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Law and equity shuts its doors on women The realities of a spouse’s conversion to Islam
by Pushpa Ratnam
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The High Court’s decision, on 13 April 2004, that it does not have the jurisdiction to hear Shamala as her children were Muslims, was akin to slamming the door shut on her rights as a mother. Shamala received the decision with a real fear that she would lose her children on 24 May 2004 to her Muslim husband. The last we have heard about her was from her solicitors informing us that she had left home with her two children. Faults in the law Discriminatory parental rights As husband and wife, a legally married couple has equal rights to decide on matters pertaining to the welfare of their children. The law that supports such equal parental rights is in Section 5 of the Guardianship of Infants Act 1961 which says that in relation to the custody, upbringing of an infant and caring for its well being, a mother shall have the same and equal rights and authority as the law allows to a father. The law also states that a child’s long term well-being must include determining the child’s education, health, religion and social interaction, among others. Unless there is a Court order to the contrary, it is opined that this position of equal parental rights must stand. What actually happened in the recent court case and in AWAM’s cases is that a woman stands to lose custody and guardianship of the children when her spouse converts to Islam. If this is the state of law, then we suggest that every decision on custody must also include guardianship for completion. Why must a mother who has slogged very hard to bring her children up with a custody order then have to depend on the other parent to determine the child’s education, health and religion. Besides, in a very recent decision in April 2004, the Court of Appeal maintained that a father need not provide maintenance for his child once the child has reached 18 years of age. In such a situation, the mother usually continues to struggle to find the means to support her child through university or higher education single-handedly. Violation of the freedom of religion As parents, both husband and wife have a common responsibility towards their children to cultivate religious beliefs and to guide the children in a particular spiritual way. Quite often these decisions are made before marriage and in some cases at the time the child is born, especially in mixed (non-Muslim) marriages. The law does not prohibit a person from embracing any religion that they feel comfortable with. This is entrenched in Article 11 of our Federal Constitution — where the founders of this constitution had guaranteed the Freedom of Religion to the citizens of Malaysia. Hence, if, during a marriage, the husband decides to convert to Islam or any other religion for that matter, the wife has to respect his wishes and accept his decision to do so although it brings about very unfair repercussions, especially in some situations such as here in Shamala’s case. The law does not allow polygamous marriage among non-Muslims. It does within the Muslim faith. As much as a woman may respect her husband’s wish to convert, she may not wish to tolerate her husband practising polygamous marriage. It is opined that in the event a spouse wishes to convert to a religion other than that which was observed at the point of marriage, it is only fair that the authorities converting this person take the initiative to inform the other spouse, especially so when the conversion is to Islam. We understand that the state of Negeri Sembilan does observe this policy in that the non-converting spouse is informed of her/his spouse’s conversion. In fact, there is an urgent need to enact a law in the Islamic State Enactments that requires the non-converting spouse to be informed of the conversion of the other spouse. It should also be the situation that provisions in the law are created to enable either spouse to divorce in the event of conversion.
Lack of clarity in divorce proceedings Can a converting spouse divorce his non-converting wife Under Section 51 of the Law Reform (Marriage and Divorce) Act 1976 a converting spouse cannot divorce his non-converting spouse. When a person wants to divorce his or her partner in marriage, under Sec 54, the law demands that the court must have regard to one of the following facts showing irretrievable breakdown of marriage. They are as follows:
To add to the current state of nervous excitement in this particular area of law, we now have a judgement by the Family Division Judge in Shamala’s case saying that a converting spouse cannot dissolve his civil law marriage himself because the said marriage can only be dissolved under the Law Reform (Marriage and Divorce) Act 1976 by his wife. Who decides a child’s religion? Constitution Art 12(4) The English version of the Constitution states that the religion of a person under the age of eighteen years shall be decided by his parent or guardian. The Bahasa version, on the other hand, states ugama bagi seseorang yang berumur kurang daripada lapan belas tahun adalah ditetapkan oleh ibu bapa atau penjaganya. In Shamala’s case, her counsel articulated his argument on the strength of an earlier decision Chang Ah Mee v Jabatan Hal Ehwal Agama Islam, Majlis Ugama Islam Sabah & Ors (2003) 5 MLJ 106 where it was decided that the term “parent” must necessarily mean both the father and mother (assuming that both are alive) and therefore, to allow either parent to choose the religion would invariably mean depriving the other of their constitutional right under Article 12(4). AWAM is concerned with this very narrow interpretation given to the constitutional rights conferred to a mother in the Federal Constitution and to the parental rights granted in the Guardianship of Infants Act 1961 and seeks clarification. If the judge is correct in his interpretation, then the law must be amended forthwith. It