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Cases regarding conversion of spouses to Islam

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Section 51 of LRA provides that if one party to a marriage has converted to Islam, the non-convert spouse may apply for divorce after 3 months of conversion. If the non-convert spouse does not petition for divorce, the marriage will remain as the convert spouse could not petition under any ground by virtue of section 3(3) of the LRA.

There are few cases where the spouse convert to Islam one of the case is Lecthumy v Ramadan[1984] 1 MLJ 143 The principle in this case is in order for the non-convert spouse to apply for ancillary claims under LRA, petition for divorce must be brought under section 51 of LRA by virtue of section 3(3) of LRA. Ancillary claims could only be made under the ground of conversion to Islam.

The facts of the cases are the petitioner get her divorce on the ground of desertion and the decree nisi was granted on 1.12.1981. The High Court granted the maintenance order. The order was not complied with. The R converted into Islam. R applied to set aside the maintenance order. The court held that Since the wife had obtained the divorce not on the ground of conversion under section 51(1), the court had no power to order maintenance under section 51(2). Section 77 of LRA not applies to R since R is a Muslim. Therefore, R application to set aside the maintenance order was allowed.

Beside this, one of the famous case is Subashini a/p Rajasingham v Saravanan a/l Thangathorav. The parties were married on 26.7.2001. the marriage being solemnised and registered under LRA. Being Hindu, they went through a Hindu wedding ceremony on 9.2.2002. there were 2 children of the marriage i.e. Dharvin Joshua aged 4 and Sharvin aged 2. on 18.5.2006, PERKIM certified that the husband and Dharvin had embraced Islam. The husband filed an application in the Syariah High Court for the dissolution of the marriage and custody of the elder son. An interim custody order in respect of the converted son was issued to the husband. On 4.8.2006, the wife filed a petition for the dissolution of the marriage pursuant to section 51 of the LRA coupled with an application for custody and ancillary reliefs in the High Court. the wife applied for an ex-parte injunction against the husband and the husband then filed an application to set aside the said injunction.

The federal court held that Section 51(1) LRA imposed a caveat on the wife not to file the petition for divorce until lapse of 3 months from the date of the husband’s conversion to Islam. Thus, the High Court would not have the jurisdiction to entertain the wife’s petition. The wife was entitled to proceed with the rest of the application but it would be most appropriate if she filed her petition for divorce afresh under section 51 coupled with an application for ancillary reliefs as the court would grant the reliefs under section 51(2) upon dissolution of the marriage.

The High Court would have the jurisdiction to hear and determine the petition for divorce and the application for ancillary reliefs under section 51 of LRA even though the husband had converted to Islam before the petition for divorce had been filed in the High Court and that he has already commenced the proceedings in the Syariah Court. The status of the parties at the time of the marriage was the material consideration for the purpose of determining the question of jurisdiction. The husband could not shield himself behind the freedom of religion clause under article 11(1) of the FC to avoid his antecedent obligations under the LRA on the ground that the civil court had no jurisdiction over him. A non-Muslim marriage did not automatically dissolve upon one of the party’s conversion to Islam. Thus, by contracting the civil marriage, the husband and wife were bound by LRA in respect to divorce and custody of the children of the marriage, thus the civil court continued to have jurisdiction over him, notwithstanding his conversion to Islam.

Jurisdiction of the courts

The Article 121 (1A) of the Federal Constitution has given full power in administration to the syariah court, Sharia court only got power over Muslims – As State Courts, they have jurisdiction within the State Boundaries only.When do this law apply to Muslims?-Syariah laws in Malaysia apply in following matters: The first one is matters regarding to family law s in respect of marriage divorce, guardianship of children and also matrimonial properties. The second one is Laws of succession: Probate and Administration relating to distribution, as well as TrustDeed.

Matters regarding personal family law and matrimonial where the parties are muslim will go under syariah high court.These are stated in section 46(b)of the AIL (FT) Act 1993.They include: (i)betrothal,marriage,ruju’,divorce,nullity of marriage(fasakh),nusyuz,or judicial separation(faraq),or other matters relating to the relationship between husband and wife (ii)any disposition of,or claim to,property arising out of any of the matters set out in subparagraph (iii)the maintenance of dependants,legitimacy,or guardianship or custody(hadhanah) of infants.

The amended Section 3(3) is as follows: “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 from having exclusive jurisdiction over the dissolution of a marriage and all matters incidental thereto including granting a decree of divorce or other orders under Part VII and Part VIII on a petition for divorce under section 53 where one party converts to Islam after the filing of the petition or after the pronouncement of a decree, or a petition for divorce under either section 51, 52 or 53 on the petition of either party or both parties to a marriage where one party has converted to Islam, and such decree and orders made shall, notwithstanding any other written law to the contrary, be valid against the party to the marriage who has so converted to Islam.”

The former Section 3(3) of the LRA provides that the Act does not apply to Muslims, and the solemnization and registration of Muslim marriages are prohibited. However, an exception is made for cases where a non-Muslim party to a marriage obtains a decree of divorce under Section 51, and such a decree is enforceable against the Muslim party.

After the amendment, the civil courts now have jurisdiction over the dissolution of marriages in which one party has converted to Islam, and the grounds are extended beyond the scope of Section 51. If one party converts after the filing of a petition for divorce or the pronouncement of a decree of divorce, the marriage can be dissolved under Section 53.[10] If one party converts during the marriage, a petition for divorce can be filed under Section 51, 52, or 53. Further, the right to petition for a divorce is no longer limited to the non-Muslim party, but is extended to either or both parties. Besides divorce proceedings, matters related to the division of matrimonial assets, the maintenance of spouse and children, and the custody of children are also dealt in the civil courts.

A petition for divorce may be filed under Section 51, which provides the ground of conversion to Islam. The drafters of the LRA were of the opinion that some married individuals see conversion to Islam as a means to escape from their obligations under their existing non-Muslim marriage. Thus, Section 51 was created to protect and allow the innocent non-Muslim spouses to have the privilege in bringing an action against their Muslim spouses.[16] The non-converting party may only petition three months after the date of conversion,[17] and the Court may make provision for either party to the marriage and for the support, care and custody of children after the marriage is dissolved.[18] Unlike grounds for divorce under Sections 52, 53 and 54, the 2-year bar stipulated by Section 50 does not apply to Section 51.[19]

Section 51, however, is criticised for limiting the rights of the converting party.[20] Not only he or she is not allowed to file the petition, but matters regarding maintenance, distribution of property and child custody can only be decided after the decree of divorce becomes absolute. Moreover, the converting spouse may obtain a declaration from the Syariah court that the marriage is no longer valid and convert the children to Islam. By then, the civil court has to acknowledge the orders by the Syariah court, even though this puts the non-converting party in an unfair situation.[21]

The amended Section 51 is as such: “Dissolution on ground of conversion to Islam ​ (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. (3) Section 50 shall not apply to any petition for divorce under this section.” With that, the new Section 51 allows either or both parties to petition for divorce in civil courts, and to enable the parties to settle disputes on maintenance, matrimonial assets and child custody at any time.

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