Civil Jurisidiction vs Sharia Jurisdiction = Article 121(1A) of Federal Constitution 0
Contemporary Legal Issues Regarding Complications in Dissolving Muslim Marriages due to Change Of Religion In Malaysia.
written by Shaqib Shamsher, Law student of UiTM and an active member of UiTM English Debating Society
In Malaysia, Sharia laws differ in each state according to their Mufti’s and religious councils’ interpretations of Sharia. However, the Federal government has consistently lobbied for the standardization of Sharia Laws in all states. Most states refuse and claim that such a proposal defeats the role of the Sultan as the head of Islamic affairs in each state. This defense is safeguarded by the ninth schedule, list I of the Federal Constitution. The context of this case study will be in t
he Federal Territories of Malaysia as accordance to the Islamic Family Law Act (Amendment) 1984 and decided or precedent cases.
The mufti’s (head of religious adviser) in each state have differing Qisas (interpretation) and Sharia(Islamic) rules on conversions especially when it involves dissolution of marriages. Conversion into Islam and conversion into another religion than Islam have one common undertaking. Both dissolve the marriage of the converter. As accordance to the general rule in Sharia i.e. the Islamic Family Law (Federal Territories) Act 1984, as long as the Sharia Court has not confirmed the conversion (out of Islam or into Islam) no marriage shall dissolve by itself[1]. This implies that the Sharia court has the ultimatum to decide when a marriage ends. Generally, an individual that converts out of Islam is referred to as an apostate. For the purposes of this case study, the terminology would denote a similar reference.
Sharia laws in states of Kelantan i.e. the Kelantan Islamic Family Law 1983 and Perak, the Perak Islamic Family Law Enactment 1984 similarly prescribes the Sharia court to validate an annulment of marriage upon conversion of either one of the spouse.
Initially, there was an increasing trend by civil courts to invalidate the actions of Sharia Courts to annul marriages upon conversion. This can be seen in precedent of cases that have consistently applied section 51 of the Law Reform (Marriage & Divorce) Act 1976 (LRA) which was found on the basis of ‘matrimonial offence doctrine’[2]. The application of this doctrine constitutes the converting spouse to have committed an offence and the non-converting spouse to have not. This means a civil recourse through section 51 of the LRA could invalidate a marriage only if the non-converting spouse seeks a court order for divorce on the ground that the converting spouse has committed an offence.
Section 51 of the LRA stipulates:
Where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce: Provided that no petition under this section shall be presented before the expiration of the period of three months from the date of the conversion. The court upon dissolving the marriage may make provision for the wife or husband, and for the support, care and custody of the children of the marriage, if any, and may attach any condition to the decree of the dissolution it thinks fit.
According to the first limb of this provision, there is a period of three months for the marriage to be reconciled. Hence, it provides an opportunity for the converting to return to his civil marriage by coming out of the conversion. On the other hand Sharia recognizes this 3 month period as a period of iddah i.e. providing opportunity for the non converting spouse to join the converting spouse to retain their marriage. Iddah is a period for opportunity of reconciliation between spouses. The Quran stipulates this in Surah Al-Baqarah ,verse 228:
‘Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah has created in their wombs, if they have faith in Allah and the Last Day. And their Husbands have better right to take them back in that period, if they wish for reconciliation. And women shall have rights similar to the rights against them, according to what is equitable. But men have a degree of advantage over them. And Allah is Exalted in Power, Wise.’
Furthermore, the iddah period is recognized by section 51 of IFLA. Cohabitation that takes place by mutual consent of both converted and non-converted spouse shall conclude the reconciliation. However this is subject to confirmation by the Registrar for Kariah Masjid in which they reside[3].
