A BILL

intituled

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

1984.

ENACTED by the Parliament of Malaysia as follows:

Short title and commencement

1. (1) This Act may be cited as the Islamic Family Law (Federal
Territories) (Amendment) Act 2005.

(2) This Act comes into operation on a date to be appointed by

the Yang di-Pertuan Agong by notification in the Gazette.

Amendment of section 2

2. The Islamic Family Law (Federal Territories) Act 1984

[Act 303], which is referred to as the "principal Act" in this Act,
is amended in section 2—
(a) in subsection (1)—
(i) in the definition of "darar syarie", by substituting
for the word "moral" the word "dignity";
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(ii) by inserting after the definition of "Syariah Appeal
Court" the following definition:
"Syariah Appeal Court Judge" means a Syariah
Appeal Court Judge appointed under subsection
42(1) of the Administration Act;';

(iii) by substituting for the definition of' "Syariah Judge"

or "Judge" ' the following definition:
' "Syariah Judge" or "Judge" means a Judge
of the Syariah Subordinate Court or the Syariah
High Court, as the case may be, appointed under
subsection 44(1) or 43(1) of the Administration
Act respectively;';

(iv) by substituting for the definition of "Hukum Syarak"

the following definition:
"Hukum Syarak" means Hukum Syarak
according to the Mazhab Shafie, or according to
one of the Mazhab Maliki, Hanafi or Hanbali;';

(v) by inserting after the definition of "Hukum Syarak"

the following definition:
' "iqrar" means an admission made by a person,
in writing or orally or by gesture, stating that he
is under an obligation or liability to another person
in respect of some right;';

(vi) by inserting after the definition of "ruju' " the

following definition:
' "State" includes the Federal Territories of Kuala
Lumpur, Labuan and Putrajaya;';

(vii) in the definition of "Federal Territory", by

substituting for the words "or Labuan" the words
", Labuan or Putrajaya"; and
(viii) in the definition of "Federal Territories", by
substituting for the words "and Labuan" the words
", Labuan and Putrajaya"; and
 Islamic Family Law (Federal Territories) (Amendment) 3
(b) in subsection (2), by inserting after the words "respectively
by the Act" the words "to the extent that such meanings
do not conflict with Hukum Syarak".

Amendment of section 9

3. Section 9 of the principal Act is amended-

(a) in subsection (1)—
(i) in paragraph (b), by inserting after the word
"grandmother" the words " or grandfather"; and
(ii) in paragraph (f), by inserting after the words
"ascendants;" the word "and";

(b) in subsection (2)—

(i) by substituting for paragraph (c) the following
paragraph:
"(c) his stepgrandmother, being the wife of his
grandfather, or her step grandfather, being
the husband of her grandmother, whether on
the side of the father or the mother;";

(ii) in paragraph (d)—

(A) in the national language text, by substituting
for paragraph (d) the following paragraph:
"(d) menantu perempuannya atau menantu
lelakinya; dan"; and

(B) in the English language text, by inserting after

the words "son-in-law;" the word "and"; and

(iii) in the national language text, in paragraph (e), by

inserting after the words "anak perempuan" the
word "tirinya"; and

(c) in subsection (4), by substituting for the word "two wives"

the words "more than one wife".
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Amendment of section 13

4. Paragraph I3(b) of the principal Act is amended by substituting

for the words "thereto as wall Raja" the words "to the wall Raja
to solemnize the marriage".

Amendment of section 14

5. Subparagraph 14(2)(7?Xiii) of the principal Act is amended by

inserting after the words "janda;" the word "and".

Amendment of section 23

6. Section 23 of the principal Act is amended—

(a) by substituting for subsection (1) the following subsection:
"(1) No man during the subsistence of a marriage
shall, except with the prior permission in writing of the
Court, contract another marriage with another woman.";

(b) by inserting after subsection (1) the following subsection:

"(1A) A marriage contracted without the permission
of the Court under subsection (1) shall not be registered
under this Act unless the Court is satisfied that the
marriage is valid according to Hukum Syarak and the
Court has ordered the marriage to be registered subject
to section 123.";

(c) in subsection (3)—

(i) by substituting for the words "a declaration" the
words "an iqrar"; and
(ii) by substituting for the word "and" appearing after
the words "to be just" the word "or";

