Sunday, February 14, 2016

Only High Court can give remedy to spouse even if partner converts, rules Federal Court

A 1988 amendment to the Federal Constitution to stop civil courts from interfering in shariah court affairs did not exclude the High Court from giving remedy to a person if the spouse converted to Islam, the Federal Court said in its judgment last week in an interfaith custody dispute. Judge Tan Sri Raus Sharif said in the present case, the ex-husband (Izwan Abdullah) and the ex-wife (S. Deepa) were Hindus at the time of their marriage. "By contracting the civil marriage under the Law Reform Act (LRA) 1976, they are bound by its provisions in respect of divorce as well as custody of the children of the marriage. "Matters under the LRA are within the jurisdiction of the civil courts and the civil courts continue to have jurisdiction over them, notwithstanding the ex-husband's conversion to Islam," he said in affirming the legal principle made in previous cases. Raus said the dispute between Izwan (N. Viran) and Deepa was not a matter within the jurisdiction of the Shariah High Court. "It follows that Article 121(1A) which removes the jurisdiction of the Civil Courts in respect of any matter within the jurisdiction of the Shariah Courts does not operate to deny the Civil Courts jurisdiction in respect of the matters set out in section 51 of the LRA. "It is clear that Article 121(1A) was introduced not for the purpose of ousting the jurisdiction of the civil courts. It was introduced in order to avoid any conflict between the decisions of the shariah courts and the civil courts which had occurred in a number of cases before," Raus added in the judgment released today. Raus said the LRA continued to bind Izwan despite his conversion to Islam as the shariah courts have no jurisdiction over the ex-husband's application to dissolve his 2003 civil marriage with Deepa. "Neither have the shariah courts jurisdiction over custody of the children born from the civil marriage under the LRA. The shariah courts have jurisdiction only over matters relating to divorce and custody when it involves a Muslim marriage, solemnised according to Muslim law," he added. Raus said that when one of the parties was a non-Muslim, the shariah courts do not have the jurisdiction over the case even if the subject matter fell within their jurisdiction. He said it was important for the civil courts and shariah courts not to transgress into each other's jurisdiction. Raus said in the present case, the Shariah High Court Judge had granted the dissolution of the civil marriage pursuant to section 46(2) of the Islamic Family Law (Negri Sembilan) Enactment 2003. Raus said the religious court judge should have also referred to sections 4 and section 45 of the enactment and would have realised that the shariah court has no jurisdiction to entertain Izwan's application to dissolve the marriage. Izwan converted to Islam on December 26, 2012, at Pusat Dakwah Islamiah, Paroi, Negri Sembilan and the following month registered the conversion of his two children, Sharmila (Nurul Nabila), now 11, and Mithran (Nabil), 8. He then applied for the dissolution of his civil marriage to Deepa which was allowed on May 15, 2013. – February 15, 2016]]>

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