Bar Council: Decision a positive move




Friday, 28 December 2007, 08:10am

Ambiga Sreenevasan©New Straits Times (Used by permission)

• 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

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¡¯

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.