DISSOLUTION OF MARRIAGE BY CHANGE OF RELIGION: AN OVERVIEW FROM MALAYSIAN PLURAL LEGAL SYSTEM

dari ChangkatNingkeBTP

Muhamad Wazir Muslat; Shahrizat Said; Hamdan Dato’ Salleh; Shariful Kamaruddin; Shamshinor Abd Azzis

Qalam Bestari UNISEL, CDFS, UNISEL


1.0 INTRODUCTION

In the name of Allah the Most Compassionate and the Most Merciful

The issues on change of religion used to be discussed and sometimes become a hot one. Even though issues pertaining to conversion from one religion to another is a sensitive ones, but it keeps on happening and being mentioned by the media, magazines, newspaper and public. In a multi racial and religious society like Malaysia, where Islam is the Federal religion , conversion to Islam is not a surprised as the majority of the citizens are Muslim-Malays and government also applied the right to freedom of religion.



Definitely, the changes of religion either to Islam or out of Islam will invalidate the marriage between couples, except when both of them converted at the same time. However, Islam has granted the freedom of religion in sura al-Baqarah verses 256: “Let there be no compulsion in religion” . What is meant by freedom in the context of the ayah is a person in the matter pertaining to religion he is free either to have or not to have a religion, either to practice or not to practice, either to embrace or not to embrace or either to change or not to change his or her religion.

This liberty or freedom is given to the non-Muslim only. For a Muslim there is no such freedom in religion. This is because a Muslim is abiding by the shariah rules without looking to the situation either he is under the Muslim rule or non-Muslim rule. The name as a Muslim itself already meant that the person must submit and surrender to the will of Allah SWT in the matter related to the belief and pillars of Islam, to keep him as a believer and a Muslim . The author stressed on the meaning of freedom of religion according to Islamic view as mentioned in the Quran as well as the western views. He also discussed on the concept of freedom of religion verses freedom of conversion . Basically the author said that freedom of conversion is applied to the non-Muslims in all the Muslim countries as it has been mentioned in the Quran also . The author said that conversion will arise or touch the personnel issues like marriage, maintenance, property and others related to the personal law .

While in Malaysia, the basic law governs that every citizen has a right of freedom of religion. According to Federal Constitution, provision is stated in Article 11(1) which grants to every person, citizen or non citizen, right to profess and practice her/his religion and subject to Clause 4, to propagate it . The Federal Constitution has a various aspect in protecting the religious freedom in Malaysia with a provision, protection and restriction . This shows that the term of freedoms must follows by responsibility. Its also mean the freedom of religion in Malaysia cannot be totally absolute, but must follow our country regulation in the multi culture religions environment . The others article in Federal Constitution related to protect the freedom of religion in Malaysia is articles 3, 8, 12 and 150(6A) during emergency, Parliament cannot encroach on religious freedom . The guarantee in related to freedom of religion can we look at Jamaluddin Othman v Menteri Hal Ehwal Dalam Negeri [1989] 1 MLJ 368- Article 11 and Noorliyana Yasira Mohd Noor v Menteri Pendidikan Malaysia [2007] 5 MLJ 65- Article 12 .


2.0 CHANGE OF RELIGION

Basically there are two ways of change religion. Either by renounced of Islam or which also call as apostasy or joint the Islam as a way of life by conversion to Islam. Both of these ways of change of religion will give effect to the marriage and other aspects that related to the personal law which will we discuss below.


3.0 APOSTASY

Apostasy, or riddah in Arabic, literally means defection or backsliding. According to Dr Wahbah al-Zuhailiy in his book al-Fiqh al-Islam wa Adillatuh , literally, apostasy means backwards from here to the others. Technically, apostasy is backwards to kufr after practice Islam, although with intention, words or deeds . Apostasy also means (Arabic: ارتداد, irtidād or ridda), is commonly defined as the rejection of Islam in word or deed by a person who has been a Muslim . Apostasy refers to any statement, action or belief that may contradict Islam or defame any of its sacred books or personages . Any disrespectful behavior or deviant statement regarding Islam and its sacred tradition may constitute an act of apostasy and thus set its perpetrator theologically, socially and politically outside the accepted norms of Islam and the Muslim community. Apostasy is an act of rejection of faith committed by a Muslim whom Islam had been affirmed without any coercion by the two shahadahs that there is no god except Allah SWT and that Muhammad SAW is the messenger of Allah SWT .