(d) in subsection (4)—

(i) by inserting after the words "existing wife or wives"
the words ", the woman to be wedded, the wall of
 Islamic Family Law (Federal Territories) (Amendment) 5
the woman to be wedded and any other person
who, in the opinion of the Court, may provide
information relating to the proposed marriage"; and
(ii) in paragraph (a), by substituting for the word "and"
appearing after the words "is just" the word "or";

(e) in subsection (5), by substituting for the words "statutory

declaration" the word "iqrar";
(f) in subsection (6), by substituting for the words
"Administration Enactment for appeals in civil matters"
the words "Syariah Civil Procedure (Federal Territories)
Act 1998 [Act 585]"; and
(g) by inserting after subsection (8) the following subsection:
"(9) Every Court that grants the permission or orders
a marriage to be registered under this section shall
have the power on the application by any party to the
marriage—
(a) to require a person to pay maintenance to his
existing wife or wives; or
(b) to order the division between the parties of the
marriage of any assets acquired by them during
the marriage by their joint efforts or the sale of
any such assets and the division of the proceeds
of the sale.".

Amendment of section 28

7. Section 28 of the principal Act is amended—

(a) in the shoulder note, by substituting for the words
"Registrars, Deputy Registrars" the words "Senior
Registrars, Registrars"; and
(b) in the national language text, in subsection (4), by
substituting for the word "(1)" the word "(2)".
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Amendment of section 31

8. Paragraph 31 (2)(c) of the principal Act is amended by substituting

for the word "declaration" the word "iqrar".

Amendment of section 38

9. Section 38 of the principal Act is amended—

(a) in the shoulder note, by substituting for the word
"declaration" the word "iqrar";
(b) by substituting for the word "declaration" the word "iqrar";
(c) by substituting for the word "one" the word "two"; and
(d) by substituting for the word "six" the word "twelve".

Amendment of section 42

10. Subsection 42( 1) of the principal Act is amended by substituting

for the words "statutory declaration" the words "an iqrar".

Amendment of section 47

11. Section 47 of the principal Act is amended—

(a) in subsection (1), by substituting for the words "a
declaration" the words "an iqrar"; and
(b) in subsection (2), by substituting for the words "statutory
declaration" the word "iqrar".

Amendment of section 52

12. Section 52 of the principal Act is amended—

(a) in subsection (1)—
(i) by inserting after the word "woman" the words "or
man, as the case may be,";
Islamic Family Law (Federal Territories) (Amendment) 1
(ii) in paragraphs (a), (c) and (f), by inserting after the
word "husband" the words "or wife";
(iii) by substituting for paragraph (d) the following
paragraph:
"(d) that the husband or wife has failed to perform,
without reasonable cause, his or her, as the
case may be, marital obligations (nafkah
batin) for a period of one year;";

(iv) by substituting for paragraph (h) the following

paragraph:
"(h) that the husband or wife treats her or him,
as the case may be, with cruelty, that is to
say, inter alia—
(i) habitually assaults her or him or makes
her or his life miserable by cruelty of
conduct;
(ii) associates with women or men of evil
repute or leads what, according to Hukum
Syarak, is an infamous life;
(iii) attempts to force the wife to lead an
immoral life;
(iv) disposes of her or his property or prevents
her or him from exercising her or his
legal rights over it;
(v) obstructs her or him in the observance
of her or his religious obligations or
practice; or
(vi) if he has more than one wife, does not
treat her equitably in accordance with
the requirements of Hukum Syarak;";

(v) by substituting for paragraph (i) the following

paragraph:
"(i) that even after the lapse of four months the
marriage has still not been consummated owing
to the wilful refusal of the husband or wife
to consummate it;"; and
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(vi) in paragraph (k), by inserting after the words "unfit
for marriage;" the word "or";

(b) by substituting for subsection (2) the following subsection:

"(2) No order shall be made on the ground specified
in paragraph (l)(c) until the sentence has become
final and the husband or wife has already served one
year of the sentence.";

(c) in subsection (3)—

(i) by inserting after the words "on the ground" the
word "specified"; and
(ii) by substituting for the word "six" the word "twelve";
and

(d) in subsection (4), by inserting after the words "any of the

grounds" the word "specified".

