Non-Muslim wife's appeal dismissed in favour of Muslim husband

There's no doubt in my mind, that 2 out of 3 members of the Court of Appeals are wrong, wrong, wrong. Did I mention I think they are wrong?

Some background (do read the blog links below)... the Hindu wife applied to the high court to restrain her recently converted husband from dissolving their marriage in the syariah, rather than civil court. Caught up in this are their 2 minor children whom the husband also converted to Islam without her knowledge.

Here's what Justice Suriyadi Halim Omar had to say:

He said the Islamic Family Law (Federal Territories) Act 1984 said that in the event one of the parties converted to Islam, it must be administratively dissolved by a syariah court.

"With both wanting the same type of order, that is the dissolution of the marriage, Subashini's objection merely on the ground that the Syariah Court was constitutionally set up only for Muslims, made no sense," adding that to grant her the injunction would certainly be an abuse of court process.

"Whether the Syariah Court has jurisdiction to declare the marriage of Subshini and Saravanan as dissolved, when Subashini is not a Muslim, is a legal matter reserved for another day."

I beg your pardon. Another day? That day is today, and it is the crux of the issue. Just because a Muslim is involved, doesn't automatically make it a Syariah Court decision. The court cannot conveniently ignore the fact that this case also involves a non-Muslim.

And isn't the court forgetting the basic element of timeline? The marriage was a civil marriage between 2 non-Muslims some years before the husband's conversion to Islam. How can civil law, and therefore the civil courts be deemed to have retrospectively relinquished jurisdiction simply because one party chose subsequently to become Muslim?

If Malaysian Islamic Law states that Muslims cannot be married to non-Muslims, then I put it to the learned judge that this law would also logically imply that individuals who REMAIN married to non-Muslims are disqualified from becoming Muslim until such time when they legally terminate the said marriage. Is a sword not double edged?

How can a civil marriage between 2 people be terminated unilaterally by one party [in this case, by way of conversion]? And even if the conversion were deemed to end the marriage, why should it's legal dissolution be on the terms of the new convert's religion? If this marriage were a contract between 2 people, the contract was founded and struck on civil laws. And it must end based on civil laws. How can one party of the contract simply change the terms to religious law without the agreement of the other party?

Suriyadi said Shafi was exercising his constitutional right of choosing the syariah court over the civil court to annul his marriage while Subashini went to the High Court to restrain him.

I hope he's not saying that only the Muslim [husband, Syafi], has a constitutional right of choosing which court to annul the marriage. On the same token, doesn't the Hindu [wife, Subshini] have an equal right to make the same choice?

And Justice Hasan Lah said this in his judgement:

Article 121(1A) of the Federal Constitution provides that the civil court has no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

"The Federal Constitution therefore recognizes the coexistence of the two systems of Courts in the administration of justice in this country and each court has its own role to play. As such the two Courts must be regarded as having the same standing in this country."

Hasan said the Law Reform (Marriage and Divorce) Act 1976 gave Subshini the right to apply to the High Court but the civil court could not issue a stay order (under the Specific Relief Act 1950) on matters involving the syariah court.

He first mentions that the Constitution... nay, the AMENDED Constitution states that the Civil Court and Syariah Court are equal. But subsequently, his judgement clearly subordinates the Civil Court in favour of the Syariah Court. A proper stand, in my opinion, would be that the Civil Court could not stay the proceedings of a Syariah Court, ONLY if the matter is clearly within the jurisdiction of the Syariah Court.

But as his learned colleague, Suriyadi ealier said... jurisdiction is a "legal matter reserved for another day". Therefore if the court has not yet decided on jurisdiction, how can it so meekly give it up without even deliberating on it?

"The wife is therefore in a Catch 22 situation but she has a recourse." The remedy can be found in Section 53 of the Administration of Islamic Law (Federal Territories) Act 1993.

The wordings in that section is wide enough to enable the wife to apply to the Syariah Appeal Court to exercise its supervisory and revisionary powers to make a ruling on the legality of the husband's application and the interim order obtained by the husband on the ground that the Syariah Court had no jurisdiction over the matter, as she is not a person professing the religion Islam.

"The wife could have done that rather than asking the civil court to review the Syariah Court's decision."

As your other colleague and final member of the Court of Appeal, Justice Gopal Sri Ram would go on to say in his dissenting judgement - this conclusion to send a non-Muslim to a Syariah court seeking reprieve [from that very court] is innately flawed. It's like sending a sheep into a tiger's lair, so that it can beg not to be eaten.

