PETALING JAYA, 21 April 2009: The DAP wants the Law Reform (Marriage and Divorce) Act 1976 amended to provide for a civil marriage to be dissolved first upon conversion of one spouse to Islam.
This is the only solution against unilateral conversions by one spouse of his or her children to Islam, said DAP Sungkai assemblyperson A Sivanesan.
Sivanesan, a lawyer, proposed the amendment today in the light of another case of conversion of children to Islam, without one parent’s consent, in a marriage where one spouse had embraced Islam.
Sivanesan Sivanesan was speaking about the recent case of kindergarten teacher M Indira Gandhi, 34, whose three children have been converted by her 40-year-old husband, known by his Muslim convert name of Mohd Ridzuan Abdullah.
The children, Tevi Darsiny, 12, Karan Dinish, 11, and Prasana Diksa, 1, were converted by their father who used their birth certificates, without the children themselves even being present.
Sivanesan said it was too complex to touch on Article 121(1A) of the Federal Constitution which prohibits the civil courts from having any jurisdiction over matters that fall under syariah law.
“We don’t want to intrude into Article 121(1A). But at least there should be some amendment to the Law Reform (Marriage and Divorce) Act to say that before one party converts, and before the religious authorities accept the conversion, they should ensure that the marriage is dissolved under civil law.
“The couple was married under civil law. It should be dissolved accordingly before the religious authorities can accept the application to convert the children.
“If one parent objects to the conversion (of the children), then the child should not convert but wait until the age of 18, the age of consent,” Sivanesan said at a press conference at the DAP headquarters today.
Present with him were Indira Gandhi and her daughter Tevy Darsiny and son Karan Dinish. The one-year-old baby was taken away from Indira Gandhi by her husband. DAP national adviser Lim Kit Siang was also at the press conference.
Sivanesan said spouses who used syariah law after becoming Muslim to unilaterally convert their children were “taking the easy way out. They feel that, since I am Muslim, I do not need to bother with civil law. So there is no remedy for the non-Muslim spouse.”
Proposal won’t work
In an immediate reaction to Sivanesan’s proposal, family law practitioner Honey Tan said amending the Law Reform Act was insufficient as it would not protect against unilateral conversions by one parent.
Worse, it could prolong the tussle especially if the courts decide to give joint custody of the children to the divorced parents.
Tan, who is also with the non-governmental organisation Pusat Kesedaran Komuniti Selangor (Empower), said the problem lay in the court’s interpretation of Article 12(4) of the Federal Constitution, which states that “the religion of a person under the age of 18 shall be decided by his parent or guardian”.
However, referring to the Federal Court’s 2007 decision on the R Subashini v. T Saravanan case, Tan said the judges took the word “parent” to mean “one single parent”. This granted the right to Subashini’s husband, who had become a Muslim, to decide their children’s religion according to syariah law.
Subashini appealed but failed to restrain her husband from converting their two children, then aged four and two, to Islam.
Honey TanThis was despite there being provisions under Schedule Eleven Section 2(95) on how the constitution can be interpreted. The provisions state that “words in the singular include the plural, and words in the plural include the singular”.
“The court took a narrow view versus what really was the social justice issue. The solution to unilateral conversions is either to overrule the decision in the Subashini case, or to amend the constitution,” Tan said.
Her proposed amendment would be to Article 12(4) so that the words “parent” and “guardian” are read in the plural form.
“Since the judges refuse to look at the interpretation clause, the next best solution would be to put the plural meaning back in Article 12(4),” she said to The Nut Graph.
The consequence of Subashini’s case, as seen in the present problems of similar cases, is that the converted spouse can seek remedies through the syariah court. But these have no jurisdiction over the non-Muslim spouse, leaving little room for recourse if the courts opt not to defer the matter to the civil courts.