Posts Tagged ‘Subashini’

Rare interview with Subashini

August 13th, 2008
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Malaysiakini published a telephone and face-to-face interview with R Subashini, the wife of the convert who also converted their eldest son and planned to convert the second son. She denies reports about her converting, saying that someone pretended to be her and called Malaysiakini via handphone and also sent email – both which belong to her!

Anyway, if she converts for the sake of the children, no one can stop it. Who wants to be separated from their kids? However, it will be a big insult for Islam for creating a situation that forces a mother to convert.

By the way, I’m curious that Saravanan still keeps his name which signifies Lord Muruga. Is it not heresy?

The rest of the interview below:

Following a widely-publicised and emotionally-charged legal battle which had stretched for two years, R Subashini has finally decided to break her silence albeit with a little mystery thrown into the concoction.

The Hindu wife of a Muslim convert spoke to Malaysiakini yesterday, her first interview with the media since going to court over her marriage and custody of her children.

For safety reasons, Subashini had kept a low profile despite her highly publicised case as issues pertaining to religion are considered controversial and sensitive in this country.

The courtroom drama started when her husband T Saravanan, a businessman, converted to Islam in May 2006 along with their eldest son, Dharvin Joshua, aged 5.

Saravanan, who assumed the name Muhammad Shafi Saravanan Abdullah, then launched proceedings in the Syariah Court for a divorce as well as custody of their second son, Sharvin, 3.

Subashini fought her case right up to the land’s highest court late last year.

Her case was however thrown out on technical grounds, despite having secured a minor victory in the landmark judgment.

Her meeting with Malaysiakini yesterday came amid mysterious phone calls and an email from a woman who had identified herself as ‘Subashini’.

But the ‘real’ Subashini denied making calls or sent out an email on the matter.

In a telephone conversation with Malaysiakini on Monday, the ‘other’ Subashini revealed that she had patched up with her husband and could now visit her eldest son on a regular basis.

She also stated that she intended to convert to Islam soon so that the family could be together once again, adding that she would instruct her lawyers to withdraw all of her court actions.

The telephone conversation was later followed by an email, furnishing more details.

In her email, the ‘other’ Subashini said she had been in contact with her husband five months ago and was “happy at the moment” that she could be with her two sons and her husband.

“Can anybody be in my shoes and describe how happy I am? Or at least tell me, can money or fame bring you happiness?

“I carried both my sons for nine months and how can I just let anyone take away my babies from me? They are the only priceless wealth that I have and will have forever.

“My prayers and support from everyone have showed me a result but it depends how some individuals accept this but as for me, I’m honest and clear with my decision.

“I have built back my palace and I wouldn’t want it to be demolished,” read the email.

However, when met at her lawyer K Shanmuga’s office in Kuala Lumpur yesterday, the ‘real’ Subashini denied that she had telephoned Malaysiakini or sent the email.

But there was another twist.

The ‘real’ Subashini confirmed that the phone number and email address used by the ‘other’ Subashini were indeed hers.

The phone number was a newly registered mobile number but she had stopped using the email account, which was registered under her second son’s name.

“This email was definitely not from me,” responded Subashini when shown a copy of the message.

Clad in a pink baju kurung (Malay traditional attire) and wearing a red pottu (Hindu marking) on her forehead, the 30-year-old company secretary was in the dark as to who would have impersonated her.

“I don’t have (Malaysiakini’s) number, I don’t know who to contact, I don’t have Malaysiakini’s email address.

“I don’t know who is using my name. I don’t know who (did it), I don’t want to point (fingers) at anyone,” she said.

At the brief meeting, Subashini – who declined to be photograped – also refused to speak on the record over the current status of her marriage and her children.

“Not at the moment,” she replied with a smile when asked about this.

Later, her lawyer Shanmuga (left) said he had not received any instruction from his client to withdraw the legal actions.

“The Shah Alam High Court is scheduled to hear (Subashini’s) application for leave to quash the conversion of (eldest son) Dharvin on Aug 21,” said the lawyer.

“The Attorney-General’s Chambers is objecting to the application, stating that the applicant has to go to a syariah court,” he added.

The matter would be heard before judicial commissioner Mariana Yahya.

To another question, the lawyer said he had not received any instruction from Subashini to file a fresh application for divorce in the civil court after a similar application was ruled “premature and invalid” by the Federal Court in its landmark ruling last year.

