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Groups: LWB06D&E

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ÿ LRA
ÿ Domestic Violence Act (DVA)
ÿ Child Act 2001 (CA)
ÿ Child Protection Act 1991 (CPA)
ÿ Married Women Act 1957 (MWA)
ÿ Penal Code (PC)

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ÿ ïection 103 LRA: the court shall have power
to issue injunction against molestation only
during the pending of divorce, judicial
separation or annulment. Thus, the innocent
spouse who seeks protection will have to go
through matrimonial proceeding first i.e. by
filing a divorce before she can apply for an
injunction under LRA.

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ÿ DVA was enacted to provide protection for the victims of DV.
ÿ ïection 2 DVA defines DV as the commission of the following acts:-
Wilfully or knowingly, placing or attempting to place, the victim in fear of physical
injury;
Causing physical injury to the victims by such act which is known or ought to have
been known would result in physical injury;
Compelling the victim by force or threat to engage in any conduct or act, sexual or
otherwise, from which the victim has a right to abstain;
Confining or detaining the victim against the victim·s will; or
Causing mischief or destruction or damage to property with intent to cause or knowing
that it is likely to cause distress or annoyance to the victim by a person against-
ÿ His or her spouse;
ÿ His or her former spouse;
ÿ A child;
ÿ An incapacitated adult; or
ÿ Any other member of the family.

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ÿ Child: person under the age of 18 years who is living as a member of the
offender·s family or of the family of the offender·s spouse or former spouse
ÿ ïpouse: to include a de facto spouse, that is a person who has gone
through a form of ceremony which is recognised as a marriage ceremony
according to the religion or custom of the parties concerned,
notwithstanding that such ceremony is not registered or not capable of
being registered under any written law relating to the solemnisation and
registration of marriages.
ÿ Other member of the family: mean-
An adult son or daughter
A father or mother;
A brother or sister; or
Any other relative of the offender who is in the opinion of the court should in
the circumstances of the family be regarded as a member of the family.

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ÿ ïection 4 DVA:-
In order for the court to protect the spouse,
former spouse, child, incapacitated adult and other
family members of the victim, it may grant
Protection Order (PO).
DVA protects the wives, former wives, the child
as well as the husband and former husband.

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ÿ ïection 5 DVA:-
The court can make protection order during the
existence of the marriage. It is in the form of PO
to refrain or prohibit the guilty spouse
PO will only be effective for 12 months and can
only be extended once for a maximum period of
12 months.

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ÿ Weaknesses
PO granted by the court is only temporary in nature
(effective for 12 months and can be extended once for a
maximum period of 12 months). Until the court
determines a suitable place for the victims where normally
the victims or innocent spouse will be placed in the women
protection homes. When the court satisfied that the
victims are safely placed in these homes, the guilty spouse
shall have the right to return to the matrimonial homes.

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ïection 3 DVA requires it to be read together with Penal Code. Thus
the strict procedures under the Criminal Procedure Code (CPC) shall
be applicable as well and creates difficulties in the implementation of
the law under DVA.
Most of the offences of DV like punching, kicking, assaulting etc are
categorised as non-seizable offence which requires warrant of arrest
before the police can arrest the guilty spouse for the purpose of
investigation.
Further, the police must first determine the nature of the offence. An
investigation in a non-seizable offence requires order from deputy
public prosecutor (DPP). Failure to obtain the order would invalidate
all the evidence collected by the police. (no immediate need for the
police to investigate)

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ÿ @ustice Abdul Malik referred to DVA as a
´à à
 à>-it means that DVA appears as
if it is a comprehensive and effective law in
dealing with cases relating to domestic
violence when in actual fact it is not. (Chan
Ah Moi v Phang Wai Ann)

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ÿ Chan Ah Moi v Phang Wai Ann [1995] 3 ML@ 130
Facts: the petitioner was married to R according to Chinese rites in 1963 and for a time
they lived happily together and there were 7 children from the marriage. ïubsequently,
R behaved unreasonably to such an extent that the petitioner could not stand the sight
of him. They decided to live separately at 2 separate residences and did so for 8 years.
Despite the separation the petitioner continued to be abused by R, including being
attacked on 1 occasion with a long knife. The attack caused her serious injuries and for
this the R was arrested and convicted under section 326 PC and sentenced to 4 and a
half years imprisonment.
As his release was pending, the petitioner petitioned to the High Court for a non-
molestation order against R and an order to exclude him from any part of the
matrimonial home in which she was residing and a specified area in which the
matrimonial home was included. In the meantime the petitioner petitioned for
dissolution of her marriage.
Court held: since the petitioner had filed for dissolution of her marriage, the non-
molestation order provided under section 103 of LRA could be made. (when the R was
sentenced, DVA was not yet in existence)

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ÿ @ayakumari v ïuriya Narayanan [1996] 4 ML@ 421
Facts: the petitioner was married under Hindu customary law and the
marriage was registered under the LRA. There were 2 children to the
marriage. The family for a time resided at the matrimonial home
together with the petitioner·s mother. Later, the petitioner wanted a
divorce and when the respondent found out he assaulted her and
threatened to kill her. The petitioner left the matrimonial home with
her mother and children and lived temporarily in her cousin·s house.
Later through solicitors she filed a petition for judicial separation and
a summons in chambers wherein she sought reliefs from the court:
ÿ That the Respondent be restrained by himself or his servant from
molesting, harassing, threatening, abusing, assaulting or in any way
disturbing her;
ÿ That the respondent be ordered to vacate the matrimonial home and not
to enter therein until further order

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ÿ Court obtained a consent from R in regard to 1st
relief
ÿ 2nd relief, the court after referring to the case of
Chan Ah Moi v Phang Wai Ann, held that DVA has
yet become law at the time of the hearing as the Act
had not yet been brought into force.
ÿ The court later allowed the petitioner·s application
and accordingly order the R to vacate the
matrimonial home.

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ÿ Provides protection to children only.
ÿ Under CPA only the medical officer or a registered medical
practitioner has the duty to report to a protector if a child
was physically or emotionally injured as a result of being ill-
treated, neglected, abandoned or exposed, or was sexually
abused.
ÿ However, any member of the child·s family and child care
provider has the duty to report to a protector and failure to
report is punishable with fine up to RM 5,000 or
imprisonment up to 2 years or to both (section 28 & 29 of the
Child Act 2001).

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ÿ MWA only provides protection to married
women including 2nd wives in Chinese
customary marriages, and 2nd, 3rd and 4th
wives in Muslim marriage (section 2 of
MWA)
ÿ MWA does not provide protection to the
child , former spouse (male and female)

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ÿ ïection 4Aof MWA: victims may only get
remedy in monetary form i.e damages. It
would not help victims who need protection
since the guilty spouses may still endanger or
cause harm and injuries to the victims.

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