IN THE FEDERAL COURT OF MALAYSIA AT PUTRAJAYA
(CIVIL APPEALS NO. 02-19-2007(W), NO. 02-20-2007(W), NO. 02-21-2007(W) )
BETWEEN
SUBASHINI A/P RAJASINGAM … APPELLANT
AND
SARAVANAN A/L THANGATHORAY … RESPONDENT
APPEALS FROM COURT OF APPEAL MALAYSIA
(CIVIL APPEALS NO. W-02-955-2006, W-02-1041-2006)
CORAM
NIK HASHIM BIN NIK AB. RAHMAN, FCJ
ABDUL AZIZ BIN MOHAMAD, FCJ
AZMEL BIN HAJI MAAMOR, FCJ
27 December 2007
Judgment of Nik Hashim Nik Ab. Rahman, FCJ
Background
1. There were three appeals (02-19-2007(W), 02-20-
2007(W) and 02-21-2007(W)) before us and with the
agreements of the parties, they were heard together.
2. The parties to the three appeals were originally Hindus
husband and wife; they were married pursuant to a civil
ceremony of marriage that was registered on 26 July 2001
pursuant to the Law Reform (Marriage and Divorce) Act
1976 (the 1976 Act). There were two children of the
marriage, both boys: Dharvin Joshua aged 4 and Sharvin
aged 2. The husband converted himself and the elder son to
Islam on 18 May 2006. Later, the wife received a notice
dated 14 July 2006 from the Registrar of the Syariah High
Court Kuala Lumpur informing her that her husband had
commenced proceedings in the Syariah High Court for the
dissolution of the marriage and custody of the elder son. He
filed the application in the Syariah High Court on 23 May
3
2006. An interim custody order in respect of the converted
son was issued to the husband by the Syariah High Court.
On 4 August 2006, which was 2 months and 18 days after the
husband’s conversion and knowing that the husband had
taken proceedings in the Syariah High Court, the wife filed a
petition for the dissolution of the marriage pursuant to section
51 of the 1976 Act coupled with an application for custody
and ancillary reliefs in the High Court. The wife did not
object to the husband’s conversion to Islam.
3. Meanwhile, the wife applied for and obtained an exparte
injunction against the husband. The husband then filed
an application to set aside the said injunction. Pursuant to an
inter-partes hearing, the High Court dismissed the wife’s
application and allowed the husband’s application and set
aside the said injunction. However, the High Court granted
an interim Erinford injunction pending an appeal to the Court
of Appeal. (See (2007) 7 CLJ 584).
4
4. On 13 March 2007 the Court of Appeal by a majority
upheld the High Court decision to dismiss the application by
the wife for an injunction but allowed the husband’s appeal
against the grant of the Erinford injunction by the High
Court. Thus, there are two appeals (No. 02-19-2007(W), No.
02-21-2007(W)) by the wife against these decisions of the
Court of Appeal (see (2007) 2 CLJ 451).
5. On 30 March 2007 on a motion by the wife, the same
panel of the Court of Appeal by a majority allowed an
Erinford injunction pending her application for leave to
appeal to the Federal Court against the decision of the Court
of Appeal. This decision is the subject matter of the
husband’s appeal before this Court in Civil Appeal No. 02-
20-2007(W). (See (2007) 3 CLJ 209).
The Questions
6. On 17 May 2007 the Federal Court unanimously
granted leave to appeal on the three appeals and continued
the Erinford injunction until the disposal of these appeals.
5
The main questions for determination by the Federal Court
are as follows :
“(1) Whether in an application for an interim injunction
a Court can make a final determination on issues
of law, in particular, where it refers to a question
of jurisdiction, as opposed to a consideration of
only the existence of a serious issue of law to be
determined?
