Authored By: Yu Xin Tong
HELP University
Introduction
The Malaysian Federal Court’s landmark decision in AJS v JMH &Another Appeal was significant in addressing the friction between statutory interpretation,1 civil remedies and constitutional jurisdictional boundaries in a dual-legal system. FromtheHigh Court to the Court of Appeal and ultimately the Federal Court, the proceedings focused on whether a non-Muslim petitioner wife (hereinafter referred to as ‘AJS’) ina civil matrimonial dispute could cite a Muslim third party as a co-respondent to claimdamages for adultery committed by the respondent husband (hereinafter referred toas ‘JMH’).2 The decision presents a classic ‘competition’ between the Literal Rule andthe Purposive Rule. Furthermore, it tests the constitutional limits of civil access tojustice under Articles 5(1) and 8(1) of the Federal Constitution against thejurisdictional demarcation established under Article 121(1A) of the Federal Constitution.3
Facts of the Case
AJS and JMH were non-Muslims who solemnised their marriage in NewSouth Wales, Australia.4 They were domiciled in Malaysia at the time of the proceedings.5 Allegingthat JMH had committed adultery with a Muslim woman, AJS filed a petitionfor judicial separation under Section 64 of the Law Reform (Marriage and Divorce) Act 1976 (hereinafter referred to as ‘LRA’).6 AJS wished to join the Muslimthird partyas a co-respondent and prayed for damages for adultery pursuant to Section 58 of theLRA.7
The Muslim woman then filed an application to strike out the petition ontwoprimary grounds.8 Firstly, she relied on the statutory exclusion of Muslims in non- Muslim cases under Section 3(3) of the LRA, arguing that it created a completejurisdictional bar.9 Secondly, she contended that Section 58 of the LRAlimits claims for damages for adultery to petitions for divorce and does not extend to judicial separation proceedings.10
At the High Court, the judge allowed the Muslim woman’s application, ruledin favour on the second ground raised by her.11 However, applying a purposiveapproach and the maxim noscitur a sociis, the Court noted that the mere fact that analleged adulteress was Muslim did not inherently bar her from being named as a co respondent.
In the Court of Appeal, the tribunal dismissed AJS’s appeal and held that theplain language of Section 3(3) of the LRA admits of no exception.12 The Court ruledthat a Muslim co-respondent could not be named in the petition under anycircumstances by applying the literal rule of interpretation, reasoning that thepurposive rule applies only when the plain textual meaning is in doubt.13 AJSsubsequently obtained leave to appeal to the Federal Court.
Legal Issues and Arguments
The Federal Court was called upon to resolve two core legal issues.14 Firstly, whether Section 3(3) of the LRA precludes a non-Muslim petitioner from citing a Muslimas aco-respondent on an allegation of adultery in a petition for judicial separation under Section 64 of the LRA.15 Secondly, whether a court must give effect tothepresumption that Parliament does not intend to legislate in violation of Articles 5(1) and 8(1) of the Federal Constitution when interpreting Section 3(3) of the LRA.16
On these issues, AJS contended that Section 3(3) of the LRAshouldbeinterpreted purposively under Section 17A of the Interpretation Acts 1948 and 1967.17 The LRA was enacted to govern the personal status and monogamous marriages of non-Muslims.18 Citing a third party to a civil proceeding to claim tortious damages for marital breakdown does not enforce non-Muslim personal law onto the Muslimthirdparty nor alter their personal legal status. In order to interpret Section 3(3) of the LRAas an absolute bar creates an unjust remedial vacuum, depriving non-Muslimlitigants of equal protection under Article 8(1) of the Federal Constitution merely because thethird party wrongdoer happens to be Muslim. AJS further asserted under the GoldenRule, applying a strict literal construction yields an absurd and unjust outcome byshielding third party wrongdoers from financial accountability.19
The Muslim woman argued that the text of Section 3(3) of the LRAis unambiguous and in toto.20 Therefore, subjecting a Muslim to monetary liabilities or orders under a civil statute specifically designed for non-Muslims clearly violates Article 121(1A) of the Federal Constitution which strictly demarcates Civil andSyariah court jurisdictions. Meanwhile, adultery committed by a Muslimfalls under Syariah criminal jurisdiction and civil courts possess no statutory power to imposeLRA remedies against Muslim individuals.
