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 ©New Straits
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• The Subashini case: High Court can hear marriage dispute but...
• Husband¡¯s conversion ¡®disputable¡¯
• Facts of case
KUALA LUMPUR: Bar Council chairman Ambiga Sreenivasan said the Federal
Court's decision was a positive move, as it recognised that the Syariah High
Court had no jurisdiction over non-Muslims. (Please click
here to download judgments of Dato' Abdul Aziz bin Mohamad & Dato'
Azmel bin Haji Maamor)
"I need to read the grounds of the judgment in full before I can
comment any further.
"But judging from the brief report, a positive part of the case
is that it has upheld the decision in the case of Tan Sung Mooi v Too Miew
Kim, and held that the civil court is the court where dissolution of
marriage takes place."
In the 1994 case, the court decided that the civil courts would have
jurisdiction to annul a marriage where one party was a non-Muslim.
"However, a worrying aspect of the case is it has held that a parent can
convert a child, which is not entirely in accord with our reading of the
Federal Constitution.
"We think such a decision should require the consent of both
parents. Additionally, it doesn't appear to resolve the issues which are
faced by couples who are in a similar situation."
The Subashini case: High Court can hear marriage dispute but...
by V. Anbalagan
PUTRAJAYA: A High Court has the authority to
hear matrimonial disputes of a non-Muslim marriage even if a spouse has
converted to Islam.
However, in a majority ruling, the apex court dismissed R. Subashini's appeal
against the dismissal of her injunction application to stop her husband T.
Saravanan, whose Muslim name is Muhammad Shafi Abdullah, from dissolving
their civil marriage at the syariah court and converting their underage
child.
Nik Hashim and Azmel in a 2-1 ruling dismissed Subashini's appeal because her
divorce petition was filed prematurely.
They also said that the spouse who had converted would not have abused the
court process by going to the syariah court to obtain the necessary remedy.
Aziz, who dissented, said since Shafi's date of conversion was
unclear, it must be tried before the High Court and as such the injunction
should be granted.
All three also held that a spouse who had embraced Islam could convert his or
her children without the consent of the other spouse.
Aziz, however, said in this case, Subashini must be given the opportunity to
object to the conversion.
In the majority judgment written by Nik Hashim, he said section 51 of the Law
Reform (Marriage and Divorce) Act 1976 allowed Subashini to dissolve her
marriage on grounds that her husband had converted to Islam.
He said a proviso in that section, however, imposed a caveat on the wife not
to file the petition of divorce until a lapse of three months from the date
of the husband's conversion.
Nik Hashim said that Shafi and his elder son, Dharvin Joshua, had converted
on May 18 last year and that their certificates of conversion conclusively
proved this fact.
He said he agreed with the Court of Appeal majority judgment that Subashini's
petition contravened the requirement of the proviso of the section as it was
filed two months and 18 days after the conversion.
"Therefore, the petition was premature and invalid," he said,
adding that it would be appropriate for Subashini to file a fresh petition in
the High Court to seek all remedies she wanted.
Nik Hashim said he would proceed to answer the jurisdiction issue although
Subashini's petition was invalid because a decision of the Federal Court
would be of public advantage.
"Assuming the petition was filed three months after the conversion, then
the High Court would have the jurisdiction to hear and determine the matter
even though the husband had converted and commenced proceedings in the
syariah court."
Nik Hashim said the status of the parties at the time of marriage was
material in determining the question of jurisdiction.
"The husband could not shield himself behind the freedom of religion
article in the Federal Constitution to avoid his obligation under the 1976 Act
on grounds that the civil court has no jurisdiction over him," he said.
Nik Hashim said by embracing Islam, Shafi and Dharvin were subject to Muslim
personal and religious laws and it was not an abuse of process if he sought
remedies at the syariah court.
"Although, the syariah courts are state courts, they are not lower in
status than the civil court. I would say they are of equal standing under the
Constitution," he said.
Nik Hashim said Subashini's complaint that Shafi had no right to convert
either child to Islam was misconceived because a careful study of the laws
revealed that the husband or wife had such right.
Husband¡¯s conversion ¡®disputable¡¯
PUTRAJAYA: Muhammad Shafi Abdullah's
conversion is disputable and this has to be determined at the High Court.
Federal Court judge Datuk Abdul Aziz Mohamad said as such he was
allowing R. Subashini's appeal to stop Shafi from dissolving their civil
marriage in the syariah court.
Aziz said the court must determine whether the conversion date of Shafi was based
on his certificate or on facts made available to Subashini.
"The (Subashini's) petition was presented on Aug 4 last year. It would
escape the (three month) prohibition only if the husband converted on May 4
last year or earlier," he said in his dissenting judgment.
(The majority judgment said that Shafi had conclusively converted on May 18
last year.)
Aziz said the civil court had exclusive jurisdiction over dissolution
of marriage, maintenance, custody and other ancillary relief because the
union was solemnised under Law Reform (Marriage and Divorce) Act 1976.
Aziz said Shafi had abused the process in getting the custody of the children
in the syariah court because the religious court has no jurisdiction in the
custody of a non-Muslim marriage.
He added that Subashini had a right to be heard.
"She can object to the conversion or seek an injunction to stop the
procedure," he said.
Facts of case
THE couple were married on July 26, 2001, and registered their union under
the Law Reform (Marriage and Divorce) Act 1976.
They have two sons, Dharvin Joshua, 4, and Sharvind, 2.
On May 18 last year, Shafi, 31, embraced Islam and converted Dharvin.
On May 23 last year, he filed an application at the Kuala Lumpur Syariah
Court to dissolve his marriage and obtain custody of the children.
Upon hearing Shafi's pending application at the syariah court, Subashini, 28,
filed a petition at the Kuala Lumpur High Court on Aug 4 to dissolve their
marriage and to obtain custody of the children and maintenance.
The matter became complicated because Shafi had gone to the syariah
court while Subashini had gone to the civil court.
To ensure that her divorce petition was not rendered academic, Subashini
filed for an injunction to stop Shafi from dissolving their civil marriage at
the syariah court and prevent the conversion of Sharvind.
In September last year, the High Court dismissed Subashini's application to
stop Shafi from obtaining relief at the syariah court.
The Court of Appeal, in a majority judgment on March 13, upheld the decision
of the High Court that the injunction sought by Subashini was
unconstitutional as it would prevent the syariah court from carrying out its
duties.
Two weeks later, the same panel, in a majority ruling, granted an interim
injunction to restrain Shafi from going to the syariah court and seeking the
necessary relief.
O May 17, the Federal Court granted Subashini leave to appeal and four months
later started hearing submissions from counsel of both parties.
It reserved judgment on Oct 24.
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