Introduction
In early 2018, the Federal Court made it illegal for a parent to unilaterally convert his or her non-Muslim child to Islam. Should the conversion of children to Islam be an issue? It’s simply this. Non-Muslims who marry, enter into a non-Muslim marriage. They expect to raise non-Muslim children. And this means that their children should grow up as non-Muslims.
So, a parent converting his or her child to Islam is going against that ideal. It may be fair to say, non-Muslims don’t marry with the expectation of converting to Islam. Not in this country, anyway. If they wanted to, they would have converted first, then marry. But they did not. Instead, they celebrated a non-Muslim marriage, showing their intention to set up a non-Muslim family. So, why would a parent want to convert his or her child to Islam?
Divorce due to conversion to Islam
It’s fair to say, some people convert because conversion to Islam, is a ground for divorce. When your spouse converts to Islam, you have the right to ask for divorce. That’s under section 52 of the Law Reform (Marriage and Divorce) Act 1976. But that doesn’t give you, the Muslim convert, the right to seek divorce based on your own conversion.
So, this strange state of affairs means that, a party can convert to Islam. And this conversion can be used against him or her by the other spouse, to ask for divorce. But this conversion is not something that the convert can rely on to ask for divorce.
The way to see it is, the law protects the other spouse. The non-converting spouse. The non-Muslim spouse. And that non-Muslim spouse has every right to expect that his or her marriage should remain intact.
Just because his or her spouse has converted to a new religion, doesn’t mean that his or her marriage should end. It should be the non-converting spouse’s right to decide, whether he or she wants to remain in the marriage. If the non-converting spouse decides to stay on, so be it. Because he or she can accept it.
But we digress. We cover conversion to Islam as a ground for divorce elsewhere on this website. So, we turn back to the issue of conversion of children to Islam.
Buddhist Father Quashes Conversion of Children to Islam
In October 2018, the Kuala Lumpur High Court quashed the unilateral conversion of two children to Islam. The children’s mother, now 42, had embraced Islam in December 2015. In May 2016, she converted her children to Islam, without the consent of their father. In June 2016, the children’s father filed an application to revoke the conversion. The High Court, following the Federal Court in Indira Gandhi’s case, ruled that the conversion of the children to Islam was illegal. The court then ordered the religious department to remove the children’s names from the register of Muslim converts.
Earlier this year, the convert wife had obtained custody of the children. However, in September 2018, the Court of Appeal awarded sole custody of the children to their Buddhist father.
Precedent: Indira Gandhi Case
The High Court decision was guided by the precedent set by the Federal Court. In January 2018, the Federal Court ruled that the conversion of three children to Islam by their father, was null and void. It was a unanimous decision by a five man bench. The Federal Court said that Article 12(4) of the Federal Constitution, which uses the word “parent”, should not be construed literally. Instead, the conversion of children to Islam requires the consent of both parents, due to its serious implications.
In a way, the Federal Court recognised that children who come into the world as non-Muslims, have a right to remain non-Muslims.
The main points of the Federal Court’s judgement, which have been summarized elsewhere on the Internet, include the following:
- Article 121(1A) does not remove the civil courts’ powers to review the Constitution or other laws, even though a matter may be related to Islamic law;
- State law, including requirements for children to understand and be present, must be fulfilled as a pre-requisite;
- Both parents must consent to the conversion of their children to Islam, before a certificate of conversion to Islam can be issued.
- Children from non-Muslim marriages are protected by the Guardianship of Infants Act. Both parents have equal rights in custody and upbringing (section 5), and courts need to consider the wishes of both parents (section 11).
The Misconception
Some non-Muslim spouses convert to Islam because of their plans for divorce.
They imagined that, if their children were also Muslim, they would get sole custody of their children.
They thought that, the other parent would not convert to Islam.
And they thought that the courts would aid them, because Muslim children should be raised by Muslim parents.
But as the cases show, non-Muslim children can only be converted to Islam by the joint consent of both parents.
As long as both parents are alive, and one parent disagrees with the conversion, the conversion should not be recognised.
And if it is not recognised, the religious authorities should not insert the names of the children into the record of muallafs (new converts).
There is only one exception to this. And that is, when one parent has passed away.
Then, the remaining parent has sole custody of the child.
The remaining parent would also have guardianship rights over the child.
And that right may include converting the child to Islam.
But then, that would raise an interesting question on the rights of non-parents over children. Especially when the non-parents are related to a deceased parent. (We’ll answer that question in another article.)
Legal Disclaimer
Information presented in this article is meant for general information only. The contents of this article should not be treated as legal advice. If in doubt, please refer to a licensed lawyer. If you wish to find out more, please contact our firm.
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