Federal court throws out Hindu mother’s conversion challenge

Chief Justice Zaki Azmi

PUTRAJAYA — The country’s top court today unanimously dismissed a Hindu mother’s bid to raise her two young children in the religion they grew up with, after being converted to Islam by her estranged Hindu-turned-Muslim husband eight years ago.

Today’s 5-0 ruling effectively deals a hard blow to the battle to end one-sided religious conversions, which has caused a deep rift in this multicultural and secular nation but where Islam is recognized as the official creed.

The panel of five of the nation’s most senior judges, led by Chief Justice Tun Zaki Azmi, ruled that S. Shamala must return to the country if she wants the court’s protection.

The 38-year-old mother fled the country with her two sons in 2004. Their current location is unknown.

Zaki, in his grounds of judgment, noted that Shamala had gained an unfair advantage over her husband when she breached a court order allowing the father the right to visit the two children.

“By doing so, she had unlawfully had custody of the children and even if the court were to examine the children now as to who would they chose to live with, most likely they will choose to live with the wife,” the top judge said.

The Federal Court said it cannot adopt a “fugitive doctrine of heads I win, tails you lose” in deciding the basic rights for either parent.

“Parties must have equal footing and not unfair representation,” Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum said in his judgment.

The court noted that Shamala’s estranged husband, anaesthetist Dr Muhammad Ridwan Mogarajah (alias Jeyaganesh C. Mogarajah), also had rights as the father but had been denied access to his children for the past six years.

Dr Muhammad Ridwan was not present in court for the decision today.

Both parents are in a bitter fight to gain custody over Saktiwaran and Theivaswaran, now aged 11 and nine respectively, and to be allowed to raise them in their respective religions.

But Malanjum departed from the judgment of his fellow judges on one point — to allow the case back in court if Shamala returns to the country together with the children within the next three months from today.

“I am of the view that since there is no undue serious prejudice I am therefore inclined to rule that the interest of justice is best served by making an order that the wife and the children are to appear before this court within three months from today failing which this reference will be deemed dismissed with costs,” he ruled.

The other four judges had ruled to have Shamala’s challenge thrown out with immediate effect, without hearing the five constitutional questions she had raised.

The five questions are as follows:

1. Whether section 95 (b) of the Administration of Islamic Law (Federal Territories) Act 1993 is ultra vires of Article 12 (4) of the Federal Constitution [specifically concerning the right to determine the religion of the children under the age of 18 shall be determined by the parent or guardian] and Article 8 regarding equality rights?

2. Whether the same section in state law is inconsistent with federal law, namely section 5(1) of the Guardianship of Infants Act 1961, and is therefore invalid?

3. Regarding Article 121 (1A) of the Federal Constitution, where a custody order of children is made which court, between the Syariah Court or the High Court, is the higher authority?

4. When there is conversion of children of a civil marriage to Islam by one parent without the consent of the other, are the rights of remedy for the non-Muslim parent vested in the High Court?

5. Does the Syariah Court have jurisdiction to determine the validity of conversion of a minor into Islam once it had been registered by the Registrar of Muallafs?

The Federal Territory Islamic Council was also a party to the suit, and had sided with the father for his rights as a Muslim to be upheld.

Shamala’s lawyers were highly critical of today’s decision.

Former Bar Council chief Datuk Ambiga Sreenevasan, who is on Shamala’s team, said the court’s answers to the questions were very important not only for the mother but for others trapped in a similar situation and slammed the panel for dodging them.

“If Shamala can’t come to the highest court of the land [for justice], where can she go?” Ambiga’s colleague raised in an impromptu news conference in the Palace of Justice here after the ruling.

“By leaving the country,” suggested women’s rights activist Meera Samanther, who is also a lawyer.

Samanther said perhaps Shamala had foreseen today’s decision and decided to take her chances and run.

But lawyers for Dr Muhammad Ridwan and the Islamic council welcomed the top court’s unanimous decision.

“If she wants justice, she has to come back with the children. She can’t ask for justice from out of the country, especially in a case where the children have been deprived of their father for the past six years,” Muralee Menon, who represented the father, told reporters.

“The decision today was not one bordering on religion but purely the fundamental right of the parent,” he added.

The Islamic body’s lawyer, Azmi Rais, told reporters Shamala’s suit amounted to trying to seek a judgment in her favour “by remote” and that was not fair.

“The court’s decision was correct,” he added.

- Malaysian Insider