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Old 28-11-2006, 07:50 AM
Gemukkk Gemukkk is offline
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Join Date: Jul 2004
Location: ipoh
Posts: 497
Gemukkk is an unknown quantity at this point

hi Sean,

as mentioned by Faiza Tamby Chik J; "What is before me is a dispute involving a Hindu marriage between the plaintiff wife and the defendant husband entered into on 5 November1998."
the case is on the person, not the religion nor the process.

note the use of 'civil' (shying away from touching religion) throughout the text, ie.; "First, the civil marriage is very much alive unless it is brought to an end by the unconverted spouse.".
Because once the guy converted into islam, he cannot have a non-muslim wife.

Section 81 is in tandem of what is taught in islam; syurga terletak di telapak kaki ibu. yes, emphasis is more on the mother.
and that is why there is "Tertakluk kepada Seksyen 82" because in islam, the powers of a mother does not exceed religion itself.

as you can see, that is why the recommendation to review current laws remain a recommendation. to review the laws would be against islam itself. it is not just the father, but the entire people involved in the change would be accountable in islam. section 82 should give an indication of the terrible burden emplaced on the father and every people involved (no matter how remote). it is not a matter where the muslim judge/solicitors/families/relatives/spectators/anyone who knows of this case can wash his hands off once the case is decided.

even High Court's final decision gave joint custody to Shamala and Ridzuan and placed a ‘caveat’ as per section 82 whereby she would lose the right to actual custody of the children.

even Harun Hashim SCJ, in Mohamed Habibullah bin Mahmmod v Faridah bte Dato’ Talib (1993) 1 CLJ 264 (p. 268), said:
it is obvious that the intention of Parliament by Art. 121 (1A) is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Court... I am therefore of the opinion that when there is a challenge to jurisdiction, as here, the correct approach is to firstly see whether the Syariah Court has jurisdiction and not whether the State Legislature has power to enact the law conferring jurisdiction on the Syariah Court.

as also mentioned, "Article 121 of the Federal Constitution clearly spells out the separation of powers and jurisdiction of the Civil and Syariah Courts. If the Civil Court transgresses on the jurisdiction of the Syariah Court by enforcing caveats on the practice of Islamic teaching, would it not seem that the Civil Court is taking on the role as the custodian of the Syariah Laws? If the Civil Court were to do so would it not breach the philosophy behind Article 121 of the Federal Constitution?"

please also consider the following as mentioned in the text:

1) a caveat on the opinion was made in this way; "If the parties should put emphasis on these more fragile victims, and if we erase the word ‘Hindu’ or ‘Muslim’ from the relevant portions of the texts of their case, the priorities would be much clearer."
with that caveat, it basically meant that he knew that under islamic law (even under section 82), what the decision should be.

2) Subsequent to this High Court decision, Shamala applied to the Cvil High Court for a declaration that the conversion of the minor children to Islam was a nullity. On 13 April 2004, the Court dismissed Shamala’s application on the ground that the Civil Court did not have the jurisdiction to hear the matter and only the Syariah Court could adjudicate on such matters. Further, the learned Judge agreed that Shamala did not have the locus to appear in the Syariah Court.

it is interesting to note that while much was said about the rights of the mother, the rights of the father was not elaborated. since all of us dont have the actual transcript, we are only relying from a person's excerpts of judgements and opinions.
in a way, this may lead to tunnel vision influenced by bias.

-- made no mistake, if a review is to be done to make the person accountable, yes it can be done. --
but if a review is done to change the conversion process against islam, i can surely say there will be an uproar.
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