Syed Ahmad Helmy JC:

The plaintiff herein who is the husband of the 1st defendant filed an application in encl. 4 seeking the following principal reliefs, the English translation of which reads as follows:

1. A declaration that the four minor children, cited as the second, third, fourth and fifth defendants is and was at all material times of the Hindu faith.

2. A declaration that the pronouncement by the 9th defendant that the second, third, fourth and fifth defendants have been converted to the religion of Islam is invalid void and contrary to law.

3. A declaration that the orders made by the 7th defendant dated 22 April 2003 to the extent of its applicability to the plaintiff, the second, third, fourth and fifth defendant is invalid and void and does not bind the second, third, fourth and fifth defendants.

4. Injunction restraining the 7th defendant and/or the first defendant from continuing with the proceeding in Mahkamah Tinggi Syariah Johor Bahru. Kes Mal Bil. 01.100.099.41 Tahun 2003 and execution of the earlier orders made in the proceedings against the second, third, fourth and fifth defendants.

The plaintiff also by encl. 3 applied by way of summons-in-chambers for an injunction restraining the first defendant and/or 7th defendant and/or the 8th defendant in person or through their agent from serving and/or executing the order of the 7th defendant dated 22 April 2003 against the plaintiff and/or the second, third, fourth and fifth defendant until the final disposal of the action herein.

From the prayers aforesaid the essence of the subject matter of plaintiff's application is the challenge against the order of the Johor Syariah High Court dated 22 April 2003 in Kes Mal Bil. 01.100.099.41 of 2003 and the reliefs as prayed for is for an interlocutory injunction to restrain execution of the order of the Syariah High Court aforesaid.

In the face of the challenge made the defendants raised a preliminary objection and as agreed by the parties herein the objection relates to the question of the jurisdictional conundrum of the High Court to adjudicate on the subject matter and reliefs prayed for.

The basis of the preliminary objection is undoubtedly founded on art. 121(1A) of the Federal Constitution which was an amendment made vide Act A704/88 which came into effect on 10 August 1988. Article 121(1A) stipulates to the effect that the High Court shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts.

With the introduction of art. 121(1A) it is settled law that the Civil Courts have no jurisdiction over matters falling within the jurisdiction of the Syariah Court as established by a plethora of cases.

As was aptly stated by Hashim Yeop A Sani CJ (Malaya) in Dalip Kaur v. Pegawai Polis Daerah, Balai Polis Daerah, Bukit Mertajam & Anor [1991] 3 CLJ 2768 [1991] 3 CLJ 2768; [1991] 1 CLJ (Rep) 77:

The new cl. 1A of Article 121 of the Constitution effective from 10th June 1988 has taken away the jurisdiction of the civil courts in matters within the jurisdiction of the Syariah Courts.

The intention and objective behind the introduction of art. 121(1A) was neatly summed up by Harun Hashim SCJ in Mohamed Habibullah bin Mahmood v. Faridah bte Dato' Talib [1993] 1 CLJ 264; [1992] 2 MLJ 793 at p. 804 para A:

What art. 121(1A) has done is to grant exclusive jurisdiction to the Syariah Courts in the administration of such Islamic Laws. In other words, art. 121(1A) is a provision to prevent conflicting jurisdiction between the civil courts and the Syariah Courts.

The plaintiff in opposing the preliminary objection on the jurisdictional issue of this court advanced very forceful arguments as to why the civil court is the appropriate forum to adjudicate on the subject matter and reliefs prayed for by the plaintiffs. It is the submission of learned counsel for the plaintiff that art. 121(1A) has no application against the plaintiff who is not a person of the Islamic faith as the combined pro