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Dec 27, 2007

Thursday date for Subashini decision

Malaysiakini - 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.

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.


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