is opined that any interpretation that falls under Part 2 (Fundamental Liberties) of the Federal Constitution should be given a wide interpretation as liberties cannot be interpreted narrowly. We further state that in interpreting the law, a purposeful approach should be taken in that the whole spirit of the legislation should be considered. Now which system do women in similar predicament go to? Firstly, under the 9th Schedule List 2 of the Federal Constitution it is said “ ... the constitution, organisation and procedure of Syariah courts which shall have jurisdiction only over a person professing the religion of Islam ...” Secondly, Section 46(2)(b) Administration of Islamic Law (FT) Act 1993 goes on to state that a Syariah Court shall in its civil jurisdiction, hear and determine all actions and proceedings in which all the parties are Muslims. The Syariah Court is designed to hear matters in which all parties are Muslims. As a non-Muslim, Shamala cannot go before the Syariah Court even if she wanted to. The Civil Court would therefore remain the only existing forum accessible to her. Unfortunately, in Shamala’s case she was made to face the uncanny reality — she does not have a court to seek justice. No court would uphold her constitutional and parental rights. The legal doors have shut on her face. Even if the law has failed, one would have thought that equity would prevail but alas, even the doors of fairness have been shut on her face. All that this woman wanted was to be treated fairly. She married legally, sought maintenance for children legally, sought custody of her children legally and has now sought a declaration for the nullification of the conversion in the same manner. Just like most other women, she has been patient with the law but it is all to no avail. Her children, who have been with her since birth and who have been Hindus since birth, have been converted. It was a decision taken unilaterally by the husband without the knowledge and consent of his wife. This is an insult to Section 5 of the Guardianship of Infants Act 1961, which talks about both parents having responsibility for a child’s long term welfare, which includes decisions such as a child’s health, education and religion. Effects on non-converting spouse One area of decision that can affect a non-Muslim mother is the seeking of custody of her children. Certainly the only rebuttable factor that can allow a custody decision against her would be the fact that her children are Muslims. Assuming that a non-Muslim mother is given custody, how is this mother going to bring up two Muslim children in the manner expected of her without having a deeper understanding of the religion herself? What about her rights to enjoy and share her own religion and culture and socialise with her children? AWAM’s proposed reforms Some areas of the law that need urgent reforms are as follows:
The law, as it stands, seems to suggest that custody only means the right to have the daily care and control of the child and that the mother be given the right and responsibility to make decisions related to such daily care. Guardianship, on the other hand, means that a parent has the responsibility for the child’s long-term welfare and this includes both parents unless there is a court order that states otherwise. Let us not falsely presume that Shamala’s is a one-off case. It is most certainly not and we know this for a fact as we continuously receive telephone calls from women telling us of the threats that they receive from their husbands. They live in fear of their children being taken away from them. They go into hiding. The manner in which the law is currently interpreted in disregard of the constitutional rights of a mother is causing a furore. Shamala has since left home with her two sons. None of us know her whereabouts and it doesn’t matter any longer. What else can a woman in her position do? The legal system has failed in its duty to protect her. When the Court invited and sought the Attorney General’s legal opinion on the issue of nullification of the conversion of Shamala’s children, Dato’ Azhar bin Mohamed advised the court that the civil court had no jurisdiction to hear the matter. Dato’ Azhar also recognised the fact that Shamala does not have a legal recourse in any court in this matter and therefore will have to hope for intervention by Parliament. We hope with all sincerity that — even if there is such a lacuna (which view we respectfully disagree with) — the Attorney General will take immediate steps to advise the Government on some reforms needed to protect the rights of non-Muslim mothers. In the recent Election, the Prime Minister’s clarion call was “Malaysia for Malaysians”. In line with this spirit we urge the Prime Minister to take immediate steps to protct the rights of non-Muslim women in these situations and to restore the faith of these women by legislating the relevant laws. We need the support of all religious organisations, NGOs and most importantly the government to take immediate remedial steps to protect non-Muslim women from this form of violation. AWAM on its part has consistently and for a long time brought up this issue of one spouse converting to Islam. Lest it be misunderstood, AWAM is certainly not against any party converting to Islam. AWAM recognises the fact that the choice of religion is one’s constitutional right. But the issue here is the impingement of the constitutional and parental rights of a mother. It is with this in mind that, over the years, AWAM has consistently brought out this issue; but the pleas, the arguments and the proposals from AWAM fell on deaf ears. And as a result, women like Shamala have lost their parental and constitutional rights. Is this going to be the last case? Certainly not. There will be many more Shamalas who will face the same plight. What more, the judgment of the High Court adds a stamp of authority for this kind of action. It is time the law is amended to stop such a blatant miscarriage of justice and fairness.
