The Court of Appeal (COA) of Malaysia on Wednesday upheld the judgment of Kuala Lumpur High Court in the conversion case of two minor children by their mother without the consent of the father. In the judgment given three years back, the High court had set aside the conversion of two minor children from Buddhism to Islam. The court had also again defined that in religious conversion case the word parent in the Federal Constitution refers to both parents and not just one of them.
COA referred to the landmark Federal court judgment in the M Indira Gandhi case, where a unilateral decision for the conversion of children to Islam by their father was declared unlawful by the apex court.
The three-judge bench headed by Justice Datuk Mohamad Zabidin and Md Diah unanimously upheld Kuala Lumpur High Court the verdict. Two other members of the bench Justice Zabidin and Justices Datuk S Nantha Balan and Datuk Nordin Hassan had their consent to this judgment. “We are of the opinion that the High Court judge and this Court of Appeal bench are bound by the Federal Court decision in the M Indira Gandhi case. There is no appealable error in this matter. We find there is no merit in the appeal. The decision of the High Court judge is affirmed,” the bench said while delivering the judgment on October 27. The Court withheld the identity of mother and minors.
In the current case, a woman who was Buddhist by birth converted to Islam sometime in 2015. And, the next year, she had converted her children to Islam, by bringing them to the Registrar of Muallaf, without the consent of their father. The children — a girl and boy who are 13 years and nine years old respectively — are under the custody of their father, who is a businessman by profession and Buddhist by faith.
The mad had filed a petition at the High Court against the conversion of the two minor children, and had made the mother, Muallaf, the director-general of the Education Ministry, the director-general of the Federal Territories Islamic Department and the federal government as respondents of this case. On Oct 16, 2018, the High Court in Kuala Lumpur allowed the judicial review by the father and accepted his contention that his two children born in a civil marriage, were converted to Islam without his consent.
By this time the five-man panel of the Federal Court in January 2018 had delivered judgment in the Indira Gandhi case and settled the matter that the consent of both parents in the conversion of a minor is a must. It was categorically said that the mother or father of such minor children can’t take any unilateral decision.
In fact, Kuala Lumpur High Court had based its judgment on the Indira Gandhi case. During the hearing, the Buddhist turned Muslim mother and Muallaf had tried to defend the conversion of the children and stated that it was quite a different case and it will be wrong to apply the judgment of Indira Gandhi case. It was stated that unlike in the Indira Gandhi case, where her children were not produced before Muallaf, the children in the current case had appeared before the Federal Territories Registrar of Muallaf and willingly recited the ‘syahadah’ (affirmation of faith).
Landmark judgment of Indira Gandhi
The Federal Court ruling in the M. Indira Gandhi case is hailed as a landmark decision that reaffirms the civil courts’ powers to declare unilateral conversions of children as unlawful. In that case, K. Pathmanathan, a Hindu, converted to Islam on March 11, 2009 and he became Muhammad Riduan Abdullah. On April 2 in the same year, he converted his three children to Islam who were born out of his civil marriage held in 1993 with Perak-based Hindu mother M. Indira Gandhi. He had converted them without her knowledge and consent.
M. Indira Gandhi had filed a case against this conversion of her three children without her consent, and in 2013, the Ipoh High Court had declared the conversion certificates of the three minor children Tevi Darshiny, Karan Dinesh and Prasana Diksa, as null and void. The high court had stated that consent of both parents is required for the religious conversion of minor children. However, in 2015, the Court of Appeal had quashed the high court order, saying that civil courts have no jurisdiction over matters related to conversion to Islam.
The Court of Appeals had ruled that whether a person is Muslim or not can be determined by the Sharia court only. It had said that the high court order declaring the conversion of three children as null and void had transgressed the exclusive jurisdiction of Sharia courts. The court order was applicable for the two younger children, as the eldest child had turned 18 and had the right to decide her religion.
Following this, M Indira Gandhi had approached the Federal Court, the apex court in Malaysia, and the court in 2018 had overturned the order by court of appeals. The court had ruled that consent of both parents must be sought for religious conversion of minors, said that the word “parent” should not be construed literally.
“The word ‘parent’ – is a case of being lost in translation. Both parents have equal rights,” the Federal Court had said.
The Federal Court had resolved a long-standing dispute over the word “parent” mentioned in Article 12 (4), as many argued that the consent of a parent may suffice. Article 12(4) of the Federal Constitution of Malaysia says that the religion of a person under the age of 18 years shall be decided by his or her parent or guardian. The Federal Court in the Indira Gandhi had ruled that parent means both the parents, settling the dispute.
However, this Hindu woman is still fighting to trace her daughter Prasana who is missing right after the conversion.