(2) If the answer to question number 1 is in the
affirmative, then :
(2.1) In situations where one spouse in a marriage
solemnized under the Law Reform
(Marriage and Divorce) Act 1976 (a “Law
Reform Marriage”) converts to Islam and
the other does not, does the High Court or
the Syariah Court have exclusive
jurisdiction to grant decrees of divorce of
such Law Reform Marriages and to make all
other orders in respect of the division of
matrimonial assets, the maintenance of
spouse and of the children of the Law
Reform Marriage (“children of the Law
Reform Marriage”), the custody, care and
control of the children of the Law Reform
Marriage and all other matters incidental
thereto?
6
(2.2) Further to question (2.1) :
(2.2.1) are provisions such as
s46(2)(b)(i) of the
Administration of Islamic Law
(Federal Territories) Act 1993
(the “1993 Act”) intended only
to address marriages
solemnized under the relevant
State Islamic legislation
(“Islamic marriages”);
(2.2.2) as such, is the jurisdiction
and/or power vested by such
provisions in the syariah courts
limited to the granting of
decrees of divorce and orders
consequential to such decrees
pertaining to inter alia
maintenance, custody, and child
support in respect of Islamic
marriages?
(2.3) In the event, the answers to questions 2.2.1
and 2.2.2 are in the affirmative, is it an
abuse of process for the converted spouse to
file custody proceedings in the syariah
courts in respect of the children of the Law
Reform Marriage?
7
(2.4) Is it an abuse of process for a spouse of a
Law Reform Marriage to unilaterally
convert the religion of a minor child of the
Law Reform Marriage without the consent
of the other parent.
(2.5.1) Is the High Court empowered to grant
interlocutory relief aimed at
preserving status quo in the course of
disposing a petition under section 51
of the Law Reform (Marriage and
Divorce) Act 1976?
(2.5.2) If so, can the High Court grant interim
injunctions to prevent abuses of
process having the effect of
undermining the petition filed under
section 51 of the Law Reform
(Marriage and Divorce) Act 1976?
(2.6) Does Article 121(1A) of the Federal
Constitution prevent the High Court from
granting such interim injunctions where the
abuse of process is effected through the
jurisdictionally incompetent and deficient
(2.6.1) filing or proceedings in the
syariah courts and/or
(2.6.2) unilateral conversion of a minor
child of the Law Reform
8
Marriage by the converted
spouse?
(2.7) Can provisions such as section 53 of the
1993 Act be read as including within their
ambit persons not professing the religion of
Islam?”
Questions on Erinford injunction
7. Respecting the order of setting aside of the Erinford
injunction by a majority decision of the Court of Appeal on
13 March 2007, and the order of granting the same on 30
March 2007 by a majority decision of the Court of Appeal
pending an application for leave to appeal to the Federal
Court, the Federal Court granted leave to appeal on two
questions :
(1) Where a court disallows an application for
an interim injunction on the basis of a want
of jurisdiction and the said decision is
appealed, is the court disentitled from
granting an Erinford type of injunction?
(2) Does the Federal Court have exclusive
jurisdiction to grant an Erinford type of
injunction pending the hearing and disposal
of an application for leave to appeal to the
Federal Court or is it a concurrent
9
jurisdiction exercisable by the Court of
Appeal in the first instance?
Main Question No. (1)
8. The question of whether a court, in an application for
an interim injunction, should decide the issue of jurisdiction
as opposed to a decision of only the existence of a serious
issue, depends on the facts of each case. Where the evidence
upon which challenge to jurisdiction is made is of such a
quality that renders a trial unnecessary, a court may proceed
to make findings based upon that evidence, if not, the court
may order the matter to be tried (Dato’ Param
Cumaraswamy v MBF Capital Bhd & Anor (1997) 3 MLJ
824 CA). It must be noted that lack of jurisdiction has the
consequence that the court has no right to enter upon the
enquiry as to whether there exists a state of facts which
would entitle the court to grant to the applicant the relief
sought. (See Rediffusion (Hong Kong) Ltd v Attorney
General of Hong Kong (PC) (1970) AC 1136).