At the time, the court rejected Subashini’s divorce petition – which sought maintenance and custody of her children – on technical grounds over the date of her petition which was within three months of her husband’s conversion date.

According to the law, the petition should be filed three months after the conversion date but Subashini’s application was filed about two weeks before the three-month period expired. The divorce petition was thus deemed null and void.

Nevertheless, she could file a fresh petition to seek the divorce.

In the same judgment, Subashini secured a minor victory as the Federal Court ruled that the syariah courts cannot dissolve a civil marriage.

The highest court ruled, in a 2-1 decision, that Saravanan could seek remedies in the syariah courts but cannot compel Subashini to do the same because she was a non-Muslim.

However, the court did not make clear the issue concerning the custody of the children as it also ruled that both the husband and wife could initiate custody proceedings in their respective jurisdictions.

Other articles related to Subashini and conversion problem can be searched in this blog.

interview with IKIM on Subashini case

December 31st, 2007
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Interesting comments from the Director General of IKIM. He is highlighting some interesting points. Maybe the readers will be more understanding after reading this. But would this come out in malay newspapers? 🙂
 
Points he mentioned;
 
1. divorce should be in civil court
2. divorce under syariah will be recognised there only, no effect under civil laws.
3. the husband has "responsibility" to "educate" his children on islam. [this is a problem now, essential would mean to convert? won't the wife have responsibility to educate her kids as well?]
4. According to Islam, all children as muslim. [i bet other religions claim the same as well for their own]
5. No need to convert the children since they are underaged. [in other words, they are automatically muslims?]
6. the muslims have a responsibility to educate, guide, counsel those who plan to leave islam.
7. problems rising from conversion is due to administrative issues, not religion.
 
read more on subashini here, here, here, here, here, and here.
Ikim D-G sheds light on Subashini case: 'This has nothing to do with religion'

By : ANIZA DAMIS

 

The Federal Court's judgment in the R. Subashini case on Thursday has gouged a deep groove in the legal system. The court decided that only civil courts could decide on the divorce of a union formed under the Law Reform (Marriage and Divorce) Act 1976. However, where one spouse has converted to Islam, the Muslim spouse has a right to seek relief from the syariah court. This means the non-Muslim spouse can only seek justice in the civil court, while the Muslim-convert spouse can seek justice in the syariah court. Two parallel avenues of justice. To complicate matters, the court also found that a parent could, unilaterally, convert a child without the consent of the other parent. ANIZA DAMIS speaks to Institute of Islamic Understanding of Malaysia (Ikim) director-general Dr Syed Ali Tawfik Al-Attas on the impact of the ruling on Muslims and non-Muslims in the country

Q: What is justice in Islam?

A: Justice means putting things in the right place. Everything has a place. In this case, if you make a contract in a civil ceremony, the right place to seek a termination of that contract would also be at that civil ceremony.

T. Saravanan @ Muhammad Shafi should have been told, by the people who furthered his interest in the religion, that Islam places a great emphasis on the making and breaking of contracts.

Here is a person who had conducted a marriage in a civil ceremony with R. Subashini, a Hindu. Therefore, in order to terminate that contract made in a civil ceremony, he should go back to that civil authority and break it.

Q: The Federal Court has decided only the civil court can dissolve the marriage. At the same time, it says Shafi also has a right to seek relief from the syariah court and get a divorce there.

A: Yes, but that divorce (in the syariah court) would not be recognised. It would only be recognised by the civil court as evidence that such a thing took place under syariah.

Q: What is Saravanan's responsibility to his family and what is Shafi's responsibility to his family? Are they different?

A: No, they are the same. It's not that he is Saravanan or he is Shafi. He is one and the same person, therefore, his responsibility remains. As a Muslim, his responsibility now is to teach his children about Islam. His responsibility is to educate them. The mother is not responsible for that — she has not been entrusted with that responsibility.

Q: The second child is not Muslim at the moment.

A: Who said the child is not Muslim? According to Islam, all children are born with fitrah, meaning a natural inclination towards Islam.

You could be the product of a Hindu, Buddhist or Christian marriage, but for Muslims, children are not seen as Christian, Buddhist or Hindu. What we see is, "Here is Allah's majesty. Look at what He has created".