The case of Pedley v Majlis Ugama Islam Pulau Pinang[4], the doctrine of Matrimonial offence was upheld where a non-Muslim marriage was not dissolved upon conversion of one of the parties to Islam. The plaintiff is a Roman Catholic who married a Roman Catholic wife. The wife subsequently embraced Islam and assumed a Muslim name without the knowledge of the plaintiff. Section 46 of the Penang Islamic Family Law Enactment 1985 which is pari materia(similar) to that of section 46 of IFLA enabled the Chief Kadi(religious adviser) on behalf of the Sharia courts to annul the marriage between the spouses after 90 days were given to the husband to reconciliate and convert into Islam along with the wife.
On the contrary, the High court held that the annulment was void on the basis that the husband did not petition for divorce. The husband’s ground of action was that the wife’s conversion didn’t determine the marriage. This means he was upholding his personal rights in civil laws. Civil law i.e. section 4(3) of the Law Reform (Marriage and Divorce) Act 1976 prescribes that a civil marriage is only dissolved if a decree of nullity is made by court of competent jurisdiction. This means that only upon the petition for divorce, the court will grant a decree of nullity to a civil marriage. Hence, the marriage in Pedley’s case is still valid and subsisting under Law Reform (Marriage and Divorce) Act 1976. Section 4 of this Act postulates that:
(1) Nothing in this Act shall affect the validity of any marriage solemnized under any law, religion , custom or usage prior to the appointed day.
(2) Such marriage if valid under the law, religion, custom or usage under which it has solemnized shall be deemed to be registered under this Act.
(3) Every such marriage unless void under the law, religion, custom or usage under which it was solemnized, SHALL CONTINUE UNTIL DISSOLVED:
(a)By death of the parties;
(b)By order of a court of competent jurisdiction; or
(c)By a decree of nullity made by a court of competent jurisdiction[5].
The outcome of this creates a confusion for solving other issues like the child’s custody and the division of property. This is because if Sharia prescribes that the marriage is dissolved after three months from the conversion while the Law Reform (Marriage & Divorce) Act 1976 upholds the validity of the marriage, then which court has jurisdiction over the aforementioned issues? This is further complicated by article 121(1A) of the Federal Constitution (FC) (the FC is the highest law in Malaysia) which reads:
121- (1A) The courts referred to in Clause (1)* shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts
In Mohamed Habibullah bin Mahmood v Faridah bte Dato’ Talib[6], the Supreme Court ruled that article 121(1A) of the FC makes clear distinction between the jurisdiction of the Syariah and the civil courts by holding that: The intention of Parliament by Article 121 (1A) of the Federal Constitution is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Court.
On the other hand, in the case of Nedunchelian a/l V Uthiradam v Nurshafiqah binti Mah Singai Annal @ Valarmathy a/p Mah Singai Annal & 9 Ors[7], the court said:
The court must not lose perspective of the legislative intent that article 121(1A) was to prevent conflict of jurisdiction and not to exacerbate the jurisdictional conflict between the High Court and the Sharia Court … the mechanism to be adopted must be predicated by the subject matter rather than the religion of the individual who is challenging the Sharia Court’s jurisdiction.
The baseless intention of the legislature for enacting article 121(1A) is further complicated by section 3(3) of the Law Reform (Marriage & Divorce) Act 1976 which prescribes that the Act doesn’t apply to Muslims. Why? The separation of the Sharia and civil institutions makes it harder for the families to seek a legal recourse when both avenues don’t operate concurrently to facilitate a remedy. How could these separate bodies decide on a common ground in the best interest if these families? One suggestion for reform is to amend amend article 121(1A) that enforces both bodies to negotiate in an arbitration to remedy issues of maintenance of the wife, children, custody of the child and division of property. Another is, that if article 121(1A) of the constitution is still relevant, then reservation of it’s application should be made in cases involving marriage institutions to avoid complications in resolving child custody, divorce settlement and division of matrimonial property.
