Nik Hashim FCJ (majority):

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 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 s 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 ex parte 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 Subashini Rajasingam v. Saravanan Thangathoray, [2007] 2 MLJ 798).

[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 Saravanan Thangathoray v. Subshini Rajasingam & Another Appeal, [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 Subashini Rajasingam v. Saravanan Thangathoray (No 2), [2007] 4 MLJ 97).

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. 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 a