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 ofJelebu —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 from Adat 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.  OngCheng 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

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

51.  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.

52.  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.