If the proposed reform is undertaken, other laws vis-à-vis to this provision in the FC should also be amended. These laws should expressly indicate which court (i.e. whether civil or Sharia court) should take precedence in annulling the marriage where a spouse has converted. Firstly section 3(3) of the LRA should be amended to enable the jurisdiction of the Act upon Muslims, hence also granting civil courts the jurisdiction upon Muslims . Furthermore,since section 51 of the LRA has expressly recognized the conversion of a spouse, it shall mandate that newly converted spouses should prove that they have changed their religious status. This can be done by an official declaration in both civil or sharia courts according to a set of fixed procedures determined by each state’s Mufti. This means that a religious official can still be present in civil court to witness the official declaration by the Muslim or non Muslim applicant to renounce their faith. The certificate of declaration of apostacy to validate the conversion status shall be issued by both the Sharia & Civil Courts (only if the procedures fixed by the Mufti in each state has been complied) & equally recognized by both the civil & Sharia courts. Hence, giving civil courts the jurisdiction to recognize the applications for petition of divorce by Muslims with evidence of their conversion from either the Sharia Courts or civil courts. This is something that is not allowed in status quo because Sharia laws of all states strictly prohibits to their jurisdiction upon non – Muslims hence non-Muslims cannot be bound to the orders of the Sharia court[8]. Since the Federal Constitution (FC) is the supreme law of the land[9] and not the Sharia, it is only fair to the non-Muslims, if the newly converted Muslim spouses apply through the civil courts for annulment of marriage as proposed. This is because it would only be fair to impose the jurisdiction of Sharia court over the non – Muslims if the Sharia was the Supreme law of the land. However if a reservation was made to article 121(1A) of the FC, to allow both civil and sharia courts to validate the declaration of apostacy, this would allow both courts to have jurisdiction over resolving matrimonial issues regardless of the religion of the applicant.
Ultimately the issues of custody and division of matrimonial property can be decided equitably by judges in both civil and Sharia courts (depending where the application of divorce was made) in the best interest of both parties’ religious and civil rights. That is the primary role of the courts anyway…
Conforming to civil courts doesn’t really undermine Sharia laws. In fact, a Sharia judge could seat alongside a civil court judge to iron out the inconsistencies between differing laws to confer fair rights to both spouses of different religions when it concerns remedying issues of child’s custody, division of property and the child’s maintenance. This is consistent with the interpretation of the Quran where Sharia must be made to adapt with the current state and need of society alongside the existing civil laws. Fazlur Rahman[11] suggests that there must be a systematic interpretation of the Quran. For example the theological and metaphysical interpretation of the Quran doesn’t necessarily warrant the specific prophecy or revelational background because it must adapt to the social-legal pronouncements of status quo. He doesn’t deny the encroachment of influential contemporary modern thoughts but he says this can be dealt with subjectively and only through this way can the message of the Quran become relevant to the contemporary situation. Similarly, the Sharia laws in regard to child custody and division of matrimonial property can be applied equitably and justly alongside civil laws in regard to those areas too. The judges in both civil and Sharia courts must be trained and be made competent to understand the rights of each applicant concerning cases of apostasy in marriage institutions.
The following are precedent cases discussing the specific contemporary legal issues in the complications of dissolving of Muslim marriages due to conversion. In the case of Ng Siew Pian v Abdul Wahid bin Abu Hassan & Anor[14], the plaintiff and the second defendant who were Buddhists were married under the Civil Marriage Ordinance 1952. Subsequently, the husband, the second defendant embraced Islam and he applied to the Kadi’s court to annul the marriage on the grounds that the plaintiff, his wife, had refused to embrace Islam with him. After serving notice to the plaintiff, the Kadi, the first defendant in absence of the plaintiff annulled the marriage on the grounds that the plaintiff had refused to follow the second defendant in embracing Islam. In retaliation the plaintiff applied to the High Court that the Kadi had no power to make an order dissolving the marriage. This claim was affirmed by the court. The court’s order was based on the refusal of the plaintiff who didn’t petitioned for divorce and didn’t convert into Islam. Hence, the Kadi has no jurisdiction to annul a marriage upon a non-Muslim. The High Court didn’t really have a solution in this case. Though it held that the Kadi has no power to annul the marriage it conceded that it had no power to rule on the validity of the Kadi’s judgment. This appears contradictory and due to article 121(1A) which prohibits the civil courts from intervening the jurisdiction of the Sharia Courts. Hence, the issue in this case is whether the civil courts could nullify the order from a Kadi or Sharia court. Status Quo of article 121(1A) prescribes that civil courts can’t nullify the order from a Kadi’s court. This case would have definitely been finalized without if the aforementioned proposed reform of Law Reform (Marriage & Divorce) Act 1976 and article 121(1A) of FC takes precedence.
