Shamala, Subashini and Indira Ghandi* are all household names now. They are the most prominent of a number of cases where one spouse in a non Muslim marriage converts to Islam, and attempts to force the other spouse to go to the Syariah Court and to be subjected to Islamic personal law regarding the breakup of their marriage. Minister Nazri Aziz has said that 3 laws will be amended soon to address this situation. In this series of 2 articles, I will try and explain why there is a problem and what reforms are needed to try and solve the problem.
Easy peasy divorce
For non Muslims, it is pretty darn difficult to get a divorce. If both spouses do not agree to a divorce, it must be proved that the marriage has “irretrievably broken down” for a decree of divorce to be made under section 53 of the Law Reform (Marriage and Divorce) Act 1976.
There are only 4 ways of showing that the marriage has irretrievably broken down: the other party has committed adultery (so difficult to use this if you are the one having an affair); the other party has behaved in such a way that you cannot live with him or her; the other party has deserted you for more than 2 years or you have lived apart for 2 years.
A husband must pay his wife maintenance (but not vice versa unless the husband is disabled), and generally custody of children (especially young children) goes to the mother and the husband must pay her maintenance for those children.
So all in all, its pretty difficult and expensive for a guy to get out of a marriage, and you might end up losing custody of your kids! So what do you do?
Under our current situation, a husband (or wife, but usually husband) is able to escape his marital obligations quite easily by following this easy step-by-step guide:-
First, convert to Islam – Easily done, no serious questions asked.
Second, convert your children to Islam if you want custody. Their presence is not required, merely their birth certificates. (And some even argue no registration at all is required – infant children are automatically converted to Islam when either one of their parents embraces Islam). The Islamic authorities will give you a conversion certificate, which the Syariah enactments say is conclusive evidence the children are now Muslim.
Usually, the very next day after this conversion, the husband will apply for a “divorce” of his non Muslim marriage in the Syariah court and for custody of his now “Muslim” children. He gets interim custody orders immediately, within a day or two of filing proceedings in the Syariah court
Note that the wife cannot validly appear in the Syariah court to dispute this and to obtain any relief. The Syariah Court only has jurisdiction over persons professing the religion of Islam, and applies the theological law of Islam.
The wife can petition for a divorce in the civil High Court, but she has to wait 3 months before filing that petition: s. 51 of the Law Reform (Marriage and Divorce) Act 1976. The reason for this 3 month period, I think, is because some schools of Islamic jurisprudence say that during this period the husband must try and persuade the wife to convert with him. It is a bit odd, therefore, that many husbands file an application for a “divorce” in the Syariah court the day after they officially convert.
So whilst the wife waits 3 months, the converting husband can immediately cause havoc with his Syariah court orders which the police, schools and other government departments very enthusiastically obey and help enforce.
Finally, when your wife finally gets to go to the High Court, the High Court will endorse, almost as a matter of course, the conversion of the children and the orders granted by the Syariah courts over the children. Article 121(1A) of the Federal Constitution is, with respect, misconstrued to mean the High Court cannot even question unconstitutional Syariah Court orders.
Why Islamic law cannot apply
The husband also argues that his right to freedom of religion means that as a Muslim, he can now require his ex wife to be governed by Islamic law.
Islamic law is a legal code that draws its inspiration from the theology and religious jurisprudence of Islam. That jurisprudence is based on the religious texts of Islam. The bedrock of Islamic law is in its divine origins, according to Muslim belief.
But to those who do not subscribe to those same beliefs, that or any religious law cannot possibly have any legitimacy. A law based entirely on an interpretation of the sacred texts of only one particular religion cannot possibly be utilised to decide a dispute raised by a person who does not profess that religion.
It is a misapprehension that all our laws have its origin in the “ecclesiastical” laws of Christianity. There was a clean break away from canonical law even in England many years ago. The laws that govern us in our society are, or should be, laws made after the exercise of free will by our legislators, applying an independent mind and engaging with each other through the democratic process. This legislative process is supposed to happen in Parliament, where our democratically elected representatives make our laws. The reality of our Parliamentary process is, of course, something different to the above ideal. Given that the vast majority of our Parliamenterians are Muslim and given that we have been independent for more than 50 years, it is spurious to claim that our laws are “Christian” in origin.
In practical terms, the application of Islamic law also causes an unjust result.
