IN THE FEDERAL COURT OF MALAYSIA AT PUTRAJAYA
(CIVIL APPEALS NO. 02–19–2007(W), NO. 02–20–2007(W), NO. 02–21–2007(W) )
SUBASHINI A/P RAJASINGAM … APPELLANT
SARAVANAN A/L THANGATHORAY … RESPONDENT
APPEALS FROM COURT OF APPEAL MALAYSIA
(CIVIL APPEALS NO. W–02–955–2006, W–02–1041–2006)
NIK HASHIM BIN NIK AB. RAHMAN, FCJ
ABDUL AZIZ BIN MOHAMAD, FCJ
AZMEL BIN HAJI MAAMOR, FCJ
27 December 2007
Judgment of Nik Hashim Nik Ab. Rahman, FCJ:
1. There were three appeals (02–19–2007(W), 02–20–2007(W) and 02–21–2007(W)) before us and with the agreements of the parties, they were heard together.
2. The parties to the three appeals were originally Hindus husband and wife; they were married pursuant to a civil ceremony of marriage that was registered on 26 July 2001 pursuant to the Law Reform (Marriage and Divorce) Act 1976 (the 1976 Act). There were two children of the marriage, both boys: Dharvin Joshua aged 4 and Sharvin aged 2. The husband converted himself and the elder son to Islam on 18 May 2006. Later, the wife received a notice dated 14 July 2006 from the Registrar of the Syariah High Court Kuala Lumpur informing her that her husband had commenced proceedings in the Syariah High Court for the dissolution of the marriage and custody of the elder son. He filed the application in the Syariah High Court on 23 May 2006. An interim custody order in respect of the converted son was issued to the husband by the Syariah High Court. On 4 August 2006, which was 2 months and 18 days after the husband’s conversion and knowing that the husband had taken proceedings in the Syariah High Court, the wife filed a petition for the dissolution of the marriage pursuant to section 51 of the 1976 Act coupled with an application for custody and ancillary reliefs in the High Court. The wife did not object to the husband’s conversion to Islam.
3. Meanwhile, the wife applied for and obtained an exparte injunction against the husband. The husband then filed an application to set aside the said injunction. Pursuant to an inter–partes hearing, the High Court dismissed the wife’s application and allowed the husband’s application and set aside the said injunction. However, the High Court granted an interim Erinford injunction pending an appeal to the Court of Appeal. (See (2007) 7 CLJ 584).
4. On 13 March 2007 the Court of Appeal by a majority upheld the High Court decision to dismiss the application by the wife for an injunction but allowed the husband’s appeal against the grant of the Erinford injunction by the High Court. Thus, there are two appeals (No. 02–19–2007(W), No. 02–21–2007(W)) by the wife against these decisions of the Court of Appeal (see (2007) 2 CLJ 451).
5. On 30 March 2007 on a motion by the wife, the same panel of the Court of Appeal by a majority allowed an Erinford injunction pending her application for leave to appeal to the Federal Court against the decision of the Court of Appeal. This decision is the subject matter of the husband’s appeal before this Court in Civil Appeal No. 02–20–2007(W). (See (2007) 3 CLJ 209).
6. On 17 May 2007 the Federal Court unanimously granted leave to appeal on the three appeals and continued the Erinford injunction until the disposal of these appeals.
The main questions for determination by the Federal Court are as follows :
“(1) Whether in an application for an interim injunction a Court can make a final determination on issues of law, in particular, where it refers to a question of jurisdiction, as opposed to a consideration of only the existence of a serious issue of law to be determined?
(2) If the answer to question number 1 is in the affirmative, then :
(2.1) In situations where one spouse in a marriage solemnized under the Law Reform (Marriage and Divorce) Act 1976 (a “Law Reform Marriage”) converts to Islam and the other does not, does the High Court or the Syariah Court have exclusive jurisdiction to grant decrees of divorce of such Law Reform Marriages and to make all other orders in respect of the division of matrimonial assets, the maintenance of spouse and of the children of the Law Reform Marriage (“children of the Law Reform Marriage”), the custody, care and control of the children of the Law Reform Marriage and all other matters incidental thereto?
(2.2) Further to question (2.1) :
(2.2.1) are provisions such as s46(2)(b)(i) of the Administration of Islamic Law (Federal Territories) Act 1993 (the “1993 Act”) intended only to address marriages
solemnized under the relevant State Islamic legislation (“Islamic marriages”);
(2.2.2) as such, is the jurisdiction and/or power vested by such provisions in the syariah courts limited to the granting of decrees of divorce and orders consequential to such decrees pertaining to inter alia maintenance, custody, and child support in respect of Islamic marriages?
(2.3) In the event, the answers to questions 2.2.1 and 2.2.2 are in the affirmative, is it an abuse of process for the converted spouse to file custody proceedings in the syariah courts in respect of the children of the Law Reform Marriage?
(2.4) Is it an abuse of process for a spouse of a Law Reform Marriage to unilaterally convert the religion of a minor child of the Law Reform Marriage without the consent of the other parent.
(2.5.1) Is the High Court empowered to grant interlocutory relief aimed at preserving status quo in the course of disposing a petition under section 51 of the Law Reform (Marriage and Divorce) Act 1976?
(2.5.2) If so, can the High Court grant interim injunctions to prevent abuses of process having the effect of undermining the petition filed under section 51 of the Law Reform (Marriage and Divorce) Act 1976?
(2.6) Does Article 121(1A) of the Federal Constitution prevent the High Court from granting such interim injunctions where the abuse of process is effected through the jurisdictionally incompetent and deficient
(2.6.1) filing or proceedings in the syariah courts and/or
(2.6.2) unilateral conversion of a minor child of the Law Reform Marriage by the converted spouse?
(2.7) Can provisions such as section 53 of the 1993 Act be read as including within their ambit persons not professing the religion of Islam?”
