This article first appeared in The Edge Financial Daily, on February 16, 2016.

PUTRAJAYA: A 1988 amendment to the Federal Constitution to stop civil courts from interfering in Syariah Court affairs did not exclude the High Court from giving remedy to a person if the spouse converts to Islam, the Federal Court said in its judgement last week in an interfaith custody dispute.

Judge Tan Sri Md Raus Sharif said in the present case, the ex-husband (Izwan Abdullah) and the ex-wife (S Deepa) were Hindus at the time of their marriage.

“By contracting the civil marriage under the Law Reform Act (LRA) 1976, they are bound by its provisions in respect of divorce as well as custody of the children of the marriage.

“Matters under the LRA are within the jurisdiction of the civil courts and the civil courts continue to have jurisdiction over them, notwithstanding the ex-husband’s conversion to Islam,” he said in affirming the legal principle made in previous cases.

Md Raus said the dispute between Izwan and Deepa was not a matter within the jurisdiction of the Syariah High Court.

“It follows that Article 121(1A), which removes the jurisdiction of the civil courts in respect of any matter within the jurisdiction of the Syariah courts, does not operate to deny the civil courts jurisdiction in respect of the matters set out in section 51 of the LRA.

“It is clear that Article 121(1A) was introduced not for the purpose of ousting the jurisdiction of the civil courts. It was introduced in order to avoid any conflict between the decisions of the Syariah courts and the civil courts, which had occurred in a number of cases before,” Md Raus said in the judgement released yesterday.

Judge Md Raus said the LRA continued to bind Izwan despite his conversion to Islam as the Syariah courts have no jurisdiction over the ex-husband’s application to dissolve his 2003 civil marriage with Deepa.

“Neither have the Syariah courts jurisdiction over custody of the children born from the civil marriage under the LRA. The Syariah courts have jurisdiction only over matters relating to divorce and custody when it involves a Muslim marriage, solemnised according to Muslim law,” he added.

Md Raus said that when one of the parties was a non-Muslim, the Syariah courts do not have the jurisdiction over the case even if the subject matter fell within their jurisdiction.

He said it was important for the civil courts and Syariah courts not to transgress into each other’s jurisdiction.

Md Raus said in the present case, the Syariah High Court judge had granted the dissolution of the civil marriage pursuant to Section 46(2) of the Islamic Family Law (Negeri Sembilan) Enactment 2003.

Md Raus said the religious court judge should have also referred to Section 4 and Section 45 of the enactment and would have realised that the Syariah Court has no jurisdiction to entertain Izwan’s application to dissolve the marriage. — The Malaysian Insider