contracted outside the Federal Territory 108. (1) A Muslim marriage contracted outside the Federal Territory other than a marriage solemnized in a Malaysian Embassy, 72 Laws of Malaysia ACT 303 High Commission, or Consulate under section 24 shall be recognized as valid for all purposes of this Act if— (a) it was contracted in a form required or permitted by the law of the place where it was contracted; (b) each of the parties had, at the time of the marriage, capacity to marry under the law of the place of his or her residence; and (c) where either of the parties is a resident of the Federal Territory, both parties had capacity to marry according to this Act. (2) (Deleted by Act A902). Recognition of marriages contracted in Embassies, etc., in the Federal Territory 109. (1) A Muslim marriage of persons who are not Malaysian citizens contracted in any foreign Embassy, High Commission, or Consulate in the Federal Territory shall be recognized as valid for all purposes of this Act if— (a) it was contracted in a form required or permitted by the law of the country whose Embassy, High Commission, or Consulate it is, or in a form permitted under this Act; (b) each of the parties had, at the time of the marriage, capacity to marry under the law of the place of his or her residence; and (c) where either of the parties is a resident of the Federal Territory, both parties had capacity to marry according to this Act. (2) (Deleted by Act A902). Islamic Family Law (Federal Territories) 73 Legitimacy Ascription of paternity 110. Where a child is born to a woman who is married to a man more than six qamariah months from the date of the marriage or within four qamariah years after dissolution of the marriage either by the death of the man or by divorce, the woman not having remarried, the nasab or paternity of the child is established in the man, but the man may, by way of li’an or imprecation, disavow or disclaim the child before the Court. Birth more than four years after dissolution of marriage 111. Where the child is born more than four qamariah years after the dissolution of the marriage either by the death of the man or by divorce, the paternity of the child shall not be established in the man unless he or any of his heirs asserts that the child is his issue. Birth after declaration of completion of ‘iddah 112. Where a woman, not having remarried, makes a declaration that the period of ‘iddah has been completed, whether the period is for death or divorce, and she is subsequently delivered of a child, the paternity of the child shall not be ascribed to her husband unless the child was born less than four qamariah years from the date of the dissolution of the marriage either by the death of the husband or by divorce. Syubhah intercourse 113. Where a man has syubhah sexual intercourse with a woman, and she is subsequently delivered of a child between the period of six qamariah months to four qamariah years after the intercourse, the paternity of the child shall be ascribed to the man. 74 Laws of Malaysia ACT 303 Conditions for valid acknowledgment 114. Where a man acknowledges another, either expressly or impliedly, as his lawful child, the paternity of the child shall be established in the man, if the following conditions are fulfilled, that is to say: (a) the paternity of the child is not established in any one else; (b) the ages of the man and the child are such that filial relationship is possible between them; (c) where the child is of discreet age, the child has acquiesced in the acknowledgment; (d) the man and the mother of the child could have been lawfully joined in marriage at the time of conception; (e) the acknowledgment is not merely that he or she is his son, but that the child is his legitimate son; (f) the man is competent to make a contract; (g) the acknowledgment is with the distinct intention of conferring the status of legitimacy; or (h) the acknowledgement is definite and the child is acknowledged to be the child of his body. Presumption from acknowledgment rebuttable 115. The presumption of paternity arising from acknowledgment may only be rebutted by— (a) disclaimer on the part of the person acknowledged; (b) proof of such proximity of age, or seniority of the acknowledgee, as would render the alleged relationship physically impossible; Islamic Family Law (Federal Territories) 75 (c) proof that the acknowledgee is in fact the child of some other person; or (d) proof that the mother of the acknowledgee could not possibly have been the lawful wife of the acknowledger at the time when the acknowledgee could have been conceived. Acknowledgment by a woman in ‘iddah 116. Where the acknowledgor is a woman who is married or who is observing the ‘iddah, the paternity of the person acknowledged shall not be ascribed to her husband unless her acknowledgment is confirmed by him or by evidence. Acknowledging another as mother or father 117. Where a person acknowledges another as his father or mother, the acknowledgment, if assented to or confirmed by the acknowledgee, whether during the lifetime or after the decease of the acknowledgor, shall constitute a valid relationship, in so far as the parties themselves are concerned, provided that the ages of the acknowledgor and the acknowledgee are such that filial relationship is possible between them. Acknowledgment other than as a child, mother, or father 118. Where a person acknowledges another as a relation other than as a son, mother, or father, the acknowledgment shall not affect any other person unless that other person confirms the acknowledgment. Acknowledgment irrevocable 119. Once an acknowledgment or confirmation has been made in respect of paternity or relationship, the acknowledgment or confirmation shall become irrevocable. 