Questions on Erinford injunction
7. Respecting the order of setting aside of the Erinford injunction by a majority decision of the Court of Appeal on 13 March 2007, and the order of granting the same on 30 March 2007 by a majority decision of the Court of Appeal pending an application for leave to appeal to the Federal Court, the Federal Court granted leave to appeal on two questions :
(1) Where a court disallows an application for an interim injunction on the basis of a want of jurisdiction and the said decision is appealed, is the court disentitled from granting an Erinford type of injunction?
(2) Does the Federal Court have exclusive jurisdiction to grant an Erinford type of injunction pending the hearing and disposal of an application for leave to appeal to the Federal Court or is it a concurrent jurisdiction exercisable by the Court of Appeal in the first instance?
Main Question No. (1)
8. The question of whether a court, in an application for
an interim injunction, should decide the issue of jurisdiction
as opposed to a decision of only the existence of a serious
issue, depends on the facts of each case. Where the evidence
upon which challenge to jurisdiction is made is of such a
quality that renders a trial unnecessary, a court may proceed
to make findings based upon that evidence, if not, the court
may order the matter to be tried (Dato’ Param
Cumaraswamy v MBF Capital Bhd & Anor (1997) 3 MLJ
824 CA). It must be noted that lack of jurisdiction has the
consequence that the court has no right to enter upon the
enquiry as to whether there exists a state of facts which
would entitle the court to grant to the applicant the relief
sought. (See Rediffusion (Hong Kong) Ltd v Attorney
General of Hong Kong (PC) (1970) AC 1136).
9. In the present case, the wife had obtained an ex–parte injunction. The husband applied to set aside the ex–parte injunction on the ground that the court was not seized with jurisdiction in light of Article 121 (1A) of the Federal Constitution (the FC). The wife contends that the Article is not applicable. In such a conflict, the High Court and the Court of Appeal were correct in dealing with the issue of jurisdiction as a threshold issue and the parties had agreed to that approach. As such, my answer to the question is in the affirmative.
Main Questions No. (2) – (2.7)
10. Section 51 of the 1976 Act provides for dissolution of marriage on the ground of conversion to Islam. However it must be noted that it only provides a ground for the other party who has not converted to petition for divorce. The section states :
(1) Where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce :
Provided that no petition under this section shall be presented before the expiration of the period of three months from the date of conversion.
(2) The court upon dissolving the marriage may make provision for the wife or husband, and for the support, care and custody of the children of the marriage, if any, and may, attach any conditions to the decree of the dissolution as it thinks fit. (emphasis added)
11. It was contended by learned counsel for the wife that the word ‘shall’ appearing in the proviso is directory. With respect, I do not agree. The proviso to section 51(1) of the 1976 Act clearly reflects the imperative requirement which must be complied with before a petition for divorce can be made. By its terms, the proviso imposes a caveat on the wife not to file the petition for divorce until a lapse of 3 months from the date of the husband’s conversion to Islam. The 3 months period is incorporated into the proviso probably to provide for the ‘iddah’ period. Be that as it may, it is the duty of the court to give effect to the words used by the legislature. Thus, in my judgment, unless the proviso is complied with, the High Court would not have the jurisdiction to entertain the wife’s petition.
12. In the present case, it is clear from the evidence that the husband converted himself and the elder son to Islam on 18 May 2006. The certificates of conversion to Islam issued to them under section 112 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 conclusively proved the fact that their conversion took place on 18 May 2006. Thus, I respectfully agree with Hassan Lah JCA that the wife’s petition was filed in contravention of the requirement under the proviso to section 51(1) of the 1976 Act in that it was filed 2 months and 18 days short of 3 months after the husband’s conversion to Islam. It follows therefore that the petition was premature and invalid and the summons–in–chambers, ex–parte and inter parte based on the petition which were filed therein were also invalid.
13. Learned counsel for the wife also submitted that notwithstanding the finding that the petition for divorce was invalid for failure to comply with the proviso to section 51(1) of the 1976 Act, the wife is still entitled to proceed with the application regarding custody pursuant to section 88 and ancillary reliefs under sections 77 and 93 of the 1976 Act. In my view, the wife is entitled to proceed with the rest of the application but it would be most appropriate if she files her petition for divorce afresh under section 51 coupled with an application for ancillary reliefs as the court would grant the reliefs under section 51(2) upon dissolution of the marriage.
14. On finding that the wife’s petition for divorce was invalid, is it still necessary for this Court to answer the questions posed? I would answer the questions nevertheless as the questions are questions of importance upon which a decision of the Federal Court would be to public advantage.
15. Assuming that the wife’s petition was properly before the Court i.e. it was filed 3 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 reliefs under section 51 of the 1976 Act even though the husband had converted to Islam before her petition for divorce had been filed in the High Court and that he had already commenced the proceedings in the Syariah Court. In Tan Sung Mooi (f) v Too Miew Kim (1994) 2 AMR 35, 1799 the then Supreme Court (Abdul Hamid, LP, Gunn Chit Tuan, CJ (Malaya), Edgar Joseph Jr, Mohd Eusoff Chin, Mohamed Dzaiddin, SCJJJ) at p1807 said:
“Under s 51, where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce and the court upon dissolving the marriage may make provision for the wife or husband and for the support, care and custody of the children of the marriage and may attach any condition to the decree of dissolution. The legislature, by enacting s 51, clearly envisaged a situation that where one party to non–Muslim marriage converted to Islam, the other party who has not converted may petition to the High Court for divorce and seek ancillary reliefs. Further, it would seem to us that Parliament, in enacting sub–section 51(2), must have had in mind to give protection to non–Muslim spouses and children of the marriage against a Muslim convert.”
16. It must be noted also that the High Court had exercised its civil jurisdiction in this matter under section 24(a) of the Courts of Judicature Act 1964 which states that the jurisdiction of the High Court shall include the jurisdiction under any written law relating to divorce and matrimonial causes. The phrase “any written law relating to divorce and matrimonial causes” must include the 1976 Act.
