This case bothers Malaysians a lot because one of the big questions that has to be answered is whether the mutual parental consent of both parents in a marriage or divorce are needed when one parent converts to Islam and permits the Islamic authorities to convert a child who is under the age of consent.
The court has just ruled that one parent could have the child converted without the consent of the other marriage partner!
Subashini case: Divorce comes under civil court
Soon Li Tsin | Dec 27, 07 12:24pm
The Federal Court today ruled that the syariah courts cannot dissolve a civil marriage and all dissolutions made in the religious court is only effective within the confines of the Islamic law.
“The non-Muslim marriage between the husband and wife remains intact and continues to subsist until the High Court dissolves it pursuant to a divorce petition by the unconverted spouse under the LRA,” said justice Nik Hashim Nik Ab Rahman.
This is a minor victory for company secretary R Subashini as her marriage with Islam-convert husband T Saravanan was a civil marriage and she could go to the civil courts for her divorce.
Subashini, 28, a Hindu, is trying to stop her husband, who has converted to Islam and assumed the name Muhammad Shafi Saravanan Abdullah, from taking matrimonial proceedings to the Syariah Court.
Her husband converted in May 2006 along with their eldest son, Dharvin Joshua, 4. The husband then launched proceedings in the Syariah Court for divorce as well as the custody of their second son, Sharvin, 2.
However, the issue of custody of their children remain unclear as the Federal Court today also ruled that Saravanan did not abuse the law by converting his four-year-old son to Islam without the knowledge of the mother.
It said that according to the Federal Constitution, only the consent of one parent is sufficient in the conversion of a child.
The court also ruled that it was within the right of Saravanan as a Muslim to file the divorce proceedings in the Syariah Court.
Nevertheless, the Federal Court three-member panel today delivered a blow against Subashini by throwing out her case on a legal technicality - that her divorce petition was 'premature and invalid'.
In a 2-1 decision, the country’s highest court said that Subashini’s divorce petition was prematurely filed under the Law Reform (Marriage and Divorce) Act 1976 (LRA).
According to the act, the wife can only file for divorce three months after the date of her husband T Saravanan’s conversion to Islam, as stipulated under Islamic law.
However, Subashini’s divorce petition was filed about two weeks before the three months expiration date. The divorce petition is deemed null and void. Nevertheless, Subashini can apply for a fresh application.
Justices Nik Hashim Nik Ab Rahman and Azmel Ma'amor struck out Subashini’s case while justice Abdul Aziz Mohamad was the lone dissenting voice.
Federal Court overruled lower court
During her appeal to the Court of Appeal on March 13, justices Suriyadi Halim Omar and Hassan Lah who made the majority 2-1 decision told her to take her case before the Syariah Court instead, while justice Gopal Sri Ram dissented.
According to the majority decision, the injunction sought by Subashini was unsustainable because the Syariah Court is competent enough decide on the matter.
However, on March 30, Subashini was granted an interim injunction by the Court of Appeal restraining Saravanan from pursuing his claims in the Islamic court.
The injunction also effectively restrained him from converting their Sharvin to Islam and from pursuing his custody claims in the Syariah Court.
It was also held in the landmark ruling that a Muslim could apply to the Islamic court to convert his or her underage children without permission from the non-Muslim spouse.