Malaysian Legal System

LAW 434

WEEK 4

CURTOMARY LAW
Definition:

• A regular pattern of social behaviour accepted by a given

society as binding upon itself. It prescribed behaviour
that has been found to be beneficial as a means of
generating harmonious interpersonel relations and to
solve conflicts so that a cohesive society is maintained.

• Article 160 Federal Constitution defines law as includes

‘customs and usages having force of law’, thus
distinguished between customs that have legal
consequences and those that do not.
• Customs are proved through repeated acts practiced over a long
time, leading to the conclusion that by common consent, they
have become the accepted norm, or the law of the place, to the
exclusion of ordinary law.

Sources of customary law:

• Malay adat - Adat Perpatih
- Adat Temenggung
• Chinese customs
• Indian customs
• Native customs
Adat Perpatih
• Democratic matriarchal law. Practiced in Negeri Sembilan
and part of Melaka (Naning).
• Digests found - A digest of customary law from Sg Ujung
A Minangkabau digest from Kuala Pilah
A Minangkabau digest from Perak

These digest contain tribal sayings that have been

handed down from generations to generations as much
of the adat is contained in oral tradition.
• Primary concerned with land holding including inheritance,
matrimonial causes i.e.. marriage, divorce and includes adoption.

• More important, it covers matters concerning the state which

includes succession in title, or lineage and election of traditional
chiefs and the Yang Di Pertuan Besar.

• Administrative hierarchy:
Yam Tuan (Yang DiPertuan Besar)
Undang
Lembaga
Buapak
Perut
Adat Temenggung
An autocratic patriarchal law. It has identified itself with
Islamic socio political system. It is a mixture of Islamic law
and Hindu adat.

Digests found - Ninety-nine laws of Perak

Undang2 Melaka (Risalat Hukum Kanun)
Undang2 Laut Melaka
Digest of Selangor Laws
Digest of Kedah Laws
Chinese customary law
• British colonial era, internal affairs of the Chinese
community was left in the hand of the ‘Kapitan China’.

• When the British rule became more established, it started

to exercise greater control over the Chinese customs. The
process began to change from rule by Chinese customs
administered by Chinese headman to rule by English
criminal law side by side with Chinese customs
administered by English judges, then to the rule by law of
England taking into account of Chinese customs. This
resulted to the restriction on the operation of Chinese
custom.
• In SS, in addition to the RCJ, Chinese customary law has
received a basis for its application through the use of
private international law principles . This mainly in cases
involving polygamous marriages, adoption and
legitimation. The courts in SS have recognised Chinese
law and customs on the ground of ‘natural justice’.

• For Malay States, there was a local legislation as regards

to Chinese customs. This is found in Perak Order in
Council No23 0f 1893 as amended by Order in Council
No26 of 1895. This laid down the substance of Chinese
law in the State of Perak as to Marriage, adoption,
inheritance and intestacy.
• In Yap Tham Thai @ Yap Fook Siong v. Low Hup Neo
(1922) 1 FMSLR 383, the court held that the estate of
an intestate Chinese dying domicile in Selangor should
be distributed according to the principles set out in
Perak Order in Council as modified by local custom.

• In Teh Suan v Ang Thuan and Anor (1922)2 FMSLR 43

the Court approved the Order as stating the Chinese
law of infancy.
Indian customary law
• Development of Hindu law in Malaysia was a continuation and
adaptation of Hindu law in India. The Indians mainly employed in
plantation industries, brought along their Hindu law, and precedents
were freely accepted in the local courts.
• The India Hindu customary law were judicially recognised in matters
such as marriages, divorce and inheritance.

• In Pooto v. Valee Uta Thaven and Anor (1883) Ky 622, the

court assumed the relevance of Hindu law without argument.
This case involved the right of a Hindu wife to hold realty as
separate property during coverture. Evidence was solely
upon the basis of this evidence that the decision rested.
• In Karpen Tandil v. Karpen (1895)3 SSLR 58 the question
was the validity of a marriage contract which was,
though valid at Hindu law, was invalid at common law as
being contrary to public policy. The court decided that
Hindu law must be recognised on the grounds of
Equity and natural justice.

However, the Law Reform (Marriage & Divorce) Act 1976

has made significant changes to the non-Muslim Chinese
and Indians in relation to their customary laws on
marriages and divorce and has provided for the first time a
uniform law on the subjects.
Law Reform (Marriage & Divorce) Act 1976
The Act regulates and standardize matters concerning
marriages and divorce among the Chinese and Indians.

The effects of the Act inter alia:

1. Abolish polygamous marriages.
• S.5 and s.6 introduced monogamy into the community,
which by religion, custom and usage had practiced
polygamous marriage.
• It forbids any person who is already lawfully married
from contracting further marriage during the
continuance of the existing marriage. Doing so is
committing the offence of bigamy which if found guilty
will be imprisoned for 7 years.
2. Registration of marriages
• s.33 and s.34 provides for registration of marriages. This
removes any doubts regarding the status of cohabitees
and children of such unions.

• Before 1 March 1982 there is no such requirement.

Although s.33 provides for voluntary registration, under
s.34 nothing in the Act shall be construed to render valid
or invalid any marriages just because of its having been or
not having been registered.