Apostasy is a great crime as it threatens the integrity and stability of the Muslim community and state. Apostasy is a criminal offence according to the Islamic faith /teaching in the Shariah criminal enactment . Allah SWT Says in the Quran which means; (Your enemies will not cease to fight against you till they have turned you away from your faith, if they can. But if any of you should turn away from his/her faith and die as a denier [of the truth] – these it is whose works will bear no fruit in this world and in the life to come; and these it is who are destined for the fire, therein to abide) .

Also Allah SWT stated in surah An-Nisaa', (Behold, as for those who come to believe, and then deny the truth, and again come to believe, and again deny the truth, and thereafter grow stubborn in their denial of truth – God will not forgive them, nor will guide them in any way) .

The two ayah is speaks about God's punishment of the apostate in the Hereafter. There has been a wide variety of opinions by Muslim scholars concerning punishment for apostasy. Some opinion said that the punishment is by dead penalties after a consummation period of taubah based on one Hadith that said any Muslim person that changes of religion must be sentence by death penalties. But the Hadith has been discussing by many of Muslim scholar and the Hadith is based on the situation on that time which not binding to the recent situation. And some said that the punishment is belonging to God’s after the death, not in this world .

The Punishment for apostasy is still open to discussion among the Muslim scholar. The classical jurist views that apostates should be sentenced to death penalty after the lapse of the period of repentance . The modernists, suggests that the act of leaving the Islamic faith is a matter of the right to freedom of religion. A mere renunciation from the religion of Islam without contemptuous attack on the religion of Islam is free from worldly punishment as he will be punished in the hereafter . The others Muslim jurists argue that the type of punishment for apostasy is categorised under ta’zir on the ground that there is no single verse from the Qur’an mentioning such worldly punishment . All of their opinion and argument was supported by proofs from Quranic verses and Prophet SAW Hadith.


The Islamic Administration in Malaysia has let the powers to sentence who apostate to the Syariah court. There are no clear sentence has provided in the State Enactment. The provision in all states enactment in Malaysia is only for the offence of try to leave Islam. Muslim who want renounce Islam must apply to the Syariah Court. Regularly judge will not allow leaving Islam due to their responsible to protect the religion. These issues arise because of some administration problems such as;
1. According to jurist the sentence for apostate is sentence to death but syariah courts no jurisdiction in this matter due to the power is under the Schedule 9 List 1 Paragraph 4 in the federal list; Syariah Courts only can delivery sentences for the offence for not more then 3 years imprisonment, RM5000 fines and 6 slashes.
2. The offences should under Syariah Court, but the court has no jurisdiction
3. No provision in the Penal Code about apostasy

Law of apostasy in Malaysia is non-uniformity, the provisions differ from one states to another. Of the five states that provided physical & monetary punishment, the State of Pahang seems to provide the most deterrent one- any Muslim who ceases to be a Muslim shall be liable to a fine not exceeding RM5000 or imprisonment for a term not exceeding 3 years or to both and to whipping of not more than 6 strokes.

The middle part, some States enactment provided the provision of apostasy under the ta’zir offence with allegation to renounce Islam. Negeri Sembilan has the comprehensives procedure to resolve the apostasy cases. From the application to the dissolution. The Administration of The Religion of Islam (State of Negeri Sembilan) Enactment 2003, Section 119 is the most comprehensive procedure to renounce Islam. Counseling with Mufti Department & 90 days period to ‘taubat’; then if its fail- Shariah Court will proclaim the renounce of Islam.

