They said this matter had not been conclusively decided and kindergarten teacher M Indira Gandhi’s challenge of the unilateral conversion of her three children by her Muslim convert ex-husband is an apt one.
The Federal Court will hear on Monday Indira’s appeal, culminating from her three-year legal battle.
In 2010, the Federal Court had the opportunity to ventilate on this issue in the case of Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah, who embraced Islam.
However, a five-man bench, chaired by then chief justice Tun Zaki Azmi, refused to hear the leave to appeal application on grounds that Shamala had absconded from Malaysia with her children and was, therefore, in contempt of court.
Lawyer Ravi Nekoo said a Federal Court in 2007 had opined that a single parent could convert the children. This was in the case of Subashini Rajasingam v Saravanan Thangathoray.
“In legal terms, it is only an obiter dictum or a passing remark. It was not a central issue that was up for discussion before the apex court,” the family law counsel said.
In Subashini’s case, the majority in the three-man Federal Court bench interpreted Article 12(4) of the Federal Constitution and held that one parent could convert their children.
This provision states that the religion of a person under the age of 18 shall be decided by his parent or guardian.
The judges held the view that the word “parent” as “a single parent” and it follows that either spouse has the right to convert a child of marriage to Islam.
However, lawyers have argued that the 11th Schedule of the Constitution provides that in interpreting the supreme law of the land, “words in the singular include the plural, and words in the plural include the singular”.
As a consequence of the Subashini case, a converting party is able to seek remedies in the shariah court.
As a result of the ruling, civil society and politicians from both sides of the political divide had called on the government to make amendments to the Law Reform (Marriage and Divorce) Act 1976 to provide that both parents must consent to the change of religion of a minor child.
Meanwhile, lawyer Benjamin Dawson said Indira’s appeal would also debate on whether the conversion of her children should be referred to the civil court or the shariah court.
He said the broad and general understanding is that conversion out of Islam came under the jurisdiction of the shariah court and everyone was looking forward to how the court was going to decide in Indira’s case.
“The court has to first decide whether the conversion is valid,” he said, adding that conversion was purely a constitutional issue, not a religious matter.
In December, the majority Court of Appeal ruling held that the validity of conversion of the children by Indira’s former husband Muhammad Riduan Abdullah could only be determined by the shariah court.
In setting aside the ruling of the Ipoh High Court, justices Balia Yusof Wahi and Badariah Sahamid said the civil court did not have the jurisdiction to hear the conversion.
However, judge Hamid Sultan Abu Backer, in his dissenting judgment, said the conversion was purely an administrative matter and the civil court could inquire into the matter.
High Court judge Lee Swee Seng had held the conversion certificates of the children – Tevi Darsiny, Karan Dinish and Prasana Diksa – were null and void.
Tevi Darsiny and Karan Dinish are in Indira’s care while Prasana Diksa is still with Riduan, whose original name was K Pathmanathan.
In 2009, Riduan snatched Prasana, then aged 11 months, before unilaterally converting the three children in their absence.
Indira subsequently won full custody of her children in the High Court on March 11, 2010.
Riduan has yet to return Prasana, now eight, despite being found in contempt of court for failing to comply with the High Court ruling.
Tevi Darsiny, 19, and her brother, Karan Dinish, 18, both of whom have reached the majority age, are under the custody of Indira while Prasana’s location remains unknown.