In the case of Eeswari Visuvalingam v Government of Malaysia[15], the appellant in her statement of claim dated 30 June 1986 sought a declaration from the High Court, Kuala Lumpur that she was:
(i) a ‘dependant’ as defined in the Pensions Adjustment (Amendment) Act 1983[16] ; and
(ii) a declaration that she was entitled to a derivative pension[17]. In the statement of defense, the respondent contended that the appellant was not a ‘widow’ under the pension laws as claimed because ‘she did not convert to Islam within the three months of her husband’s conversion’[18]. This defense was obviously based on a fatwa as given in the affidavit of the Mufti, Federal Territory, in which the Mufti stated that: I hereby state that according to Muslim law, if a married man embraces Islam but his wife fails to convert to Islam the marriage in question ceases to subsist on the date of the husband’s conversion. At the High Court, both parties conceded to the following facts:
-
- The appellant married Visuvalingam Ponniah according to Hindu rites and the said marriage was registered on 15 November 1950.
- Visuvalingam Ponniah embraced Islam on 16 July 1978 and adopted the name of Abd Hamid Abdullah.
- Visuvalingam Ponniah was a pensioner under the Pensions Act 1980.
- Visuvalingam Ponniah died on 7 January 1985.
- By a letter of 7 March 1985, the plaintiff applied to the Public Services Department for derivative pension.
- On 16 April 1986, the Pensions Department rejected the plaintiff’s application on the same grounds as stated in the statement of defense.
The registration of the said marriage on 15 November 1950 was under the Hindu Marriage Registration Enactment (Cap 112). This enactment was repealed by the Registration of Marriages Ordinance 1952 but section 18 of the Ordinance saved the registration that absorbed into Law Reform (Marriage and Divorce) Act 1976.In addition, section 4 of this Act which postulates.. : (1) Nothing in this Act shall affect the validity of any marriage solemnized under any law, religion , custom or usage prior to the appointed day. (2) Such marriage if valid under the law, religion, custom or usage under which it has solemnized shall be deemed to be registered under this Act. (3) Every such marriage unless void under the law, religion, custom or usage under which it was solemnized, SHALL CONTINUE UNTIL DIISOLVED : (a)By death of the parties; (b)By order of a court of competent jurisdiction; or (c)By a decree of nullity made by a court of competent jurisdiction .. further supports the validation of the hindu marriage that the applicant claimed to facilitate hee application for the husband’s pension funds. Hence, the issue before the High Court was,
‘whether the non-conversion of the plaintiff from her religion to that of Islam within three months of the conversion to Islam of her spouse dissolves the marriage between the plaintiff and her husband
And; assuming it does whether it disentitles her from being a ‘dependant’ within the definition contained in the Pensions Adjustment (Amendment) Act 1983[19] and to a pension under section 15 of the Pensions Act 1980’. The Supreme Court held that: The court was not dealing with the question whether the appellant was entitled to any part of the estate of a deceased Muslim but only with the question of whether she is entitled to a derivative pension under a particular law on pensions. The word ‘dependant’ is defined in section 4 of the Pensions Adjustment Act 1980 as follows: ‘dependant’ means a widow, widower, child, mother or father of a deceased officer. The word ‘widow’ is defined in the Pensions Regulations 1980 as follows: whose marriage is recognized in Malaysia as a valid marriage under any written law, religion, custom or usage. Pensions Act 1980[20] provides for derivative pension to persons prescribed in the Regulations. In addition, there is no evidence that the marriage has been dissolved i.e. no application was made under section 51 of the LRA to render the marriage void but it’s valid and subsisting. Hence, even though Eeswari Visuvalingam didn’t convert to Islam during three month iddah period, her marriage with her husband by civil law is still valid because there was no civil recourse to nullify the marriage through Law Reform (Marriage and Divorce) Act 1976. As a result, the validity of the marriage enables her to sue as a widow (as defined under the pension laws i.e. Pensions Act 1980 and