17. On the complaint by learned counsel for the husband that the provision under section 51(1) of the 1976 Act is unjust and ultra vires Article 8(1) of the FC and therefore void for it only allows the unconverted non–Muslim spouse to become the petitioner in a divorce petition and an applicant in ancillary relief applications, whereas the converted Muslim spouse under the provision is compelled to remain as a respondent in such petition or application, I am of the view that section 51(1) does not violate Article 8 of the FC and therefore is not void as complained. The classification created by section 51(1) is a reasonable classification as the persons in the non–converting category are treated equally as are persons in the converting category (see Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd (2004) 1 CLJ 701.
18. I agree with learned counsel for the wife that the status of the parties at the time of the marriage is the material consideration for the purpose of determining the question of jurisdiction. In Kamariah bte Ali dan lain–lain v Kerajaan Negeri Kelantan dan Satu lagi (2005) 1 MLJ 197, the appellants claimed by a statutory declaration that they were no longer Muslims in August 1998. They were sentenced to imprisonment on 5 October 2000 for failure to abide by the order of the Syariah Court of Appeal relating to the offence under Undang–Undang Majlis Agama Islam dan Adat Istiadat Melayu Kelantan which they had committed before August 1998. The appellants contended that as they were no longer Muslims, the Syariah Court had no jurisdiction over them. Therefore, the issue was whether the appellants must be Muslims when they were sentenced in October 2000. In resolving the issue, the Federal Court (Ahmad Fairuz CJ, Mohd Noor Ahmad, P.S.Gill, Rahmah Hussain FCJJ and Richard Malanjum CJA (as he then was) ) concluded that notwithstanding their claim to no longer being Muslims, the material time for determining the question of jurisdiction was the time when the offence were committed and at that time the appellants were Muslims. In concluding that the Syariah Court had the jurisdiction, the Federal Court observed :
“Oleh yang demikian, persoalan yang timbul ialah sama ada perkara–perkara perayu–perayu mestilah menganut agama Islam ketika hukuman–hukuman dijatuhi ke atas mereka dalam bulan Oktober 2000 itu adalah relevan atau penentu (crucial). Perlu diingat bahawa kesalahan terhadap mana perayuperayu dihukum adalah dilakukan oleh perayuperayu sebelum mereka membuat akuan berkanun mengisytiharkan mereka keluar dari agama Islam.”
The Federal Court then continued :
“…. Mahkamah berpendapat bahawa masa yang material untuk menentukan sama ada perayu–perayu adalah orang yang menganut agama Islam ialah masa ketika mana perayu–perayu melakukan kesalahan …. Jika pendekatan maksud tidak diambil, orang–orang Islam yang menghadapi tuduhan di Mahkamah Syariah boleh sewenangwenangnya menimbulkan pembelaan yang mereka bukan lagi seorang yang menganut agama Islam dan dengan demikian tidak tertakluk kepada bidang kuasa Mahkamah Syariah. Keadaan sebegini akan menjejaskan pentadbiran Undang–Undang Islam di Malaysia dan mungkin juga undang–undang agama lain.”
19. Thus, by analogy, the above principle applies to our case. The husband could not shield himself behind the freedom of religion clause under Article 11(1) of the FC to avoid his antecedent obligations under the 1976 Act on the ground 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 their 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. A non–Muslim marriage does not automatically dissolve upon one of the parties converted to Islam. Thus, by contracting the civil marriage, the husband and wife were bound by the 1976 Act 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.
20. But in the present case, the husband had converted to Islam and had filed the proceedings in the Syariah High Court for the dissolution of the marriage and the custody of the converted son. By embracing Islam, the husband and the son became subject to Muslim personal and religious laws and 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.
21. Section 46(2) of the Islamic Family Law (Federal Territories) Act 1984 (the 1984 Act) states :
“The conversion to Islam by either party to a non–Muslim marriage shall not by itself operate to dissolve the marriage unless and until so confirmed by the court.”
The act of confirmation of the dissolution of the marriage under the section is not a mere administrative act as understood by the Court of Appeal, but a full judicial proceeding before the Syariah High Court as it happened in Dalam Perkara Permohonan Perisytiharan Pembubaran Perkahwinan Disebabkan Pertukaran Agama – Permohonan Siti Aisyah Janthip Aisam, JHXXI/11 (1427H) 262, where the Syariah High Court Kuala Terengganu after evaluating the evidence and applying the Hukum Syarak, allowed the wife’s application to dissolve her Buddhist civil marriage to the husband pursuant to section 43(2) Enakmen Undang–Undang Pentadbiran Keluarga Islam (Negeri Terengganu) 1985, which is equivalent to section 46(2) of the 1984 Act. It appears from the case that the husband did not contest the application and neither a decree of divorce granted under section 51 of the 1976 Act by the High Court was ever produced in the Syariah Court. 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 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.
22. In the present case, there is no impediment for the converted spouse, i.e. the husband, to appear in the divorce proceeding in the High Court albeit as a respondent, as the jurisdiction of the High Court extends to him unlike the Syariah High Court which restricts its jurisdiction to persons professing the religion of Islam only, for example under section 46(2)(b) of the Administration of Islamic Law (Federal Territories) Act 1993 (the 1993 Act) where in its civil jurisdiction relating to (i) marriage and (iii) custody, the Syariah High Court shall have the jurisdiction to hear and determine the action in which all the parties are Muslims. Thus, the contentions that the wife could submit to the jurisdiction of the Syariah Court and have recourse to section 53 of the 1993 Act are not quite correct as the 1993 Act limits its jurisdiction to Muslims only. The wife, being a non–Muslim, has no locus in the Syariah Court.
23. Both civil and Syariah courts are creatures of statutes such as the FC, 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 FC. This recognition of the Syariah courts was largely due to Article 121 (1A) of the FC which excludes the jurisdiction of the civil courts on any matter within the jurisdiction of the Syariah courts. The Article, which came into force from 10 June 1988, states :
“The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”
24. In Mohamed Habibullah bin Mahmood v Faridah bte Dato’ Talib (1992) 2 MLJ 793, the Supreme Court ruled that Article 121 (1A) of the FC makes clear distinction between the jurisdiction of the Syariah and the civil courts by holding that :
“(1) The intention of Parliament by Article 121 (1A) of the Federal Constitution is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Court.”