Based on those situations, certain step has been taken by the States in Malaysia involving the case of apostate;
1. It is the right of Shariah Court under the mal provision to announce a person as an apostate or renounce from Islam and the Shariah Court also has the right to announce that a deceased person is a Muslim or vice-versa during his death.
2. The declaration of apostate must be mention by Syariah Court. It is under the provision of Shariah Court to confirm that apostate from Islam is an offence.
3. It is under the provision of the Shariah court to detain anyone who try to apostate and send them to the rehabilation centre.
4. If a judge had made an announcement that a person was apostate, the Shariah court has no more right on him and this will create problem to his remaining Muslim family members. That’s why many states regularly didn’t approve or try to not approve Muslim application to apostate.


There are many implications to the Muslim family who renounced Islam.  The implication is not only to the couple of marriage but also to the whole legal systems in Malaysia since Malaysia have plural legal system with different view of its importance. Malaysia had two different court; Civil Courts and Shariah Courts.

The issue is which Court should have a jurisdiction over the apostate. The opinion that the court has jurisdiction to hear cases which involve the same parties concerning the same matter, ie their Islamic marriage. Guardianships- ruled by which law the marriage is registered. Then Conflict arises upon difference approaches by the court.

Due to those situations, the Muslim community in this country faced a lot of problems. One of them is the issue of the conversion to other religion among the Malay Muslims. Although freedom of religion as fundamental liberties is guarantee in the Federal constitution under Article 11(1), which means every person has the right to profess and practice his religion, but there are some restricts to the propagation of any religious doctrine or beliefs to those who profess the religion of Islam .


4.0 CONVERSION

According to the Oxford Advance Learners Dictionary , the word conversion refers to the process or experience of changing religion or beliefs. When the word is combined to the word Islam, it refers to the process of the ‘recitation of the shahadah or profession of faith which is composed of two affirmations from the Quran that have been integrated to form a single declaration of faith in the uniqueness and oneness of God and the finality of His revelation to the Prophet Muhammad. It reads “There is no God but Allah and Muhammad is the Messenger of Allah” .

According to Nuraisyah Chua Abdullah, conversion is defined as a definite break with one’s former identity such as the past and the present are antithetical in some important aspects . Conversion involves a radical change in one’s identity, beliefs, ideas, values and personality . Changes vary according to the religion itself . Conversion also can be defined as reorientation of the personality system involving a change in the constellation of religious beliefs and or practice .

If we refer to the history of Islam which begin from the era of Prophet Hood of Muhammad SAW, conversion to Islam took place with the appointment of Muhammad bin Abdullah  as the last Messenger of Allah SWT through the revelation of the Quranic ayah in the cave of Hira’. As the knot Messenger of Allah SWT he was asked to fulfill his duty to spread the message of Islam and from that time till today the number of Muslims increased.

In Islam, conversion is not a condition to be a membership of a Muslim community. Since from the beginning of Islam, Muslims allow other people to practice their religious duties and celebrate their festivals. It is because of this, Muslims can live peacefully and harmony with the multi racial and religious society. Every Muslim is abide with rules in the Quran and Sunnah where we are required to establish a justice, respect one another and do not force others to embrace Islam.

However, conversion to Islam happens due to many reasons. Some people they convert to Islam because they attracted to the Islam itself. For these people, the teaching of Islam, its principles, rules and as extra suited with their mind and heart. Most of these people refer to those who are knowledgeable who like to read and search for the truth religion when they feel that there is a gap or empty space in their life which need to be fulfilling after they are having everything they want in this world. For others, they convert to Islam because they attracted to the way Muslims life and for others it was because of love.

While according to Administration of Islamic Law (Federal Territories) Act 1993, under Section 85, the following requirements shall be complied with for a valid conversion of a person to Islam:
(a) The person must utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith;
(b) at the time of uttering the two clauses of the Affirmation of Faith the person must be aware that they mean “I bear witness that there is no god but Allah and I bear witness that the Prophet Muhammad S.A.W. is the Messenger of Allah”; and
(c) The utterance must be made of the person’s own free will .

Section 96 provides that a person is converted to Islam and becomes a Muslim as soon as he finishes uttering the two clauses of the Affirmation of Faith provided that the requirements of section 85 are fulfilled, and that person shall then be referred to as a muallaf .


