394 Boto' Binti Taha v.

Jaafar Bin Muhamed [1983] 2 MLRH

BOTO' BINTI TAHA

v.
JAAFAR BIN MUHAMED

High Court, Kuala Trengganu

Salleh Abas CJ Malaya,
[Civil Suit No 95 Of 1981]
12 February 1983

JUDGMENT
Salleh Abas CJ (Malaya)
In this case the plaintiff sued her former husband for one-half share in properties
acquired during the coverture of their marriage.
The parties were married in Dungun on November 18, 1966 and the marriage was
dissolved on June 16, 1974, i.e. about eight years later. At the time of the marriage
the plaintiff who was then 24 years old was employed as a coffee-shop assistant in
a restaurant in Dungun and earned an income of $80.00 per month, inclusive of
food and accommodation. The defendant who was slightly older was carrying on a
fish monger business at Dungun market. For their matrimonial home the
defendant bought a 432/648 undivided share in a piece of land at Kuala Ibai and
built on it a house No. 119 where the parties lived together until they were
divorced but the plaintiff still continued to live in it.
After the marriage his business flourished and he expanded his business activities
to outstation places, such as Kuala Trengganu, Kelantan, Kuantan, Kuala Lumpur
and even Singapore. At the time of the marriage the defendant who had already
owned a motor van for the purpose of his business acquired another motor van for
the same purpose. On March 6, 1974 he was given by Bandaraya, Kuala Lumpur a
stall to sell fish (Stall No. 278) at Fish Dealers' Market, Kuala Lumpur. During the
coverture of the marriage the defendant became the registered owner of the
following moveable and immoveable properties:
1) 432/648 undivided share in a piece of land comprising KRN 1163 (now
MG113) Lot 175 of Mukim Kuala Ibai. This land was acquired on August 2,
1967, i.e. about ten months after the marriage.
2) a house No. 119 built on the above said land which was the matrimonial
home;
3) 4 fishing boats registered as TF3003, TF3113, TF3144 and TF8382; boat
No. TF3003 being, however, already registered in the parties' joint names;
4) 5 fishing nets; and
[1983] 2 MLRH Boto' Binti Taha v. Jaafar Bin Muhamed 395

5) a fish stall on Lot 107, Lease No. 37, in Fish Dealers' Market at Kuala Lumpur.

There is no dispute and in fact it was conceded by the defendant that these five
properties were acquired by him during the coverture of the marriage.
When the marriage ended in a divorce on June 16, 1974, the defendant only gave
the plaintiff a cash payment of $228.00 for her expenses for the three months' eddah
period following the divorce, i.e. the period within which a divorced wife cannot
marry another man as the husband can resume the marriage and revoke the
divorce. The defendant also objected to the plaintiff continuing to live in their
matrimonial home and demanded vacant possession, but she ignored the
objections and continued to defy the defendant's demand.
She brought her complaint before the Kathi's court to seek redress; but was advised
to file a suit in the High Court. Hence she sued the defendant claiming a
declaration that she was entitled as harta sepencarian to one-half share in all the
properties acquired during her marriage to the defendant and to one-half share of
all the income derived from the properties since their divorce.
Harta sepencarian is not so much based on Islamic Jurisprudence as on customs
practised by Malays. It is being observed in Indonesia and the properties subject
thereto are referred to as Sharikat ( Laton v Ramah (1931) 6 FMSLR 116). For the
purpose of this judgment it is not necessary for me to do a survey of this principle
as practised and observed in Malaysia as this task was admirably done by Raja
Azlan Shah, J. (as he then was) in Roberts @ Kamarulzaman v Ummi Kalthom [1966]
1 MLJ 163, 165.
Under section 2 of the Administration of Islamic Law Enactment, 1955 of
Trengganu, harta sepencarian is defined as:
"the earnings, or the property acquired, as the result of joint labour of two
spouses and includes the income derived from capital which is itself the result
of joint labour."

Thus jurisprudentially harta sepencariam rests upon legal recognition of the part
played by a divorced spouse in the acquisition of the relevant property and in
improvements done to it (in cases where it was acquired by the sole effort of one
spouse only). It is due to this joint effort or joint labour that a divorced spouse is
entitled to a share in the property.
In Mohamed v Commissioner of Lands & Mines, Trengganu & Anor [1968] 1 MLRA
857; [1968] 1 MLJ 227, a Federal Court decision in a case from Trengganu, Ismail
Khan J. (as he then was) in his separate judgment which was concurred by the
other two members of the Court made no reference to the definition contained in
section 2 of the Enactment, but the principle upon which that case was decided
was in no way different from the statutory definition quoted above. His Lordship
396 Boto' Binti Taha v. Jaafar Bin Muhamed [1983] 2 MLRH

