In handing down what is widely seen as an equivocal decision today, the Federal Court drew away from answering the question of which court, civil or Syariah, has exclusive jurisdiction to hear cases involving non-Muslim spouses whose partners had converted to Islam.
However the apex court made it clear, when it unanimously decided, that the High Court still has jurisdiction to hear cases involving non-Muslim spouses involved in a matrimonial disputes, even though the other partner had converted to Islam.
This was among the rulings that the three-man panel of judges handed down in the decision of the much awaited case of R.Subashini vs T.Saravanan today.
In the 2-1 decision, the head of the panel Datuk Nik Hashim Nik Abd Rahman and Datuk Azmel Ma’amor concurred while Datuk Abdul Aziz Mohamad gave a dissenting judgement.
The rulings allow Saravanan, 31, whose Muslim name is Muhammad Shafi Abdullah to continue to seek recourse in the syariah court while Subashini, 29, can proceed to file for divorce proceedings in the civil court.
Nik Hashim said by embracing Islam, the husband and the son became subject to Muslim personal and religious laws and it is not an abuse of process if Saravanan, being a Muslim, seeks remedies in the Syariah High Court as it is his right to do so.
The Federal court however cautioned that questions may arise as to whether Subashini would be bound by the syariah court's decisions because she is not a Muslim.
“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," said Nik Hashim.
"Thus, the non-Muslim marriage between the husband and wife remains intact amd 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 added.
Nik Hashim said there is no impediment for Saravanan to appear in the divorce proceeding at the High Court albeit as respondent, as the jurisdiction of the High Court extends to him, unlike the Syariah High Court which restricts its jurisdiction to persons professing the religion of Islam only.
The court also paved the way for Saravanan to carry on with his other aims, including to seek custody of the two children and conversion of the second child to Islam, when the court set aside the Erinford injunctions obtained by Subashini previously against Saravanan.
But in this particular case, the court ruled that it could not grant the injunction because Subashini’s divorce petition was premature, due to the fact it was filed short of the three-month requirement.
Saravanan’s lawyer had argued during the trial that she had ignored the Islamic imposition of waiting for three menstrual cycles to lapse first.
Saravanan had previously converted his elder son to Islam when he embraced Islam on May 18, 2006.
“The wife’s petition was filed in contravention of the requirement under proviso to Section 51(1) of the 1976 Act in that it was filed two months and 18 days short of three months after the husband’s conversion to Islam,” said Nik Hashim.
He added it follows therefore that the petition was premature and invalid and the summons-in-chambers, ex-parte and inter parte based on the petition which were filed therein were also invalid.
Nik Hashim said the wife is entitled to proceed with the rest of the application but it would be most appropriate she files her petition for divorce afresh under Section 51 coupled with an application for ancillary reliefs as the court would grant the reliefs under Section 51(2) upon the dissolution of the marriage.
On the issue of whether, one parent can prevent the other from converting the religion of their children, Nik Hashim and Azmel ruled that either party cannot refrain the other from doing so.
Abdul Aziz howver disagreed, saying the opposing party has a right for his/her objections to be heard.
The Federal court also unanimously ruled the courts are eligible to grant Erinford injunctions to the disputing parties, to temporarily halt orders from the other courts, pending the applications to seek for leave to appeal to the higher courts.
After the decision was handed down, Subashini said she was disappointed with the judgement., saying she wished the judges had looked into her rights as a mother.
“It is unfair to treat me like this. I gave birth to our children and I have a right to make a decision about my children, as a mother,” she said in a phone interview with theSun.
“How can they say my estranged husband has the right to convert our second child? Does this mean I will lose my second son as well?” she added.
Subashini has not met her first son, Dharvin Joshua, for the past two years since her husband, Saravanan, converted the boy.
She said Saravanan, was only willing to grant her access to Dharvin in exchange for access to their youngest child, Sharvin.
Subashini said she was willing to give up not seeing Dharvin for fear that Saravanan would convert their second child as well.
“If that happens, then I am afraid that both my kids will be taken away from me, and I will have no one,” she said.
Subashini said it was unfair that her newly-converted husband seems to have been granted more rights over her as a mother.
“Where is my right, as a mother?” she asked, adding that she was still discussing her next course of action with her lawyer.
Subashini’s lawyer K. Shanmuga told theSun Subashini was distraught over the judgment.
“She’s uncertain about her future and her children’s future. It’s a blow to her because she’s been told she can’t stop her husband from going to the syariah court to get orders regarding the breakup of their marriage, and she can’t stop him from converting their younger child,” he said.
Meanwhile, Saravanan's lawyer Zainul Rijal Abu Bakar, said it was difficult for him to respond to the latest development in the court case as they have yet to get the full written judgment.
"We have to wait for the full judgment first as we need to see what we can or cannot do. We have to see the reasonings of the judgment," he said to theSun when contacted today.