The Federal Court today ruled that the syariah courts cannot dissolve a civil marriage and all dissolutions made in the religious court is only effective and applicable within the confines of Islamic law.

“The non-Muslim marriage between the husband and wife remains intact and continues to subsist until the High Court dissolves it pursuant to a divorce petition by the unconverted spouse…,” justice Nik Hashim Nik Ab Rahman, who headed a three-judge bench, told the court.

This is a minor victory for company secretary R Subashini as her marriage with Islam-convert husband T Saravanan was a civil marriage and she could clearly now go to the civil courts to seek remedies.

Subashini, 28, a Hindu, is trying to stop her husband, who has converted to Islam and assumed the name Muhammad Shafi Saravanan Abdullah, from taking divorce and custody proceedings to the Syariah Court.

Saravanan, a businessman, converted in May 2006 along with their eldest son, Dharvin Joshua, 4. He then launched proceedings in the Islamic court for divorce as well as the custody of their second son, Sharvin, 2.

The Federal Court, in a 145-page judgment, said that the husband can still dissolve the marriage under syariah law but it will have no effect in the civil courts.

It added that Saravanan can seek remedies in the syariah courts but it cannot compel Subashini to do the same because she is a non-Muslim.

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

The country’s highest court also held that Saravanan did not abuse the law by converting his four-year-old son to Islam without the knowledge of the mother.

It said that according to the Article 12(4) Federal Constitution, only the consent of one parent is sufficient in the conversion of a child.

"Either husband or wife has the right to convert a child of the marriage to Islam," said Nik Hashim.

"The argument that both parents are vested with equal right to choose is misplaced. Hence the conversion of the elder son to Islam by the husband …. did not violate the Federal Constitution."

The court also ruled that it was within the right of Saravanan as a Muslim to file the divorce proceedings in the Syariah Court.

But Subashini case thrown out

Nevertheless, the Federal Court three-member panel today threw out Subashini case on a legal technicality – that her divorce petition was “premature and invalid”.

In a 2-1 decision, the court said that Subashini’s divorce petition was prematurely filed under the Law Reform (Marriage and Divorce) Act 1976 (LRA).

According to the act, the wife can only file for divorce three months after the date of her husband T Saravanan’s conversion to Islam, as stipulated under Islamic law.

However, Subashini’s divorce petition was filed about two weeks before the three months expiration date. The divorce petition is deemed null and void.

Nevertheless, Subashini can apply for a fresh petition.

In today’s landmark decision, justice Azmel Ma'amor agreed with Nik Hashim while justice Abdul Aziz Mohamad was the lone dissenting voice.

The judges, however, were unanimous that Subashini has no recourse for justice in the syariah courts because she is a non-Muslim.

This overrules the decision made by the Court of Appeal on March 13 when justices Suriyadi Halim Omar and Hassan Lah – who made the majority 2-1 decision – told her to take her case before the Syariah Court, while justice Gopal Sri Ram dissented.

According to the appellate court's majority decision, the injunction sought by Subashini was unsustainable because the Syariah Court is competent enough decide on the matter.

The country's civil courts operate parallel to syariah courts for Muslims in areas of personal law, including divorce and child custody.

Non-Muslim spouses say they fear they will not get an equal hearing if their cases are referred to the Islamic court. Subashini's case is one of a series of legal battles between Muslims and non-Muslims.

Husband, wife not in court

Both the husband and wife did not appear in court today.

Asked how Subashini is coping, lawyer K Shanmuga said she has not seen Dharvin, who has been living with her estranged husband, since his conversion.

“She is also extremely worried about her younger son, Sharvin, because he can be converted at any point in time without her knowledge based on today’s decision,” he said.

Shanmuga described the court decision as a "blow" to his client.

"The decision … causes great uncertainty about her children and what would become of their religion and custody rights," he said.

Subashini failed to get an injunction to stop her husband from seeking a divorce in the Syariah Court and prevent him from converting their children.

