In a bind

The Star Online > Lifefocus

Monday January 16, 2006



In a bind

By Loh Foon Fong

AT the inaugural law conference Overview of Recent Development in Malaysian Law organised by the Law Faculty of Universiti Malaya and LexisNexis, adjunct professor Mehrun Siraj highlighted the following issues in her paper, Conversion to Islam and its effect on a non-Muslim marriage.

Is a non-Muslim marriage automatically dissolved when one party converts to Islam?

Under the syariah law, marriages between Muslims and non-Muslims cannot be recognised in Malaysia, except if the woman is a Kitabiyah (Christian descendent from before the time of Muhammad), which is a remote possibility, said Mehrun.

The convert can apply to the Syariah Court for an order under the Islamic Family Law (Federal Territories) Act 1984 confirming that his/her conversion to Islam has dissolved the non-Muslim marriage from an Islamic perspective. When the order is given, the convert is free to contract a Muslim marriage with another Muslim. However, under the civil law his/her earlier marriage will still exist until the death of the other party or unless the High Court or Sessions Court grants the divorce. The Syariah Court does not have jurisdiction or powers to dissolve a non-Muslim marriage, said Mehrun.

The judge in the case of Shamala a/p Sathiyaseelan v Dr Jeyaganesh a/l C Mogarajah held that the latter's conversion to Islam did not dissolve the latter's Hindu marriage. It only provided the wife with a ground for divorce under the Law Reform (Marriage and Divorce) Act 1976 (LRA), said Mehrun.

That created a difficult situation because the convert is regarded as being still married to his/her spouse, while his/her new personal law regards his/her non-Muslim marriage as dissolved, entitling him to contract another marriage, she said.

The non-Muslim marriage is governed by the LRA and only the non-Muslim spouse can apply for a divorce under section 51 of the LRA if the other party converts. This section is inadequate because the spouse who converts cannot petition for a divorce and settle his/her affairs with his/her non-Muslim family before starting his/her new life as a Muslim, said Mehrun.

"Section 51 of the LRA should be amended to enable a converting spouse to petition for a divorce," she said.

In Viswalingam v Viswalingam's case, the wife who was residing in England filed her petition for a divorce in 1977 but her husband said that the marriage had been dissolved by his conversion to Islam and tendered a fatwa or ruling issued by the mufti of the Federal Territory.

The wife brought the case before the High Court in London, seeking a decree of dissolution of marriage and ancillary relief. The judge Wood J. held that the change in status could not be recognised under the civil law as a reason for divorce. He pronounced a decree nisi of divorce and awarded the wife a lump sum as ancillary relief.

The husband appealed against the case but the Court of Appeal dismissed it. Judge Ormrod L.J. said that "the idea that a marriage of over 20 years' duration can be brought to an end by the conversion of the husband to another religion in itself offends our concept of justice."

Who gets custody of the children?

Shamala applied for custody, care and control of the two children in the Family Division of the High Court in Kuala Lumpur. Dr Jeyaganesh made an ex parte (one party) application to a Syariah Court in Selangor for custody of the children.

The High Court judge held that the custody order from the Selangor Syariah High Court was a mistaken decision because it was given without the court's attention to the relevant statutes, especially the Guardianship of Infants Act (GIA) 1961 (amended 1999) which provides for equality of rights and authority to both parents.

"This was a departure from the previous stand of the High Court in two earlier cases where it refused to inquire into the validity of a syariah court order on the ground that it was made by a court of competent jurisdiction," said Mehrun.

The judge awarded Shamala and Dr Jeyaganesh joint custody of their children but since the children had always been in the care of their mother, the care and control of the children was given to the mother.

Is the Muslim convert's responsibility of providing maintenance for his ex-spouse and children absolved when he/she converts?

In Letchumy v Ramadason's case, the court decided in 1984 that a divorced wife could not obtain an order of maintenance under the LRA after her ex-husband had converted to Islam as the LRA no longer applied to him. This was the accepted view of section 3 (3) of the LRA (provision of maintenance) until 10 years later when the Supreme Court set a precedent in the case of Tan Sung Mooi v Too Miew Kim.

The judge concluded that the respondent's legal obligations under a non-Muslim marriage could not be avoided by his conversion to Islam.

"Mohamad's decision was derived by implication. Section 3 (3) should be amended to clearly provide for the continued application of the LRA to converts," said Mehrun.

Many lawyers and judges are not aware of the precedent in Tan's case. Family Law, which is now optional, should be made compulsory in universities, she said.

Gaps in the law

These cases, as in the case of M. Moorthy, became controversial because of gaps in the law. In seeking maintenance, for instance, the non-Muslim spouse cannot go to the Syariah Court for relief because the court does not have jurisdiction over non-Muslims. As such, the civil court must be given clear powers to deal with and give some relief to the non-Muslim spouse, said Mehrun.

"Despite countless proposals for resolving these problems, some of which were made 15 years ago, no action has been taken. Currently, officials of the Attorney General's Chambers are engaged in further consultations for a review of the entire Act," she said.

There is need for urgent action to diffuse a situation that has potential for inter-religious conflict, she said.

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