The Star Online > Courts
Wednesday March 14, 2007
PUTRAJAYA: A woman, who is trying to prevent her Muslim-convert husband from dissolving their marriage in the Syariah Court and converting their second son, will have to state her case there, the Court of Appeal ruled.
In a 2-1 majority decision, Court of Appeal judges Justices Suriyadi Halim Omar and Hasan Lah dismissed R. Subashini's appeal against the High Court’s decision to set aside the injunction granted her last year to enable her to temporarily stop T. Saravanan from commencing with the proceedings in the Syariah Court regarding their marriage and conversion of their children.
Court of Appeal presiding judge Justice Gopal Sri Ram dissented.
Justice Hasan, in his written judgment, said Subashini should seek relief in the Syariah Court, to make a ruling on the legality of her husband's application and the injunction obtained by him.
She could do so on the grounds that the Syariah Court has no jurisdiction over the matter as she was not a person professing Islam, he said.
“The wife should have done that rather than ask the Civil Courts to review the Syariah Court's decision,” he said.
Justice Hasan added that the civil court had to accept that the husband's conversion was on May 18 last year.
“It is not for the civil court to question this,” he said.
Justice Suriyadi, in his judgment, said he could not allow Subashini's injunction application as she had failed to fulfil the requirement of establishing a serious question to be made out.
“The fact that the substratum of her case had been whittled away either by factor of time, or by her own act of abandonment of certain issue, did not help either,” he said.
Justice Suriyadi said it was clear that Subashini would face an uphill battle in her bid to stop the respondent from exercising his constitutional rights of choosing the Syariah Court over the civil court pertaining to matters connected to his marriage with her.
“By so wanting the civil court to deal with her problems, the appellant had attempted to convince us that a civil court has the jurisdiction and knowledge to deal with her matter, even though imbued and intertwined with thick strands of Islamic elements.
“In short, the appellant wanted the civil court to arrogate the function and duties of the Syariah Court regardless of the litigant's (Saravanan) right of choice, let alone that he had already made his decision,” he said.
However, Justice Suriyadi admitted Subashini's motives were not frivolous and said her dissatisfaction on the matter would not go away.
“Parliament has to cap any obvious lacuna promptly and as equitably as possible to harmonise the two systems. Justice is never irreconcilable.
“The universal concept of justice and equity, and Islamic Law, is not dissimilar as the al-Quran in surah An-Nisa had revealed that justice is for mankind,” he said.
Justice Sri Ram, in his dissenting judgment said the Syariah Court's jurisdiction was restricted to only what state or Federal law had conferred upon it.
“Any other interpretation would, in my respectful view, produce a manifest absurdity and visit an injustice upon non-Muslim spouses,” he said.
On Sept 25, last year, Judicial Commissioner Aziah Ali set aside the injunction granted to 28-year-old Subashini a month earlier, which had enabled her to temporarily restrain Saravanan, 31, from commencing with the proceedings in the Syariah Court.
The couple, who has yet to finalise their divorce, have two children – Dharvin Joshua, three, and one-year-old Sharvin.
Saravanan, whose Muslim name is Muhammad Shafi Abdullah, had claimed that the elder child had converted to Islam with him in May.
