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Laws to determine child’s religious status (Updated)

PUTRAJAYA, 24 April 2009: To determine the religious status of a child when a parent converted to Islam, one has to look at the Islamic as well as the existing Malaysian laws, said the Department of Islamic Development Malaysia (Jakim) today.

Its director-general, Datuk Wan Mohamad Sheikh Abdul Aziz, said that under Article 12(4) of the Federal Constitution, the religion of a person under the age of 18 years shall be decided by his parent or guardian.

“Based on this provision, the consent of just one party is sufficient in determining the religion of a child because the word used in Article 12(4) is ‘parent or guardian’ not ‘parents or guardian’ which means ‘mother or father or guardian’,” he said in a statement here.

He said Section 95 of the Administration of Islamic Law (Federal Territories) Act 1993 provides that a child who has not attained the age of 18 years may convert into Islam if his parent or guardian consents to his conversion.

“Among the cases that can be referred to regarding the right to determine the religion of a child is Subashini Rajasingam Vs Saravanan Thangathoray, where the Federal Court ruled that the father had the authority to convert his child to Islam under Article 12(4) of the Federal Constitution.”

“This was because according to Article 12(4), the religion of a person below the age of 18 years shall be decided by his mother or father or guardian, therefore in this case the husband had the right to convert his child to Islam even though his wife had disagreed,” he said.

Wan Mohamad said that from the “syarak” (Islamic law) angle, the person with the right to take care and raise a child must be a Muslim because if the person is not a Muslim, there is a worry that it will harm the religion of the child under his care.

He said the rights of a Muslim convert under the law should also be protected, and a person who embraced Islam was not supposed to be considered as trying to shirk his obligations.

Yesterday, the cabinet decided that a child’s religion must be in accordance with the common religion of the parents at the time of marriage even though his mother or father later embraced another religion.

Minister in the Prime Minister’s Department Datuk Seri Mohamed Nazri Abdul Aziz, when making it public, said the decision was among the long-term solutions reached by the cabinet in view of many cases such as the one involving Mohd Ridzuan Abdullah and wife Indra Gandhi being expected to emerge in future.

Mohd Ridzuan, or Patmanathan a/l Krishnan, 40, formerly a Hindu who has embraced Islam, was reported to have changed the religion of his children — Tevi Darsiny, 12, Karan Dinesh, 11, and Prasana Diksa, one, — to Islam on 12 April and applied for custody rights at the Syariah Court though their mother was still a Hindu.

On the case that was being tried by the Perak Syariah High Court, Wan Mohamad said all parties should be patient since the hearing was still ongoing.

All parties should also abide by the provisions of the Islamic law and the Federal Constitution, he said.— Bernama

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5 Responses to “Laws to determine child’s religious status (Updated)”

  1. Gopal Raj Kumar says:

    There is a sad twist of irony arising from the vexed issue of conversion to Islam of late that appears to have escaped the attention or the scrutiny of the vast majority of us non-Muslims so deeply emotionally involved in this issue.

    Hinduism is not of itself a religion. To be Hindu is to be Indian. The word “Indian” and “India” are both Anglicised versions of the root word Hindu, being a variant of the word Indus (meaining the river Indus).

    Logically and historically, Hindustan for India (a Moghul derivative) or land of Hindus from the word Indus, the river on which banks Indian civilizations were centered around and prospered; or Bharat, the Sanskrit word for what we call India today.

    The British ( and westerners and Semites) were unable to understand the nuances of rituals practiced by Hindus, all of which had and continue to have significant connections to the functions of the body, the mind and their collective connection to the environment and the universe.

    Branches of Hinduism which are purely spiritual in nature and embrace worship of the supernatural are not the entire or sole embodiment of Hinduism. Hence the association (a convenient one) of Hinduism with religion.

    The Arabs till the 1970s referred to Malays and Indonesians as Hindus and not as Muslims as far as religious practice was concerned. The reason being, the indelible mark of Hindu culture on the cultural and religious practices of these two groups.

    A simple illustration of this point is to be found in the names of many Malay names which are distinctly of Indian origin and not Arabic as mistakenly assumed by many. Take for example the former PM of Malaysia – Mahathir Mohamad. The first part refers to Mahathiran or (man of great destiny).
    It is only the Mohamad component of his name that is of Arabic origin, a derivative of a religious imperative which applies to all Muslims to adopt a name, being of a variant of the prophet’s own name in identifying with the religion of Islam.

    Back to the issue of conversions. There is nothing that should come in the way of a father’s (or a mother’s) desire to convert their children to a faith they consider in their wisdom to be best for the spiritual well being of a child. Or in aiding the child’s assimilation into a culture and society they have long adopted or become part of, but for the religious aspect are still alien to. It is appropriate.

