Conversion Case: Non-Muslim Spouse's Appeal Dismissed

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.

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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.