Court’s Decision and Reasoning
On the aspect of the supremacy of Literal Rule, the majority held that the phrase ‘This Act shall not apply to a Muslim’ under Section 3(3) of the LRA is clear, plainandunambiguous, admits of no exception.21 Applying traditional common lawprinciples,22the Court ruled that when statutory language is unambiguous, judges must apply the text as it is written. The purposive rule and Section 17Aof theInterpretation Acts do not permit courts to override clear statutory language or assumethe role of the Legislature, even if the literal result appears harsh or leads to perceivedabsurdities.
In addition, upon discussing the constitutional jurisdictional demarcation, theCourt affirmed that applying the LRA against a Muslim third party would infringeupon the jurisdictional division mandated by Article 121(1A) of the Federal Constitution.23 Chief Justice Tengku Maimun clarified that a Muslimwho commits adultery is answerable under the criminal provisions of the Syariah legal system.24 Anon-Muslim spouse seeking redress regarding a Muslim’s conduct must lodge acomplaint with religious authorities rather than seeking civil remedies under non- Muslim personal law. Consequently, the denial of a civil remedy was held to be ‘inaccordance with law’ and thereby defeating any claim of constitutional violationunder Article 5(1) or Article 8(1) of the Federal Constitution.25
At the same time, the Federal Court corrected an area of procedural lawbyoverruling lower court precedents. The apex court held that claims for damages for adultery under Section 58 of the LRA are applicable to petitions for judicial separation and not merely divorce.26 However, since Section 3(3) of the LRA operated as a complete statutory exclusion, this remedy remained unavailable against the Muslim co-respondent.27
Critical Analysis and Conclusion
The profound tension between judicial restraint and remedial fairness in dual jurisdiction legal frameworks has been highlighted in this case. While the majorityjudgment strictly adheres to the Literal Rule,28 a rigorous evaluation reveals its substantial limitations, particularly when compared with the dissenting judgment of Nallini Pathmanathan FCJ and modern common law principles of statutoryconstruction.29
Nevertheless, the majority’s emphasis on judicial restraint enhances legal certainty, respects the constitutional principle of separation of powers and prevents courts from effectively legislating where Parliament has enacted clear statutorylanguage. This reflects the principle that the role of the judiciary is to interpret the lawrather than legislate it. However, these considerations should not prevent the courts from giving proper effect to Section 17A of the Interpretation Acts which requires legislation to be interpreted in a way that promotes Parliament’s purpose and intent.
The majority treats Section 17A of the Interpretation Acts as a secondarytool that applies only when textual ambiguity exists. Consequently, the judgment reflects an outdated common law hierarchy of statutory interpretation. Modern statutoryinterpretation requires courts to consider legislative purpose and context fromtheoutset. As Nallini Pathmanathan FCJ cogently observed in dissent, the true object of the LRA is to regulate the personal status and marital obligations of monogamous civil unions.30 Thus, citing a third party as a co-respondent under Section 58 of theLRA does not alter that third party’s personal law status, solemnise a non-Muslimmarriage for them or subject them to non-Muslim personal obligations. It merely enforces a civil tortious remedy for interference with a civil marriage contract without imposing non-Muslim personal law or causing double jeopardy across civil andSyariah forums. By interpreting Section 3(3) of the LRA in vacuo, the majorityconflated substantive personal law application with procedural liability for civil wrongs.31 Their construction overlooks the fundamental difference between imposingsubstantive Islamic personal status obligations, such as marriage, divorce or custody, and enforcing a civil remedy against an independent wrongdoer. By treating a claimfor financial damages under Section 58 of the LRA as an application of non-Muslimpersonal law to a Muslim, the Court unduly expanded the protection of Section3(3) of the LRA beyond its original legislative intent.
