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TUTORIAL 3: ADAT AND CUSTOMARY LAWSQUESTION 1Adat Perpatih is matrilineal, whereas Adat Temenggung is patrilineal. Explain. ( marks)EXPLAIN WHAT IS MATRILINEAL: A matriline is a line of descent from a female ancestor to a descendant (of either sex) in which the individuals in all intervening generat...

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TUTORIAL 3: ADAT AND CUSTOMARY LAWS QUESTION 1 Adat Perpatih is matrilineal, whereas Adat Temenggung is patrilineal. Explain. (6 marks) EXPLAIN WHAT IS MATRILINEAL: A matriline is a line of descent from a female ancestor to a descendant (of either sex) in which the individuals in all intervening generations are mothers – in other words, a "mother line”. EXPLAIN PATRILINEAL: Customary law is a regular pattern of social behaviour that has been accepted by a given society as binding upon themselves. Article 160 of Federal Constitution also define law as customs and usages having force of law. In Malaysia which consists of multiracial citizen, there are many customary law applied such as Malay Adat, Chinese Custom, Indian Custom, and lastly Native Custom. Adat Perpatih and Adat Temenggung are the foundation of Malay customary laws. Adat Perpatih is developed as a matrilineal kinship structure from early time by the Minangkabau people in Sumatra and Negeri Sembilan.

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Democratic: exist in a peasant society. Passed down orally from generation to generation. Written digest: Undang2 Keturunan drpd Minangkabay tutun ka Negri Perak Several structures: family structure, sub-tribes, tribal, territorials and royalty. Criminal justice: • tried by family members • Restore and give lessons Primary concerned with land holding including inheritance, matrimonial causes ie. marriage, divorce and includes adoption. It also covers matters concerning the state which includes succession in title, or lineage and election of traditional chiefs and the Yang Di Pertuan Besar. The hierarchy of this Adat Perpatih is from Yam Tuan, Undang, Lembaga, Buapak and lastly Perut.

Meanwhile, Malay Adat of Adat Temenggung is an autocratic patriarchal law with an Islamic socio political system as well as the mixture of Islamic Law and also the Hindu Adat. The digest contain in this Adat Temenggung were Undang-undang Melaka, Undang-Undang Laut Melaka and 99 Laws of Perak.

(b) With reference to relevant authorities discuss the application of Adat Perpatih and Adat Temenggung in Malaysia. (14 marks) Both Adat Perpatih and Adat Temenggung are relevant to this day in fields of inheritance, lands and lineage. Article 160 Federal Constitution defines law as includes ‘customs and usages having force of law’, thus distinguished between customs that have legal consequences with does that not. This means that customary law is still recognized as law even until today which extent to Adat Perpatih and Adat Temenggung. HISTORICAL WHERE THE ADAT CAME FROM? Adat Perpatih is practised in Negeri Sembilan and Naning. Primary concerned with land holding including inheritance, matrimonial, more importantly, distribution of property, administrative structure, land matters. Adat Perpatih is used in ancestral land matter in Negeri Sembilan. Ancestral land is a land that can only be inherited by female descendants of a deceased holder. There is a special provision relating to customary land in Negeri Sembilan in Malacca, and Malay holdings in Terengganu under Article 90 of the FC that states nothing in the Constitution shall affect the validity of any restrictions imposed by law on the transfer or lease of customary land in Negeri Sembilan or Malacca. Which means the customary land are protected under this Article. Under Adat Perpatih, ancestral land are non transferable to a person who is not a member of the owner’s clan. It is absolutely forbidden to transfer ancestral land to a person who is not in the same clan as the deceased despite being a female. This can be seen in the case of Munah v Isam [1936]. In this case, the court ordered ancestral land to be returned to the plaintiff due to the fact that the ancestral land had been transferred outside the clan conditional upon payment of sum of money. CUSTOMARY LAND ENACTMENT: MUST BE ENDORSED WITH A STATEMENT IT IS A CUSTOMARY LAND APPOINTMENT OF 4 UNDANG. CASE DATO’ UNDANG HUKUM KANUN MELAKA, WIDELY INFLUENCED BY SHARIA LAW. APPOINTMENT SULTAN: FIRST SON CROWN PRINCE. Adat Temenggung is applied most in administration of states particularly in hereditary succession of Malay Rulers as head of state which has been a practice since the Malacca Sultanate. For Muslims, hereditary lands are distributed according to Adat Temenggung which, in turn, is based on Islamic teachings in the field of Faraid. In light of Harta Sepencarian or Jointly acquired Property, it must be distributed according to Adat Temenggung. In the case of Boto Bt Taha v Jaafar B Muhamed [1985] where the plaintiff sought one-half of the properties gained while she was married with the Defendant. The court held that the properties in