Therefore, with the separation of the jurisdictions, the respective court cannot interfere with each other’s jurisdiction. In Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara, Malaysia & Anor (1999) 2 MLJ 241 the Federal Court reminded at p245 :
“We agree with the views expressed by the Court of Appeal on the necessity of cl(1A) being introduced into art 121 of the Federal Constitution. It was to stop the practice of aggrieved parties coming to the High Court to get the High Court to review decisions made by Syariah Courts. Decisions of Syariah Court should rightly be reviewed by their own appellate courts. They have their own court procedure where decisions of a court of a Kathi or Kathi Besar are appealable to their Court of Appeal.”
See also Nedunchelian V Uthiradam v Norshafiqah Mah Singai Annal & Ors (2005) 2 CLJ 306 where I agree with Syed Ahmad Helmy JC (as he then was) when he said at p315 :
“Cases authorities have repeatedly stressed and established that the High Court in its civil jurisdiction cannot challenge and or dispute and/or vary, strike out or declare or injunct the execution of an order of the Syariah Court – see Sukma Darmawan Sasmitaat Madja lwn. Ketua Pengarah Penjara Malaysia (1999) 1 CLJ 481; Kamariah bt Ali v Kerajaan Negeri Kelantan, Malaysia dan Yang Lain (dan 3 Rayuan Yang Lain) (2002) 3 CLJ 766.”
Thus, the civil court cannot be moved to injunct a validly obtained order of a Syariah court of competent jurisdiction. The injunction obtained by the wife, although addressed to the husband, was in effect a stay of proceedings of the husband’s applications in the Syariah High Court and this amounts to an interference by the High Court of the husband’s exercise of his right as a Muslim to pursue his remedies in the Syariah High Court. Obviously, the law does not permit such an interference.
25. The wife complained that the husband had no right to convert either child of the marriage to Islam without the consent of the wife. She said the choice of religion is a right vested in both parents by virtues of Articles 12(4) and 8 of the FC and section 5 of the Guardianship of Infants Act 1961. 26. After a careful study of the authorities, I am of the opinion that the complaint is misconceived. Either husband or wife has the right to convert a child of the marriage to Islam. The word ‘parent’ in Article 12(4) of the FC, 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. In Teoh Eng Huat v The Kadhi, Pasir Mas, Kelantan & Anor (1990) 2 CLJ 11, Abdul Hamid Omar LP, delivering the judgment of the Supreme Court, said at p14 :
“In all the circumstances, we are of the view that in the wider interests of the nation, no infant shall have the automatic right to receive instructions relating to any other religion than his own without the permission of the parent or guardian.”
Further down, His Lordship continued :
“We would observe that the appellant (the father) would have been entitled to the declaration he had asked for. However, we decline to make such declaration as the subject is no longer an infant.” (emphasis added)
Therefore, Article 12(4) must not be read as entrenching the right to choice of religion in both parents. That being so, Article 8 is not violated as the right for the parent to convert the child to Islam applies in a situation where the converting spouse is the wife as in Nedunchelian, supra, and as such, the argument that both parents are vested with the equal right to choose is misplaced. Hence the conversion of the elder son to Islam by the husband albeit under the Selangor Enactment did not violate the FC. Also reliance cannot be placed on section 5 of the Guardianship of Infants Act 1961 which provides for equality of parental rights since section 1(3) of the same Act has prohibited the application of the Act to such person like the husband who is now a Muslim. (See Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah & Anor (2004) 2 CLJ 416).
27. There were two appeals in respect of Erinford injunction : one was against the order of setting aside by a majority decision of the Court of Appeal and the other was against the order of granting the same by a majority decision of the Court of Appeal pending the wife’s application for leave to appeal to the Federal Court.
28. The learned judicial commissioner in granting the Erinford injunction was of the view that on the balance of convenience it was desirable that the status quo of the parties be maintained pending appeal to the Court of Appeal to prevent the appeal from being rendered nugatory. In my judgment, the High Court was right. The High Court was entitled to grant an Erinford injunction even though it had held that it had no jurisdiction to grant the substantive interim injunction. In Erinford Properties Ltd v Cheshire County Council (1974) 2 All ER 448 Megarry J said at p454 :
“….. where the application is for an injunction pending an appeal, the question is whether the judgment that has been given is one on which the successful party ought to be free to act despite the pendency of an appeal. One of the important factors in making such a decision, of course, is the possibility that the judgment may be reversed or varied. Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. No human being is infallible, and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly consistently with his decision, recognize that his decision might be reversed, and that the comparative effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal ….”
So, in the light of the above, it is clear that even an objection is raised as to the jurisdiction of the Court this does not deprive the Court of its jurisdiction to preserve the status quo pending the appeal (see Tun Datu Haji Mustapha bin Datu Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang Di–Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan (1986) 2 MLJ 39).
See also Celcom (Malaysia) Bhd v Inmiss Communication Sdn Bhd (2003) 3 MLJ 178 where the above principle was applied in granting an Erinford injunction to restrain the defendant from taking further steps in a winding up petition pending hearing of the plaintiff’s appeal to the Court of Appeal against the decision made by the High Court dismissing the plaintiff’s application for an injunction to restrain the defendant from filing a winding up petition against the plaintiff.
Hence, the majority decision of the Court of Appeal setting aside the Erinford injunction was erroneous and to that extent the appeal must be allowed. The order of the Court of Appeal is therefore set aside and the order of the High Court granting the Erinford injunction is restored.
