MOHD. HABIBULLAH MAHMOOD V. FARIDAH BT.

DATO TALIB
[1993] 1 CLJ 264
SUPREME COURT, KUALA LUMPUR
TAN SRI DATO' HARUN BIN MAHMUD HASHIM TAN SRI DATO' HJ.
MOHD AZMI BIN DATO' HJ. KAMARUDDIN TAN SRI DATUK GUNN
CHIT TUAN SCJJ
[SUPREME COURT CIVIL APPEAL NO. 02-441-89]
15 DECEMBER 1992
CONSTITUTIONAL LAW:Article 121, 121(1A) of Federal Constitution Courts of Judicature Act 1964 - Section 23(1) - General jurisdiction on
High Court to try all civil proceedings including an action in tort claiming
damages for assault and battery - Jurisdiction to grant an injunction to
restrain parties from assaulting, harassing and molesting - Action in tort by
one spouse against another - Whether Syariah Court has jurisdiction to
oust the jurisdiction of the High Court provided under Article 121(1A) Jurisdiction of Syariah Courts - Section 45(3) of Selangor Administration of
Muslim Law Enactment 1952 - Islamic Family Law (Federal Territory) Act
1984 - Section 2 of Syariah Courts (Criminal Jurisdiction Act 1965 Whether Syariah Court has power to grant an injunction.
FAMILY LAW: Constitutional amendment resul- ting in Article 121(1A) Object of the amendment - To prevent conflict of laws - Muslims shall be
governed by Islamic Family Law - Whether Article 121(1A) has granted
exclusive jurisdiction to the Syariah Courts in administration of Islamic Law
- Action in tort by one spouse against other - Marriage in accordance with
Muslim rites - Whether action barred by Married Women Ordinance 1957 Section 9.
PRACTICE & PROCEDURE: Striking out writ and statement of claim Order 18 r. 19 of RHC 1980 - Parties have submitted to jurisdiction of
Syariah Court - Whether can submit to jurisdiction of Civil Court on same
subject
matter
Abuse
of
process
of
Court.
INTERPRETATION OF STATUTES: Amendment to Federal Constitution Jurisdiction between Civil Courts and Syariah Courts - Conflict of Laws Courts of Judicature Act 1964 - Intention of Parliament.
This was an appeal against the decision of the High Court, Kuala Lumpur
which had held that it has jurisdiction to hear the claim by the respondentwife against her husband, the appellant for damages and injunction for
acts of assault and battery allegedly committed by the appellant against
the respondent. The learned Judge of the High Court, further held that s.

9(2) of the Married Women Ordinance 1957 was not applicable and
dismissed the preliminary objection raised by the appellant's Counsel.
The two main issues that were raised at the High Court and the Supreme
Court were as follows:
(1) Whether the High Court has jurisdiction to adjudicate on the
respondent's action since it involved a matter which was exclusively within
the jurisdiction of the Syariah Court as both parties to the proceedings are
Muslims, and the proceedings relate to Islamic Family Law, and
(2) Whether the respondent can institute the action in tort against the
appellant when s. 9(2) of the Married Women Act 1957 prohibits a wife
from suing her husband in tort.
Held:
[1]Article 121(1A) of the Federal Constitution has granted exclusive
jurisdiction to the Syariah Courts in the administration of personal and
family Islamic Laws. In other words, Article 121(1A) is a provision to
prevent conflicting jurisdiction between the Civil Courts and the Syariah
Courts.
[2] As the appellant and the respondent are husband and wife and the
allegations of assault and battery constituting the tort are not related to the
protection or security of property, the respondent is barred by s. 9(2) of the
Married Women Ordinance 1957 from suing the appellant.
[3] The principle of interpretation of statutes demands that a general
provision cannot override a specific one, and as such the High Court
cannot invoke its general civil jurisdiction under s. 23 of the Courts of
Judicature Act 1964 to revive a specific jurisdiction under s. 24 of the said
Act which has been excluded by the Constitution.
[4] For the reasons stated, the ruling of the High Court that it has
jurisdiction to adjudicate on the respondent's claim for damages for
assault and battery against the appellant and the grant of an injunction
arising therefrom was reversed. The order of interim injunction was
dissolved and the application under O. 18 r. 19 of the Rules of the High
Court 1980 to strike out the writ and the statement of claim must
necessarily succeed and was allowed.
[5] The appeal was accordingly allowed with costs of the appeal and the
Court below.

[Appeal allowed with costs. Order of interim injunction dissolved.

Application to strike out writ and statement of claim allowed.]