The Subashini Case: Implications and Impact

The Subashini Case: Implications and Impact

By Ms Crystal Kuek 

On 27 December 2007, the Federal Court delivered an important judgment in regards to the appeals of Subashini and Saravanan. The three-man panel made a 2-1 decision against Subashini based on legal technicality, thus dismissing her appeal to restrain her husband from converting their children to Islam and also to prohibit her husband from commencing or continuing proceedings in the Syariah Court with respect to dissolution of marriage and custody of children. Nevertheless, the landmark rulings have left a mixture of positive implications and a negative impact on Malaysia.

I shall first deal with the issue of technicality. Under section 51 of the Law Reform (Marriage and Divorce) Act 1976 (hereinafter referred to as “LRA”), where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce provided that the petition shall be presented after the expiration of three months from the date of the conversion. This three-month period originated from the concept of iddah, ie the period after a Muslim marriage is dissolved by death of the husband or divorce during which a woman is prohibited from marrying. According to the Shafii school, if a non-Muslim converts to Islam and his spouse does not embrace Islam before the expiration of the period of iddah, the marriage is considered to have been dissolved arising from the husband’s conversion.

In the case of Subashini and Saravanan, Nik Hashim and Azmel Maamor, the majority judges, were of the view that Subashini’s petition was premature as it was filed two months and 18 days after the husband’s conversion to Islam, that is, short of the required three months. However, Justice Abdul Aziz found that the actual date of conversion of Saravanan was unclear. The date should be established by the civil High Court so as to determine when the three-month period began.

Nevertheless, the three Federal Court judges were unanimous in their rulings that those who contracted civil marriages are bound by the LRA in respect of divorce and custody of the children of the marriage, and thus, the civil court continues to have jurisdiction over Saravanan, notwithstanding his conversion to Islam. I totally agree with this view as it is consistent with the LRA, particularly section 51 (dissolution of marriage on the ground of conversion to Islam by the other spouse), section 3(3) (civil court has jurisdiction to hear cases under section s51 and make a decree which is valid against the party to the marriage who has converted to Islam) and section 8. Section 8 provides that a civil or non-Muslim marriage shall continue until it is dissolved in any of the three circumstances: (a) by the death of one of the parties; (b) by order of a court of competent jurisdiction; or (c) by a decree made by a court of competent jurisdiction that the marriage is null and void. Pursuant to section 2 of the LRA, the word “court” is defined as “the High Court or a Judge thereof or, a President of the Sessions Court (being conferred jurisdiction by the Yang di-Pertuan Agong on the advice of the Chief Justice through notification of gazette)”. In short, the word “court” in LRA refers to civil courts. Therefore, in the event a party to the civil or non-Muslim marriage converts to Islam, such marriage shall continue until it is dissolved by the divorce order made by the civil High Court.

However, Justice Nik Hashim pointed out that by embracing Islam, Saravanan and his eldest son were subject to Muslim personal and religious laws. Hence, it was not an abuse of process for Saravanan to seek remedies in the Syariah High Court. Anyway, the learned judge cautioned that the dissolution order of the civil or non-Muslim marriage by the Syariah High Court by virtue of conversion would “have no legal effect in the civil High Court other than as evidence of the fact of the dissolution of the marriage under the Islamic law in accordance with Hukum Syarak.” This is because the Syariah Court only has jurisdiction over persons professing Islam.

According to section 46(2) of the Islamic Family Law (Federal Territories) Act 1984 (hereinafter referred to as “IFL”), the conversion to Islam by either party to a non-Muslim marriage shall not by itself operate to dissolve the marriage unless and until so confirmed by the Syariah Court. In my humble opinion, the rulings of Justice Nik Hashim (with which Justice Azmel Maamor concurred) were an attempt to reconcile the conflicts between section 46(2) of the IFL and sections 8 and 51 of the LRA, ie the issue as to which court is competent to order or confirm the dissolution of the civil or non-Muslim marriage when one of the parties has converted to Islam. Even though the conflict of the provisions remains, the Federal Court’s decision is definitely a positive sign as it held that the civil court has jurisdiction to hear a divorce petition filed on the ground of conversion to Islam by a party to the non-Muslim marriage and that the dissolution order made by the Syariah Court is not binding on non-Muslims. I humbly submit that based on the same reasons, any ex-parte hadanah (custody) order made by the Syariah Court shall also not be binding on a non-Muslim spouse, as held by the High Court in Shamala case on 11 September 2003.

