Conversion dispute

The Star Online > Lifefocus

Monday January 16, 2006



Conversion dispute

When a person in a non-Muslim marriage converts to Islam, complex issues arise due to the dual Family Law systems such as in M. Moorthy's case recently. LOH FOON FONG reports on other related issues highlighted at a law conference recently.

S. SHAMALA and her husband Dr C.M. Jeyaganesh were Hindus when they married in 1998. In 2002, Dr Jeyaganesh converted to Islam, and did the same for his two children (aged four and two then) without informing his wife. Shamala went to court and applied for custody of the two children. She also sought to nullify the conversion.


Widow Kaliammal Sinnasamy, whose husband M. Moorthy supposedly converted to Islam last year.
Both parents were awarded joint custody, and the children got to live with their mother. But Shamala did not succeed in nullifying the conversion.

The issue received nationwide attention. Sisters in Islam criticised the Federal Court for dodging responsibility on the issue of freedom of religion.

Both courts can claim jurisdiction on the issue, the non-governmental organisation pointed out. But it noted a growing trend by civil courts to defer to the syariah courts and avoid the responsibility of exercising their jurisdiction in such cases and assist aggrieved parties on their religious rights under Article 11 of the Federal Constitution.

In an inaugural law conference Overview of Recent Development in Malaysian Law recently organised by the Law Faculty of Universiti Malaya and LexisNexis, adjunct professor Mehrun Siraj from the university's Law Faculty said: "If the non-converting parent objects to the conversion of his/her children by the converting spouse, the former has nowhere to turn to for recourse because the Syariah Court jurisdiction is only for Muslims and the grouses of non-Muslims cannot be heard there. This deprives the non-Muslim of a remedy over this matter."

"If the Syariah Court does not provide the remedy, the civil court must assume jurisdiction," said Mehrun, who spoke on Conversion to Islam and its effect on a non-Muslim marriage.

Due to the dual system of Family Law in Malaysia, the conversion to Islam by one party in a non-Muslim marriage creates several problems that have yet to be resolved in a satisfactory manner, she said.

A parent who converts to Islam may wish to convert his/her children but it will have to depend on the circumstances. These included the age and maturity of the children, their views on the matter and who has custody of them. It also includes the amendment to the Guardianship of Infants Act (GIA), and the consent of the other parent. Currently, there is no provision on this matter, she said.

There was an attempt by the state of Selangor to legislate automatic conversion of minors when one parent converts. The move resulted in a lot of objections. It went against the Federal Constitution which provided that the religion of a child below the age of 18 years would be determined by his/her guardian. When the Enactment was enforced in 1991, the controversial bit was left open, said Mehrun.

"The fears were allayed when the Administrative of Islamic Law (Conversion of Minors) Rules 1991 was passed and provided that a minor must obtain the written consent of the guardian before he/she can convert to Islam," she said.

The first reported case in which the conversion of a minor was successfully challenged was that of Chang Ah Mee in the High Court of Borneo in Kota Kinabalu. The court awarded the plaintiff mother who sought that her daughter's conversion to Islam was null and void. The defendants had insisted that the case fell within the ambit of the syariah, not civil court.

The judge dismissed the preliminary objection and held that he had the jurisdiction because the issue had nothing to do with religion but with the interpretation of the provisions of Sabah's Administration of Islamic Law Enactment 1992, particularly section 68, where the consent of "the parents or guardian" is required for person below age 18.

The judge held that "parents" was in the plural and also, after the amendment of the Guardianship of Infants Ordinance of Sabah in 1999, the father and mother had equal rights over the child. "Guardian" though referred to the singular, must mean both the mother and the father, said Mehrun.

However, in Nedunchelian Uthiradam v Nurshafiqah Mah Singai Annal & Ors, the plaintiff father failed to get the High Court order to declare invalid the conversion of his four minor children by his wife. Likewise with Shamala, the judge held that her two infant children had been issued with temporary certificates of conversion and had no intention of questioning it, said Mehrun.

In an interview, Sivarasa Rasiah, human rights lawyer for Shamala, said that the religion of the children should be based on the religion of the parties when they were married if parents cannot come to an agreement.

"For me, the just and fair approach is this: I would ask the husband and wife: "When you marry, what did you marry as? And of what religion were the children brought up as? If any husband or wife wants to change the status quo, they must do it only with the consent of the other party. If the other party does not agree, it goes back to status quo, until both agree that the child is Muslim, then there is no dispute," he said.

"The Federal Constitution is the supreme law. Whatever syariah law provides, it is subjected to the Federal Constitution which provides for both parents to have a say in the religion of the child," he said.

Shamala's case is pending hearing in the Court of Appeal.





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