Come Monday, five judges from the highest court in Malaysia, will hear an application by a Hindu mother to challenge for the custody of her two underage sons, who became Muslim, after her husband converted them without her consent eight years ago.
The S Shamala vs Dr M Jeyaganesh case, will be heard by the Federal Court on May 3, and is bound to touch on racial and religious sentiments in multiracial Malaysia.
The case and its rulings will be a precedent to other child conversion and custody cases.
Normally, the Federal Court would have three judges hearing a particular case. However, owing to the complexity of this case as it involves constitutional matters, it had decided on a five-member bench.
Such cases have become contentious issues in Muslim-majority Malaysia as they centre on whether a parent has the right to convert their children, without the consent of the other spouse, in a civil marriage.
Other contentious issues which would be argued include whether the civil courts have the jurisdiction to hear cases concerning conversion of non-Muslim children by one parent, and whether the Syariah Court has exclusive jurisdiction to determine whether a conversion of a minor is valid or not.
… The Shamala case comes up almost a year after the appellate court heard her appeal and decided that the apex court had to rule on five constitutional questions.
Background to Shamala’s case
Shamala and Jeyaganesh were married in 1998 according to Hindu rites, with their marriage registered under the Law Reform (Marriage and Divorce) Act 1976.
Sometime in November 2002, Shamala’s husband converted to Islam, taking on the name Muhammad Ridzwan Mogarajah.
Subsequently he converted their two underage sons (then aged four and two respectively) to Islam without Shamala’s knowledge or consent.
She filed an application for custody of the children at the Kuala Lumpur High Court, and obtained an interim order from the court to grant custody of their children, while her husband was granted access.
However, before the interim custody order was made, Ridzwan obtained a hadanah custody order from the Syariah Court.
Shamala did not attend the Syariah Court hearing because she was a non-Muslim, and subsequently a warrant of arrest was issued against her, and also for failing to produce the children in the Islamic court.
After realising the children had converted to Islam, Shamala filed at the High Court for a declaration that the conversion of her two sons was null and void.
This is based on the Federal Constitution and the Guardianship of Infants Act granting her equal rights in determining the religion of the children.
However, in April 2004, the High Court dismissed her application stating that this was a matter for the Syariah Court.
Ridzwan meanwhile, obtained interim access from the High Court, and used his weekly visitation rights under the civil court to see the children.
At one instance, the father took the children from Shamala and refused to return them because he had obtained a Syariah Court hadanah (custody order).
Following this, Shamala filed for committal proceedings against her husband. He eventually returned the children after the High Court cited him for contempt, and held that he violated the interim custody order issued by the High Court.
In July 2004, the High Court granted Shamala ‘actual custody’ of the children, and decided that she would share ‘legal custody’ with her husband.
However, the court held she would lose custody if “there are reasonable grounds” to believe she would influence the children’s Islamic beliefs.
Five appeals filed
As a result of the case, five appeals were filed – four by the husband and one by Shamala at the Court of Appeal.
- Ridzwan appeal’s over the High Court’s decision in dismissing his preliminary objection that the court had no jurisdiction to hear custody cases as the children had converted to Islam;
- His appeal on holding him for contempt when he refused to abide by the civil court’s order to return the children to Shamala;
- The husband appealing a warrant of arrest issued by the Syariah Court against his wife had been set aside by the civil court;
- Ridzwan appeal over the High Court’s decision in giving actual custody to his wife, Shamala is cross-appealing against the decision seeking sole custody and the removal of the caveat she cannot influence her children’s faith; and
- Shamala appealing to nullify the conversion of her children to Islam.
Following this, the Court of Appeal three-member panel headed by Justice Abdull Hamid Embong recognised the case involves important constitutional matters.
Since constitutional matters are within the realm of the apex court, it had decided to grant leave to appeal and transfer the case there. Hence, Monday’s hearing.
Questions to apex court
Five questions, which were agreed by the Court of Appeal and posed to the Federal Court to decide are:
1. Whether Section 95 (b) of the Administration of Islamic Law (Federal Territories) Act 1993 is ultra vires (beyond the powers) of Article 12 (4) of the Federal Constitution (specifically concerning the right to determine the religion of the children under the age of 18 shall be determined by the parent or guardian) and Article 8 regarding equality rights?
2. Whether the same section in state law is inconsistent with federal law namely Section 5(1) of the Guardianship of Infants Act 1961, and is therefore invalid;
3. Regarding Article 121 (1A) of the Federal Constitution, where a custody order of children is made, which court, between the Syariah Court or the High Court is the higher authority.
4. When there is conversion of children of a civil marriage to Islam by one parent without the consent of the other, are the rights of remedy for the non-Muslim parent is vested in the High Court?;
5. Does the Syariah Court have jurisdiction to determine the validity of conversion of a minor into Islam, once it had been registered by the Registrar of Muallafs (Registrar for newly-converted Muslims).
Justice Abdull Hamid, who has now been elevated to Federal Court is unlikely to hear this appeal as he has heard it in the Appellate Court.
It is hoped the hearing and verdict would help resolve the long-standing issue which has affected many families facing a similar situation.
One of the cases likely to be affected by the outcome of the Shamala case include the M Indira Ghandi case in Ipoh.
Similar to the Shamala case, Indira’s husband converted to Islam and also converted their three children.
Indira is seeking the custody of the children and requesting the annulment of the children’s conversion.
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