29. With regard to the granting of the Erinford injunction pending the wife’s application for leave to appeal to the Federal Court, I agree with the majority decision of the Court of Appeal that it had the jurisdiction to grant the wife’s application. The issue concerning the jurisdictional point had been conclusively determined against the husband by the majority decision of the Court of Appeal in Chong Wooi Leong & Ors v Lebbey Sdn Bhd (No.2) (1998) 2 MLJ 661 where Abu Mansor JCA (later FCJ) considered it ‘trite law that a court which has given judgment certainly has the power to order stay’. An Erinford injunction pending an appeal or an application for leave to appeal, like a stay of execution pending an appeal, is ordinarily granted by the court which made the decision that is the subject of the appeal. Certainly, the Court of Appeal has the jurisdiction to grant such an injunction pending an application for leave to appeal to the Federal Court. Thus, the majority decision of the Court of Appeal on 30 March 2007 applied the correct principles of law when it allowed the Erinford injunction pending the hearing and disposal of the wife’s application for leave to appeal to the Federal Court.
30. The Federal Court too has the jurisdiction under section 80(1) of the Courts of Judicature Act 1964 to grant an Erinford injunction pending an application for leave to appeal to the Federal Court.
31. Accordingly, my answers to the main questions posed are as follows :
(2.1) Yes, but subject to the right of the converted
spouse under the Islamic law.
(2.6.1) Yes – Filing the proceedings in the Syariah
Court is not an abuse of process.
(2.6.2) Yes – unilateral conversion of a minor child
of the Law Reform Marriage by the
converted spouse is not an abuse of process.
32. With regard to the questions on Erinford injunction my answers to the questions posed are as follows :
(2) Concurrent jurisdiction exercisable by the Court of Appeal.
In the circumstances, I make the following orders :
1. The wife’s appeal in the Federal Court Civil Appeal No. 02–19–2007(W) (the dismissal of the inter partes injunction) is dismissed with costs here and below and the deposit be paid to the husband to account of his taxed costs. The majority decision of the Court of Appeal Civil Appeal No. W–02–955–2006 is upheld.
2. The wife’s appeal in the Federal Court Civil Appeal No. 02–21–2007(W) (the setting aside of the Erinford injunction) is allowed with costs here and below and the deposit be returned to the wife. The majority decision of the Court of Appeal No. W–02–955–2006 is reversed.
3. The husband’s appeal in the Federal Court Civil Appeal No. 02–20–2007(W) (the granting of the Erinford injunction pending appeal to the Federal Court) is dismissed with costs here and below and the deposit be paid to the wife to account of her taxed costs. The majority decision of the Court of Appeal Civil Appeal No. W–02–1041–2006 is upheld.
Judgment of Abdul Aziz Mohamad, FCJ:
1. The parties will be referred to respectively as the Wife and the Husband. They were married on 26 July 2001, the marriage being solemnized and registered under the Law Reform (Marriage and Divorce) Act 1976 (Act 164) (“the Law Reform Act”). Being Hindu, they went through a Hindu wedding ceremony on 9 March 2002.
2. It was and still is, to employ the term used in section 46(2) of the Islamic Family Law (Federal Territories) Act 1984 (Act 303) (“the Family Law Act”), a “non–Muslim marriage” governed by the Law Reform Act, which, according to its section 3(3), does not apply to a Muslim or to any person who is married under Islamic law and under which, according to that section, no marriage where one of the parties is a Muslim may be solemnized or registered. But that section provides for an exception which relates to section 51, whose subsections (1) and (2) provide as follows:
“(1) Where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce:
Provided that no petition under this section shall be presented before the expiration of the period of three months from the date of the conversion.
(2) The Court upon dissolving the marriage may make provision for the wife or husband, and for the support, care and custody of the children of the marriage, if any, and may attach any conditions to the decree of the dissolution as it thinks fit.”
For the States of Malaya, the “Court” in subsection (2) is the High Court in Malaya that is mentioned in Article 121(1)(a) of the Federal Constitution (“the Constitution”). The aforesaid exception provided by section 3(3) of the Law Reform Act is that a decree of divorce granted on a petition under section 51 “shall, notwithstanding any other written law to the contrary, be valid against the party who has … converted to Islam”.
3. Two male children were born of the marriage: Dharvin Joshua on 11 May 2003 and Sharvind on 16 June 2005.
4. Until the marriage broke down, the parties and their children had been living at a three–room apartment in the name of the Husband and his mother in Taman Miharja in the Federal Territory of Kuala Lumpur, where also lived the husband’s mother, his two sisters and his niece (“the marital home”).
5. The Husband’s account of events relating to the breakdown of the marriage conflicts with that of the Wife. The Wife’s account is essentially this. Since about October 2005 the Husband had kept staying away from the marital home for long periods. She believed he had a girlfriend. After leaving in February 2006 he did not show up until 11 May 2006, Dharvin’s third birthday, when he verbally attacked her with the accusation that Sharvind was another man’s son and threatened to kill her if she did not leave the marital home. He also told her that he had converted to Islam. His mother and sisters joined him in the verbal attack. She ended up attempting to commit suicide by slitting her wrist and swallowing fifty pills. Her female cousin, a birthday guest, took her to the Kuala Lumpur Hospital where she was warded for about four days. Upon her discharge, her aunt and uncle took her back to the marital home from the hospital. The Husband and Dharvin were not there. The Husband’s mother told her that she had nothing more to do with Dharvin and asked her to leave the marital home. So, feeling scared, she took Sharvind, packed some of her things and left with Sharvind and her things for her grandmother’s house in Seremban.
6. The Husband’s account is essentially this. He denies staying away from the marital home. He denies the Wife’s account of what happened on 11 May 2006. He denies the Wife’s account of her coming back to the marital home from the hospital and taking away Sharvind. His account is that on 14 May 2006 at about 10.00 p.m. he had a quarrel with the Wife, after which he left the marital home. In his absence, the Wife left the marital home without the children. On 16 May 2006 at about 11.00 p.m. she came back with three unknown men to the marital home, when the Husband was not there, and attempted to take away the two children, but she only managed to take away Sharvind because Dharvin refused to follow her.