question must be distributed 1/3 to the plaintiff and 2/3 to the defendant as it was proven that the plaintiff assisted defendant in conducting his business. Such decision was rationalized by the practice of Islam in distribution of land contained in Adat Temenggung. As a conclusion, customary laws are not only recognized as law under Article 90 and 160(2) of the Federal Constitution but it also incorporated under states constitutions and legislations to safeguard customary practices of the Malay specifically in respect of Adat Perpatih and Temenggung. QUESTION 2 (a) Explain the types of properties under Adat Perpatih. (6 marks) There are three types of properties under Adat Pepatih which are ancestral property (harta pesaka), harta sepencarian and carian bujang. DEFINE THE PROPERTIES Firstly, harta pesaka is an ancestral land which can only be inherited by female descendants of a deceased holder. The land is also nontransferable to non-member of the owner’s clan. The property is therefore distributed equally to direct female descendants. For instance, The rule applies only to the proper share of the proprietor, so that if the deceased was registered as the holder of all land derived from her mother and left one sister, the sister would be entitled to half, and the daughters of the deceased the other half in equal shares. This can be seen in the case of Munah v Isam where the court ordered the return of tanah pesaka which had been transferred outside the clan conditional upon the payment of sum of money. Secondly is harta sepencarian, the property which is jointly acquired by a couple during the marriage. It can be seen in the case of Hasmah bt Omar v Abdul Jalil, in this case, the divorced wife claimed for a half a share of her husband’s land and certain property according to Adat Pepatih because the property was their charian-laki-bini. It was ruled by the court that upon the divorce, the harta sepencarian is divided equally between wife and husband. The third is, carian bujang which is property acquired by either husband or wife before marriage. The carian bujang can be divided into two which are harta dapatan and harta pembawa. Moreover, harta dapatan is ancestral property brought to the marriage by the wife and the property will revert to her on divorce. On the other hand, harta pembawa is inherited

non-ancestral property brought by husband and this property will revert to him on divorce. (b) Customary law is one of the source of Malaysian law. With reference to legislation and decided cases, explain the application of Adat Perpatih and Adat Temenggung in Malaysia. (14 marks) * refer to Question 1(b)

QUESTION 3 Briefly discuss the Chinese and Hindu customary practices before the enactment of the Law Reform (Marriage and Divorce) Act 1976. Explain the effects of the statute on the two customary law. (20 marks) During the colonial era, internal affairs of the Chinese community was left in the hand of the ‘Kapitan China’. However, 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 also resulted to the restriction on the operation of Chinese customs. In Strait Settlements, Chinese customary law has received a basis for its application through the use of private law principles. The development of Hindu law in Malaysia was a continuation and adaptation of Hindu law in India. The Indians are mainly employed in plantation industries, brought along their Hindu law and precedents were freely accepted in the local courts. The India customary law were judicially recognised in matters such as marriages, divorce and inheritance. Previously, the court acknowledged the existence of a ceremony in a Chinese customary marriage to confer the intention of the parties to get married. In the case of Re Estate of Chong Swee Lin; Kam Soh Keh v Chan Kok Leong& Ors [1997], the HC of KL noted that n most cases of Chinese customary marriages the ceremonies which were regarded as essential at the time. Other than that, polygamous marriage is practiced among the Chinese before the enactment of the Law Reform (Marriage and Divorce) Act 1976. This can be seen in the case of Choo Ang Chee v Neo Chan Neo & Ors [1908], the court held that the Chinese marriages under customary law were polygamous. Moreover, the practice pertaining to the matrimonial such as adoption of infancy. The Chinese law of infancy was recognised by the court as stated in the case of Teh Suan v Ang Thuan & Anor (1922). Moreover, in the case of Yap Tham Thai @ Yap Fook Siong v Low Hup Neo (1922), the court held that the estate of an intestate Chinese dying domicile in Selangor should be distributed according to the principles set out Perak Order in Council by local customs. The Hindu customary law has also been recognised by the courts in marriage matters as in the case of Rathee v Shanmugam [1981], where the parties who were Hindus were married at the Registry of Marriage. It was agreed by the parties that cohabition was to commence only after the celebration of the marriage according to Hindu religion. In regards with the division of property in marriage, this was practiced among the Indian community before the enactment of the Law Reform (Marriage and Divorce) Act 1976 is. In the case of Pooto v

