Thursday, December 27, 2007

Meaning of the Subashini Judgment

The following clear interpretation of the outcome of the Subashini is provided by Malaysiakini-the news portal that exposes everything.

Of the three Muslim Malay judges, one of them dissented.

The landmark judgment in a nutshell
Soon Li Tsin | Dec 27, 07 8:36pm

It took more than an hour for the judgment to be read in court. The majority decision was delivered by Nik Hashim Nik Ab Rahman - who headed the Federal Court three-member bench - while Abdul Aziz Mohamad delivered the minority decision.

Majority decision - Nik Hashim Nik Ab Rahman and Azmel Ma'amor

• Subashini’s divorce petition under the Law Reform (Marriage and Divorce) Act is deem null and void because it was filed before the requisite three months period.

• Saravanan and Subashini’s civil marriage can only be dissolved using civil law. The husband can still dissolve it under syariah law but it will have no effect in the civil courts.

• Saravanan can seek relief in the syariah courts but it cannot compel Subashini to do the same because she is a non-Muslim.

• Saravanan did not abuse the process by converting his child because the consent from one parent is sufficient according to Article 12(4) of the Federal Constitution .

Dissenting ruling - Abdul Aziz Mohamad

• The evidence of Saravanan’s conversion must be tried in order to determine whether the conversion date was based on his certificate or on facts made available to Subashini.

• Saravanan had abused the process in seeking the custody of the children in the Syariah Court because the religious court has no jurisdiction over a non-Muslim marriage.

• Saravanan’s conversion of the children is not unilateral and the wife has a right to object to the conversion as well as seek an injunction to stop the procedure.

• The High Court has exclusive jurisdiction in matters of dissolution of marriage, maintenance, custody and other ancillary reliefs because the marriage was solemnised under civil law.

2 comments:

Sullivan said...

What a lovely country and its constitution.

luke said...

Welcome to Malaysia, Sullivan. It's also called Bolehland. Everything is possible against the odds and universal laws...