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Subashini files appeal to Federal Court
http://www.sun2surf.com/article.cfm?id=17482
PUTRAJAYA (April 2, 2007): A Hindu housewife, who was told to go to the Syariah Court to fight for her matrimonial rights, wants the Federal Court to decide whether the High Court has exclusive jurisdiction to grant a civil divorce to a couple, where one spouse has converted to Islam.
This was one of the nine questions of law contained in R.SubashiniÂ’s application for leave for the Federal Court to determine.
Subashini had filed for leave from the Federal Court to appeal against the Appellate CourtÂ’s 2-1 majority decision on March 13, telling her to battle out her divorce and custody claims in the Syariah Court.
On that day, the Court of Appeal rejected the former secretaryÂ’s appeal against a High Court decision last Sept 25, setting aside the exparte injunction order granted to her to restrain T.Saravanan, 31, from commencing proceedings in the Syariah Court to dissolve their marriage and to convert their second son.
The 28-year-old woman filed the leave application together with a certificate of urgency through law firm Kanesalingam and Co. last Friday (March 30, 2007).
It will be the end of the road for Subashini if she fails to get leave from the Federal Court to appeal. If that happens, the Court of Appeal decision would be final, reports Bernama today.
Last Friday, Subashini obtained a temporary injunction from the Court of Appeal preventing Saravanan from initiating or continuing with any proceedings in the Syariah Court or converting their younger son pending the hearing of her leave application.
Among the other questions proposed for the Federal CourtÂ’s determination:
- whether it is an abuse of process for a spouse in a civil marriage to unilaterally convert the religion of a minor child without the consent of the other parent; and
- whether Article 121 (1A) of the Federal Constitution prevents the High Court from granting interim injunctions, where the abuse of process is effected at the syariah court through unconstitutional and jurisdictionally incompetent filing of proceedings in the syariah courts and unilateral conversion of a minor child from a civil marriage, by the converted spouse.
Article 121 (1A) states that the civil courts do not have jurisdiction over matters within the jurisdiction of the syariah courts which, constitutionally, only has jurisdiction over Muslims.
The couple, who have yet to finalise their divorce, have two children, Dharvin Joshua, three, and one-year-old Sharvind.
Saravanan, whose Muslim name is Muhammad Shafi Abdullah, had claimed that the elder child had converted to Islam with him in May last year.
In seeking an early hearing, Subashini gave the following grounds:
- the issues raised in the leave application pertained to the imposition of Islamic law on non-Muslim citizens, which fundamentally affects the lives of the entire non-Muslim community;
- the leave application raised issues regarding the relationship between the Civil High Courts and Syariah Courts established by various state legislatures which will have a significant impact on the proper functioning of the judicial arm of the government and the maintenance of the rule of law in Malaysia
