Malay Mail, Tuesday, April 2007 -
Subashini, a Hindu housewife who was compelled to go to
Syariah Court to fight for her matrimonial rights will now have a final battle in the Federal Court to decide whether the High Court has jurisdiction to grant a civil divorce to couples, where one spouse has converted to Islam.
If you have read
Malik Imtiaz explanation of Article 11 of the Constitution, then you may understand what is the big “
hoo-ha” about. I strongly agree with
Malik on his stand on Article 11 that the
Syariah Law should not be imposed on non-Muslim. A simple case of “
khalwat”, if a non-Muslim man is caught with a Muslim lady, the punishment would only apply to the Muslim. So what is so exclusive about
Subashini’s case?
Well, I’m not going to discuss on the law here. Please visit www. http://malikimtiaz.blogspot.com/ for a better understanding on the legal aspect of this issue. Putting aside the law, let’s go back to our commonsense. Law after all is not about logic but commonsense. Now…if a couple is married under the civil law, why seek divorce under the
Syariah law? I mean the couple was married in a temple and registered under the civil law but divorced under the
Syariah Law.
Ok let say if this case goes to
Syariah Court. In Islam once a spouse does not believe in Islam (whether that person formally converts or not- just trying to be technical here…) the marriage will be invalid in the eyes of God (that was thought to me during my marriage course). So if this couple did not go to
Syariah Court, is the
Syariah law trying to say that they are legally married although one spouse has converted (
hmm....commonsense people).
Now let’s move on. If the
Syariah Court decides that the marriage is no longer valid, how about the issue on “
talak”. Since she’s a non-
muslim, there should not be any issue on it. So I don’t know why the
Syariah Court should interfere when one of the main purpose to go to
Syariah Court is to get the declaration that the husband actually divorce her as based on an Islamic marriage & the number of ‘
talak’ involved. As in
Subashini’s case, she is trying to get a declaration that the civil marriage is no longer valid.
Property wise, how should the couple divide their property? Based on the law of “
harta sepercarian”? But
Subashini is a non-
muslim and the law only applies to marriage valid under Islamic law (again people commonsense…)
A friend said to me after we read the news about
Subashini “
Senang sahaja, to satisfy both side, go to both courts”. Well, I
didn’t reply to his statement since I
didn’t want him to sound idiotic. It will of course create another series of chaotic moments when both courts decide differently and we will go back to square one. Which decision should prevail (by the way that friend is a law graduate…sigh!?).
In my opinion, since the marriage was a civil one then they should get divorced through the civil court and get the property divided based on the civil law.
Subashini’s husband converted after their marriage, it will be unfair to impose the
Syariah Law on her when the marriage was not an Islamic one. It makes the
Syariah Law seem draconian. Unless they are married as a Muslim couple and one spouse converted to another religion, then it makes sense that the couple should refer to the
Syariah Court for the divorce.
The most complicated issue I feel is on the conversion of the children. This is a sensitive issue for both religions as I believe that one religion should respect the other. Legally I’m not clear about it. As a human being, I believe that religion is about a person’s faith. If a person is born as a Hindu then let him or her one day decide if they would like to be a Muslim, Christian or remain as a Hindu. I’m a Muslim and I’
ve always held to the teaching of Islam that they should be no force in religion. People may say I have no right to say this, but there could be a possibility that the child may decide to change religion. It’s a common scene in Malaysia for Hindus and Christians to voluntarily convert to Islam. If one’s faith is strong in Islam, one should not fear. Sadly, the beauty of Islam has been tarnished by such technicalities created by our own Muslim people.