Deletion of section 58

13. The principal Act is amended by deleting section 58.

Amendment of section 59

14. Subparagraph 59(2)(b) of the principal Act is amended in the

national language text by inserting after the words "kemahuan
suaminya;" the word "atau".

Amendment of section 61

15. Section 61 of the principal Act is amended in the English

language text by substituting for the words "regardless of the
word "having regard to".

Amendment of section 73

16. Subsection 73(1) of the principal Act is amended—

(a) in paragraph (c), by deleting the word "or" appearing
after the semicolon;
 Islamic Family Law (Federal Territories) (Amendment) 9

(b) in paragraph (d) t by substituting for the full stop the

words "; or"; and
(c) by inserting after paragraph (d) the following paragraph:
"(e) when permitting him to practice polygamy under
subsection 23(1).".

Amendment of section 79

17. Subparagraph 79fc)(i) of the principal Act is amended by

inserting after the words "herself;" the word "or".

Amendment of section 81

18. Subsection 81(2) of the principal Act is amended in the national

language text—
(a) in paragraph (a), by deleting the word "peringkatnya";
and
(h) in paragraph (c), by deleting the word "peringkatnya".

Amendment of section 107

19. Section 107 of the principal Act is amended in the shoulder

notes by substituting for the words "Injunction against molestation"
the words "Restraining order".

New section 107 A

20. The principal Act is amended by inserting after section 107

the following section:
"Prohibitory order against the disposal of harta sepencarian
107A. (1) The Court may, on the application of any party to
a marriage—
(a) where any matrimonial proceeding is pending; or
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(b) in any proceeding where the Court may make an
order under section 122,

make an order prohibiting the wife or husband, as the case

may be, from disposing of any assets acquired by them, jointly
or solely, during the subsistence of their marriage if the Court
is satisfied that it is necessary to do so.

(2) The failure to comply with an order made under subsection

(1) shall be punishable as a contempt of Court.".

Amendment of section 114

21. Paragraph 114(g) of the principal Act is amended by inserting

after the words "of legitimacy;" the word "or".

Amendment of section 121

22. The principal Act is amended by substituting for section 121

the following section:
"Appeal
121. Any appeal against any decision of the Syariah Subordinate
Court shall be made to the Syariah High Court, and any
appeal against any decision of the Syariah High Court shall
be made to the Syariah Appeal Court.".

New section 122

23. The principal Act is amended by inserting after section 121

the following heading and section:

"Division of Harta Sepencarian

Power of Court to order division of harta sepencarian

122. (1) The Court shall have power, when permitting the
pronouncement of talaq or when making an order of divorce,
to order the division between the parties of any assets acquired
Islamic Family Law (Federal Territories) (Amendment) 11

by them during their marriage by their joint efforts or the sale

of any such assets and the division between the parties of the
proceeds of sale.

(2) In exercising the powers conferred by subsection (1),

the Court shall have regard to—
(a) the extent of the contributions made by each party
in money, property, or labour towards the acquiring
of the assets;
(b) any debts owing by either party that were contracted
for their joint benefit; and
(c) the need of the minor children of the marriage, if
any,

and, subject to those considerations, the Court shall incline

towards equality of division.

(3) The Court shall have power, when permitting the

pronouncement of talaq or when making an order of divorce,
to order the division between the parties of any assets acquired
during the marriage by the sole efforts of one party to the
marriage or the sale of any such assets and the division between
the parties of the proceeds of sale.

(4) In exercising the powers conferred by subsection (3),

the Court shall have regard to—
(a) the extent of the contributions made by the party
who did not acquire the assets to the welfare of the
family by looking after the home or caring for the
family; and
(b) the need of the minor children of the marriage, if
any,

and, subject to those considerations, the Court may divide the

assets or the proceeds of sale in such proportions as the Court
deems reasonable, but, in any case, the party by whose efforts
the assets were acquired shall receive a greater proportion.
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(5) For the purposes of this section, references to assets
acquired during a marriage include the assets owned before
the marriage by one party that have been substantially improved
during the marriage by the other party or by their joint efforts.".