Q: So, then there would be no need for conversion?

A: Exactly. How can you convert a child? First of all, when you talk about conversion, you are talking about responsibility. In order to have responsibility, you have to comprehend what you are responsible for. Can a child of that age understand what he is being held responsible for?

Allah does not hold a child accountable. That is why in Islam, there is this thing called the age of baligh — the age of maturity — which is generally thought to be around 15. He is then ready to accept the responsibility entrusted to him. And he is also ready to accept accountability — in other words, punishment. But before that, there is no punishment.

Q: So, why the need to convert?

A: There is no need. God Himself does not consider the child responsible.

Q: What about instances where one parent is of one religion and the other is of another?

A: Shafi's responsibility is to raise his children in accordance with Islam. His responsibility is to educate them, feed them, clothe them.

If he is worried that his sons will grow up to follow the mother's religion, well, his fears are unfounded. Because he is an example of that not being the case. It's no guarantee that just because you are born to a Hindu, Buddhist or Christian parent — or even a Muslim parent — that you will remain in that religion.

Q: What about people who convert without telling their families or wives, and suddenly, the wives find out they are no longer the wife.

A: If you start putting these things down as law, there is a tendency to look at it literally. There is no hikmah (wisdom).

Supposing there is a person who is not a Muslim, living in a large community of non-Muslims. He wants to become a Muslim. For his own safety, he might feel, "If I go and tell my community, they might not agree with it, and they might harm me. I will have to keep it silent".

But he still wants to convert and he does. There is also wisdom in that. Fearing for his safety, he doesn't inform other people. It could be that.

Q: In our multi-religious, multicultural society that is supposedly tolerant and respectful, what's the value of professing a religion if you can't practise it in the open?

A: Who said there is "no freedom" here? You can practise whatever you want in this country.

Q: But a person can't change her religion very easily.

A: You cannot extrapolate on one case. If you are referring to the Lina Joy case, how do you know that it's not easy to convert based on one case?

The Lina Joy case had nothing to do with religion or with whether she wants to convert or not. She just didn't want to follow the rules set by the National Registration Department.

The assumption is that the syariah system is unjust. Her lawyers supported this idea because they extrapolated that you won't get justice in the syariah court.

Therefore, the onus of responsibility now is not on the court and the individuals in the court, but on the religion itself.

That's ridiculous. In her case, too, the Muslims are upset and angry, not because she is leaving Islam, but because they are denied their responsibility to guide her on the path of Islam. Her lawyers are screaming that we are denying her freedom of religion. This is not the case. If she wants to be a non-Muslim, be a non-Muslim.

But the community of Muslims has a right to consult with her and ask her why she wants to leave Islam. For Muslims, Islam is the most complete, perfect religion. Therefore, it is strange to any Muslim for anyone to want to become a non-Muslim. This is the Muslim's right of responsibility — he has a right, because he has a responsibility to the ummah to ask this question. If you deny them this right, obviously the Muslims will get upset.

Q: That's looking at it from a Muslim perspective.

A: Look at the non-Muslim perspective as well. They get upset if they are not allowed to consult with those who wish to leave the flock and convert to Islam.

Q: The thing that upsets non-Muslims is that Muslims are detained when they wish to leave the religion.

A: Does that have to do with religion or is it an administrative injustice? It has nothing to do with religion, as far as I am concerned. How they do it, that's another matter altogether. When you start talking about detention, rampas mayat (seizing the corpse) and so on, those are all administrative. I disagree with all that.

Q: Why is it happening?

A: Loss of adab (manners), ignorance, and people who are put in positions of power who really have no ilm (knowledge). They don't have any hikmah. They are just allowing these things to occur and they don't care. All in the name of religion. You can't do that.

I don't care whether your religion is Islam, Christianity, Hinduism or Buddhism. You cannot use this as a tool for your political considerations. And that's what's happening.

Now, in the Subashini and Saravanan case, I feel very, very badly for these two people, and for the children. These are the victims.

As far as Islam is concerned, the Prophet abhorred divorce. He really despised it. But he did say, "If there is no other choice but to divorce, let the divorce be amicable". Let it be settled in a nice way.

Why was Shafi not advised about this? Why are Subashini's lawyers not advising her like this? Ultimately, these are the people who are suffering. You think the lawyers and the judges suffer? No. These people — Shafi, Subashini and the children — they suffer.

