Mr. Rebates

Tuesday, November 16, 2010


Malaysia is a unique country in that its political, sociological and legal systems reflect quite clearly the
country’s multi-racial and multi-religious culture.

By virtue of Article 3 of the Malaysian Federal Constitution [hereafter ‘FC’]:

“Islam is the religion of the Federatio[in.e . Malaysia] but other religions may be practised
in peace and harmony in any part of the Federation”.

Further, Article 11 FC states that:

“(1) Every person has the right to profess and practise his religion, and subject to Clause (4)
[regarding propagation of religions other than Islam amongst Muslims], to propagate it.”

Family law relating to non-Muslims is governed separately from family law relating to Muslims. The
Civil High Courts (secular courts) have jurisdiction over family matters relating to non-Muslims in
Malaysia, whereas Syariah Courts (so named under Islamic Law) have jurisdiction over family matters
relating to Muslims.

By virtue of an amendment to the FC, that is Article 121(1A), which came into force on 10th June
1988, the Civil High Courts in Malaysia have no jurisdiction in respect of any matter that falls within
the jurisdiction of the Syariah Courts.

This dual system of laws works perfectly well when lines are clearly demarcated and families stay
within those lines; indeed, members of one family who practise the same religion would therefore be
governed by one set of laws and come under the jurisdiction of one court.

The lines, however, begin to blur when one party to a civil marriage decides to convert to Islam and
the other spouse does not, and has no wish to do so. The situation further turns into a legal and
constitutional quagmire when the spouse who converts to Islam decides unilaterally to convert the
children of the marriage without the knowledge of and/or without obtaining the prior consent of the
non-converting spouse. Which Court would then have jurisdiction over the marriage, the children of
the marriage, the divorce, and claims arising there from2?

The Marriage and the Divorce

The statute governing non-Muslim marriages and divorces in Malaysia is the Law Reform (Marriage
& Divorce) Act 1976 (hereafter “LRA 1976”). This Act specifically excludes its application to persons
professing the religion of Islam.

In a legislative move intended to address the dilemma created when one spouse converts to Islam
and the other does not, Section 51 of the LRA 1976 was enacted. This Section enables a nonconverting
spouse to petition for divorce in the Civil Courts against the converted spouse on the
ground of conversion to Islam. Upon such a divorce, the non-converting spouse may seek child rights,
financial support and property division orders against the converted spouse. In essence, the effect of
Section 51 is that it preserves the rights of the non-converting spouse to seek ancillary reliefs
consequent upon a divorce against a converted spouse notwithstanding the general inapplicability of
the LRA 1976 to Muslims.

Section 51 has, over the years since the LRA 1976 was implemented in 1982, been the subject of
much controversy. To begin with, the Section provides a remedy for the non-converted spouse.
However, the right of the converted spouse to similar relief has been overlooked. He or she upon
becoming a Muslim is precluded from seeking any relief in both the Civil Courts and the Syariah
Courts, since the Civil Courts cannot entertain a divorce application from the converted spouse on the
ground of conversion to Islam, and the Syariah Courts have no jurisdiction over the non-Muslim

1 Advocate and Solicitor of the High Court of Malaya; Barrister (Gray’s Inn)

2 i.e. including spousal support, child support and division of the matrimonial assets

According to Islamic law, the marriage is terminated upon the expiration of three months of the
conversion if the other spouse does not convert to Islam. The converted spouse is thus free to marry
according to his or her personal law that is Islamic law. But the anomaly that then presents itself is
that the non-converting spouse remains, in the eyes of the Civil law, married to the converted spouse
until a divorce is sought and granted pursuant to a petition for divorce initiated by the non-converting
spouse under Section 51 of the LRA 1976.

Indeed, several Malaysian cases including one to the Supreme Court3 confirms that when the nonconverting
spouse does not petition for divorce, he or she remains a dependent of the converted
spouse, entitled to a share of his estate and his pension upon the death of the converted spouse.
Much criticism has been directed at what appears to be a patent omission by Parliament when
enacting Section 51. In failing to provide for the right of the converted spouse to seek a divorce and
consequent ancillary relief and financial provision orders in the event the non-converting spouse
refuses to do so, the converted spouse is currently left with no forum to seek a determination of any of
the ancillary or financial issues.

Perhaps, however, this ‘omission’ was not so much an oversight on Parliament’s part, but simply
because Parliament in its wisdom intended that the spouse who intends to convert should, prior to any
such conversion and/or remarriage, take all necessary and proper steps to sort out his rights and
obligations to his non-Muslim family under the civil law and in the civil courts, with the rationale that,
by failing to do so, he or she deserves to bear the full brunt of being without a forum.

