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Wednesday September 19, 2007
By RAPHAEL WONG
PUTRAJAYA: The High Court has the exclusive jurisdiction to grant a womans application to prevent her Muslim-convert husband from dissolving their marriage in the Syariah Court and converting their second son, the Federal Court heard.
Counsel for R. Subashini, Malik Imtiaz Sarwar said this was because the Syariah Court did not have jurisdiction over his client, who was not a person professing Islam.
He said under the Law Reform (Marriage and Divorce) Act 1976, Subashinis marriage to T. Saravanan could only be dissolved via a civil court order.
Therefore Article 121(1A) of the Federal Constitution does not apply in this case as the Syariah Court has no jurisdiction in this matter because the marriage began under civil law, he said.
Malik also said Subashini and Saravanan have equal rights in determining their childrens religious upbringing so the husband needed her consent before converting any of their children.
He said Subashini had the right to stop the conversion of her child.
It is a tactical ploy which the husband has taken to defeat and act in complete defiance of the wifes lawful right, he said.
Malik added there was a serious question to be tried and the balance of convenience dictated that Saravanan should be restrained from abusing the judicial system to get orders from the Syariah Court, which would adversely affect the rights of his client.
In September last year, the Kuala Lumpur High Court dismissed Subashinis application to stop her husband from resolving their marital problems in the Syariah Court.
On March 13, Court of Appeal judges Justices Suriyadi Halim Omar, Hassan Lah and Gopal Sri Ram had, in a 2-1 decision, ordered Subashini to bring her divorce and custody claims to the Syariah Court.
Two weeks later, the same panel in a majority judgment, granted an injunction preventing Saravanan from initiating or continuing with any proceedings in the Syariah courts or converting their younger son.
Subashini and Saravanan, 31, have yet to finalise their divorce.
They have two children Dharvin Joshua, four, and one-year-old Sharvin. Saravanan claims that the elder child had converted to Islam with him last May.
Submissions by Saravanans counsel Mohd Haniff Katri Abdulla before Federal Court judges Justices Nik Hashim Nik Ab Rahman, Abdul Aziz Mohamad and Azmel Maamor begin today.
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