Islamic law says that only a Muslim can be a guardian of Muslim children, and should ordinarily be given custody unless the children are of very tender years. Hence, the mother loses the guardianship rights she has under the Guardianship of Infants Act 1961.
Islamic law also gives less recognition to a wife’s evidence as a witness compared to the evidence given by Muslim male witnesses: see for example s. 83 of the Syariah Courts Evidence (Federal Territories) Act 1997. A non Muslim can only give evidence “for” a Muslim. The kind of evidence to be given by a non Muslim is the same kind as the evidence which can be given by persons “who are not of full age”, “persons who are of unsound mind”, “persons who have a weak memory or are forgetful or suffer from lapses of memory” and persons “whose credibility is suspect because of a good or bad relationship with the other party”. How then can she have a fair hearing in the Syariah court?
The best example of how different Islamic law is compared to the position of the law under the Law Reform (Marriage and Divorce) Act 1976, and why a blind application of Islamic law as it stands is illogical, is in the case of spousal maintenance.
The Islamic law position is that a husband is only obliged to provide maintenance to his wife for a period equivalent to about 3 months after the divorce – the iddah period. In traditional Islamic law, the wife is then meant to revert to the care of the male members of her family. (This obligation to look after unmarried female members of the family is also the explanation ordinarily given to justify why Muslim men get a double of their female siblings’ share in Islamic inheritance laws.)
On the other hand, the custom of most of the other religions in Malaysia is that the wife, once married, leaves her original family. She cannot “go back” to the family. That is why obtaining a divorce was traditionally seen as a great stigma on the woman, and explains why many women still steeped in their cultural traditions do not want a divorce despite being unhappy in their marriages, being abandoned or even being abused. It also explains the requirement in the law for the husband to maintain his ex wife until she remarries or dies. And explains why giving her only 3 months of maintenance is cruel.
What has caused the problem?
Until recently, the reported cases have been relatively fair to non Muslim spouses caught in this quandry. The Supreme Court in Tan Sung Mooi (f) v Too Miew Kim  3 MLJ 117, SC, ruled that the civil High Courts have jurisdiction and that civil law continues to apply even though one spouse has converted to Islam. This decision was generally respected and enforced.
The problem now occurs because Peguam Syarie have been persuading converts to go to the Syariah Courts to get these orders rather than coming to the civil high courts, using the convenient excuse that section 51 of the Law Reform (Marriage and Divorce) Act 1976 only allows the non converting spouse to petition for divorce.
In fact, in Kung Lim Siew Wan (f) v Choong Chee Kuan  6 MLJ 260, Raus Sharif J (now JCA) assumed jurisdiction even when the husband had been Muslim before the marriage was even registered. In Tey Siew Choo @ Nur Aishah Tey binti Abdullah v Teo Eng Hua  3 AMR 2279, Suriyadi J (now JCA) allowed the wife who had converted to Islam to petition for divorce under the civil law. And most recently, similar sentiments were expressed by Hamid Sultan JC in Yong Fuat Meng v Chin Yoon Kew  5 MLJ 226.
The Peguam Syarie who file these cases in the Syariah Courts find Judges there who are more than willing to go beyond the powers given to them by the Federal Constitution, and make rulings against the non Muslim spouse and in respect of the non Muslim marriage. The Syariah Courts make what are in my view unconstitutional orders: they dissolve non Muslim marriages, they apply Islamic law principles to the non Muslim spouse, declare the children of the marriage as Muslim and grant custody to the father and issue injunctions against the non Muslim mother having the effect of preventing her from seeing her children.
Unfortunately, once the Syariah Court makes an order, we have seen the civil high courts deferring to the Syariah Court’s unconstitutional order, instead of ignoring it or declaring it null and void. The supervisory jurisdiction of the High Court over Syariah court orders has recently been reaffirmed by Hishamudin Yunus J (now JCA) in Dato’ Kadar Shah Tun Sulaiman v Datin Fauziah Haron  4 CLJ 504.
It is heartening that the majority of the Judges in the Federal Court in Subashini Rajasingam v Saravanan Thangathoray  2 MLJ 147 did say that such Syariah Court orders would have “no legal effect” in the High Court. However, the statement they made was not part of the binding part of their judgment.
Nevertheless, because of the series of these Court decisions which have distorted the law as it stood, there is an urgent need for law reform.
But what should those reforms be?
The writer is in the legal team representing Indra Ghandi & Subashini. The views expressed here are personal.