A LANDMARK JUDGMENT
IN 2007, the Federal Court held that either spouse has the right to convert a child of the marriage to Islam.
> The apex court ruled in the case of secretary R. Subashini that the conversion of her son to Islam by her husband under the Selangor Enactment did not violate the Federal Constitution. > Federal Court judge Justice Nik Hashim Nik Ab Rahman 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”. > The court also ruled that the dispute between Subashini and her Muslim-convert husband T. Saravanan over the dissolution of their marriage and custody of their second son would be determined by the civil court. > Justice Nik Hashim also said a non-Muslim’s civil marriage did not automatically dissolve upon one of the parties’ conversion to Islam.
Interpretation of parent and gender in the Federal Constitution CONVERSION
Article 12 (4): For the purpose of Clause (3) the religion of a person under 18 years shall be decided by his parent or guardian
ELEVENTH SCHEDULE
> Clause 2(94): Construction of masculine gender – words importing the masculine gender include females > Clause 2(95): Construction of singular or plural – words in the singular include the plural, and words in the plural include the singular
The heartbreaks
The unilateral conversion of children from a civil marriage to Islam after one spouse converts has caused untold heartache over the years. Children have been ripped apart from the parents and siblings torn away from their siblings. Non-Muslims who contracted civil law marriages have faced legal battles that stretched over the years trying to get an equal voice in the custody and guardianship of children and their children’s religion. There are no statistics on the number of unilateral conversions that have taken place. Among the cases that have been highlighted in the media are Chong Ah Mee (1998), S. Shamala (2002), R. Subashini (2007), Indira Gandhi (2009) and S. Deepa (2013).
Indira Gandhi’s case is still in the courts, with the Federal Court now hearing her case. Her convert husband took her baby away when she was nine months old in 2009 and Indira has not seen her daughter in seven years. The court has ordered the husband to bring the child to court but he has not done so and has not been found by the police. She is challenging the unilateral conversion of her three children in the Federal Court. In Deepa’s case, she was allowed to have one child while the other was given to her convert husband although she had been given custody of both earlier, before he had the younger child – a boy – converted. The Federal Court allowed the husband to keep the son after the judges talked to the children.