5.0 EFFECT OF CHANGE OF RELIGION TO MARITAL STATUS

According to Islamic Family Law (Federal Territories) Act 1993(IFLA), apostasy is an offence and can be dissolve the marriage. Section 130, IFLA provides that, any person who dislikes his or her spouse and by deception makes himself or herself an apostate in order to annul his or her marriage commits an offence and shall be punished with imprisonment not exceeding one year .

While, provides under IFLA that ;
(1) The renunciation of Islam by either party to a marriage or his or her conversion to a faith other than Islam shall not by itself operate to dissolve the marriage unless and until so confirmed by the Court.
(2) The conversion to Islam by either party to a non-Muslim marriage shall not by itself operate to dissolve the marriage unless and until so confirmed by the Court.
It means, in any condition the court has a power to dissolve the marriage otherwise it should be taken as an offence action.

Islam disallows marriage between Muslim and Non-Muslim. (Do not marry unbelieving women (idolaters) (mushrikat) until they believe. A slave woman who believes is better than an unbelieving woman, even though she allures you. Nor marry (your girls) to unbelievers (mushrikin) until they believe. A man-slave who believes is better than an unbeliever, even though he allures you) . In another ayat in the Holy Quran it is stated to the effect: (Lawful to you in marriage are not only chaste women who are believers but chaste women among the people of the Book, revealed before your time- when you give them their due dowers and desire chastity not lewdness nor secret intrigues) .

According to Jurist opinions like Shafie and the Hanbali school of Laws, if one of the non-Muslim spouses converts before the consummation of the marriage, the separation shall be hastened at the instance of the conversion . Hanafis and Malikis school of Laws, look weather the conversion takes place in Islamic State or vice versa. The dissolution of marriage which is pending until the expiration of the period of iddah applies only in cases where conversion takes place in non-Islamic state .

In Malaysia, the law in this matter has been provided in the Enactments or Act such as in IFLA provides that:
(1) No man shall marry a non-Muslim except a Kitabiyah.
(2) No woman shall marry a non-Muslim .
The definition provided by IFLA it is clear that a Muslim, weather male or female, is prohibited from marrying a non-Muslim. This is the rule and law which must be followed by all Muslims in this world .

The definition of Kitabiyah in Syafie School, which is accepted in Malaysia, is strict . The IFLA defines kitabiyyah as :
(a) a woman whose ancestors were from the Bani Ya’qub; or
(b) a Christian woman whose ancestors were Christians before the prophethood of the Prophet Muhammad; or
(c) a Jewess whose ancestors were Jews before the prophethood of the Prophet Isa;

Allah SWT says in Quran, (O you who believe! When there come to you believing women refugees, examine them(and test) them: Allah knows best as to their faith: If you ascertain that there are believers, then sent them not back to the unbelievers(kuffar). They are not lawful (wives) for the neither unbelievers, nor are the unbelievers lawful (husband) for them) . Ibn Kathir says that this is one verse which forbids marriages between Muslim women and Non-Muslim men as well as the marriages of Muslim men with non-Muslim women .

The reason is to avoid the convert spouse from being influenced by the non-convert spouse and it is equally possible that the non-Muslim spouse may imbue the Muslim spouse, his or her family or their offspring, with the spirit and ways of shirk. Ibn Abbas was reported to have said “A man came after embracing Islam during the time of the Apostle of Allah (p.b.u.h.). Afterwards his wife came after embraced Islam. He said: Apostle of Allah, she embraced Islam along with me, so restore her to me” The hadith quoted that if the husband and the wife embraced Islam together at the same moment, the wife will be regarded legal to him and he to her .

In other hadith, Ibn Abbas is reported to have said: “A women accepted Islam and got married (to a Muslim). Her former husband came to the Prophet and said, “O Messenger of Allah, I have to accepted Islam and she had known my Islam”, that is, the fact that he had accepted Islam. The Prophet then separated her from her second husband and gave her back to her first husband”. According to hukum syarak, if one party in the non-Muslim marriage converted to Islam, the other party which not so converted should give a chance to convert, if she or he jointly converted to Islam, their contract of marriage should going on and no need to the new solemnize of the marriage. The time given is three month for the other party which not so converted to convert to Islam .