10
9. In the present case, the wife had obtained an ex-parte
injunction. The husband applied to set aside the ex-parte
injunction on the ground that the court was not seized with
jurisdiction in light of Article 121 (1A) of the Federal
Constitution (the FC). The wife contends that the Article is
not applicable. In such a conflict, the High Court and the
Court of Appeal were correct in dealing with the issue of
jurisdiction as a threshold issue and the parties had agreed to
that approach. As such, my answer to the question is in the
affirmative.
Main Questions No. (2) – (2.7)
10. Section 51 of the 1976 Act provides for dissolution of
marriage on the ground of conversion to Islam. However it
must be noted that it only provides a ground for the other
party who has not converted to petition for divorce. The
section states :
(1) Where one party to a marriage has converted
to Islam, the other party who has not so
converted may petition for divorce :
11
Provided that no petition under this section
shall be presented before the expiration of
the period of three months from the dateof conversion
.
(2) The court upon dissolving the marriage may
make provision for the wife or husband, and
for the support, care and custody of the
children of the marriage, if any, and may,
attach any conditions to the decree of the
dissolution as it thinks fit.
(emphasis added)
11. It was contended by learned counsel for the wife that
the word ‘shall’ appearing in the proviso is directory. With
respect, I do not agree. The proviso to section 51(1) of the
1976 Act clearly reflects the imperative requirement which
must be complied with before a petition for divorce can be
made. By its terms, 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. The 3
months period is incorporated into the proviso probably to
provide for the ‘iddah’ period. Be that as it may, it is the
duty of the court to give effect to the words used by the
legislature. Thus, in my judgment, unless the proviso is
12
complied with, the High Court would not have the
jurisdiction to entertain the wife’s petition.
12. In the present case, it is clear from the evidence that the
husband converted himself and the elder son to Islam on 18
May 2006. The certificates of conversion to Islam issued to
them under section 112 of the Administration of the Religion
of Islam (State of Selangor) Enactment 2003 conclusively
proved the fact that their conversion took place on 18 May
2006. Thus, I respectfully agree with Hassan Lah JCA that
the wife’s petition was filed in contravention of the
requirement under the proviso to section 51(1) of the 1976
Act in that it was filed 2 months and 18 days short of 3
months after the husband’s conversion to Islam. It follows
therefore that the petition was premature and invalid and the
summons-in-chambers, ex-parte and inter parte based on the
petition which were filed therein were also invalid.
13. Learned counsel for the wife also submitted that
notwithstanding the finding that the petition for divorce was
13
invalid for failure to comply with the proviso to section 51(1)
of the 1976 Act, the wife is still entitled to proceed with the
application regarding custody pursuant to section 88 and
ancillary reliefs under sections 77 and 93 of the 1976 Act. In
my view, the wife is entitled to proceed with the rest of the
application but it would be most appropriate if she files her
petition for divorce afresh under section 51 coupled with an
application for ancillary reliefs as the court would grant the
reliefs under section 51(2) upon dissolution of the marriage.
14. On finding that the wife’s petition for divorce was
invalid, is it still necessary for this Court to answer the
questions posed? I would answer the questions nevertheless
as the questions are questions of importance upon which a
decision of the Federal Court would be to public advantage.
15. Assuming that the wife’s petition was properly before
the Court i.e. it was filed 3 months after the conversion, then
my view is that the High Court would have the jurisdiction to
hear and determine the petition for divorce and the
14
application for ancillary reliefs under section 51 of the 1976
Act even though the husband had converted to Islam before
her petition for divorce had been filed in the High Court and
that he had already commenced the proceedings in the
Syariah Court. In Tan Sung Mooi (f) v Too Miew Kim(1994) 2 AMR 35, 1799 the then Supreme Court (Abdul
Hamid, LP, Gunn Chit Tuan, CJ (Malaya), Edgar Joseph Jr,
Mohd Eusoff Chin, Mohamed Dzaiddin, SCJJJ) at p1807
said:
“Under s 51, where one party to a marriage has
converted to Islam, the other party who has not so
converted may petition for divorce and the court
upon dissolving the marriage may make provision
for the wife or husband and for the support, care
and custody of the children of the marriage and
may attach any condition to the decree of
dissolution. The legislature, by enacting s 51,
clearly envisaged a situation that where one party
to non-Muslim marriage converted to Islam, the
other party who has not converted may petition to
the High Court for divorce and seek ancillary
reliefs. Further, it would seem to us that
Parliament, in enacting sub-section 51(2), must
have had in mind to give protection to non-
Muslim spouses and children of the marriage
against a Muslim convert.”
