Thursday, December 27, 2007

FEDERAL COURT REJECTS SUBASHINI'S ACTION

The Federal Court today ruled that the Syariah Court cannot dissolve a civil marriage and all dissolutions made by the Syariah Court is only effective within the confines of Islamic Law.

In a landmark decision, Federal Court judge Justice Nik Hashim Nik Ab Rahman said a non-Muslim marriage does not automatically dissolve when one of the parties converts to Islam and the husband and wife were bound by the 1976 Act (Law Reform (Marriage and Divorce) in respect to divorce and custody of the children of the marriage, and thus, the civil court continues to have jurisdiction over him, notwithstanding his conversion to Islam.

In a 2-1 majority judgment, Justice Nik Hashim said by embracing Islam, Saravanan (the husband) and his eldest son (who also a convert) became subject to Muslim personal and religious laws. It is not an abuse of process, if he, being a Muslim, seeks remedies in the Syariah High Court as it is his right to do so.

It was noted that the non-Muslim marriage between the husband and wife remains intact and 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 and there is no impediment for the converted husband to appear in the divorce proceeding in the High Court.

He said the contention that the wife could submit to the jurisdiction of the Syariah Court and have recourse to Section 53 of the 1993 Act are not quite correct as the Act limits its jurisdiction to Muslims only.

The judges said that on conversion, either husband or wife has the right to convert a child of the marriage to Islam.