6.0 LAW PROVISION ON EFFECT OF MARRIAGE UPON CHANGE OF RELIGION

In Malaysia the law regarding to the effect of marriage upon conversion can we look at IFLA provides that, save as is otherwise expressly provided, nothing in this Act shall authorize the Court to make an order of divorce or an order pertaining to a divorce or to permit a husband to pronounce a talaq except -
(a) where the marriage has been registered or deemed to be registered under this Act; or
(b) where the marriage was contracted in accordance with Hukum Syarak; and
(c) where the residence of either of the parties to the marriage at the time when the application is presented is in the Federal Territory.

While under IFLA also provides that the provision on Change of religion which states ;
(1) The renunciation of Islam by either party to a marriage or his or her conversion to a faith other than Islam shall not by itself operate to dissolve the marriage unless and until so confirmed by the Court.
(2) The conversion to Islam by either party to a non-Muslim marriage shall not by itself operate to dissolve the marriage unless and until so confirmed by the Court.

Most of the cases which have been brought before the court in Malaysia relate to the effect of conversion to Islam by either party in a non-Muslim marriage. Under Islamic law, a husband or wife who marriage under any other law than Islam and one party converts to Islam, while the other party does not follow during the iddah period, then the marriage is dissolve. But in Malaysia, a convert still bound by his civil law. Even thought the party who converted to Islam is still bound by his or her previous personal law, he or she is not permitted to use his right under that law .

Under Law Reform Act (Marriage and Divorce) 1976 (LRA) which governs to non-Muslim who converts to Islam, provides that:
(1) Nothing in this Act shall affect the validity of any marriage solemnized under any law, religion, custom or usage prior to the appointed date.
(2) Such marriage, if valid under the law, religion, custom or usage under which it was solemnized, shall be deemed to be registered under this Act.
(3) Every such marriage, unless void under the law, religion, custom or usage under which it was solemnized, shall continue until dissolved—
(a) by the death of one of the parties;
(b) by order of a court of competent jurisdiction; or
(c) by a decree of nullity made by a court of competent jurisdiction .

Section 3 (3) of LRA further provides that this Act shall not apply to a Muslim or to any person who is married under Islamic law and no marriage of one of the parties which professes the religion of Islam shall be solemnized or registered under this Act; but nothing herein shall be construed to prevent a court before which a petition for divorce has been made under section 51 from granting a decree of divorce on the petition of one party to a marriage where the other party has converted to Islam, and such decree shall, notwithstanding any other written law to the contrary, be valid against the party to the marriage who has so converted to Islam .

LRA also provides a provision to dissolution on ground of conversion to Islam which is provides under Section 51 (1) and (2):
(1) Where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce: Provided that no petition under this section shall be presented before the expiration of the period of three months from the date of the conversion.
(2) The Court upon dissolving the marriage may make provision for the wife or husband, and for the support, care and custody of the children of the marriage, if any, and may attach any conditions to the decree of the dissolution as it thinks fit .

In a statute which purports to make the breakdown of marriage the sole ground for divorce, it seems odd that a provision of Section 51(1) of LRA has been included in it . The provision seems to revive the outmoded fault principle; in that one of the parties has been given the right to petition for divorce because of the fault committed by the other party, in this case conversion to Islam . One wonders what the reaction would been have been if the law had provided that if one of the parties to a marriage had converted to Christianity, then the other party may petition for divorce .


7.0 CASES AND ISSUES

There are so many cases involving the issues on dispute upon one convert to the other religion either the case has been reported or not and is not something new . It has been discussed in cases as early as 1940  in PP v David John White@ Abdul Rahman  and the much celebrated case of Re Maria Huberdina Hertogh; Inche Mansor Adabi v Adrianus Petrus Hertogh & Anor .

