Read more on analysis of the confused ruling by the three Muslim judges on the Subashini case on Screenshots
Must Read Article: " MALAYSIA' S FAMILY LAW - CUSTODY AND RELIGION" by Foo Yet Ngo (click here to read .pdf file)
Malaysian Unplug says:
" It is obvious the Federal Court is waffling and skirting around the edges on the issue of the supremacy of the Federal Constitution.
The Muslim judges in the Federal Court sitting on this case, for reasons only known to themselves, seem to be cherry-picking legislations to suit the framework of the Syariah law. The result of which is a court decision that basically denies the fundamental rights of the Hindu woman, firstly as a citizen who is protected by the Federal Constitution and secondly, as a mother of her two children.
The Court decision has virtually destroyed whatever remains of a family structure for the Hindu woman, and the endearing child-mother relationship, all because the Federal court deemed it fit to apply the Syariah law above fundamental rights of the Hindu woman as enshrined in the Federal Constitution.
To the dismay of the legal profession and to the man-in-the-street, the decision coming from the learned judges is not only confusing and equivocal, in fact, it creates more problems for the Hindu mother than solving her predicament.
One can only suspect, and rightly so, that the religious and personal sentiments of the learned Muslim judges may have a big part to play in the outcome of the decision of the Federal Court on this case and on other religious issues.
When it comes to religious issues, the court shamelessly shies away from the Federal Constitution instead.
It is a continuing confirmation in the minds of ordinary Malaysians that our Malaysian Judiciary, in its present form and constitution, is simply unwilling, will not, and is unable to take its stewardship responsibility as a Protector of the Supremacy of the Federal Constitution. "
Malaysia's secular Federal Court (the highest court in the land) made 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.
Read here Child Act, 2001 - Act 611:Laws of Malaysia, which states:
ACKNOWLEDGING that a child, by reason of his physical,mental and emotional immaturity, is in need of special safeguards, care and assistance, after birth, to enable him to participate in and contribute positively towards the attainment of the ideals of a civil Malaysian society:
ACKNOWLEDGING the family as the fundamental group in society which provides the natural environment for the growth, support and well-being of all its members, particularly children,so that they may develop in an environment of peace, happiness,love and understanding in order to attain the full confidence, dignity and worth of the human person.
CLICK HERE to read the full text of the Judgments of Dato' Abdul Aziz bin Mohamad & Dato' Azmel bin Haji Maamor in Subashini v Saravanan 07
The Federal Court ruled that Saravanan (the Muslim-convert husband) did NOT abuse the LAW by converting his four-year-old son to Islam without the knowledge of the mother.
The court also ruled that it was within the right of Saravanan as a Muslim to file the divorce proceedings in the Syariah Court.
The Muslim judges in the secular Federal Court for this case used the Islamic law to rule that only ONE parent need to be informed in the conversion of a child.
This time, THREE Muslim judges sat to rule on the case. They are:
In a 2-1 decision, Malaysia's highest court Thursday rejected on technicality a Hindu woman's plea to stop her Muslim-convert husband from divorcing her in an Islamic court, and upheld the man's right to change their son's religion to Islam.
Justices Nik Hashim Nik Ab Rahman (the presiding judge) Justice Azmel Ma'amor and Justice Abdul Aziz Mohamad
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.
The Federal Court ruled 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.
Subashini’s divorce petition was filed nine days before the three months expiration date. The divorce petition is deemed null and void. But Subashini can apply for a fresh application.
SECULAR COURT WILL DECIDE ON THE DIVORCE
The presiding judge, Justice Nik Hashim, who ruled against Subashini, said:
- the Syariah courts can CANNOT dissolve a CIVIL marriage ,
He said: “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." This means Subashini could go to the civil courts for her divorce since theirs is a civil marriage.
- all dissolutions made in the Religious court is only effective within the confines of the Islamic law.
- Civil courts and Islamic courts have EQUAL status in Malaysia.
THE CASE BEFORE THE FEDERAL COURT
(Note: Judge Datuk Abdul Hamid Mohamad had said in another case the CIVIL court was the right forum because non-Muslims could not commence action or appear in syariah courts. He said the Federal Court, the Court of Appeal and the High Court were creations of the (Federal) Constitution but that was NOT the case for syariah courts.
