Syariah Court procedure: from filing a case to appeal

1Who this page is for

This page is written for people representing themselves in family cases at the Syariah Court: wives claiming maintenance, husbands applying for divorce or for confirmation of a pronouncement, mothers or fathers claiming custody (hadhanah), and family members who accompany them. The parties are allowed to appear and argue their own case without appointing a Syarie lawyer. But the court remains bound by procedure, and a case that is strong on the facts is often delayed or fails simply because the form was wrong, service was not proved or the evidence was not brought.

The Shariah basis is clear. Allah commands that when you judge between people, you judge with justice (Surah an-Nisa' 4:58), and tells the believers to stand firm for justice as witnesses for Allah, even against themselves, their parents or their relatives (Surah an-Nisa' 4:135). The Messenger of Allah ﷺ reminded us that he judged according to what he heard, and that whoever is given something that is not his right because of eloquence in argument is in truth given a piece of the Fire (Sahih Muslim, Kitab al-Aqdiyah, chapter on judging by outward appearance and eloquence in argument). The court decides on the evidence; the trust before Allah remains on the party making the claim.

The law referred to here is the law of the Federal Territories: the Administration of Islamic Law (Federal Territories) Act 1993 [Act 505] for the establishment and jurisdiction of the courts, the Syariah Court Civil Procedure (Federal Territories) Act 1998 [Act 585] for procedure, and the Syariah Court Evidence (Federal Territories) Act 1997 [Act 561] for evidence. Every state has its own Syariah administration, civil procedure and evidence enactments. Section numbers, forms and fees differ; see Procedure by state.

2Three levels of court and where a case begins

In every state and in the Federal Territories, the Syariah Courts are organised in three levels:

• Syariah Subordinate Court at district level. Most everyday family cases begin here.
• Syariah High Court, which hears claims beyond the jurisdictional limit of the subordinate court, certain types of case reserved to it, and appeals from the Syariah Subordinate Court.
• Syariah Appeal Court, the highest court in a state's Syariah system, which hears appeals from decisions of the Syariah High Court.

For the Federal Territories, these courts are established under Act 505 s.40, and the jurisdiction of the Syariah High Court and the Syariah Subordinate Court is set out in s.46 and s.47 of the same Act. The value limit on claims in the subordinate court is also set in that law and has been amended, so do not rely on figures heard from other people. The summary below shows the general pattern only; confirm at your district Syariah court counter before filing.

3Starting a case: summons or application

Act 585 (s.7) sets out two main ways of starting civil proceedings in the Syariah Court:

• Summons, for disputed claims between two parties, for example claims for arrears of maintenance, mutʿah, jointly acquired matrimonial property or hadhanah. The plaintiff files a summons together with a statement of claim setting out the facts and the relief sought, and the defendant is given the opportunity to file a defence.
• Application, for matters that the law requires to be started by application. A clear example is an application for divorce under Act 303 s.47, which must be made in the prescribed form and accompanied by a statutory declaration (iqrar) containing details of the marriage, the children and any previous proceedings.

Which form is correct for your case is determined by the state court rules. The usual steps:

1. Identify the court and district that have jurisdiction.
2. Obtain the forms from the counter or the official website of the state Syariah court.
3. Prepare the statement of claim or affidavit. An affidavit is affirmed before an authorised officer, and its contents must be true; stating something false in an affidavit is an offence.
4. Pay the filing fee and keep the receipt.
5. Receive the sealed copy and the date of the first mention.

e-Syariah. The Department of Syariah Judiciary Malaysia (JKSM) developed the e-Syariah system for managing Syariah court cases, including checking case status and, in courts that offer it, online filing. Service availability and payment methods differ between states; check the official JKSM portal or your state Syariah court's website.

4Service of documents, and if the other party does not attend

A case does not move until the other party has lawfully received the documents. Act 585 recognises personal service, where the documents are delivered into the other party's own hands. If the other party cannot be found or is evading service, the court may allow substituted service, for example posting at the last known address or a newspaper advertisement, but only after the court's permission has first been obtained.

• Who serves. In some courts service is carried out by a bailiff or court officer; elsewhere the filing party is asked to arrange it. Ask when you file.
• Proof of service. Service is proved by an affidavit of service. Record the date, time, place and manner in which the documents were served, and keep the registered post receipt if it was used.
• If the defendant does not attend. Once service has been proved, the court has the power to proceed and decide without them.
• If the plaintiff or applicant does not attend. Your own case may be struck out. If you cannot avoid being absent, inform the court early, with reasons and supporting documents.

For a wife whose husband has disappeared without word, see Abandoned by a husband.