the 1980 Regulations) for entitlement of pension payments. The Pensions Act 1980 and the 1980 Regulations are civil laws of general application which entitles pension payments for Muslims and non-Muslims. For the purpose of the pension laws, the appellant is certainly a widow; she is therefore a dependant under the pension laws and was entitled to the derivative pension of her husband. This case draws a clear proposition that civil marriages aren’t dissolved for the non-converting spouse. However this ground in the judgment of the Supreme Court could have been strengthened through section 51 of the Law Reform (Marriage & Divorce) Act 1976. That is, as long as the plaintiff has not applied for a divorce upon conversion of one of the plaintiffs, the civil marriage should be valid and subsisting. What if the aforementioned reform suggestion takes effect? Her deceased husband cannot apply through the civil court with a decree or witness form the Sharia court to divorce the wife. Hence, the wife’s mere cause of action to justify the validity of the marriage through civil recourse would be adequate and the pension funds would go to her anyways since she is the only other next of kin entitled to apply through the pension laws which applies to both Muslims and non-Muslims.
In Farooq Leivers v Adelaide Bridget Mary[21] 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 reconciliation, divorced the defendant by pronouncing the 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 a case was what was the effect of the conversion on other persons who have some rights vested in them before the conversion i.e. whether his state after conversion enables the converter to enforce certain rights he had before he converted.
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 this case, the judge was choosing the law that was more convenient to be followed on the assumption that there is no preference to follow plaintiff’s personal laws. Which means that if the defendant is able to enforce his former rights as a former Christian on his Muslim faith based on the logic that Muslim laws recognizes the imposition of talak (an Islamic principle) on the non converting (non-Muslim) spouse’s Christian based marriage. However, the civil divorce laws didn’t recognize Islamic imposition of talak to nullify the Christian Marriage. The Court followed the civil laws approach because it was more convenient and there was nothing more evidential in their reasoning to justify this convenience. Why were the defendant’s personal law i.e. Divorce Act 1869 preferable? Without any justification the learned judge simply established a bad law and this preferential treatment of laws didn’t remedy the contemporaneous issue in court.
In the case of Subashini a/p Rajasingam v Saravanan a/l Thangathoray[22], both husband and wife were originally Hindus and they were married pursuant to a civil ceremony of marriage that was registered pursuant to the Law Reform (Marriage and Divorce) Act 1976. There were two children of the marriage, both boys: Dharvin Joshua, aged 4 and Sharvin, aged 2. The husband converted himself and the elder son to Islam on. Later, the wife received a notice dated from the Registrar of the Sharia High Court Kuala Lumpur informing her that her husband had commenced proceedings in the Sharia High Court for the dissolution of the marriage and custody of the elder son. An interim custody order for the converted son was given the husband by the Sharia High Court. After having known that the husband had taken proceedings in the Sharia High Court, the wife filed a petition for the dissolution of the marriage pursuant to section 51 of LRA coupled with an application for custody and ancillary reliefs in the High Court. The wife did not object to the husband’s conversion to Islam. The wife applied for and obtained an ex parte injunction against the husband. The husband then filed an application to set aside the said injunction. Pursuant to an inter partes hearing, the High Court dismissed the wife’s application and allowed the husband’s application and set aside the said injunction. This was upheld in the Court of Appeal. However at the Federal Court the judgments were overturned it on the basis of two most important contemporary issues below:
1st issue- Whether the injunction granted by the court against the husbands course of action in the syariah court to annul the marriage was applicable.