Malaysian Courts have repeatedly moved to preserve the rights of the non-converting spouse to
financial and other relief against the converted spouse in matrimonial proceedings. Initially, in a case
brought before the High Court4, the view taken was that the spouse (here the wife) should have filed
for divorce on the ground of conversion under Section 51 for the court to be empowered to make
ancillary orders against the Respondent Muslim husband. As the wife had instead filed and obtained a
divorce under general divorce provisions in the LRA 1976 on the ground of irretrievable breakdown
and the husband’s desertion, the High Court ruled that it had no jurisdiction to make the ancillary relief
orders sought against the converted Muslim spouse.

The Supreme Court in a later case5 held that the aforesaid case6 was wrongly decided, stating that,
as the non-converting spouse’s application concerned matters affecting both parties, legal obligations
as non-Muslims and matters incidental to the granting of the divorce, the Civil High Court would have
jurisdiction to hear and determine the ancillary proceedings despite the fact that the Respondent
husband in the case before the Supreme Court had converted to Islam after the divorce but before the
hearing of the ancillary application.

The Supreme Court arrived at its decision based on a construction of the general purpose of the LRA
1976 taking into account what the Court perceived must have been the legislative intent behind
Section 51.

The Supreme Court observed that: -

“…It would seem to us that Parliament, in enacting sub-s.51(2) must have had in mind to give
protection to non-Muslim spouses and children of the marriage against a Muslim
convert…From the wording of S 51(2), the legislature clearly intended to provide ancillary
reliefs for non-Muslim spouses and the children of the marriage as a result of one party’s
conversion to Islam. In our opinion, by implication from s 51(2) above, the High Court, in the
present reference, has jurisdiction to hear and determine the ancillary issues. The
implications may arise from the language used, from the context or from the application of
some external rule. They are of equal force, whatever their derivation. (Bennion’s Statutory
Interpretation (2nd Ed, 1992) at p 362). It would result in grave injustice to non-Muslim
spouses and children whose only remedy would be in the civil courts if the High Court no
longer has jurisdiction, since the Syariah Courts do not have jurisdiction over non-Muslims. In
the context of the legislative intent of s 3 and the overall purpose of the Act [i.e. the LRA

3 Eeswari Visuvalingam v Government of Malaysia [1990] 1 MLJ 86

4 Letchumy v Ramadason [1984] 1 MLJ 143

5 Tan Sung Mooi v Too Miew Kim [1994] 3 MLJ 117 at pages 123-125

6 Supra, n.4

1976], the respondent’s legal obligations under a non-Muslim marriage cannot surely be
extinguished or avoided by his conversion to Islam.” 7

The Supreme Court decision as aforesaid was much needed and welcomed by the non-Muslim
community in that the rights of the non-converting spouse against a converted spouse arising from
obligations contracted under a non-Muslim marriage remained intact.

Recently, however, the controversy over jurisdiction, legal rights and obligations when a party crosses
over from one jurisdiction to another, resurfaced in a custody dispute between two parents who had
contracted a civil marriage, both of whom were Hindus at the time of their marriage. The dispute arose
when the Hindu father subsequently, without the knowledge of the wife, converted to the Islamic faith
and six (6) days later, also without the knowledge of or obtaining the consent of the mother, converted
their 2 sons, ages 3 and 2, to Islam.8

The mother, still unaware that the father had converted the 2 children, left the matrimonial home and
filed an application in the Civil High Court for custody, care and control of the 2 boys. She had this
custody application served on the father. Unknown to the mother, however, the father had already
filed an ex-parte application in the Syariah High Court for custody of his 2 sons.

On the date fixed for the hearing of the custody application in the Civil High Court, the father, without
informing the Civil High Court of his pending application before the Syariah Court, obtained a
postponement of the civil proceedings, ostensibly to enable him to appoint solicitors to take conduct of
the matter. In the meantime, also without informing the mother, the father moved the Syariah Court for
an ex-parte order for custody of the children.