And doesn't one of the basic tenets of the Constitution... the ORIGINAL Constitution drafted by the founders of this country, say that every Malaysian has the freedom of religion?

Even though the Syariah court was raised to equal the Civil court by AMENDMENTS to the Constitution, it remains merely a theocratic manifestation of religious beliefs, with jurisdiction LIMITED ONLY to individuals who expressly profess the said religion and willingly submit themselves to it. Furthermore, as I've alluded to with the goat & tiger analogy - we cannot discount the possibility that a court and a set of laws based on one religion will innately possess inherent bias and prejudice against persons of other religions. Therefore, for a religious court to claim legal jurisdiction over a person who does not profess that religion and who has expressly refused to submit to it... wouldn't that constitute a glaring infringement of that person's constitutional right to religious freedom?

And finally, the Justice Gopal Sri Ram:

The High Court has jurisdiction to hear Subashini's petition despite the husband's conversion to Islam.

If a State enactment or, in an Act of Parliament, in the case of Federal Territories, passes a law that confers jurisdiction on a Syariah court over non-Muslims or in respect of a subject not within Item 1 of List II of the Federal Constitution, such a law would be ultra vires the Constitution and to that extent would be void.

"And that is why, in order to be intra vires, the Federal Constitution, Section 46 of the 1993 Act [Administration of Islamic Law (Federal Territories)] confers jurisdiction on a Syariah High Court in civil matters only where all parties are Muslims."

On a true interpretation of the Constitution, a Syariah Court, whether in a State or in a Federal Territory only has such jurisdiction as may be conferred upon it by State or Federal Law.

Hence, the jurisdiction of the Syariah Court, on the facts of the present case, is governed exclusively by Section 46)2)(b)(i) of the 1993 Act and not by the Second List in the Ninth Schedule of the Federal Constitution.

"Any other interpretation would, in my respectful view, produce a manifest absurdity and visit an injustice upon non-Muslim spouses, in particular upon the wife in the present instance."

Sri Ram said the injunction sought by Subashini was only against the husband and not the syariah court.

As such, he added that the High Court had erred in law in not giving Subshini the relief she had sought.

Hear hear, Justice Sri Ram.

And the devil's advocate within me clouds my mind with unnerving concerns about the coincidence that both the Court of Appeal Justices who ruled against the appeal are Muslims, while the one dissenting Justice... is not. But having said that, I have absolute trust that such senior members of the judiciary will never allow personal religious beliefs to encroach upon their sworn duties to uphold the [civil] law, the constitution and justice for all Malaysians.

... And we haven't even begun to talk about the kids yet. The question being "can the Muslim convert father unilaterally convert the religion of the minor Hindu children without the knowledge, and therefore agreement of the Hindu mother?"

Below are my related blogposts and complete texts of several press articles about this judgement.

Chief Syariah Judge concedes that Syariah Court has no power over Non-Muslims

Religious Learnings for make better Glorious Nation of Malaysia

The Scope of Syariah on Non-Muslims?

JAIS, Body Snatching, Conversion, Apostates and the Courts

I told you Malaysia has to tighten up religious conversion!

A Solution to the Article 11 Impasse

Conversion case: Non-Muslim spouse's appeal dismissed
R.Surenthira Kumar
http://www.sun2surf.com/article.cfm?id=17273

PUTRAJAYA (March 13, 2007): A Court of Appeal today dismissed a non-Muslim spouse's appeal to prevent her husband from dissolving their marriage and from converting their children to Islam without her permission, saying her recourse was through the Syariah Appeal Court.

In a majority decision, Justices Datuk Suriyadi Halim Omar and Datuk Hasan Lah dismissed R.Subshini's appeal and allowed her husband, T. Saravanan's appeal. Third panel member Justice Datuk Gopal Sri Ram dissented.

Subshini had sought to prevent her husband from converting their second child after he had converted the elder of the two sons to Islam in May last year.

Today's judgment paved the way for Saravanan to proceed with his plan to convert his second son and to obtain an order from the Syariah Court to dissolve his marriage to a non-Muslim.

Excerpts of the grounds of judgement from the three judges:

Suriyadi:

Saravanan wanted to prevent Subshini from administratively ending the marriage between them, despite it having ended with the latter's conversion. Subshini too wanted to dissolve the marriage at the High Court.

"With both wanting the same type of order, that is the dissolution of the marriage, Subshini's objection merely on the ground that the Syariah Court was constitutionally set up only for Muslims, made no sense."

