PETALING JAYA: Kindergarten teacher M Indira Gandhi and spouses in similar predicament will have to wait for a Federal Court ruling whether a parent can unilaterally convert their children, family law practitioners said.
They, however, said it was still desirable in the long term for parliament to amend the Law Reform (Marriage and Divorce) Act (LRA) to stop such conversion when a spouse becomes a Muslim.
The lawyers said an apex court ruling could be departed from by another bench later and the conversion issue would recur.
Lawyer Balwant Singh Sidhu said if the Federal Court in Indira’s appeal correctly decided the interpretation of Article 12(4) of the Federal Constitution, then an amendment to section 88 might not be necessary.
Indira’s lawyer have argued that the consent of both parents are needed when a spouse converts the children of a civil marriage to Islam.
Meanwhile, the Federal and Perak governments have submitted that a majority Federal Court ruling in the case of Subashini Rajasingam v Saravanan Thangathoray, had opined that a single parent could convert a child who is aged below 18.
Lawyer Ravi Nekoo said that pronouncement was only a passing remark (obiter dictum) and was not a central issue that was up for discussion before the apex court in 2007.
The judges held the view that the word “parent” was “a single parent” and it follows that either spouse has the right to convert a child of marriage to Islam.
Balwant said an amendment might still be desirable only because “we would not want another future panel of the Federal Court to say otherwise and again throw the law into a state of flux”.
He said this in response to the Dewan Rakyat passing amendments to the Law Reform Act on Thursday, minus section 88A(1).
That provision states that if a parent converts to Islam, the religion of the children remains the same unless both parents agree to the conversion of their children.
Balwant said even if a parent disagreed to a conversion, the civil family court could decide the religion the child might be brought up in.
“That is in fact already a condition that the court may presently attach to orders for custody under the existing Section 88 of the LRA,” he said.
He said the court could step in because religion was part of the child’s welfare, besides education and upbringing.
Lawyer Goh Sui Lin said Indira and others would cling to the hope that the Federal Court would make a ruling that gave equal rights and equal protection of the law to prevent unilateral conversion.
“However, it will be better for clear changes in the law, including the Federal Constitution, to stop the problem once and for all,” she said.
Goh said other state religious authorities should also emulate the example of Negeri Sembilan in disallowing conversion when the non-converting parent did not give consent.
The Human Rights Commission of Malaysia (Suhakam) today expressed disappointment over the decision to withdraw a provision in the LRA which would have resolved interfaith custody conflicts between Muslim and non-Muslim parents.
In Indira’s case she is challenging the validity of the conversion certificates of the Perak state religious authorities.
Her ex-husband K Pathmanathan, who has taken the name Muhammad Riduan Abdullah following his conversion, had unilaterally changed the religion of their three children in 2009.
While Indira has obtained custody of two children, the youngest child, who was separated from the mother as an infant, is still with Riduan.
The Federal Court which completed hearing parties to the dispute in November last year will also decide whether the civil court or shariah court is the right forum to rule on conversion cases.