Conversion of a non-muslim minor by a converted parent (muslim parent) without the consent of th...

1. Genga Devi Chelliah v. Santanam Damodaram [2001] 2 CLJ 359

1.1. an applicant who had embraced islam obtained an order for custody of a child from the Syariah Court in Alor Setar. The respondent (the mother) who was a Hindu asked for a declaration that the order was ultra vires and null and void. The court held that Article 121(A) of the federal constitution provides that the civil courts cannot interfere with matters within the jurisdiction of Syariah Court, let alone set aside an order of Syariah court. The jurisdiction is separated. The court held that as the respondent was the father of the children, he had the right to determine his children’s religion.

2. Chang Ah Mee v. Jabatan Hal Ehwal Agama Islam, Majlis Ugama Islam Sabah & Ors [2003] 5 MLJ 106

2.1. the plaintiff, being the mother of the infant-daughter, filed an application for a declaration that the conversion of her daughter to Islam by Jabatan Hal Ehwal Agama Islam, Majlis Ugama Islam Sabah be declared null and void.

2.2. The father converted to Islam in January 1998 and his daughter was subsequently converted in July 1998, without the knowledge of the mother.

2.3. Applying the principle in Shaik Zolkaffily bin Shaik Natar, the court dismissed the contention of the husband that the High Court had no jurisdiction to interpret state law provision concerning the administration of Islamic law and as such had jurisdiction to hear the case.

2.4. In determining the second issue, the court had to determine the interpretation of the word “parents” in section 68 of the Sabah Administration of Islamic Law Enactment 1992 which provision required the consent of the parents to the conversion to Islam of a person below 18 years of age and the word “parent” as provided under Article 12(4) of the Federal Constitution, which requires the decision of parent or guardian in determining the religion of underage person

3. Shamala Sathiyaseelan v. Dr Jeyaganesh C Mogarajah & Anor [2004] MLJ 648

3.1. The husband had converted to Islam and later converted the minors to Islam without the consent and knowledge of the wife. The two children of the marriage, ie the minors were Hindus at the time of birth.

3.2. the wife relies on Art 12 (4) of the Federal Constitution and section 5 of the Guardianship of Infants Act 1961 (Act 351) that gives equality of parental rights and also section section 95 (b) of the Administration of Islamic Law (Federal Territories) Act 1993.

3.3. the use of the singular word ‘parent’ in both Art 12 (4) of the Federal Constitution and section 95 (b) of Act 505 shows the consent of a single parent was enough to validate the conversion of a minor to Islam

4. Indira Gandhi Mutho V. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ 145

4.1. the certificates of conversion issued by the Pengarah Jabatan Agama Islam Perak which converted the three children of Madam Indira Ghandi, is not validate they are procedurally flawed i.e. requires the consent of both parents (and not just one parent) for conversion of minors.

4.2. The judges clarified that provisions in the Federal Constitution cannot be interpreted literally, and the term “parent” used in the Constitution, would have a plural meaning of “both parents”, as long both are alive, and the singular term was used to provide for a situation where a single parent is alive.

5. Re Susie Teoh; Teoh Eng Huat v. Kadhi of Pasir Mas Kelantan & Majlis Ugama Islam [1990] 2 MLJ 228

5.1. Father sues the Majlis Ugama Islam Kelantan for converting her (free will) minor-daughter, without her father’s permission

5.2. The High Court in Kota Bahru held that the conversion was valid, as the girl(15 years old) had the right to choose her own religion, provided that she did it according to her own free will, as such it was not contrary to the provision of Articles 11 and 12 of the Federal Constitution.

5.3. The court further held that it was consonant with the provision under section 75 of Kelantan Council of Religion and Malay Custom Enactment 1966, which states that if the Kadhi was satisfied that a person was a major according to Hukum Syarak he may register the person as a convert.

5.4. This decision was later reversed by the Supreme Court. . However, the court declined to make the declaration as the daughter was no longer a minor at that time.

6. Nedunchelian Uthiradam v. Nurshafiqah Binti Mah Singai Annal and 9 others [2005] 2 CLJ 306

6.1. the plaintiff (father) seeks to invalidate a Syariah Court order obtained by the first defendant (mother) converting their minor children from the Hindu faith to the Islamic faith as the first defendant converted the children after converting herself.

6.2. merely following the religion of the mother who has converted to Islam is permissible and does not in any way offend the provisions of the Article 12 (4) of the Federal Constitution.

7. Subashini a/p Rajasingam v. Saravanan a/l Thangathoray [2007] 2 MLJ 798; [2008] 2 MLJ 147

7.1. the conversion of the elder son to Islam by the husband, albeit under the Selangor Enactment, did not violate the Federal Constitution.

7.2. Federal Court judge Justice Nik Hashim Nik Ab Rahman had said the word “parent” in Article 12(4) of the Constitution, which states that the religion of a person under the age of 18 years shall be decided by his parent or guardian, means a single parent.

8. requirements for conversion

8.1. age qualification

8.1.1. 1) attaining the age of majority (baligh) in accordance with Islamic law

8.1.2. 2) attaining the age of eighteen years;

8.1.3. failure which the consent of parent or guardian shall be obtained

8.2. of a sound mind person

9. provisions

9.1. ARTICLE 12(4)

9.1.1. "For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian. "

9.2. section 5 of the Guardianship of Infants Act 1961

9.2.1. the consent of parents in the upbringing of the minor children

9.2.2. The provision granted simultaneous conversion of minor with the conversion of the parent or guardian

9.3. section 3(2) of Age of Majority Act 1971 (Act 21)

9.3.1. “In computing the age of any person the day on which he was born shall be included as a whole day, and he shall be deemed to have attained the age of eighteen years at the beginning of the eighteenth anniversary of that day”