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Tuesday, September 25, 2007

Married Convert to Islam's Custody Case Review

'Hubby cannot claim he no longer comes under purview of civil laws after conversion to Islam' by R. Surenthira Kumar.
PUTRAJAYA (Sept 24, 2007)

Excerpt of the Sun2Surf Online report on the case:

'A husband cannot claim he no longer comes under the purview of civil laws after his conversion to Islam', argued the lawyer representing R. Subashini in the Federal Court today.

Malik Imtiaz Sarwar told the panel of three judges that by making such a claim, a convert could leave the other party in a civil marriage in the doldrums by seeking recourse in another court to resolve the dispute between them.

He added that the argument that the syariah court had the power to legislate to dissolve marriages under the Law Reform (Marriage and Divorce) Act 1976 (LRA) was unreasonable because it extended the syariah court’s jurisdiction.

Malik Imtiaz said the implications from such an argument were unreasonable because it would:

  • appear that the syariah court could embrace non-Muslims,
  • allow for the converting spouse to ignore his or her obligations under the LRA at a time when the party concerned was a non-Muslim,
  • leave the non-Muslim spouse with no meaningful and just recourse, and further
  • run counter to the guarantee of equal protection under Article 8 of the Federal Constitution.

Malik Imtiaz said this Article guaranteed the wife, in this case, the right to procedural and substantive fairness.

He added that the power to legislate must be harmonised with this fundamental liberty, if not, the liberty would be rendered illusory.

Malik Imtiaz was submitting his reply in the legal tussle between Subashini, 29, a Hindu, and her Muslim convert husband, T. Saravanan, 31, over the dissolution of their civil marriage, conversion of their second child, and custody over their two sons.

Saravanan, now known as Muhamad Shafi Saravanan Abdullah, had earlier converted the couple’s eldest child without his wife’s consent.

On March 13, Subashini was told by the Court of Appeal in a majority decision with Justice Gopal Sri Ram dissenting, that she could not stop Saravanan from dissolving their marriage, seeking custody of their children and unilaterally converting their children to Islam.

She was also told that she could instead seek recourse through the Syariah Appeal Court.

In appealing the Court of Appeal’s decision yesterday, Malik Imtiaz said the syariah court’s jurisdiction was circumscribed by the requirement that it be over persons professing Islam, and hence the syariah court can only enforce laws when all parties before it profess the religion.

Malik Imitiaz also rebutted Saravanan’s argument that his wife’s divorce petition was premature as she had ignored the Islamic imposition of waiting for three menstrual cycles to lapse first.

Malik Imtiaz said Saravanan himself had filed for divorce in the syariah court a day after his official conversion, and before the three month cycle had lapsed.

He also said the statement that Islam was the "religion of the Federation" as stipulated in Article 3(1) of the Federal Constitution was only meant for rituals and ceremonies, and was never intended for Islamic law to operate beyond the expressed confines of the constitution, in particular against persons who do not profess Islam.

Malik Imtiaz said if the arguments of Saravanan’s lawyer were accepted, this would mean that the state was allowed to legislate Islamic law to be applied on non-Muslims.

This, he added, was totally contrary to the Federal Constitution’s careful scheme to protect the religious rights of all Malaysians, in particular non-Muslims.

Malik Imtiaz said Saravanan’s religious freedom was not being violated because the key consideration in the case were the antecedent rights that were contracted under the LRA when both husband and wife were non-Muslims.

Judges Datuk Nik Hashim Nik Abd Rahman, Datuk Abdul Aziz Mohamad and Datuk Azmel Maamor said they needed time to consider the submissions from both parties.

A decision would be delivered on a date to be fixed later.

Updated: 07:51PM Mon, 24 Sep 2007
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Pretty sensitive issue , isn't it?

This could be a landmark case when a married Non Muslim converts to Islam either out of their own religious volition or as an escape out of a 'troubled marriage'?

It must be established as to the reasons behind the conversion of the non Muslim into Islam?

If a married person decides to convert to any another religion besides Islam, there won't be any significant repercussions or consequences to the marriage because most faiths or beliefs are flexible with matters concerning the deity that one worships or believes in?

It's not the same with Islam.

Islam is the worship of Allah the True God Almighty, Most Merciful Most High and submitting oneself to the Final Messenger's Teachings from the Final Testament of Allah Subhanahu Wa Ta'ala in the form of the Holy Al-Qur'an Al-Karim and His Sunnah @ Examples of how to fulfill one's obligations as a true Muslim.

When a non Muslim husband or wife embraces Islam out of their true realization of Allah Subhanahu Wa Ta'ala being their True God Almighty and Islam to be what it is, the authentic teachings from the Creator Himself, then all their past sins as a Kaffir are pardoned and deleted from their Book of Records.

All marital ties between the convert and his or her Non Muslim spouse are automatically severed and they are automatically divorced from their former partner.

Family ties still remain intact and a Muslim is commanded by Allah Subhanahu Wa Ta'ala to maintain relationships with his or her parents, children, siblings and family members.

The only severance is between the husband and wife or vice versa.

As a Muslim parent, the father or mother automatically has the right to bring over his or her child into Islam pending the legal procedures of any which country they live in.

Any child under the age of 18 is considered the ward of the parent and in such a case, the Muslim parent has the obligations to see to it that he or she take charge of the conversion to Islam provided that the child is willing to be a Muslim?

It is not easy to choose between one's mother or father?

Thus, it is important for the judiciary to take into consideration all relevant circumstances and background of the individuals who are fighting for the right to convert their child into Islam and depending whether the particular child is capable of rational thought, knowledge about the situation and his or her personal choice?

Religious conversion of any married person is sure to cause emotional stress and all other related problems especially concerning the subject of dispersion of material gains and properties accumulated through the space of time living as husband and wife and further complicated in cases where both parties worked and built up their life's together, struggling to be where they are after all the difficult starting of marriage years?

Islam has all the provisions of fair judgment and Allah the Almighty who creates us will never allow injustice to be meted out to anyone in His Name.

I pray that the judiciary will take all the significant matters involving the rights and welfare of both parties before coming to any decision.

I also hope that there won't be any party out there instigating social unrest and discord over this obviously sensitive and private matter between a former married couple but which is important because it involves the upholding of justice and fairness to Islam and its adherents as well as to the Kaffir in concern.

May the truth and justice prevail. Amin.