Malaysia’s highest court rejects plea to block divorce case from going to Islamic court

PUTRAJAYA, Malaysia (AP) – Malaysia's highest court Thursday rejected on technicality a Hindu woman's plea to stop her Muslim-convert husband from divorcing her in an Islamic court, and upheld the man's right to change their son's religion to Islam.

The Federal Court's verdict was on a petition by Subashini Rajasingam, a 29-year-old ethnic Indian Hindu,
who also wants the divorce but says it should be decided in a civil court.

However, in a confusing verbal ruling, the Federal Court failed to clarify the status of Malaysia's minorities, such as Subashini, in marital disputes where the spouse is a Muslim. Civil rights groups have voiced fears that minority rights have become subordinate to Islamic jurisprudence in this predominantly Muslim nation, thanks to a series of rulings that have gone in favor of Muslim spouses.

The Federal Court said that as a principle, marital disputes involving a converted Muslim spouse and a non-Muslim partner should only be decided in a civil court and not in the Islamic Shariah Court. But at the same time, the court said Subashini's husband has the right to approach the Shariah court to seek redress.

«Civil courts continue to have jurisdiction, notwithstanding his conversion to Islam … A non-Muslim marriage continues to exist until the (civil court) dissolves it,» said Nik Hashim Nik Abdul Rahman, the presiding judge of the three-member panel. But then he then added that civil courts and Islamic courts have equal status in Malaysia.
Defense lawyers were taken aback by the seemingly contradictory ruling, and said the picture can become clearer only after reading the full written verdict, which will be released later.

«There is a small measure of comfort in that they say civil courts have jurisdiction and that the husband cannot escape his obligations with his conversion,» said Subashini's lawyer, K. Shanmuga.

«But on the other hand they also said that he can go to the Shariah court, and they said the civil court and Shariah courts have equal standing. This has created some confusion. We don't know what impact this will have,» he said.
Subashini's petition was rejected on the ground that she had filed it within three months of her husband's conversion. Her lawyers said she will refile the petition in the High Court to meet the legal requirement that it be filed three months after the conversion.

Subashini married Saravanan Thangathoray, also an ethnic Indian, in a Hindu wedding in 2002. The couple have two sons, Dharvin and Sharvind, now aged 4 and 2. Saravanan told his wife in 2006 that he had converted to Islam. Subashini attempted suicide and was hospitalized. When she returned home, Saravanan had left with Dharvin, whom he claims has also converted to Islam.

Saravanan, by then known as Muhammad Shafi Saravanan Abdullah, filed for divorce and custody rights over the children in a Shariah court in May 2006, and the right to convert Sharvind.

This right was upheld Thursday by the Federal Court, which Shanmuga said is a huge blow to Subashini.

«Most worrying is that they are saying that either parent can convert the child. The net effect of the ruling is that it's a loss for her,» he said.

Muslims, who are 60 percent of Malaysia's population, are governed by Islamic courts while non-Muslims go to civil courts to settle family, marriage and other personal disputes. But the law is vague on which court has the authority to deal with disputes between Muslims and non-Muslims, especially within a family.

Civil courts have generally steered clear of taking a position in such cases, allowing Shariah courts to take the lead. This has raised questions about freedom of religion guaranteed by the Constitution, and strained racial relations in this multiethnic country, which has enjoyed largely peaceful race relations for nearly four decades.