15
16. It must be noted also that the High Court had exercised
its civil jurisdiction in this matter under section 24(a) of the
Courts of Judicature Act 1964 which states that the
jurisdiction of the High Court shall include the jurisdiction
under any written law relating to divorce and matrimonial
causes. The phrase “any written law relating to divorce and
matrimonial causes” must include the 1976 Act.
17. On the complaint by learned counsel for the husband
that the provision under section 51(1) of the 1976 Act is
unjust and ultra vires Article 8(1) of the FC and therefore
void for it only allows the unconverted non-Muslim spouse to
become the petitioner in a divorce petition and an applicant
in ancillary relief applications, whereas the converted
Muslim spouse under the provision is compelled to remain as
a respondent in such petition or application, I am of the view
that section 51(1) does not violate Article 8 of the FC and
therefore is not void as complained. The classification
created by section 51(1) is a reasonable classification as the
16
persons in the non-converting category are treated equally as
are persons in the converting category (see Danaharta UrusSdn Bhd v Kekatong Sdn Bhd (2004) 1 CLJ 701).
18. I agree with learned counsel for the wife that the status
of the parties at the time of the marriage is the material
consideration for the purpose of determining the question of
jurisdiction. In Kamariah bte Ali dan lain-lain v KerajaanNegeri Kelantan dan Satu lagi (2005) 1 MLJ 197, the
appellants claimed by a statutory declaration that they were
no longer Muslims in August 1998. They were sentenced to
imprisonment on 5 October 2000 for failure to abide by the
order of the Syariah Court of Appeal relating to the offence
under Undang-Undang Majlis Agama Islam dan Adat Istiadat
Melayu Kelantan which they had committed before August
1998. The appellants contended that as they were no longer
Muslims, the Syariah Court had no jurisdiction over them.
Therefore, the issue was whether the appellants must be
Muslims when they were sentenced in October 2000. In
17
resolving the issue, the Federal Court (Ahmad Fairuz CJ,
Mohd Noor Ahmad, P.S.Gill, Rahmah Hussain FCJJ and
Richard Malanjum CJA (as he then was) ) concluded that
notwithstanding their claim to no longer being Muslims, the
material time for determining the question of jurisdiction was
the time when the offence were committed and at that time
the appellants were Muslims. In concluding that the Syariah
Court had the jurisdiction, the Federal Court observed :
“Oleh yang demikian, persoalan yang timbul ialah
sama ada perkara-perkara perayu-perayu mestilah
menganut agama Islam ketika hukuman-hukuman
dijatuhi ke atas mereka dalam bulan Oktober 2000
itu adalah relevan atau penentu (crucial). Perlu
diingat bahawa kesalahan terhadap mana perayuperayu
dihukum adalah dilakukan oleh perayuperayu
sebelum mereka membuat akuan berkanun
mengisytiharkan mereka keluar dari agama
Islam.”
The Federal Court then continued :
“…. Mahkamah berpendapat bahawa masa yang
material untuk menentukan sama ada perayuperayu
adalah orang yang menganut agama Islam
ialah masa ketika mana perayu-perayu melakukan
kesalahan …. Jika pendekatan maksud tidak
diambil, orang-orang Islam yang menghadapi
tuduhan di Mahkamah Syariah boleh sewenangwenangnya
menimbulkan pembelaan yang
18
mereka bukan lagi seorang yang menganut agama
Islam dan dengan demikian tidak tertakluk kepada
bidang kuasa Mahkamah Syariah. Keadaan
sebegini akan menjejaskan pentadbiran Undang-
Undang Islam di Malaysia dan mungkin juga
undang-undang agama lain.”