Moreover, the practical consequence of the majority’s decision is the creationof a ‘remedial vacuum.’ Under the current rule, an injured non-Muslimspouse whosemarital partner commits adultery with a non-Muslim third party can claimfinancial damages under Section 58 of the LRA. Nonetheless, if the exact same act of adulteryis committed with a Muslim third party, the statutory bar in Section 3(3) of the LRAoperates automatically to extinguish the civil remedy. This obviously creates anarbitrary disparity in access to civil remedies based solely on the religious identityof the co-adulterer. Furthermore, the majority’s suggestion that the non-Muslimspousecan file a complaint with religious authorities under Syariah criminal lawprovides nogenuine civil restitution.32 This is because Syariah criminal proceedings are punitivestate prosecutions. They do not yield compensatory damages or financial restitutiontoan injured petitioner.
Additionally, the purposive approach is consistent with Section 17Aof theInterpretation Acts, which directs courts to favour interpretations that promote theoriginal intent of legislation. In contrast, other jurisprudence such as that of India, as seen in the cases of ML Kamra v New India Assurance Co Ltd and Durga ParshadvCustodian of Evacuee Property,33 demonstrated that the courts have consistentlypreferred the statutory interpretation that avoids leaving an injured litigant without an effective remedy. Likewise, these decisions recognised that statutory exclusions should not be expanded beyond their intended legislative scope.
Furthermore, the Federal Court’s procedural ruling on Section 58 of the LRAdeserves particular attention.34 While the Court rightly overruled Shudesh Kumar a/l Moti Ram v Kamlesh a/p Mangal Sain Kapoor to clarify that damages for adulteryareavailable in judicial separation proceedings,35its concurrent interpretation of Section3(3) of the LRA renders this procedural victory symbolic whenever the co-respondent is Muslim. This reveals a crucial structural flaw in Malaysian civil remedies. Whencivil courts decline jurisdiction over a civil wrong based on the respondent’s religious status and Syariah courts simultaneously lack the statutory power to award civil damages to non-Muslim petitioners, the victims of matrimonial torts are left strandedin a jurisdictional void.
From a constitutional perspective, this outcome severely tests the doctrine of equality guaranteed under Article 8(1) of the Federal Constitution. Equality before thelaw requires that individuals in analogous positions be treated equally. By framingaccess to civil remedies to depend solely on the religious identity of the third partyinvolved, the majority’s interpretation creates a distinction that is difficult to reconcilewith the constitutional principle of equality. Framing such an arbitrary disparityinaccess to civil justice as being ‘in accordance with law’ under Article 5(1) of theFederal Constitution prioritises formalistic statutory boundaries over substantiveconstitutional protection.
Meanwhile, from the point of the doctrine of precedent, the Federal Court’s ruling establishes a binding vertical precedent across the entire Malaysian civil legal system. As the lower courts, including the High Court and Court of Appeal, arestrictly bound by this apex ruling, they possess no judicial discretion to adopt apurposive reading of Section 3(3) of the LRA. Consequently, this entrenches the gapin civil remedies as a nationwide rule of law unless a future decision overrules it, making legislative intervention by Parliament the sole remaining avenue for non- Muslim litigants seeking civil redress against a Muslim third party.
In conclusion, this case demonstrates the limits of judicial restraint. AlthoughChief Justice Tengku Maimun rightly emphasised that courts must not act as legislators, the strict literal interpretation of Section 3(3) of the LRAleaves non- Muslim litigants without equal access to civil remedies. In order to resolve this systemic gap, legislative intervention by Parliament is urgently required to amendSection 3(3) or Section 58 of the LRA, explicitly clarifying that third party civil liability for matrimonial torts does not constitute the application of personal law.