Valee Uta Thaven & Anor, 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, under the Hindu customary law which means a wife’s ownership of her separate property was applied. Polygamous nature of Hindu customary marriages were judicially recognised too in this case. Other than that, the marriage brokerage contract was also practiced as in the case of Karpen Tandil v Karpen, which the issue arose was whether the marriage brokerage contract was valid at common law as being contrary to public policy, though valid in Hindu law. The Law Reform (Marriage & Divorce) Act 1976 has come into existence for the purpose of standardising and regulating matters concerning marriages and divorce among Chinese and Indians. There are few effects of the Act inter alia, the abolition of polygamous marriage, the registration of marriages, solemnisation of marriages and grounds for divorce. HINDU NO LIMIT FOR CHILD MARRIAGE NO DIVORCE The first effect is the abolition of polygamous marriage. In accordance with Section 5 of Law Reform (Marriage & Divorce) Act 1976, these two provisions introduce monogamy into the community though the religion, customs and usage allow polygamy. Polygamous marriage is void as stated in the Section 6 of Law Reform (Marriage & Divorce) Act 1976. According to Section 7 of Law Reform (Marriage & Divorce) Act 1976, When someone who is lawfully married and decides to contract further marriage, he is said to commit the offence of bigamy which if found guilty will be imprisoned for 7 years. Moving to the second effect is the registration of marriages. According to Section 27 of Law Reform (Marriage & Divorce) Act 1976, it provides registration of marriages which removes any doubts regarding the status of cohabitees and children of such unions. In prior to 1 March 1982, there is no such requirement to register the marriage. In Section 33 of Law Reform (Marriage & Divorce) Act 1976, it provides for voluntary registration and nothing in this act can validate or invalidate any marriages for having or not having been registered as stated in section 34 of Law Reform (Marriage & Divorce) Act 1976. Thus, the act does not affect the validity of marriages according to customs prior to the effective date of 1 March 1982. In the case of Leong Wee Shing v Chai Siew Yin, the marriage is not registered at Registry of Marriages but there was a proper solemnisation, thus the marriage is valid. However, it was overruled by Court of Appeal as customary marriages after 1 March 1982 have to be registered in order to be recognised by the law.

Next effect is regarding to the solemnisation of marriages. As stated under Section 9 of Law Reform (Marriage & Divorce) Act 1976, it provides marriages must be solemnised by the Registrar. In accordance with Section 22(1), there are few places stated which are church, temple, clan association places which are permitted by the religion or custom or usage of the parties. These institutions may appoint a registrar to issue a marriage or certificate or the couples may marry at the Government Marriages Registry Office then go through another customary ceremony. According to Section 22(1)(c) & Section 24 of Law Reform (Marriage & Divorce) Act 1976, the solemnisation of a religious or customary marriages may be affected on 2 conditions which are the person solemnising the marriage must be religious officer or Assistant Registrar and the statutory declaration is submitted to the Assistant Registrar. AGE: CUSTOMARY: NO RESTICTION NOW: 18 The last effect is regarding the grounds of divorce. Under Section 51 of Law Reform (Marriage & Divorce) Act 1976, it is regarding dissolution on the ground of conversion to Islam. Where one party converts to Islam, while the other has not converted may petition for divorce. But the petition shall be presented before the expiration of the period of 3 months after the conversion. Section 52 of Law Reform (Marriage & Divorce) Act 1976, explains the ground on mutual consent. This means that the husband and wife mutually agree and freely consent to the dissolution of marriages. The court shall make a decree of divorce and proper provision is made for the wide, the support and custody of the children. In pursuant to Section 53 of Law Reform (Marriage & Divorce) Act 1976, the ground is breakdown of marriage. Either party as the marriage has irretrievably broken down such as the wife is being abused by the husband. The court can reasonably inquire into the facts alleged as causing/ leading to the breakdown of the marriage and make a decree for its dissolution. BEFORE THIS NO DIVORCE

