This document discusses customary law in Malaysia. It begins by defining customary law and its sources and characteristics. It then examines different types of customary law recognized in Malaysia, including Malay adat, Chinese customary law, Hindu law, and native law. It provides examples of customary practices and cases that illustrate how the courts have applied different customary laws. These include matters of marriage, divorce, inheritance, and property rights. The document also discusses the constitutional protection of customary law and its interaction with legislation like the Law Reform (Marriage and Divorce) Act 1976.

2.  A pattern of behaviour accepted and
expected conduct in a community.
 Obligatory on those within its scope.
 Customary law:
 Custom, if followed from one generation to
another, in the course of time it acquired the
character of law.
 Uncodified, also known as “living law”

3.  NewWindsor Corporation v Mellor [1975] 3 All
ER 44
 A valid custom is a good custom.
 In order to be good, a custom must:
1. Be a custom from time immemorial
 Continued enforcement for a long time; followed
from one generation to another.
2. Reasonable
3. Certain

4.  Law includes “customs and usages having the
force of law”

5.  Malay customary law or ‘adat’
 Non-Malay ‘adat’
 Chinese customary law
 Hindu customary law
 Custom of the aborigines or ‘orang asli’ in
West Malaysia
 Native customary law in East Malaysia

8.  Adat Perpatih
 Matriarchal customary law
 Embodied in written form in digests of
customary law from Sungau Ujong, Perak and
Kuala Pilah.
 AdatTemenggong
 Can be found in digests: Undang-undang
Melaka, Pahang digest, Johore digest, digest
of Kedah laws, Ninety-Nine Laws of Perak.

11.  Power in the family laies in the hands of the
Mamak (mother’s elder brother);
 The Buapak (heads of sub-tribes) would be
elected by the Mamak;
 The Lembaga (tribal chiefs) by the Buapak;
 The Undang (territorial heads) by the
Lembaga;
 TheYamTuan Besar (ruler of State) by the
Undang (YamTuan Besar must have royal
blood)

12.  Election of Undang of Jelebu —Whether
election contrary to adat laws and constitution
of luak of Jelebu

13.  The accused will be tried by his own family.
 If rejected by own family, no other choice but
to kill, banish or enslave the accused.
 Aimed at restitution and compensation of the
injured rather than punishment or revenge on
the offender.
 Murder – payment of blood money (restoring
the loss of a bread-winner)

14.  Relied heavily on circumstantial evidence
 E.g. fluttering heart, coming home wet and
late at night, torn shirt etc.
 Circumstantial evidence was enough to
sentence the accused.

15.  Harta Pusaka (Ancestral Property) – the
daughter inherits
 Carian Bujang
 Harta Dapatan (Acquired Property) – property of
the wife
 Harta Pembawa (Accompanied Property) –
property of the husband
 Carian Laki Bini (Prpoerty acquired by
husband and wife)

16.  Adat Perpateh — Divorce — Claim for share of
Charian-laki-bini property
 In this case a divorced wife claimed for half
share of her husband's land and certain
property according to the Adat
Perpateh because the property was
their charian-laki-bini.

17.  Article 90: Special provisions relating to
customary land in Negeri Sembilan and
Malacca, and Malay holdings inTerengganu
 90. (1) nothing in this Constitution shall affect
the validity of any restrictions imposed by law
on the transfer or lease of customary land in
the State of negeri Sembilan or the State of
Malacca, or of any interest in such land.

18.  (Malacca Lands Customary Rights) — Naning
Custom …
 In the case of land held by
the Naning Custom, if Pesaka land of a suku is
registered in the name of some person not of
the tribe there remains a right vested in the
tribe to redeem the land.

20.  Source originated fromAdat Perpatih but was
influenced by Hinduism.
 The custom was changed from matriarchal to
patriarchal.
 Also influenced by Islam later on.

21.  Sultan
 Bendahara (Prime Minister and Chief of war)
 Temenggong (Chief of Police)
 Menteris

22.  Retaliation (qisas)
 Evidence – relied on circumstantial evidence
 Sultan determines the punishments and has
power to pardon offenders – A 42
 Followed the Hindu concept of punishment
based on the status of the person in the
society.

23.  Emphasised the importance of having a son
for the purposes of inheritance and in order
to lead the family.

24.  See
 Ramah v Alpha [1923] FMSLR 179
 Robert v Umi Kalthom [1963] 1 MLJ 163
 Boto v Jaafar [1985] 2 MLJ 98

25.  The parties were married in 1966. At the time of the marriage the
plaintiff-wife worked as a coffee-shop assistant and the
defendant-husband carried on a fishmonger business in Dungun.
The business of the defendant prospered and during the marriage
he bought the matrimonial home, a piece of land, 4 fishing boats,
fishing nets and a fish stall.
 They divorced in 1974 and on the divorce the defendant only paid
the plaintiff her maintenance for the period of eddah.
 The plaintiff applied to High Court for 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 of
all the income derived from the properties since their divorce.