On the adjourned date of the hearing, the Civil High Court, after hearing submissions on a preliminary
point, ruled that the Civil High Court, following the earlier Supreme Court case of Tan Sung Mooi9,
retained jurisdiction to hear the matter. An interim order was thus made leaving the children in the de
facto care and control of the mother with access to the father, pending final determination of all

Subsequent to and despite the existence of the Interim Order of the Civil High Court, the father
proceeded to the Syariah High Court and obtained a final order for custody of the 2 boys.
Two applications then came up for determination in the Civil High Court:

1) The Wife’s application for Declarations that the conversions cohf ildthreen twoe re null
and void as the conversions were made without the knowledge of and consent of the wife, the
natural mother and the other parent of the minors, contrary to:

(i) the wife’s constitutional right to determine the religion of the minors
under Article 12(4) of the Malaysian Constitution; and

(ii) equal rights given to a mother and a father under Section 5 of the Malaysian
Guardianship of Infants Act 1961 (hereafter “GIA");

2) Th e Wi f e ’ s a p p l i c a t i o n f o r c u s t o d y , c a r e a n d caonndt r o l t h eo f t h e s e father be ordered to pay for their maintenance.

Article 12(4) of the Federal Constitution gives a minor’s parent or guardian the right to determine
the religion of the minor below the age of 18 years, and Section 5 of the GIA gives a mother the
same rights and authority as the law allows to a father in the custody or upbringing of an infant and
the rights and authority of the mother and father shall be equal. ‘Infant’ is defined as a child below the
age of 18 years, if a Muslim, and 21 years, if a non-Muslim.

The High Court Judge dismissed the application for the declarations sought by the Wife. In his ruling
the Judge held the view that the consent of a single parent is enough to validate the conversion of the

7 supra, n .5, at page 124

8 This is the recent and controversial case involving Shamala Sathiyaseelan (the wife) and Dr Jeyaganesh
C.Mogarajah (the husband). A number of applications were made by both parties in this dispute. The decision

regarding the validity of the children’s conversion can be found at [2004] 2 CLJ 416.
9 Supra, n.5

In coming to his decision, the Judge declined to adopt the ratio decidendi enunciated by another High
Court Judge10 when considering the ambit of the term ‘parent’ within the context of Article 12(4) of
the FC. . The High Court in that case11 held that ‘parent’ in Article 12(4) of the Constitution must
necessarily mean both the father and mother living. The Judge said:

“ T o a l l o w j u s t t h e f a t h e r o r mo t h e r tmoe an c h o o s e t h e depriving the other of the constitutional right under Article 12(4).”

In the circumstances, the High Court in the present case ruled that the issue of the validity of the
conversions by the father was within the purview of the Syariah Court and that the Syariah Court was
the only qualified forum to determine the status of the 2 minors, notwithstanding the Wife had no right
of audience before that forum.

As regards the custody application, the Judge awarded legal custody jointly to both father and mother,
with care and control to the mother, subject however to the caveat that the mother would lose the right
to care and control if, in His Lordship’s words, “there are reasonable grounds to believe that she
would influence the children’s present religious (i.e. Muslim) beliefs, for example teaching them the
articles of her faith and making them eat pork” (which is contrary to the school of Islamic teachings
practised in Malaysia). The father was granted visitation rights and ordered to pay maintenance.
The Mother has appealed the earlier decision dismissing the declarations sought and the father has
appealed the later decision on custody.

The Mother and the 2 children have in fact disappeared from the jurisdiction.


The aforesaid case12 (widely termed ‘the Shamala case’ after the name of the Mother) has reopened
old wounds and raised new concerns. At stake are issues of equality guaranteed by the Federal
Constitution to a parent, that is reinforced in the Guardianship of Infants Act, 1961, as to the
choice of the religion of his or her child. Adding fuel to this controversy is the provision in some Islamic
State legislations that a child is automatically converted upon the conversion of the father.

The other major issue of concern is whether the lines of demarcation between the 2 jurisdictions, lying
where they are, works injustice to the parties.

In this, it appears appropriate to quote a principle which was applied in the Supreme Court Case of
Mohamed Habibullah bin Mahmood v Faridah Dato Talib (1992) 2 MLJ 79313 (which incidentally
was cited by the High Court Judge in the ‘Shamala Case’14) where it was said:

“…it is difficult to imagine how the administration of justice can be served if the parties are
allowed to abuse the process of the court by hopping from one jurisdiction to another over the same
subject matter…”

10 see Chang Ah Mee v Jabatan Hal Ehwal Agama Islam, Majlis Ugama Islam Sabah [2003] 5 MLJ 106

11 Ibid

12 Supra, n.8

13 citing Lord Diplock in the case of Hunter v Chief Constable of the West Midlands Police (1982) AC 529 at p

14 Supra, n.8

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