A View on Subashini's case
by Crystal Kuek, member of Religious Liberty Commission, 5 April 2007
On March 13, the Court of Appeal made a landmark ruling on R. Subashini’s appeal, saying that a non-Muslim has no right to restrain a Muslim convert spouse from unilaterally converting their children to Islam, commencing divorce proceedings and application for custody of children at the syariah court.
Subashini and Saravanan, originally Hindu, were married in a civil ceremony. They have two sons, aged three and one. Last year, Saravanan converted to Islam. He also converted his elder son. He then obtained an ex-parte[i] interim custody and subsequently initiated a marriage dissolution proceeding at the syariah court. In response, Subashini filed a divorce petition at the civil high court, seeking dissolution of marriage, custody of both children and an injunctive order to stop the husband from converting the children without her permission.
In August 2006, the civil high court granted Subashini an ex-parte interim injunction but dissolved it a month later. Nevertheless, Subashini was granted a stay of execution, pending her appeal to the Court of Appeal. Meanwhile, the husband appealed against the stay order.
The panel of three judges at the Court of Appeal made a 2-1 decision. Justices Datuk Suriyadi Halim Omar and Datuk Hasan Lah dismissed Subashini's appeal while Justice Datuk Gopal Sri Ram dissented.
Justice Datuk Hasan Lah’s judgment was based on two grounds:
Firstly, the wife’s petition had contravened section 51(1) of the Law Reform (Marriage and Divorce) Act 1976 as she presented her petition before the expiration of 3 months from the date of the husband’s conversion. The proviso only allows presentation of petition after the expiration of 3-month period from the date of the spouse’s conversion. However, Justice Datuk Gopal Sri Ram said in his judgment that, “the issue as to whether the petition was premature is one on which the evidence is in serious conflict”.
Secondly, the husband had already filed his application at the syariah court. In the event that the wife’s application for injunction was allowed, it would in effect stay the proceedings in the syariah court and thus contravened section 54(b) of the Specific Relief Act 1950. Nonetheless, the wife could seek recourse by asking the syariah appeal court to exercise its supervisory and revisionary powers.
Justice Datuk Suriyadi held that the civil marriage ended upon husband’s conversion from the Islamic point of view. Applying for dissolution of marriage at the syariah court was purely administrative in nature. Furthermore, the syariah court granted an interim custody order for the elder son to the husband. Any appeal against the order must therefore be done in the syariah court.
The two judges’ opinions were both shocking and alarming. However, their views should be treated as mere obiter dicta, i.e. having only incidental bearing on the case in question and are therefore not binding.
In his dissenting judgment, Justice Datuk Gopal Sri Ram gave his view on the jurisdiction of syariah court. He carefully laid out Articles 73, 74 and the State List of the Federal Constitution, as well as section 46 of the Administration of Islamic Law (Federal Territories) Act 1993. He said that on a true interpretation of the Constitution, a syariah court, only had jurisdiction on matters conferred by the state or federal law, i.e. in matters where all the parties were Muslims.
In Shamala’s case, the judge held that syariah court had no jurisdiction on parties who were non-Muslims. The ex-parte hadanah (custody) application in the syariah court was not binding on the non-Muslim spouse. While the syariah court could confirm the dissolution of marriage due to the conversion to Islam of either party of a civil marriage, the civil marriage remained valid and subsisting as far as the non-converting party and the Law Reform Act were concerned (Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah  1 CLJ 505). However, the case was not cited or discussed in the Court of Appeal’s written judgment.
Subashini’s case highlights the fact that, under the existing civil and Islamic laws, both non-Muslim and Muslim parties stand at different starting points in their application for dissolution of marriage (and custody of children) on the ground of conversion of one spouse (or oneself). The non-converting party is “paralyzed” within the 3-month period whereas the converting party can immediately go to the syariah court to file for orders.
Gross injustice is clearly evident. The converting party who has first obtained the orders (usually ex-parte orders) from the syariah court “gains upper hand” when the non-converting party is asked to submit to the jurisdiction of syariah court, and when the civil court chooses to abdicate its judicial powers simply on the ground that it “cannot review the decisions of syariah court”.
[i] ex-parte "from one party"; from or on one side only, with the other side absent or unrepresented.