In the case of Pedley v. Majlis Ugama Islam Pulau Pinang , the plaintiff, a Roman Catholic, had married a Roman Catholic lady according to Catholic rites on 12 February 1966. On 12 January 1987, the wife embraced the religion of Islam without the plaintiff’s knowledge and assumed a Muslim name. The plaintiff applied, inter alia, for a declaration that the conversion of his wife has not determined his marriage to her. The court Held, dismissing the plaintiff's application:
(1) It is clear that under the civil law a non-Muslim marriage is not dissolved upon one of the parties converting to Islam. It only provides a ground for the other party who has not converted to petition for divorce.
(2) The declaration applied for is purely academic. The plaintiff is not going to benefit in any way from the declaration. He is only asking for the declaration of a mere legal right and is not asking for any consequential relief.
Where the court held that even though the civil law court has the right to dissolve the civil marriage when either of the parties converts to Islam, it merely provides grounds for the non-converted party to file a divorce petition.

The other case is Ng Swee Pian v. Abdul Walid and Anor . In this case, the plaintiff and the second defendant were Buddhists who had contracted their marriage under the Civil Marriage Ordinance 1952. Subsequently, the husband, who was the second defendant, embraced Islam and then applied to the Sharia Court in Bukit Mertajam to dissolve his civil marriage on the ground that his wife (the plaintiff) had not embraced Islam.

In the case of Eeswari Visuvalingam v Government of Malaysia , the appellant sought a declaration that she was a dependant as defined in s 4 of the Pensions Adjustment (Amendment) Act 1983 and also a declaration that she was entitled to a derivative pension under s 15 of the Pensions Act 1980. The appellant was married according to Hindu rites and the marriage was registered. Her husband subsequently embraced Islam. He was a pensioner under the Pensions Act 1980 and later died. The appellant had not sought a divorce from him under the Law Reform (Marriage and Divorce Act) 1976. The High Court held that the appellant was not entitled to the derivative pension.
Section 15(1)(a) of the Pensions Act 1980 provides for derivative pension to be given to persons prescribed in the Pensions Regulations 1980. As the appellant came within the definition of 'widow' in the Pensions Regulations 1980 as 'being the surviving [*87] spouse of a deceased officer whose marriage is recognized in Malaysia as a valid marriage under any written law, religion, custom or usage', she is therefore a dependant and entitled to the derivative pension.

In Tan Sung Mooi v Too Miew Kim  the then supreme Court pointed out that from the wording of Section 51 of the LRA 1976 (where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce and the court upon dissolving the marriage may make provision for the wife or husband and for the support, care and custody of the children of the marriage and may attach any condition to the decree of dissolution) the legislature clearly intended to provide ancillary relief for non-Muslim spouses and the children of the marriage as a result of one party's conversion to Islam.

While in the case of Letchumy v. Ramadason , in this case the petitioner had obtained a divorce from the respondent on the ground of desertion. After the decree nisi was made she applied for maintenance and after the decree nisi was made absolute the matter came before the Judicial Commissioner, who made an order that the respondent pay the petitioner his former wife the sum of $ 200/- per month as maintenance for herself. The respondent subsequently applied to set aside the maintenance order on the ground that he was a Muslim and according to Islamic law the petitioner has no right to claim maintenance because she has not converted into Islam with the husband within the eddah period. The court held that Section 3(3) of the Law Reform (Marriage and Divorce) Act, 1976, precludes the operation of the provisions of section 77 to a Muslim and as the respondent is now a Muslim they cannot be made to apply to him.
In the case of U. Viswalingam v. S. Viswalingam , the appellant, who was originally a Hindu Ceylon Tamil married the respondent, who was a Christian of the Anglican faith, in Sri Lanka under the Marriage Registration Ordinance of Ceylon in 1955. Subsequently the parties came to Malaysia, where they acquired Malaysian citizenship. There were problems between the parties and in 1973 the wife and one of the children went to England. The parties decided that the children were to be educated in England and the appellant bought a house in Edgeware, London. The house was conveyed to the joint names of the husband and the wife. In 1976 the appellant embraced the Muslim faith and subsequently married a second wife. The wife in the meantime had become resident in England and as found by the learned judge had resumed her domicile of origin in Sri Lanka. In 1977 the wife filed her petition seeking a decree of dissolution of marriage from her husband the appellant, on the grounds of his unreasonable behaviour. It was alleged on behalf of the husband that the marriage had already ceased to exist because he had embraced the Muslim faith.

