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Federal court to determine validity of conversion of children

Posted in Uncategorized by malaysiasms on April 28, 2009

PUTRAJAYA: The Federal Court has been tasked to determine the validity of the conversion of children of a civil marriage into Islam by one parent without the consent and knowledge of the non-converted parent.

The Court of Appeal today (28 April) referred the Shamala-Ridwan custodial rights case to the Federal Court for determination of five constitutional questions. The apex court will have to adjudicate on conflicting Islamic and civil laws governing conversion and family matters and also on the Federal Constitution, inxcluding on equality and freedom of religion.

One of the questions is whether the Administration of Islamic Law (Federal Territories) Act 1993 which gives rights to a converted parent to convert his or her children from civil marriage without the knowledge and consent of the other parent, is inconsistent with the Guardianship of Infants Act 1961.

The amended Guardianship of Infants Act gives equal rights to a mother and father on the upbringing and custody of their children.

Court of Appeal judge Abdull Hamid Justice Datuk Abdull, who presided with Justices Datuk Hasan Lah and Datuk Abdul Malik Ishak, unanimously granted the referral order sought by S.Shamala who is embroiled in a custody battle with her converted husband, Dr Jeyaganesh C. Mogarajah.

Shamala, 37, married Jeyaganesh, 41, in 1998 according to Hindu rites and their marriage was registered under the Law Reform (Marriage and Divorce) Act 1976.

In 2002, four years after the marriage, Jeyaganesh embraced Islam and subsequently converted Saktiwaran and Theiviswaran, who were then aged three and two, to Islam without Shamala’s knowledge and consent.

Shamala, who now has custody of the two boys, was also ordered not to teach them her religious beliefs or to make them eat pork.

Despite the fortnightly visitation rights granted to Jeyaganesh by the civil High Court in 2004, he claimed he had not seen his two boys for the past five years.

The application to refer the constitutional questions to the court was with the consent of Jeyaganesh, whose Muslim name is Muhammad Ridzwan Mogarajah, and the Federal Territory Islamic Council.

The Federal Court’s answer on the five questions is expected to be a crucial one to bring remedy to couples caught in a similar situation.

The five questions are:

1. Whether Section 95 (b) of the Administration of Islamic Law is ultra vires Article 12 (4) (which states that there shall not be discrimination against any citizen) and Article 8 of the Federal Constitution (that all persons are equal before the law and entitled to equal protection of the law).

2. Whether Section 95 (b) of the Administration of Islamic Law , as state law, is by reason of Article 75 of the Federal Constitution, inconsistent with a Federal law, namely, Section 5 (1) of the Guardianship of Infants Act and therefore invalid.

3. In the context of Article 121 (1A) of the Federal Constitution (which gives exclusive jurisdiction to the syariah court on Islamic matters), where a custody order is made by syariah court or the high court, on the basis that it has jurisdiction to do so, whether there is jurisdiction for the other court to make a conflicting order.

4. Where there has been a conversion of the children of a civil marriage into Islam by one parent without the consent of the other parent, whether the rights of remedy under Part II of the Federal Constitution of the non-Muslim parent is vested in the High Court.

5. Whether in the context of Articles 8, 11, 12 (4) and 121 (1A) of the Federal Constitution, the Syariah Court has exclusive jurisdiction to determine the validity of conversion of a minor into Islam once the minor has been registered by the Registrar of Muallafs (Majlis Agama Islam).

A team of lawyers led by Datuk C.V.Das represented Shamala while Muralee Menon appeared for Jeyaganesh, and Tan Sri Azmi Md Rais and Zulkifli Che Yong for the Islamic council. (Bernama)

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