Sisters-in-Islam: Federal Court must resolve conflicting jurisdictions between civi and syariah courts We are disappointed with the Federal Court’s decision in not dealing with major constitutional issues regarding freedom of religion. The Federal Court, as the highest court of the land, cannot abdicate its responsibility to resolve the conflicting jurisdiction between civil and syariah courts on matters relating to freedom of religion . Both courts could claim jurisdiction on this issue. However, the growing trend shows that the civil courts are not exercising their jurisdiction over cases involving the freedom of religion by throwing them back to the syariah courts for adjudication. The civil court is, therefore, not providing redress to aggrieved parties to exercise their right under Article 11, which guarantees freedom of religion. Sisters-in-Islam is concerned that when it comes to areas of conflict between civil law and syariah matters, the civil courts are increasingly reluctant to deal with these issues, for whatever reason. Freedom of religion is a fundamental tenet of Islam. Sisters-in-Islam urges the Federal Court to take a brave and principled stand to uphold Article 11 of the Federal Constitution and Article 18 of the Universal Declaration of Human Rights. Sisters-in-Islam 23 July 2004 Can her children be taken away any time? Is the High Court forcing a Hindu mother to bring up her children as Muslims? On 21 July 2004 the High Court granted joint legal custody of their children to Shamala Sathya-seelan and her estranged husband Dr. M Jayaganesh @ Muhammad Ridzwan. Actual custody, care and control was given to the mother with the proviso that this would be lost if she taught the articles of her own faith to the children or made the children eat pork. The father was given the right of access to visit the children on alternate Saturdays between 1.00 pm to 2.00 pm and on Sundays between 1.00 pm to 2.00 pm. The father is not to remove the children from Alor Setar. The father is to pay the wife maintenance amounting to 20 per cent of his monthly income for the children plus medical fees and education expenses on production of receipts. The custody rights and maintenance are to continue until the children are 21 years old but may be varied if the children cease to be Muslim when they are 18 years old. In this case, a Hindu man married a Hindu woman in a Hindu temple marriage and brought up the children born during the marriage as Hindus. The Hindu man converted to Islam and secretly converted their two children, aged 4 years and 2 years, without the consent of Shamala, his wife, the children's natural and lawful mother. The High Court previously decided that only the Syariah Court could decide if this conversion was valid. The Malaysia Hindu Sangam sympathises with the predicament Shamala Sathyaseeelan and her two children now face. Though given actual custody and joint legal custody of her children, Shamala is still living in fear – her children can be taken away from her any time if it is thought she is “teaching” her own children the articles of her faith. The High Court is effectively forcing a Hindu natural and lawful mother to bring her children up as Muslims. The High Court is implicitly restraining the exercise by the Hindu mother of her own religious freedom. The learned judge himself adversely commented in open court on the fact regarding the children’s conversion to Islam by their muallaf father without notice to or permission from the mother. By previously refusing to grant a declaration that the conversion of the children to Islam was contrary to law and now putting an onerous caveat on the custody order which indirectly jeopardizes the mother’s religious freedom, the High Court’s decisions in this case create serious practical problems for this family. The Malaysia Hindu Sangam fears that the children may be taken away any time by Kedah Syariah Enforcement officials acting pursuant to the secretive custody orders obtained without notice to the mother by the muallaf husband in the Kedah Syariah Court. The Malaysia Hindu Sangam is concerned that the teaching of Hinduism to ‘Muslim’ children (though we do not agree the children are Muslim) is considered wrong by the High Court. Surely, in these difficult times, the way forward to greater harmony among religions is for all children to be taught the essentials of all the major religions. The Malaysia Hindu Sangam repeats its call for all State Governments and the Federal Government to urgently undertake a review of this situation in consultation with all relevant parties. The relationship between syariah courts and the civil courts in this country must be revisited and systems that are fair to Muslims and non-Muslims and guarantee our fundamental Constitutional safeguards to religious freedom must be formulated without delay and implemented as soon as possible to avoid further injustice. Datuk A. Vaithilingam President Malaysia Hindu Sangam Now e-mail us and tell us what you think. Your comments might be published in the Letters section of our print magazine, Aliran Monthly. Alternatively, post your comments to the message board. | |||||||||||||||
...the issue here is the impingement of the constitutional and parental rights of a mother.
