PUTRAJAYA: The Federal Court had ruled in a 2007 landmark judgment that any one parent had the right to convert a child.
The apex court ruled in the case of secretary R. Subashini that the conversion of the elder son to Islam by the husband, albeit under the Selangor Enactment, did not violate the Federal Constitution.
Federal Court judge Justice Nik Hashim Nik Ab Rahman had said the word “parent” in Article 12(4) of the Constitution, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent.
The court had also ruled that the dispute between Subashini and her Muslim-convert husband T. Saravanan over the dissolution of their marriage and child custody would continue to be under the jurisdiction of the civil court.
In the 2-1-majority judgment in December 2007, the three judges agreed on this point with the third judge dissenting on all other issues raised.
Justice Nik Hashim held that a non-Muslim’s marriage would not be automatically dissolved upon one person’s conversion to Islam.
By contracting the civil marriage, the husband and wife are bound by the 1976 Act (Law Reform [Marriage and Divorce] Act) marriage in respect to divorce and custody of the children of the marriage, and thus, the civil court continues to have jurisdiction over him, he said.
In his judgment, Justice Nik Hashim said by embracing Islam, Saravanan and his eldest son were subject to Muslim personal and religious laws and could seek remedies in the Syariah High Court.
Justice Nik Hashim, who sat together with Federal Court judges Justices Abdul Aziz Mohamad and Azmel Maamor, said: "To my mind, the dissolution order of the civil 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.
"Thus, the non-Muslim marriage between the husband and wife remains intact and continues to subsist until the High Court dissolves it pursuant to apetition for divorce by the unconverted spouse under Section 51(1) of the1976 Act."
He said there was no impediment for the converted husband to appear in the divorce proceedings in the civil High Court.
The wife, being a non-Muslim, has no locus in the syariah court, he said.
Justices Nik Hashim and Azmel, who threw out Subashini’s appeal, said the divorce petition filed at the High Court by Subashini was premature and invalid as it was filed two months and 18 days after the husband’s conversion to Islam.
In September 2006, the Kuala Lumpur High Court dismissed Subashini’s application to stop Saravanan from resolving their marital problems in the Syariah Court.
Subashini, 35, and Saravanan, 38, have two children - Dharvin Joshua, 10,and Sharvin,8.
Justice Abdul Aziz, had given a 112-pages dissenting judgment, among others allowed Subashini’s appeal for an injunction to stop the conversion of her second son.
Justice Abdul Aziz, however, agreed that a converted party could change the religion of the child unilaterally but the other party’s objections must be heard.