PUTRAJAYA: The Federal Court said Article 12 (4) of the Federal Constituton which states that the religion of children be determined by their “parent” cannot be given a literal interpretation.
Justice Zainun Ali said this was because the provision fell under Part 11 of the constitution which covered the fundamental liberties of citizens.
She said it must also be recalled that the provisions of the constitution were not to be interpreted literally or pedantically.
Zainun said much emphasis had been placed on the literal meaning of the singular noun “parent” in Article 12 (4) in deciding the religion of children below 18 years of age.
Zainun said this in delivering the apex court’s unanimous judgment which allowed kindergarten teacher M Indira Gandhi’s appeal to set aside the 2009 conversion certificates of her three children by her ex-husband, K Pathamanathan, who has since taken the name Muhammad Riduan Abdullah.
The bench ruled that a spouse who converts to Islam has no authority to convert his or her minor children without the consent of the non-converting partner from a civil marriage.
Court of Appeal President Zulkefli Ahmad Makinudin chaired while the other members of the bench comprised justices Richard Malanjun, Abu Samah Nordin and Ramly Ali.
Today’s ruling is a departure from a controversial 2007 majority judgment by the Federal Court in the case of Subashini Rajasingam v Saravanan Thangathoray, which opined that a single parent could convert a child who is aged below 18.
As a consequence of the Subashini case, a spouse who becomes a Muslim can seek remedies in the shariah court, including conversion of children.
However, the legal fraternity was of the view that the 2-1 majority ruling was an obiter dictum, or passing remark.
Lawyers have argued that the 11th Schedule of the Federal 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”.
Zainun, in her ruling, said it must be noted that in translating Article 12 (4), it would appear that the real essence of the English version was eluded.
“The reason ‘parent’ is used in 12 (4) is to provide for a situation where indeed there is only one parent of the child – for example, a single parent situation. But where both parents exist, then the 11th Schedule shall be relied upon,” Zainun said.
She said the equality of parental right of an infant was also expressly embodied in the Guardianship of Infants Act 1961 (GIA).
Zainun said it was clear where one party to a civil marriage had converted to Islam, the ex-spouse (or converting spouse) remains bound by their legal obligation under the Law Reform Act (Marriage and Divorce) 1976.
She said in the present case, the children were the result of a Hindu marriage between Indira and Riduan.
“Under the GIA, both parents have equal rights in relation to the custody and upbringing of their minor children and the wishes of both are to be taken into consideration,” Zainun said.
She added that the husband’s conversion to Islam did not alter the antecedent legal position, nor did it bring the children out of the ambit of the GIA.
“Based on the purposive interpretation of Article 12 (4) read with the 11th Schedule and on application of section 5 of the GIA, it is concluded that the consent of both (Indira and her husband) are required before the certificates of conversion can be issued in respect of the children,” she said.
Zainun, who will retire this year, said Indira would exercise the dominant influence over the children since custody had been granted to her by the civil court.
“To allow the other spouse to unilaterally convert the children will amount to a serious interference with the lifestyle of the new family unit which will be a very wrong thing,” she said.
In 2009, Riduan snatched their youngest daughter Prasana Diksa, then aged 11 months old, before unilaterally converting their three children to Islam.
Six days later, the shariah court granted him temporary custody, and this was made a permanent custody order on September 29, 2009.
Indira subsequently won full custody of her three children in the Ipoh High Court on March 11, 2010, with the same civil court issuing a recovery order in her favour.
Riduan then failed to challenge the custody order at the Federal Court, and did not return Prasana despite being found in contempt of court for failing to comply with the Ipoh court ruling.