"Whether the Syariah Court has jurisdiction to declare the marriage of Subshini and Saravanan as dissolved, when Subshini is not a Muslim, is a legal matter reserved for another day."

It was clear Subshini faced an uphill battle in trying to stop Saravanan from exercising his constitutional right to choose the Syariah Court over the civil court pertaining to matters connected to their marriage.

To overcome her predicament, Subshini had submitted that she was not injuncting the Syariah Court but only Saravanan. But the eventual effect was to shackle the Syariah Court.

Subshini's dissatisfaction will not quietly "just go away".

"Parliament has to cap any obvious lacuna promptly and as equitably as possible to harmonise the two systems. Justice is never irreconcilable."

Hasan (not present, judgement read by Sri Ram):

Civil court has to accept Saravanan's conversion was on May 15, 2006 and it was not for the civil court to question this.

Under the Law & Marriage Reform Act 1976, the wife has the right to file a petition for divorce in the civil court and the civil court has power to make provision for the wife, support, care and custody of the children.

However, it is clear that under Section 54(1) of the Specific Relief Act 1950, the civil court cannot issue a request to stay proceedings in the Syariah Court.

"The wife is therefore in a Catch 22 situation but she has a recourse."

The remedy can be found in Section 53 of the Administration of Islamic Law (Federal Territories) Act 1993.

The wordings in that section is wide enough to enable the wife to apply to the Syariah Appeal Court to exercise its supervisory and revisionary powers to make a ruling on the legality of the husband's application and the interim order obtained by the husband on the ground that the Syariah Court had no jurisdiction over the matter, as she is not a person professing the religion Islam.

"The wife could have done that rather than asking the civil court to review the Syariah Court's decision."

Article 121(1A) of the Federal Constitution provides that the civil court has no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

"The Federal Constitution therefore recognizes the coexistence of the two systems of Courts in the administration of justice in this country and each court has its own role to play. As such the two Courts must be regarded as having the same standing in this country."

Sri Ram:

The High Court has jurisdiction to hear Subshini's petition despite the husband's conversion to Islam.

If a State enactment or, in an Act of Parliament, in the case of Federal Territories, passes a law that confers jurisdiction on a Syariah court over non-Muslims or in respect of a subject not within Item 1 of List II of the Federal Constitution, such a law would be ultra vires the Constitution and to that extent would be void.

"And that is why, in order to be intra vires, the Federal Constitution, Section 46 of the 1993 Act [Administration of Islamic Law (Federal Territories)] confers jurisdiction on a Syariah High Court in civil matters only where all parties are Muslims."

On a true interpretation of the Constitution, a Syariah Court, whether in a State or in a Federal Territory only has such jurisdiction as may be conferred upon it by State or Federal Law.

Hence, the jurisdiction of the Syariah Court, on the facts of the present case, is governed exclusively by Section 46)2)(b)(i) of the 1993 Act and not by the Second List in the Ninth Schedule of the Federal Constitution.

"Any other interpretation would, in my respectful view, produce a manifest absurdity and visit an injustice upon non-Muslim spouses, in particular upon the wife in the present instance."

The Judicial Commissioner's decision that she did have jurisdiction to entertain the wife's petition, was, with respect, in error when she declined jurisdiction over the interlocutory summons for an injunction.

On Saravanan's contention that the petition filed by Subshini was premature as Saravanan had claimed he converted to Islam less than three months before his wife presented her petition, is one on which the evidence is in serious conflict.

"Accordingly, there is no merit in the husband's argument on this point."

The matter must be tried by the High Court like any other question of fact.

"For the reasons already given, I would allow the wife's appeal and set aside the orders made by the High Court. The husband's appeal must, for the same reasons already advanced, fail. I would dismiss it with costs," said Sri Ram.

Subshini's lawyers, Malek Imtiaz Sarwar, Haris Mohd Ibrahim and K.Shanmuga said their client had instructed them to file for a stay of execution pending an appeal to the Federal Court.

Saravanan was represented by Mohamed Haniff Khatri Abdulla, Zainul Rijal Abu Bakar and Wan Khairuddin Wan Montil.

Meera Samanther held a watching brief for Women's Aid Organisation (WAO), Sisters In Islam, Women's Development Collective and Women Centre for Change.

WAO spokesperson Ivy Josiah said it appeared the authorities have "utter disregard" for civil marriages.