76 Laws of Malaysia ACT 303 Order to Resume Cohabitation Application by deserted wife 120. Where a person has ceased to cohabit with his wife in manner required by Hukum Syarak, the wife may apply to the Court for an order that the person resume cohabitation with her. Appeals 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. 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 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, Islamic Family Law (Federal Territories) 77 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. (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. PART IX PENALTIES Polygamy without Court’s permission 123. Any man who, during the subsistence of a marriage, contracts another marriage in any place without the prior permission in writing of the Court commits an offence and shall be punished with a fine not 78 Laws of Malaysia ACT 303 exceeding one thousand ringgit or with imprisonment not exceeding six months or both. Divorce outside Court and without Court’s permission 124. Any man who divorces his wife by the pronouncement of talaq in any form outside the Court and without the permission of the Court commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both. Failure to report 125. (1) Whoever, being under a duty to report under this Act, wilfully neglects or fails to do so commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both. (2) Whoever, being under a duty to report or being required to submit an application under this Act or being required to furnish any information or to execute or sign any document lawfully necessary for the purpose of effecting registration thereof, willfully neglects or fails to report or to comply with the requirement commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both. Desertion of wife 126. Any person who, having been ordered by the Court to resume cohabitation with his wife, wilfully fails or neglects to comply with the order commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both. Islamic Family Law (Federal Territories) 79 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. Failure to give proper justice to wife 128. Any person who fails to give proper justice to his wife according to Hukum Syarak commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both. Disobedience of wife 129. Any woman who wilfully disobeys any order lawfully given by her husband according to Hukum Syarak commits an offence and shall be punished with a fine not exceeding one hundred ringgit or, in the case of a second or subsequent offence, with a fine not exceeding five hundred ringgit. Attempt to be murtad to annul marriage 130. Any person who dislikes his or her spouse and by deception makes himself or herself murtad in order to annul his or her marriage commits an offence and shall be punished with imprisonment not exceeding one year. 80 Laws of Malaysia ACT 303 Illicit intercourse between divorced persons 131. (1) Any man who, having lawfully divorced his wife, resumes cohabitation with her without having pronounced a lawful ruju’ commits an offence and shall be punished with a fine not exceeding five hundred ringgit or with imprisonment not exceeding three months or both. (2) If his wife was not at the time of resumption of cohabitation aware of the occurrence of the divorce, the man commits an offence and shall be punished with a fine not exceeding one thousand ringgit or with imprisonment not exceeding six months or both. (3) Any woman who abets an offence under subsection (1) commits an offence and shall be punished with a fine not exceeding five hundred ringgit or with imprisonment not exceeding six months or both. Wilful neglect to comply with order 132. (1) Without prejudice to the right of any person interested under any order made under this Act to enforce the order under this Act or under any other law, the Court that made the order, in case of wilful failure to comply therewith, may, where such order requires the payment of any amount, direct the amount due to be levied in the manner by law provided for levying fines imposed by the Court or may sentence the person wilfully failing to comply therewith to imprisonment if the order for each month’s payment remaining unpaid, or, in any other case, to one year’s payment remaining unpaid. (2) The Court may— (a) if an order made under subsection (1) provides for payment to be made monthly, sentence the person willfully failing to comply therewith to imprisonment not exceeding one month for each month’s payment remaining unpaid; and Islamic Family Law (Federal Territories) 81 (b) in any other case, sentence the person