7. On 17 May 2006 the Husband made a statutory declaration that he wished Dharvin to embrace Islam and that Dharvin’s name be changed to Mohd Shazrul. In it the Husband said that he and Dharvin were living at the marital home. It was intended for the Muslim Welfare Organisation Malaysia or Pertubuhan Kebajikan Islam Malaysia (PERKIM), which on 18 May 2006 certified that on that day the Husband and Dharvin had embraced Islam at the PERKIM Headquarters at Jalan Ipoh, Kuala Lumpur, taking the names respectively of Muhammad Shafi Saravanan bin Abdullah and Muhammad Shazrul Dharvin bin Muhammad Shafi. The two certificates, one in respect of each of them, gave as their address the Rivera Apartments, Taman Muda, Ampang, in the State of Selangor and directed them to the Jabatan Agama Islam of that State (JAIS) to obtain the “kad pengislaman JAIS”.
8. On 19 May 2006 the Husband applied to the Syariah Subordinate Court, Federal Territory of Kuala Lumpur, for confirmation that the marriage of himself and the Wife, which is a non–Muslim marriage, had been dissolved and for any reliefs that the court might consider fit. The notice of application was directed to the Wife, who was cited as respondent, at an address in Seremban. The ground of the application, as stated in the Husband’s affidavit, was the Husband’s conversion to Islam on 18 May 2006. In the affidavit the Husband gave the marital home as his address.
9. The application was made on the basis of section 46(2) of the Family Law Act. According to its long title, it is an Act “to enact certain provisions of the Islamic Family Law in respect of marriage, divorce, maintenance, guardianship, and other matters connected with family life”.
Section 46 provides as follows:
“46. (1) The renunciation of Islam by either party to a marriage or his or her conversion to a faith other than Islam shall not by itself operate to dissolve the marriage unless and until so confirmed by the Court.
(2) The conversion to Islam by either party to a non–Muslim marriage shall not by itself operate to dissolve the marriage unless and until so confirmed by the Court.”
“Court” in the section is a Syariah Court. Subsection (1) involves a Syariah Court confirming that the apostasy of a party to a Muslim marriage has operated to dissolve the Muslim marriage. Subsection (2), on which the Husband’s application was based, involves a Syariah Court confirming that the conversion to Islam of a party to a non–Muslim marriage has operated to dissolve the non–Muslim marriage.
10. Also on 19 May 2005 the Husband applied to the Syariah High Court, Federal Territory of Kuala Lumpur, for interim custody of Dharvin. This was granted ex parte on 23 May 2006, the order to be in force until the disposal of the main custody application, the summons for which was dated the same day and was directed to the wife in Seremban, who was cited as respondent. The application was for the custody of Dharvin and appropriate reliefs and was made on the ground that as the Husband and Dharvin were now Muslim, whereas the Wife was Hindu, the Husband was qualified to have custody, and the Wife was not, according to Islamic law.
11. The conversion to Islam of the Husband and Dharvin was registered by the Registrar of Muallafs, State of Selangor, under section 111 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (No. 1 of 2003) (“the Selangor Enactment”).. On 25 May 2006 he issued in respect of each of them a card which states that it was issued as a Certificate of Conversion (which section 112 requires to be issued to every registered convert). It states 18 June 2006 as the date of conversion. 12. On 14 July 2006 the Syariah High Court, Federal Territory of Kuala Lumpur, issued a notification, directed to the Wife in Seremban, of the Husband’s application for the custody of Dharvin and of its being set down for hearing on 14 August 2006. In the notification the Husband and Dharvin were referred to by their original as well as their Muslim names.
At the High Court
13. On 4 August 2006 the Wife presented at the High Court in Malaya at Kuala Lumpur a petition for divorce under section 51 of the Law Reform Act on the ground of the Husband’s conversion to Islam. Besides other reliefs, she sought custody of Dharvin and Sharvind and a permanent (or perpetual) injunction to restrain the Husband from changing the children’s religion to Islam without her written consent. She also sought maintenance for herself and the children and a share in the marital home. On 7 August 2006 the Wife filed a summons–in–chambers under the divorce petition at the High Court in Malaya at Kuala Lumpur, which was supported by an affidavit dated 4 August 2006 and by which she applied under O 29 of the Rules of the High Court 1980 for an interim (or temporary) injunction to restrain the Husband, pending the disposal of her petition, from, firstly, converting Dharvin and Sharvind to Islam (“injunction against conversion”) and, secondly, commencing and continuing with any form of proceedings in any Syariah Court in respect of the marriage of the parties or in respect of the two children or either of them (“injunction against proceedings”).
14. It is from the affidavits of the parties for that summons–in–chambers
that have been gathered the facts that have been set out relating to the
breakdown of the marriage, the conversion of the Husband and Dharvin,
and the Husband’s applications to the Syariah Courts. It must, however, be
mentioned that, according to the Wife, when she presented her petition for
divorce and made the affidavit dated 4 August 2006 in support of her
summons–in–chambers, she did not know of the actual fact of the
Husband’s and Dharvin’s conversion or of the Husband’s applications to
the Syariah Courts. These she knew only from the Husband’s affidavit in
reply. Until then, all the information that she had had was from the
Syariah High Court’s notification to her dated 14 July 2006 of the
Husband’s custody application, which she, in paragraph 12 of her said
affidavit dated 4 August 2006, admitted receiving “recently”, and from
which, according to her, she learned that the Husband was seeking custody
of Dharvin from the Syariah High Court and that Dharvin had been given
a Muslim name, which was without her consent. The Husband, however,
claimed, in paragraph 14 of his affidavit in reply dated 28 August 2006,
that the Wife was aware of those things because he did attempt to serve on
her the Syariah High Court’s interim order for custody of Dharvin of 23
May 2006 and the Husband’s application to the Syariah Subordinate Court
dated 19 May 2006 for confirmation of dissolution of marriage, but the
Wife refused to accept those documents after reading their contents. This
the Wife denied. Where the Husband’s conversion is concerned, it is a fact
that the Wife’s petition for divorce, and her affidavit in support of her
summons–in–chambers, do not disclose any knowledge of it other than
what she claimed the Husband told her on 11 May 2006, Dharvin’s third
birthday. Paragraph 6 of the petition for divorce avers that the Husband
moved out of the marital home in February 2006 and on 11 May 2006 told
the Wife that he had converted to Islam and threatened to kill her if she did
not leave the marital home. The paragraph concludes by expressing the
Wife’s belief that the Husband had converted to Islam in February 2006 or
earlier. The question of the date of conversion is important for the proviso
to section 51(1) of the Law Reform Act, which is one of the questions that
will be considered later.
