TWO cases decided by the apex court – the Federal Court – demonstrate how justice was dispensed on custodial rights over children when one of the parties to a non-Muslim marriage accepts, or converts to, Islam.

In the case of Viran a/l Nagapan v Deepa [2016] 1 MLJ 585, the parties contracted a civil marriage on March 19, 2003 under the Law Reform (Marriage and Divorce) Act 1976 (LRA). Out of the marriage, they had two children, a daughter and a son.

On November 26, 2012 the husband/father converted to Islam. Later, he registered the conversion to Islam of his two children and had their names changed.

He also applied for the dissolution of his civil marriage at the Seremban Shariah High Court. On May 15, 2013 the Shariah High Court granted an order for the dissolution of the civil marriage. At first, he was granted a temporary custody order of the two children but subsequently, the court granted him a permanent custody order. The mother of the children, however, was allowed visitation rights and access.

In the meantime, a petition for dissolution of the civil marriage and an order for the custody of the two children was filed at the Seremban High Court. On April 7, 2014 the Seremban High Court dissolved the civil marriage and granted permanent custody of the two children to the mother. The father was granted weekly access to the children.

On April 9, 2014 the father took the son away from the mother’s house. The mother thus applied for a recovery order before the Seremban High Court pursuant to section 53 of the Child Act 2001 (CA).

The High Court judge granted the mother’s application and made, inter alia, orders against the police to enter the father’s residence in order to recover the son and to return the son to the custody and control of the mother immediately (the recovery order). On April 11, 2014 the father filed a notice of appeal against the decision of the High Court judge in granting the custody of the two children to the mother.

Aggrieved with the recovery order, the father also filed an appeal to the Court of Appeal. The appeals against the custody order as well as the recovery order were heard jointly by the Court of Appeal.

Two main issues arose in the appeals before the appellate court and subsequently before the Federal Court. The first issue was whether the High Court had jurisdiction to make a conflicting order in a case where a custody order had been made by the shariah court. The second was whether the High Court had properly exercised its discretion in granting order of custody of the children to the mother.

With respect to the first issue, the Federal Court declared that the High Court had the exclusive jurisdiction regarding all matters pertaining to civil marriage under the LRA. Thus, it is an abuse of process for a converted spouse to file custody proceedings in the shariah court in respect of children of the civil marriage.

As regards the issue of custody, the Federal Court referred to section 88(3) of the LRA and decided that the paramount consideration in determining the custody of a child is the child’s welfare.

In determining the welfare of the child, matters such as the conduct of the parties, their financial and social status, the sex and age of the child and his/her wishes need to be taken into account. The Federal Court also acknowledged that a custody order is never final or irreversible.

Taking into consideration the welfare of the children as of paramount importance, the Federal Court was of the view that there was a need to consider the wishes of the children and balance it with their interest.

Consequently, the Federal Court varied the custody order granted by the High Court and ordered that the daughter shall remain with the mother while custody of the son was given to the father.

In the case of Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors [2018] 1 MLJ 545, the parties contracted a civil marriage under the LRA and had three children. On March 11, 2009 the husband/father converted to Islam. After the conversion, the father obtained a custody order of the three children from the Shariah High Court.

When the custody order was made, the elder two children were with the mother but the youngest child was with the father. Sometime in April 2009, the mother received certificates of conversion showing that the Registrar of Muallaf or Converts (the registrar) had registered the children as Muslims. The mother then filed an application for judicial review in the High Court challenging the decision of the registrar on the grounds that the registrar had acted in breach of the procedure set out in sections 96 and 106 of the Administration of the Religion of Islam (Perak) Enactment 2004 (the Perak Enactment) and that the certificates issues were void.

By her application, the mother sought, inter alia, an order of certiorari to quash the certificates and alternatively a declaration that the certificates were null and void.

The High Court allowed the judicial review application and ordered the certificates issued by the registrar to be quashed. The High Court also granted the mother custody of the three children. 

The father then filed three separate appeals against the decision of the High Court. The Court of Appeal held that the High Court had no power to question the decision of the registrar or to consider the registrar’s compliance with the statutory requirements of sections 96 and 106 of the Perak Enactment. 

Accordingly, the Court of Appeal set aside the decision of the High Court in allowing the judicial review application for an order of certiorari to quash the certificates of conversion to Islam of the children.

The mother obtained leave to appeal to the Federal Court. Unlike the case of Viran above, the decision of the apex court in Indira Gandhi’s case is well-known and in the public domain. Federal Court judge Zainun Ali delivered a lengthy judgment befitting the issues before the court.

On parental rights over a child’s religion or religious upbringing, Her Ladyship said:

“The law has come a long way from the days when one parent’s claim could be considered superior to the other. Where the child’s religion or religious upbringing is in issue, the paramount consideration for the court is to safeguard the welfare of the child, having regard to all the circumstances of the case.

“In so doing the court does not pass judgment on the tenets of either parent’s belief. Conversion to another religion is a momentous decision affecting the life of a child, imposing on him a new and different set of personal laws.

“Where a decision of such significance as the conversion of a child is made, it is undoubtedly in the best interests of the child that the consent of both parents must be sought. The contrary approach of allowing the child to be converted on the consent of only one parent would give rise to practical conundrums.”

The supporting judgment of the Court of Appeal president Zulkefli Ahmad Makinudin, too, is noteworthy. His Lordship said:

“The issue of religious conversion of young children into the Islamic faith is a contentious issue and has been the subject of discussion in the public domain in recent times. It has been noted that even the Executive and the Legislature have been contemplating introducing an amendment to the relevant laws to give effect to the position of the rightful party over the issue.

“I would like to state here that in deciding the issue before us, as judges we are not swayed by our own religious convictions and sentiment over the issue.

“In the present case in upholding the rule of law we have to decide on the issue strictly on the basis of the relevant laws, case authorities and the provisions of both the state and the Federal Constitution governing the particular issue.”

Upholding the rule of law means to give effect to article 12(4) – religion of a person under 18 shall be decided by his parent or guardian – read with the 11th schedule of the Federal Constitution that promotes the welfare of children as well sections 5 and 11 of the Guardianship of Infant Act 1961 which provides for equal rights of both parents in child custody.

Upholding the law is to do justice among the parties, including the children. – February 18, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.