19. Thus, by analogy, the above principle applies to our
case. The husband could not shield himself behind the
freedom of religion clause under Article 11(1) of the FC to
avoid his antecedent obligations under the 1976 Act on the
ground that the civil court has no jurisdiction over him. It
must be noted that both the husband and wife were Hindus at
the time of their marriage. Therefore, the status of the
husband and wife at the time of registering their marriage
was of material importance, otherwise the husband’s
conversion would cause injustice to the unconverted wife
including the children. A non-Muslim marriage does not
automatically dissolve upon one of the parties converted to
Islam. Thus, by contracting the civil marriage, the husband
and wife were bound by the 1976 Act in respect to divorce
and custody of the children of the marriage, and thus, the
19
civil court continues to have jurisdiction over him,
notwithstanding his conversion to Islam.
20. But in the present case, the husband had converted to
Islam and had filed the proceedings in the Syariah High
Court for the dissolution of the marriage and the custody of
the converted son. By embracing Islam, the husband and the
son became subject to Muslim personal and religious laws
and it is not an abuse of process if he, being a Muslim, seeks
remedies in the Syariah High Court as it is his right to do so.
21. Section 46(2) of the Islamic Family Law (Federal
Territories) Act 1984 (the 1984 Act) states :
“The conversion to Islam by either party to a non-
Muslim marriage shall not by itself operate to
dissolve the marriage unless and until so
confirmed by the court.”
The act of confirmation of the dissolution of the
marriage under the section is not a mere administrative
act as understood by the Court of Appeal, but a full
judicial proceeding before the Syariah High Court as it
20
happened in Dalam Perkara Permohonan
Perisytiharan Pembubaran Perkahwinan
Disebabkan Pertukaran Agama – Permohonan Siti
Aisyah Janthip Aisam, JHXXI/11 (1427H) 262,
where the Syariah High Court Kuala Terengganu after
evaluating the evidence and applying the Hukum
Syarak, allowed the wife’s application to dissolve her
Buddhist civil marriage to the husband pursuant to
section 43(2) Enakmen Undang-Undang Pentadbiran
Keluarga Islam (Negeri Terengganu) 1985, which is
equivalent to section 46(2) of the 1984 Act. It appears
from the case that the husband did not contest the
application and neither a decree of divorce granted
under section 51 of the 1976 Act by the High Court was
ever produced in the Syariah Court. To my mind, the
dissolution order of the civil marriage by the Syariah
High Court by virtue of conversion would have no legal
effect in the High Court other than as evidence of the
fact of the dissolution of the marriage under the Islamic
21
law in accordance with Hukum Syarak. Thus, the non-
Muslim marriage between the husband and wife
remains intact and continues to subsist until the High
Court dissolves it pursuant to a petition for divorce by
the unconverted spouse under section 51(1) of the 1976
Act.
22. In the present case, there is no impediment for the
converted spouse, i.e. the husband, to appear in the divorce
proceeding in the High Court albeit as a respondent, as the
jurisdiction of the High Court extends to him unlike the
Syariah High Court which restricts its jurisdiction to persons
professing the religion of Islam only, for example under
section 46(2)(b) of the Administration of Islamic Law
(Federal Territories) Act 1993 (the 1993 Act) where in its
civil jurisdiction relating to (i) marriage and (iii) custody, the
Syariah High Court shall have the jurisdiction to hear and
determine the action in which all the parties are Muslims.
Thus, the contentions that the wife could submit to the
22
jurisdiction of the Syariah Court and have recourse to section
53 of the 1993 Act are not quite correct as the 1993 Act
limits its jurisdiction to Muslims only. The wife, being a
non-Muslim, has no locus in the Syariah Court.