    In refusing the father that right as we are now witness to in this controversy, we are being biased in favour of only the mother’s desire to have the children remain “Hindu”.

    Clearly the children are unable to make that decision because they do not have capacity (legal capacity) being minors; which now raises the most vexed question of all. By whose consent did these children become Hindus in the first place?

    This is now more than a mere battle of rights between two dissenting adult parents in confrontation with each other over the validity of their matrimonial rights and vows to assert authority over minors under their lawful care and control. Religious bodies should stay out of it.

    The mother cannot possibly love them less for being Muslim unless she adopts the strict moral code of Hindus in modern India who persecute Muslims.

    The father should not on the other hand use the majority power of Islam as a tool to gain an advantage or to antagonise his estranged spouse, where she is in a minority simply to further his own personal views on the subject. Caught in between as is always the case are the children, torn between two individuals they love, unable to understand why their pain in a break up has to be inflicted on them.

    Strangely enough, no one seems to complain as loudly or take issue with the mass conversions by a politically motivated movement of “born again Americanised Christians” of Hindus, Buddhists and other non-Christians even within an otherwise secure family, breaking them up in the process.

    Cabinet’s decision to ‘stop’ conversions of this nature is obscure, amorphous and lacks definition which adds a newer and more dangerous dimension to the argument for what it fails to say about the issue.

    What about baptisms and conversions at birth? These are forced conversions. No child of 8 days has any capacity to make that decision to accept a faith he or she is ‘born into’. It is all about consent and not consensus.

    Putting it into perspective, is every Catholic child baptised at birth now subject to this prohibition?

    Amen Amen Amen. Om.

  2. ICE says:

    Why should a Hindu worry and abide by Islamic law? Looks funny, and Islam looks funny to me now. Hinduism and Islam don’t mix and that’s final and why should Islam cross the border and interfere with a Hindu? Both have equal rights, as such to side with one party is pure injustice. Why is it condoned in the name of Islam? It puts Islam in a bad light.

  3. Gopal Raj Kumar says:

    It is not a question of why a Hindu should (or any other adherent of any other faith for that matter) worry about Islam. It is whether or not one parent in a controversial situation, should have an overriding right backed by the state, to convert his charge (children) to another faith of his choice without the consent of the non-converting parent.

    In this case the protagonists are both Hindu. Their children were converted into or brought into the faith without their consent. This is so because they could not (and in the present case still are unable to) consent because they are still minors.

    This case highlights some critical issues which those of us non-Muslims agitating on the subject may have not foreseen or intended the consequences to be what they are.

    My reading for whatever that may be worth, is that even the state now in attempting to calm the fears of non-Muslims, may have opened a Pandora’s box which may have undesirable consequences for all including the protectors of the religion of Islam in Malaysia. The consequence being the question of consent to remain or change a religion. Especially where that religion was forced upon the believer (or practitioner) at time of birth when consent would have been impossible.

    Gopal Raj Kumar

  4. Karcy says:

    Gopal, while the infant in question is too young to understand what belief he or she is to subscribe to, the 11 and 12 year old children already know what their beliefs are.

    I became a born-again Christian at 11. That is not a simple decision to make, and I remember doing it with as much gravity and seriousness as any adult would offer to such a decision.

    My sympathy really goes out to the two children in this case. They have been, in a way, abandoned by their father and manipulated by him. They have witnessed the suffering of their mother at this manipulation. How can they earnestly want to be Muslim after this, ever?

    When the boy uttered that he was born Hindu and wants to die Hindu, I was deeply moved (he used Indian, but I suppose in his imagination — wrongly, of course — they are one and the same). It is the zeal and passion for their religion and faith that can only come from children.

    -
    Anyway Gopal, thank you for your comment on Hinduism. I think the problem is that society in general functions on the Western, and thus Christian, normative of what religions are: a child has no religion, or has ‘original sin’ and needs to be part of a religion (in this case, Christianity) to be saved.

    Whereas in both Hinduism and Islam a child is already a born Muslim, or a born Hindu. Any law on this will involve some massive theological clashing.

  5. Gopal Raj Kumar says:

    Karcy,

    A child is neither born Hindu nor anything else in Hinduism. He [or she] is born a human being. The imposition of faith or the cultivation through conversion is just that. It is conversion or cultivation of faith.

    Being a born again, an odd and very strange term for a Christian, is nothing more than affirmation, I think, of one’s faith.

    Remember these are children before the law. Not adults with mature enough faculties to make adult decisions. We do not know whether the mother’s decision to retain the Hindu aspect of their lives is also manipulation which it could well be nor do we know exactly what the father’s motive or reasons for the conversion were.

    Perhaps they could be born again as Hindus one day?


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