26.  Court: Harta sepencarian is based on customs
practised by the Malays and rests upon the
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.

27.  Court:
 The share of one-third is awarded to the
plaintiff because the evidence shows that she
was helping the plaintiff's business indirectly
as a partner in his business trips.The income
derived from the properties must likewise be
divided into one-third and two-third shares.

28.  Harta sepencarian is based on Islamic law.
 Now under jurisdiction of Syariah Courts.

29.  Malacca Digest
 Kedah Digest
 Johor Digest
 Ninety-Nine Laws of Perak

30.  Article 76 (2)
 “No law shall be made in pursuance of
paragraph (a) of Clause (1) with respect to any
matters of Islamic law or the custom of the
Malays or to any matters of native law or
custom in the States of Sabah and Sarawak
and no bill for a law under that paragraph
shall be introduced into either House of
Parliament until theGovernment of any State
concerned has been consulted.”

31.  Sahrip v Mitchell
 Malay custom on acquiring ownership of land
was recognised
 Roberts v Umi Kalthom [1966] 1 MLJ 163
 Malay customary law — Harta sapencharian

33.  In 1794 there were 3000 Chinese, and 1000
Indian in Penang.
 Between 1880-1890, Chinese migration was
at the rate of 150 000 annually.
 By the 1920s it increased to 300 000 annually.
 Between the 1840s and 1930s there were 1.9
million Indian citizens that entered the Malay
States.

34.  Chinese and Hindu customary laws were
recognised but limited to family matters and
to some extent inheritance.

35.  Thompson CJ:
 “…the only conclusion that can be drawn from
the SixWidows Case supra, which is the classical
case on the subject, is that as regards Chinese
the question of personal law is based on race.
The Courts in effect have given judicial
recognition to certain customs prevalent or
thought to be prevalent among persons of
Chinese race irrespective of their domicile or
religion.They have thus set up what might be
called a sort of common law as affecting persons
of Chinese race…”

36.  Ong Cheng Neo vYeap Cheah Neo
 Privy Council: “Although it certainty appears
that the performance of these ceremonies is
considered by the Chinese to be a pious duty,
it is one which does not seem to fall within
any definition of a charitable purpose or use.”
 See also Choa Choon Neo v Spottiswoode; Re
Yap Kwan Seng [1924] FMSLR 313

37.  CheaThye Pin vTan Ah Loy -- status of
secondary wives.
 SixWidows case
 Re Ding Do Ca
 DorothyYeeYeng Nam

38.  Chinese marriage —Validity of —Whether
Chinese who has married under Christian
Marriage Enactment (FMS Cap 109) could
contract a polygamous marriage according to
Chinese custom

39.  The deceased had in 1923 married one Madam
Wong under the Christian Marriage Enactment
and subsequently in 1937 he went through the
form of marriage according to Chinese custom
with Madam Ngoi.
 After his death Madam Wong applied for and
obtained letters of administration to his estate;
subsequently Madam Ngoi and her children
commenced the action against Madam Wong
and sought declarations that she was the widow
of the deceased and that her children were his
lawful children.

40.  Held:
 (1) in regard to persons of the Chinese race the courts have
given judicial recognition to certain customs which have
been imputed to such persons and under such customs
Chinese can contract a polygamous marriage;
 (2) there is nothing in the Christian Marriage Enactment
which renders a party who has married under it incapable
during its continuance of contracting a polygamous
marriage and therefore in this case the deceased could
contract a valid marriage with Madam Ngoi, despite his
earlier marriage with Madam Wong under the Christian
Marriage Enactment.

41.  CHING KWONG KUEN v SOH SIEWYOKE [1982] 2 MLJ 139
 The respondent first met the appellant in 1957 when she was nineteen
years old, and working in a bar. The respondent came from a family with
humble background and the appellant from a rich and respectable family.
At the end of 1958 they had sexual relations and he promised that he
would marry her. Subsequently they lived together at her place in
Geylang. The appellant kept putting off the subject of marriage until
1959, on the persistent promptings of the respondent's mother.
 On the 8th Moon in 1959, a simple ceremony was arranged and the
appellant gave the respondent's mother $1,000 towards the expenses for
the wedding. The respondent then bought cakes and distributed to her
mother's and her own friends. On the day of the wedding both the
respondent and the appellant served tea to the respondent's mother
who then gave them each a red packet. The couple served tea to the
respondent's aunts and they burnt joss-sticks and worshipped the
Goddess of Mercy. The ceremony was attended by twenty to thirty
people.