In conclusion, Law Reform (Marriage & Divorce) Act 1976 has been proven to be effective in regulating and standardising matters to provide uniformity of the law and this act has casted so much doubt when it comes to the problems of matrimonial matters.

QUESTION 4 Rishi and Sharon, an Indian couple from Malaysia migrated to England in 1980. They have two children, Vimala and Danish. Last year, Vimala met Ramesh, a Malaysian student in London and they fall in love. Vimala has recently agreed to marry Ramesh and the marriage ceremony will be held in Malaysia. She also agreed to live in Malaysia. Vimala comes to know that the Indian customary law was part of the Malaysian law. However, she was also informed that the Law Reform (Marriage and Divorce) Act 1976 has made significant changes to the application of the Indian customary law in Malaysia. Advise Vimala on the effects of the Law Reform (Marriage and Divorce) Act 1976 on the Indian customary law. (20 marks) SAME AS EFFECTS OF STATUTE IN QUESTION 3 - NO PROBLEM = NO ILAC There are several changes that affected Indians customary law concerning marriage after the enactment of Law Reform (Marriage and Divorce) Act 1976, where the Chinese and Indian customary law regarding marriage were regulated and standardized. Firstly, Vimala cannot engage in polygamous marriages because it has been abolished. Section 5 of Law Reform (Marriage and Divorce) Act 1976, introduces monogamy marriages in the community and polygamous marriages that are practiced by religion and custom is void according to Section 6. Section 7 also forbids a person who is already lawfully married from contracting another marriage during the continuance of the existing marriage. Doing so is committing bigamy which is an offence and if found guilty will be imprisoned for 7 years. Indians cannot practice polygamous marriage anymore after the enactment of this act. However, Section 4(1) allows the continued existence of polygamous marriages that took place before 1 March 1982. In Six Widow’s case (Re the estate of Choo Eng Choon, deceased; Choo Ang Chee v Neo Chan Neo, Mah Inm Neo and Neo Soo Neo (1908), Supreme Court had to decide on whether polygamy marriages of a Chinese man prior to March1, 1982 was recognised. The Supreme Court held it is valid so long as there is evidence of the marriage following the customs. Next, Vimala must register her marriage. Section 27 provides marriages must be registered. Before 1 March 1982, there is no such requirement to register marriage. Couples may continue to marry according to their customs but the marriage must be solemnized by a Registrar according to Part III of the Act. In

the case of Leong Wee Shing v Chai Siew Yin, Federal court held that customary marriages that take place after 1 March 1982 have to be registered in order to be recognised by the law. However under section 34, nothing in the Act shall be interpreted to declare valid or invalid any marriages just because it has not been registered. Therefore, all customary marriages that were not registered before 1 March 1982 are valid as long as the marriage is valid according to customary law.

After that, Vimala's marriage must be solemnized by a Registrar. according to section 29, all marriages must be solemnized by Registrar. Before 1 March 1982, marriages can just be solemnized by priest according to custom. However, Section 22(1)(a) provides that marriage shall be solemnized in the Registrar’s office from 6am to 7pm. Section 22(1)(c) solemnization can also be at any church, temple or any place permitted by customs and religion but must follow Section 24 that provides two conditions. First, the person solemnizing the marriage must be a religious officer or person appointed as an Assistant Registrar by the Minister. Second, the couple must submit a statutory declaration to the Assistant Registrar so he could issue a marriage certificate. Otherwise, couples may marry at the Government Marriages Registry Office first then can go through another customary ceremony. Customary ceremony alone is not enough to make a marriage valid by law after 1 March 1982....