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©The
Star (Used by permission)
by M. Mageswari
PUTRAJAYA: The Federal Court ruled that the dispute between secretary R.
Subashini and her Muslim-convert husband T. Saravanan over the dissolution of
their marriage and child custody will continue to be under the jurisdiction of
the civil court.
In the 2-1-majority landmark decision yesterday, the three judges agreed on this
point with the third judge dissenting on all other issues raised.
Federal Court judge Justice Nik Hashim Nik Ab Rahman said a non-Muslim's
marriage did not automatically dissolved upon one of the parties' conversion to
Islam.
“Thus, by contracting the civil marriage, the husband and wife are bound by the
1976 Act (Law Reform (Marriage and Divorce) Act) marriage in respect to divorce
and custody of the children of the marriage, and thus, the civil court continues
to have jurisdiction over him, notwithstanding his conversion to Islam,” he
said.
In his judgment, Justice Nik Hashim said by embracing Islam, Saravanan and his
eldest son were subject to Muslim personal and religious laws.
“It is not an abuse of process, if he, being a Muslim, seeks remedies in the
Syariah High Court as it is his right to do so,” he said.
Justice Nik Hashim, who sat together with Federal Court judges Justices Abdul
Aziz Mohamad and Azmel Maamor, said this:
“To my mind, the dissolution order of the civil marriage by the Syariah High
Court by virtue of conversion would have no legal effect in the (civil) High
Court other than as evidence of the fact of the dissolution of the marriage
under the Islamic law in accordance with Hukum Syarak.
“Thus, the non-Muslim marriage between the husband and wife remains intact and
continues to subsist until the High Court dissolves it pursuant to a petition
for divorce by the unconverted spouse under Section 51(1) of the 1976 Act.”
He said there was no impediment for the converted husband to appear in the
divorce proceedings in the civil High Court.
“The wife, being a non-Muslim, has no locus in the syariah court,” he said.
Both judges also agreed that although the syariah courts are state courts, they
are not lower in status than the civil courts.
Justices Nik Hashim and Azmel, who threw out Subashini's appeal, said the
divorce petition filed at the High Court by Subashini was premature and invalid
as it was filed two months and 18 days after the husband's conversion to Islam.
The judge ruled that the petition should have been filed after three months.
Justice Nik Hashim said it was his view that Subashini was entitled to proceed
with her application for custody rights of her children but it would be most
appropriate if she filed her petition for divorce afresh.
He said the conversion of the elder son to Islam by the husband, albeit under
the Selangor Enactment, did not violate the Federal Constitution.
He added that either spouse had the right to convert a child of the marriage to
Islam.
“The word 'parent' in Article 12(4) of the Constitution, which states that the
religion of a person under the age of 18 years shall be decided by his parent or
guardian, means a single parent,” Justice Nik Hashim said.
Justice Azmel concurred with him on those points.
In September last year, the Kuala Lumpur High Court dismissed Subashini's
application to stop Saravanan from resolving their marital problems in the
syariah court.
On March 13, Court of Appeal had, in a 2-1 majority judgment, said Subashini had
recourse to seek in the syariah court for divorce and child custody.
Subashini, 29, and Saravanan, 32, have yet to finalise their divorce.
They have two children - Dharvin Joshua, four, and two-year-old Sharvin.
Justice Abdul Aziz's dissenting judgment is 112 pages.
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Circular No 297/2008