42.  The respondent left the matrimonial home on
May 26, 1977 after a violent quarrel with the
appellant.
 The appellant disputed that the respondent
was ever his wife despite the fact that they
had been living together for nineteen years
and she bore him three children.

43.  Whether there was a valid marriage
 Court:
 The respondent and the appellant had gone
through a ceremony of marriage, that they
had lived openly as husband and wife and
that there was a valid marriage existing
between.

44.  WOON NGEEYEW AND OTHERS v NG
YOONTHAI AND OTHERS [1941] 1 MLJ 37
 The plaintiff claimed to be the widow of the
deceased, being a t'sip or secondary wife. It
was alleged that she had been divorced
during the lifetime of the deceased.

45. Held:
There is sufficient evidence that the deceased severed his
relations with his wife, that is to say, divorced her according
to Chinese custom:
 she refused to return to him
 he informed various friends and relations that he had done
so,
 the fact of such severance was fully recognized by the
plaintiff by her conduct,
This is sufficient to constitute a divorce of a secondary wife
according to the custom among Chinese recognized in Perak.

47.  PARAMESUARI v AYADURAI [1959] 1 MLJ
195
 Divorce — Marriage according to CeylonTamil
Hindu custom — Re-marriage of spouse with
another woman while first marriage still in
legal existence —Whether first marriage a
monogamous marriage

48.  NAGAPUSHANI v NESARATNAM & ANOR
[1970] 2 MLJ 8
 Marriage by Hindu rites
 Cohabitation and reputation of husband and
wife for many years
 A valid marriage existed

49.  The plaintiff claimed to be the wife of the first
defendant and the daughter-in-law of the
second defendant who was the mother of the
first defendant. She claimed that on 30th
April 1942 at Sungei Buloh, she went through
a ceremony of marriage with the first
defendant according to Hindu rites.The
defendants denied this.

50.  She came to Malaya from Ceylon at the age of 17 with her
sister at the invitation of the father of the first defendant
who wanted to arrange a marriage between her and the
first defendant.
 A copy of the invitation card was produced.The names of
the sponsors of the wedding were stated in the invitation
card
 Friends and relatives were invited.
 The plaintiff said that she was given away by Kulathungam
and his wife at the wedding.
 She produced a "tali" (a golden chain) which she claimed
the first defendant tied around her neck during the
wedding ceremony as a symbol of marriage.This was
recognised by the goldsmith.

51.  She called witnesses who attended the wedding.
 The plaintiff said that she and the first defendant
cohabited at various places
 The first defendant agreed that he and the plaintiff
had lived under the same roof.
 When they were living together, they went to film
shows, attended dinners and visited relatives
together.
 The plaintiff produced a photograph showing her and
the first defendant taken about a year after the
wedding. P.W.5 testified that on some occasions
plaintiff and the first defendant had paid him social
calls.

53.  Court must take judicial notice of the
custom.
 Need not be proved in court.

54.  Bring expert evidence
 TAN KUI LIM & ANOR v LAI SIN FAH [1980]
1 MLJ 222
 Validity of adoption under Chinese customary
law of Hakka.
 Court relied on evidence given by expert i.e. a
Registrar of Chinese Marriage for the Hakka
community, and a recognised leader of the
Chinese Community.

55.  See also RE ESTATE OF CHONG SWEE LIN;
KAM SOH KEH v CHAN KOK LEONG & ORS
[1997] 4 MLJ 464
 Validity of Chinese customary marriage.

56.  PARAMESUARI v AYADURAI [1959] 1 MLJ 195
 The Court accepted the evidence of the priest who
performed the marriage ceremony between the
petitioner and respondent, and expert evidence on
the traditional features of a marriage between Ceylon
Tamil Hindus.
 The priest testified to the fact that he had celebrated
over 800 such marriages and this was the first
instance he had come across of a party to any of those
marriages re-marrying during the lifetime of the other
spouse.

58.  Came into force 1 March 1982
 S 3 (4)This Act shall not apply to any native of
Sabah or Sarawak or any aborigine of Peninsular
Malaysia whose marriage and divorce is
governed by native customary law or aboriginal
custom unless—
 (a) he elects to marry under this Act;
 (b) he contracted his marriage under the Christian
Marriage Ordinance [Sabah]; or
 (c) he contracted his marriage under the Church and
Civil Marriage Ordinance [Sarawak]

59.  S 4
 (1) Nothing in this Act shall affect the validity
of any marriage solemnized under any law,
religion, custom or usage prior to the
appointed date.
 (2) Such marriage, if valid under the law,
religion, custom or usage under which it was
solemnized, shall be deemed to be registered
under this Act.

