JUDGMENTBY: WAN ADNAN J

By this application, the plaintiff is asking for the following declaration:

(1) That the conversion of the plaintiffs wife Olwen Patricia Pedley

nee Newman [commat] Mahani Newman bte Abdullah to Islam on 12

January 1987 has not determined his marriage to her according to

Catholic rites on 12 February 1966.

(2) That the continued living together of the plaintiff and his wife,

Olwen Patricia Pedley nee Newman [commat] Mahani Newman bte

Abdullah is lawful.

The plaintiff married one Olwen Patricia Pedley nee Newman at the Cathedral of the Assumption, Farquhar St, Penang on 12 February 1966. Both them were practising Roman Catholics. On 12 January 1987, the said Olwen Patricia Pedley embraced the religion of Islam without the plaintiffs knowledge and consent at the Jabatan Hal Ehwal Ugama, Lebuh Downing, Pulau Pinang and assumed the name of Mahani Newman bte Abdullah.

On 10 April 1987, the Kadi Besar of Negeri Pulau Pinang, Haji Fathil bin Haji Abdullah, wrote to the plaintiff as follows:

Dimaklumkan berhubung dengan perkara yang di atas, bahawa isteri tuan

yang bernama Oliven [commat] Olwen Patricia Newman K/P No 2542313

dulu alamat 4090 Jalan Pantai, Butterworth, Pulau Pinang telah memeluk

ugama Islam pada 12 Januari 1987 bil No Negeri 8/87, Daerah 2/87.

2 Oleh itu tuan adalah dinasihatkan supaya tuan turut sama memeluk

ugama Islam dalam masa lebih kurang 90 hari dari tarikh isteri

tuan memeluk Islam. Jika tidak tuan dianggap terputus hubungan di

antara tuan dengan isteri tuan sebagai suami isteri yang sah

mengikut undang-undang Islam.

At the hearing, counsel for the plaintiff withdrew the application for the second declaration as the wife was no longer living with the plaintiff.

The Supreme Court in the case of Eeswari Visuvalingam v Government of Malaysia [1990] 1 MLJ 86 had stated as follows:

In Farooq Leivers v Adelaide Bridget Mary PLD 1958 (WP) Lahore

431, the plaintiff, a non-Muslim, converted to Islam, asked the

defendant to study the Islamic religion and embrace Islam but she

refused. The plaintiff, realizing that there was no chance of a

reconciliation, divorced the defendant by pronouncing the Islamic

formula of talak. The learned judge there realized that as the

plaintiff had embraced Islam he at once became subject to Muslim

personal and religious laws. But the more difficult question in such

cases was what was the effect of the conversion on other persons who

have some rights vested in them before the conversion. In that case the

learned judge held that:

On the one hand under the Muslim law, a Christian husband, on his

conversion to Islam, is authorized to give talak to his Christian wife

by pronouncing the formula of talak, but on the other hand, the courts

in Pakistan cannot recognize such a talak in view of the provisions of

the Divorce Act 1869 and other existing laws. In such a conflict of the

personal law of the parties to the suit, there does not appear to be

any justification to prefer the personal law of the plaintiff to the

personal law of the respondent.

In our case here, the law applicable to the appellant had always been

her own personal laws, and the civil laws of the country. See also

Che Omar bin Che Som v PP [1988] 2 MLJ 55.

Applying the above principles, the personal laws of the plaintiff and the civil laws of the country are applicable to the plaintiff in respect of the marriage in question.

Section 51(1) of the Law Reform (Marriage and Divorce) Act 1976 provides as follows:

Dissolution on ground of conversion to Islam

(1) Where one party to a marriage has converted to Islam, the other

party who has not so converted may petition for divorce.

It is therefore clear that under the law, a no