Firstly, it’s essential to look into section 46(2) of the Islamic Family Law (Federal Territories) Act 1984 (IFLA) which states that : The conversion to Islam by either party to a non-Muslim marriage shall not by itself operate to dissolve the marriage unless and until so confirmed by the court. The act of confirmation of the dissolution of the marriage under this section is not a mere administrative act as understood by the Court of Appeal, but a full judicial proceeding before the Sharia High Court as it happened in “Dalam Perkara Permohonan Perisytiharan Pembubaran Perkahwinan Disebabkan Pertukaran Agama — Permohonan Siti Aisyah Janthip Aisam, JHXXI/11 (1427H) 262”, where the Sharia High Court of Kuala Terengganu applied the Hukum Syarak after evaluating the evidence, to allow the wife’s application to dissolve her Buddhist civil marriage to the husband pursuant to section 43(2) Enakmen Undang-Undang Pentadbiran Keluarga Islam (Negeri Terengganu) 1985, which is pari materia(similar) to section 46(2) of the IFLA. It appears from the case that the husband did not contest the application and neither a decree of divorce granted under section 51 of LRA by the High Court was ever produced in the Sharia Court. The dissolution order of the civil marriage by the Sharia High Court by virtue of conversion would have no legal effect in the High Court other than as evidence of the fact of the dissolution of the marriage under the Islamic law in accordance with Hukum Syarak. Thus, the non-Muslim marriage between the husband and wife remains intact and continues to subsist until the High Court dissolves it pursuant to a petition for divorce by the unconverted spouse through section 51(1) of the LRA. Civil and Sharia Courts are creatures of statutes such as the FC, the Acts of Parliament and the State Enactments. These two courts are administered separately and they are independent of each other. Although the Sharia Courts are state courts they are not lower in status than the civil courts. The Supreme Court held that, they are of equal standing under the FC. This recognition of the Sharia Courts was largely due to art 121(1A) of the FC which excludes the jurisdiction of the civil courts on any matter within the jurisdiction of the Sharia Courts. Thus, the civil court cannot be moved to injunct a validly obtained order of a Sharia Court of competent jurisdiction. The injunction obtained by the wife, although addressed to the husband, was in effect a stay of proceedings of the husband’s applications in the Sharia High Court and this amounts to interference by the High Court of the husband’s exercise of his right as a Muslim to pursue his remedies in the Sharia High Court. In addition the prohibition of this interference is safeguarded by the clear delineation enforced by article 121(1A) of the Federal Constitution.
2nd issue- The wife complained that the husband had no right to convert either child of the marriage to Islam without the consent of the wife. Whether the choice of a child’s religion is a right vested in both parents by virtues of articles 12(4) and 8 of the FC and s 5 of the Guardianship of Infants Act 1961.
