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Family Law (divorce); Civil Procedure (injunctions-full & frank disclosure): Case Updates

Subashini a/p Rajasingam v Saravanan a/l Thangathoray (and 2 Other Appeals) [2008] 1 AMR [FC]

The proviso to Section 51(1) of the Law Reform (Marriage and Divorce) Act, 1976 ("the Act") clearly reflects the imperative requirement which must be complied with before a petition for divorce can be made. The proviso imposes a caveat on the wife not to file the petition for divorce until a lapse of 3 months from the date of the husband's conversion to Islam. Thus the High Court would not have the jurisdiction to entertain the wife's petition unless the proviso is complied with.
A non-Muslim marriage does not automatically dissolve upon one of the parties' conversion to Islam. Thus by contracting the civil marriage, the husband and wife were bound by the Act in respect of divorce and custody of the children of marriage and thus, the civil court continued to have jurisdiction over him notwithstanding his conversion to Islam.
There was no impediment for the husband to appear in the divorce proceedings in the High Court albeit as a respondent, as the jurisdiction of the High Court extended to him unlike the Syariah High Court which restricted its jurisdiction to persons professing the religion of Islam only.
Both the civil and Syariah courts are administered separately and are independent of each other and are of equal standing under the Constitution.
The civil court cannot be moved to injunct a validly obtained order of a Syariah Court of competent jurisdiction.
The word "parent" in Article 12(4) of the Constitution which states that the religion of a person under the age of 18 shall be decided by his parent or guardian, means a single parent. Thus, either husband or wife had the right to convert a child of the marriage to Islam and therefore, Article 8 of the Constitution was not violated.
An Erinford injunction pending an appeal or an application for leave to appeal like a stay of execution pending an appeal is ordinarily granted by the court which made the decision that is the subject of the appeal.

Leasing Corporation Sdn Bhd v Indah Lestari Sdn Bhd [2008] 1 AMR 653 [COA]

The plaintiff was legally bound to make a full and frank disclosure of all material facts since in an application for an injunction, it must be made with utmost good faith.

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