60.  S5. (1) Every person who on the appointed date
is lawfully married under any law, religion,
custom or usage to one or more spouses shall be
incapable, during the continuance of such
marriage or marriages, of contracting a valid
marriage under any law, religion, custom or
usage with any other person, whether the first
mentioned marriage or the purported second
mentioned marriage is contracted within
Malaysia or outside Malaysia.

61.  S 6. (1) Every marriage contracted in
contravention of section 5 shall be void.
 S 7. (1) Any person lawfully married under any
law, religion, custom or usage who during the
continuance of such marriage purports to
contract a marriage under any law, religion,
custom or usage in contravention of section 5
shall be deemed to commit the offence of
marrying again during the life-time of husband
or wife, as the case may be, within the meaning
of section 494 of the Penal Code.

62.  S 27.The marriage of every person ordinarily
resident in Malaysia and of every person
resident abroad who is a citizen of or
domiciled in Malaysia after the appointed
date shall be registered pursuant to this Act.

63.  Deceased and plaintiff wanted to register
their marriage on 26.5.2006. On 16.5.2006
the man unexpectedly died of a heart attack.
 The plaintiff was not a “wife”.
 Federal Court: the customary marriage
between the plaintiff and the deceased was
void and ought not to be recognised for non-
registration.

64.  The Federal Court stated that the customary
marriage between the P and D was void and
not to be recognised for non-registration.
 The legal consequence of this was that the
two childern born out of the relationship
between P and D are illegitimate children.

65.  Breakdown of marriage to be sole ground for
divorce.
 S 53(1): Either party to a marriage may
petition for a divorce on the ground that the
marriage has irretrievably broken down.

66.  S 54:
 (a) that the respondent has committed adultery and the petitioner
finds it intolerable to live with the respondent;
 (b) that the respondent has behaved in such a way that the
petitioner cannot reasonably be expected to live with the
respondent;
 (c) that the respondent has deserted the petitioner for a
continuous period of at least two years immediately preceding the
presentation of the petition;
 (d) that the parties to the marriage have lived apart for a
continuous period of at least two years immediately preceding the
presentation of the petition.

67.  S 52:
 If husband and wife mutually agree that their
marriage should be dissolved they may after the
expiration of two years from the date of their
marriage present a joint petition accordingly and
the court may, if it thinks fit, make a decree of
divorce on being satisfied that both parties
freely consent, and that proper provision is
made for the wife and for the support, care and
custody of the children, if any, of the marriage,
and may attach such conditions to the decree of
divorce as it thinks fit.

69.  Section 3(1)
 (a) any person whose male parent is or was, a
member of an aboriginal ethnic group, who
speaks an aboriginal language and habitually
follows an aboriginal way of life and
aboriginal customs and beliefs, and includes a
descendant through males of such persons;

70.  (b) any person of any race adopted when an
infant by aborigines who has been brought
up as an aborigine, habitually speaks an
aboriginal language, habitually follows an
aboriginal way of life and aboriginal customs
and beliefs and is a member of an aboriginal
community; or

71.  (c) the child of any union between an
aboriginal female and a male of another race,
provided that the child habitually speaks an
aboriginal language, habitually follows an
aboriginal way of life and aboriginal customs
and beliefs and remains a member of an
aboriginal community.

72.  Senoi: Semai,Temiar, Jah Hut, CheWong,
Mah Meri, Semaq Beri.
 Negrito: Kensiu, Kintak, Jahai, Lanoh,
Mendriq, Batek.
 Proto-Malay:Temuan, Semelai, Jakun, Orang
Kanaq, Orang Kuala, Orang Seletar.

73.  S 3 (4)This Act shall not apply to any native
of Sabah or Sarawak or any aborigine of
Peninsular Malaysia whose marriage and
divorce is governed by native customary law
or aboriginal custom unless—
 (a) he elects to marry under this Act;
 (b) he contracted his marriage under the Christian
Marriage Ordinance [Sabah]; or
 (c) he contracted his marriage under the Church
and Civil Marriage Ordinance [Sarawak

74.  The Aboriginal Peoples Act 1954 enables
aborigines to dwell in land areas designated
for their exclusive use.
 Referred to as “aboriginal areas” (section 6)
or “aboriginal reserves” (section 7).

75.  Held:
“Generally, the aboriginal peoples' common law rights
over the land include the right to move freely about
their land, without any form of disturbance or
interference and also to live from the produce of the
land itself…
In Malaysia specifically, the aborigines' common law
rights include, inter alia, the right to live on their land as
their forefathers had lived and this would mean that
even the future generations of the aboriginal people
would be entitled to this right of their forefathers”.

76.  The orang asli of theTemuan tribe have
proprietary rights over their customary land
and therefore when it was acquired by the
State, they were entitled to compensation
under the LandAcquisition Act 1960.