wilfully failing to comply with the order made under subsection (1) to imprisonment not exceeding one year for any payment remaining unpaid. Attempts and abetment 133. Whoever attempts to commit, or abets the commission of, any offence under this Act commits an offence punishable with the same punishment provided for the offence. PART X GENERAL Power to make rules 134. (1) The Yang di-Pertuan Agong, on the advice of the Majlis, may by notification in the Gazette make rules regulating the practice and procedure in all matrimonial proceedings under this Act as he considers expedient and rules to fix and regulate the fees and costs payable in all such proceedings; subject thereto, all proceedings under this Act shall be regulated by the practice and procedure of the Court laid down by the Administration Act, to the extent that such practice and procedure are not inconsistent with this Act. (2) In matters of practice and procedure in matrimonial proceedings not expressly provided for in this Act or in any rules made under this Act or in the Administration Act, the Court may adopt such practice and procedure as may seem proper for the avoidance of injustice and the disposal of the matters in issue between the parties. (3) The Yang di-Pertuan Agong, on the advice of the Majlis, may by notification in the Gazette make rules for the purpose of this Act and, without prejudice to the generality of the foregoing, such rules may provide for— 82 Laws of Malaysia ACT 303 (a) the manner in which the Registrars of Muslim Marriages, Divorces, and Ruju’ shall exercise the powers conferred on them by this Act; (b) the forms of the Marriage, Divorce, and Ruju’ Registers and of the certificates of marriage, divorce, and ruju’ and the mode in which they are to be kept; (c) the supply and safe custody of the Marriage, Divorce, and Ruju’ Registers, the Registrars’ notebooks, and all iqrar made for the purposes of this Act; (d) the preparation and submission of returns of marriages, divorces, and ruju’ registered under this Act; (e) the forms of any certificate, notice, or other document required for the purpose of implementing this Act; (f) the making of searches and the giving of certified copies; (g) the fees chargeable for the purposes of this Act; (h) the punishment for any breach or failure to comply with any rules made under this Act; and (i) other matters for the purpose of carrying out this Act. 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. Islamic Family Law (Federal Territories) 83 Cessation of application of Selangor Enactment 3 of 1952 135. Parts VI, VII, sections 155, 156, 158, 159, 160, and paragraph 178(n) of the Administration Enactment are hereby repealed and shall, accordingly, cease to apply to the Federal Territory of Kuala Lumpur.* __________________________________ *NOTE–This provision also applies to the Federal Territory of Labuan–see section 8 of Act A828. 84 Laws of Malaysia ACT 303
schedule_46
SCHEDULE [Subsection 2(3)] ARABIC SCRIPT FOR CERTAIN WORDS AND EXPRESSIONS darar syarie — ﺿﺭ ﺭ ﺷﺭ ﻋﻰ fasakh — ﻔﺴﺦ mastautin — ﻤﺴﺗﻮﻂﻦ hakim syarie — ﺤﺎﻜﻢ ﺸﺮﻋﻲ hukum syarak — ﺤﻜﻢ ﺸﺮ ﻉ Kitabiyah — ﻜﺘﺎﺒﯿﺔ kariah — ﻘﺮﯿﺔ mut’ah — ﻤﺘﻌﺔ nasab — ﻨﺴﺐ ruju’ — ﺮﺠﻮﻉ Ta’liq — ﺘﻌﻠﯿﻖ persetubuhan syubhah — ﻔﺮﺴﺘﻮﺑﻬﻦ﴿ﻮﻄﺊ ﴾ﺷ ﺑﻬﺔ khul’ — ﺨﻠﺢ Shiqaq — ﺷﻗﺎﻕ Hakam — ﺤﻜﻡ thayyib — ﺗﯿﺐ ba-in kubra — ﺑﺎﺋﻦﻜﺑﺮﺉ wali — ﻮﻠﻲ ba-in sughra — ﺴﻐﺮﺍ Islamic Family Law (Federal Territories) 85 talaq raj’i — ﻂﻼﻖ ﺮﺠﻌﻲ Hadhinah — ﺤﺿﯿﻧ ﺔ hadhanah — ﺤﺿﺎﻧﺔ mumaiyiz — ﻤﻣﯿﺰ li’an — ﻠﯿﻌﺎﻦ nafkah — ﻨﻔﻗﺔ nusyuz — ﻨﺷﻮﺰ kadi — ﻗﺎﺿﻲ Bani Ya’qub — ﺑﻧﻲﯿﻌﻗﻮﺐ qamariah — ﻗﻤﺮﯿﺔ ______________ 86 Act 303 LIST OF AMENDMENTS Amending law Short title In force from P.U. (A) 247/2002 Islamic Family Law (Federal Territory) (Amendment) Act 1992 Islamic Family Law (Federal Territory) (Amendment) Act 1994 Federal Territory of Putrajaya (Extension and Modification of Islamic Family Law (Federal Territory) Act 1984) Order 2002 Islamic Family Law (Federal Territory) (Amendment) Act 2006 17-07-1992 09-09-1994 01-02-2001 01-11-2010 _____________ 87 Act 303 LIST OF SECTIONS AMENDED Section Amending authority In force from 1 2 3 8 9 12 13 14 15 23 28 31 38 41 Act A902 17-07-1992 17-07-1992 09-09-1994 01-11-2010 17-07-1992 09-09-1994 09-09-1994 01-11-2010 09-09-1994 09-09-1994 01-11-2010 01-11-2010 09-09-1994 09-09-1994 01-11-2010 09-09-1994 01-11-2010 01-11-2010 01-11-2010 09-09-1994 88 Laws of Malaysia ACT 303 Section Amending authority In force from 42 45 47 48 50A 52 53 55 55A 58 61 69 71 73 77 78 79 80 81 82 83 01-11-2010 09-09-1994 09-09-1994 01-11-2010 09-09-1994 09-09-1994 17-07-1992 09-09-1994 01-11-2010 17-17-1992 09-09-1994 09-09-1994 09-09-1994 01-11-2010 01-11-2010 09-09-1994 09-09-1994 01-11-2010 09-09-1994 09-09-1994 01-11-2010 09-09-1994 09-09-1994 09-09-1994 09-09-1994 Islamic Family Law (Federal Territories) 89 Section Amending authority In force from 86 103 107 107A 108 109 110 114 121 122 126 127 130 131 132 134 134A 135 Act A828 09-09-1994 09-09-1994 01-11-2010 01-11-2010 09-09-1994 09-09-1994 09-09-1994 01-11-2010 09-09-1994 01-11-2010 09-09-1994 01-11-2010 09-09-1994 01-11-2010 09-09-1994 01-11-2010 09-09-1994 09-09-1994 01-11-2010 01-11-2010 17-07-1992 _____________