They said this issue has to be put to rest to bring certainty to parents like kindergarten teacher M Indira Gandhi.
Indira is challenging the conversion of her three children to Islam.
Lawyer Ravi Nekoo said lawyers would be waiting anxiously for the verdict as this issue had yet to be settled despite a number of cases landing in the Federal Court over the last 15 years.
“This conundrum has to be resolved to bring some certainty and Indira’s case is the best opportunity,” he told FMT in response to the five-man bench, led by Court of Appeal president Zulkefli Ahmad Makinudin, which will deliver its verdict on Monday.
Others members are justices Richard Malanjun, Zainun Ali, Abu Samah Nordin and Ramly Ali.
Ravi said a High Court, in the case of Chang Ah Mee v Jabatan Hal-Ehwal Agama Islam Sabah, had ruled in 2003 that the consent of both parents was required when a child of a civil marriage was converted to Islam.
He said the Federal Constitution did not discriminate against gender and the court held that Article 12 (4) must necessarily mean both father and mother.
However, a 2007 majority Federal Court ruling, in the case of Subashini Rajasingam v Saravanan Thangathoray, 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.
However, the legal fraternity is 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”.
Lawyer Balwant Singh Sidhu said Indira’s children were the product of a civil marriage, which is a contract in law.
“In this case, the wife has legitimate expectations after having entered into a civil marriage. The ex-husband is trying to shift the goal post by saying she is bound by his new religion and steal the march on her by claiming custody,” he said.
He said the civil courts had jurisdiction and power to decide on the custody of a child in a non-Muslim marriage under Section 88 of the Law Reform Act 1976.
He said Section 89 (2) empowered the court, when granting order of access, to place such conditions like religion, education and upbringing of the child.
“I hope the Federal Court will faithfully give effect to the very clear intention of Parliament, as can been seen from Section 89,” he said.
Indira and K Patmanathan, now known as Muhammad Riduan Abdullah, were married in April 1993 and had three children, the youngest being Prasana Diksa.
On March 11, 2009, he embraced Islam and a month later converted the children without the mother’s knowledge or consent.
On March 31, 2009, Riduan forcibly took Prasana Diksa, then 11 months old, away from the mother without her consent.
On Sept 29, 2009, the shariah court granted him custody of the children, but Indira managed to revoke it in the High Court the following year.
Prasana Diksa was never returned to Indira, but her two other children, Tevi Darsiny, 20, and Karan Dinish, 19, are under her care.
In July 2013, then Judicial Commissioner Lee Swee Seng quashed the conversion certificates of the children as both parents must give their consent.
In December 2015, a majority Court of Appeal ruling held that the validity of the conversion by Indira’s ex-husband, Riduan, could only be determined by the shariah courts.
Justices Balia Yusof Wahi and Badariah Sahamid said the civil courts 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 three questions posed before the Federal Court during the appeal were:
- whether the civil court has the exclusive jurisdiction to review the actions of the Registrar of Muallafs or his agents in exercising statutory powers vested by the Administration of the Religion of Islam (Perak) Enactment 2004;
- whether a child of a civil marriage must comply with both sections 96(1) and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 before the conversion, and;
- whether the mother and the father must consent before a certificate of conversion can be issued to a child.
Federal Court to finally deliver ruling in Indira Gandhi’s case – on Jan 29
Changes in laws is lasting solution to unilateral conversion, say lawyers