She said there are many women who are not aware of their husband's conversion and this left many unanswered questions, in terms of looking after the rights of the women and children.

"We have submitted a memorandum to the Attorney-General to highlight such issues and we hope to have a dialogue on it."

She added the issue is more complicated than it looks as many States have different Syariah enactments.

Josiah was speaking to reporters outside the courtroom after the judgment was delivered.

Case background:

Subshini and Saravanan, both Hindus at the time, were married pursuant to a civil ceremony on July 26, 2001. They had two children, Dharvin Joshua, three and Sharvind, one.

The marriage was on the rocks in the later part of 2005 after which Subshini filed a divorce petition on Aug 4, 2006.

She claimed that Saravanan had or on about Oct 2005 started to leave the marital home and moved out since Feb 2006.

On May 11, 2006, Saravanan informed Subshini he had converted to Islam.

On July 14, 2006, he commenced proceedings for custody of the two children at the Kuala Lumpur Syariah High Court.

Subshini subsequently learnt Saravanan had converted Dharvin to Islam because her son's name was stated as Muhammad Shazrul Dharvin bin Muhammad Shafi in the suit.

Subshinin then applied to the High Court for injunctions restraining Saravanan from converting either child to Islam and also Saravanan's move to dissolve the marriage and also take custody of the children.

The High Court granted an ex parte injunction on Aug 11, 2006 but later on Sept 25, 2006, dissolved it after an inter-parte hearing.

However the High Court granted an interim injunction (Erinford injunction) in terms of Subshini's summons pending the hearing of an appeal to the Court of Appeal.


Non-Muslim spouse must seek remedy in syariah court
V. Anbalagan 14 Mar 2007
http://www.nst.com.my/Current_News/nst/Wednesday/National/20070314083944/Article/index_html

PUTRAJAYA: A non-Muslim married to a person who has converted to Islam has to seek remedy in the syariah court over family matters.

In a landmark ruling, the Court of Appeal also held that a Muslim could make an application to the syariah court to convert his or her underage children without the permission of the non-Muslim spouse.

However, the three Court of Appeal judges were divided in their opinions.

Judges Datuk Suriyadi Halim Omar and Datuk Hasan Lah dismissed with costs the appeal of R. Subshini, 28, a company secretary, who wanted an injunction to restrain her husband, Muhammad Shafi Saravanan Abdullah, 30, a businessman, from:

• converting their two children, Dharvin Joshua, 3, and one-year-old Sharvind to Islam; and,

• commencing any proceeding in any syariah court with regard to their civil marriage.

Datuk Gopal Sri Ram, who was the dissenting judge, said the court would hear a formal application from Subshini to stay the order sought by her husband in a day or two.

The application was filed yesterday.

Lawyer K. Shanmuga, counsel for Subshini, told reporters that application for leave to appeal against the Court of Appeal’s decision would be made to the Federal Court.

Subshini and Shafi were not present in court.

Suriyadi in his judgment said Subshini had told the High Court that she was only contesting the conversion of Sharvind.

Dharvin Joshua was converted on May 18 last year but Subshini was not challenging it.

The judge said he refused to accept the argument that Sharvind had automatically become a Muslim upon the conversion of his father as required under a provision in the Administration of Islamic Law (Federal Territories) Act 1993.

"This provision merely provides the capacity and the conditions for a person, who is not a Muslim, to adhere to," he said.

"For a person, who has not attained the age of 18 years, his parent or guardian has to consent to his conversion which entails certain conditions."

He said Shafi could not be prevented from commencing any proceeding in the syariah court.

Suriyadi said from the Islamic point of view, the marriage between Shafi and Subshini had ended upon his conversion and the next step was a formal dissolution of the marriage.

He said the Islamic Family Law (Federal Territories) Act 1984 said that in the event one of the parties converted to Islam, it must be administratively dissolved by a syariah court.

"Both want to dissolve their marriage but the appellant’s (Subshini’s) objection merely on the ground that the syariah court was constitutionally set up only for Muslims made no sense," he said, adding that to grant her the injunction would certainly be an abuse of court process.

He said whether the syariah court had jurisdiction to declare the marriage between Shafi and Subshini as dissolved when she was a non-Muslim was a legal matter reserved for another day.

Suriyadi said Shafi was exercising his constitutional right of choosing the syariah court over the civil court to annul his marriage while Subshini went to the High Court to restrain him.

"In short, the appellant (Subshini) wanted the civil court to arrogate the function and duties of the syariah court," he said.