"In fact, the position of the syariah court is similar to the Sessions court and magistrate’s court. The Constitution refers to them as INFERIOR courts. (Read here for more. ) The syariah courts will have NO jurisdiction if the the state legislature did not pass an enactment to give them the power," Justice Datuk Abdul Hamid Mohamad said. Read here for more
Subashini, 28, is a Hindu. She 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.
Subashini wants the civil court to decide on her divorce case, not by the Islamic court since she is a Hindu.
Her husband converted in May 2006. He converted his eldest so, Dharvin Joshua, 4 to be a Muslim. He then went to the SYARIAH COURT to launched proceedings for divorce and to take custody of their second son, Sharvin, 2. He went to the Syariah Court to demand his right to convert the second son, Sharvin.
Subashini married Saravanan Thangathoray, also an ethnic Indian, in a Hindu wedding in 2002. The couple have two sons, Dharvin and Sharvind, now aged 4 and 2. Saravanan told his wife in 2006 that he had converted to Islam. Subashini attempted suicide and was hospitalized. When she returned home, Saravanan had left with Dharvin, whom he claims has also converted to Islam.
Subashini Left High and Dry After the Decision
After the decision was handed down, Subashini said she was disappointed with the judgement, saying she wished the judges had looked into her rights as a mother.
“It is unfair to treat me like this. I gave birth to our children and I have a right to make a decision about my children, as a mother,” she said in a phone interview with theSun.
“How can they say my estranged husband has the right to convert our second child? Does this mean I will lose my second son as well?” she added.
Subashini has NOT met her first son, Dharvin Joshua, for the past two years since her husband, Saravanan, converted the boy.
She said Saravanan, was only willing to grant her access to Dharvin in exchange for access to their youngest child, Sharvin.
Subashini said she was willing to give up not seeing Dharvin for fear that Saravanan would convert their second child as well.
“If that happens, then I am afraid that both my kids will be taken away from me, and I will have no one,” she said.
Subashini said it was unfair that her newly-converted husband seems to have been granted more rights over her as a mother.
“Where is my right, as a mother?” she asked, adding that she was still discussing her next course of action with her lawyer.
Subashini’s lawyer K. Shanmuga told theSun Subashini was distraught over the judgment.
“She’s uncertain about her future and her children’s future. It’s a blow to her because she’s been told she can’t stop her husband from going to the syariah court to get orders regarding the breakup of their marriage, and she can’t stop him from converting their younger child,” he said.
Meanwhile, Saravanan's lawyer Zainul Rijal Abu Bakar, said it was difficult for him to respond to the latest development in the court case as they have yet to get the full written judgment.
"We have to wait for the full judgment first as we need to see what we can or cannot do. We have to see the reasonings of the judgment," he said to theSun when contacted today. Read here for more
From Malaysiakini: The Landmark Decision Summarised
Majority decision - Nik Hashim Nik Ab Rahman and Azmel Ma'amor
Dissenting ruling - Abdul Aziz Mohamad
• Subashini’s divorce petition under the Law Reform (Marriage and Divorce) Act is deem null and void because it was filed before the requisite three months period.
• Saravanan and Subashini’s civil marriage can only be dissolved using civil law. The husband can still dissolve it under syariah law but it will have no effect in the civil courts.
• Saravanan can seek relief in the syariah courts but it cannot compel Subashini to do the same because she is a non-Muslim.
• Saravanan did not abuse the process by converting his child because the consent from one parent is sufficient according to Article 12(4) of the Federal Constitution .
Article 12(4) says: For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian.
(Note: What about the decision of Subashini, as a parent and a mother to boot, of the two children ?- Malaysian Unplug)
• The evidence of Saravanan’s conversion must be tried in order to determine whether the conversion date was based on his certificate or on facts made available to Subashini.Commentary
• Saravanan had abused the process in seeking the custody of the children in the Syariah Court because the religious court has no jurisdiction over a non-Muslim marriage.
