The New York Times: Malaysian Custody Dispute Lost Between Courts

The New York Times has again quoted LoyarBurokker K.Shanmuga in its coverage of the Indira Gandhi custody case where recently a civil court overruled the decision of a syariah court. This latest article reports on Ms. Gandhi’s ex-husband’s failed bid in getting a stay order on that ruling and her plans to contest her children’s conversion. It pleases Lord Bobo to present for your delectation the NY Times article, reproduced below.

Malaysian Custody Dispute Lost Between Courts

By LIZ GOOCH
Published: April 1, 2010
The New York Times

KUALA LUMPUR – Through most of their 17-year marriage, M. Indira Gandhi says she and her husband observed rituals that she considered integral to their Hindu faith. Each morning they would pray before a shrine and on Fridays they would fast. During festivals they donned brightly colored, traditional outfits to attend their local temple.

Those were traditions Ms. Gandhi assumed they would be passing on to their three young children.

But nearly a year ago Ms. Gandhi was stunned to discover that her husband had converted to Islam. Her surprise turned to anger when she discovered that, without consulting her, he had also converted their children.

“If he wants to convert, O.K. But these are children that were born from both of us,” said Ms. Gandhi, a kindergarten teacher in Ipoh, a town about a two-hour drive from Kuala Lumpur.

Her husband’s action has left Ms. Gandhi navigating the conflicting jurisdictions of Malaysia’s religious and civil courts in a case that has challenged the authority of Shariah courts in this predominantly Muslim country.

Under Malaysia’s two-tier judicial system, Islamic Shariah courts handle family law cases involving Muslims, while secular courts handle those involving non-Muslims. But the lines have become blurred in cases involving interfaith disputes. Religious minorities have complained that they are at a disadvantage when their case falls to an Islamic court.

Last year, a Shariah court granted Ms. Gandhi’s husband, Muhammad Ridzuan Abdullah, custody over their children. But last month, in what some called a landmark ruling, a civil court overturned the Shariah court’s decision and transferred custody back to Ms. Gandhi. On Thursday, Mr. Ridzuan failed in his bid to obtain a stay order on that ruling.

On Friday, Ms. Gandhi plans to ask the court for permission to contest the children’s conversion. One of her lawyers, K. Shanmuga, said he could not recall an instance when a civil court had overturned a child’s conversion to Islam.

Lawyers say they have seen an increasing number of cases in recent years where one parent, typically the father, has converted to Islam and converted the children without the other parent’s knowledge.

Once they are converted and their identity card is stamped “Islam,” the children face far-reaching consequences.

Mr. Shanmuga said children who are converted must study Islam at school and are subject to Shariah laws that state that Muslims cannot marry outside the faith, must raise their children as Muslims and cannot participate in non-Muslim religious ceremonies.

Malik Imtiaz Sarwar, a human rights lawyer and president of the National Human Rights Society of Malaysia, said he believed that some parents had converted their children to Islam to gain a “tactical advantage” in custody disputes.

In recent years, he said, civil courts have ruled that a convert to Islam is entitled to take a custody dispute to a Shariah court, even if the other partner is a non-Muslim.

Non-Muslims cannot appear in Shariah court and lawyers say such a court is more likely to award custody to the Muslim parent when the children have been converted.

Malaysia’s Constitution says that the religion of a child under 18 should be decided by the parent or guardian. Some lawyers have argued that this should be interpreted to mean both parents, but the courts have not agreed, ruling that the consent of one parent is sufficient to convert a child to Islam.

Once a person has become a Muslim, it is difficult to change. It requires permission from the Shariah court, but Mr. Shanmuga said there were no established criteria for renouncing Islam.

“Anybody who steps out of Islam, the Shariah court and the general Muslim population frown on,” said Mohammad Hashim Kamali, an Islamic law expert and chief executive officer of the International Institute of Advanced Islamic Studies. “The procedures are not made easy for them.”

Last year, the Malaysian cabinet announced that it wanted to bar the conversion of children without both parents’ consent.

But so far no legislation has been passed to turn the cabinet’s decision into law, said M. Kulasegaran, the Democratic Action Party parliamentary member for Ipoh West and another of Ms. Gandhi’s lawyers.

A spokesman for the Attorney General’s Chambers declined to comment on the issue.

Mr. Hashim, the Islamic law expert, has recommended establishing a special court of mixed jurisdiction where both Shariah and civil judges would adjudicate disputes involving Muslims and non-Muslims on issues such as child conversion and custody.

Mr. Malik said that when parents have sought redress in the civil courts over their children’s conversion, the courts have generally ruled that such issues must be handled by the Shariah court.

He said recent rulings have followed the precedent set by the case of Lina Joy in 2007. Ms. Joy, who converted from Islam to Christianity, applied to Malaysia’s highest civil court to have her conversion recognized. But the court ruled that conversion falls under Shariah jurisdiction. Ms. Joy has since left the country, Mr. Malik said.

While Ms. Gandhi’s lawyers debate jurisdiction, Ms. Gandhi is focused not only on contesting her children’s conversion but on being reunited with her youngest daughter.

Her eldest children, aged 12 and 13, have lived with her since she separated from her husband, but it has been nine months since she last saw her youngest daughter, who will soon celebrate her second birthday.

Despite the court decision awarding her custody, her husband had refused to return the girl as of Thursday night.

“I missed a lot of her childhood,” said Ms. Gandhi. “It’s not about religion. It’s about humankind. What does she know that she’s been converted?”

See Also: “Clearer Limits Sought in Malaysia for Shariah Courts’ Role“

Related Internet Links: “April 30 verdict on Indira bid to keep kids Hindu”