The lawyer said Subashini was not challenging the divorce but wanted it to be decided in a civil court.

Shanmuga urged the government to hasten legal reforms to allow parents to have equal say in such matters.

"This requires urgent legislative reforms to ensure both parents have an equal say in determining a child's religion and to prevent one party from going to a syariah court in respect to any matter dealing with a non-Muslim marriage," he said.

Another lawyer involved in the case said the decision could force Subashini to flee with her younger son for fear her husband may try to convert him.

"From the court decision, it appears that the Muslim husband can now proceed to convert the other son to Islam," he told AFP on condition on anonymity.

It took more than an hour for the judgment to be read in court. The majority decision was delivered by Nik Hashim Nik Ab Rahman – who headed the Federal Court three-member bench – while Abdul Aziz Mohamad delivered the minority decision.

Majority decision – Nik Hashim Nik Ab Rahman and Azmel Ma'amor

• Subashini’s divorce petition under the Law Reform (Marriage and Divorce) Act is deem null and void because it was filed before the requisite three months period.

• Saravanan and Subashini’s civil marriage can only be dissolved using civil law. The husband can still dissolve it under syariah law but it will have no effect in the civil courts.

• Saravanan can seek relief in the syariah courts but it cannot compel Subashini to do the same because she is a non-Muslim.

• Saravanan did not abuse the process by converting his child because the consent from one parent is sufficient according to Article 12(4) of the Federal Constitution .

Dissenting ruling – Abdul Aziz Mohamad

• The evidence of Saravanan’s conversion must be tried in order to determine whether the conversion date was based on his certificate or on facts made available to Subashini.

• Saravanan had abused the process in seeking the custody of the children in the Syariah Court because the religious court has no jurisdiction over a non-Muslim marriage.

• Saravanan’s conversion of the children is not unilateral and the wife has a right to object to the conversion as well as seek an injunction to stop the procedure.

• The High Court has exclusive jurisdiction in matters of dissolution of marriage, maintenance, custody and other ancillary reliefs because the marriage was solemnised under civil law.

Federal Court dismisses Subashini's case

THE STAR

By M. MAGESWARI

PUTRAJAYA: The Federal Court ruled that the dispute between secretary R. Subashini, 29, and her Muslim-convert husband T. Saravanan alias Muhammad Shafi Abdullah, 32, over the dissolution of their marriage and child custody will continue to be under the jurisdiction of the civil court. 

In the landmark decision on Thursday, Federal Court judge Justice Nik Hashim Nik Ab Rahman said a non-Muslim marriage does not automatically dissolve when one of the parties converts to Islam. 

"Thus, by contracting the civil marriage, the husband and wife were bound by the 1976 Act (Law Reform (Marriage and Divorce) 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," he said.  

In a 2-1 majority judgment, Justice Nik Hashim said by embracing Islam, Saravanan and his eldest son (who also converted) became subject to Muslim personal and religious laws. 

"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," he said. 

Justice Nik Hashim, who sat together with Federal Court judges Justices Abdul Aziz Mohamad and Azmel Maamor, said this: 

"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," he said. 

He said there is no impediment for the converted husband to appear in the divorce proceeding in the High Court. 

He said the contention 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 Act limits its jurisdiction to Muslims only. 

"The wife, being a non-Muslim, has no locus in the Syariah court," he said. 

Both judges also agreed that although the Syariah courts are state courts, they are not lower in status than the civil courts. 

Justices Nik Hashim and Azmel threw out Subashini's appeal by a majority saying that the divorce petition filed at High Court by Subashini was premature and invalid as it was filed two months and 18 days short of three months after the husband's conversion to Islam.  

Justice Nik Hashim said it was his view that Subashini was entitled to proceed with her application on custody but it would be most appropriate if she filed her petition for divorce afresh. 

On conversion, both judges said either husband or wife has the right to convert a child of the marriage to Islam.