Both parents must consent to religious conversions of children, Malaysia’s highest court ruled Monday in deciding that a former Hindu man’s unilateral conversion of their three offspring to Islam had violated their mother’s constitutional rights.
Determining that the Constitutional definition of “parent” is plural, a five-member bench of the Federal Court of Appeal ruled for kindergarten teacher M. Indira Gandhi, 43, a Hindu. Her former husband, a Muslim convert also converted their children to Islam without her consent nine years ago.
Justice Zulkefli Ahmad Makinuddin, the court of appeal president who led the panel, said the “court unanimously decided that the conversion of non-Muslim children must get the consent of both parents.”
Monday’s ruling, which followed a nearly decade-long court battle, declared a Muslim court’s certification of conversion for the three children – now ages 20, 19 and 9 years old – to be null and void.
Gandhi’s ex-husband, Muhammad Riduan Abdullah, 47, formerly known as K. Pathmanathan, converted the children to Islam on March 11, 2009, without her knowledge and left the house three weeks later with their youngest child.
Malaysia has a dual legal system where its Islamic courts, which hear cases of family disputes and inheritance involving Muslims, run parallel with the nation’s civil courts. Non-Muslims have no right to appear in Islamic Courts – contributing to messy interfaith custody battles.
“We find that the Registrar of Muallafs (Muslim converts) had no jurisdiction to issue the certificates of conversion in respect to the conversion of the children to Islam,” Justice Zainun Ali said when reading the judgment.
In its ruling, the court affirmed that the term “parent” should be plural and be read as “parents,” according to Zainun.
“It is noted that in translating Article 12 (4) of the Federal Constitution, it would appear that the real essence of the English version is eluded. It is literally a case of being lost in translation,” Zainun said.
The article states the religion of a person under the age of 18 years shall be decided by “his or her parent or guardian.” Prior to the ruling, disputes focused on an argument that consent of just one parent could suffice.
While the Malaysian government previously pledged to resolve such cases, there is no law or mechanism in place to stop a parent converting a child unilaterally.
The decision signals that the rights of religious minorities are protected, senior lawyer Mohd Haniff Khatri said. The country is 60 percent Muslim and has sizeable minorities of other religions including Buddhists, Hindus and Christians.
“The minorities may look at this as a God-sent judgment in their favor,” he told BenarNews.
Gandhi wants to reunite with her youngest daughter, Prasana Diksa, whom she had not seen since the child was converted to Islam in 2009.
She has contact with her elder children, Tevi Darsiny, 21, and Karan Dinish, 20, while her ex-husband has custody of their youngest child.
“The sad part is my daughter is still missing, I can’t see her. I really want to hold her, it’s been nine years. Even when we have won this case, she is not with us,” Indira told journalists outside the courtroom.
Thanking her legal team and the court, Gandhi called on Malaysian police to track down her ex-husband and hand over Prasana.
“He has to start acting right now,” she said, referring to Police Inspector-General Mohamad Fuzi Harun.
Fuzi said he would abide by the court’s decision and would continue to look for Riduan, adding that a warrant had been in effect since 2014. Police sent two letters in 2017 to Gandhi’s lawyer to keep her informed on efforts to locate her former husband and their daughter.
“The Malaysian police again ask for the cooperation of the public with any information on Patmanathan (alias Krishnan Muhammad and Riduan Bin Abdullah) to come forward and assist the police in solving the case,” Fuzi said in a statement.
Azalina Othman, a minister in the Prime Minister’s Department in charge of law, said the Malaysian government was calling on all parties to respect the ruling.
“I believe today’s decision also took into consideration racial harmony and the equal rights of the parents as provided under the Child Custody Act 1961,” she said in a statement.
Civil rights group Bebas (Freedom) called on state Islamic authorities to amend procedures so that consent of both parents is required for minors to have their registrations changed to Muslim.
“Bebas calls on federal government to amend the federal Law Reform (Marriage and Divorce) Act and for the state governments of Perak, Kedah, Melaka, Negeri Sembilan, Sarawak, Perlis, Pahang and Kelantan to also amend the respective state Islamic enactments in those states, to explicitly state that the consent of both parents is required to convert a child below 18 years of age to Islam,” the group said in a statement.
Five other state Islamic authorities require the consent of both parents.