Subashini
UPDATED VERSION, 12:15hr: The Federal Court, sitting in a 3-member panel today, ruled against R Subashini on a legal technicality -- that her divorce petition in the civil court was “premature and invalid”. Quote Malaysiakini:
In a 2-1 decision, the federal 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 nine days before the three months expiration date. The divorce petition is deemed null and void.
Justices Nik Hashim Nik Ab Rahman and Azmel Ma'amor struck out Subashini’s case while justice Abdul Aziz Mohamad gave the lone dissenting view in 112 pages. [ SEE FULL JUDGMENT HERE ]
The baby step made in favour of Subashini, and probably of other non-Muslims, is that all three judges agreed that the dissolution of her marriage and child custody will continue to be under the jurisdiction of the civil court.
Fresh petition... then Syariah Court?
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.
Today's verdict allows Subashini to file a fresh petition, but the motion to prevent taking her matrimonial proceedings to the Syariah Court may come full circle again when the case is heard in due time. [ UPDATES, 09:10hr Dec 28: Read theSun: Civil or Syariah, still unclear ]
Meanwhile, two sets of law have come in her way and yet she can be faulted for trampling on neither. Her children will grow up in uncertain parenthood as she is trying to sort out the right of custody and other related matters
Earlier, in May 2007, the Federal Court had 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 Islamic law, only one parent need to be informed 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.
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ORIGINAL POSTING AT 09:39HR
First thing first. My heart goes to housewife R. Subashini.
Her hope to keep her children, and her civil rights, is hanging by the hairline.
Today, the Federal Court -- the highest court in the country -- will announce their decision whether an Indian Hindu wife can seek justice in the civil courts despite her Islam-convert husband initiating divorce proceeding in the syariah courts.
The verdict is due to be announced today, three months after lawyers from both sides of the controversial case made their final arguments.
It will be the final recourse for Subashini, and the precedent set will affect the fate of others caught in similar situation perpetually from now till kingdom comes.
It will also trigger deep thoughts over the fundamental rights of non-Muslims in this country.
March 31, I wrote that the Subashini case may trigger a constitutional crisis because of the fundamentals involved in the jurisdiction of civil law and syariah law in this country.
Demolition
By the way, mortal Abdullah Badawi has tasked equal mortal S Samy Vellu -- both are members of the government of the day -- only to protect Hindu temples from demolition. Even that is a temporal measure without constitutional grounding. It is a political manoeuvre eroding civil rights enshrined by the Federal Constitution.
From Malaysiakini
Thursday date for Subashini decision
Soon Li Tsin | Dec 26, 07 10:56am
The fate of whether an Indian Hindu wife can seek justice in the civil courts - despite her Islam-convert husband initiating divorce proceeding in the syariah courts - will be known tomorrow.
The Federal Court - the country’s highest court - will announce their decision three months after lawyers from both sides of the controversial case made their final arguments.
The three-member panel comprising justices Nik Hashim Nik Ab Rahman, Abdul Aziz Mohamad and Azmel Ma'amor will decide whether the civil or syariah court is more authoritative on the issue of divorce when one spouse converts to Islam - an issue that has been a long-standing moot point in the trial.
Subashini, 28, is trying to stop her 31-year-old husband, T Saravanan - a Hindu who has converted to Islam and assumed the name Muhammad Shafi Saravanan Abdullah - from taking their divorce and custody proceedings to the Syariah Court.
Saravanan converted in May 2006 along with their eldest son, Dharvin Joshua, 4. The husband then launched proceedings in the Islamic syariah court for divorce as well as custody of their second son, Sharvin, 2.
During her appeal to the lower 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 unnecessary 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 youngest son 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.
Three possible outcomes
There are three likely possible outcomes from the Federal Court tomorrow:
1. The court may decide against Subashini on technical grounds - over the date of Subashini's divorce petition which was within three months of her husband's conversion date.
According to the law, the petition should be filed three months after the conversion date. Subashini argued that she was not aware of the date of her husband’s conversion. If so, the case will be thrown out and lawyers can choose to file her divorce petition again.
2. The court may decide against Subashini on substantive grounds - that the Syariah Court has jurisdiction and orders her to take her case there. This effectively rules that civil courts have no say in conversion cases especially after syariah proceedings have commenced.
3. The court may decide for Subashini - she will get remedy in civil courts, her husband may not proceed further in syariah courts and he has to go back to civil courts because their marriage was originally solemnised under civil law.
