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Consent from both parents needed for child conversion: court

  • Federal Court judges set aside the unilateral conversion of Indira Gandhi's three children by her Muslim ex-husband. Photo courtesy: Sin Chew Daily

PUTRAJAYA, Jan 29 (Bernama) -- In a landmark decision, the Federal Court ruled that both the spouses who embraced Islam and the non-converting partner must give their consent for converting a minor child to Islam.

The five-man bench comprising Court of Appeal President Tan Sri Zulkefli Ahmad Makinudin, Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum and Federal Court judges Tan Sri Zainun Ali, Tan Sri Abu Samah Nordin and Tan Sri Ramly Ali set aside the unilateral conversion of kindergarten teacher M. Indira Gandhi's three children by her Muslim convert ex-husband.

Justice Zulkefli who chaired the bench said the decision was unanimous and said although the conversion was a contentious issue the court's decision was not swayed by religious beliefs.

Justice Zainun who delivered the court's judgment said consent from Indira Gandhi's and her ex-husband Muhammad Riduan Abdullah, (formerly known as K. Pathmanathan) were required before the certificate of conversion to Islam could be issued to their children.

She said the approach of allowing the child to be converted on the consent of only one parent would give rise to practical conundrums.

"Conversion to another religion is a momentous decision affecting the life of a child, imposing on him a new and different set of personal laws," she said adding that it was in the best interest of the child that consent of both parents must be sought.

Zainun said the court's paramount consideration was to safeguard the child's welfare and in so doing, the court did not pass judgment on the tenets of either parent's belief.

She said since custody of the children was granted to Indira Gandhi, it was she (Indira Gandhi) who exercised the dominant influence in their (the children's) lives.

"To allow the other spouse to unilaterally convert the children without the consent of the Appellant (Indira Gandhi) would amount to a serious interference with the lifestyle of the new family unit," she said.

The judge said in a situation where one party to a civil marriage had converted to Islam, the converting spouse remained bound by their legal obligation under the Law Reform (Marriage and Divorce) Act 1976.

She said the certificates of conversion of the three children were void as the certificates were issued without Indira Gandhi's consent and hence contravened Article 12 (4) of the Federal Constitution and Section 5 and 11 of the Guardianship and Infants Act 1961.

"We find that the Registrar of Muallaf had no jurisdiction to issue the certificates of conversion in respect of the conversion of the children to Islam due to non-compliance of sections 96 and sections 106 (b) of the Administration of the Religion of Islam (Perak) Enactment 2004," she said.

Section 96 states that a person must on their own will apply for conversion and utter the two clauses of Affirmation of Faith in Islam (Dua Kalimah Syahadah) while Section 106 states that a person who has not attained the age of 18 years old must get their parents or guardian¡¦s consent in writing for his or her conversion.

The federal court pointed to the undisputed evidence that Indira Gandhi's children did not utter the two clauses of Affirmation of Faith and were not present before the Registrar of Muallafs before the certificate of conversion was issued.

Zainun said there was ¡§no expressed provision in section 50 (3) (b) (x) of the Perak Enactment which confers jurisdiction to Syariah Court to determine the validity of a person's conversion to Islam but that section only confers jurisdiction to the Syariah Court to issue a declaration that a person is no longer Muslim¡¨.

"We now take a firm stand on this, in that before a civil court declines jurisdiction premised on the strength of Article 121 (1A), it should first examine or scrutinize the nature of the matter before it. If it involves constitutional issues, it should not decline to hear merely on the basis of no jurisdiction," she said.

 

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