The Wali Hakim Mystery

Sometime in mid-May 2010, a partner from the syariah legal firm that represents me reported that he bumped into my ex-wife and her boyfriend in the Kuala Lumpur Syariah Court building. At first, we thought nothing of it. Afterall, we were informed that they have been asked to appear before the Mahkamah Rendah Syariah Petaling Jaya on 24 June 2010 to be charged for khalwat. Perhaps she went there to discuss the case with her syariah lawyer(s).

Oddly, the same partner once again reported to us that he saw my ex-wife in the Kuala Lumpur Syariah Court building on 26 May 2010. The partner checked with the court registrar and found out that my ex-wife did have a case in Mahkamah Rendah Syariah Kuala Lumpur that day. A Syariah Court proceeding in Kuala Lumpur?

All Islamic family related matters for residents as well as those living in the State of Selangor are governed under the Enakmen Undang-Undang Keluarga Islam (Negeri Selangor) 2003. This is clearly stated in Section 4 of the said enactment. Similarly, Section 4 of Akta Undang-Undang Keluarga Islam (Wilayah-Wilayah Persekutuan) 1984 states that the act only applies to those resident as well as those living in the Federal Territories.

My ex-wife is a resident of the State of Selangor and has affirmed that she lives in the State of Selangor in all her syariah court proceedings against me. So what on earth was she doing in the Kuala Lumpur Syariah Courts?

After some investigative work, we found out that she made an application for "Penentuan Wali" for her planned marriage with her boyfriend. In her application, she wrongfully affirmed and misrepresented to the Mahkamah Rendah Syariah Kuala Lumpur that she was living in Kuala Lumpur. Making false statements in the Syariah Courts in Kuala Lumpur is an offence under Section 30 of Akta Kesalahan Jenayah Syariah (Wilayah-Wilayah Persekutuan) 1984. If convicted may be fined not more than RM3,000 or 2 years imprisonment or both.

What was she up to? Firstly, why make the application in Kuala Lumpur? Secondly, why the "Penentuan Wali" application?

After giving it some thought, it is clear to us that my ex-wife wanted to conceal her proposed marriage. As our syariah court proceedings are in the State of Selangor, she had assumed that I would only check in the Selangor Syariah Courts for any other cases that she may have filed. As discussed in my previous post, her rights to child custody will be affected if she remarried. This was probably the main reason why she tried to conceal her proposed marriage.

As for the "Penentuan Wali", my guess at that time is that her father did not consent to the marriage and refused to be her "wali". However, based on her application, she claims that her parents were legally married in the Philippines in 1967 but have no documents to prove this. After migrating to Sabah, and after her birth in 1973, her parents still did not have any documentary proof of their marriage. It is for this reason that they had to "bernikah" again in 1975. As the only documentary proof of her parents marriage is after the date of her birth, she probably wanted to use a "Wali Hakim" to solemnise her proposed marriage so that there will be no ambiguity whatsoever to the validity of her marriage.

I find this rather strange. She didn't raise this issue when we got married. Why raise it now?

We later found out that on 26 May 2010, the Mahkamah Rendah Syariah Kuala Lumpur decided as follows

1. Her application for "Penentuan wali" was rejected
2. The court considered her parents' marriage valid
3. Her father is to be her "wali" for her proposed marriage

Pursuant to checks made at the registrar of marriages at Jabatan Agama Islam Wilayah Persekutuan ("JAWI"), it is confirmed that they subsequently got married on 29 May 2010, with her father acting as her "wali".

I was rather annoyed that she tried to conceal her marriage in order to prejudice my child custody claim.

I then lodged a complaint at JAWI sometime in July 2010. In March 2011, JAWI informed me that the Kuala Lumpur Syariah Courts had reported that

1. My ex-wife had filed the "Penentuan Wali" application on 21 May 2010
2. The hearing was on 26 May 2010 where her application was rejected and the Mahkamah Rendah Syariah Kuala Lumpur had ruled that her father is to be her "Wali"
3. My ex-wife and her boyfriend got married in Masjid Wilayah, Kuala Lumpur on 29 May 2010. Her father was her "Wali"
4. On 7 June 2010, she appealed against the decision of the Mahkamah Rendah Syariah Kuala Lumpur
5. On 30 June 2010, she filed in a judicial review of the decision.
6. On 5 July 2010, she pulled back her appeal
7. On 10 November 2010, the Syariah Courts ruled that her marriage on 29 May 2010 was invalid and my ex-wife and her husband/boyfriend is to "difaraqkan" or separated.

I subsequently checked with the marriage registrar at JAWI and I was informed that my ex-wife and her boyfriend remarried on the same day (10 November 2010) using a "Wali Hakim".

So the BIG question is, why appeal against the 26 May 2010 court's decision? Since the court had ruled that her father should be her "Wali" and she subsequently got married using her father as her "Wali", then why on earth appeal against the decision after benefiting from it??? What is she up to? Why is she so adamant to use a "Wali Hakim"?

As far as I am aware, "Wali Hakims" are used for children born out of wedlock or in circumstances where the "Wali" cannot be found. To say that her father cannot be found doesn't make sense as he was the one who became her "Wali" on 29 May 2010. Or did he not?

So what was the basis of her application for judicial review that resulted in her and her husband/boyfriend had to be "difaraqkan"? When a marriage is subsequently found to be invalid, the couple are ordered to separate or "difaraqkan". In such circumstances,

1. The couple may remarry;
2. Any children born as a result of the marriage are NOT "anak luar nikah" or NOT "anak tak sah taraf". Such children are known as "anak wati syubhah";
3. The wife (or ex-wife as the case may be) will still be entitled to matrimonial assets

Was her intention to use "Wali Hakim" an attempt to invalidate my marriage with her? Is her intention then to declare that my children are also "anak tak sah taraf" therefore custody should automatically go to her? If such is her grand plan, then she is truly mistaken. In such circumstances, my children will be deemed "anak wati syubhah".

"Anak wati syubhah's" "nasab" will still go to me. It means that they can still carry my name (i.e. "Bin" or "Binti" me), I can still be my daughter's "Wali" and they can inherit my estate. There will be no effect whatsoever on custody.

So the big question is... are her lawyers (4 of them) aware of this? Surely they should! Out of 4, one should know.

I am still stumped. What's their grand plan? The "Wali Hakim" application still remains a mystery to me.