AWL's Press Statement in respect of the Court of Appeal's decision in Indira Gandhi's case

  • Posted on: 12 January 2016
  • By: Daniella

12th January, 2016

 

The recent court of appeal decision in the Indira Gandhi case has cast a shadow over the rights of a non-muslim parent in a custodial dispute.

By subterfuge, Indira’s husband had unilaterally converted the children to the Islamic faith, without her and the children’s presence, knowledge and consent and later secured a custody order from the Syariah court. Such conversions were effected in defiance of the rules of natural justice, particularly where the children were born of a non-muslim marriage. 

When a non-muslim couple contract a marriage, they would assume that their rights would be in accordance with the matrimonial law under which they were married. This has the merit of being just and equitable and does no injustice to any of the parties.

In the context of the right of a parent to determine his/her child’s religion, the purposive interpretation of the singular term “parent” in Article 12(4) of the Federal Constitution would include the plural and the equality of parental rights is provided for under Section 5 of the Guardianship of Infants’ Act 1961.

The 2009 cabinet directive is reflective of this position as is the proposal by the Negeri Sembilan state government of 2015[1] “…. to introduce and enforce new regulations ensuring that those who wish to convert to Islam dissolve their marriage prior to conversion, and make a statutory declaration on their conversion to Islam”.

This human tragedy that has befallen Indira Gandhi has dragged on for too long and further lost in the maze of litigation is the voice of her youngest child.

In 1995, Malaysia ratified the Convention of the Rights of the Child (“CRC”), of relevance are Articles 2[2] and 3[3] which provide that the State in all actions concerning children are to act in the “best interests of the child and which shall be the primary consideration.”

Guided by the aforesaid Articles 2 and 3, has Malaysia discharged its international obligations under the CRC?

Was it in the best interests of a breastfed infant to be torn away unceremoniously from her mother? Was any consideration accorded to the High Court finding of Justice Wan Afrah[4] that their mother was able to provide a more stable home life as compared to the converted father?

Was Indira’s rights as a mother provided due protection under Article 8(2) of the Federal Constitution that she be not discriminated against on the basis of gender and religion?

These questions illustrate the urgent need for constitutional and legislative amendments to expressly stipulate that a non-Muslim child born of a non-muslim marriage, may only be converted with the consent of both parents. Additionally, all issues relating to the non-muslim marriage should be resolved in the civil courts and the said marriage may only be dissolved in the civil courts before a converting spouse may be permitted to remarry.  

This is the equality that Malaysian women are striving for, side by side with Ms Indira Gandhi.

Goh Siu Lin

President

Association of Women Lawyers

http://www.awlmalaysia.org/

 

[2] Malaysia maintains a reservation to Article 2 CRC.

[3]Article 2 CRC: States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. …”

Article 3 CRC: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

[4] Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors (2013) 7 CLJ 82The facts show the father moves around due to his job and I am of the opinion it does not provide for stability for the children. The children are best placed in the care of the mother[4]."

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