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©Bernama
(Used by permission)
PUTRAJAYA, Dec 27 (Bernama) -- The civil court has exclusive jurisdiction
in any case involving the dissolution of a civil marriage and dispute over the
custody of children where one spouse has converted to Islam, the Federal Court
ruled today.
The husband and wife in the civil marriage were bound by the Law Reform
(Marriage and Divorce) Act 1976 with regard to divorce and dispute over the
custody of their children, ruled the panel of three judges led by Federal Court
judge Datuk Nik Hashim Nik Ab. Rahman.
"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," said Nik Hashim, who
presided together with Datuk Abdul Aziz Mohamad and Datuk Azmel Ma'amor.
Thus, he said, the non-Muslim marriage between the husband and wife remained
intact and continued to subsist until the Civil High Court dissolved it persuant
to a petition for divorce filed by the unconverted spouse under Section 51 (1)
of the Law Reform (Marriage and Divorce) Act 1976.
In his 33-page judgment, Nik Hashim also held that a non-Muslim marriage did not
automatically dissolve when one of the spouses converted to Islam.
The ruling was made in the appeal by former secretary R.Subashini who is
fighting for her matrimonial rights from her Muslim-convert husband T.Saravanan
and is also trying to prevent Saravanan from converting to Islam their second
son, Sharvin, two. Their first son, Dharvin Joshua, four, has been converted to
Islam by Saravanan.
Nik Hashim said, however, that Saravanan still had a right to seek remedies in
the Syariah Court as a Muslim and that his filing for a dissolution of the
marriage in the Syariah Court was not an abuse of the court process.
However, he said, Saravanan could not shield himself behind the freedom of
religion under Article 11 (1) of the Federal Constitution to avoid his
antecedent obligations under the Law Reform Act on the grounds that the Civil
Court has no jurisdiction over him.
"It must be noted that both the husband and wife were Hindus at the time of
marriage. Therefore, the status of the husband and wife at the time of
registering their marriage was of material importance, otherwise the husband's
conversion would cause injustice to the unconverted wife, including the
children," Nik Hashim said.
In spite of the ruling, the quorum, in a 2-1 majority, dismissed Subashini's
appeal to set aside the High Court's refusal to grant her an injunction order to
stop Saravanan from dissolving their marriage in the Syariah Court and
converting their second son to Islam. Justice Abdul Aziz dissented.
The court threw out Subashini's appeal after holding that her divorce petition
was invalid on technical grounds -- she had filed for it prematurely, two months
and 18 days short of the stipulated three months after the conversion of her
husband to Islam.
Nik Hashim said the Civil High Court would not have the jurisdiction to
entertain Subashini's petition for divorce unless she complied with the
requirement under Section 51 (1) of the Law Reform Act where that proviso
imposed a caveat on her not to file the divorce petition until a lapse of three
months from the date of her husband's conversion to Islam.
He said that in this case, Saravanan converted himself and the elder son to
Islam on May 18 2006 and the certificates of conversion of Islam issued to them
under Section 112 of the Administration of the Religion of Islam (State of
Selangor) Enactment 2003 conclusively proved that their conversion took place on
that date.
However, Nik Hashim said, Subashini was entitled to proceed with her application
on custody even though she failed to comply with Section 51 of the Law Reform
Act but he said it would be most appropriate if Subashini filed her petition for
divorce again.
"Assuming that the wife's (Subashini's) petition was properly filed before the
court, i.e. it was filed three months after the conversion, then my view is that
the High Court would have the jurisdiction to hear and determine the petition
for divorce and the application for ancillary relief under Section 51 of the Law
Reform Act even though the husband (Saravanan) had converted to Islam before her
petition for divorce had been filed in the Civil High Court and that he (Saravanan)
had already commenced the proceedings in the Syariah Court," the judge said.
Nik Hashim also said that the Civil Court could not be moved to injunct a
validly obtained order of a Syariah Court of competent jurisdiction, adding that
the injunction obtained by Subashini was in effect a stay of proceedings of
Saravanan's applications in the Syariah Court and that amounted to interference
by the Civil High Court in Saravanan's rights as a Muslim to pursue his remedies
in the Syariah Court.
"Both Civil and Syariah courts are creatures of statutes such as the Federal
Constitution, the Acts of Parliament and the State Enactments. These two courts
are administered separately and they are independent of each other. Although the
syariah courts are state courts they are not lower in status than the civil
courts. I would say, they are of equal standing under the Federal Constitution,"
Nik Hashim said.
Nik Hashim said that with the separation of the jurisdictions as laid out in
Article 121 (1A) of the Federal Constitution, the respective court cannot
interfere with each other's jurisdiction.
On Saravanan's counsel's contention that Subashini could submit to the
jurisdiction of the Syariah Court and have recourse to Section 53 of the
Administration of Islamic Law (Federal Territories) Act 1993, he said it was not
quite correct as the act limited its jurisdiction to Muslims only.
"The wife being a non-Muslim has no locus in the Syariah Court," Nik Hashim
said. Justice Azmel concurred with Nik Hashim's judgment.
Nik Hashim also ruled that the conversion of the elder son by Saravanan under
the Selangor Enactment did not violate the Federal Constitution.
He said a single parent could convert a child of a marriage to Islam without the
consent of the other parent, adding that the contention by Subashini's counsel
that Sarvanan did not have the right to convert their child without Subashini's
consent was misconceived.
Subashini was appealing against the Court of Appeal's 2-1 majority decision
delivered on March 13 dismissing her appeal against the Family Court's refusal
to grant the interparte injunction to her to temporarily prevent Saravanan from
commencing proceedings in the Syariah Court over their marriage and conversion
of their youngest son.
The appellate court had held that the Civil Court could not stop a Muslim
convert from going to the Syariah Court to dissolve his marriage to his or her
non-Muslim spouse and also to intiate proceedings relating to custody of the
children.
Subashini, 28, and Saravanan, 31, whose Muslim name is Muhammad Shafi Abdullah,
31, have yet to finalise their marriage.
In the 112-page dissenting judgment, Justice Abdul Aziz said the dissolution of
marriage in the case which was a non-Muslim marriage and matters consequential
including maintenance, custody of children and other ancillary relief were not
matters within the jurisdiction of the Syariah Court.
Abdul Aziz also said that it was an abuse of process for a converted spouse to
file custody proceedings in the Syariah Court in respect of the children under
civil marriage because the Syariah Court has no jurisdiction in the matter of
the custody of children of a non-Muslim marriage.
He granted an interim injunction against the conversion of Sharvin.
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Circular No 297/2008