said:
"The point of importance is whether the land was acquired during coverture and if
the second respondent assisted in working it."
Thus once it is proved that a property was so acquired or that the claimant had
assisted in the working of it, the law presumes that the property was harta
sepencarian and it therefore falls on the other spouse who denies the claim to rebut
the presumption. (See Mohamed's case (supra ); Roberts @ Kamarulzaman v. Ummi
Kalthom (supra ), and Sepiah binte Suleiman v Abdullah bin Mat Amin[1977] 1 MLRH
62; [1977] 2 MLJ 90, 91).
The question as to whether the properties in this case are harta sepencarian must be
viewed with reference to the following evidence. There is no dispute that before the
marriage the plaintiff was earning $80.00 a month, small though her earning was.
Nevertheless, it was her income derived from her efforts and she gave up the
employment which produced the income because of her marriage to the defendant.
It is also not disputed that in his many trips away from home in connection with
his fish business, the defendant was accompanied by the plaintiff, although the
financial matters of the business were solely in the hands of the defendant. It is also
clear from the evidence of both parties that the properties were acquired from the
profits earned by the business. Under the circumstances, an issue arises whether
the fact of the plaintiff accompanying the defendant could be regarded as her joint
effort or contribution in the production of income with which the properties
concerned were acquired. If the answer to this question is in the negative, the
properties are not harta sepencarian , and if the answer is in the affirmative, the
properties are harta sepencarian subject to division between the spouses. In my
judgment the fact of the plaintiff accompanying the defendant in his business trips
and giving up employment because of the marriage must amount to her joint
efforts in the acquisition of these properties. Granted that the plaintiff took no
direct part in the defendant's fish business, but her constant companionship was
responsible for the defendant's peace of mind which enabled him to function
effectively as a businessman. In fact he mentioned in his evidence that he took the
plaintiff with him in his many business trips because he was otherwise feeling
lonely. Thus it is the fact of the marriage and what the parties did during their
marriage that makes these properties harta sepencarian.
As to the division I wish to refer to Rasinah v Said (1937) 15/1 JMBRAS 29, a
Perak case cited by E.N. Taylor in his monograph on Malay Family Law (1937)
MBRAS p.29. In that case it was held that a divorced wife was automatically
entitled to one-third share of all properties acquired during the marriage and to a
half-share if she assisted in the cultivation of the land or the acquisition of the
property. Relying on this precedent Professor Ahmad Ibrahim in his celebrated
work entitled "Islamic Law in Malaya" published in 1965 by the Malaysian
Sociological Research Institute Ltd. at page 229 said this:
"It has been held that generally throughout Malaya, except in Singapore, a
 [1983] 2 MLRH Boto' Binti Taha v. Jaafar Bin Muhamed 397

divorced wife is entitled to a share of all land acquired during the marriage, Rasinah
v. Said. Where she has in fact assisted to cultivate the land she is entitled to one half
of the land, and in other cases to one third of the jointly acquired property (harta
sepencharian) of the marriage."

I have no doubt as to the correctness of what Professor Ahmad Ibrahim wrote of

the law on the subject and I accept it as a guiding principle to determine this case.
The fact that the statement only relates to land does not mean that the principle
does not apply to moveable properties; like boats and Malay houses. There is no
reason for its inapplicability on such properties. In my view it applies to all kinds of
properties moveable and immoveable as long as they are acquired during the
coverture of the marriage. The principle seems to be confined to land because
Malays being rural communities are engaged in traditional occupation of working
on the land, their properties until lately were mostly confined to lands and animals
kept for the use on the land. These were the form of properties which they could
easily comprehend. Today Malays by and large have become urbanised and many
are now engaged in business and employed as wage earners. Their sense of value
on properties also changes accordingly.
For the reasons given above, I hold that the properties which are the subject of the
present suit are harta sepencarian and, except for boat TF 3003, must be divided into
one-third for the plaintiff and two-thirds for the defendant. The boat TF 3003 must
be divided half-half because this boat is already registered into their joint names.
The share of one-third is awarded to the plaintiff because the evidence goes to
show that she was helping the plaintiff's business only indirectly as a partner in his
business trips. The income derived from the boats, the nets and the fish stall must
likewise be divided into one-third and two-third shares. Having determined the
share which each party is entitled, I hope that the parties would come to terms on
the distribution of these properties and their income and, if they fail to do so, they
must come to court again so that an inquiry could be held into the disputed
amount.
I therefore enter judgment for the plaintiff in the above terms with costs.

Powered by TCPDF (www.tcpdf.org)