Reference(S):
Cases
AJS v JMH & Another Appeal [2022] 1 MLJ 778; [2022] 1 MLRA 214 Durga Parshad v Custodian of Evacuee Property AIR 1960 Punjab 341 Duport Steels Ltd v Sir and others [1980] 1 WLR 142 Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak &Ors and other appeals [2018] 1 MLJ 545, [2018] 3 CLJ 145
ML Kamra v New India Assurance Co Ltd AIR 1992 1072 Shudesh Kumar a/l Moti Ram v Kamlesh a/p Mangal Sain Kapoor [2005] 5 MLJ 82Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2MLJ 147, [2008] 2 CLJ 1
Viran a/l Nagapan v Deepa a/p Subramaniam and other appeals [2016] 1 MLJ 585, [2016] 3 CLJ 505
Online Journal
Siti Marshita binti Mahyut, ‘The Rationality of Law Reform (Marriage and Divorce) Act 1976 to the Sensitivity of the Multi-religious Community in Malaysia’ (2016) 2(2) Journal of Asian and African Social Science and Humanities <https://www.aarcentre.com/ojs3/index.php/jaash/article/view/64/268> accessed28July 2026
Statutes
Federal Constitution (Malaysia)
Interpretation Acts 1948 and 1967 (Act 388)
Law Reform (Marriage and Divorce) Act 1976
Website
Yusof Mat Isa, ‘Federal Court rules that Muslim individual cannot be made partyinlegal marital dispute involving non-Muslim couple’ (Malay Mail, 1 December 2021) < https://www.malaymail.com/news/malaysia/2021/12/01/federal-court-rules-that- muslim-individual-cannot-be-made-party-in-legal-ma/2025165> accessed 28 July2026
1 [2022] 1 MLJ 778; [2022] 1 MLRA 214.
2 ibid.
3 Article 5(1) of the Federal Constitution provides that ‘No person shall be deprived of his life or personal liberty save in accordance with law’ while Article 8(1) provides that ‘All persons are equal before the law and entitled to the equal protection of the law.’ Article 121(1A) of the Federal Constitution states that civil high courts have no jurisdiction over any matter that falls within the exclusive jurisdiction of the Syariah courts and civil judges are prevented from interfering in Islamic law matters.
4 AJS v JMH (n 1).
5 ibid.
6 The section governs judicial separation, outlining how a petition is presented, the end of the obligation to cohabit and the conditions under which the court may rescind the decree.
7 The section requires a person filing for divorce based on adultery to name the alleged third party as a co-respondent.
8 AJS v JMH (n 1).
9 This section provides that ‘This Act shall not apply to a Muslim or to any person who is marriedunder Islamic law and no marriage of one of the parties which professes the religion of Islamshall be solemnized or registered under this Act; but nothing herein shall be construed to prevent a court before which a petition for divorce has been made under section51 from granting a decree of divorce on the petition of one party to a marriage where the other party has converted to Islam, and such decree shall, notwithstanding any other written law to the contrary, be valid against the party to the marriage whohas so converted to Islam.’
10 AJS v JMH (n 1).
11 ibid.
12 ibid.
13 Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals [2008] 2 MLJ 147, [2008] 2 CLJ 1; Viran a/l Nagapan v Deepa a/p Subramaniam and other appeals [2016] 1 MLJ 585, [2016] 3 CLJ 505; Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545, [2018] 3 CLJ 145.
14 AJS v JMH (n 1).
15 ibid.
16 ibid.
17 The section provides that ‘In the interpretation of a provision of an Act, a construction that wouldpromote the purpose or object underlying the Act (whether that purpose or object is expressly stated inthe Act or not) shall be preferred to a construction that would not promote that purpose or object.’ 18 Siti Marshita binti Mahyut, ‘The Rationality of Law Reform (Marriage and Divorce) Act 1976 to the Sensitivity of the Multi-religious Community in Malaysia’ (2016) 2(2) Journal of Asian and AfricanSocial Science and Humanities <https://www.aarcentre.com/ojs3/index.php/jaash/article/view/64/268>accessed 28 July 2026.
19 AJS v JMH (n 1).
20 ibid.
21 ibid.
22 Duport Steels Ltd v Sir and others [1980] 1 WLR 142.
23 AJS v JMH (n 1).
24 ibid.
25 ibid.
26 ibid.
27 Yusof Mat Isa, ‘Federal Court rules that Muslim individual cannot be made party in legal marital dispute involving non-Muslim couple’ (Malay Mail, 1 December 2021) <https://www.malaymail.com/news/malaysia/2021/12/01/federal-court-rules-that-muslim-individual- cannot-be-made-party-in-legal-ma/2025165> accessed 28 July 2026.
28 AJS v JMH (n 1).
29 ibid.
30 ibid.
31 ibid.
32 ibid.
33 ML Kamra AIR 1992 1072; Durga Parshad AIR 1960 Punjab 341.
34 AJS v JMH (n 1).
35 [2005] 5 MLJ 82.