Whatever the Federal Court decision, it will be considered a landmark judgment.
Aftershocks from Joy
This decision will be the second time the apex court is to decide on a matter involving the vexing issue of religious freedom.
Previously, the Federal Court held that the jurisdiction on issues concerning a Muslim who wants to convert to another religion lies with the Syariah Court.
In the landmark judgment by former chief justice Ahmad Fairuz Sheikh Abdul Halim, Lina Joy was held to remained a Muslim and her religious status cannot be removed from her identity card.
Born an ethnic Malay Muslim, and called Azlina Jailani, Joy was introduced to Christianity in 1990.
It has left her fighting authorities, first for her new name to be put on her identity card, then to have her former religion removed.
The controversial judgment has left the nation divided over one's freedom of religion as enshrined in Article 11 of the Federal Constitution.
Comments
looks like technicalities rules our courts, however no matter how much technicalities brought by those viewed less than desired by certain parties, nothing will get done, such is justice prevailing in certain countries that label themselves the protector of democracy!
Posted by: Tan Sir Lord Toddie![[TypeKey Profile Page]](http://www.jeffooi.com/nav-commenters.gif)
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December 27, 2007 01:43 PM
The law in Malaysia seemed not to design to protect the people. The rakyat always wrong. Justice is only given after a long battle. So long that 99.9% of them never see the light of the tunnel.
Posted by: patriotic1994![[TypeKey Profile Page]](http://www.jeffooi.com/nav-commenters.gif)
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December 27, 2007 07:35 PM
"...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."
Is this saying that the Islamic law takes precedent over the LRA? Because under common law, there is no such requirement and any party can file for divorce at anytime whereas Islamic law has that three months requirement.
Posted by: Justice Bao![[TypeKey Profile Page]](http://www.jeffooi.com/nav-commenters.gif)
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December 27, 2007 10:22 PM
My understanding (which stands to be corrected) is that the duality is creating problems.
1. The civil marriage should be dissolved in the civil court. the judges agree on this. What if subashini declines to proceed with the divorce? will she be still the legal wife under civil law, but not recognised by syariah law? Can she sue for living expenses, the husband's property etc. later under civil law? If she divorces him, would the property and assets be divided accordingly? how about living subsistence?
2. the husband who converted can pursue his divorce proceedings in shariah court, but it will be recognisable only within islamic domain. so, will the NRD recognise the divorce? If not, will the husband be punished for being legally married to a non-muslim? Can the syariah court accept the divorce result from civil court - to save time and cost and duplicity?
3. Since in syariah law (selangor state), it is said that a parent can convert his/her child as well, what the husband did was correct under law. but this is a cruel and vile act indeed. so much for the compassionate religion. Now the learned judges are telling that there should be an avenue for the other parent to voice objection. what avenue? civil court? then syariah may throw out the civil court judgement since it may be enroaching on islamic issue. if syariah court is the avenue, subashini may not get a fair treatment, besides being non-muslim which means she is not subject to syariah law. so, again another grey area!
4. if each apply for child custody in separate courts, whose judgement will be binding? syariah court may say husband keep the children since they are converted by the husband (how convenient!) while civil court may say subashini keeps the children. or civil court may say that since children have converted, husband gets to keep them. have you seen any worse injustice and perversion of law than this? since the children are product of civil marriage, the children's fate should be decided in civil court. but the cunning husband converts the child and makes him subject to syariah court!
the situation may turn out that subashini gets to raise her children who will be converted to islam by the husband while she is filing another appeal. she can't stop the conversion as it agreed that a parent can do the conversion, no matter how evil, vile and cruel it sounds.
For me, the solution is to ask the husband if he is malaysian first or muslim first. if he is muslim first, kick him out of the country. we don't need such people here. if he is malaysian first, the go to civil court which is open to all malaysian. that's fair in my eyes.
for future cases, JAKIM and other govt agencies must ensure that any would be converts get explicit approval from their families or spouses and settle all divorce/custody/property/asset issues first before converting. perhaps those planning to convert should be given counselling first by their respective religious bodies like Hindu Sangam etc. to ensure the conversion is not superficial or to try bring back the would-be converted back to the original path.
Posted by: poobalan![[TypeKey Profile Page]](http://www.jeffooi.com/nav-commenters.gif)
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December 28, 2007 10:30 AM