The Court of Appeal had upheld a High Court's dismissal of an injunction she obtained to stop her husband, now known as Muhammad Shafi Saravanan Abdullah, from going to a syariah court to dissolve their marriage and get custody of their children.
The couple have two children aged three and one. Muhammad Shafi claimed the elder child converted to Islam with him last May.
Delivering the unanimous decision today, judge Datuk Abdul Hamid Mohamad, who chaired the three-member panel, said they have added one more question to the nine that will be deliberated by Subashini's lawyers during the appeal.
The question is, whether in an application for an interim injunction, the court can make a final determination on issues of law, particularly if it is a question of jurisdiction Ð as opposed to a consideration of only the existence of a serious issue of law to be determined.
Abdul Hamid said if the answer were to be affirmative, then the nine questions that Subashini sought to refer to would follow. However, if the court disagreed, Subashini's appeal would only focus on an injunction application.
No date was fixed for the appeal hearing.
Abdul Hamid also granted a fresh injunction, restraining Subashini's husband from dissolving their civil marriage and seeking custody of their elder child through a syariah court, pending the disposal of the appeal in the Federal Court.
Among the questions Subashini is asking the Federal Court to determine are:
- Does the syariah court have exclusive jurisdiction to grant divorce and deal with matrimonial assets and custody rights in a situation where one spouse in a civil marriage has converted to Islam?;
- Is the Administration of Islamic Law (Federal Territories) Act 1993 intended only to address marriages solemnised under Islamic legislation, and issues related to divorce, maintenance and custody rights?; and
- If the answer is yes for the second question, is it an abuse of process for the converted spouse to file custody proceedings in the syariah court, and an abuse of the Law Reform Marriage for a spouse to unilaterally convert the religion of a minor child without the consent of the other parent?
On March 13, Justices Suriyadi Halim Omar, Hassan Lah and Gopal Sri Ram had, in a 2-1 majority judgment, ordered Subashini to bring her divorce and custody claims to the Syariah Court.
Two weeks later, the same panel in a majority judgment granted an injunction preventing Saravanan from initiating or continuing with any proceedings in the Syariah courts or converting their younger son.