15. On 11 August 2006 the High Court granted ex parte the interim injunction sought by the Wife. On 25 August 2006 the Husband filed an application to set aside the ex parte injunction on several grounds, of which only two need be mentioned. One was that section 54(b) of the Specific Relief Act 1950 (Act 137) forbids the granting of an injunction “to stay proceedings in a court not subordinate to that from which the injunction is sought”. The other was that the matters of dissolution of the marriage and custody of the children, and matters in respect of the marriage, were matters within the jurisdiction of the Syariah Courts and therefore, by virtue of Clause (1A) of Article 121 of the Constitution, the courts referred to in Clause (1), which include the High Court in Malaya, do not have jurisdiction in respect of them. Clause (1A) says: “The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts”.
16. The hearing of the Husband’s setting–aside application and the inter partes hearing of the Wife’s injunction application were undertaken together. On 25 September 2006 the High Court dismissed the Wife’s injunction application and set aside the ex parte injunction of 11 August 2006. But on the oral application of the Wife the High Court granted her on that day an Erinford injunction pending the Wife’s appeal to the Court of Appeal, in substantially the same terms, except that the injunction against conversion was confined to Sharvind only. This was because at the inter partes hearing in the High Court the Wife was concerned only to prevent the conversion of Sharvind, Dharvin having been certified to have converted, although she still disputed the validity of the conversion and was taking it up for judicial review.
17. It is noted that while the injunction against proceedings sought to avoid proceedings in any Syariah Court in respect of the marriage or the two children or any of them, the immediate concern that is shown in the affidavit in support of the Wife’s summons–in–chambers was not a concern for the Wife herself but a concern for Dharvin and for Dharvin only. And the immediate concern was in the matter of Dharvin’s custody, which the Husband was seeking in the Syariah High Court. There was no immediate concern as regards Sharvind, probably because the Husband was not seeking the custody of him and he was in the actual custody of the Wife. The cause of the Wife’s concern was of a jurisdictional nature, as may be seen from the grounds of the application that are set out in the summons–in–chambers, where the references are to the “child”, and from paragraph 13 of the Wife’s supporting affidavit dated 4 August 2006. From these it may be seen that the Wife’s case for an injunction was premised on the contention that the Syariah Courts have no jurisdiction where one party to a dispute is not a Muslim and because of that the Wife would not be entitled to appear before the Syariah High Court to be heard against the Husband’s application for custody and a decision would be made by the Syariah High Court that the Wife feared would not be in the best interests of the child. To the Wife, therefore, the Husband’s attempt to obtain an order for custody of the child Dharvin from the Syariah High Court would be an abuse of the process of the Syariah High Court. That approach to jurisdiction that the Wife adopted in her injunction application, which Aziah Ali JC (now J) in the High Court called “the remedy approach”, is founded on the declaration in List II (State List) of the Ninth Schedule to the Constitution (“List II”) that Syariah Courts “shall have jurisdiction only over persons professing the religion of Islam”, consistently with which paragraph (b) of section 46(2) of the Administration Act provides, in respect of the civil jurisdiction, that the actions and proceedings that a Syariah High Court shall hear are “actions and proceedings in which all the parties are Muslims”. On the other hand, the approach taken by the Husband in one of the grounds of his application to set aside the ex parte injunction and in opposing the grant inter partes of the injunction was that the matters in dispute between the parties were matters within the jurisdiction of the Syariah Courts. The result of that is that by virtue of Clause (1A) of Article 121 of the Constitution, the High Court in Malaya “shall have no jurisdiction” in respect of those matters, notwithstanding section 51 of the Law Reform Act. It was therefore inevitable, and needful, that, in the hearing inter partes of the Wife’s injunction application and in the hearing of the Husband’s striking–out application, the question of jurisdiction be argued and decided.
18. In paragraph 19 of her grounds of judgment, Aziah Ali JC said:
“[The Husband’s counsel] submits that in determining whether this court
or the Syariah Court has jurisdiction, the subject matter approach should be
adopted as opposed to the remedy approach submitted by counsel for the
[Wife]”. It would appear from that that in the High Court the approaches
to jurisdiction adopted by the Husband and the Wife were respectively
termed “the subject matter approach” and “the remedy approach”. Aziah
Ali JC decided in favour of the subject–matter approach and found, in
paragraph 21 of her grounds of judgment, that “the subject matters of the
[Wife’s] application are matters that are expressly provided for in the laws
conferring jurisdiction on the Syariah Court thereby excluding the
jurisdiction of this court”. She also found that the interim injunction
sought by the Wife (and the ex parte interim injunction already granted)
was in effect a stay of proceedings in the Syariah Court which was
disallowed by section 54(b) of the Specific Relief Act 1950.
At the Court of Appeal
19. From the High Court’s substantive decision the Wife appealed to the Court of Appeal. From the High Court’s Erinford order the Husband appealed to the Court of Appeal. On 13 March 2007 the Court of Appeal (Gopal Sri Ram, Suriyadi Halim Omar, Hasan Lah JJCA), by a majority (Gopal Sri Ram JCA dissenting), dismissed the Wife’s appeal and allowed the Husband’s appeal.