This is a family case. Why is society sticking its nose into this?

Q: Maybe they have become the standard-bearers of a bigger fight?

A: Society has become confused. What is the bigger fight? Freedom of religion? Are you not free? Nobody is forcing anybody.

Q: Perhaps not in the case of Shafi, but there have been instances where non-Muslims convert to Islam to escape responsibility.

A: They are abusing the system. You cannot simply run to the syariah court, to Islam, to escape something else. Contracts are very important in Islam.

Q: But in the instance where someone says he is Muslim, you have to take his word for it that he is Muslim. Should the syariah court be giving him shelter, where perhaps he is seeking shelter for the wrong reasons?

A: When somebody claims he is a Muslim, you can actually judge if he really is a Muslim or not, by three things:

When he makes a contract, he breaks it; when he is given a responsibility, he shirks that responsibility; when he speaks, he lies. These are the signs of an evil person.

So, if a fellow claims he is a Muslim, and yet his actions do not reflect it, then he is not a Muslim. So if a fellow is converting because he wants to escape something, you cannot shelter him for that. You have to live up to your responsibility.

If a person has recently converted to Islam, there is no question about the division of property according to Islam, because he accumulated all that when he was not a Muslim.

Whatever property he accumulates after he becomes a Muslim, that's different. That belongs to him — his wife has no say in that.

In my opinion, in the Subashini case, the wife should have custody of the children. They are still young. They need their mother.

Q: This judgment is different from Lina Joy, in that the court this time did not say "We have no jurisdiction". It said: "We have jurisdiction, but you can go to the other side (syariah courts) as well."

A: It's an ambiguous judgment. I'm worried. This is going to escalate, and people are going to start accusing Islam, and religion generally, as being the problem. But it's not Islam. This is not a problem just for Muslims, it is a problem for everybody.

Q: If the non-converting spouse refuses to file for divorce in the civil courts, but the Muslim spouse gets a divorce from the syariah court, does that absolve the Muslim spouse of his responsibilities to the civil law marriage?

A: That is a problem. On the one hand, the syariah court only listens to Muslims. On the other hand, civil courts cannot interfere with the syariah court. Therefore, if the husband decides to divorce and the wife doesn't, then we have a big problem. It doesn't make sense. If the syariah court grants a divorce, the civil court only takes that as evidence. But, strictly speaking, he is still married in the civil system.

As I said, they should have been told: "If you have a marriage in a civil ceremony to a non-Muslim wife, and now you have become Muslim, your responsibility is to go back and resolve that in a civil ceremony as well". That would solve the problem.

Q: What should the conclusion to the Subashini case be?

A: As I said earlier, if you have conducted your marriage in a civil ceremony, then you should conduct your divorce in a civil ceremony.

Shafi should be advised properly. The wife should also be advised properly. There should not be so much acrimony.

The wife says she is being treated unfairly. I agree with her. But I also agree with Shafi. He is also being treated unjustly.

Q: What would you say to people who see this as a Muslim/non-Muslim argument?

A: It's not. This has got nothing to do with religion. This has to do with administrative justice.

Q: So, what do we need to do to correct this administrative injustice?

A: Remove the people who are causing the problem, and put in the ones who are qualified to deal with it. Remove the unqualified, because they are misguiding society.

subashini distraught over possible loss of children

December 29th, 2007
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Only the Sun carried an interview with Subashini while others only focused on the judgment 

After the decision was handed down, Subashini said she was disappointed with the judgement., saying she wished the judges had looked into her rights as a mother.

“It is unfair to treat me like this. I gave birth to our children and I have a right to make a decision about my children, as a mother,” she said in a phone interview with theSun.

“How can they say my estranged husband has the right to convert our second child? Does this mean I will lose my second son as well?” she added.

Subashini has not met her first son, Dharvin Joshua, for the past two years since her husband, Saravanan, converted the boy.

She said Saravanan, was only willing to grant her access to Dharvin in exchange for access to their youngest child, Sharvin.

Subashini said she was willing to give up not seeing Dharvin for fear that Saravanan would convert their second child as well.

“If that happens, then I am afraid that both my kids will be taken away from me, and I will have no one,” she said.

Subashini said it was unfair that her newly-converted husband seems to have been granted more rights over her as a mother.