23. Both civil and Syariah courts are creatures of statutes
such as the FC, the Acts of Parliament and the State
Enactments. These two courts are administered separately
and they are independent of each other. Although the
Syariah courts are state courts they are not lower in status
than the civil courts. I would say, they are of equal standing
under the FC. This recognition of the Syariah courts was
largely due to Article 121 (1A) of the FC which excludes the
jurisdiction of the civil courts on any matter within the
jurisdiction of the Syariah courts. The Article, which came
into force from 10 June 1988, states :
“The courts referred to in Clause (1) shall have no
jurisdiction in respect of any matter within the
jurisdiction of the Syariah courts.”
23
24. In Mohamed Habibullah bin Mahmood v Faridahbte Dato’ Talib (1992) 2 MLJ 793, the Supreme Court ruled
that Article 121 (1A) of the FC makes clear distinction
between the jurisdiction of the Syariah and the civil courts by
holding that :
“(1) The intention of Parliament by Article 121
(1A) of the Federal Constitution is to take
away the jurisdiction of the High Courts in
respect of any matter within the jurisdiction
of the Syariah Court.”
Therefore, with the separation of the jurisdictions, the
respective court cannot interfere with each other’s
jurisdiction. In Sukma Darmawan Sasmitaat Madja v
Ketua Pengarah Penjara, Malaysia & Anor (1999) 2 MLJ
241 the Federal Court reminded at p245 :
“We agree with the views expressed by the Court
of Appeal on the necessity of cl(1A) being
introduced into art 121 of the Federal
Constitution. It was to stop the practice of
aggrieved parties coming to the High Court to get
the High Court to review decisions made by
Syariah Courts. Decisions of Syariah Court
should rightly be reviewed by their own appellate
courts. They have their own court procedure
24
where decisions of a court of a Kathi or Kathi
Besar are appealable to their Court of Appeal.”
See also Nedunchelian V Uthiradam v Norshafiqah MahSingai Annal & Ors (2005) 2 CLJ 306 where I agree with
Syed Ahmad Helmy JC (as he then was) when he said at
p315 :
“Cases authorities have repeatedly stressed and
established that the High Court in its civil
jurisdiction cannot challenge and or dispute
and/or vary, strike out or declare or injunct the
execution of an order of the Syariah Court – see
Sukma Darmawan Sasmitaat Madja lwn. Ketua
Pengarah Penjara Malaysia (1999) 1 CLJ 481;
Kamariah bt Ali v Kerajaan Negeri Kelantan,
Malaysia dan Yang Lain (dan 3 Rayuan Yang
Lain) (2002) 3 CLJ 766.”
Thus, the civil court cannot be moved to injunct a validly
obtained order of a Syariah court of competent jurisdiction.
The injunction obtained by the wife, although addressed to
the husband, was in effect a stay of proceedings of the
husband’s applications in the Syariah High Court and this
amounts to an interference by the High Court of the
husband’s exercise of his right as a Muslim to pursue his
25
remedies in the Syariah High Court. Obviously, the law does
not permit such an interference.
Conversion
25. The wife complained that the husband had no right to
convert either child of the marriage to Islam without the
consent of the wife. She said the choice of religion is a right
vested in both parents by virtues of Articles 12(4) and 8 of
the FC and section 5 of the Guardianship of Infants Act 1961.
26. After a careful study of the authorities, I am of the
opinion that the complaint is misconceived. Either husband
or wife has the right to convert a child of the marriage to
Islam. The word ‘parent’ in Article 12(4) of the FC, which
states that the religion of a person under the age of 18 years
shall be decided by his parent or guardian, means a single
parent. In Teoh Eng Huat v The Kadhi, Pasir Mas,
Kelantan & Anor (1990) 2 CLJ 11, Abdul Hamid Omar LP,
delivering the judgment of the Supreme Court, said at p14 :
26
“In all the circumstances, we are of the view that
in the wider interests of the nation, no infant shall
have the automatic right to receive instructions
relating to any other religion than his own without
the permission of the parent or guardian.”
