PUTRAJAYA, Malaysia (Reuters) - Malaysia’s highest court threw out on Thursday a bid by a Hindu woman to stop her estranged husband from converting their youngest son to Islam.
Her case is another sign of strain in the social fabric of the multi-racial nation, where many non-Muslims believe their rights are being trampled by the Muslim majority.
R. Subashini took legal action after her husband converted himself and their elder son, now four, to Islam in 2006. She says she now fears the husband wants to take their two-year-old, who still lives with her, and convert him to Islam as well.
The Federal Court rejected her request for an injunction on technical grounds, leaving her free to try again, but one judge noted the court’s jurisdiction was limited, given the husband was now a Muslim and therefore governed by Islamic or sharia law.
“The civil and sharia courts cannot interfere with each other’s jurisdiction,” said Nik Hashim Nik Abdul Rahman, one of two judges who dismissed the case. One judge dissented.
Family law has become an emotional battleground between Malaysia’s religious communities, with non-Muslims complaining civil courts are too willing to surrender jurisdiction to their Islamic counterparts in cases involving a Muslim conversion.
Marriages between Muslims and non-Muslims are forbidden in Malaysia, so once a non-Muslim spouse converts to Islam, the union is broken, lawyers say. While it can still exist under civil law, in reality the Islamic court does not recognise it.
A lawyer for R. Subashini said that although his client’s case failed on a technicality, the judges’ comments made it clear they recognised the husband’s right, as a newly converted Muslim, to have recourse to the Islamic courts.
“The High Court has jurisdiction to hear matters when this is a non-Muslim marriage but the husband also has a right to sharia court under Islamic Law,” lawyer K. Shanmuga said when asked by reporters to sum up the ruling’s significance.
R. Subashini, a 29-year-old clerk, had initially asked the High Court to prevent her husband from gaining custody of both their sons through the sharia courts.
Her husband, a 32-year-old businessman, had converted to Islam and when he conveyed the news to his wife, she attempted suicide and was admitted to hospital.
After her hospitalisation, she discovered her husband had converted their eldest son to Islam.
Her lawyers had told the Federal Court the civil system was the right place for this case because she was not a Muslim.
They cited a landmark ruling by the Federal Court in July which stated that if one party was a non-Muslim, the sharia court had no jurisdiction. This was a rare ruling that went against a tide of decisions granting jurisdiction to the Islamic courts.