Amendment of section 127

24. The principal Act is amended by substituting for section 127

the following section:

"Ill-treatment of spouse

127. (1) A man who ill-treats his wife or cheats his wife of
her property, or a woman who ill-treats her husband or cheats
her husband of his property, commits an offence and shall
on conviction be punished with a fine not exceeding one
thousand ringgit or to imprisonment for a term not exceeding
six months or to both.

(2) The Court may as an additional order direct the man

or woman who has been convicted under subsection (1) to
compensate the wife or husband who has been cheated of her
or his property, as the case may be.".

Amendment of section 130

25. Section 130 of the principal Act is amended-—

(a) in the shoulder note, by substituting for the word "Apostacy"
the words "Attempt to be murtad"; and
(b) in the English language text, by substituting for the word
"an apostate" the word "murtad".

Amendment of section 134

26. Section 134 of the principal Act is amended—

(a) in subsection (1), by substituting for the word "Enactment"
the word "Act";
(b) in subsection (2), by substituting for the word "Enactment"
the word "Act"; and
 Islamic Family Law (Federal Territories) (Amendment) 13
(c) in paragraph (3)(c), by substituting for the word
"declarations" the word "iqraf*.

New section 134 A

27. The principal Act is amended by inserting after section 134

the following section:

"Hukum Syarak

134A. (1) Any provision or interpretation of the provisions

under this Act which is inconsistent with Hukum Syarak shall
to the extent of the inconsistency, be void.

(2) In the event of a lacuna or where any matter is not

expressly provided for in this Act, the Court shall apply Hukum
Syarak.".

EXPLANATORY STATEMENT

This Bill seeks to amend the Islamic Family Law (Federal Territories) Act 1984
("Act 303").

2. Clause I contains the short title and provisions on the commencement of

the proposed Act.

3. Clause 2 seeks to amend section 2 of Act 303 to introduce new definitions,

to substitute certain definitions and to delete the definitions of certain terms
used in Act 303 consequent upon the amendments proposed in this Bill.

4. Clause 3 seeks to amend section 9 of Act 303 to clarify further on the

existing provisions regarding relationships prohibiting marriage.

5. Clause 6 seeks to amend section 23 of Act 303 to enable the Court to

require a man who has been given permission to practice polygamy or who has
his polygamous marriage registered under the section to pay maintenance to his
existing wife or wives, or order the division of assets acquired by them during
the marriage by their joint efforts, if there is any application by any party to
the marriage.

6. Clause 9 seeks to amend section 38 of Act 303 to increase the penalty

provided for the offence of intentionally making any false iqrar or statement.
The maximum fine is increased from RM1000.00 to RM2000.00 and the maximum
term of imprisonment is increased from six months to twelve months.
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I. Clause 12 seeks to amend section 52 of Act 303 to make the section
consistent with Hukum Syarak by giving the right offasakh to the husband and
wife.

8. Clause 16 seeks to amend section 73 of Act 303 to enable the Court to order
a man to pay maintenance for his child when permitting him to practise polygamy
under subsection 23(1).

9. Clause 20 seeks to introduce a new section, namely section 107A, into

Act 303. The new section seeks to enable the Court, upon the application of
any party to a marriage, to make a prohibitory order against the disposal of
harta sepencarian by the wife or husband where any matrimonial proceedings
is pending in the Court.

10. Clause 22 seeks to amend section 121 of Act 303 to set out clearly that
appeals against any decision of the Syariah Subordinate Court shall be made
to the Syariah High Court and appeals from the Syariah High Court shall be
made to the Syariah Appeal Court .

I1. Clause 23 seeks to insert a new section, namely section 122, into Act 303.
This new section deals with the power of the Court to order the division of harta
sepencarian.

12. Clause 24 seeks to amend section 127 of Act 303 to provide that
ill-treatment of a spouse or cheating a spouse of his or her property is an offence
and on conviction shall be punished with a fine or to imprisonment or to both.
This amendment also gives the power to the Court to make an additional order
to direct the man or woman who has been convicted for cheating his wife or
her husband of her or his property to compensate the cheated spouse.

13. Clause 27 seeks to insert a new section, namely section 134A, into
Act 303. This new section provides that Hukum Syarak will be applied if there
is any lacuna or inconsistency in Act 303.

14. Other amendments not specifically dealt with in this Statement are minor
or consequential in nature.

FINANCIAL IMPLICATIONS

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