Meanwhile, Hasan said the Law Reform (Marriage and Divorce) Act 1976 gave Subshini the right to apply to the High Court but the civil court could not issue a stay order (under the Specific Relief Act 1950) on matters involving the syariah court.

"The wife is therefore in a catch-22 situation. But she has a recourse under a provision in the Administration of Islamic Law (Federal Territories) Act," he said, adding that Subshini could apply to the Syariah Appeal Court to exercise its supervisory and revisionary powers to make a ruling on the legality of the husband’s application on grounds that the syariah court lacked jurisdiction and that she was a non-Muslim.


Sri Ram takes dissenting view
14 Mar 2007
http://www.nst.com.my/Current_News/nst/Wednesday/National/20070314083627/Article/index_html

PUTRAJAYA: The syariah courts only have jurisdiction over persons professing the Islamic faith, Court of Appeal judge Datuk Gopal Sri Ram said.

In his dissenting judgment, he said such courts had authority only over matters stated in the state list of the Federal Constitution.

"Therefore, if a state enactment or an Act of Parliament, as in the cases of Federal Territories, passes law that confers jurisdiction to syariah courts over non-Muslims, it will be ultra vires the Constitution," he said in allowing the appeal of R. Subshini.

Muhammad Shafi Saravanan Abdullah had filed his application to dissolve his marriage with Subshini at the Syariah Court of Kuala Lumpur, a Federal Territory.

Sri Ram, who led the three-man panel hearing the appeal, said that was why a provision in the Administration of Islamic Law (Federal Territories) Act 1993 conferred jurisdiction on a Syariah High Court in civil matters only where all the parties were Muslims.

He said on a true interpretation of the Constitution, a syariah court, whether in a state or federal territory, only had such jurisdiction as conferred upon it by state or federal law.

"Any other interpretation would, in my respectful view, produce a manifest absurdity and visit an injustice upon non-Muslim spouses."

Sri Ram said the Islamic Family Law (Federal Territories) Act 1984 conferred jurisdiction on the syariah court over matrimonial matters only where all parties to the proceedings were Muslims.

"It would therefore appear that in the present case the syariah court has no jurisdiction as the husband (Shafi) is a Muslim while the wife, a Hindu."

He said the Law Reform (Marriage and Divorce) Act 1976 gave the High Court the jurisdiction to hear a wife’s petition despite the husband converting to Islam.

Sri Ram said the injunction sought by Subshini was only against the husband and not the syariah court.

As such, he added that the High Court had erred in law in not giving Subshini the relief she had sought.


New religious row erupts in Malaysia
http://malaysia-today.net/blog2006/newsncom.php?itemid=3178

(REUTERS) - A new religious dispute has broken out in Malaysia after a civil court told non-Muslims to approach Islamic religious courts to resolve quarrels with Muslim spouses over family matters.

The move highlights the tension between civil and religious laws, which appear to give Muslims a privileged status over other Malaysians, stoking the latter's fears about what they see as an erosion of their religious freedoms.

The appeal court in Malaysia, which boasts of religious diversity even though just over half of the country's population is Muslim, also said a Muslim could seek to convert underage children without the consent of the non-Muslim spouse.

The decision, in a case in which an ethnic Indian woman is fighting her businessman husband for custody of their toddler sons after he converted to Islam last year, has stirred the concern of religious and rights groups.

"It is a gross injustice to ask Hindus to submit to the jurisdiction of the sharia court," said A. Vaithilingam, chief of the Malaysia Hindu Sangam, which speaks for Hindus, who are mostly ethnic Indians and form about 8 per cent of the population. "The Shariah court administers Islamic canonical law, to which Hindus do not subscribe," Vaithilingam said in a statement.

Malaysia's inter-faith council, which groups Buddhists, Christians, Sikhs and Taoists among others, is meeting within a week to hammer out plans to oppose the move, he said.

Many non-Muslims fear legal ambiguities could subject them to the jurisdiction of Islamic courts, but many Muslims see efforts to settle those uncertainties as an attack on religious courts.

Wider coverage in the mainstream media of sensitive topics such as conversion, apostasy and Malay rights has stirred tension in the Muslim community by provoking fears that it represents an attempt to erode the distinctive place of Islam in Malaysia. Non-Muslims became unsure of their rights in 2005, when state Islamic authorities gave a former soldier a Muslim burial against the wishes of his Hindu widow, and the High Court said it had no jurisdiction over such religious matters.