The Federal Court has been tasked to determine the validity of the conversion of children of a civil marriage into Islam by one parent without the consent and knowledge of the non-converted parent.

The Court of Appeal today referred the Shamala-Ridwan custodial rights case to the Federal Court for determination of five constitutional questions.

The apex court will have to adjudicate on conflicting Islamic and civil laws governing conversion and family matters and also on the Federal Constitution, including on equality and freedom of religion.

One of the questions posed to the Federal Court was whether the Administration of Islamic Law (Federal Territories) Act 1993 which gives rights to a converted parent to convert his or her children from civil marriage without the knowledge and consent of the other parent, is inconsistent with the Guardianship of Infants Act 1961.

The amended Guardianship of Infants Act gives equal rights to a mother and father on the upbringing and custody of their children.

Justice Abdull Hamid Embong led a three-member panel in arriving at the unanimous decision to refer the case to the Federal Court. The other judges were Justice Hassan Lah and Justice Abdul Malik Ishak.

Abdull Hamid also ruled no order as to costs and that the matter can be referred back to the appellate court on further instructions to dispose the contempt of court order issued on the couple either by the Syariah High Court or the High Court.

The answer to the question at the apex court would determine to fate of all ongoing conversion cases involving children, which had been a source of thorn between Muslims and non-Muslims alike, after the conversion of one of the spouse.

The pending decision of the Federal Court is also significant in the face of a recent cabinet decision that a child will maintain his or her original faith of the parents during the civil marriage and would not have to follow the religion of the converted parent.

Converted without knowledge

Shamala, 37, married Jeyaganesh, 41, in 1998 according to Hindu rites and their marriage was registered under the Law Reform (Marriage and Divorce) Act 1976.

In 2002, four years after the marriage, Jeyaganesh embraced Islam and subsequently converted Saktiwaran and Theiviswaran, who were then aged three and two, to Islam without Shamala's knowledge and consent.

Shamala, who now has custody of the two boys, was also ordered not to teach them her religious beliefs or to make them eat pork.

Despite the fortnightly visitation rights granted to Jeyaganesh by the civil High Court in 2004, he claimed he had not seen his two boys for the past five years.

The application to refer the constitutional questions to the court was with the consent of Jeyaganesh, whose Muslim name is Muhammad Ridzwan Mogarajah, and the Federal Territory Islamic Council.

The five questions

The five questions put to the Federal Court are:-

1. Whether Section 95 (b) of the Administration of Islamic Law is ultra-vires Article 12 (4) (which states that there shall not be discrimination against any citizen) and Article 8 of the Federal Constitution (that all persons are equal before the law and entitled to equal protection of the law).

2. Whether Section 95 (b) of the Administration of Islamic Law, as state law, is by reason of Article 75 of the Federal Constitution, inconsistent with a Federal law, namely, Section 5 (1) of the Guardianship of Infants Act and therefore invalid.

3. In the context of Article 121 (1A) of the Federal Constitution (which gives exclusive jurisdiction to the syariah court on Islamic matters), where a custody order is made by syariah court or the high court, on the basis that it has jurisdiction to do so, whether there is jurisdiction for the other court to make a conflicting order.

4. Where there has been a conversion of the children of a civil marriage into Islam by one parent without the consent of the other parent, whether the rights of remedy under Part II of the Federal Constitution of the non-Muslim parent is vested in the High Court.

5. Whether in the context of Articles 8, 11, 12 (4) and 121 (1A) of the Federal Constitution, the Syariah Court has exclusive jurisdiction to determine the validity of conversion of a minor into Islam once the minor has been registered by the Registrar of Muallafs (Majlis Agama Islam).

A team of lawyers led by CV Das represented Shamala while Muralee Menon appeared for Jeyaganesh, and Azmi Md Rais and Zulkifli Che Yong for the Islamic council.