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The Federal Court yesterday made several rulings that will impact the rights of a parent over their children, especially if one of them converts to Islam.
In the judgment that denied R Subashini a divorce petition, potentially explosive issues such as conversion, jurisdiction and the custody of a child where one of the parent has converted were raised.
Subashini's battle began last year when her husband converted to Islam, along with their eldest son, four-year-old Dharvin Joshua.
The husband then launched proceedings in the Syariah Court for divorce and custody of their second son, two-year-old Sharvin, while Subashini challenged it in the civil courts which went all the up to the Federal Court, the country’s highest court.
Here are excerpts from the Federal Court’s majority decision by Nik Hashim Nik Ab Rahman and Azmel Ma'amor as well as justice Abdul Aziz Mohamad’s dissenting judgment on these vexing issues.
Conversion of a child
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 virtue of Articles 8 and 12(4) of the Federal Constitution and Section 5 of the Guardianship of Infants Act 1961.
I am of the opinion that the complaint is misconceived. Either husband or wife has the right to convert the child of the marriage to Islam. The word ‘parent’ in Article 12(4) which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, that means a single parent.
The husband is right in contending that the conversion of Sharvind (the couple’s second son) requires his consent only, but that is only to make it valid. He is however, not right in arguing that the wife is not entitled to prevent the conversion, and therefore not entitled to the injunction. The wife has an equal right not to want Sharvind to be converted.
Simply put, while the conversion of the child is valid with the consent of one parent, the parent has the right to object to the conversion and to seek an interim injunction to prevent the conversion until his or her objection is adjudicated upon.
All three judges agreed that only one of the parent’s consent is sufficient for the conversion of a child. However, the dissenting judgment indicates that while this appeared to be unilateral, it does not pre-empt the other parent from objecting the conversion through the courts.
However, the judges were silent whether the conversion can be reversed, how this will be argued in court and which jurisdiction it falls under.
Custody of the children
By contracting the civil marriage, the husband and wife are bound by the Law Reform (Marriage and Divorce) Act 1976 in respect of divorce and custody of children of the marriage and thus the civil court continues to have jurisdiction over him (the husband), not withstanding his conversion to Islam.
(However) by embracing Islam, the husband and son became subject to Muslim personal and religious laws and it is not an abuse of process if he, being Muslim, seeks remedies in the Syariah Court as it is his right to do so.
The dissolution of the marriage in this case, which is a non-Muslim marriage, and matter consequential or ancillary thereto including maintenance, custody of children and other ancillary reliefs are not matters within the jurisdiction of the syariah courts.
It is an abuse of process (for the converted spouse to file custody proceedings in the syariah courts in respect of the children of the civil marriage) primarily because the syariah courts have no jurisdiction in the matter of the custody of children of a non-Muslim marriage.
What does this mean?
The majority judgment was unclear on this issue as it did not rule which jurisdiction would be superior if the wife is to seek custody rights in the civil court and the husband initiating parallel proceedings in the syariah courts.
However, the minority judgment was lucid in pointing out ancillary matters resulting from the non-Muslim marriage – and this includes custody of the children – is strictly within the confines of the civil courts.
Jurisdiction over marriage and divorce
The status of 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. The non-Muslim marriage between the husband and wife remains intact and continues to subsist until the High Court dissolves it.
(However) by embracing Islam, the husband and son became subject to Muslim personal and religious laws and it is not an abuse of process if he, being Muslim, seeks remedies in the Syariah Court as it is his right to do so.
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.
Thus the contentions that the wife could submit to the jurisdiction of the Syariah Court […] are not quite correct. The wife, being a non-Muslim, has no locus in the Syariah Court.
The syariah courts have no subject-matter jurisdiction because their jurisdiction is only in respect of a Muslim marriage, dissolution of a Muslim marriage, maintenance of a spouse in a Muslim marriage and the guardianship or custody of children of a Muslim marriage – whereas the marriage of the parties in this case is a non-Muslim marriage.
What does this mean?
On this issue, the judges were unanimous that only the civil courts has jurisdiction over a marriage solemnised under civil law. The same should apply in the divorce resulting from the civil marriage.
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