Civil courts have no jurisdiction over conversions, defer to Shariah Court

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Source: The Malaysian Insider

Indira Gandhi at the Court of Appeal today. Her former husband abducted one of their three children and earlier, unilaterally converted them to Islam. – The Malaysian Insider pic by Nazir Sufari, December 30, 2015.

The Court of Appeal, in a majority ruling today, held that the validity of conversion of three children by their Muslim father could only be determined by the Shariah Court.

The appellate court, saying that the Ipoh High Court did not have the jurisdiction to hear the conversion, reversed a lower court’s order quashing the unilateral conversion of the three children to Islam.

The three-man bench, headed by judge Datuk Balia Yusof Wahi, said taking the subject-matter approach, the conversion has to be decided by the religious court.

Concurring with Balia was Datuk Dr Badariah Sahamid.

Judge Datuk Hamid Sultan Abu Bakar in his dissenting judgment said that the conversion was purely an administrative matter.

He said the conversion was done by the Registrar of Conversion but did not comply strictly with the law.

“The law states that the child must make the application and the father must consent,” he said.

Here, he said, the father made the application.

“So the entire exercise was a nullity from the beginning,” Hamid added.

The judge also remarked that the conversion issue would not be settled as long as judges did not appreciate the rule of law and supremacy of the constitution.

On July 25, 2013, then High Court judge Lee Swee Seng held the conversion certificates of the children – Tevi Darsiny, Karan Dinish and Prasana Diksa – were null and void.

Lee cited provisions under Perak Shariah law where the children must be present to utter the affirmation of faith or the “syahadah”.

He said the Perak state enactment required a child to be present before a certificate of conversion could be issued.

This matter arose after the children’s father, Muhammad Riduan Abdullah, whose original named was K. Patmanathan, converted them without the knowledge and consent of his wife, kindergarten teacher M. Indira Gandhi.

The Perak Religious Department, the state and federal governments, Registrar of Conversions, Education Ministry and Riduan then challenged a High Court decision to quash the children’s conversion certificates.

In 2009, Riduan went to the Shariah Court and obtained custody of the children but last year, the High Court ordered Riduan to return the children to his ex-wife.

However, Riduan, who is said to be living in Kelantan, is still holding on to Prasana Diksa, now seven years old.

Senior Federal Counsel Shamsul Bolhassan told the bench during submission in May that Riduan could unilaterally convert the children and the civil court has no jurisdiction to hear the case.

“Only the Shariah Court is the right forum as the subject matter is about conversion.”

He said the civil court could not adjudicate the matter even if the registrar who facilitated the conversion did not follow procedures.

He added that it was legal for the father to convert the children because the Federal Court had pronounced that a parent could do so without the consent of the other spouse. – December 30, 2015.

 

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