When conversion leads to abduction in Malaysia

Nation's top court says changing religious status of children by one parent illegal
When conversion leads to abduction in Malaysia

Malaysian Muslim girls from the Little Caliphs kindergarten circumambulate a mockup of the Kaaba, Islam's most sacred structure located in the holy city of Mecca, during an educational simulation of the Hajj pilgrimage in Shah Alam, outside Kuala Lumpur on July 24, 2017. (Photo by Mohd Rasfan/AFP)

ucanews.com reporter, Kuala Lumpur
Malaysia
February 2, 2018
Indira Gandhi wept again this time with joy. Nine years after her former husband snatched her two-year-old daughter from her side in 2009 the police have been told to act.

Malaysia's highest court had on that Monday (Dec. 29) morning just ruled that unilateral conversions, the method used by her former husband Muhammad Ridhuan Abdullah (formerly known as K. Pathmanathan) to gain custody of their children with the help of Islamic authorities, was illegal.

Gandhi's ex-husband had done exactly that, converting the three children just three weeks after he embraced Islam. The Shariah Court granted him custody of the three children not long after the children were converted to Islam.

It was the start of a long court battle for the kindergarten teacher. Her only comfort was her two elder children — daughter Tevi Darshiny, 20, and son Karan Dinesh, 18. Both remained with her. The youngest, Prasana Diksa, a 11-month infant when she was abducted by her father and is presumed to be with him, disappeared.

In 2013 the High Court ruled that unilateral conversion of Indira's three children by her ex-husband was against international norms and that the civil courts were superior to the Shariah courts.

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In 2014, Gandhi secured a court order compelling the police to find Prasana and return the child to her. But then national police chief Khalid Abu Bakar, citing jurisdictional conflicts between the secular and Shariah courts refused to comply.

The case was booted up to the Court of Appeals, which reversed the High Court judgment.

"It has been nine long years and I have yet to see my youngest child. As a mother, I long to see her and be united with her following today's decision," the 43-year-old kindergarten teacher told the media outside court.

"The only sad part is I cannot share this moment with my youngest daughter, who is not with me and my family. It has already been nine years for me not seeing her."

The ruling on child conversions may end the practice of quick-fire custody clearance by Islamic authorities in the country.

The court ruling defines the word 'parent' as plural when it comes to the a contentious issue of child conversions which has been used by divorcing parents to gain custody of children with the sanction of Islamic authorities.

Justice Zulkefli Ahmad Makinudin, who led a five-judge bench, said the decision was unanimous and stressed that the court was not swayed by religious convictions.

The justices also shattered the contention that the country's Islamic court shared equal powers with the civil court, ruling that the latter took precedence over the Shariah court in any dispute.

In their 99-page judgment the justices wrote that constitutional check and balance mechanisms "cannot be abrogated or altered by Parliament" [and] "the marked differences in the establishment constitution of the civil and Syariah courts showed that the two courts operate on a different footing altogether".

The justices said the child's religious upbringing was of paramount consideration to the court so as to safeguard the welfare of the child and since custody of the children had been granted to the mother, it is she who exercised the dominant influence in their lives.

"To allow the other spouse to unilaterally convert the children without the consent of the wife would amount to a serious interference of lifestyle," they said.

In the appellant's case, the justices said the children were from a Hindu marriage between the two.

Citing the Guardianship of Infants Act 1961 (GIA), Justice Zainun Ali said both parents have equal rights in relation to the custody and upbringing of children.

The conversion of the husband to Islam does not alter that the consent of both parents are required before a certificate of conversion to Islam can be issued in respect of the children," she said.

As such the previous certificates of conversion of the three children are void and must be set aside.

Gandhi's lawyer, M. Kulasegaran, who is also a member of parliament, says the court has finally done what parliament did not have the backbone to do.

The government announced last year that it would amend the law to disallow unilateral conversions but backtracked on the pledge due to political considerations in the Muslim-majority nation.

Philip Koh, a lawyer acting for the Malaysian Consultative Council for Buddhist, Christianity, Hinduism, Taoism and Sikhism said the decision "drives home the point that this is the way that Malaysia must go as a multicultural and multi-religion community."

The Women's Aid Organization described it as "a huge victory for all Malaysians. It affirms that both parents have equal right to decide on their child's religion,” said its executive director Sumitra Visvanathan.

"Unilateral conversion is a grave violation of women's rights and has led to more grievous violations including child abduction," she said.

Meanwhile, Ridhuan, for whom a warrant of arrest has been issued, has long since disappeared along with Prasana. Their whereabouts are unknown.

Prasana's grandmother, S. Vengammah, who was also in court on that Monday, had harsh words for the chief of police. "The IGP (Inspector General of Police) has no excuse now and he has to do what is required of him. He has to start (looking for her grand-daughter) now," she said.

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