PUTRAJAYA: The Federal Court heard today that there will be no peace of mind for a spouse when the other resorts to unilaterally converting their children to settle domestic disputes.
“The other spouse will not know what is being done behind his or her back,” lawyer Fahri Azzat said.
The lawyer said this in his submission on behalf of kindergarten teacher M Indira Gandhi who is seeking to overturn the unilateral conversion of her three children by her Muslim convert ex-husband Muhammad Riduan Abdullah.
He said as such, both spouses must be given the right to decide on the conversion of their children.
“The civil court must be given the jurisdiction to settle such disputes in the interest of the children as both parties can be represented,” he said.
Fahri said currently the spouse who converted to Islam could do anything unilaterally and would leave the other in the lurch and this was a breach of natural justice.
Fahri said the 2007 Federal Court ruling in the case of Subashini Rajasingam v Saravanan Thangathoray that a single parent could convert their children was an obiter dictum or a passing remark.
In that case, the majority in the three-man 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, Fahri today told the bench 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”.
“The equality principle and protection from discriminaton will be violated if one party to a civil marriage is allowed to make a unilateral decision on the children’s conversion,” he said.
He said the apex court had to put things in the right perspective as Malaysia had ratified international conventions to protect the rights of women and children.
Meanwhile lawyer K. Shanmuga submitted that the civil court had jurisdiction to hear Indira’s case as the subject matter was on the validity of the conversion certificates of her minor children.
This is an administrative law isssue to see whether a public authority had complied with a state enactment,” he said.
Lawyer Aston Paiva also told the bench that Indira’s children were not present nor understood the conversian process.
“The question arises whether the children converted to Islam of their free will,” he said, adding that the authorities went against several provisions in the Administration of the Religion of Islam (Perak) Enactment 2004.
In December, the majority Court of Appeal ruling held that the validity of the children’s conversion by Riduan could only be determined by the Shariah court.
Justices Balia Yusof Wahi and Badariah Sahamid said the civil court did not have the jurisdiction to hear the conversion.
However, Justice 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.
The High Court in Ipoh had held the conversion certificates of the children – Tevi Darsiny, Karan Dinish and Prasana Diksa – were null and void.
Indira had named the director of the Islamic Religious Affairs Department, the Pendaftar Muallaf, the Perak Government, the Ministry of Education, the Government of Malaysia and Riduan as respondents.
Hearing by the five-man bench chaired by Chief Judge of Malaya Zulkefli Ahmad Makinudin was adjourned to Dec 5 for the respondents to reply.