It is observed that the Subashini case has exposed a loophole in the law. Subashini made a technical error by filing the divorce petition prematurely as she was uncertain of the actual date of conversion of her husband. Under the Administration of Islamic Law (Federal Territories) Act 1993 (hereinafter referred to as “the 1993 Act”), if a person, out of free will, utters in reasonably intelligible Arabic the two clauses of the Affirmation of Faith and is aware of the meaning, he is converted to Islam and becomes a Muslim (referred to as “Muallaf”) as soon as he finishes uttering the two clauses of the Affirmation of Faith. He can then choose to register or not register the conversion since registration of conversion is merely optional under the 1993 Act. Similar provisions can be found in the Administration of Islamic Law Enactments in various states in Malaysia. Therefore, it is very difficult for the non-converting spouse to find out the actual date of conversion if the parties are already in a deadlock situation. Even if the Muallaf has registered the conversion, it will not be easy for the non-converting spouse to find out the actual date of conversion if the Muallaf refuses to disclose the date or does not disclose the correct date. This will increase the risk of committing technical error as in the case of Subashini. Therefore, there is a need for the legislative (including the state assembly) to review the existing law to ensure that the rights of the non-converting spouse are protected. While a person has the freedom to convert to Islam, his spouse should be notified of his conversion and the date of conversion. In our multi-religious and multi-cultural society where mutual respect and understanding are expected, there should be no need to fear for one’s safety in informing one’s own family members of one’s conversion to another religion.

At the same time, the Subashini case has brought an adverse impact particularly in the way the Federal Court interpreted Article 12(4) of the Federal Constitution. This provision states that the religion of a person under the age of eighteen years shall be decided by his parent or guardian. The majority of the three-man panel interpreted the word “parent” as “a single parent” and it follows that either spouse has the right to convert a child of marriage to Islam and either party cannot refrain the other from doing so.

I notice that the word “parent” is used in Article 12(4) of the Federal Constitution for the English text. As for the Bahasa Malaysia text, in the 1980s, the word “ibubapa” (which is in the plural form according to Kamus Dewan) was used in Article 12(4) of the Federal Constitution published by the National Printer. However, in recent years, National Printer has changed the word “ibubapa” to “ibu atau bapa” (singular form) in Article 12(4). As for other publishers, ILBS (June 2007 edition) continues to use the word “ibubapa” in Article 12(4) of the Federal Constitution in Bahasa Malaysia text while MDC (August 2007 edition) uses the words “ibu atau bapa”. Article 160B of the Federal Constitution provides that the national language text shall be authoritative and if there is any conflict or discrepancy between such national language text and the English language text, the national language text shall prevail over the English language text. Why there was a change in the word “ibubapa” (plural form) to “ibu atau bapa” (singular form) is unclear. However, it seems that Article 160(1) and the Eleventh Schedule of the Federal Constitution which provides that in interpreting the Constitution, “words in the singular include the plural, and words in the plural include the singular” (ie, interpretation of the Federal Constitution need not be strictly literal) has not been given sufficient weight.

It is to be noted that the interpretation of the word “parent” in Article 12(4) to mean “a single parent” where a father or mother can convert a child to another religion (especially Islam with its separate personal laws) without the knowledge or consent of the other may be abused or manipulated by certain parents in advancing their own interests and in the fight for the custody of children.

As a consequence of the Subashini case, a converting party is entitled to seek remedies in Syariah Court though the Syariah Court order is not binding on the non-converting spouse and a single parent can determine a minor’s religion without the knowledge or consent of the other parent. Therefore, it is foreseeable that the unfortunate story of Subashini and Saravanan will be repeated in the future without the possibility of a satisfactory legal solution.

Written by Ms. Crystal Kuek ( A lawyer and solicitor with a law firm in Kuala Lumpur) .

This article was originally published in the Chinese Daily Sin Chew 2 Jan 2008

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