At the trial a fatwa from the Mufti of the Federal Territory of Kuala Lumpur was accepted which stated that the marriage had ceased to subsist by reason of the husband's conversion to Islam and the failure of the wife to follow suit. Reaffirmed the provision concerning marriage with a kitabiyya by elaborating that a Muslim woman is only permitted to marry a Muslim man, although a Muslim man is allowed to marry either a Muslim woman or a Christian or a Jewess to whom this definition of kitabiyya applies.

In Shamala a/p Sathiyaseelan v. Dr. Jeyaganesh a/l C. Mogarajah , the civil High Court judge in his judgement states, although s. 46 of the IFLA gives the Syariah Court power to confirm that the conversion to Islam by either party to a non-Muslim marriage may dissolve the marriage, this does not seem to be effective to terminate the marriage as far as the other party is concern. This is because by virtue of Section 4 and 8 of the LRA, such marriage, if valid, shall continue until dissolved: (a) by the death of the parties, (b) by order of a court of competent jurisdiction or (c) by a decree of nullity made by a court of competent jurisdiction.

In Subashini a/p Rajasingam v Saravanan Thangathoray & anor , the husband converted himself and his eldest son to Islam. He filed proceedings in the Syariah High Court for the dissolution of the marriage and the custody of the converted son. The wife filed a petition at the civil court. The Federal Court held that by embracing Islam, the husband and the son became subject to Muslim personal and religious laws and it was not an abuse of process if he, being a Muslim, sought remedies in the Syariah High Court as it was his right to do so . Abdul Aziz Mohamad FCJ stated that it was an abuse of process for the converted spouse to file custody proceeding in the Syariah Courts in respect of the children of the LRA 1976, primarily because the Syariah Courts have no jurisdiction in the matter of the custody of children of a non-muslim marriage . Seemingly, the husbands filing of the petition in the Syariah Court superseded the wifes petition in the High Court .


8.0 CONCLUSION

According to Malikis, Shafiis, Hanbalis and Abu Yusuf, the separation due to rejection of faith is fasakh. The reason is the separation or dissolution of marriage takes place without pronouncement of talaq . However Hanafis and Muhammad, separation is by fasakh whenever the husband’s converts but the wife rejects Islam, on the other hand, the separation is by talaq if the wife converts and the husband rejects Islam . However, Abd. Karim Zaydan mentioned that, the separation due to the rejection of faith is talaq and it is an irrevocable divorce since the separation occurs due to the operation of law .

Change of religion will bring both parties in dilemma. Suggestion has been made several times to amend the Section 51(1) of LRA 1976 to “Where one party to a marriage has converted to Islam, either party or both parties may petition for divorce” . Other suggestion made by law practitioners that to allow a non-Muslim person to get their right in Syariah Court and as same to Muslim seeks a clarification in civil court.


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Statutes:

Administration of Islamic Law (Federal Territories) Act 1993/ Act 505
Federal Constitution
Islamic Family Law (Federal Territories) Act 1984/ Act 303
Law Reform (Marriage and Divorce) Act 1976/ Act 164

Cases:

Eeswari Visuvalingam v Government of Malaysia [1990] 1 MLJ 84
Letchumy v. Ramadason [1984] 1 MLJ 143
Ng Siew Pian v Abdul Wahid bin Abu Hassan & Anor [1992] 8 JH 256
Pedley v Majlis Ugama Islam, Pulau Pinang [1990] 2MLJ 307
Shamala a/p Sathiyaseelan v. Dr. Jeyaganesh a/l C. Mogarajah [2004] 2 MLJ
Subashini a/p Rajasingam v Saravanan a/l Thangathoray & Anor [2008] 2 MLJ 147.
Tan Sung Mooi v Too Miew Kim [1994] 3 MLJ 117
U. Viswalingam v. S. Viswalingam [1980] 1 MLJ

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