Further down, His Lordship continued :
“We would observe that the appellant (the father)
would have been entitled to the declaration he had
asked for. However, we decline to make such
declaration as the subject is no longer an infant.”
(emphasis added)
Therefore, Article 12(4) must not be read as entrenching the
right to choice of religion in both parents. That being so,
Article 8 is not violated as the right for the parent to convert
the child to Islam applies in a situation where the converting
spouse is the wife as in Nedunchelian, supra, and as such,
the argument that both parents are vested with the equal right
to choose is misplaced. Hence the conversion of the elder
son to Islam by the husband albeit under the Selangor
Enactment did not violate the FC. Also reliance cannot be
placed on section 5 of the Guardianship of Infants Act 1961
which provides for equality of parental rights since section
27
1(3) of the same Act has prohibited the application of the Act
to such person like the husband who is now a Muslim. (See
Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah &
Anor (2004) 2 CLJ 416).
Erinford injunction
27. There were two appeals in respect of Erinford
injunction : one was against the order of setting aside by a
majority decision of the Court of Appeal and the other was
against the order of granting the same by a majority decision
of the Court of Appeal pending the wife’s application for
leave to appeal to the Federal Court.
28. The learned judicial commissioner in granting the
Erinford injunction was of the view that on the balance of
convenience it was desirable that the status quo of the parties
be maintained pending appeal to the Court of Appeal to
prevent the appeal from being rendered nugatory. In my
judgment, the High Court was right. The High Court was
entitled to grant an Erinford injunction even though it had
28
held that it had no jurisdiction to grant the substantive interim
injunction. In Erinford Properties Ltd v Cheshire CountyCouncil (1974) 2 All ER 448 Megarry J said at p454 :
“….. where the application is for an injunction
pending an appeal, the question is whether the
judgment that has been given is one on which the
successful party ought to be free to act despite the
pendency of an appeal. One of the important
factors in making such a decision, of course, is the
possibility that the judgment may be reversed or
varied. Judges must decide cases even if they are
hesitant in their conclusions; and at the other
extreme a judge may be very clear in his
conclusions and yet on appeal be held to be
wrong. No human being is infallible, and for
none are there more public and authoritative
explanations of their errors than for judges. A
judge who feels no doubt in dismissing a claim to
an interlocutory injunction may, perfectly
consistently with his decision, recognize that his
decision might be reversed, and that the
comparative effects of granting or refusing an
injunction pending an appeal are such that it
would be right to preserve the status quo pending
the appeal ….”
So, in the light of the above, it is clear that even an objection
is raised as to the jurisdiction of the Court this does not
deprive the Court of its jurisdiction to preserve the status quo
pending the appeal (see Tun Datu Haji Mustapha bin Datu
29
Harun v Tun Datuk Haji Mohamed Adnan Robert, Yang
Di-Pertua Negeri Sabah & Datuk Joseph Pairin Kitingan
(1986) 2 MLJ 39).
See also Celcom (Malaysia) Bhd v Inmiss CommunicationSdn Bhd (2003) 3 MLJ 178
where the above principle was
applied in granting an Erinford injunction to restrain the
defendant from taking further steps in a winding up petition
pending hearing of the plaintiff’s appeal to the Court of
Appeal against the decision made by the High Court
dismissing the plaintiff’s application for an injunction to
restrain the defendant from filing a winding up petition
against the plaintiff.
Hence, the majority decision of the Court of Appeal setting
aside the Erinford injunction was erroneous and to that extent
the appeal must be allowed. The order of the Court of
Appeal is therefore set aside and the order of the High Court
granting the Erinford injunction is restored.