Either the husband or wife has the right to convert a child of the marriage to Islam. The word ‘parent’ in article 12(4) of the FC, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent. In Teoh Eng Huat v Kadhi, Pasir Mas & Anor[23], Abdul Hamid Omar LP, delivering the judgment of the Supreme Court, said at p 302: In all the circumstances, we are of the view that in the wider interests of the nation, no infant shall have the automatic right to receive instructions relating to any other religion than his own without the permission of the parent or guardian. Article 12(4) of the FC must not be read as entrenching the right to choice of religion in both parents. That being so, article 8 is not violated as the right for the parent to convert the child to Islam applies in a situation where the converting spouse is the wife as in Nedunchelian[24] and as such, the argument that both parents are vested with the equal right to choose is misplaced. Hence the conversion of the elder son to Islam by the husband albeit under the Selangor Enactment did not violate the FC. Reliance cannot be placed on section 5 of the Guardianship of Infants Act 1961 which provides for equality of parental rights since section 1(3) of the same Act has prohibited the application of the Act to such person like the husband who is now a Muslim. Hence the conversion of the elder son was valid and cannot be reversed on the basis of this provision. Custody of the child was never really discussed in this case. In the case of Shamala Sathiayseelan v Dr. Jyaganeh C Nadaraajh & anor[25], the wife(plaintiff) and husband(defendant), Muhammad Ridzwan bin Mogarajah (as a muallaf after converting to Islam) were initially married through Hindu rites at the Dewi Sri Karumariaman Temple in Alor Star. The said marriage was registered under the Law Reform (Marriage and Divorce) Act 1976. There are two children of the marriage, i.e. the two minors; Saktiswaran, 3 ½, and Theiviswaran, 2 1/2 years old. At the time of birth, both these minors were Hindus. Later the husband converted to Islam. Eventually, the husband converted both the minors into Islam. The wife then filed an originating summons seeking an order for custody, care and control of the two minors. The court gave an interim order to the wife who due to her two children living with her in Alor Star gave the husband access on Saturday from 1–2pm to Sunday 1–2 pm, and the husband is prohibited from taking the two children out of Alor Star and the husband is to pay RM250 a month to each of the child. Later, the husband filed an ex parte application in Mahkamah Tinggi Syariah Selangor for hadanah (custody) of the two minors and obtained the said custody order. The two minors are now living with their mother in Alor Star with weekend visits granted to the father by the civil court after these two minors have been converted to Islam by the husband. Hence, the main issue in this court is whether the wife seeking the court’s declaration that the conversion of the two minors to Islam is null and void is possible. The meaning of the terms ‘custody and guardianship’ must be analyzed. An order for custody of a child in the Family Court gives the custodian the right to have the daily care and control of the child and the right and responsibility to make decision about such daily care and control. A custody order ceases to have effect when a child turns 18 years of age or marries. Guardianship means that a parent has the responsibility for a child’s long term welfare. This includes involvement in major decisions such as a child’s health, education and religion. Unless a court orders otherwise, both parents are joint guardians of a child. In the present case, the wife has obtained the interim order and the two minors are living with her in Alor Star. The marriage by Hindu rites on 5 November 1998 is still subsisting and valid (section 4 of LRA refers to subsisting valid marriage, dissoluble only under the Act and section 8 of the Act refers to continuance of marriage)., their marriage still continue only dissolved if:
(a) by the death of either wife or husband;
(b) by order of a court of competence jurisdiction;
(c) by a decree of nullity made by a court of competent jurisdiction.
The husband cannot bring a petition for divorce of his civil law marriage in the Sharia Court because the Sharia Court has no jurisdiction to deal with cases where one of the parties is a non-Muslim. His wife is a non-Muslim[26]. Federal Constitution[27] provides that Islam is the religion of the Federation; but other religions may be practiced in peace and harmony in any part of the Federation. But this doesn’t mean that Muslims can stay married with non Muslims, what more when the Sharia Court don’t have any jurisdiction to issue an action or order against the Muslims On the other hand, Islam must not be used as escapism by non-Muslim men to run away from their legal obligations which they contracted while they were non-Muslims by merely changing their religion to Islam. This is the purpose of section 51 of LRA which states that where one party to a marriage has converted to Islam, the other party who has not so converted may petition for divorce. To allow just the father or mother to choose the religion would invariably mean depriving the other of the constitutional right under article 12(4) of FC. Words used in section 95(b) of the Guardianship of Infants Act1961 are clear. The consent of a single parent is enough to validate the conversion of a minor. Any other interpretation would give an unjust result. It may lead into adopting a forced meaning that s 95(b) does not bear and the plain meaning rule will not allow. This section is not applicable to the husbands in the circumstances of the present case because he is a Muslim , a muallaf. s 1(3) of Guardianship of Infants Act 1961(Revised 1988),provides: (3) Nothing in this Act shall apply in any State to persons profession the religion of Islam until this Act has been adopted by a law made by the Legislature of that State; Based on the construction of article 12(4) of the Federal Constitution, read in conjunction with section 95(b) of Guardianship of Infants Act1961, the husband as a natural parent — a Muslim father has the capacity to convert the two minors into Islam. This is supported with the decision of the Supreme Court, a five member panel in the case of Teoh Eng Huat v Kadhi, Pasir Mas & Anor [28]where Abdul Hamid LP said,
‘In all the circumstances, we are of the view that in the wider interests of the nation, no infant shall have the automatic right to receive instruction relating to any other religion than his own without the permission of the parent or guardian.’
