Published on: Friday, December 28, 2007 |
Putra Jaya: The civil court has exclusive jurisdiction in any case involving the dissolution of a civil marriage and dispute over the custody of children where one spouse has converted to Islam, the Federal Court ruled, Thursday.
The husband and wife in the civil marriage were bound by the Law Reform (Marriage and Divorce) Act 1976 with regard to divorce and dispute over the custody of their children, ruled the panel of three judges led by Federal Court judge Datuk Nik Hashim Nik Ab. Rahman.
"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 (Civil) 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, who presided together with Datuk Abdul Aziz Mohamad and Datuk Azmel Ma'amor.
Thus, he said, the non-Muslim marriage between the husband and wife remained intact and continued to subsist until the Civil High Court dissolved it persuant to a petition for divorce filed by the unconverted spouse under Section 51 (1) of the Law Reform (Marriage and Divorce) Act 1976.
In his 33-page judgment, Nik Hashim also held that a non-Muslim marriage did not automatically dissolve when one of the spouses converted to Islam.
The ruling was made in the appeal by former secretary R.Subashini who is fighting for her matrimonial rights from her Muslim-convert husband T. Saravanan and is also trying to prevent Saravanan from converting to Islam their second son, Sharvin, two.
Their first son, Dharvin Joshua, four, has been converted to Islam by Saravanan. Nik Hashim said, however, that Saravanan still had a right to seek remedies in the Syariah Court as a Muslim and that his filing for a dissolution of the marriage in the Syariah Court was not an abuse of the court process.
However, he said, Saravanan could not shield himself behind the freedom of religion under Article 11 (1) of the Federal Constitution to avoid his antecedent obligations under the Law Reform Act on the grounds that the Civil Court has no jurisdiction over him.
"It must be noted that both the husband and wife were Hindus at the time of marriage. Therefore, the status of the husband and wife at the time of registering their marriage was of material importance, otherwise the husband's conversion would cause injustice to the unconverted wife, including the children," Nik Hashim said.
In spite of the ruling, the quorum, in a 2-1 majority, dismissed Subashini's appeal to set aside the High Court's refusal to grant her an injunction order to stop Saravanan from dissolving their marriage in the Syariah Court and converting their second son to Islam. Justice Abdul Aziz dissented.
The court threw out Subashini's appeal after holding that her divorce petition was invalid on technical grounds - she had filed for it prematurely, two months and 18 days short of the stipulated three months after the conversion of her husband to Islam.
Nik Hashim said the Civil High Court would not have the jurisdiction to entertain Subashini's petition for divorce unless she complied with the reqirement under Section 51 (1) of the Law Reform Act where that proviso imposed a caveat on her not to file the divorce petition until a lapse of three months from the date of her husband's conversion to Islam.
He said that in this case, Saravanan converted himself and the elder son to Islam on May 18 2006 and the certificates of conversion of Islam issued to them under Section 112 of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 conclusively proved that their conversion took place on that date.
However, Nik Hashim said, Subashini was entitled to proceed with her application on custody even though she failed to comply with Section 51 of the Law Reform Act but he said it would be most appropriate if Subashini filed her petition for divorce again.
"Assuming that the wife's (Subashini's) petition was properly filed before the court, i.e. it was filed three months after the conversion, then my view is that the High Court would have the jurisdiction to hear and determine the petition for divorce and the application for ancillary relief under Section 51 of the Law Reform Act even though the husband (Saravanan) had converted to Islam before her petition for divorce had been filed in the Civil High Court and that he (Saravanan) had already commenced the proceedings in the Syariah Court," the judge said.
Nik Hashim also said that the Civil Court could not be moved to injunct a validly obtained order of a Syariah Court of competent jurisdiction, adding that the injunction obtained by Subashini was in effect a stay of proceedings of Saravanan's applications in the Syariah Court and that amounted to interference by the Civil High Court in Saravanan's rights as a Muslim to pursue his remedies in the Syariah Court.
"Both Civil and Syariah courts are creatures of statutes such as the Federal Constitution, the Acts of Parliament and the State Enactments. These two courts are administered separately and they are independent of each other. Although the syariah courts are state courts they are not lower in status than the civil courts. I would say, they are of equal standing under the Federal Constitution," Nik Hashim said.
Nik Hashim said that with the separation of the jurisdictions as laid out in Article 121 (1A) of the Federal Constitution, the respective court cannot interfere with each other's jurisdiction.
On Saravanan's counsel's contention that Subashini could submit to the jurisdiction of the Syariah Court and have recourse to Section 53 of the Administration of Islamic Law (Federal Territories) Act 1993, he said it was not quite correct as the act limited its jurisdiction to Muslims only.
"The wife being a non-Muslim has no locus in the Syariah Court," Nik Hashim said. Justice Azmel concurred with Nik Hashim's judgment. - Bernama