“Where is my right, as a mother?” she asked, adding that  she was still discussing her next course of action with her lawyer.

Subashini’s lawyer K. Shanmuga told theSun Subashini was distraught over the judgment.

“She’s uncertain about her future and her children’s future. It’s a blow to her because she’s been told she can’t stop her husband from going to the syariah court to get orders regarding the breakup of their marriage, and she can’t stop him from converting their younger child,” he said.

Civil or Syariah, still unclear
R.Surenthira Kumar and Jacqueline Ann Surin

http://sun2surf.com/article.cfm?id=20334

PUTRAJAYA (Dec 27, 2007): In handing down what is widely seen as an equivocal decision today, the Federal Court drew away from answering the question of which court, civil or Syariah, has exclusive jurisdiction to hear cases involving non-Muslim spouses whose partners had converted to Islam.

However the apex court made it clear, when it unanimously decided, that the High Court still has jurisdiction to hear cases involving non-Muslim spouses involved in a matrimonial disputes, even though the other partner had converted to Islam.

This was among the rulings that the three-man panel of judges handed down in the decision of the much awaited case of R.Subashini vs T.Saravanan today.

In the 2-1 decision,  the head of the panel Datuk Nik Hashim Nik Abd Rahman and Datuk Azmel Ma’amor concurred while Datuk Abdul Aziz Mohamad gave a dissenting judgement.

The rulings allow Saravanan, 31, whose Muslim name is Muhammad Shafi Abdullah to continue to seek recourse in the syariah court while Subashini, 29, can proceed to file for divorce proceedings in the civil court.

Nik Hashim said 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 Saravanan, being a Muslim, seeks remedies in the Syariah High Court as it is his right to do so.

The Federal court however cautioned that questions may arise as to whether Subashini would be bound by the syariah court's decisions because she is not a Muslim.

“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," said Nik Hashim.

"Thus, the non-Muslim marriage between the husband and wife remains intact amd 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 added.

Nik Hashim said there is no impediment for Saravanan to appear in the divorce proceeding at the High Court albeit as 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.

The court also paved the way for Saravanan to carry on with his other aims, including to seek custody of the two children and conversion of the second child to Islam, when the court set aside the Erinford injunctions obtained by Subashini previously against Saravanan.

But in this particular case, the court ruled that it could not grant the injunction because Subashini’s divorce petition was premature, due to the fact it was filed short of the three-month requirement.

Saravanan’s lawyer had argued during the trial that she had ignored the Islamic imposition of waiting for three menstrual cycles to lapse first.

Saravanan had previously converted his elder son to Islam when he embraced Islam on May 18, 2006.

“The wife’s petition was filed in contravention of the requirement under proviso to Section 51(1) of the 1976 Act in that it was filed two months and 18 days short of three months after the husband’s conversion to Islam,” said Nik Hashim.

He added 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.

Nik Hashim said the wife is entitled to proceed with the rest of the application but it would be most appropriate 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 the dissolution of the marriage.

On the issue of whether, one parent can prevent the other from converting the religion of their children, Nik Hashim and Azmel ruled that either party cannot refrain the other from doing so.

Abdul Aziz howver disagreed, saying the opposing party has a right for his/her objections to be heard.

The Federal court also unanimously ruled the courts are eligible to grant Erinford injunctions to the disputing parties, to temporarily halt orders from the other courts, pending the applications to seek for leave to appeal to the higher courts.

After the decision was handed down, Subashini said she was disappointed with the judgement., saying she wished the judges had looked into her rights as a mother.

“It is unfair to treat me like this. I gave birth to our children and I have a right to make a decision about my children, as a mother,” she said in a phone interview with theSun.

“How can they say my estranged husband has the right to convert our second child? Does this mean I will lose my second son as well?” she added.

Subashini has not met her first son, Dharvin Joshua, for the past two years since her husband, Saravanan, converted the boy.

She said Saravanan, was only willing to grant her access to Dharvin in exchange for access to their youngest child, Sharvin.

Subashini said she was willing to give up not seeing Dharvin for fear that Saravanan would convert their second child as well.

“If that happens, then I am afraid that both my kids will be taken away from me, and I will have no one,” she said.

Subashini said it was unfair that her newly-converted husband seems to have been granted more rights over her as a mother.