29. With regard to the granting of the Erinford injunction
pending the wife’s application for leave to appeal to the
30
Federal Court, I agree with the majority decision of the Court
of Appeal that it had the jurisdiction to grant the wife’s
application. The issue concerning the jurisdictional point had
been conclusively determined against the husband by the
majority decision of the Court of Appeal in Chong Wooi
Leong & Ors v Lebbey Sdn Bhd (No.2) (1998) 2 MLJ 661
where Abu Mansor JCA (later FCJ) considered it ‘trite law
that a court which has given judgment certainly has the
power to order stay’. 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. Certainly, the Court of Appeal has the jurisdiction to
grant such an injunction pending an application for leave to
appeal to the Federal Court. Thus, the majority decision of
the Court of Appeal on 30 March 2007 applied the correct
principles of law when it allowed the Erinford injunction
pending the hearing and disposal of the wife’s application for
leave to appeal to the Federal Court.
31
30. The Federal Court too has the jurisdiction under section
80(1) of the Courts of Judicature Act 1964 to grant an
Erinford injunction pending an application for leave to appeal
to the Federal Court.
31. Accordingly, my answers to the main questions posed
are as follows :
(1) Yes.
(2.1) Yes, but subject to the right of the converted
spouse under the Islamic law.
(2.2.1) Yes.
(2.2.2) Yes.
(2.3) No.
(2.4) No.
(2.5.1) Yes.
(2.5.2) No.
(2.6.1) Yes – Filing the proceedings in the Syariah
Court is not an abuse of process.
(2.6.2) Yes – unilateral conversion of a minor child
of the Law Reform Marriage by the
converted spouse is not an abuse of process.
(2.7) No.
32. With regard to the questions on Erinford injunction my
answers to the questions posed are as follows :
(1) No.
(2) Concurrent jurisdiction exercisable by the Court
of Appeal.
32
Conclusion
In the circumstances, I make the following orders :
1. The wife’s appeal in the Federal Court Civil Appeal
No. 02-19-2007(W) (the dismissal of the inter partes
injunction) is dismissed with costs here and below and
the deposit be paid to the husband to account of his
taxed costs. The majority decision of the Court of
Appeal Civil Appeal No. W-02-955-2006 is upheld.
2. The wife’s appeal in the Federal Court Civil Appeal
No. 02-21-2007(W) (the setting aside of the Erinford
injunction) is allowed with costs here and below and
the deposit be returned to the wife. The majority
decision of the Court of Appeal No. W-02-955-2006 is
reversed.
3. The husband’s appeal in the Federal Court Civil Appeal
No. 02-20-2007(W) (the granting of the Erinford
injunction pending appeal to the Federal Court) is
dismissed with costs here and below and the deposit be
paid to the wife to account of her taxed costs. The
majority decision of the Court of Appeal Civil Appeal
No. W-02-1041-2006 is upheld.
27 December 2007
(Dato’ Bentara Istana Dato’ Nik Hashim bin Nik Ab. Rahman)
Judge
Federal Court
Malaysia
33
Counsel:
For the Appellant : Malik Imtiaz Sarwar,
(Civil Appeals Haris Mohd Ibrahim
No.02-19-2007, K. Shanmuga
02-21-2007) Fahri Azzat
Wee Thiam Seng
Solicitors : Kanesalingam & Co.
For the Respondent : Mohamed Haniff Khatri Abdulla,
Zainul Rijal Abu Bakar,
Abdul Rahim Sinwan
Mohd Tajuddin Abdul Razak
Abdul Halim bin Bahari
Solicitors : Zainul Rijal Talha & Amir
For the Appellant : Mohamed Haniff Khatri Abdulla,
(Civil Appeal Zainul Rijal Abu Bakar,
No.02-20-2007) Abdul Rahim Sinwan
Mohd Tajuddin Abdul Razak
Abdul Halim bin Bahari
Solicitors : Zainul Rijal Talha & Amir
For the Respondent : Malik Imtiaz Sarwar
Haris Mohd Ibrahim
K. Shanmuga
Fahri Azzat
Wee Thiam Seng
Solicitors : Kanesalingam & Co.