Therefore it validated all customary marriages that were

not registered before 1 March 1982 as long as the
marriage is valid according to the customary law.
• Leong Wee Shing v. Chai Siew Yin [2000] 5 MLJ
Issue: was whether the Plaintiff’s marriage is void for
non-registration at the Registry Of Marriages.

Held: s.34 had been satisfied. There was a proper tea

ceremony, there was an act of marriages, it had
been properly solemnized. Therefore the non-
registration did not invalidated the marriages.

• Thus, the Act does not affect the validity of any

marriages conducted according to customs prior to the
effective date of 1 March 1982.
s. 72 recognize marriages falling outside the Act but
within the CL.
• The Act does not affect customary form of marriages. Couples
may continue to marry according to customary rites,
PROVIDED the marriage is solemnize by a Registrar according
to Part III of the Act.

4. Solemnization of marriages
• s. 22(1)(c ) provides that solemnization of a religious or
customary marriages may be affected on two conditions:
- the person solemnizing the marriage must be a
religious officer or person appointed as an Assistant
Registrar.

- the couple must submit a statutory declaration to the

Assistant Registrar.
• Marriages are solemnized in church @ temple @ clan
association premises as may be permitted by the religion
@ custom @ usage of the parties.

• A Registrar may be appointed within these institutions to

solemnize the marriages and he would issue a marriage
certificate. Otherwise the couple may marry at the
Government Marriages Registry Office ant then go
through another customary ceremony.

• Customary ceremony alone, although recognized and

acceptable to the family, are not sufficient to clothe a
marriage with legal validity after 1 March 1982
5. Grounds for divorce:

• s.51 Dissolution on ground of conversion to Islam:

Where one party to a marriage has converted to Islam,

the other party who has not so converted may petition
for divorce:
Provided that no petition under this section shall be
presented before the expiration of the period of three
months from the date of the conversion.
• s.52 Dissolution by mutual consent:

If husband and wife mutually agree that their marriage

should be dissolved they may after the expiration of two
years from the date of their marriage present a joint
petition accordingly and the court may, if it thinks fit, make
a decree of divorce on being satisfied that both parties
freely consent, and that proper provision is made for the
wife and for the support, care and custody of the children,
if any, of the marriage, and may attach such conditions to
the decree of divorce as it thinks fit.
• s.53 Breakdown of marriage to be sole ground for
divorce

Either party to a marriage may petition for a divorce on

the ground that the marriage has irretrievably broken
down.

The court hearing such petition shall, so far as it

reasonably can, inquire into the facts alleged as causing
or leading to the breakdown of the marriage and, if
satisfied that the circumstances make it just and
reasonable to do so, make a decree for its dissolution.
• The Act does not apply to Natives of Sabah and Sarawak and
the Orang Asli. Matters relating to marriages and divorce are
governed by native customary law @ aboriginal customs
unless they elect to marry under this Act.

Nancy Kual v. Ho Thau On [1994]1 MLJ 545

Fact: Marriage was contracted both under Chinese and
native customary rites between a Chinese man and
a native lady, but not registered under the Act. The
Chinese husband claim the marriage was a nullity.
Held: Chinese customary law does no longer apply.
However the court preceded on the basis of the
Native Courts Enactment 1992 and applied the
native customary law. The marriage was valid, having
complied with the laws of the country.
Native customary laws of Sabah and Sarawak

In East Malaysia , the bulk of the native laws has been collected and
codified.

• In Sabah, the first administrative codes dealt with native customary laws
is the Wooley Code. G.C. Wooley in a series of Native Affairs Bulletin,
known as Native Affairs Bulletin N0 1-7, set out in detail certain
features of the customary law of the Dusun, Muruts and Kwijans:

- Native Affairs Bulletin No. 1, Adat Timogun (1936)

- Native Affairs Bulletin No. 2, Adat Tuaran (1936)
- Native Affairs Bulletin No. 3, Adat Murut
- Native Affairs Bulletin No. 4, Adat Dusun (1937)
- Native Affairs Bulletin No. 5, Adat Dusun
- Native Affairs Bulletin No. 6, Adat Kwijan
- Native Affairs Bulletin No. 7, Dusun Custom in Putatan
District

The Bulletins vary in terms of coverage, but in general, the

content dealt with common act of subjects i.e.. Inheritance,
marriages, divorce and compensation.
• In Sarawak, several codifications existed under the Native
Customary Law Ordinance which was enacted in 1955 to
provide for the amendment of Codes of Native
Customary Law

• In 1977, the Majlis Adat Istiadat Sarawak was

established and out-of-date adats has been discarded.
At present, the adat in force are set out in the form of
subsidiary legislation under the Native Customary Laws
Ordinance, in the form of orders giving effects to the
codification of native customary laws.
• Among them are :
- the Orang Ulu Customary Codes of fine ( Belaga sub-
District) Order
- the Orang Ulu Customary Codes of fine ( 4 th Division)
Order
- the Sea Dayak (Iban) Code of Fine 1952 (Tusun
Tunggu)

Natives law of Sabah and Sarawak are administered by

Native Courts established by their respective Native Courts
Ordinance i.e.. Native Courts Ordinance 1953 of Sabah and
Native Courts Ordinance 1955 of Sarawak.
THE END....