“Where is my right, as a mother?” she asked, adding that  she was still discussing her next course of action with her lawyer.

Subashini’s lawyer K. Shanmuga told theSun Subashini was distraught over the judgment.

“She’s uncertain about her future and her children’s future. It’s a blow to her because she’s been told she can’t stop her husband from going to the syariah court to get orders regarding the breakup of their marriage, and she can’t stop him from converting their younger child,” he said.

Meanwhile, Saravanan's lawyer  Zainul Rijal Abu Bakar, said it was difficult for him to respond to the latest development in the court case as they have yet to get the full written judgment.

"We have to wait for the full judgment first as we need to see what we can or cannot do. We have to see the reasonings of the judgment," he said to theSun when contacted today.

Subashini loses bid to stop her son's conversion by her estranged husband

PUTRAJAYA (Dec 27, 2007): The Federal Court today threw out a bid by a Hindu woman to stop her estranged husband from converting their youngest son to Islam.

Her case is another sign of strain in the social fabric of the multi-racial nation,where many non-Muslims believe their rights are being trampled by the Muslim majority.

R.Subashini took legal action after her husband converted himself and their elder son, now four, to Islam in 2006. She says she now fears the husband wants to take their two-year-old, who still lives with her, and convert him to Islam as well.

The Federal Court rejected her request for an injunction on technical grounds, leaving her free to try again, but one judge noted the court's jurisdiction was limited, given the husband was now a Muslim and therefore governed by Islamic or syariah law.

"The civil and syariah courts cannot interfere with each other's jurisdiction," said Nik Hashim Nik Abdul Rahman, one of two judges who dismissed the case One judge dissented.

Family law has become an emotional battleground between Malaysia's religious communities, with non-Muslims complaining civil courts are too willing to surrender jurisdiction to their Islamic counterparts in cases involving a Muslim conversion.

Marriages between Muslims and non-Muslims are forbidden in Malaysia, so once a non-Muslim spouse converts to Islam, the union is broken, lawyers say. While it can still exist under civil law, in reality the Islamic court does not recognise it.

A lawyer for Subashini said although his client's case failed on a technicality, the judges' comments made it clear they recognised the husband's right, as a newly converted Muslim, to have recourse to the Islamic courts.

"The High Court has jurisdiction to hear matters when this is a non-Muslim marriage but the husband also has a right to syariah court under Islamic Law," lawyer K. Shanmuga said when asked by reporters to sum up the ruling's significance.

Subashini, a 29-year-old clerk, had initially asked the High Court to prevent her husband from gaining custody of both their sons through the syariah courts.

Her husband, a 32-year-old businessman, had converted to Islam and when he conveyed the news to his wife, she attempted suicide and was admitted to hospital.

After her hospitalisation, she discovered her husband had converted their eldest son to Islam.

Her lawyers had told the Federal Court the civil system was the right place for this case because she was not a Muslim.

They cited a landmark ruling by the Federal Court in July which stated that if one party was a non-Muslim, the syariah court had no jurisdiction. This was a rare ruling that went against a tide of decisions granting jurisdiction to the Islamic courts. – Reuters    

MCA happy with Subashini judgement!

December 29th, 2007
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I'll take this as a polite reply from MCA, just glossing over the positives of the judgement. No doubt the Chinese papers would have highlighted the negative impact from the judgement.

Wonder where's MIC's statement? I think can replace "MCA" with "MIC" in the MCA's statement.

MCA lauds ruling on matrimonial disputes

source

KUALA LUMPUR: The MCA welcomes the Federal Court ruling that the civil court has jurisdiction to hear and decide on matrimonial disputes involving a spouse who has converted to Islam. 

Its president Datuk Seri Ong Ka Ting said yesterday that the landmark decision had removed the confusion over the issue of jurisdiction between civil and syariah courts on such matrimonial matters. 

On Thursday, the Federal Court ruled that the dispute between R. Subashini and her Muslim-convert husband T. Saravanan over the dissolution of their marriage and child custody would continue to be under the jurisdiction of the civil court. 

“We respect Islam. Under the Federal Constitution, the rights of the non-Muslims are protected,” Ong said after chairing the party presidential meeting at Wisma MCA adding that MCA had always voiced out the concern of non-Muslims at Cabinet and government meetings. 

confusion still exist over Subashini judgement

December 29th, 2007
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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.