20. Suriyadi Halim Omar JCA decided in favour of dismissing the
Wife’s appeal because he found that she had failed to show a serious
question to be tried in support of her injunction application. The finding
was made after considering the prayers. As to the prayer to restrain
conversion, the learned judge saw the fear of conversion on the Wife’s part
as being confined to Sharvind only, Dharvin having been converted, but
he considered that Sharvind’s conversion was unlikely because the
Husband had no interest in him. As to the prayer to restrain proceedings in
the Syariah Courts, the learned judge opined that, as regards commencing
of proceedings, it could not be restrained because proceedings had already
commenced. As regards restraining the continuance of proceedings, the
learned judge considered the proceedings as being of dissolution of
marriage and custody. As regards dissolution of marriage, the learned
judge said that according to Islamic law the marriage of the parties had
ended upon the Husband’s conversion and that what remained was the
purely administrative act of making a formal declaration of dissolution of
marriage under section 46(2) of the Family Law Act. Since the wife also
wanted the marriage to be dissolved, the learned judge considered that the
Wife’s objection to the Husband’s resort to the Syariah Subordinate Court
on the ground that it had no jurisdiction – as to which he was not making a
ruling – made no sense and was a flimsy ground and to grant an injunction
based on that ground would be an abuse of the process of the court. As
regards custody, it would appear that the learned judge considered it in two
aspects. In the first place, as regards Dharvin, he noted that the Syariah
High Court had already made an interim custody order on 23 May 2006
and “it is not for this court to challenge or injunct its execution”, and, as
regards Sharvind, he said “the substratum was a non–starter due to the
earlier supplied reason”, which seems to mean in effect that there was no
basis for the injunction because the Husband was not interested in
Sharvind. In the second place, by indicating his view that although the
injunction sought by the Wife was directed against the Husband “the
eventual effect was to shackle the Syariah Court”, the learned judge seems
to have intended to say that that was not allowed, although he did not
expressly say so or mention section 54(b) of the Specific Relief Act 1950.
From those matters arose the conclusion that the Wife had not established a
serious question to be tried.
21. Hasan Lah JCA would dismiss the Wife’s appeal solely on two grounds. One was that the Wife’s petition for divorce was premature and invalid in view of the proviso to section 51(1) of the Law Reform Act, with the consequence that the wife’s summons–in–chambers filed in the petition was also invalid. The other was that Aziah Ali JC was right about the application of section 54(b) of the Specific Relief Act 1950.
22. Gopal Sri Ram JCA would allow the Wife’s appeal. As to the petition for divorce being premature under the proviso to section 51(1) of the Law Reform Act, the learned judge held that the question of the date of the Husband’s conversion to Islam must be tried because the date “is seriously contested by the Wife” and the evidence on it “is in serious conflict”. As to the question of section 54(b) of the Specific Relief Act 1950, the learned judge held that it does not apply to temporary injunctions and, even if it does, “what it prohibits are injunctions directed against a court and not against an individual”, but the injunction that the Wife sought was directed at the Husband, not at the Syariah Court, so that the section does not apply on the facts of this case.
23. Gopal Sri Ram JCA decided the jurisdiction issue, which was not decided by the majority, in favour of the Wife, concluding that Aziah Ali JCA “was … in error when she declined jurisdiction over the interlocutory summons for an injunction”. I shall not attempt to give a summary of the reasons for his decision because I feel quite incapable of giving one that sets out the line of thinking in a manner that is capable of being appreciated and followed and at the same time accurately.
The Present Appeals
24. The dismissal by the Court of Appeal of the Wife’s appeal has given rise to appeal No. 19, the Wife’s appeal, which is the substantive appeal.
25. The Husband’s Erinford appeal was allowed by the majority. It would appear that it was allowed as a matter of necessity following upon, and as a natural consequence of, the dismissal of the Wife’s appeal. Gopal Sri Ram JCA would dismiss the Husband’s appeal for the same reasons as he would allow the Wife’s appeal. The Court of Appeal’s allowance of the Husband’s Erinford appeal has given rise to appeal No. 21, the Wife’s appeal.
26. On an application by the Wife, the same panel of the Court of Appeal, by a majority, Suriyadi Halim Omar JCA dissenting, granted an Erinford injunction on the same terms as those granted by the High Court, pending disposal of the Wife’s application for leave to appeal to this court. This has given rise to appeal No. 20, the Husband’s appeal. When granting the Wife leave to appeal in respect of her substantive appeal, this court granted an injunction on the same terms pending disposal of the appeal.
The Question of Prematurity
27. In the substantive appeal, which will be dealt with first, it is appropriate that the question of prematurity of the Wife’s petition for divorce be disposed of first because the Husband’s success on the question will impact on the petition and on the Wife’s injunction application which is dependent on the petition. It is a question that the Husband did not raise in the High Court and for which no question was framed when leave to appeal to this court was granted. It arises from the proviso to section 51(1) of the Law Reform Act which prohibits the presentation of a petition under section 51 “before the expiration of the period of three months from the date of the conversion”. The petition in this case was presented on 4 August 2006. It would escape the prohibition only if the Husband converted to Islam on 4 May 2006 or earlier.
28. At this juncture it is appropriate to set out some relevant statutory
provisions relating to conversion in the Federal Territory of Kuala Lumpur,
where the conversion took place, and in the State of Selangor , where the
registration of the conversion took place. The provisions are in sections 85
to 95 of the Administration Act and sections 107 –117 of the Selangor
Enactment. As they are virtually identical, references will, for
convenience, be made only to the Selangor Enactment. According to
section 107, the only requirements for a valid conversion to Islam are the
uttering by the person concerned, in reasonably intelligible Arabic, of his
own free will, of the two clauses of the Affirmation of Faith, with
awareness of their meaning. No witnesses or documentation are necessary
for a valid conversion, although witnesses would certainly be useful in case
the fact of conversion is disputed. Upon uttering the Affirmation of Faith
according to section 107, the person, says section 108, becomes a Muslim.
Section 111 provides for the registration of converts (muallafs) by the
Registrar of Muallafs, on their application. Registration is not compulsory.
All that the Registrar does is satisfy himself of the fact and date of
conversion and enter these in the Register of Muallafs. He is not normally
involved in the act of conversion, which would have taken place earlier
and elsewhere. It is only if he is not satisfied that the person concerned
has complied with section 107 that, by section 111(5), he may permit the
person to do the act of conversion in his presence or the presence of any of
his officers by uttering the Affirmation of Faith in accordance with section
107. Section 112 requires the Registrar to issue a Certificate of
Conversion upon registration of a conversion.
29. I am unable to agree with the Wife’s submission t