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Apex Court dismisses Subashini's appeal




Contributed by Web Reporter   

Thursday, 27 December 2007, 11:05am

Palace of JusticeCivil or Syariah, still unclear
Disputes between a convert and non-Muslim spouse come under civil court
Subashini case: Divorce comes under civil court

12.05pm: Azmel FCJ concurs with Nik Hashim. Wife's appeal dismissed by 2-1 majority. (Please click here to download judgments of Dato' Abdul Aziz bin Mohamad & Dato' Azmel bin Haji Maamor)

12.03pm: Abdul Aziz allows substantive appeal by wife and also allows injunction except confirmation of conversion. But injunction applies in re husband seeking ancillary relief.

11.59am: High Court could and should have granted injunction against Syariah court to stop abuse of process and undermining divorce petition under section 51 of the 1976 Act. While conversion of child is valid injunction should be granted to stop conversion until objection by wife is heard and it is granted.

11.52am: Aziz FCJ said his judgment 110 pages long and so he is going to summarise it. Question of date of husband's conversion needs to be tried. High Court has exclusive jurisdiction over civil marriage even though husband has converted. It's abuse of process to file custody proceedings in Syariah courts in re civil marriage as those courts have no jurisdiction.

11.45am: Conversion of eldest son valid. Not abuse of process. Wife's appeal dismissed with costs. Datuk Abdul Aziz's judgment being read now.

11.37am: Nik Hashim FCJ hold that (interpreting section 5 Guardianship of Infants Act 1961) in converting a child to another religion, only 1 parent is necessary. On Erinford injunction, he holds that the High Court 's decision to grant the injunction pending appeal to the Court of Appeal is correct. He felt, notwithstanding the argument of the husband's counsel that the court's very jurisdiction is being questioned, Erinford can still be granted to retain status quo of parties in this case.

11.32am: Non-Muslim marriage which is dissolved by Syariah court has no legal effect to the marriage in civil court unless it is dissolved by civil courts. Contention that wife may submit to Syariah court is wrong. As non-Muslim she has no locus in Syariah court. But Syariah courts are of equal standing with civil courts under Constitution and they are not inferior courts.

11.28am: Husband cannot shield behind freedom of religion under Article 11 and civil court still has jurisdiction under the 1976 Act. But not abuse of process if husband seeks remedies in Syariah court.

11.21am: Wife to file divorce petition afresh and to ask for ancillary relief. But assuming wife's petition was filed correctly, the High Court has jurisdiction to hear matter even if husband had converted and filed in syariah. Tan Sung Mooi referred. Section 51(1) does not violate Article 8 of the Federal Constitution. Converting party is respondent. Status of marriage at time it was converted is relevant and material period.

11.18am: Nik Hashim FCJ: Lack of jurisdiction issue not a bar to granting of injunction in civil court. Divorce for petition must only be filed 3 months after date of conversion. It is mandatory provision. Wife filed divorce prematurely and in contravention of section 51 Law Reform Marriage Act 1976 provision. Divorce petition invalid. Judgment still being read.

11.10am: Haris Ibrahim, Shanmuga Kanesalingam and Richard Wee for wife. Nubashur, Zanul Rijal for husband. Meera for women's groups. Joy for MCCBCHST. Mohd Aznil for Abim. Tajuddin for Persatuan Peguam Syariah. Edmund Bon for the Bar Council. Datuk Nik Hashim FCJ chairing. Reading his judgment now.

PUTRAJAYA, Thurs - 10.59am: The three judges who will deliver decision are Datuk Nik Hashim, Datuk Azmel and Datuk Abdul Aziz.