World Class Higher Education: USIM LAW Undergraduate 5

World Class Higher Education: USIM LAW Undergraduate 5

i. Does the civil court have the jurisdiction to preside over claims for Harta Sepencarian among muslims?
(11 marks)
Answer scheme
According to Professor Ahmad Ibrahim (1 mark)
claims relating to Harta Sepencarian among muslims (1 mark)
can now be brought only (1 mark)
in the Shariah Court (1 mark)
because of the amendment to (1 mark)
Article 121 of the Federal Constitution (1 mark)
Which provides to the effect that (1 mark)
the civil courts (1 mark)
shall have No jurisdiction (1 mark)
In any matter which falls (1 mark)
within the jurisdiction of the Shariah Court. (1 mark).


Sample answer by USIM LAW undergraduate 1050612

Yes, the civil court have the jurisdiction to preside over claims for Harta Sepencarian among Muslims. It has been proved by two leading cases which the civil court has preside over claims for Harta Sepencarian. The case is Roberts @ Kamarulzaman v Umi Khatthum and Boto v Jaafar.

In Roberts @ Kamarulzaman v Umi Khalthum, the spouses had bought a matrimonial home for RM50,000. The husband contribute RM40,000 and the wife RM10,000. The house was named under the wife. After the dissolution of marriage or divorce, the husband apply that the house to be divided equally among them. The wife was not agree to this claims. The court held that the asset must be divided equally among them.
In Boto v Jaafar, the husband and wife was marry in 1966. During the subsistence of marriage, they was bought a house, a piece of land, four fishing boats and one fish stall. The husband run a fishing business. After the divorce, the wife was claim the Harta Sepencarian.

Salleh Abas CJ held that the assets must be divided among them although the wife was not contribute to bought that assets. The wife was give an indirect contribution as she responsible to keep the peace of mind of to her husband to run the fishing business with proper sense. The court held that one-third of the assets was divide to the plaintiff and two-third for the defendant. The one-third division is for the indirectly contribution by the plaintiff to support the plaintiff’s fishing business.
[Marks earned: Zero (0) out of Eleven(11)]