This was even supported by the fatwa of the Mufti of the Federal Territories who expressed his opinion in a letter that had not been published in the gazette. Hence though the opinion of the Mufti was persuasive, it cannot be accepted as a fatwa in court. The two minors are now Muslim. There are two Sijil Sementara Pengislaman (No 683/2002 & No 684/2002 dated 28 December 2002 respectively) in respect of them. These temporary statutory conversion certificates albeit temporary shall be conclusive proof of the facts stated therein. So, by virtue of art 121(1A) of the Federal Constitution, the Syariah Court is the qualified forum to determine the status of the two minors. Only the Syariah Court has the legal expertise in hukum syarak to determine whether the conversion of the two minors is valid or not. Hence the mothers application to seek a declaration from the court to nullify the conversion of the children in the federal court was not possible. Custody was given to the mother though the children remain to live as a Muslims and visitation rights to the father was granted. In such a complicated situation, article 121(1A) of FC should be amended to the propose amendments suggested in that it should exempt separate civil and Sharia courts’ jurisdiction in issues of custody or guardianship as a result of conversion in marriages so that the children can be treated fairly children under the care and custody of both parents. The reservation made by article 121(1A) could enforce mandatory arbitration with both a civil and Sharia judge arbitrating to iron out the differences of both parties and conflicting laws to reach a compromise for both spouses to share custody. Based on the contemporary issues extracted in each case aforementioned that involves conversion, only the proposed suggestion i.e. amendments to section 3(3) and Section 51 of the Law Reform (Marriage and Divorce) Act 1976 and amendments to article 121(1A) of the Federal Constitution for a joint arbitration or even joint recognition of rights by both civil and Sharia courts should be enforced through reservation in article 121(1A), could the deadlock in each case be remedied.
[1] S.46(1) & S46(2) of the Islamic Family Law (Federal Territories) Act 1984 [2] Ahmad Ibrahim, “Family Law In Malaysia” (LexisNexis Malaysia 5th edn2008) pg 280 [3] Section 51(2) of the Islamic Family Law (Federal Territories) Act 1984 [4] [1990] 2 MLJ 307 [5] Section 4 of the Law Reform (Marriage & Divorce) Act 1976 [6] [2005] 2 AMR 711 [7] [2005] 2 AMR 711 [8] Section 4 of the Islamic Family (Federal territories) Act 1984 as an example. [9] Article 4 of the Federal Constitution [11] Fazlur Rahman, “Islam & Modernity- Transformation of An Intellectual Tradition(The University of Chicago Press 2nd edn1984) pg 154 [14] (1992) 8 JH 256 [15] [1990] 1 MLJ 84 [16] Section 4 of the Pensions Adjustment (Amendment) Act 1983 [17] Section 15 of the Pensions Act 1980 [18] Section 46 of the Islamic Family (Federal Territories) Act 1984 [19] Section 4 of the Pensions Adjustment (Amendment) Act 1983 [20] Section 15(1)(a) of the Pensions Act 1980 [21] PLD 1958 (WP) Lahore 431 [22] [2008] 2 MLJ 147 [23] [1990] 2 MLJ 300 [24] [2005] 2 AMR 711 [25] [2004] 2 MLJ 648 [26] Section 4 of Islamic Family (Federal Territories) Law Act 1984 [27] Article 3(1) [28] [1990] 2 MLJ 300
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