Jurisdiction tussle decision today

(The Sun): The Federal Court is expected to deliver a landmark decision today on whether the Civil or Syariah courts have the jurisdiction in the case of a non-Muslim woman embroiled n a legal tussle with her Muslim-convert husband over the dissolution of their marriage, custody of their two children and conversion of their second child.

The R.Subashini, 29, and T.Saravanan, 31, case turned complicated when the Court of Appeal, on March 13, ruled that the Civil court cannot stop a Muslim convert husband from going to the Syariah court to get his marriage dissolved and custody of his children.

The court, in a two-one majority decision, held that Saravanan, a Muslim, can proceed to the Syariah court to dissolve his marriage with his non-Muslim wife, R.Subashini.

In dismissing Subashini's appeal, it also ruled that even though Subashini is a non-Muslim wife, she can go to Syariah court to get custody of her children obtained by her husband.
Judges Datuk Suriyadi Halim Omar and Datuk Hasan Lah dismissed the appeal while Datuk Gopal Sri Ram gave a dissenting judgment.

Subashini, a former secretary, had appealed against the Family Court's decision to set aside the injunction granted to her to temporarily restrain Saravanan from commencing proceedings in the Syariah court over their marriage and the conversion of their children.

Self-employed Saravanan, whose Muslim name is Muhammad Shafi Abdullah, had claimed that the elder child had converted to Islam with him in May.
The couple, married since July 2001 under Hindu rites and registered under the Law Reform (Marriage and Divorce) Act 1976, have two children, Dharvin Joshua, three, and one-year-old Sharvin.

Suriyadi, in his judgment, said Subashini's objection merely on the ground that the Syariah court was constitutionally set up only for Muslims, made no sense.

On the custody of the son, Dharvin Joshua, he said that an interim custody order was obtained from the Syariah court on May 23 last year by the husband, and it was trite law that if an order was to be reviewed, the venue was the very institution that issued it.

"So long as the order of May 23, 2006, is still valid, and in its original form, it is not for this court to challenge or injunct its execution. The respondent (Saravanan) and Dharvin Joshua, now prima facie are Muslims, and certain legal niceties must be resolved first," added Suriyadi.

Hasan, in his judgment, said the civil court had to accept that Saravanan's conversion was on May 18, 2006, and it is not for the civil court to question this.

It was clear that under Section 54(1) of the Specific Relief Act that the civil court could not issue a request to stay proceedings in the Syariah court, he said.

He said Subashini could apply to the Syariah court to exercise its supervisory and revisionary powers to make a ruling on the legality of her husband's application and the interim order obtained by him on the ground that the Syariah court had no jurisdiction over the matter as she is not a person professing Islam.

"The wife (Subashini) could have done that rather than asking the civil court to review the Syariah court's decision," he said.

On March 30, the same court granted Subashini an injunction to stop her Muslim convert husband from converting their son and pursuing final custody of their children from the Syariah court.

The Court of Appeal, in a majority decision, allowed Subashini's application for an order to prevent her husband, Saravanan, from converting their second son, Sharvind, aged one, to Islam and to stop Saravanan from commencing or pursuing claim for a final custodial order pending her appeal to the Federal Court.

Judges Datuk Gopal Sri Ram and Datuk Hasan Lah allowed the application while Datuk Suriyadi Halim Omar dissented.

"If the injunction is not granted, the wife's right will be overreached before the appeal is heard in the Federal Court and it will cause severe injustice. There is also the possibility that the father will convert the second child, the threat is substantial," submitted Subashini's counsel Malik Imtiaz Sarwar.

At the Federal Court on Sept 18, Subashini’s lawyer argued the Syariah court has no jurisdiction to adjudicate the dissolution of a civil marriage and custodial rights of a civil marriage in a dispute where one spouse has converted to Islam.

Malik, in his submission, claimed the exclusive jurisdiction to hear and decide such matters was vested in the Civil High Court because the marriage of non-Muslim couple was registered under civil law.

He said the Syariah court's jurisdiction to adjudicate dissolution of marriage was only confined to situations where both spouses professed the Islamic faith.

Therefore, he said, Muslim convert Saravanan could not seek any remedy in the Syariah court to dissolve his marriage with his Hindu wife Subashini as their marriage was solemnised under Hindu rites and registered under the Law Reform (Marriage and Divorce) Act 1976.

The appeal was heard before a three-man quorum comprising Datuk Nik Hashim Nik Ab Rahman, Datuk Abdul Aziz Mohamad and Datuk Azmel Ma'amor.

Subashini is appealing against the Court of Appeal decision that she fight for her matrimonial and custodial rights in the Syariah court.

She had brought her case to the Court of Appeal and Federal Court to reverse the Family Court's decision to set aside the ex-parte injunction granted to her to temporarily prevent her ex-husband from commencing proceedings in the Syariah court over their marriage or conversion of their youngest son.

Malik also submitted that Section 51 (1) of the Law Reform Act vested the jurisdiction on the civil court to hear and determine matrimonial matters where one spouse has converted to Muslim.
He argued further that the proceedings for dissolution of marriage commenced by Saravanan in the Syariah court was an abuse of the court process.

He said it was also wrong in law for Saravanan to convert the couple's elder child without the consent of the mother and added that a mother had the right to stop the conversion of the child unless she had consented to the conversion.

Saravanan’s lawyer, Mohamed Haniff Khatri, submitted that despite the fact that it originated under the civil law, the marriage between Subashini and Saravanan automatically come to an end under the Islamic Hukum Syarak upon the conversion of Saravanan.

He said the civil court did not have the jurisdiction to hear the divorce and custody claims in this case by virtue of Article 121 (1A) of the Federal Constitution which gives the exclusive jurisdiction to the Syariah court to deal with matters involving the Islamic faith.

Malik said Saravanan himself had filed for a divorce in the Syariah court a day after his official conversion, and before the three month cycle had lapsed.

He also submitted that Saravanan could not shield himself behind Article 11 (1) of the Federal Constitution (freedom to profess any religion) to avoid his antecedent obligations under the Law Reform (Marriage and Divorce) Act 1976.

Malik also said Subashini's rights would be violated if she was subjected to Islamic laws.
Mohamed Haniff Khatri argued that Subashini was obligated under Section 51 (1) of the Law Reform Act to file the petition for dissolution of marriage after the expiration of the three months from the date of Saravanan's conversion.

He said therefore, the divorce petition should be struck off as it was prematurely filed and was subsequently null and void.

After hearing submissions from both parties, the Federal Court, on Sept 24, reserved judgment.
Judge Datuk Nik Hashim Nik Ab Rahman who headed the three-member bench said the issues involved many constitutional points and the court needed time to consider the submissions of both parties.

They deferred decision to a date to be fixed after hearing submissions for three days from Malik and Mohamed Haniff Khatri.