Ex-wife converted children to gain custody, High Court told

A lawyer told a High Court in Kuala Lumpur that a 42-year-old marketing executive from Selangor had tactfully converted her two children in 2016, then aged three and seven, to ensure she gained custody.

Lawyer K Shanmuga for the former husband, a 46-year-old businessperson, said the woman and his client were married according to Buddhist rites but the wife converted to Islam in December 2015.

Both were granted joint custody of the children initially, following her conversion and divorce.

However, sometime in May 2016, she brought her children to the Federal Territory where she was said to be living alone.

The lawyer said she took them to the Federal Territory Muallaf registration where they were taught to utter the kalimah syahadah(affirmation of faith).

"Although the family lives in Selangor, she brought her children to convert them in the Federal Territory.

"She tactfully converted her children for the purpose of control and custody," Shanmuga told Justice Azizah Nawawi.

The lawyer said while the conversion of the children to Islam cannot be done unilaterally in Selangor as permission of both parents are needed, in the Federal Territory only a single parent's approval is required.

"This goes against the principle of stare decisis (to stand with things that have been decided) as in the M Indira Gandhi case reiterated that children born out of civil marriage need the permission of both parents to convert," he said.

"Furthermore, how can the children, at ages of three and seven, could have understood the significance of uttering the kalimah syahadah?" he asked.

For this reason, Shanmuga said the High Court should allow the application sought by the father to nullify the children's conversion.

Following the conversion, he added, the Shah Alam High Court had now granted custody of the children to the mother.

Shanmuga, along with lawyers Honey Tan and Matt Wong, said the decision by the Shah Alam High Court judge last April to grant custody of the children to the mother, should not be seen as accepting the children's conversion to Islam as that pertains to custody, and this application is based on legality of the conversion.

He added that the stay of the custody order would be heard later this month and an appeal has been filed to the Court of Appeal. 

The court had ordered the media not to name the children and parents or their pictures taken.

Now the boy is aged five, while the girl is 10.

The father had named the director-general of the Federal Territory Islamic Department (Jawi), the Registrar of Muallaf, the director-general of the education ministry. the government and his former wife as respondents.

He was granted leave to challenge the conversion in 2016.

The children were converted in May 2016 while the mother had herself converted earlier in December 2015.

Children recited on free will

The businessperson was seeking a certiorari order to quash the certificate of conversion and a prohibition order to prevent the respondents or their agents from registering the children as Muslims.

He also wanted Jawi and the Registrar of Muallaf to quash the registration of his children as Muslim or a declaration that their affirmation of faith is null and void, and has no effect.

The father also sought a declaration that the children did not change their religion, and other relief deemed necessary by the court.

Meanwhile, senior lawyers Sulaiman Abdullah and Nizam Bashir for the Registrar of Muallaf pointed that the children understood the consequence of reciting the kalimahand they did so on their own free will.

They argued that the underaged children are willing to follow the mother despite the separation, and hence, the court should not interfere.

"This case is different from the Indira Gandhi case. In that case, her children did not recite the kalimah. Here, they recited and this is not in dispute," the lawyers added.

Sulaiman said it would not be in the "best interests of the children" if the court allowed the father's application, as the two stated that they liked Islam when asked by Islamic department officers and the Shah Alam High Court judge.

Nizam said as the couple had gone through a divorce and the mother was granted custody, she had the right to determine the children's religion.

Justice Azizah said on Oct 16, she would seek further clarification or deliver her decision on the application. -Mkini