On 9.2.2024, the Federal Court in the case of Robinder Singh Jaj Bijir Singh v Jasminder Kaur Bhajan Singh [2024] 2 MLJ 126; [2024] 3 CLJ 647 ruled that the cause papers for matrimonial proceedings, including petitions, interlocutory applications and associated affidavits, filed under the Law Reform (Marriage & Divorce) Act 1976 and the Divorce and Matrimonial Proceedings Rules 1980, can be filed solely in English without an accompanying translation in the National Language.
In Malaysia, marriage and divorce matters of non-Muslims are governed by the Law Reform (Marriage and Divorce) Act 1976. This Act does not apply to Muslims and the natives of Sabah & Sarawak.
BACKGROUND FACTS
The marriage between the parties, the Appellant (Husband) and Respondent (Wife) had irretrievably broken down.
On 7.1.2022, the Respondent filed an ex-parte application in the High Court for interim sole custody, care and control of their son (“Enclosure 6”). On 24.1.2022, the High Court granted certain orders in Enclosure 6. However, the order lapsed after 21 days as it was not served on the Appellant. On 27.1.2022, the Respondent filed another application which was similar to Enclosure 6.
On 24.3.2022, the Appellant filed an application to set aside the ex-parte order granted by the High Court on 24.1.2022 (“Enclosure 20”). Enclosure 20 was filed in the English Language without an accompanying translation in the National Language.
On 18.4.2022, the Appellant filed an application for the interim guardianship, custody, care, control and access. The parties subsequently recorded a consent order.
Thereafter, the Appellant requested for Enclosure 20 to be heard, which the Respondent also agreed to as the only matter outstanding was whether damages ought to be granted.
HIGH COURT
The High Court dismissed Enclosure 20 based on the following grounds:
– The Appellant failed to file the translation for Enclosure 20 within the time ordered.
– The Appellant failed to comply with Order 92 Rules 1(1) and (4) of the Rules of Court 2012 (“ROC 2012”) which requires a translation of the documents in the National Language to be filed within two weeks or within such extended time as allowed by the Court.
– The unavailability of a translation of the DMP Rules 1980 into the National Language is not a valid reason to not file a translation of Enclosure 20 and the related cause papers.
COURT OF APPEAL
The Court of Appeal upheld the decision of the High Court and held that Registrar’s Circular No. 5 of 1990 (“Registrar’s Circular”) is administrative in nature and cannot possibly prevail over the language requirement in Order 92 Rules 1(1) and (4) of ROC 2012.
ISSUES BEFORE THE FEDERAL COURT
The Federal Court granted leave to appeal in relation to the following questions of law:
1) Whether petitions for judicial separation or divorce (matrimonial proceedings) filed pursuant to the provisions of the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”) and Divorce and Matrimonial Proceedings Rules (“DMP Rules 1980”) may be filed in the English Language only;
2) if so, whether all other cause papers filed in the matrimonial proceedings may be filed in the English Language only; and
3) if the answers to either one or both of the questions above are in the negative, whether the filing of the documents in English only is an irregularity that can be cured with the necessary directions by the Court that the said cause papers be filed in Bahasa Malaysia.
ANALYSIS AND DETERMINATION OF THE FEDERAL COURT
The Federal Court answered the first two questions in the affirmative, leaving the third question unnecessary for determination.
(1) The Registrar’s Circular Remains Valid
Section 2 of the National Language Act 1963/67 (Revised 1971) (“NLA 1971”) provides that the National Language shall be used for official purposes “Save as provided in this Act and subject to the safeguards contained in Article 152(1) of the Constitution relating to any other language and the language of any other community in Malaysia”.
Section 8 of the NLA 1971 (as amended vide Act A765/1990 with effect from 30.3.1990) permitted the continued use of English for proceedings in court. To facilitate the amendment to Section 8 of NLA 1971, the Chief Judge of Malaya issued Practice Direction No.2 of 1990 (“PD 2/1990”), whereby the substance of PD 2/1990 was substantially reflected in the amended Section 8.
Shortly after the issuance of PD 2/1990, the Registrar’s Circular No. 5 of 1990 (“Registrar’s Circular”) was issued, which allows the cause papers relating to divorce and matrimonial proceedings, insolvency and winding up proceedings to be filed in English until such time as the relevant rules are translated into the National Language and the translations are gazetted.
In Circular No. 153 of 2019 captioned “Filing of Documents in English for Family Law Matters” dated 6.8.2019, the Managing Judge of the High Court in Kuala Lumpur confirmed that the Registrar’s Circular remains valid, as far as matrimonial proceedings are concerned.
The Registrar’s Circular is still in effect today as the DMP Rules 1980, relevant to this appeal, have yet to be translated and gazetted.
(2) Order 92 of ROC 2012 Does Not Apply to Matrimonial Proceedings under LRA 1976
The High Court Judge dismissed Enclosure 20 as there was no translation of these cause papers into the National Language. The High Court relied on Order 92 Rule 1(1) of the Rules of Court 2012 (“ROC 2012”) which stipulates that “any document required for use in pursuance of these Rules shall be in the national language”.
However, Order 1 Rule 2(2) of ROC 2012 provides that “these Rules [ROC 2012] will not have any effect in or to those proceedings where separate rules have already been made or may be made under written law specifically for the purpose of such proceedings”.
Further, Order 94 Rule 2(2) of ROC 2012 provides that in the event there is any inconsistency between any of the rules made under the specific written law in Appendix C and the ROC 2012, the former shall prevail. Matrimonial proceedings under LRA 1976 are one of the exempted written laws set out in item 5 of Appendix C.
Therefore, ROC 2012 and in particular Order 92 does not apply to the matrimonial proceedings in this case.
CONCLUSION
The Federal Court allowed the appeal and set aside the decisions of the High Court and Court of Appeal.
The Federal Court’s ruling resolved the lack of uniformity of practice in matrimonial proceedings. Prior to this decision, the High Court in Kuala Lumpur and Penang are said to accept cause papers for matrimonial proceedings in English while the High Court in Malacca has rejected cause papers that are not translated to the National Language.
The position of the law on this issue is now settled – the cause papers for matrimonial proceedings under the LRA 1976 may be filed in English only, until the DMP Rules 1980 are officially translated and gazetted.
About the authors
Associate
Dispute Resolution
Halim Hong & Quek
Pupil-in-Chambers
Dispute Resolution
Halim Hong & Quek