Subashini still in limbo
It would appear so following today’s Federal Court decision in dismissing her appeal on a 2 - 1 majority. In deciding that her divorce petition was prematurely filed as against the provision under Section 51 of the Law Reform (Marriage and Divorce) Act 1976, she is now back to square one i.e. still being legally married to her husband under civil laws.
Section 51 of the Law Reform (Marriage and Divorce) Act 1976 reads as follows:-
51. Dissolution on ground of conversion to Islam.
(1) Where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce: Provided that no petition under this section shall be presented before the expiration of the period of three months from the date of the conversion.
(2) The Court upon dissolving the marriage may make provision for the wife or husband, and for the support, care and custody of the children of the marriage, if any, and may attach any conditions to the decree of the dissolution as it thinks fit.
(3)…
The problem lies in the other decisions made by the Federal Court which inter alia held that non-Muslim marriages which were dissolved by Syariah Courts have no legal effect to the marriage in Civil Courts unless it is dissolved by Civil Courts but it does not preclude the now-Muslim partner to seek remedies in the Syariah Court. It was also held that the non-Muslim partner has no locus standi in the Syariah Court and therefore, can only seek remedies in the Civil Courts and that both the Syariah Courts and Civil Courts are of equal standing. Based on whatever little reports available at the time of reading (from the Malaysian Bar website and Malaysiakini) this effectively suggests that the said marriage can now have and is possible to have 2 sets of orders of equal standing!
In a persuasive dissenting judgment, FCJ Datuk Abdul Aziz held that the High Court has exclusive jurisdiction over civil marriage even though the husband has converted. The learned FCJ further held that it is an abuse of process to file custody proceedings in Syariah courts in respect of a civil marriage as the Syariah courts have no such jurisdiction to do so. The High Court could and should have granted an injunction as per Subashini’s application against the Syariah court to stop the abuse of process and undermining the divorce petition filed pursuant to Section 51 of the 1976 Act.
The end result of this case is that Subashini would have to file her petition for divorce afresh and ask for the ancillary orders that she had previously applied for. It fell short of affirming once and for all whether a civil marriage should and can only be dissolved (with whatever ancillary orders) in the civil courts. This writer is of the view that a civil marriage can only be dissolved and dealt with by the sole jurisdiction of the civil courts regardless of the conversion of one partner to Islam, or any other faith for that matter. To allow both the civil courts and Syariah courts to have jurisdiction over a civil marriage where one partner has converted to Islam creates and allows the continued uncertainty over the already many problems of late plaguing the country.
Update (28.12.2007) : Download and read the full judgment of Dato’ Abdul Aziz bin Mohamad & Dato’ Azmel bin Haji Maamor.
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4 Responses to “Subashini still in limbo”
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This is a real bullshit country. It’s going to drain. All Hindus sumpah this country.
What is these UMNO led BN trying to do. All these sendiwara would have curse on these country.
If you know how to tie knot via civil then be ball enough to go through the same civil to divorce.
Don’t hide behind syariah law.
What the guy trying to prove by applying through syariah court.
a) A Bumiputra status for him (good joke), you are always a indian muslim no matter how you try to persuade BN.
b) A security from BN led government
Frankly if you are a man, go through the proper procedure via civil for amicable solution .
samy wollu have no say on subashini?
doesn’t he look like the fat penguin in Batman movie creating havoc.
palaniwollu with all this say MIC is good people still will support MIC?
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