confusion still exist over Subashini judgement

December 29th, 2007 by poobalan | View blog reactions Leave a reply »
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President of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism Datuk A.Vaithilingam said it amounted to “a gross injustice''. 

“The other non-Muslim parent will not be able to re-convert the child out of Islam. The child will also be deprived of its right to convert out of Islam at the age of 18. “A child's religion should not be changed without the consent of both parents. Failing to do so will cause much heartbreak,'' he said. 

What is obvious for now is that there is a very unhappy woman who is staring at the prospect of losing both her sons to her estranged husband as a result of the views made in the majority judgment. 

As for me, I'm still confused why a Hindu couple gave a Christian name to their son 🙂 Truly muhibbah?

Recourse for spouses who don’t convert

source

ANALYSIS BY CHELSEA L.Y.NG

IT MAY have been a 2-1 majority decision by the Federal Court, but the final result was the landmark ruling that the Family Court has exclusive power to decide on matters involving divorce and custody rights of a couple of which one spouse has become a Muslim. 

That makes it both an affirmative and encouraging situation. Malaysians have been waiting for some time for a stand to be taken on this issue. 

In an immediate response to the news, Bar Council chairman Ambiga Sreenivasan described the apex court’s decision as a positive move. 

“It recognises that the Syariah High Court has no jurisdiction over non-Muslims.  

“These include upholding the judicial precedent of the Tan Sung Mooi vs Too Miew Kim case in the Supreme Court in 1994, which ruled that conversion to Islam did not allow a person to avoid his legal obligations under his non-Muslim marriage,” said Ambiga. 

Stemming from the divorce and custody tussle between R. Subashini, a Hindu, and her Muslim convert husband, T. Saravanan, the case became a public interest matter. 

The case which began in the civil and Syariah High Courts last year finally reached its climax this week with the delivery of the judgment by the Federal Court. The much-awaited judgment is lucid and there is no doubt that it gives some sort of recourse for non-Muslims whose spouses have converted. Prior to this, there have also been decisions to the effect that the civil marriage ends when a spouse has converted. 

In this latest judgment, the panel was unanimous that there was nothing to stop the Muslim spouse from appearing as a respondent in divorce proceedings at the civil High Court as the jurisdiction of that court extends to him. On the other hand, it ruled that the non-Muslim spouse could not go to the Syariah High Court because its jurisdiction is restricted to persons professing the religion of Islam only. 

The court also unanimously ruled that civil courts could grant Erinford injunctions to the disputing parties, to temporarily halt orders from the other courts, pending an appeal to the appellate court. 

Essentially, two judgments were handed down – one by Justice Nik Hashim Nik Ab Rahman to which the third judge Justice Azmel Maamor concurred with, while the other was by Justice Abdul Aziz Mohamad. 

Both supported the view mentioned so far but they disagreed on the point that a Muslim spouse would be committing abuse of court process by seeking custody recourse in the syariah court. Justice Abdul Aziz was of the view that such acts amounted to an abuse of process as the dissolution of their civil marriage were matters “not within the syariah court’s jurisdiction”. 

Justice Nik Hashim ruled the opposite. He said Saravanan had a right to seek remedies in the syariah court as a Muslim and that his filing for dissolution of the marriage in the syariah court was not an abuse of the court process. He was, however, quick to add that Saravanan could not shirk his obligations under the Law Reform (Marriage and Divorce) Act 1976 by hiding behind the rights to freedom of religion. 

“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 is of material importance. Otherwise the husband’s conversion would cause injustice to the unconverted wife, including the children,” Justice Nik Hashim said. 

Although these were seen as rather constructive developments, there were concerns about the view in the majority decision that Saravanan, whose Muslim name is Muhammad Shafi Abdullah, was not wrong in converting his elder son to Islam without the consent of the boy’s mother. 

Ambiga labels this a “worrying” situation. “Overall, I believe the judgment may not have actually resolved the dilemma of people with similar problems,” she said. 

President of the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism Datuk A.Vaithilingam said it amounted to “a gross injustice''. “The other non-Muslim parent will not be able to re-convert the child out of Islam. The child will also be deprived of its right to convert out of Islam at the age of 18. 

“A child's religion should not be changed without the consent of both parents. Failing to do so will cause much heartbreak,'' he said. 

What is obvious for now is that there is a very unhappy woman who is staring at the prospect of losing both her sons to her estranged husband as a result of the views made in the majority judgment. 

But all is not lost for the mother of two. The majority judgment did say that it was throwing out her case on a legal technicality and she could file her divorce petition afresh at the Family Court. 

The reason the court had thrown out her appeal and declared her current petition invalid was because she had filed it prematurely – two months and 18 days after her husband’s conversion, instead of waiting at least three months.  It however, added 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. 

In the meantime, there is nothing to stop Saravanan from going to the syariah court to seek recourse and remedies, which included converting his younger son to Islam. He has two sons from the marriage with Subashini. They are Dharvin Joshua, four, and two-year-old Sharvin. Saravanan claims that he converted the elder child to Islam last year.

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