5Sulh: the reconciliation session before trial

The Qur'an states that reconciliation is better (Surah an-Nisa' 4:128) and directs that arbiters (hakam) be appointed from the families of both sides when a breach between husband and wife is feared (Surah an-Nisa' 4:35). Act 585 s.99 allows the parties to hold sulh at any stage of the proceedings, and the Syariah courts conduct sulh sessions according to each state's rules and practice directions.

• The Sulh Officer chairs the session. The officer is not a judge and does not decide who is right; the task is to help the parties reach agreement.
• Both parties usually attend in person, and sulh discussions are usually treated as confidential. Ask the sulh officer about the practice in your state.
• If agreement is reached, a sulh agreement is signed and put before the judge to be recorded as a consent order. From then on it is binding and enforceable in the same way as any other order.
• If sulh fails, the case is returned for mention and trial.

Bring real figures (income, children's expenses, loan instalments) and written proposals, and do not sign anything you do not yet understand.

6Trial and proof

If sulh fails, the case is set down for trial. The basic principle is found in a hadith in Sahih Muslim (Kitab al-Aqdiyah, chapter on the oath being upon the defendant): if people were given simply on the basis of their claims, some would claim the blood and property of others, but the oath is upon the one against whom the claim is made.

Act 561 uses several terms that need to be understood (defined in s.3):

• Bayyinah: evidence that proves a right or interest, and includes qarinah.
• Syahadah: evidence given in court with the words asyhadu (I bear witness) to prove a right. Act 561 distinguishes witnesses qualified to give syahadah from witnesses whose evidence is accepted as bayyinah, and the qualifying conditions are set out in the Act itself.
• Qarinah: a fact connected with another fact in the manner set out in the Act, that is, circumstantial indications supporting a claim. Documents such as bank statements, messages and photographs are produced as documentary evidence.
• Iqrar: an admission by a person, in writing, orally or by gesture, that they have an obligation or liability to another person in respect of a right. An iqrar binds the person who makes it, so be careful about what you admit in court.

In practice: list your witnesses early and make sure they attend; bring original documents with copies; be ready for examination-in-chief, cross-examination by the other party and re-examination. The Qur'an forbids witnesses to refuse when they are called (Surah al-Baqarah 2:282) and forbids concealing testimony (Surah al-Baqarah 2:283). Answer questions briefly and truthfully; if you do not know or do not remember, say so.

7Judgment, orders, enforcement and appeal

The judge gives the decision on the day of the trial or on another date. After that, apply for a sealed copy of the order, and if you may appeal, also apply for the grounds of judgment. Check every detail of the order: names, amounts, the date payments start, and conditions for visiting the children.

Orders are binding. If the other party does not comply, do not take matters into your own hands; go back to court for enforcement. Act 585 provides several methods of executing judgments, and Act 303 s.132 gives the court power, where a person wilfully fails to comply with a payment order, to order the arrears to be levied as if they were a fine or to imprison the defaulting party. The details, including the role of the JKSM Family Support Division (BSK), are on the Maintenance enforcement page. If circumstances change, for example loss of employment, the party bound by a maintenance order must apply for a variation under s.66, not stop paying.

Appeals. Decisions of the Syariah Subordinate Court are appealed to the Syariah High Court, and decisions of the Syariah High Court are appealed to the Syariah Appeal Court. For the Federal Territories, Act 585 requires the notice of appeal to be filed within fourteen days of the date of the decision. State civil procedure enactments usually set a similar period, but check your state's text and do not wait until the last day. Applying for an extension of time requires strong reasons and approval is not guaranteed. In general, filing an appeal does not of itself suspend the order; a party who wants the order suspended must apply for a stay of execution.

Decisions of the Syariah Court are not appealed to the civil courts. Article 121(1A) of the Federal Constitution states that the civil courts have no jurisdiction in respect of matters within the jurisdiction of the Syariah Courts.

8Legal aid, costs and courtroom etiquette

Legal aid. The Legal Aid Department (JBG), formerly known as the Legal Aid Bureau, provides legal services and representation in Syariah cases for applicants who meet the income eligibility test under the Legal Aid Act 1971 [Act 26]. The income limits and contributions charged are reviewed from time to time; check the official JBG website. Qualified Syarie lawyers are registered with the state Islamic religious council, and lists of them can be obtained from that council or from JAIN. Some voluntary women's and family organisations also run legal clinics; choose one that is well known.

Costs. Besides court fees, your budget includes lawyer's fees (if any, agreed in writing), copies of documents, travel, time off work and witness expenses. The court also has the power to order one party to pay the other party's costs.

Sources & references