• Saravanan’s conversion of the children is not unilateral and the wife has a right to object to the conversion as well as seek an injunction to stop the procedure.
• The High Court has exclusive jurisdiction in matters of dissolution of marriage, maintenance, custody and other ancillary reliefs because the marriage was solemnised under civil law.
"...In handing down what is widely seen as an EQUIVOCAL decision today, the Federal Court drew away from answering the question of which court, civil or Syariah, has exclusive jurisdiction to hear cases involving non-Muslim spouses whose partners had converted to Islam.
However the apex court made it clear, when it unanimously decided, that the High Court still has jurisdiction to hear cases involving non-Muslim spouses involved in a matrimonial disputes, even though the other partner had converted to Islam.
"... Malaysia's highest court threw out on Thursday a bid by a Hindu woman to stop her estranged husband from converting their youngest son to Islam.
Her case is another sign of strain in the social fabric of the multi-racial nation, where many non-Muslims believe their rights are being trampled by the Muslim majority.
Family law has become an emotional battleground between Malaysia's religious communities, with non-Muslims complaining civil courts are too willing to surrender jurisdiction to their Islamic counterparts in cases involving a Muslim conversion.
Marriages between Muslims and non-Muslims are forbidden in Malaysia, so once a non-Muslim spouse converts to Islam, the union is broken, lawyers say. While it can still exist under civil law, in reality the Islamic court does not recognise it.
Her lawyers had told the Federal Court the civil system was the right place for this case because she was not a Muslim.
They cited a landmark ruling by the Federal Court in July which stated that if one party was a non-Muslim, the sharia court had no jurisdiction. This was a rare ruling that went against a tide of decisions granting jurisdiction to the Islamic courts..."
"... In a confusing verbal ruling, the Federal Court FAILED to clarify the status of Malaysia's minorities, such as Subashini, in marital disputes where the spouse is a Muslim.
Civil rights groups have voiced fears that minority rights have become subordinate to Islamic jurisprudence in this predominantly Muslim nation, thanks to a series of rulings that have gone in favor of Muslim spouses.
The Federal Court said that as a principle, marital disputes involving a converted Muslim spouse and a non-Muslim partner should only be decided in a civil court and not in the Islamic SYariah Court.
But at the same time, the court said Subashini's husband has the right to approach the Shariah court to seek redress.
Defense lawyers were taken aback by the seemingly contradictory ruling.
They said the picture can become clearer only after reading the full written verdict, which will be released later.
Muslims, who are 60 percent of Malaysia's population, are governed by Islamic courts while non-Muslims go to civil courts to settle family, marriage and other personal disputes. But the law is vague on which court has the authority to deal with disputes between Muslims and non-Muslims, especially within a family.
Civil courts have generally steered clear of taking a position in such cases, allowing Syariah courts to take the lead.
27th December 2007
ONE PARENT CAN CONVERT A CHILD CREATES FEAR AMONGST NON-MUSLIMS
The Federal Court’s decision in the Subashini case that a non-Muslim who converts to Islam after contracting a Non-Muslim civil marriage ought to fulfill his obligations under the Law Reform (Marriage and Divorce) Act 1976 is a welcome relief to non-Muslims.
However, the Federal Court’s opinion that either parent can convert a child into another religion does not take into account the special laws which will be applicable to the child when the child is converted to Islam. The other non-Muslim parent will not be able to re-convert the child out of Islam.
This is a gross injustice to the other parent.
The child will also be deprived of its right to convert out of Islam at the age of 18 under Syariah Laws in Malaysia without facing various sanctions and possible prison sentence.
A child’s religion should NOT be changed without the consent of BOTH parents.
Until the child attains 18 years of age, the child ought to be brought up by each parent according to the tenets of that parent’s religion while the child is under that parent’s care and control taking into consideration the delicate nature of contradicting the tenet’s of each other’s religions.
There is much in common between all religions. The child should be exposed to and taught the good values acceptable to both religions without offending any sensitive feelings of either parent. This can easily be done without converting the child before the child attains the age of 18.
Converting a young child without the consent of both parents will cause much heartbreak. This conflict ought to be avoided in all the circumstances of this day and age.